Supreme Court of India
DR. JAYA THAKURversusUNION OF INDIA & ORS
- Citation
- 2023 INSC 616
- Decided
- 11 July 2023
- Disposal
- Disposed off
Holding
The amendments are constitutionally valid, but the two extensions of the Director of Enforcement’s tenure are illegal as they breach the mandamus, though the Director may remain in office until 31 July 2023 for public‑interest reasons.
Summary
The petitioners challenged the Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021 and the Fundamental (Amendment) Rules, 2021 on the ground that they allowed arbitrary extensions of the tenure of the Director of Enforcement and the Director of CBI, thereby eroding the insulation of these offices. They also contested two orders dated 17 November 2021 and 17 November 2022 that extended the tenure of Director Sanjay Kumar Mishra in violation of a mandamus issued in Common Cause (2021) which barred any further extension. The Court examined whether the amendments were ultra‑vires, whether a legislature could nullify a mandamus, and whether the extensions breached Article 14 and the principle of insulation. It held that the amendments were within Parliament’s competence and did not violate fundamental rights, but the two extension orders were illegal because they contravened the binding mandamus. In the larger public interest, the Court permitted the Director to remain in office only until 31 July 2023 to ensure a smooth transition. The writ petitions challenging the amendments were dismissed, while the petitions seeking to set aside the extensions were partly allowed.
Issues considered
- The constitutional validity of the Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021 and the Fundamental (Amendment) Rules, 2021.
- Whether the legislature can retrospectively amend statutes to nullify a specific mandamus issued by the Supreme Court.
- Whether the extensions of tenure granted to the Director of Enforcement on 17 Nov 2021 and 17 Nov 2022 violate the mandamus in Common Cause (2021) and Article 14.
- Whether the extensions undermine the statutory insulation of the offices of the Director of CBI and Director of Enforcement.
Legislation cited
- Central Vigilance Commission Act, 2003s. 25(d)
- Central Vigilance Commission (Amendment) Act, 2021s. 25(d) – new provisos
- Delhi Special Police Establishment Act, 1946s. 4B(1)
- Delhi Special Police Establishment (Amendment) Act, 2021s. 4B(1) – new provisos
- Fundamental (Amendment) Rules, 2021s. Rule 56(d) – new fifth proviso
- Fundamental Rules, 1922s. Rule 56(d)
Subjects
Service LawTenure ExtensionJudicial ReviewMandamusSeparation of PowersArticle 14Public InterestFATF ReviewLegislative Override
Judgment
[2023] 10 S.C.R. 533 : 2023 INSC 616 533
DR. JAYA THAKUR A
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 456 of 2022)
JULY 11, 2023 B
[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
Service Law – Central Vigilance Commission Act, 2003 –
s.25(d) – Delhi Special Police Establishment Act, 1946 – s.4B(1) –
Fundamental Rules, 1922 – Incumbents in the office of the Director
C
of CBI /Director of Enforcement – Extension of tenure – Validity of
Central Vigilance Commission (Amendment) Act, 2021 (whereby two
new provisos were inserted to s.25(d) of the Central Vigilance
Commission Act), the Delhi Special Police Establishment
(Amendment) Act, 2021 (whereby two new provisos were inserted to
s.4B(1) of the Delhi Special Police Establishment Act, 1946) and D
the Fundamental (Amendment) Rules, 2021 (whereby the fifth proviso
to F.R. 56(d) was substituted by a new proviso) – Challenge to –
Held: The argument that the impugned Amendments grant arbitrary
power to the Government to extend the tenure of the Director of
ED/CBI and has the effect of wiping out the insulation of these
E
offices from extraneous pressures, is not tenable – It is not at the
sweet-will of the Government that the extensions can be granted to
the incumbents in the office of the Director of CBI /Director of
Enforcement – What has been directed by this Court in the case of
Vineet Narain and in subsequent judgments relied on by the
petitioners is that such Director should have a minimum tenure of F
two years irrespective of their date of superannuation – By the
impugned Amendments, the said period is not tinkered with – What
has been done is only a power is given to extend their period for a
period of one year at a time, subject to a maximum number of three
such extensions – However, this has to be done only when the
G
Committee which is constituted to recommend their appointment finds
it necessary, in public interest, to grant such extension – It is further
required to record the reasons in writing for the said purpose –
When a Committee can be trusted with regard to recommending their
initial appointment, there is no reason as to why such Committees
cannot be trusted to consider as to whether the extension is required H
533
534 SUPREME COURT REPORTS [2023] 10 S.C.R.
A to be given in public interest or not – Challenge to validity of Central
Vigilance Commission (Amendment) Act, 2021, the Delhi Special
Police Establishment (Amendment) Act, 2021, and the Fundamental
(Amendment) Rules, 2021 not tenable.
Mandamus – Nullification of, by enactment – Issue of legislative
B override – Intrusion into judicial power by the legislature –
Incumbents in the office of the Director of CBI /Director of
Enforcement – Extension of tenure – Whether the impugned orders
dated 17th November, 2021 and 17th November 2022, which granted
extensions to the tenure of respondent no.2-Director of Enforcement
for a period of one year each, were not valid in light of the specific
C mandamus issued by this Court in the earlier case of Common Cause
(2021) that no further extension shall be granted to respondent no.2
– Held: Effect of the judgments of this court can be nullified by a
legislative act removing the basis of the judgment – Such law can
be retrospective – However, retrospective amendment should be
D reasonable and not arbitrary and must not be violative of the
fundamental rights guaranteed under the Constitution – Defect
pointed out should be cured such that the basis of the judgment
pointing out the defect is removed – Nullification of mandamus by
an enactment, however, would be impermissible legislative exercise
– Transgression of constitutional limitations and intrusion into the
E judicial power by the legislature is violative of the principle of
separation of powers, the rule of law and of Art.14 of the Constitution
– In the case of Common Cause (2021), this Court had specifically
issued a mandamus that no further extension shall be granted to
respondent no.2 – The Union of India and respondent No.2 were
F both parties in the proceedings before this Court in Common Cause
(2021) – The mandamus issued to be parties was binding on them –
Therefore, respondent No.1 could not have issued orders dated 17th
November 2021 and 17th November 2022 (granting extensions to
the tenure of respondent No.2 for a period of one year each) in
breach of the mandamus issued by this Court in Common Cause
G (2021) – The impugned orders dated 17th November 2021 and 17th
November 2022 are accordingly illegal – However, on facts, in the
larger public interest, respondent No.2 permitted to continue in office
till 31st July, 2023 – Constitution of India – Art. 14 – Service Law.
Judicial review – Scope of, in examining legislative functions
H of the Legislature – Role of the judiciary – Held: Judicial review is
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 535
a powerful weapon to restrain unconstitutional exercise of power A
by the legislature and executive – The role of the Court is limited to
examine as to whether the Legislature or the Executive has acted
within the powers and functions assigned under the Constitution –
However, while doing so, the Court must remain within its self-
imposed limits.
B
Judicial review – Of Legislative enactment – Scope – Held:
Statute enacted by Parliament or a State Legislature cannot be
declared unconstitutional lightly – Unless there is flagrant violation
of the constitutional provisions, the law made by Parliament or a
State Legislature cannot be declared bad – Legislative enactment
can be struck down only on two grounds – Firstly, that the appropriate C
legislature does not have the competence to make the law; and
secondly, that it takes away or abridges any of the fundamental
rights enumerated in Part III of the Constitution or any other
constitutional provisions – No enactment can be struck down by
just saying that it is arbitrary or unreasonable – Some or the other D
constitutional infirmity has to be found before invalidating an Act –
Parliament and the legislatures, composed as they are of the
representatives of the people, are supposed to know and be aware
of the needs of the people and what is good and bad for them – The
court cannot sit in judgment over their wisdom – Constitution of
India – Part III. E
M/s Kishan Lal Lakhmi Chand and others v. State of
Haryana and others 1993 Supp (4) SCC 461 : [1993]
1 Suppl. SCR 433 – held inapplicable.
Asif Hameed and others v. State of Jammu and Kashmir
and others 1989 Supp (2) SCC 364 : [1989] 3 SCR 19; F
Cauvery Water Disputes Tribunal, Re 1993 Supp (1)
SCC 96 : [1991] 2 Suppl. SCR 497; S.R. Bhagwat and
others v. State of Mysore (1995) 6 SCC 16 : [1995] 3
Suppl. SCR 545; Medical Council of India v. State of
Kerala and Others, (2019) 13 SCC 185; Madras Bar G
Association v. Union of India and another (2022) 12
SCC 455 and Binoy Viswam v. Union of India and others
(2017) 7 SCC 59 : [2017] 7 SCR 1 – relied on.
Common Cause (A Registered Society) v. Union of India
& Ors. 2021 SCC OnLine SC 687; Vineet Narain and H
536 SUPREME COURT REPORTS [2023] 10 S.C.R.
A others v. Union of India and another (1998) 1 SCC
226 : [1997] 6 Suppl. SCR 595; Prakash Singh and
others v. Union of India and others (Prakash Singh-1)
(2006) 8 SCC 1 : [2006] 6 Suppl. SCR 473; Prakash
Singh and others v. Union of India (Prakash Singh-2)
(2019) 4 SCC 14; Prakash Singh and others v. Union
B
of India and others (Prakash Singh-3) (2019) 4 SCC
1; Beghar Foundation through its Secretary and another
v. Justice K.S. Puttaswamy (Retired) and others (2021)
3 SCC 1; Madras Bar Association v. Union of India
and another (2014) 10 SCC 1 : [2014] 10 SCR 1; Rojer
C Mathew v. South Indian Bank Limited represented by
its Chief Manager and others (2020) 6 SCC 1 : [2019]
16 SCR 1; V. Sasitharan & Ors. v. The Government of
Tamil Nadu & Ors. 1995 SCC OnLine Mad 592; Shri
Prithvi Cotton Mills Ltd. and another v. Broach Borough
Municipality and others (1969) 2 SCC 283 : [1970] 1
D
SCR 388; Bhaktawar Trust and others v. M.D. Narayan
and others (2003) 5 SCC 298 : [2003] 1 Suppl. SCR 1;
Indian Aluminium Co. and others v. State of Kerala and
others (1996) 7 SCC 637 : [1996] 2 SCR 23; Goa
Foundation and another v. State of Goa and another
E (2016) 6 SCC 602 : [2016] 1 SCR 1025; K.S.
Puttaswamy (Retired) and another (Aadhar) v. Union
of India and another (2019) 1 SCC 1 : [2018] 8 SCR
1; Welfare Association, A.R.P., Maharashtra and
another v. Ranjit P. Gohil and others (2003) 9 SCC
358 : [2003] 2 SCR 139; Anoop Baranwal v. Union of
F
India 2023 SCC OnLine SC 216 and Madan Mohan
Pathak and another v. Union of India and others (1978)
2 SCC 50 : [1978] 3 SCR 334 – referred to.
Case Law Reference
G (2022) 12 SCC 455 relied on Para 20
[1997] 6 Suppl. SCR 595 referred to Para 21
[2006] 6 Suppl. SCR 473 referred to Para 21
(2019) 4 SCC 14 referred to Para 21
(2019) 4 SCC 1 referred to Para 21
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 537
(2021) 3 SCC 1 referred to Para 24 A
[2014] 10 SCR 1 referred to Para 27
[2019] 16 SCR 1 referred to Para 28
[1970] 1 SCR 388 referred to Para 30
[2003] 1 Suppl. SCR 1 referred to Para 30 B
[1991] 2 Suppl. SCR 497 relied on Para 30
[1996] 2 SCR 23 referred to Para 40
[2016] 1 SCR 1025 referred to Para 40
[2018] 8 SCR 1 referred to Para 40
C
[1993] 1 Suppl. SCR 433 held inapplicable Para 44
[2003] 2 SCR 139 referred to Para 44
[1989] 3 SCR 19 relied on Para 67
[2017] 7 SCR 1 relied on Para 69
D
[1978] 3 SCR 334 referred to Para 104
[1995] 3 Suppl. SCR 545 relied on Para 110
(2019) 13 SCC 185 relied on Para 112
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.456
of 2022. E
(Under Article 32 of The Constitution of India)
With
Writ Petition (Civil) Nos.1271, 1274, 1272, 1307, 1330 of 2021,
14, 274, 786 of 2022, M.a. No.1756 of 2022 In Writ Petition (Civil)
F
No.1374 of 2020 And Writ Petition (Civil) No.1106 of 2022
K.V. Viswanathan, Sr. Adv., (Amicus Curiae), Ravi Raghunath,
Adv.
