The Supreme Court on Monday questioned the application moved by Centre seeking recall of its September 8, 2021 direction on the tenure of the director of the Enforcement Directorate (ED).
Solicitor General Tushar Mehta, representing the Centre, contended before a bench of Justices B.R. Gavai and Vikram Nath that an application had been moved seeking modifications in the order.
Emphasising that he is not on merits of the matter, Mehta said that the reliance placed by the petitioner on this court’s September 8, 2021 order, “we have already moved an application for appropriate modifications in the said order….”.
The bench told Mehta that it had already indicated that the court would not entertain such an application since it is almost in the nature of a review. Mehta requested the bench to tag the application with a clutch of plea against the extension of the tenure of ED Director Sanjay Kumar Mishra.
Mehta emphasised that there have been subsequent legislative changes and as a result, the application was moved before the court.
But, the bench said: “Subsequent changes in law cannot be a ground for recalling or modifying an earlier judgment or order of this court.”
The top court was hearing a plea filed by Congress leader Jaya Thakur challenging the third extension granted to ED chief Mishra. The plea, filed through advocates Varun Thakur and Shashank Ratnoo, said that Mishra’s tenure extension is destroying the democratic process of the country, hence the present writ petition, which may be allowed in the interest of justice. The apex court had issued notice on the plea in December last year.
The plea has questioned the amendments made to the Central Vigilance Commission (CVC) Act that allows extending the ED Director’s tenure by up to five years.
As Mehta sought some time to file a reply in the matter, the bench listed the matter after three weeks saying that the petition will be heard along with the Centre’s application.
The top court in September 2021, had upheld the Centre’s power to extend Mishra’s tenure, but clarified that an extension should be given to officers after the age of superannuation only in rare and exceptional cases. It had also made it clear that no further extension can be given to Mishra.
Thakur’s plea said there are several competent officers who are eligible for consideration of appointment to the post of Director of Enforcement and they should not be deprived of the opportunity to be appointed in accordance with the procedure prescribed under the CVC Act.
“Even assuming without conceding that the tenure of Respondent No.2 (Mishra) can be extended, it cannot be for a period of one year when the original appointment was made for a period of two years. The nature of duties exercised by the Director of Enforcement would involve supervision of very important investigations. Under the guise of pendency of investigations into matters which have cross-border ramifications, the tenure of the Director of Enforcement cannot be extended periodically,” said the plea.
The plea contended that Centre is destroying the “basic structure” of democracy by misusing the enforcement agencies against its political opponents.