Thread by @LiveLawIndia

#SupremeCourt to shortly hear Congress leader Jaya Thakur's plea against a fresh extension granted by central govt to SK Mishra, Director of Enforcement Directorate, as well as challenges against 2021 amendment to CVC Act.

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#SupremeCourt bench comprises Justices BR Gavai, Vikram Nath, & Sanjay Karol; bench is hearing other matters before lunch.

Gavai J: After lunch, we will take ED matter. No other matter to be heard after lunch.

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SG Tushar Mehta: W.r.t. petitions filed by Vineet Narain & Common Cause, I have no serious objection. But, those filed by political party members whose leaders are under ED investigation, I have serious objection. They have no locus.

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SG Tushar Mehta: Their leaders are facing serious investigations...In one of the cases, we had to bring a cash counting machine because there was so much cash recovered from them...Will this court entertain petitions such as these...trying to pressure ED

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Gavai J: Can political party leaders not file petitions then?

SG Tushar Mehta: Reason I raise this objection is that PILs must be raised in public interest. Not private interest.

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SG Tushar Mehta: In Kaun Banega Crorepati, there was a feature - 'fastest fingers first'...here, it is about who files PILs first, so that judgement has their name...ML Sharma.

Gavai J: Thankfully, ML Sharma was not the first in demonetisation case.

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Gavai J: Thankfully, ML Sharma was not the first in demonetisation case. Another Sharma though, Vivek Narayan Sharma.

Sankaranarayanan: Might start using cause title 'In Re'...

SG: Filing PILs for cheap publicity must be curbed.

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SG talks about present PILs by political party members being privately motivated.

SG, in jest: Presence of Dr Abhishek Manu Singhvi in a PIL is an indicator of this.

Singhvi: I will send you a list of PILs in which I appear.

SG: On the lighter side.

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SG discusses CVC Act.

"Central Vigilance Commission among the most independent bodies, next to constitutional functionaries. Not removable by govt, only by this court. Have impeccable independence."

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SG: CVC, as we know it today, not because of the legislature, but because of the Vineet Narain judgement. (Speaks about composition of CVC)

Gavai J: Similar to committee for ECI, apart from home minister.

SG: Yes, pursuant to this court's judgement.

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Gavai J: Carrot-and-stick policy is what they have argued.

SG: Double-edged sword. The one-year-at-a-time policy is to ensure that director does not become law unto himself. Selection again done on basis of recommendation by committee headed by CVC.

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SG: ED office is a sui generis office. Two reasons for incremental increase in tenure, so that they do not become law unto themselves, and so that they don't become non-performers...just enjoying benefits of their office for their tenure.

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SG: This is not a stand-alone position, like any other govt position. We are part of a global architecture to combat money laundering. If we slide in terms of lessening rigour, we will lose our grading & subsequent benefits...funds from World Bank etc.

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SG: Committee that recommends directors...Composition given by this court. Your Lordships felt that it would insulate the post from influence of government. We have in fact said, not just Central Vigilance Commissioner, but all vigilance commissioners.

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SG: Minimum of two years prescribed, no outer limit, during first appointment of ED director. So this could have been for 5 yrs or 8 yrs. So long as it was more than 2 yrs.

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SG: What was the statutory position existing then? (Reads from submission, outlines rules on retirement)

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SG: There is a proviso in Fundamental Rule 56 owing to which extension in service may be given in public interest to a no. of officers under the rules. This court in Common Cause judgement recognised that ED director does not fall within that exception.

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SG takes court through 2021 Common Cause decision, in which #SupremeCourt held extensions could only be granted in ‘rare and exceptional cases’ for a short period of time and affirmed the first extension to Mishra’s tenure (but no further extension).

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SG: Common Cause judgement based on S 25 (d) of CVC Act & Fundamental Rule 56.

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SG: When law is amended, it is amended with a look towards the future.

Gavai J: And also to overcome the 2021 Common Cause judgement...

SG: This is not a mala fide exercise.

Gavai J: Not going into the question.

SG: Let me explain.

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SG: This is an act unlike any civil or criminal act, because money laundering has profound trans-border implications. The reason why this flexibility is needed is because it is a global fight. (Talks about UN Convention & Financial Action Task Force).

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SG: Some 40 principles...act came into existence on FATF recommendations. Global compliance is required. How do they decide whether countries have complied? (Explains system of periodical, peer-reviewed mutual evaluation of FATF)

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Gavai J: Was this 2021 amendment passed after a peer-review?