Tushar Mehta, Solicitor General, Suryaprakash V. Raju, A.S.G.,
Gopal Sankarnarayanan, Dr. Abishek Manu Singhvi, Sr. Advs., Mukesh G
Kumar Maroria, Udai Khanna, Mayank Pandey, Zoheb Hussain, Kanu
Agarwal, Adit Khorana, Aniruddha Bhatt, Arvind Kumar Sharma,
Shrutanjaya Bhardwaj, Ms. Tanya Srivastava, Ms. Nupur Kumar,
Muhammad Ali Khan, Omar Hoda, Abishek Jebaraj, Ms. Eesha Bakshi,
Ms. Aashima Chauhan, Uday Bhatia, Ms. A. Reyna Shruti, Shashank
H
538 SUPREME COURT REPORTS [2023] 10 S.C.R.
A Ratnoo, Varun Thakur, Brajesh Pandey, Varinder Kumar Sharma, Randhir
Kumar Ojha, Prashant Bhushan, Pranav Sachdeva, J S Sinha, Vikas
Malhotra, Braj Kishore Mishra, Abhishek Yadav, Aakarsh Kamra, Ms.
Vanshaja Shukla, Advs. for the appearing parties.
The Judgment of the Court was delivered by
B B. R. GAVAI, J.
1. This batch of writ petitions seeks a writ, order or directions in
the nature of certiorari for quashing of order dated 17th November 2021
passed by the respondent No.1 for further extension of tenure of the
respondent No.2. In Writ Petition (Civil) No.1106 of 2022, a further
C extension granted to respondent No.2 vide order dated 17th November
2022 has also been challenged. All these petitions also challenge the
validity of Central Vigilance Commission (Amendment) Act, 2021, the
Delhi Special Police Establishment (Amendment) Act, 2021 and the
Fundamental (Amendment) Rules, 2021.
D 2. The facts, in brief, giving rise to the present writ petitions are
as under. The reference hereinafter to the parties would be made as
found in the cause-title of Writ Petition (Civil) No.456 of 2022.
3. The respondent No.2-Sanjay Kumar Mishra in Writ Petition
(Civil) No. 456 of 2022, who was working as Principal Special Director
E in the Directorate of Enforcement (“ED” for short) was appointed as
Director of Enforcement for a period of two years from the date of his
assumption of charge of the post or until further orders, whichever was
earlier, vide order dated 19th November 2018.
4. Vide order dated 13th November 2020, the President of India
approved the modification of the order dated 19th November 2018 by
F
amending the period of appointment from two years to three years.
5. Writ Petition (Civil) No. 1374 of 2020 [Common Cause (A
Registered Society) v. Union of India & Ors.1] was filed on 27th
November 2020 by Common Cause (a registered society) before this
Court in public interest under Article 32 of the Constitution of India praying
G for quashing of the order dated 13 th November 2020 and for a
consequential direction to the respondent No.1 to appoint the Director
of Enforcement in accordance with the procedure prescribed under
Section 25 of the Central Vigilance Commission Act, 2003 (hereinafter
referred to as “the CVC Act”).
H 1
2021 SCC OnLine SC 687
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 539
[B. R. GAVAI, J.]
6. This Court though dismissed the said Writ Petition (Civil) No. A
1374 of 2020 [Common Cause (A Registered Society) v. Union of
India & Ors.] vide judgment and order dated 8th September 2021
[hereinafter referred to as “Common Cause (2021)”], yet directed
that no further extension shall be granted to the respondent No.2.
7. On 14th November 2021, since Parliament was not in session, B
the President of India promulgated the Central Vigilance Commission
(Amendment) Ordinance, 2021, thereby inserting two new provisos to
Section 25(d) of the CVC Act. Simultaneously, the President of India
also promulgated the Delhi Special Police Establishment (Amendment)
Ordinance 2021, thereby inserting two new provisos to Section 4B(1) of
the Delhi Special Police Establishment Act, 1946 (hereinafter referred C
to as “the DSPE Act”).
8. On 15th November 2021, the Fundamental Rules, 1922 was
amended by the Fundamental (Amendment) Rules, 2021, whereby the
fifth proviso to F.R. 56(d) was substituted by a new proviso.
D
9. On 15th November 2021 itself, a meeting of the Committee
headed by the Central Vigilance Commissioner was held to consider the
proposal for extension of the tenure of the respondent No.2. The
Committee decided to extend the tenure of the respondent No.2 as
Director of Enforcement for a period of one year i.e. upto 18th November
2022 in public interest. E
10. Vide Office Order No.238 of 2021 dated 17th November 2021,
the tenure of the respondent No.2 was extended for a period of one
year beyond 18th November 2021 i.e. upto 18th November 2022 or until
further orders, whichever was earlier.
11. Challenging the vires of the Amendment Ordinances and/or F
the Fundamental (Amendment) Rules, 2021 and/or the said Office Order
dated 17th November 2021, Writ Petition (Civil) Nos. 1307 of 2021, 1272
of 2021, 1274 of 2021, 1330 of 2021 and 1271 of 2021 came to be filed
before this Court.
12. On 18th December 2021, Parliament enacted the Central G
Vigilance Commission (Amendment) Act, 2021 and the Delhi Special
Police Establishment (Amendment) Act, 2021.
13. Challenging the vires of the Amendment Acts and/or the Office
Order dated 17th November 2021, Writ Petition (Civil) Nos. 14 of 2022,
H
540 SUPREME COURT REPORTS [2023] 10 S.C.R.
A 274 of 2022 and 456 of 2022 came to be filed before this Court. In some
of the petitions, a challenge has also been made to the amendment to the
DSPE Act insofar it provides for extension of the tenure of the Director
of Central Bureau of Investigation (“CBI” for short).
14. That during the pendency of the said writ petitions, vide order
B dated 17th November 2022, passed by the respondent No.1, the term of
the respondent No.2 was further extended for a period of one year i.e.
from 18th November 2022 to 18th November 2023. Being aggrieved
thereby, Writ Petition (Civil) No. 1106 of 2022 has been filed before this
Court.
C 15. We have heard Mr. K.V. Viswanathan, learned Amicus Curiae.
We have also heard Mr. Anoop G. Choudhary, Mr. Gopal
Sankarnarayanan, Dr. Abhishek Manu Singhvi, learned Senior Counsel,
Mr. Prashant Bhushan, Mr. J.S. Sinha, and Mr. Sharangowda, learned
counsel appearing on behalf of the petitioners and Mr. Tushar Mehta,
learned Solicitor General and Mr. S.V. Raju, learned Additional Solicitor
D General, appearing on behalf of the respondent-Union of India, and Ms.
Vanshaja Shukla, learned counsel appearing on behalf of the respondent
No.3 in M.A. No.1756 of 2022.
16. Mr. Anoop G. Choudhary, learned Senior Counsel appearing
on behalf of the petitioner in Writ Petition (Civil) No. 456 of 2022 and
E Writ Petition (Civil) No.1106 of 2022 submits that any action which
nullifies the effect of the order of this Court dated 8th September 2021 is
not permissible in law.
17. Mr. Choudhary further submits that the respondent No.2 was
also a party to the judgment of this Court in the case of Common Cause
F (2021). He submits that, as such, the direction of this Court that no
further extension should be granted to the respondent No.2 is binding on
him as well as the Union of India. Learned counsel submits that the
stand taken by the respondent No.1 that the basis on which the direction
was issued by this Court was that the officer concerned had attained the
age of superannuation and on account of amendment to the Fundamental
G Rules (hereinafter referred to as “FR”), the extension to the term of the
Director of Enforcement is permissible and as such, the basis of the
judgment of this Court in the case of Common Cause (2021) is taken
away by amending the FR, is wholly without substance.
18. Mr. Gopal Sankarnarayanan submits that this Court in
H paragraph 23 of the judgment in the case of Common Cause (2021),
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 541
[B. R. GAVAI, J.]
though has upheld the power of the Union of India to extend the tenure A
of Director of Enforcement beyond the period of two years, it has made
it clear that extension of tenure granted to officers who have attained
the age of superannuation should be done only in rare and exceptional
cases. He submits that this Court has specifically stated that any
extension of tenure granted to persons holding the post of Director of
B
Enforcement after attaining the age of superannuation should be for a
short period. It is submitted that all these directions issued by this Court
have been annulled by the respondent No.1-Union of India. He submits
that though the respondent No.2 was initially appointed for a period of 2
years, by virtue of extensions granted, he will continue for a period of 5
years. C
19. Mr. Sankarnarayanan further submits that the words that have
been used by this Court are, “to facilitate the completion of on-going
investigations” and “in rare and exceptional cases”. However, ignoring
those words, extension is being given to the respondent No.2 on the
ground of a vague concept of “public interest”. D
20. Mr. Sankarnarayanan further submits that in view of the
judgment of this Court in the case of Madras Bar Association v. Union
of India and another2, the effect of the judgments of the Court can be
nullified by a legislative act of removing the basis of the judgment. Such
law can be retrospective. However, retrospective amendment should be E
reasonable and not arbitrary and must not be violative of the fundamental
rights guaranteed under the Constitution. He further submits that
nullification of mandamus by an enactment is also an impermissible
legislative exercise. Since there is a specific mandamus that the
respondent No.2 should not be granted further extension, nullification of
such a mandamus cannot be permitted. F
21. Mr. Sankarnayaranan submits that this Court in the cases of
Vineet Narain and others v. Union of India and another3, Prakash
Singh and others v. Union of India and others (Prakash Singh-1) 4,
Prakash Singh and others v. Union of India(Prakash Singh-2)5and
Prakash Singh and others v. Union of India and others (Prakash G
Singh-3)6 has consistently held that the tenure of the high-ranking officials
2
2021 SCC OnLine SC 463= (2022) 12 SCC 455
3
(1998) 1 SCC 226
4
(2006) 8 SCC 1 (Prakash Singh-1)
5
(2019) 4 SCC 14 (Prakash Singh-2)
6
(2019) 4 SCC 1 [Prakash Singh-3) H
542 SUPREME COURT REPORTS [2023] 10 S.C.R.
A like the Director of Enforcement, the Director of CBI and the Director
General of Police should be for a fixed period of two years in order to
insulate such an officer from extraneous pressures and enable him to
work independently and freely. It is submitted that the very provision
which permits the authority to grant extension is contradictory to the
requirement of insulation. An incumbent if he performs as per the wishes
B
of the authority, he would get an extension. Per contra, if the incumbent
in the office does not perform as per the wishes of the authority, he
would be denied an extension. It is submitted that as such, the very
independence of such an officer would be taken away. It is, therefore,
submitted that the insulation provided to the said offices from extraneous
C pressures is taken away. The learned counsel, therefore, submits that
both the Amendments need to be quashed and set aside. So also, the
extension granted to the respondent No.2 needs to be set aside.
22. Mr. Sharangowda, learned counsel appearing on behalf of the
petitioner in Writ Petition (Civil) no. 274 of 2022 submits that the vigilance
D clearance is also required at the stage of extension. He submits that in
the present case no such vigilance clearance has been done and as
such, the extension granted is not permissible in law.
23. Learned counsel appearing on behalf of the original petitioner
in Writ Petition (Civil) No.1374 of 2020 submits that M.A. No.1756 of
E 2022 filed by the Union of India for modification of the judgment and
order passed by this Court dated 8th September 2021 is not permissible
in law. He submits that by way of present M.A. for modification, the
applicants are, in effect, seeking review of the judgment of this court.
24. Relying on the judgment of the Constitution Bench of this
Court in the case of Beghar Foundation through its Secretary and
F another v. Justice K.S. Puttaswamy (Retired) and others7, he submits
that the Change in Law cannot be a ground for review.
25. Mr. K.V. Viswanathan, learned Amicus, submitted that this
Court in the case of Vineet Narain (supra)has approved the
recommendations of the Independent Review Committee. He submits
G that the said Independent Review Committee was tasked, inter alia, to
examine the structure and working of the CBI and the ED and suggest
the changes needed to ensure against extraneous pressures, arbitrary
withdrawals or transfers of personnel etc. He submits that insofar as
7
(2021) 3 SCC 1
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 543
[B. R. GAVAI, J.]
the ED is concerned, the Director of Enforcement was to be selected A
from a panel of persons who were having a minimum tenure of 2 years.
26. The learned Amicus submits that the amendment to the CVC
Act, the DSPE Act, and the FR are totally contrary to the spirit of the
long line of judgments delivered by this Court. It is submitted that this
Court has held that the tenure of the Director of CBI as well as the B
Director of Enforcement should be a fixed one so that the person holding
such an office can act independently, impartially and without any
extraneous pressures. He submits that the impugned Amendments now
permit for three extensions of one year at a time. It is, therefore, submitted
that the Government can use the ‘carrot and stick’ policy so as to ensure
that the said Directors work according to the wishes of the Government. C
He submits that a Director would always succumb to the pressure of
the Government so as to ensure that he gets further extension as provided
for in the statute by amendment. Learned Amicus, therefore, submits
that these provisions being inconsistent with the spirit of the earlier
judgments of this Court that the post of the Director of Enforcement as D
well as the Director of CBI should be kept insulated stand defeated.
Learned Amicus, therefore, submits that such a provision which permits
piecemeal extension of tenure of one year each subject to a maximum
cumulative tenure of five years undermines the independence and integrity
of the office. Learned Amicus submits that the impugned Amendments
would also result in stagnation and inefficiency of service/administration E
and cause frustration amongst other eligible officers in the cadre.
