In a significant development in the petitions contesting the third extension granted to ED Director SK Mishra, Senior Advocate KV Viswanathan, the amicus curiae in the matter, informed the Supreme Court that the extensions are illegal.
The amicus argued that not only the extensions but also the 2021 amendment to the Central Vigilance Commission Act 2003, which allows the Center to prolong the Director of the ED’s term for up to 5 years, are invalid.
“The extension order and the statutory amendments, keeping in mind the long line of judgments from Vineet Narain, Prakash Singh 1 and Prakash Singh II, Common Cause I and Common Cause 2, are illegal. Not only the extension but also the amendments,” Viswanathan told a bench comprising Justices BR Gavai and Aravind Kumar.
The senior counsel continued by stating that the extension is unlawful not only because the Common Cause judgement directed that Mishra should not be granted any further extensions past November 2021, but also because the judgement ‘specifically’ stated that extensions should only be granted in exceptional circumstances.
A number of petitions opposing the CVC Amendment Act and the extension of the ED Director’s tenure were being heard by the bench. Viswanathan was appointed as an amicus curiae in the case by a bench chaired by the then Chief Justice of India, UU Lalit, in September 2022.
Given that Mishra was initially appointed in November 2018, the central government’s choice to extend his term has been the subject of an ongoing political debate. He was supposed to retire two years later, when he turned 60 years old, according to the appointment order. However, the government retroactively changed the order in November 2020, extending his appointment from two to three years.
In the case of Common Cause v. Union of India, the Supreme Court was requested to consider the legality of this retroactive amendment and the one-year extension of Mishra’s term. Judge L. Nageswara Rao’s division of the court ruled that only in “rare and exceptional circumstances” may a short-term extension be granted.
While affirming the move to extend Mishra’s tenure, the apex court cautioned that no further extension was to be granted to the Chief of the Directorate.
