Third extension of ED Chief's tenure: Legislative change no ground to recall old order

The Supreme Court Monday observed that subsequent legislative change cannot be a ground for recalling or modifying an earlier judgment or order of the court.

This verbal observation was made by a bench of justices B R Gavai and Vikram Nath during the hearing of a bunch of pleas challenging the third extension of tenure given to Enforcement Directorate chief S K Mishra.

The observation was made by the bench calling into question the central government's application to recall the direction passed in September 2021, which prevented the tenure extension of Mishra beyond November 16, 2021.


The Centre is relying on the subsequent amendments made to the Central Vigilance Commission Act, which allows for the extension of ED director's term up to five years.

Appearing for the Centre, solicitor general Tushar Mehta told the bench that he is not contending on merits but is only submitting that "so far as the reliance placed by the petitioner on this court's order, we have already moved an application for appropriate modifications in the said order".

He requested the bench to tag Centre's application along with the batch of petitions (challenging third extension given to the ED director).

"We have already indicated that we would not entertain such an application since it is almost in the nature of a review," Justice Gavai verbally remarked. Mehta, however, urged the bench to hear the application.

AMENDMENTS TO CVC ACT
Centre relying on amendments made to CVC Act, which allows for the extension of ED director’s term up to 5 yrs

"I believe I would be able to persuade your lordships. There have been subsequent legislative changes," Mehta urged. To this, Justice Gavai countered, "Subsequent legislative change(s) cannot be a ground for recalling or modifying an earlier judgement or order of this court".

The Centre also sought more time to file a response to the petitions. However, counsel for the petitioners demanded expeditious disposal of the case, arguing that the order of the top court is "being flouted completely". The court ordered the listing of the petitions after three weeks.

A clutch of petitions challenging previous extensions to Mishra and two ordinances promulgated in November last year, increasing the tenures of the directors of CBI and ED to five years from two, are pending in the court. The subsequent Parliament session in December 2021 had passed the bills to replace the ordinances.

The court had in September last year appointed senior advocate KV Viswanathan as the amicus curiae to assist it in dealing with the pleas.