27. Learned Amicus, relying on the judgment of this Court in the
case of Madras Bar Association v. Union of India and another8
submits that this Court has struck down the provision for re-appointment
of the Chairperson/Members for another term of 5 years by holding that F
such a provision itself has the effect of undermining the independence
of the Chairperson/Members of National Tax Tribunal (NTT). He submits
that this Court has held that every Chairperson/Member appointed to
NTT would be constrained to decide matters in a manner that would
ensure his reappointment in terms of Section 8 of the National Tax G
Tribunals Act, 2005. His decisions may or may not be based on his
independent understanding.
28. Learned Amicus further relying on the judgment of this Court
in the case of Rojer Mathew v. South Indian Bank Limited
8
(2014) 10 SCC 1 H
544 SUPREME COURT REPORTS [2023] 10 S.C.R.
A represented by its Chief Manager and others9 submits that when the
above provision was sought to be introduced by way of Rules, the same
was struck down by this Court as being in disregard of the binding
principles enunciated by this Court and being destructive of judicial
independence.
B 29. Learned Amicus, relying on the judgment of the Madras High
Court in the case of V. Sasitharan & Ors. v. The Government of
Tamil Nadu & Ors.10, submits that the extensions granted to the officers
beyond the date of retirement generate disgruntlement and dis-
appointment amongst the other officers, lower down in the ladder whose
only aspiration in their official career would be to reach to the top most
C post in the administrative set up. Learned Amicus submits that the Madras
High Court has held that if such extensions are granted as a matter of
bounty, then there is every possibility of the officer in service playing to
the tunes of those in power totally acting against public interest.
30. Learned Amicus relying on a series of judgments of this Court
D including the ones in the case of ShriPrithvi Cotton Mills Ltd. and
another v. Broach Borough Municipality and others 11, Bhaktawar
Trust and others v. M.D. Narayan and others12, Cauvery Water
Disputes Tribunal, Re13 and Madras Bar Association v. Union of
India and another 14,submits that though it is permissible for the
E Legislature to change the basis on which a decision is given by the Court
and, thus, change the law in general, which will affect a class of persons
and events at large, it is not permissible to set aside an individual decision
inter partes and affect their rights and liabilities. It is submitted that
insofar as the respondent No.2 is concerned, there is a specific mandamus
issued by this Court that he shall not be granted further extension. Learned
F Amicus submits that the impugned Amendments do not change the basis
on which a decision was given by the Court, but, in effect, nullify the
mandamus and, as such, would not be sustainable.
31. Learned Amicus submits that he is not concerned with what
an individual case is. He submits that he is concerned with the misuse of
G powers by any political party, which may be in power. It is submitted
9
(2020) 6 SCC 1
10
1995 SCC OnLine Mad 592
11
(1969) 2 SCC 283
12
(2003) 5 SCC 298
13
1993 Supp (1) SCC 96
14
H 2021 SCC OnLine SC 463
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 545
[B. R. GAVAI, J.]
that the impugned Amendments, if permitted to remain, would lead to a A
tendency wherein incumbents/officers would succumb to the pressure
of the Government in power and act as per their desire so that they get
further extensions. Learned Amicus, therefore, submits that the impugned
Amendments are liable to be quashed and set aside. It is submitted that,
in any case, the amended provisions are manifestly arbitrary.
B
32. Learned Amicus submits that the argument that the present
incumbent needs to be continued on account of an on-going mutual
evaluation of India by the Financial Action Task Force (FATF) is also
self-contradictory. It is submitted that even after the Amendment, the
respondent No.2 can continue only upto November 2023, whereas the
possible plenary discussions are likely to be held in the month of June C
2024. It is, therefore, submitted that the contention that the continuation
of the present incumbent is necessary so that India represents its case
effectively in FATF review, is also without substance.
33. Shri Tushar Mehta, learned Solicitor General (“SG” for short),
raised a preliminary objection to the maintainability of the present writ D
petitions at the behest of the present petitioners. He submits that most of
the writ petitioners are members of political parties. He submits that
various members of these political parties are under investigation by the
ED. It is, therefore, submitted that the present writ petitions are not
bona fide public interest litigations, but are filed with an oblique motive. E
34. The learned SG submits that the appointment of the Director
of Enforcement in the ED is required to be made by the Central
Government on the recommendation of the Committee consisting of:
(i) The Central Vigilance Commissioner - Chairperson
(ii) Vigilance Commissioners - Members F
(iii) Secretary to the Government of India
in-charge of the Ministry of Home
Affairs in the Central Government - Member
(iv) Secretary to the Government of India G
in-charge of the Ministry of
Personnel in the Central Government- Member
(v) Secretary to the Government of India-
in-charge of the Department of Revenue,
H
546 SUPREME COURT REPORTS [2023] 10 S.C.R.
A Ministry of Finance in the Central
Government - Member
35. Learned SG further submits that the Central Vigilance
Commissioner and the Vigilance Commissioners, prior to being appointed
by the President are required to undergo the process of recommendation
B by a High-Level Committee consisting of:
(a) the Prime Minister - Chairperson
(b) the Minister of Home Affairs - Member
(c) the Leader of the Opposition in
C the House of the People - Member
36. Learned SG further submits that the provision for removal of
Central Vigilance Commissioner and Vigilance Commissioners are very
stringent. It is submitted that they can be removed from the office only
by an order of the President on the ground of proved misbehaviour or
D incapacity or after this Court, on a reference made to it by the President,
has, on inquiry, reported that the Central Vigilance Commissioner or any
Vigilance Commissioner, as the case may be, ought to be removed on
such ground. It is, therefore, submitted that the Central Vigilance
Commissioner and the Vigilance Commissioners constitute a body which
is totally independent, impartial, impeccable and isolated.
E
37. Learned SG submits that, equally, the Director of CBI, prior
to appointment, has to undergo the process of recommendation by the
Committee consisting of:
(a) the Prime Minister - Chairperson
F (b) the Leader of Opposition recognised
as such in the House of the People
or where there is no such Leader of
Opposition, then the Leader of the
single largest Opposition Party in
G
that House. - Member
(c) the Chief Justice of India or
Judge of the Supreme Court
nominated by him - Member
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 547
[B. R. GAVAI, J.]
38. Learned SG further submitted that the extension can be granted A
to the incumbents in both the offices only if the High-Level Committees
(mentioned supra) recommend the same, and that too, in public interest
and for the reasons to be recorded in writing. It is submitted that the
provision of granting extension of one year at a time is made so that the
incumbent functions effectively. Learned SG further submits that the
B
argument that incremental extensions would lead to the incumbents
working under the pressure of the Government is totally untenable. He
submits that the extensions could be granted only in a case when the
Committee, as provided in Section 25 of the CVC Act, recommends
such an extension. He submits that such Committee consists of the Central
Vigilance Commissioner and the Vigilance Commissioners who are totally C
independent, impeccable and impartial persons. Learned SG submits that
if a long-fixed tenure of 5 years is granted at a time, then there is also a
possibility that a person, knowing that he will continue to be in the office
for a period of 5 years, may not discharge his duties effectively.
39. Learned SG submits that insofar as the Director of CBI is D
concerned, equally, the extension can be granted only in an event when
the Committee consisting of (a) the Hon’ble Prime Minister; (b) the
Leader of Opposition; and (c) the Chief Justice of India or his nominee
would recommend such an extension.
40. Learned SG relying on the judgments of this Court in the cases E
of Indian Aluminium Co. and others v. State of Kerala and others15,
Goa Foundation and another v. State of Goa and another16 and K.S.
Puttaswamy (Retired) and another (Aadhar) v. Union of India and
another17submits that the judgment delivered by this Court in the case
of Common Cause (2021) was on the basis of the FR and the provisions
in Section 25(d) of the CVC Act, as it existed then. However, now the F
FR as well as the CVC Act has undergone an amendment. It is, therefore,
submitted that, by an amendment the very basis on which the judgment
was delivered has been taken away. He, therefore, submits that the
Legislature, which is undoubtedly competent to pass a legislation, has
taken away the basis on which the Common Cause (2021) judgment G
was rendered upon.
41. The learned SG submits that, the question that will have to be
considered by this Court is that, as to whether this Court would have
15
(1996) 7 SCC 637
16
(2016) 6 SCC 602
17
(2019) 1 SCC 1 H
548 SUPREME COURT REPORTS [2023] 10 S.C.R.
A rendered the same judgment which was delivered by it in Common Cause
(2021), had it considered the law which has undergone change. Learned
SG submits that whenthe Common Cause (2021) judgmentwas
delivered, the FR did not include the post of Director of Enforcement.
Now, the same has been included by way of an amendment and also a
provision has been made that an extension could be granted upto a period
B as provided in the relevant Act. He submits that, since the amended
Section 25 of the CVC Act now permits an extension at a time for one
year could be granted with a rider that the cumulative period should not
be more than 5 years, the arguments advanced by the petitioners are
liable to be rejected. The learned SG further submits that the scope of
C interference by this Court while exercising power of judicial review of
the legislative action of the State is very limited. He submits that unless
the Court finds that the legislation is not within the competence of the
legislature that has enacted the law or it has violated the fundamental
rights or any of the provisions of the Constitution, it will not be permissible
for this Court to interfere with the same. He relied on various judgments
D of this Court in support of this proposition.
42. Learned SG submits that the contention that by the impugned
Amendment to the CVC Act and the DSPE Act, the mandamus issued
by this Court has been annulled is without substance. It is submitted that
the mandamus issued by this Court was contextual on the basis of the
E statutory provision existing then. Since the statutory provision has
undergone a complete change taking away the foundation on the basis
of which the mandamus is issued, the contention in that regard deserves
to be rejected.
43. Learned SG further submitted that India is undergoing FATF
review. FATF review plays an important role. It is submitted that the
F said evaluation is done by a team including members from different
countries across the world. A mutual evaluation report provides an in-
depth description and analysis of a country’s system for preventing
criminal abuse of the financial system as well as focused
recommendations to the country to further strengthen its system. It is
G submitted that the main component of the evaluation is its effectiveness.
It is submitted that the said evaluation involves various components/
stages. The evaluation had to be done in the year 2019. However, it
could not be done on account of the COVID-19 pandemic. It is submitted
that the evaluation has already begun and is likely to end in June 2024. It
is submitted that since the present incumbent is at the helm of affairs for
H the last so many years, it was found necessary that for effective
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 549
[B. R. GAVAI, J.]
presentation of the efforts made by the country, he should be continued A
till the process of evaluation is complete. Learned SG submits that though
nobody is indispensable, however, leadership makes a lot of difference.
Therefore, it was found that the present assessment should be done
under the leadership of the present incumbent.
44. Shri S.V. Raju, learned ASG supplemented the arguments
B
advanced by the learned SG. He submits that in view of the judgment of
this Court in the case of M/s Kishan Lal Lakhmi Chand and others v.
State of Haryana and others18, the Legislature has power even to
annul the mandamus issued by the Court. Relying on the judgment of
this Court in the case of Welfare Association, A.R.P., Maharashtra
and another v. Ranjit P. Gohil and others19, he submits that the words C
“rare” and “exceptional” as found in the case of Common cause (2021)
have now been taken away by an Amendment and, as such, no
interference would be warranted either with the Amendments to the
enactments or to the extensions so granted.
45. Mr. Gopal Sankarnarayanan, in rejoinder, submits that insofar
D
as the Director of Enforcement is concerned, he is under the direct
control of the Ministry of Finance and the incremental extension would
lead to a situation where the incumbent would act as per the desires of
the Government. The learned Senior Counsel also relying on the recent
judgment of the Constitution Bench of this Court in the case of Anoop
Baranwal v. Union of India20 submits that the institutions like the ED E
and the CBI need to be kept insulated to protect the democracy. He,
therefore, reiterates that the impugned Amendments so also the extensions
granted to the respondent No.2 be set aside.
46. After hearing the learned counsel for the parties, we find that,
following two questions arise for consideration:
F
(i) As to whether the amendment to Section 25 of the CVC
Act by the Central Vigilance Commission (Amendment)
Act, 2021 and to sub-section (1) of Section 4B of the DSPE
Act by the Delhi Special Police Establishment (Amendment)
Act, 2021 and the amendment in clause (d) of Rule 56 of
the Fundamental Rules, 1922 by the Fundamental G
(Amendment) Rules, 2021 are liable to be held ultra vires
and set aside?
18
1993 Supp (4) SCC 461
19
(2003) 9 SCC 358
20
2023 SCC OnLine SC 216 H
550 SUPREME COURT REPORTS [2023] 10 S.C.R.
A (ii) As to whether the extensions granted to the tenure of the
respondent No.2 as Director of Enforcement for a period
of one year each vide orders dated 17th November 2021
and 17th November 2022 are legal and valid, and if not,
whether liable to be set aside?
B 47. For answering the said questions, we will have to consider the
legal history which gave rise to the provisions for appointment of the
Central Vigilance Commissioner and the Director of CBI as well as the
Director of Enforcement.
48. The case of Vineet Narain (supra) arose out of a complaint
C of inertia by the CBI in matters where the accusation made was against
high dignitaries. However, as the case progressed, the Court posed a
question to itself, as to whether it was within the domain of judicial review
and whether the Court could provide for an effective instrument for
activating the investigative process which was under the control of the
executive? This Court attempted to innovate the procedure within the
D constitutional scheme of judicial review to permit intervention by the
Court to find a solution to the problem.
