Explained | The Enforcement Directorate Chief tenure extension controversy Premium

The Supreme Court extends ED Director S.K Mishra's tenure till September 15, 2023, to ‘serve national interest,’ a month less than the Centre’s demand. We examine the case and the controversy behind the tenure extension.

The story so far: The Supreme Court on July 27 extended the tenure of the incumbent Director of Enforcement Directorate (ED) Sanjay Kumar Mishra till September 15, 2023, to serve ‘public and national interest.’

The Court, in a verdict delivered on July 11,directed Mr. Mishra to quit office by July 31 after opining that his continuance till November 2023 at the helm on a third consecutive extension was illegal. The government had been given time till July 31 to find a replacement for Mr. Mishra, taking into consideration the government’s submission that Mishra’s presence was necessary for the ongoing evaluation by the Financial Action Task Force (FATF). FATF is an independent international body to prevent and combat money laundering and terror financing, with its secretariat located at the headquarters of the Organisation for Economic Cooperation and Development.

However, just four days before the deadline, the Union government filed an urgent application asking the Supreme Court to permit Mr. Mishra to continue in his post till October 15 on the grounds that his presence was necessary for the still-ongoing evaluation by the FATF.

A Bench headed by Justice B.R. Gavai and also comprising Justices Vikram Nath and Sanjay Karol partially allowed the plea and extended the tenure till September 15. The Bench, however, made it clear that it would not have entertained the government’s request in ‘ordinary circumstances’ and that no further requests for Mr. Mishra’s extension would be granted. It underscored that Mishra would cease to be ED Director from September 15-16 midnight.

Mr. Mishra was first appointed ED Director for a two-year term in November 2018. This term expired in November 2020. In May 2020, he had reached the retirement age of 60.

However, on November 13, 2020, the Union government issued an office order stating that the President had modified the 2018 order to the effect that the time period of ‘two years’ was changed to a period of ‘three years.’ The government order in essence extended Mr. Mishra’s tenure with a retrospective effect, making it a three-year tenure against the initial two years, even though he had attained superannuationbefore the expiry of the two years.

The Union government’s order of November 2020 extending Mr. Mishra’s tenure with retrospective effect waschallenged before the Supreme Court in the case Common Cause v. Union of India (2021). In September 2021, a Bench comprising Justices L Nageswara Rao and BR Gavai upheld the tenure extension but clarified that Mishra would not be given any further extension beyond November 17, 2021, upon completion of three years of his tenure, issuing a writ of mandamus to this effect. It also underscored that the extension of the tenure of ED officers who have attained the age of superannuation should be done only in ‘rare and exceptional cases’ and that such extensions should be for a short period only.