Extension Directorate: Why Is the Union Govt Hell-Bent on Yet Another Term for S.K. Mishra?

“The graveyards are full of indispensable men,” said Charles de Gaulle to make the point that no one was indispensable.

However, the Union government has on solemn affidavit to the Supreme Court, requested yet another extension for its director of its Enforcement Directorate (ED) in the finance ministry. It wants the Supreme Court to yet again extend the tenure of S.K. Mishra, who has presided over the ED since 2018.

Mishra's tenure has seen a surge in stringent enforcement against opposition politicians, earning both commendation from the ruling party and criticism from the opposition 

The Legal Crossroads: Supreme Court's Previous judgments

In 2021, the Supreme Court in Common Cause’s case had ordered:

“Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. We do not intend to interfere with the extension of tenure of the second Respondent (Mishra) in the instant case for the reason that his tenure is coming to an end in November 2021. We make it clear that no further extension shall be granted to the second Respondent.”

To get over the 2021 judgement, the government amended the Central Vigilance Commission Act, the Delhi Special Police Establishment Act, and the Fundamental Rules, to provide for yearly extensions of the tenures of the CBI director and the director of the Enforcement Directorate for a period of up to five years. These amendments were also challenged in the Supreme Court in a second challenge by Jaya Thakur and others.

The amendments were upheld this year in 2023, but not the extension granted to Mishra.  

The court ruled:

"It is clear that this court issued a specific mandamus that no further extension shall be granted to the second respondent. undisputedly, the union of India as well as the respondent no.2- Sanjay Kumar Mishra in writ petition (civil) no. 456 of 2022 herein were parties to the said proceedings…. this court has specifically issued a mandamus that no further extension shall be granted to the second respondent. the union of India and respondent no. 2 were both parties in the proceedings before this court in writ petition (civil) no. 1374 of 2020 [Common Cause (2021)]. The mandamus issued to the parties was binding on them. we, therefore, find that respondent no.1 could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this court vide its judgment dated 8th September 2021 in common cause (2021)."

The court however allowed Mishra to continue till the end of July 2023. This decision was influenced by considerations of the terror-financing watchdog FATF's review and the time needed to appoint the new director of enforcement.

The court said:

"We are inclined to take into consideration the concern expressed by the union of India with regard to FATF review. we are further inclined to take into consideration that the process of appointing the director of enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit respondent no.2 to continue to be in office till 31 July 2023."

In the face of the judgement and nearing the second mandamus to quit, the government has now sought an "extension of the date upto 15.10.2023 which the Respondent No. 2 may...be permitted to continue in office, in view of the ongoing FATF Review which is at a critical stage where submissions on effectiveness have been made on 21.07.2023 and on-site visit is scheduled to be conducted in November, 2023. At such critical juncture, it is essential to have an individual who is well-acquainted with the overall status of money laundering investigations and proceedings across the country and also the intricacies of the procedures, operations and activities of the investigating agency, at the helm of affairs at the Directorate of Enforcement. This is necessary to ensure that the assessment team can be promptly and ably assisted with necessary reports, information, statistics etc. Any transition in leadership at the Directorate of Enforcement at this stage, would significantly impair the ability of the agency to provide necessary assistance to and co-operation with the assessment team and thereby adversely impact India's national interests."

Also read: At SC, Modi Govt Justified S.K. Mishra's Extension Citing FATF Review. How Key Is His Role in it?

'In the name of God, go'

It ill-behoves a government to act like a recalcitrant debtor, seeking a further lease of time.

The Enforcement Directorate is no constitutional or statutory body but a mere department of the finance ministry. Its director can easily be substituted by an official to act upon the incumbent’s departure. The incumbent himself is not barred from offering his expertise as a consultant or otherwise to the government, even for purposes like the FATF review.

The Supreme Court’s second judgement in Jaya Thakur, is based on its earlier judgement in Common Cause, which had specifically ruled out an extension to S.K. Mishra in particular. The court has had to repeat itself twice, to rule that no further extensions can be given. A third extension will simply undermine the authority of the court and the efficacy of its mandamus.

The judgments of the court cannot be treated as having been writ in water.

The court and the government may do well to recollect Oliver Cromwell’s admonition and say to S. K. Mishra, “It is not fit that you should sit here any longer. You have sat here too long for any good you have been doing lately…In the name of God, go.”

Sanjay Hegde is a senior advocate, Supreme Court.

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