49. This Court in the case of Vineet Narain (supra) found the
necessity for the insulation of the investigating agencies like the CBI
and the Revenue Department from any extraneous influence to enable
E them to discharge their duties in the manner required for proper
implementation of the rule of law. This Court observed thus:
“48. In view of the common perception shared by everyone
including the Government of India and the Independent Review
Committee (IRC) of the need for insulation of the CBI from
F extraneous influence of any kind, it is imperative that some action
is urgently taken to prevent the continuance of this situation with
a view to ensure proper implementation of the rule of law. This is
the need of equality guaranteed in the Constitution. The right to
equality in a situation like this is that of the Indian polity and not
merely of a few individuals. The powers conferred on this Court
G by the Constitution are ample to remedy this defect and to ensure
enforcement of the concept of equality.”
50. This Court, therefore, issued following directions:
“58. As a result of the aforesaid discussion, we hereby direct
as under:
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 551
[B. R. GAVAI, J.]
I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL A
VIGILANCE COMMISSION (CVC)
1. The Central Vigilance Commission (CVC) shall be given
statutory status.
2. Selection for the post of Central Vigilance Commissioner
shall be made by a Committee comprising the Prime Minister, B
Home Minister and the Leader of the Opposition from a panel of
outstanding civil servants and others with impeccable integrity, to
be furnished by the Cabinet Secretary. The appointment shall be
made by the President on the basis of the recommendations made
by the Committee. This shall be done immediately. C
3. The CVC shall be responsible for the efficient functioning
of the CBI. While Government shall remain answerable for the
CBI’s functioning, to introduce visible objectivity in the mechanism
to be established for overviewing the CBI’s working, the CVC
shall be entrusted with the responsibility of superintendence over
D
the CBI’s functioning. The CBI shall report to the CVC about
cases taken up by it for investigation; progress of investigations;
cases in which charge-sheets are filed and their progress. The
CVC shall review the progress of all cases moved by the CBI for
sanction of prosecution of public servants which are pending with
the competent authorities, specially those in which sanction has E
been delayed or refused.
4. The Central Government shall take all measures
necessary to ensure that the CBI functions effectively and
efficiently and is viewed as a non-partisan agency.
5. The CVC shall have a separate section in its Annual F
Report on the CBI’s functioning after the supervisory function is
transferred to it.
6. Recommendations for appointment of the Director, CBI
shall be made by a Committee headed by the Central Vigilance
Commissioner with the Home Secretary and Secretary G
(Personnel) as members. The views of the incumbent Director
shall be considered by the Committee for making the best choice.
The Committee shall draw up a panel of IPS officers on the basis
of their seniority, integrity, experience in investigation and anti-
corruption work. The final selection shall be made by the
H
552 SUPREME COURT REPORTS [2023] 10 S.C.R.
A Appointments Committee of the Cabinet (ACC) from the panel
recommended by the Selection Committee. If none among the
panel is found suitable, the reasons thereof shall be recorded and
the Committee asked to draw up a fresh panel.
7. The Director, CBI shall have a minimum tenure of two
B years, regardless of the date of his superannuation. This would
ensure that an officer suitable in all respects is not ignored merely
because he has less than two years to superannuate from the
date of his appointment.
8. The transfer of an incumbent Director, CBI in an
C extraordinary situation, including the need for him to take up a
more important assignment, should have the approval of the
Selection Committee.
9. The Director, CBI shall have full freedom for allocation
of work within the agency as also for constituting teams for
investigations. Any change made by the Director, CBI in the Head
D
of an investigative team should be for cogent reasons and for
improvement in investigation, the reasons being recorded.
10. Selection/extension of tenure of officers up to the level
of Joint Director (JD) shall be decided by a Board comprising the
Central Vigilance Commissioner, Home Secretary and Secretary
E (Personnel) with the Director, CBI providing the necessary inputs.
The extension of tenure or premature repatriation of officers up
to the level of Joint Director shall be with final approval of this
Board. Only cases pertaining to the appointment or extension of
tenure of officers of the rank of Joint Director or above shall be
F referred to the Appointments Committee of the Cabinet (ACC)
for decision.
11. Proposals for improvement of infrastructure, methods
of investigation, etc. should be decided urgently. In order to
strengthen CBI’s in-house expertise, professionals from the
Revenue, Banking and Security sectors should be inducted into
G
the CBI.
12. The CBI Manual based on statutory provisions of the
CrPC provides essential guidelines for the CBI’s functioning. It is
imperative that the CBI adheres scrupulously to the provisions in
the Manual in relation to its investigative functions, like raids, seizure
H and arrests. Any deviation from the established procedure should
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 553
[B. R. GAVAI, J.]
be viewed seriously and severe disciplinary action taken against A
the officials concerned.
13. The Director, CBI shall be responsible for ensuring the
filing of charge-sheets in courts within the stipulated time-limits,
and the matter should be kept under constant review by the
Director, CBI. B
14. A document on CBI’s functioning should be published
within three months to provide the general public with a feedback
on investigations and information for redress of genuine grievances
in a manner which does not compromise with the operational
requirements of the CBI. C
15. Time-limit of three months for grant of sanction for
prosecution must be strictly adhered to. However, additional time
of one month may be allowed where consultation is required with
the Attorney General (AG) or any other law officer in the AG’s
office.
D
16. The Director, CBI should conduct regular appraisal of
personnel to prevent corruption and/or inefficiency in the agency.
II. ENFORCEMENT DIRECTORATE
1. A Selection Committee headed by the Central Vigilance
Commissioner and including the Home Secretary, Secretary E
(Personnel) and Revenue Secretary, shall prepare a panel for
appointment of the Director, Enforcement Directorate. The
appointment to the post of Director shall be made by the
Appointments Committee of the Cabinet (ACC) from the panel
recommended by the Selection Committee.
F
2. The Director, Enforcement Directorate like the Director,
CBI shall have a minimum tenure of two years. In his case also,
premature transfer for any extraordinary reason should be
approved by the aforesaid Selection Committee headed by the
Central Vigilance Commissioner.
G
3. In view of the importance of the post of Director,
Enforcement Directorate, it shall be upgraded to that of an
Additional Secretary/Special Secretary to the Government.
4. Officers of the Enforcement Directorate handling
sensitive assignments shall be provided adequate security to enable
them to discharge their functions fearlessly. H
554 SUPREME COURT REPORTS [2023] 10 S.C.R.
A 5. Extensions of tenure up to the level of Joint Director in
the Enforcement Directorate should be decided by the said
Committee headed by the Central Vigilance Commissioner.
6. There shall be no premature media publicity by the CBI/
Enforcement Directorate.
B 7. Adjudication/commencement of prosecution shall be
made by the Enforcement Directorate within a period of one year.
8. The Director, Enforcement Directorate shall monitor and
ensure speedy completion of investigations/adjudications and
launching of prosecutions. Revenue Secretary must review their
C progress regularly.
9. For speedy conduct of investigations abroad, the
procedure to approve filing of applications for Letters Rogatory
shall be streamlined and, if necessary, Revenue Secretary
authorised to grant the approval.
D 10. A comprehensive circular shall be published by the
Directorate to inform the public about the procedures/systems of
its functioning for the sake of transparency.
11. In-house legal advice mechanism shall be strengthened
by appointment of competent legal advisers in the CBI/Directorate
E of Enforcement.
12. The Annual Report of the Department of Revenue shall
contain a detailed account on the working of the Enforcement
Directorate.
III. NODAL AGENCY
F 1. A Nodal Agency headed by the Home Secretary with
Member (Investigation), Central Board of Direct Taxes, Director
General, Revenue Intelligence, Director, Enforcement and
Director, CBI as members, shall be constituted for coordinated
action in cases having politico-bureaucrat-criminal nexus.
G 2. The Nodal Agency shall meet at least once every month.
3. Working and efficacy of the Nodal Agency should be
watched for about one year so as to improve it upon the basis of
the experience gained within this period….”
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 555
[B. R. GAVAI, J.]
51. In pursuance to the aforesaid directions issued by this Court, A
the Government initially issued ordinance and finally enacted the CVC
Act.
52. Section 3 of the CVC Act deals with constitution of Central
Vigilance Commission.
53. Section 4 of the CVC Act deals with appointment of Central B
Vigilance Commissioner and Vigilance Commissioners, which reads thus:
“4. Appointment of Central Vigilance Commissioner and
Vigilance Commissioners.—(1) The Central Vigilance
Commissioner and the Vigilance Commissioners shall be appointed
by the President by warrant under his hand and seal: C
Provided that every appointment under this sub-section shall
be made after obtaining the recommendation of a Committee
consisting of—
D
E
Explanation.—For the purposes of this sub-section, “the
Leader of the Opposition in the House of the People” shall, when
no such Leader has been so recognised, include the Leader of the
single largest group in opposition of the Government in the House
of the People.
(2) No appointment of a Central Vigilance Commissioner F
or a Vigilance Commissioner shall be invalid merely by reason of
any vacancy in the Committee.”
54. Section 6 of the CVC Act deals with removal of Central
Vigilance Commissioner and Vigilance Commissioner, which reads thus:
G
“6. Removal of Central Vigilance Commissioner and
Vigilance Commissioner.—(1) Subject to the provisions of sub-
section (3), the Central Vigilance Commissioner or any Vigilance
Commissioner shall be removed from his office only by order of
the President on the ground of proved misbehaviour or incapacity
after the Supreme Court, on a reference made to it by the H
556 SUPREME COURT REPORTS [2023] 10 S.C.R.
A President, has, on inquiry, reported that the Central Vigilance
Commissioner or any Vigilance Commissioner, as the case may
be, ought on such ground be removed.
(2) The President may suspend from office, and if deem
necessary prohibit also from attending the office during inquiry,
B the Central Vigilance Commissioner or any Vigilance
Commissioner in respect of whom a reference has been made to
the Supreme Court under sub-section (1) until the President has
passed orders on receipt of the report of the Supreme Court on
such reference.
C (3) Notwithstanding anything contained in sub-section (1),
the President may by order remove from office the Central
Vigilance Commissioner or any Vigilance Commissioner if the
Central Vigilance Commissioner or such Vigilance Commissioner,
as the case may be,—
(a) is adjudged an insolvent; or
D
(b) has been convicted of an offence which, in the opinion
of the Central Government, involves moral turpitude;
or
(c) engages during his term of office in any paid
employment outside the duties of his office; or
E
(d) is, in the opinion of the President, unfit to continue in
office by reason of infirmity of mind or body; or
(e) has acquired such financial or other interest as is
likely to affect prejudicially his functions as a Central
F Vigilance Commissioner or a Vigilance
Commissioner.
(4) If the Central Vigilance Commissioner or any
Vigilance Commissioner is or becomes in any way,
concerned or interested in any contract or agreement
made by or on behalf of the Government of India or
G
participates in any way in the profit thereof or in any
benefit or emolument arising therefrom otherwise than
as a member and in common with the other members
of an incorporated company, he shall, for the purposes
of sub-section (1), be deemed to be guilty of
H misbehaviour.”
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 557
[B. R. GAVAI, J.]
55. Section 25 of the CVC Act deals with appointments, etc. of A
officers of ED, which reads thus:
“25. Appointments, etc., of officers of Directorate of
Enforcement.—Notwithstanding anything contained in the
Foreign Exchange Management Act, 1999 (42 of 1999) or any
other law for the time being in force,— B
(a) the Central Government shall appoint a Director of
Enforcement in the Directorate of Enforcement in
the Ministry of Finance on the recommendation of
the Committee consisting of—
C
D
E
(b) while making a recommendation, the Committee shall
take into consideration the integrity and experience
of the officers eligible for appointment;
(c) no person below the rank of Additional Secretary to
the Government of India shall be eligible for F
appointment as a Director of Enforcement;
(d) a Director of Enforcement shall continue to hold office
for a period of not less than two years from the date
on which he assumes office;
G
(e) a Director of Enforcement shall not be transferred
except with the previous consent of the Committee
referred to in clause (a);
(f) the Committee referred to in clause (a) shall, in
consultation with the Director of Enforcement,
H
558 SUPREME COURT REPORTS [2023] 10 S.C.R.
A recommend officers for appointment to the posts
above the level of the Deputy Director of
Enforcement and also recommend the extension or
curtailment of the tenure of such officers in the
Directorate of Enforcement;
B (g) on receipt of the recommendation under clause (f),
the Central Government shall pass such orders as it
thinks fit to give effect to the said recommendation.”
56. Similarly, by an amendment to DSPE Act by Act No. 45 of
2003 (CVC Act), a provision was made for a Committee for appointment
C of the Director of CBI, which reads thus:
“4-A. Committee for appointment of Director.—(1) The Central
Government shall appoint the Director on the recommendation of
the Committee consisting of—
D
E
(2) While making any recommendation under sub-section (1), the
Committee shall take into consideration the views of the outgoing
F Director.
