Days after the Supreme Court held as "illegal" the repeated extensions granted to ED Director Sanjay Kumar Mishra, the Centre on Wednesday moved the apex court seeking his continuance till October 15, saying his absence during the ongoing FATF review will adversely impact India's national interests.
Photograph: ANI Photo
The Centre also emphasised that Mishra, 63, has been engaged in preparation of documents and fulfilling other requirements for mutual evaluation since the beginning of the year 2020 and, accordingly, his continuation in this arduous and delicate process at this "critical stage" is essential. The Financial Action Task Force (FATF) is a global body that leads action to tackle money laundering and terror financing.
Solicitor General Tushar Mehta told a bench of Justices BR Gavai, Hima Kohli and Prashant Kumar Mishra that the government has moved an application seeking modification of the apex court's July 11 verdict.
"There is some urgency with regard to that matter. We request urgent listing of the miscellaneous application," Mehta told the bench.
Justice Gavai said the July 11 verdict was pronounced by a three-judge bench, also comprising Justice Vikram Nath and Sanjay Karol, and currently they are sitting in different combinations.
"Let the registry request the Chief Justice of India for constituting a bench," Justice Gavai told Mehta.
The solicitor general requested the bench to list the matter urgently, saying this application needs to be heard by July 28 (Friday).
The bench then agreed to hear the matter on Thursday at 3.30 pm.
Advocate Prashant Bhushan, who has appeared for NGO 'Common Cause' challenging extensions granted to Mishra tweeted, ’Wow! Just Wow! After all his 3 extensions have been held to be illegal, & he was still given almost another month to wind up, the govt files another application seeking extension of ED Director! Absurd!’
The top court had on July 11 held as "illegal" two successive extensions of one year each granted to Mishra and said the Centre's orders were in "breach" of its mandamus in the 2021 verdict that the IRS officer should not be given further term.
It had also curtailed Mishra's extended tenure to July 31 from November.
A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol had said in view of the peer review being conducted by the FATF this year and to enable smooth transition, Mishra's tenure will be till July 31.
The 1984-batch IRS officer was otherwise to remain in office till November 18, 2023, according to the notification issued by the government.
"By way of the present application, the applicant-Union is seeking for an extension of the date upto which the Respondent No. 2 (Sanjay Kumar Mishra) has been permitted to continue to be in office, from July 31, 2023 to October 15, 2023," the government said in its prayer.
It said the Union of India is compelled to approach the apex court seeking extension, "in view of the ongoing FATF review which is at a critical stage where submissions on effectiveness have been made on July 21, 2023 and on-site visit is scheduled to be conducted in November, 2023."
Explaining the need for Mishra's continuance, the government said, "At such a 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."
It said 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," it said.
The Centre said it is expected that after the submissions on effectiveness have been made, the assessment team will have a large number of questions about the existing system in the country, on technical compliance and further queries on effectiveness.
"Indian authorities are expected to promptly reply to these questions to ensure that the assessment team gets a proper picture of the risk and context of India and of the implementation of FATF recommendations in letter and spirit."
The Centre further said the onus of establishing technical compliance and effectiveness of the system lies with the assessed country and any lapse in doing so can adversely impact the outcome of the mutual evaluation. For the above reasons, “continuation of the incumbent director during this period would be necessary," it added.
"It is under the aforesaid peculiar circumstances that the Union of India has approached this court by way of the present application seeking for an extension of the date upto October 15, 2023 for which the Respondent No. 2 (Sanjay Kumar Mishra) may be permitted to continue to be in office," the application said.
The bench had given the verdict on a batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Jaya Thakur, and TMC leaders Mahua Moitra and Saket Gokhale challenging the extensions granted to Mishra.
Mishra was first appointed the ED director for two years on November 19, 2018. Later, by an order dated November 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years.
The government also promulgated an ordinance last year under which the tenure of the ED and CBI chiefs could be extended by up to three years after the mandated term of two years
