A key development in the petitions opposing the third extension granted to ED Director SK Mishra is that Senior Advocate KV Viswanathan, who is serving as an amicus curiae in the case, informed the Supreme Court that the extensions are unlawful.

The amicus argued that not only the extensions but also the 2021 amendment to the Central Vigilance Commission Act 2003, which allows the Center to prolong the Director of the Enforcement Directorate's term for up to 5 years, are invalid.

"The extension order and the statutory amendments, keeping in mind the long line of judgments from Vineet Narain, Prakash Singh 1 and Prakash Singh II, Common Cause I and Common Cause 2, are illegal. Not only the extension but also the amendments", Viswanathan argued before Justices BR Gavai and Aravind Kumar.

The senior counsel went on to say that the extension is unlawful not only because the Common Cause judgement directed that Mishra should not be granted any further extensions past November 2021, but also because the judgement specifically stated that extensions should only be granted in exceptional circumstances. 

The senior advocate continued:

“Your Lordships will have to take a view on this on the broader principle of insulating from the influence of the executive. Madras High Court has also gone into an important aspect of how 'public interest' is vague in terms of extension. It is not about the incumbent at all but about the principle"

A number of petitions opposing the CVC Amendment Act and the extension of the ED Director's tenure were being heard by the bench. Viswanathan was selected as an amicus in the case by a panel chaired by the then Chief Justice of India, UU Lalit, in September 2022.

Gopal Sankaranarayanan, a senior advocate, advised that the amicus curiae open the comments on the day the case is scheduled for an extended hearing. Tushar Mehta, the Solicitor General for India, however, stated that the amicus cannot begin remarks until the preliminary ED challenge to the petitioners' locus standi has been resolved. In its counter-affidavit, the ED said that the petitions were submitted by Trinamool Congress and members of Congress in order to defend their senior officials who are being investigated for money laundering. 

Top law enforcement official, “They are now saying, let the amicus argue first. They want the amicus to argue for them. Let the petitioners argue first. I will challenge their locus as well.”

The case is set for listing at 2:00 PM on Tuesday, March 21.

Case Title: Jaya Thakur v. Union of India & Ors. 
Citation: Writ Petition (Civil) No. 1106 of 2022