(3) The Committee shall recommend a panel of officers—
(a) on the basis of seniority, integrity and experience in the
investigation of anti-corruption cases; and
(b) chosen from amongst officers belonging to the Indian Police
G Service constituted under the All-India Services Act, 1951 (61
of 1951),
for being considered for appointment as the Director.”
57. Section 4-B of the DSPE Act deals with the terms and
conditions of service of Director, which reads thus:
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 559
[B. R. GAVAI, J.]
“4-B. Terms and conditions of service of Director.—(1) The A
Director shall, notwithstanding anything to the contrary contained
in the rules relating to his conditions of service, continue to hold
office for a period of not less than two years from the date on
which he assumes office.
(2) The Director shall not be transferred except with the previous B
consent of the Committee referred to in sub-section (1) of Section
4-A.”
58. It could thus be seen that in view of clause (d) of Section 25
of the CVC Act, as it existed prior to the amendment, it was provided
that a Director of Enforcement shall continue to hold office for a period C
of not less than two years from the date on which he assumes office.
59. Similarly, in view of Section 4B of the DSPE Act, the Director
of CBI was required to continue to hold office for a period of not less
than two years from the date on which he assumes office. It also provided
that the Director shall not be transferred except with the previous consent
D
of the Committee referred to in sub-section (1) of Section 4A.
60. By the Central Vigilance Commission (Amendment) Act, 2021,
in clause (d) of Section 25 of the CVC Act, the following provisos have
been inserted:
“Provided that the period for which the Director of
E
Enforcement holds the office on his initial appointment may, in
public interest, on the recommendation of the Committee under
clause (a) and for the reasons to be recorded in writing, be extended
up to one year at a time:
Provided further that no such extension shall be granted
after the completion of a period of five years in total including the F
period mentioned in the initial appointment.”
61. Similarly, by the Delhi Special Police Establishment
(Amendment) Act, 2021, in sub-section (1) of Section 4B of the DSPE
Act, the following provisos have been inserted:
G
“Provided that the period for which the Director holds the
office on his initial appointment may, in public interest, on the
recommendation of the Committee under sub-section (1) of section
4A and for the reasons to be recorded in writing, be extended up
to one year at a time:
H
560 SUPREME COURT REPORTS [2023] 10 S.C.R.
A Provided further that no such extension shall be granted
after the completion of a period of five years in total including the
period mentioned in the initial appointment.”
62. Similarly, in clause (d) of rule 56 of the Fundamental Rules,
1922, the fifth proviso has also been substituted, which is as under:
B “Provided also that the Central Government may, if it
considers necessary in public interest so to do, give extension in
service to the Defence Secretary, Home Secretary, Director of
Intelligence Bureau, Secretary of Research and Analysis Wing
and Director of Central Bureau of Investigation appointed under
C the Delhi Special Police Establishment Act, 1946 (25 of 1946)
and Director of Enforcement in the Directorate of Enforcement
appointed under the Central Vigilance Commission Act, 2003 (45
of 2003) in the Central Government for such period or periods as
it may deem proper on a case-to-case basis for reasons to be
recorded in writing, subject to the condition that the total term of
D such Secretaries or Directors, as the case may be, who are given
such extension in service under this rule, does not exceed two
years or the period provided in the respective Act or rules made
thereunder, under which their appointments are made.”
63. These two amendments to the CVC Act and the DSPE Act
E along with the amendment to the Fundamental Rules, 1922 are under
challenge in the present proceedings.
64. What has been provided by the Amendments to the CVC Act
and the DSPE Act is that the period for which such Director of
Enforcement or the Director of CBI holds office on his initial appointment
F may, in public interest, on the recommendation of the Committee, which
under the statutory scheme was required to recommend the appointment
of such Director, for the reasons to be recorded in writing, be extended
up to one year at a time. The second proviso provides that no such
extension shall be granted after the completion of a period of five years
in total including the period mentioned in the initial appointment.
G
65. It is the contention of the petitioners that various judgments of
this Court have emphasized the necessity for the purpose of ensuring
complete insulation of the office of the Director of CBI/Director of
Enforcement from all kinds of extraneous influences, as may be, as well
as for upholding the integrity and independence of the institution of CBI/
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 561
[B. R. GAVAI, J.]
ED as a whole. It is contended that the Amendments, which enable the A
Government to provide for extension and that too for a period of one
year at a time and which could extend to three extensions in total, would
enable the Government to apply a ‘carrot and stick’ policy. It is contended
that if the Director of CBI as well as the Director of Enforcement acts
as per the desire of the Government, they could be provided extensions
B
of their tenure. Per contra, if such a Director does not act as per the
desire of the Government, he would be denied extensions. It is, thus,
submitted that the very purpose of insulating these premium Agencies
from extraneous pressures by the Government is sought to be wiped by
the impugned Amendments.
66. For considering the issue with regard to validity of the C
Amendments, it will be apposite to refer to some of the judgments of this
Court delineating the scope of the judicial review in examining the
legislative functions of the Legislature.
67. A bench of three learned Judges of this Court in the case of
Asif Hameed and others v. State of Jammu and Kashmir and D
others21observed thus:
“17. Before adverting to the controversy directly involved in these
appeals we may have a fresh look on the inter se functioning of
the three organs of democracy under our Constitution. Although
the doctrine of separation of powers has not been recognised E
under the Constitution in its absolute rigidity but the Constitution
makers have meticulously defined the functions of various organs
of the State. legislature, executive and judiciary have to function
within their own spheres demarcated under the Constitution. No
organ can usurp the functions assigned to another. The Constitution
trusts to the judgment of these organs to function and exercise F
their discretion by strictly following the procedure prescribed
therein. The functioning of democracy depends upon the strength
and independence of each of its organs. legislature and executive,
the two facets of people’s will, they have all the powers including
that of finance. Judiciary has no power over sword or the purse G
nonetheless it has power to ensure that the aforesaid two main
organs of State function within the constitutional limits. It is the
sentinel of democracy. Judicial review is a powerful weapon to
restrain unconstitutional exercise of power by the legislature and
21
1989 Supp (2) SCC 364 H
562 SUPREME COURT REPORTS [2023] 10 S.C.R.
A executive. The expanding horizon of judicial review has taken in
its fold the concept of social and economic justice. While exercise
of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self-
imposed discipline of judicial restraint.
B 18. Frankfurter, J. of the U.S. Supreme Court dissenting in the
controversial expatriation case of Trop v. Dulles [356 US 86]
observed as under:
“All power is, in Madison’s phrase, “of an encroaching
nature”. Judicial power is not immune against this human
C weakness. It also must be on guard against encroaching beyond
its proper bounds, and not the less so since the only restraint
upon it is self-restraint....
Rigorous observance of the difference between limits of power
and wise exercise of power — between questions of authority
and questions of prudence — requires the most alert appreciation
D
of this decisive but subtle relationship of two concepts that too
easily coalesce. No less does it require a disciplined will to adhere
to the difference. It is not easy to stand aloof and allow want of
wisdom to prevail to disregard one’s own strongly held view of
what is wise in the conduct of affairs. But it is not the business of
E this Court to pronounce policy. It must observe a fastidious regard
for limitations on its own power, and this precludes the court’s
giving effect to its own notions of what is wise or politic. That
self-restraint is of the essence in the observance of the judicial
oath, for the Constitution has not authorized the judges to sit in
judgment on the wisdom of what Congress and the executive
F branch do.”
19. When a State action is challenged, the function of the court is
to examine the action in accordance with law and to determine
whether the legislature or the executive has acted within the
powers and functions assigned under the Constitution and if not,
G the court must strike down the action. While doing so the court
must remain within its self-imposed limits. The court sits in judgment
on the action of a coordinate branch of the Government. While
exercising power of judicial review of administrative action, the
court is not an Appellate Authority. The Constitution does not permit
H the court to direct or advise the executive in matters of policy or
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 563
[B. R. GAVAI, J.]
to sermonize qua any matter which under the Constitution lies A
within the sphere of legislature or executive, provided these
authorities do not transgress their constitutional limits or statutory
powers.”
68. It could thus be seen that the role of the judiciary is to ensure
that the aforesaid two organs of the State i.e. the Legislature and the B
Executive function within the constitutional limits. Judicial review is a
powerful weapon to restrain unconstitutional exercise of power by the
legislature and executive. The role of this Court is limited to examine as
to whether the Legislature or the Executive has acted within the powers
and functions assigned under the Constitution. However, while doing so,
the court must remain within its self-imposed limits. C
69. Recently, this Court in the case of Binoy Viswam v. Union of
India and others22, took survey of the relevant judgments on the issue
and observed thus:
“78. With this, we advert to the discussion on the grounds of judicial
D
review that are available to adjudge the validity of a piece of
legislation passed by the legislature. We have already mentioned
that a particular law or a provision contained in a statute can be
invalidated on two grounds, namely : (i) it is not within the
competence of the legislature which passed the law, and/or (ii) it
is in contravention of any of the fundamental rights stipulated in E
Part III of the Constitution or any other right/provision of the
Constitution. These contours of the judicial review are spelled out
in the clear terms in Rakesh Kohli [State of M.P. v. Rakesh
Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481] , and
particularly in the following paragraphs : (SCC pp. 321-22 & 325-
27, paras 16-17, 26-28 & 30) F
“16. The statute enacted by Parliament or a State
Legislature cannot be declared unconstitutional lightly. The court
must be able to hold beyond any iota of doubt that the violation
of the constitutional provisions was so glaring that the legislative
provision under challenge cannot stand. Sans flagrant violation G
of the constitutional provisions, the law made by Parliament or
a State Legislature is not declared bad.
17. This Court has repeatedly stated that legislative
enactment can be struck down by court only on two grounds,
22
(2017) 7 SCC 59 H
564 SUPREME COURT REPORTS [2023] 10 S.C.R.
A namely (i) that the appropriate legislature does not have the
competence to make the law, and (ii) that it does not (sic) take
away or abridge any of the fundamental rights enumerated in
Part III of the Constitution or any other constitutional provisions.
In McDowell and Co. [State of A.P. v. McDowell & Co.,
(1996) 3 SCC 709] while dealing with the challenge to an
B
enactment based on Article 14, this Court stated in para 43 of
the Report as follows : (SCC pp. 737-38)
‘43. … A law made by Parliament or the legislature
can be struck down by courts on two grounds and two
grounds alone viz. (1) lack of legislative competence, and
C (2) violation of any of the fundamental rights guaranteed in
Part III of the Constitution or of any other constitutional
provision. There is no third ground. … if an enactment is
challenged as violative of Article 14, it can be struck down
only if it is found that it is violative of the equality clause/
D equal protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the
fundamental rights guaranteed by sub-clauses (a) to (g) of
Article 19(1), it can be struck down only if it is found not
saved by any of the clauses (2) to (6) of Article 19 and so
on. No enactment can be struck down by just saying
E that it is arbitrary or unreasonable. Some or the other
constitutional infirmity has to be found before invalidating
an Act. An enactment cannot be struck down on the ground
that court thinks it unjustified. Parliament and the legislatures,
composed as they are of the representatives of the people,
F are supposed to know and be aware of the needs of the
people and what is good and bad for them. The court cannot
sit in judgment over their wisdom.”
***
26. In Mohd. Hanif Quareshi [Mohd. Hanif
G Quareshi v. State of Bihar, AIR 1958 SC 731] , the Constitution
Bench further observed that there was always a presumption
in favour of constitutionality of an enactment and the burden is
upon him, who attacks it, to show that there has been a clear
violation of the constitutional principles. It stated in para 15 of
the Report as under : (AIR pp. 740-41)
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 565
[B. R. GAVAI, J.]
‘15. … The courts, it is accepted, must presume that A
the legislature understands and correctly appreciates the
needs of its own people, that its laws are directed to problems
made manifest by experience and that its discriminations
are based on adequate grounds. It must be borne in mind
that the legislature is free to recognise degrees of harm
B
and may confine its restrictions to those cases where the
need is deemed to be the clearest and finally that in order
to sustain the presumption of constitutionality the court may
take into consideration matters of common knowledge,
matters of common report, the history of the times and may
assume every state of facts which can be conceived existing C
at the time of legislation.”
27. The above legal position has been reiterated by a
Constitution Bench of this Court in Mahant Moti Das v. S.P.
Sahi [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] .
28. In Hamdard Dawakhana v. Union of India [Hamdard D
Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Cri LJ
735] , inter alia, while referring to the earlier two decisions,
namely, Bengal Immunity Co. Ltd. [Bengal Immunity Co.
Ltd. v. State of Bihar, AIR 1955 SC 661] and Mahant Moti
Das [Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942] , it was E
observed in para 8 of the Report as follows : (Hamdard Dawakhana
case [Hamdard Dawakhana v. Union of India, AIR 1960 SC
554 : 1960 Cri LJ 735] , AIR p. 559)
‘8. Therefore, when the constitutionality of an
enactment is challenged on the ground of violation of any
of the articles in Part III of the Constitution, the F
ascertainment of its true nature and character becomes
necessary i.e. its subject-matter, the area in which it is
intended to operate, its purport and intent have to be
determined. In order to do so it is legitimate to take into
consideration all the factors such as history of the legislation, G
the purpose thereof, the surrounding circumstances and
conditions, the mischief which it intended to suppress, the
remedy for the disease which the legislature resolved to
cure and the true reason for the remedy….’
