PIL in SC Challenging Centre’s Decision to Extend Tenure of ED Director

APublic Interest Litigation has been filed in the Supreme Court challenging the decision of the Central Government to retrospectively amend the tenure of Sanjay Kumar Mishra as Director, Enforcement Directorate (ED).

The plea filed by NGO Common Cause has contended that the order issued by the Centre extending Mishra’s tenure for one year more, is in violation of Section 25 of the Central Vigilance Act, 2003 (CVC Act) as the said Section provides that a person has to be above the rank of Additional Secretary to the Government of India to be eligible for appointment as a Director of Enforcement.

Kumar, the plea states, had already reached his retirement age in May 2020, therefore, after the end of his two-year period on November 19, he, by virtue of not holding any post above the rank of Additional Secretary, would have been ineligible for appointment as Director of Enforcement again, the plea contends.

The plea alleges that the government employed a circuitous route in order to ensure Kumar got one more year as Director of Enforcement by way of retrospectively modifying the appointment order dated November 11, 2018 itself. The Centre has done indirectly what could not have been done directly under the statute, the plea argues.

NGO states that there is neither any enabling provision in the CVC Act for extension of service of the Director of Enforcement nor any enabling provision which provides for such retrospective modification of appointment orders.

Referring to the Section 25 of the CVC Act, the plea states that the purpose behind Section 25 (d) of the Act, in providing a minimum tenure of two years, is only to insulate the Director of Enforcement from all kinds of influences and pressures.

However, the said purpose, the plea argues, gets defeated if on the verge of his two-year tenure and much after his retirement age, the Director of Enforcement is given a de facto extension in service by adoption of a circuitous route of modifying the initial appointment order itself.

Further, it is contended that ED handles a large number of cases involving huge corruption, many of which are politically sensitive in nature and the Director of Enforcement has powers akin to that of the Director of CBI.

“Such illegalities in the appointment of the Director of Enforcement will shake the confidence of citizens in the institution of Enforcement Directorate. Such an action will be totally against the laudable principles highlighting the need of impeccable integrity of persons holding high public offices and the consequent need for insulating the said offices from extraneous influences, as enshrined by the Supreme Court in Vineet Narain v. Union of India, (1998) 1 SCC 226”, the plea contends.

The plea filed through Advocate Prashant Bhushan has also sought a direction to the Centre to appoint a Director of the ED in a transparent manner and strictly in accordance with the mandate of Section 25 of the CVC Act.

Centre on November 13 extended the tenure of SK Mishra as Director, ED for a year.

Mishra, an IRS officer was appointed as ED Director on November 17, 2019, for a fixed tenure of two years. His tenure as Director was coming to an end November 19. However, the President modified the earlier order to the effect that the tenure will last for three years, which means one more year for Mishra.

ED Director’s appointment is governed by the Central Vigilance Commission Act which provides that no person below the rank of Additional Secretary to the Government of India shall be eligible for appointment as a Director of Enforcement and the Director so appointed will continue to hold office for a period of not less than two years from the date on which he assumes office.

The article was originally published in The Leaflet.