Supreme court takes bite on petitiions filed in court regarding third extension of Enforcement directorate chief Sanjay kumar Mishra.
“Is there no other person in the organisation who can do his job? Can one person be so indispensable?” a bench led by justice BR Gavai asked solicitor general (SG) Tushar Mehta who represented the Centre.
“According to you, there is no one else in ED who is competent? What will happen to the agency post 2023, when he does retire?” the bench, also comprising justices Vikram Nath and Sanjay Karol, said.
By an order on November 19, 2018, Mishra was first appointed the ED director for a period of two years. His term would expire in November 2020. In May that year, he reached the retirement age of 60.
Through an office order on November 13, 2020, his appointment letter was modified retrospectively by the Union government and Mishra’s term of two years was altered to ‘three years.’
In September 2022, the Supreme Court bench of Justice L. Nageswara Rao upheld the extension, saying that such retroactive revisions are only allowed in the “rarest of rare cases” but that no further extension can be given to Mishra.
Several petitioners challenged this 2020 order, among with two 2021 ordinances promulgated three days before Mishra’s retirement date, amending the Delhi Special Police Establishment Act, 1946, and the Central Vigilance Commission Act, 2003. Bills from these ordinances led to the legalisation of the extension of tenures of the CBI and ED chiefs for a year at a time till five years.
The top court is currently hearing a batch of petitions challenging the extensions granted to Mishra, despite a 2021 order that the Indian Revenue Service officer of 1984 batch should not get further extension beyond November 2021.
The bench’s barrage of questions on the matter came as SG Mehta said that the extension was necessitated to ensure continuity in leadership ahead of India’s peer review by global terror financing watchdog, the Financial Action Task Force, expected to be held this year.
What is Enforcement directorate?
The Directorate of Enforcement or the ED is a multi-disciplinary organization mandated with investigation of economic crimes and violations of foreign exchange laws. The origin of this Directorate goes back to 1st May, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs for handling Exchange Control Laws violations under Foreign Exchange Regulation Act, 1947 (FERA ’47). This Unit with Delhi as Headquarters was headed by a Legal Service Officer, as Director of Enforcement, assisted by an Officer drawn on deputation from Reserve Bank of India (RBI) and 03 Inspectors of Special Police Establishment. There were 02 branches – at Bombay and Calcutta.
In the year 1957, this Unit was renamed as ‘Enforcement Directorate’, and another branch was opened at Madras. In 1960, the administrative control of the Directorate was transferred from the Department of Economic Affairs to the Department of Revenue. With the passage of time, FERA’ 47 was repealed and replaced by FERA, 1973. For a short period of 04 years (1973 – 1977), the Directorate remained under the administrative jurisdiction of the Department of Personnel & Administrative Reforms. Presently, the Directorate is under the administrative control of Department of Revenue, Ministry of Finance, Government of India.
3. With the onset of the process of economic liberalization, FERA, 1973, which was a regulatory law, was repealed and in its place, a new law viz. the Foreign Exchange Management Act, 1999 (FEMA) came into operation w.e.f. 1st June 2000. Further, in tune with the International Anti Money Laundering regime, the Prevention of Money Laundering Act, 2002 (PMLA) was enacted and ED was entrusted with its enforcement w.e.f. 1st July 2005. Recently, with the increase in number of cases relating to economic offenders taking shelter in foreign countries, the Government has passed the
ugitive Economic Offenders Act, 2018 (FEOA) and ED is entrusted with its enforcement with effect from 21st April, 2018.
Structure of ED?
Hierarchy: The Directorate of Enforcement, with its headquarters at New Delhi, is headed by the Director of Enforcement.
There are five regional offices at Mumbai, Chennai, Chandigarh, Kolkata and Delhi headed by Special Directors of Enforcement.
The Directorate has 10 Zonal offices each of which is headed by a Deputy Director
and 11 sub Zonal Offices each of which is headed by an Assistant Director.
Recruitment: Recruitment of the officers is done directly and by drawing officers from other investigation agencies.
It comprises officers of IRS (Indian Revenue Services), IPS (Indian Police Services) and IAS (Indian Administrative Services) such as Income Tax officer, Excise officer, Customs officer, and police.
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