H
566 SUPREME COURT REPORTS [2023] 10 S.C.R.
A In Hamdard Dawakhana [Hamdard Dawakhana v. Union of
India, AIR 1960 SC 554 : 1960 Cri LJ 735] , the Court also followed
the statement of law in Mahant Moti Das [Mahant Moti
Das v. S.P. Sahi, AIR 1959 SC 942] and the two earlier decisions,
namely, Charanjit Lal Chowdhury v. Union of India [Charanjit
Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951
B
SC 41 : 1950 SCR 869] and State of Bombay v. F.N.
Balsara [State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR
1951 SC 318 : (1951) 52 Cri LJ 1361] and reiterated the principle
that presumption was always in favour of constitutionality of an
enactment.
C ***
30. A well-known principle that in the field of taxation, the
legislature enjoys a greater latitude for classification, has been
noted by this Court in a long line of cases. Some of these decisions
are Steelworth Ltd. v. State of Assam [Steelworth Ltd. v. State
D of Assam, 1962 Supp (2) SCR 589] , Gopal Narain v. State of
U.P. [Gopal Narain v. State of U.P., AIR 1964 SC 370] , Ganga
Sugar Corpn. Ltd. v. State of U.P. [Ganga Sugar Corpn.
Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90]
, R.K. Garg v. Union of India [R.K. Garg v. Union of India,
E (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and State of
W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A. India Ltd.,
(2003) 5 SCC 239] “
(emphasis in original)
79. Again, in Ashoka Kumar Thakur v. Union of India [Ashoka
F Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35]
, this Court made the following pertinent observations : (SCC p.
524, para 219)
“219. A legislation passed by Parliament can be
challenged only on constitutionally recognised grounds.
Ordinarily, grounds of attack of a legislation is whether the
G
legislature has legislative competence or whether the legislation
is ultra vires the provisions of the Constitution. If any of the
provisions of the legislation violates fundamental rights or any
other provisions of the Constitution, it could certainly be a valid
ground to set aside the legislation by invoking the power of
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 567
[B. R. GAVAI, J.]
judicial review. A legislation could also be challenged as A
unreasonable if it violates the principles of equality adumbrated
in our Constitution or it unreasonably restricts the fundamental
rights under Article 19 of the Constitution. A legislation cannot
be challenged simply on the ground of unreasonableness
because that by itself does not constitute a ground. The validity
B
of a constitutional amendment and the validity of plenary
legislation have to be decided purely as questions of
constitutional law. This Court in State of Rajasthan v. Union
of India [State of Rajasthan v. Union of India, (1977) 3 SCC
592] said : (SCC p. 660, para 149)
‘149. … if a question brought before the court is purely C
a political question not involving determination of any legal or
constitutional right or obligation, the court would not entertain
it, since the court is concerned only with adjudication of legal
rights and liabilities.’
Therefore, the plea of the petitioner that the legislation itself D
was intended to please a section of the community as part of
the vote catching mechanism is not a legally acceptable plea
and it is only to be rejected.”
80. Furthermore, it also needs to be specifically noted that this
Court emphasised that apart from the aforesaid two grounds no E
third ground is available to invalidate any piece of legislation. In
this behalf it would be apposite to reproduce the following
observations from State of A.P. v. McDowell & Co. [State of
A.P. v. McDowell & Co., (1996) 3 SCC 709] , which is a judgment
rendered by a three-Judge Bench of this Court : (SCC pp. 737-
38, para 43) F
“43. … A law made by Parliament or the legislature
can be struck down by courts on two grounds and two grounds
alone viz. (1) lack of legislative competence and (2) violation
of any of the fundamental rights guaranteed in Part III of the
Constitution or of any other constitutional provision. There is G
no third ground. We do not wish to enter into a discussion of
the concepts of procedural unreasonableness and substantive
unreasonableness—concepts inspired by the decisions of
United States Supreme Court. Even in USA, these concepts
and in particular the concept of substantive due process have H
568 SUPREME COURT REPORTS [2023] 10 S.C.R.
A proved to be of unending controversy, the latest thinking tending
towards a severe curtailment of this ground (substantive due
process). The main criticism against the ground of substantive
due process being that it seeks to set up the courts as arbiters
of the wisdom of the legislature in enacting the particular piece
of legislation. It is enough for us to say that by whatever name
B
it is characterised, the ground of invalidation must fall within
the four corners of the two grounds mentioned above. In other
words, say, if an enactment is challenged as violative of Article
14, it can be struck down only if it is found that it is violative of
the equality clause/equal protection clause enshrined therein.
C Similarly, if an enactment is challenged as violative of any of
the fundamental rights guaranteed by sub-clauses (a) to (g) of
Article 19(1), it can be struck down only if it is found not saved
by any of the clauses (2) to (6) of Article 19 and so on. No
enactment can be struck down by just saying that it is arbitrary
[ An expression used widely and rather indiscriminately — an
D
expression of inherently imprecise import. The extensive use
of this expression in India reminds one of what Frankfurter, J.
said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co.,
87 L Ed 610 : 318 US 54 (1943):”The phrase begins life as a
literary expression; its felicity leads to its lazy repetition and
E repetition soon establishes it as a legal formula,
undiscriminatingly used to express different and sometimes
contradictory ideas”, said the learned Judge.] or unreasonable.
Some or other constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be struck down on
the ground that court thinks it unjustified. Parliament and the
F
legislatures, composed as they are of the representatives of
the people, are supposed to know and be aware of the needs
of the people and what is good and bad for them. The court
cannot sit in judgment over their wisdom. In this connection, it
should be remembered that even in the case of administrative
G action, the scope of judicial review is limited to three grounds
viz. (i) unreasonableness, which can more appropriately be
called irrationality, (ii) illegality, and (iii) procedural impropriety
(see Council of Civil Service Unions v. Minister for the
Civil Service [Council of Civil Service Unions v. Minister
for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 :
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 569
[B. R. GAVAI, J.]
(1984) 3 All ER 935 (HL)] which decision has been accepted A
by this Court as well). The applicability of doctrine of
proportionality even in administrative law sphere is yet a
debatable issue. (See the opinions of Lords Lowry and Ackner
in R. v. Secy. of State for the Home Deptt., ex p
Brind [R. v. Secy. of State for the Home Deptt., ex p Brind,
B
(1991) 1 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720
(HL)] , AC at pp. 766-67 and 762.) It would be rather odd if an
enactment were to be struck down by applying the said principle
when its applicability even in administrative law sphere is not
fully and finally settled.”
81. Another aspect in this context, which needs to be emphasised, C
is that a legislation cannot be declared unconstitutional on the
ground that it is “arbitrary” inasmuch as examining as to whether
a particular Act is arbitrary or not implies a value judgment and
the courts do not examine the wisdom of legislative choices and,
therefore, cannot undertake this exercise. This was so recognised D
in a recent judgment of this Court Rajbala v. State of
Haryana [Rajbala v. State of Haryana, (2016) 2 SCC 445]
wherein this Court held as under : (SCC p. 481, paras 64-65)
“64. From the above extract from McDowell & Co.
case [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] it E
is clear that the courts in this country do not undertake the task
of declaring a piece of legislation unconstitutional on the ground
that the legislation is “arbitrary” since such an exercise implies
a value judgment and courts do not examine the wisdom of
legislative choices unless the legislation is otherwise violative
of some specific provision of the Constitution. To undertake F
such an examination would amount to virtually importing the
doctrine of “substantive due process” employed by the
American Supreme Court at an earlier point of time while
examining the constitutionality of Indian legislation. As pointed
out in the above extract, even in United States the doctrine is G
currently of doubtful legitimacy. This Court long back in A.S.
Krishna v. State of Madras [A.S. Krishna v. State of
Madras, AIR 1957 SC 297 : 1957 Cri LJ 409] declared that
the doctrine of due process has no application under the Indian
Constitution. As pointed out by Frankfurter, J., arbitrariness
became a mantra. H
570 SUPREME COURT REPORTS [2023] 10 S.C.R.
A 65. For the above reasons, we are of the opinion that it
is not permissible for this Court to declare a statute
unconstitutional on the ground that it is “arbitrary”.”
82. Same sentiments were expressed earlier by this Court in K.T.
Plantation (P) Ltd. [K.T. Plantation (P) Ltd. v. State of
B Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] in the
following words : (SCC p. 58, para 205)
“205. Plea of unreasonableness, arbitrariness,
proportionality, etc. always raises an element of subjectivity
on which a court cannot strike down a statute or a statutory
C provision, especially when the right to property is no more a
fundamental right. Otherwise the court will be substituting its
wisdom to that of the legislature, which is impermissible in our
constitutional democracy.”
A fortiori, a law cannot be invalidated on the ground that the
legislature did not apply its mind or it was prompted by some
D
improper motive.
83. It is, thus, clear that in exercise of power of judicial review,
the Indian courts are invested with powers to strike down primary
legislation enacted by Parliament or the State Legislatures.
However, while undertaking this exercise of judicial review, the
E same is to be done at three levels. In the first stage, the Court
would examine as to whether impugned provision in a legislation
is compatible with the fundamental rights or the constitutional
provisions (substantive judicial review) or it falls foul of the federal
distribution of powers (procedural judicial review). If it is not found
F to be so, no further exercise is needed as challenge would fail. On
the other hand, if it is found that legislature lacks competence as
the subject legislated was not within the powers assigned in the
List in Schedule VII, no further enquiry is needed and such a law
is to be declared as ultra vires the Constitution. However, while
undertaking substantive judicial review, if it is found that the
G impugned provision appears to be violative of fundamental rights
or other constitutional rights, the Court reaches the second stage
of review. At this second phase of enquiry, the Court is supposed
to undertake the exercise as to whether the impugned provision
can still be saved by reading it down so as to bring it in conformity
H with the constitutional provisions. If that is not achievable then
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 571
[B. R. GAVAI, J.]
the enquiry enters the third stage. If the offending portion of the A
statute is severable, it is severed and the Court strikes down the
impugned provision declaring the same as unconstitutional.
84. Keeping in view the aforesaid parameters we, at this stage,
want to devote some time discussing the arguments of the
petitioners based on the concept of “limited Government”. B
xxx xxx xxx
xxx xxx xxx
88. Undoubtedly, we are in the era of liberalised democracy. In a
democratic society governed by the Constitution, there is a strong
trend towards the constitutionalisation of democratic politics, where C
the actions of democratically elected Government are judged in
the light of the Constitution. In this context, judiciary assumes the
role of protector of the Constitution and democracy, being the
ultimate arbiter in all matters involving the interpretation of the
Constitution. D
89. Having said so, when it comes to exercising the power of
judicial review of a legislation, the scope of such a power has to
be kept in mind and the power is to be exercised within the limited
sphere assigned to the judiciary to undertake the judicial review.
This has already been mentioned above. Therefore, unless the
E
petitioner demonstrates that Parliament, in enacting the impugned
provision, has exceeded its power prescribed in the Constitution
or this provision violates any of the provision, the argument
predicated on “limited governance” will not succeed. One of the
aforesaid ingredients needs to be established by the petitioners in
order to succeed.” F
70. It could thus be seen that this Court has held that the statute
enacted by Parliament or a State Legislature cannot be declared
unconstitutional lightly. To do so, the Court must be able to hold beyond
any iota of doubt that the violation of the constitutional provisions was so
glaring that the legislative provision under challenge cannot stand. It has G
been held that unless there is flagrant violation of the constitutional
provisions, the law made by Parliament or a State Legislature cannot be
declared bad.
71. It has been the consistent view of this Court that legislative
enactment can be struck down only on two grounds. Firstly, that the H
572 SUPREME COURT REPORTS [2023] 10 S.C.R.
A appropriate legislature does not have the competence to make the law;
and secondly, that it takes away or abridges any of the fundamental
rights enumerated in Part III of the Constitution or any other constitutional
provisions. It has been held that no enactment can be struck down by
just saying that it is arbitrary or unreasonable. Some or the other
constitutional infirmity has to be found before invalidating an Act. It has
B
been held that Parliament and the legislatures, composed as they are of
the representatives of the people, are supposed to know and be aware
of the needs of the people and what is good and bad for them. The court
cannot sit in judgment over their wisdom.
72. It has been held by this Court that there is one and only one
C ground for declaring an Act of the legislature or a provision in the Act to
be invalid, and that is if it clearly violates some provision of the Constitution
in so evident a manner as to leave no manner of doubt. It has further
been held that if two views are possible, one making the statute
constitutional and the other making it unconstitutional, the former view
D must always be preferred. It has been held that the Court must make
every effort to uphold the constitutional validity of a statute, even if that
requires giving a strained construction or narrowing down its scope.
73. It has consistently been held that there is always a presumption
in favour of constitutionality, and a law will not be declared
E unconstitutional unless the case is so clear as to be free from doubt. It
has been held that if the law which is passed is within the scope of the
power conferred on a legislature and violates no restrictions on that
power, the law must be upheld whatever a court may think of it.
