SC Judge Justice SK Kaul Recuses From Hearing Pleas Challenging ED Director's Extension

Justice Kaul ordered the matter to be listed before a bench of which he is not a member.

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Supreme Court judge Justice SK Kaul on Friday recused himself from hearing the pleas challenging the amended law allowing extension of up to five years for the ED director, a day after Sanjay Kumar Mishra was given a fresh one-year extension as the chief of the anti-money laundering agency.

Though the judge did not assign any reason for his decision announced in an open court, the SC had last year made it clear that Mishra will not be granted any further extension.

A bench of Justices Kaul and AS Oka was hearing a batch of petitions on the contentious issue of grant of extension to the chiefs of the Enforcement Directorate.

Justice Kaul ordered the matter to be listed before a bench of which he is not a member.

Senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners, told the bench the central government had given a fresh extension in service to the incumbent Director of the Enforcement Directorate Mishra to 'frustrate' the petitions pending before the apex court.

"Since the counsel for the parties have expressed some urgency in the matter, the matter be placed before the Chief Justice of India for necessary orders," the bench said.

A batch of petitions, including those filed by Congress leaders Randeep Singh Surjewala and Jaya Thakur, and TMC's Mahua Moitra and Saket Gokhale, had come up for hearing before the bench.

According to an official order, the Union government on Thursday gave a fresh one-year extension to Mishra, the third for the Indian Revenue Service officer in the position.

The notification issued by the government said the 1984 batch IRS officer will be in office till Nov. 18, 2023.

Mishra, 62, was first appointed the director of the ED for two years on Nov. 19, 2018.

Later, by an order dated Nov. 13, 2020, the central government modified the appointment letter retrospectively and his two-year term was changed to three years.

The government promulgated an ordinance last year under which the tenure of ED and CBI chiefs could be extended by up to three years after the mandated term of two years.

On Sept. 5, the central government had contested in the top court the bona fide of the pleas filed by some political leaders challenging the extension of tenure of the ED chief and the amended law allowing such extensions up to five years, calling it "pressure tactics".

The apex court had then appointed senior advocate KV Viswanathan as amicus curiae (friend of the court) to assist it in dealing with the pleas.

On Aug. 2 this year, the top court had sought response from the central government, the Central Vigilance Commission and others to the pleas.

Congress leader Surjewala's plea challenged the amendment made by the central government to the fundamental concept decided by the apex court in two judgements in the Vineet Narayan and the Common Cause cases on fixed tenure for such officials.

A batch of pleas have been filed on the issue, mostly challenging the Central Vigilance Commission (Amendment) Act, 2021 which provides for extension of the term of ED's director up to five years.

The Centre had on Nov. 17, 2021 extended Mishra's stint at the anti-money laundering agency by a year till Nov. 18, 2022, days after bringing ordinances to allow the ED and CBI directors to occupy offices up to five years.

The apex court had, in its Sept. 8 judgement last year on a petition filed by NGO "Common Cause", said a reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the committee constituted under Section 25 (a) of the CVC Act.

It had upheld the centre's power to extend Mishra's tenure as ED director but clarified granting extension to officers after the age of superannuation should be done only in rare and exceptional cases.

The top court had also made it clear that no further extension can be granted to Mishra.

The court had also stated that an extension of tenure of the director should be for a short period.