By allowing ED chief’s continuance, Supreme Court has undermined its own authority

It comes no more as a shock or surprise if the Supreme Court is seen as deferring excessively to the government’s wishes. The order allowing Sanjay Kumar Mishra, head of the Enforcement Directorate (ED), to continue till September 15 at the Centre’s request is needlessly accommodative. It was only on July 11 that the Court declared illegal the extensions given to Mr. Mishra in 2021 and 2022. At the same time, he was permitted to continue till July 31 to ensure a smooth transition. Yet, without any submission that the process to select his successor has been set in motion, the Court has invoked an undefined “larger national interest” to allow him to go on up to September 15. It was a self-serving application in the first place. The ostensible reason that the government finds his services indispensable is that he is helming the country’s efforts to demonstrate its framework to counter money laundering and the financing of terrorism during a country review before the Financial Action Task Force (FATF). The multi-lateral body adopts a mutual evaluation system and India’s ongoing review will go on until June 2024, when the final evaluation report may be considered at a likely plenary discussion on its compliance status. The government sought an extension of his services until October 15, presumably because the country’s agencies and institutions may be ready by then for an on-site visit by an FATF delegation.

As the agency that administers the law against money laundering, the ED may have a key role in preparing the country’s presentation, but it is difficult to believe that the process depends on one individual. Even if it were so, nothing prevented the government from utilizing Mr. Mishra’s services for FATF purposes alone, while leaving the directorate’s routine activities under his successor. In any case, various agencies and authorities are involved in framing the country’s policies on money laundering and terrorism financing. It is unfortunate that the Court did not countenance arguments that highlighted these points. It did raise questions as to how one person could be indispensable, but ultimately chose to allow him to continue for some more time. One can understand the argument that the country’s image depends on a positive FATF evaluation, but the claim that not giving Mr. Mishra an extension might result in a “negative image” is quite incomprehensible. India’s credentials will be evaluated on its laws, systems and compliance with global standards and not on who prepared the report. The Court’s permissiveness detracts from its resolve to hold the government to account for actions that it had itself declared illegal.

(The Hindu)