74. It could thus be seen that the challenge to the legislative Act
would be sustainable only if it is established that the legislature concerned
F had no legislative competence to enact on the subject it has enacted.
The other ground on which the validity can be challenged is that such an
enactment is in contravention of any of the fundamental rights stipulated
in Part III of the Constitution or any other provision of the Constitution.
Another ground as could be culled out from the recent judgments of this
G Court is that the validity of the legislative act can be challenged on the
ground of manifest arbitrariness. However, while doing so, it will have to
be remembered that the presumption is in favour of the constitutionality
of a legislative enactment.
75. In the present case, it is nobody’s case that Parliament did not
H have power to enact on the subject on which the aforesaid Amendments
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 573
[B. R. GAVAI, J.]
have been enacted. As such, the said ground is not available to the A
petitioners.
76. The next ground on which the validity of the aforesaid
Amendments could be challenged is, as to whether they violate any of
the fundamental rights stipulated in Part III of the Constitution or any
other provision of the Constitution. B
77. It is sought to be urged that the aforesaid Amendments would
defeat the directive issued by this court to have a fixed tenure of the
Director of CBI/Director of Enforcement and permit a ‘carrot and stick’
policy to be adopted by the Executive. It is sought to be urged that if the
aforesaid Amendments are permitted to exist, it will frustrate the very C
purpose of insulating the aforesaid high posts from extraneous pressures.
Let us consider this submission.
78. Insofar as the Director of Enforcement is concerned, the
Central Government can appoint such a Director only on the
recommendation of the Committee consisting of:
D
(i) the Central Vigilance Commissioner (Chairman);
(ii) Vigilance Commissioners (Members);
(iii) Secretary to the Government of India in-charge of the
Ministry of Personnel in the Central Government (Member);
(iv) Secretary to the Government of India in-charge of the E
Ministry of Home Affairs in the Central Government
(Member);
(v) Secretary to the Government of India in-charge of the
Department of Revenue, Ministry of Finance in the Central
Government (Member). F
79. It can thus be seen that a person can be appointed as Director
of Enforcement only if the aforesaid Committee makes a
recommendation to that effect. The said Committee, inter alia, consists
of the Central Vigilance Commissioner as well as the Vigilance
Commissioners. G
80. As pointed out herein above, Section 4 of the CVC Act deals
with appointment of Central Vigilance Commissioner and Vigilance
Commissioners. The appointment of Central Vigilance Commissioner
and Vigilance Commissioners can be made only after a Committee
consisting of (a) the Prime Minister (Chairman); (b) the Minister of
H
574 SUPREME COURT REPORTS [2023] 10 S.C.R.
A Home Affairs (Member); and (c) the Leader of the Opposition in the
House of the People (Member) recommends for the same. The
explanation thereto provides that when no such Leader of the Opposition
in the House of the People has been so recognized, the Committee shall
include the Leader of the single largest group in opposition of the
Government in the House of the People.
B
81. A perusal of Section 6 of the CVC Act would reveal that a
very stringent provision has been made for removal of the Central
Vigilance Commissioner and the Vigilance Commissioners. They can be
removed from the office only by an order of the President on the ground
of proved misbehaviour or incapacity and that too, only after the Supreme
C Court, on a reference made to it by the President, has, on inquiry, reported
that the Central Vigilance Commissioner or any Vigilance Commissioner,
as the case may be, ought on such ground be removed.
82. It is, thus, clear that the procedure for removal of the Central
Vigilance Commissioner or the Vigilance Commissioner is very stringent.
D Unless on a reference made by the President to the Supreme Court, the
Supreme Court conducts an inquiry and reports that such Central
Vigilance Commissioner or the Vigilance Commissioner, as the case may
be, ought to be removed on the ground of proved misbehaviour or
incapacity, they cannot be removed. As such, a very strong protection
E has been provided to these officers to act independently and the Statute
insulates them from extraneous pressures.
83. As already discussed herein above, the Committee which
recommends appointment of the Director of Enforcement consists of
the Central Vigilance Commissioner as well as the Vigilance
Commissioner. It is to be noted that this Court in the case of Vineet
F Narain (supra) directed a Selection Committee for appointment to the
post of Director of Enforcement headed by the Central Vigilance
Commissioner, and including the Home Secretary, Secretary (Personnel)
and Revenue Secretary. However, Section 25 of the CVC Act provides
for a Committee, which, apart from aforesaid three Members also includes
G the Vigilance Commissioners.
84. It could thus be seen that the constitution of the Committee
for appointment of Director of Enforcement is wider than what is ordered
by this Court in the case of Vineet Narain (supra) and consisting of
Central Vigilance Commissioner as well as Vigilance Commissioners.
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 575
[B. R. GAVAI, J.]
85. As already observed herein above, there is safeguard in the A
statute which insulate the office of the Central Vigilance Commissioner
and the Vigilance Commissioner from extraneous pressures and permits
them to act independently.
86. Similarly, the appointment of Director of CBI is to be made
only after a candidate is recommended by the Committee consisting of: B
(i) The Prime Minister (Chairperson);
(ii) The Leader of Opposition recognised as such in the House of
the People or where there is no such Leader of Opposition, then, the
Leader of the single largest Opposition Party in that House (Member);
(iii) The Chief Justice of India or Judge of the Supreme Court C
nominated by him (Member).
87. It is to be noted that insofar as the appointment of the Director
of CBI is concerned, this Court in the case of Vineet Narain (supra)
had directed that the recommendations were to be made by a Committee
headed by the Central Vigilance Commissioner with the Home Secretary D
and Secretary (Personnel) as Members. However, Section 4A of the
DSPE Act provides for a Committee, which is consisting of the Members
which are at much higher pedestal. It is to be chaired by the Prime
Minister, whereas the Chief Justice of India or his/her nominee and the
Leader of Opposition in the House of the People are its Members.
E
Therefore, the appointment of the Director of CBI cannot be made unless
it is recommended by the High-Level Committee consisting of the Prime
Minister; the Leader of Opposition; and the Chief Justice of India or
Judge of the Supreme Court nominated by him/her.
88. It is to be noted that the aforesaid provisions have been made
in order to give effect to the directions issued by this Court in the case of F
Vineet Narain (supra).
89. This Court in the case of Vineet Narain (supra) has issued a
specific direction that the Director of CBI as well as the Director of
Enforcement shall have a minimum tenure of two years.
G
90. What has been provided by the impugned Amendments is that
the period for which the initial appointment has been made could, in
public interest, be extended up to one year at a time. However, this can
be done only on the recommendation of the Committee which is
constituted for their appointments. The second proviso further provided
that no such extension shall be granted after the completion of a period H
576 SUPREME COURT REPORTS [2023] 10 S.C.R.
A of five years in total including the period mentioned in the initial
appointment. The impugned Amendments empower the Government to
extend the tenure of the incumbent in the said office by a period of one
year at a time subject to the maximum period of five years including the
period mentioned in the initial appointment. As already stated herein
above, such extensions can be granted by the Government only if the
B
Committees, which are constituted for recommending their appointment,
recommend their extension, in public interest and also record the reasons
in writing.
91. It is, thus, clear that it is not at the sweet-will of the Government
that the extensions can be granted to the incumbents in the office of the
C Director of CBI/Director of Enforcement. It is only on the basis of the
recommendations of the Committees which are constituted to recommend
their appointment and that too when it is found in public interest and
when the reasons are recorded in writing, such an extension can be
granted by the Government.
D 92. What has been directed by this Court in the case of Vineet
Narain (supra) and in subsequent judgments relied on by the petitioners
is that such Director should have a minimum tenure of two years
irrespective of their date of superannuation. By the impugned
Amendments, the said period is not tinkered with. What has been done
E is only a power is given to extend their period for a period of one year at
a time, subject to a maximum number of three such extensions. However,
this has to be done only when the Committee which is constituted to
recommend their appointment finds it necessary, in public interest, to
grant such extension. It is further required to record the reasons in writing
for the said purpose.
F 93. As already discussed herein above, the aforesaid provisions
with regard to appointment have been enacted in pursuance to the
directions given by this Court in the case of Vineet Narain (supra).
When a committee can be trusted with regard to recommending their
initial appointment, we see no reason as to why such committees cannot
G be trusted to consider as to whether the extension is required to be given
in public interest or not. At the cost of repetition, such Committee is also
required to record reasons in writing in support of such recommendations.
94. We are, therefore, unable to accept the arguments that the
impugned Amendments grant arbitrary power to the Government to
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 577
[B. R. GAVAI, J.]
extend the tenure of the Director of ED/CBI and has the effect of wiping A
out the insulation of these offices from extraneous pressures.
95. Insofar as challenge to the amendment to the fifth proviso to
clause (d) of Rule 56 of the Fundamental Rules, 1922 is concerned, it
will be relevant to refer to the fifth proviso to clause (d) of Rule 56,
which existed prior to the Amendment. It reads thus: B
“Provided also that the Central Government may, if it considers
necessary in public interest so to do, give extension in service to
the Defence Secretary, Home Secretary, Director, Intelligence
Bureau, Secretary, Research and Analysis Wing and Director,
Central Bureau of Investigation in the Central Government for C
such period or periods as it may deem proper on a case-to-case
basis, subject to the condition the total term of such Secretaries or
Directors, as the case may be, who are given such extension in
service under this rule, does not exceed two years. Provided also
that notwithstanding anything contained in the fifth proviso, the
Central Government may, if considers it necessary, in public interest, D
so to do, give an extension in service for a further period not
exceeding three months beyond the said period of two years to
the Home Secretary and the Defence Secretary.”
96. The amended fifth proviso to clause (d) of Rule 56 of the
Fundamental Rules, 1922 has already been reproduced by us in paragraph E
62.
97. It can thus be seen that by virtue of the Amendment the power
which was available with the Central Government to grant extension, if
it considers necessary in public interest so to do, in case of certain
officers, has now been also extended to the Director of CBI appointed F
under the DSPE Act and Director of Enforcement in the ED appointed
under the CVC Act. The second change that has been brought is that
such extension in service does not exceed two years or the period provided
in the respective Act or rules made thereunder, under which their
appointments are made.
G
98. Since we have already held that the amendment to clause (d)
of Section 25 of the CVC Act and to sub-section (1) of Section 4B of
the DSPE Act is not unconstitutional, we see no reason to hold that the
amendment to Fundamental Rules, 1922 is impermissible in law.
Consequently, we are of the considered view that the challenge to validity
H
578 SUPREME COURT REPORTS [2023] 10 S.C.R.
A of Central Vigilance Commission (Amendment) Act, 2021, the Delhi
Special Police Establishment (Amendment) Act, 2021, and the
Fundamental (Amendment) Rules, 2021 fails and the writ petitions at
the behest of the petitioners to that extent are liable to be rejected.
99. That leaves us with the next question, as to whether the
B impugned orders dated 17th November, 2021 and 17th November 2022,
which grant extension for a period of one year each, are valid in law or
not.
100. In the case of Common Cause (2021), what was under
challenge was the order dated 13th November 2020, vide which the
C President of India had approved the modification of the order dated 19th
November 2018, by amending the period of appointment from two years
to three years. As such, in effect, what was under challenged was one
year’s extension granted to the tenure of the second respondent. It was
sought to be urged before this Court that it was not permissible for the
Government to extend the period of tenure beyond two years. In
D paragraph 15, this Court posed the following question for consideration:
“The question that remains to be answered is whether there can
be extension of tenure of a person who has been appointed as a
Director of Enforcement for a period of two years and who has
attained the age of superannuation in the interregnum i.e. before
E the expiry of two years.”
101. In paragraph 20, this Court observed thus:
“20. We have already held that Section 25(f) of the CVC Act has
to be read as the tenure of office of the Director of Enforcement
is for a minimum period of two years. There is no proscription on
F the Government to appoint a Director of Enforcement beyond a
period of two years. The reasons for fixing the tenure for a
minimum period of two years have been discussed in the earlier
paragraphs. We are not in agreement with the submissions made
by the learned Senior Counsel for the Petitioner that extension of
tenure for officers above the rank of Deputy Director of
G
Enforcement provided in sub-Section (f) of Section 25 has to be
read as a bar on the power of the Government to extend tenure of
the Director of Enforcement. As the tenure of appointment of
Director of Enforcement is not a maximum period of two years, a
person can be appointed as Director of Enforcement for a period
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 579
[B. R. GAVAI, J.]
of more than two years. If the Government has the power to A
appoint a person as Director of Enforcement for a period of more
than two years, Section 25 of the CVC Act cannot be said to be
inconsistent with Section 21 of the General Clauses Act. Following
the dictum of this Court in State of Punjab v. Harnek
Singh (supra) in which it was held that General Clauses Act has
B
to be read into all Central Acts unless specifically excluded, we
are of the considered view that the rule of construction embodied
in Section 21 of the General Clauses Act has reference to the
context and subject matter of Section 25 of the CVC Act. The
judgment of the Constitution Bench of this Court in Kamla Prasad
Khetan (supra) is applicable to the facts of this case and the C
judgments relied upon by the Petitioner which are referred to above
do not have any application to the facts of this case.”