SG: Not, but, the peer-review supposed to happen in 2019-20, but because of COVID-19, it got delayed. Now it will be held in 2023. Person familiar with ED best suited to participate & answer.

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SG: Skills only acquired after working in that position for several years.

Gavai J: According to you, there is no one else in ED who is competent? What will happen post to the agency post-2023, when he does retire?

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SG: Only saying that continuity is required when global bodies are concerned.

Gavai J: What would you have done if he was set to retire in 2023? Instead of five years in the amendment, you would have put six years?

SG: No, My Lord.

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SG: At the cost of repetition, it's not that SK Misra was the only person competent. The world never stops, it always goes on.

Gavai J: One person cannot be so indispensable...

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SG: No one is that indispensable, but the point is, in these cases, continuity is required. We are not dealing with individuals, but with the performance of an entire country.

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SG: FATF review to be held after a decade in 2023. (Speaks about FATF requirement for agency head)

Gavai J: Where does it say that director must stay on for any number of years?

SG: No, it doesn't. But, continuum at a stage of country's history imp.

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SG: No one is indispensable...For instance, this problem, when the next peer-review is held, this director cannot stay on.

Gavai J, laughing: Unless you amend the act again.

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SG: At this juncture, country needed continuity. No one is indispensable.

Gavai J: Assassinations of two prime ministers - one former, and one sitting.

SG: It was said that 'India is Indira'. But after her assassination, country went on.

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SG: S 25, unamended, would have allowed govt to appoint someone for 7 yrs. For first time, outer limit or prohibition of 5 yrs has been introduced by amendment.

Gavai J: You could have appointed [Misra] for 7 yrs.

SG: Academically, yes.

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SG: Free play in the joints required in the interest of continuity. Must be noted that appointment not by govt, but by CVC, which has unimpeccable independence. Not even govt can remove them.

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SG: Same amendment done for CBI.

Gavai J: Along same line.

SG: Yes, but they (petitioners) have no issue with the CBI amendment.

Gavai J: Maybe that is yet to come.

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SG: Reason why incremental policy is so that director cannot become non-performers.

Gavai J: Also becomes a performer according to [govt].

SG: No. Govt cannot do anything. Tenure depends on CVC which enjoys a great level of confidence & independence.

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SG: CVC enjoys confidence no other constitutional functionary does perhaps.

Gavai J: Apart from #SupremeCourt and high court judges.

SG: Even prime minister can be removed by a one-line motion.

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Sr Adv Gopal Sankaranarayanan interjects, saying, "Want to make it clear that in my petition, a challenge has been mounted against amendment to DSPE act (dealing with CBI director's tenure). Wanted to clarify because an impression was given."

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To Sr Adv Gopal Sankaranarayanan's interjection, Gavai J says, "Mr Sankaranarayan, we will not write our judgement without reading the pleadings."

Sankaranarayanan: Just wanted to clarify since such an impression was given [by SG].

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Gavai J: So provisions relating to tenure of ED & CBI have been amended, but defence secretary, home secretary, director of RAW, director of Intelligence Bureau cannot be there for more than 2 yrs.

SG: I am not aware, will have to check specific rules.

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Gavai J: All these appointments would be governed by the concerned Fundamental Rule.

SG: Subject to that correction, Your Lordships are right.

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SG: Idea is, investigating agencies dealing on an international level...will require free play in the joints.

Gavai J: Director of Intelligence Bureau also plays important role. But he can continue for 2 yrs.

SG: I am not aware, will have to check.

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Gavai J: If there is any such rule, point it out to us.

SG: We will. Govt will require free play in the joints. We are unnecessarily bothered by argument that any discretion in administration leads to...

Gavai J: We are not bothered about that.

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Gavai J: ...Only bothered about one line - specific direction issued by this court. ('We make it clear that no further extension shall be granted to [SK Misra]' in Common Cause judgement)

SG: Direction issues w.r.t. statutory regime available then.

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Gavai J: ...So specific direction, issued to a specific individual...

SG: There are judicial pronouncements on the point. That it may appear to be an individual mandamus, but it is not. We will be able to satisfy Your Lordships on this point.

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SG: ...I will have to come on the law, only 7 mins left.

Gavai J: 12 mins as per our watch.

SG: Your Lordships' watch prevails. But I would like to resume on the next day.

Bench adjourns to Monday at 12 noon.

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