102. It could thus clearly be seen that this Court rejected the
contention that the Government does not have a power to extend the
tenure of the Director of Enforcement beyond a period of one year. In D
spite of holding this, this Court specifically observed thus in paragraph
23:
“23. The justification given by the Union of India for extension of
the tenure of second Respondent is that important investigations
are at a crucial stage in trans-border crimes. The decision to extend E
the tenure of the second Respondent is pursuant to the
recommendation made by the high-powered committee. Though
we have upheld the power of the Union of India to extend the
tenure of Director of Enforcement beyond the period of two years,
we should make it clear that extension of tenure granted to officers
who have attained the age of superannuation should be done only F
in rare and exceptional cases. Reasonable period of extension
can be granted to facilitate the completion of ongoing investigations
only after reasons are recorded by the Committee constituted
under Section 25(a) of the CVC Act. Any extension of tenure
granted to persons holding the post of Director of Enforcement G
after attaining the age of superannuation should be for a short
period. We do not intend to interfere with the extension of tenure
of the second Respondent in the instant case for the reason that
his tenure is coming to an end in November, 2021. We make it
H
580 SUPREME COURT REPORTS [2023] 10 S.C.R.
A clear that no further extension shall be granted to the second
Respondent.”
[emphasis supplied]
103. As such, it is clear that this Court issued a specific mandamus
that no further extension shall be granted to the second respondent.
B Undisputedly, the Union of India as well as the respondent No.2- Sanjay
Kumar Mishra in Writ Petition (Civil) No. 456 of 2022 herein were parties
to the said proceedings.
104. A Constitution Bench of learned Seven Judges of this Court
in the case of Madan Mohan Pathak and another v. Union of India
C and others23 was considering the question of constitutional validity of
the Life Insurance Corporation (Modification of Settlement) Act, 1976.
In exercise of power vested under Section 49 of the Life Insurance
Corporation Act, 1956, right from 1959, various settlements were arrived
at between the Life Insurance Corporation (“LIC” for short) and its
employees from time to time in regard to various matters relating to
D
terms and conditions of service of Class III and Class IV employees.
The said settlements were also approved by the Board of the LIC as
also by the Central Government. An Ordinance was promulgated by the
President of India on 25th September 1975, called the Payment of Bonus
(Amendment) Ordinance 1975. Subsequently, the said Ordinance was
E replaced by the Payment of Bonus (Amendment) Act, 1976, which was
brought into force with retrospective effect from the date of the
Ordinance, i.e., 25th September 1975. This amending law considerably
curtailed the rights of the employees to bonus in industrial establishments.
However, it had no impact insofar as the employees of the LIC were
concerned. However, the employees of the LIC were denied the benefits
F which they were entitled to. In these circumstances, the All-India
Insurance Employees’ Association and some others filed writ petition(s)
before the High Court of Calcutta for a writ of mandamus and prohibition
directing the LIC to act in accordance with the terms of the Settlement
dated 24th January 1974 read with the administrative instructions.
G 105. The learned Single Judge of the Calcutta High Court allowed
the writ petition and issued a writ of mandamus and prohibition as prayed
for in the said writ petition. The LIC preferred a Letters Patent Appeal
(“LPA” for short). However, during the pendency of the LPA, on 29th
May, 1976, the Act impugned before this Court was enacted. The effect
23
H (1978) 2 SCC 50
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 581
[B. R. GAVAI, J.]
of the enactment was to annul the benefits which the employees of the A
LIC were entitled to in view of the mandamus issued by the Calcutta
High Court.
106. Bhagwati, J (speaking for himself, Krishna Iyer and Desai,
JJ.) observed thus:
“9. ….We are, therefore, of the view that, in any event, irrespective B
of whether the impugned Act is constitutionally valid or not, the
Life Insurance Corporation is bound to obey the writ of mandamus
issued by the Calcutta High Court and to pay annual cash bonus
for the year April 1, 1975 to March 31, 1976 to Class III and
Class IV employees.” C
107. Beg. C.J. in his concurring judgment observed thus:
“32. I may, however, observe that even though the real object of
the Act may be to set aside the result of the mandamus issued by
the Calcutta High Court, yet, the section does not mention this
object at all. Probably this was so because the jurisdiction of a D
High Court and the effectiveness of its orders derived their force
from Article 226 of the Constitution itself. These could not be
touched by an ordinary act of Parliament. Even if Section 3 of the
Act seeks to take away the basis of the judgment of the Calcutta
High Court, without mentioning it, by enacting what may appear
to be a law, yet, I think that, where the rights of the citizen against E
the State are concerned, we should adopt an interpretation which
upholds those rights. Therefore, according to the interpretation I
prefer to adopt the rights which had passed into those embodied
in a judgment and became the basis of a mandamus from the
High Court could not be taken away in this indirect fashion.” F
108. It could thus be clearly seen that the Constitution Bench of
learned Seven Judges of this Court clearly held that by a subsequent
enactment, the writ of mandamus issued by the Calcutta High Court
crystalizing the rights and liabilities between the parties cannot be
annulled.
G
109. It will also be apposite to refer to the following observation
of the Constitution Bench of this Court in the case of Cauvery Water
Disputes Tribunal, Re. (supra), which reads thus:
“76. The principle which emerges from these authorities is that
the legislature can change the basis on which a decision is given H
582 SUPREME COURT REPORTS [2023] 10 S.C.R.
A by the Court and thus change the law in general, which will affect
a class of persons and events at large. It cannot, however, set
aside an individual decision inter partes and affect their rights and
liabilities alone. Such an act on the part of the legislature amounts
to exercising the judicial power of the State and to functioning as
an appellate court or tribunal.”
B
110. Relying on the aforesaid observation, this Court in the case
of S.R. Bhagwat and others v. State of Mysore24 observed thus:
“12. It is now well settled by a catena of decisions of this Court
that a binding judicial pronouncement between the parties cannot
C be made ineffective with the aid of any legislative power by
enacting a provision which in substance overrules such judgment
and is not in the realm of a legislative enactment which displaces
the basis or foundation of the judgment and uniformly applies to a
class of persons concerned with the entire subject sought to be
covered by such an enactment having retrospective effect. We
D may only refer to two of these judgments.
xxx xxx xxx
xxx xxx xxx
15. We may note at the very outset that in the present case the
High Court had not struck down any legislation which was sought
E
to be re-enacted after removing any defect retrospectively by the
impugned provisions. This is a case where on interpretation of
existing law, the High Court had given certain benefits to the
petitioners. That order of mandamus was sought to be nullified by
the enactment of the impugned provisions in a new statute. This
F in our view would be clearly impermissible legislative exercise.”
111. In the present case also, we may point out that in Common
Cause (2021), this Court had not struck down any law, but had issued a
mandamus which was binding on the parties before it.
112. A similar view has been taken by this Court in the case of
G Medical Council of India v. State of Kerala and others25.
113. Recently, in the case of Madras Bar Association v. Union
of India and another26, a bench of learned three Judges of this Court,
24
(1995) 6 SCC 16
25
(2019) 13 SCC 185
H 26
2021 SCC OnLine SC 463= (2022) 12 SCC 455
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 583
[B. R. GAVAI, J.]
after considering the earlier judgments of this Court on the issue of A
permissibility of legislative override, observed thus:
“50. The permissibility of legislative override in this
country should be in accordance with the principles laid down
by this Court in the aforementioned as well as other judgments,
which have been culled out as under: B
50.1. The effect of the judgments of the Court can be
nullified by a legislative act removing the basis of the judgment.
Such law can be retrospective. Retrospective amendment
should be reasonable and not arbitrary and must not be violative
of the fundamental rights guaranteed under the Constitution. C
[Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197
: 1985 SCC (Tax) 245]
50.2. The test for determining the validity of a validating
legislation is that the judgment pointing out the defect would
not have been passed, if the altered position as sought to be
D
brought in by the validating statute existed before the Court at
the time of rendering its judgment. In other words, the defect
pointed out should have been cured such that the basis of the
judgment pointing out the defect is removed.
50.3. Nullification of mandamus by an enactment would
be impermissible legislative exercise (see : S.R. Bhagwat [S.R. E
Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC
(L&S) 1334] ). Even interim directions cannot be reversed by
a legislative veto (see : Cauvery Water Disputes
Tribunal [Cauvery Water Disputes Tribunal, In re, 1993
Supp (1) SCC 96 (2)] and Medical Council of India v. State F
of Kerala [Medical Council of India v. State of Kerala,
(2019) 13 SCC 185] ).
50.4. Transgression of constitutional limitations and
intrusion into the judicial power by the legislature is violative of
the principle of separation of powers, the rule of law and of
G
Article 14 of the Constitution of India.”
114. It could, thus, clearly be seen that this Court has held that the
effect of the judgments of this court can be nullified by a legislative act
removing the basis of the judgment. It has further been held that such
law can be retrospective. It has, however, been held that retrospective
H
584 SUPREME COURT REPORTS [2023] 10 S.C.R.
A amendment should be reasonable and not arbitrary and must not be
violative of the fundamental rights guaranteed under the Constitution. It
has been held that the defect pointed out should have been cured such
that the basis of the judgment pointing out the defect is removed. This
Court has, however, clearly held that nullification of mandamus by an
enactment would be impermissible legislative exercise. This Court has
B
further held that transgression of constitutional limitations and intrusion
into the judicial power by the legislature is violative of the principle of
separation of powers, the rule of law and of Article 14 of the Constitution
of India.
115. Though it is the contention of the learned Solicitor General
C that the judgment of this Court in Common Cause (2021) was rendered
on the basis of the FR existing then, which now stand altered and the
very foundation of the judgment is taken away, we are unable to accept
the said contention. On the contrary, as could be seen from the judgment
in Common Cause (2021), this Court found that there was no proscription
D on the Government to appoint a Director of Enforcement beyond a period
of two years. This Court, in fact, observed that the Government has a
power to appoint a person as Director of Enforcement for a period of
more than two years. This Court found that Section 25 of the CVC Act
cannot be said to be inconsistent with Section 21 of the General Clauses
Act. It is not, as if, that this Court has held that the Government had no
E power to make an appointment beyond the period of two years. By the
impugned Amendments, the position is clarified, the challenge to which,
we have found to be unsustainable. As such, the contention that the very
foundation on which judgment of this Court in the case of Common
Cause (2021) was based is taken away is without substance.
F 116. As already discussed herein above, this Court has specifically
issued a mandamus that no further extension shall be granted to the
second respondent. The Union of India and the respondent No.2 were
both parties in the proceedings before this Court in Writ Petition (Civil)
No. 1374 of 2020 [Common Cause (2021)]. The mandamus issued to
G be parties was binding on them. We, therefore, find that the respondent
No.1 could not have issued orders dated 17th November 2021 and 17th
November 2022 in breach of the mandamus issued by this Court vide its
judgment dated 8th September 2021 in Common Cause (2021).
117. Insofar as the reliance placed by Shri Raju on the judgment
of this Court in the case of M/s Kishan Lal Lakhmi Chand and others
H
DR. JAYA THAKUR v. UNION OF INDIA & ORS. 585
[B. R. GAVAI, J.]
(supra) is concerned, the said judgment would be of no assistance to the A
case of the respondents. It would be relevant to refer to the following
observations of this Court:
“8. ……However, to a query put by the Court to Shri Salve as to
how Section 11 of the Act could be upheld validating retrospectively
by retaining the fund collected under Act 12 of 1983 with the B
State Government, he stated in fairness that Section 11 was
enacted only to defuse the effect of the writ of mandamus issued
by this Court in Om Prakash case [(1986) 1 SCC 722] to refund
the fee collected therein to the appellants therein, but under its
guise the State did not intend to nor would it intend to retain the
said fund collected under the predecessor Act 12 of 1983 from C
September 30, 1983, the date on which the notification under
Section 5(1) of that Act was published in the State Gazette and
the entire fund would be passed on to the credit of the Board
under the Act. In that view Section 11 also is valid.”
118. As such, it could thus clearly be seen that counsel for the D
State Government in fairness stated that Section 11 was enacted only to
defuse the effect of the writ of mandamus issued by this Court in the
case of Om Prakash Agarwal v. Giri Raj Kishori27 to refund the fee
collected therein to the appellants therein. However, a statement was
made that under its guise the State did not intend to nor would it intend to E
retain the said fund collected under the Act, which was held invalid and
the entire fund would be passed on to the credit of the Board under the
Act. As such, on the basis of the concession made by the learned counsel
that the State did not intend to retain the fund collected and the entire
fund would be passed on to the credit of the Board, this Court did not
interfere with Section 11, which was intended to defuse the writ of F
mandamus. As such, the said judgment cannot be said to be an authority
to hold that by a legislative enactment, a writ of mandamus issued by
this Court could be defused.
119. Though we have held that orders dated 17th November 2021
and 17th November 2022 granting extensions to respondent No.2 are not G
valid in law, we are inclined to take into consideration the concern
expressed by the Union of India with regard to FATF review. We are
further inclined to take into consideration that the process of appointing
the Director of Enforcement is likely to take some time. In that view of
27
(1986) 1 SCC 722 H
586 SUPREME COURT REPORTS [2023] 10 S.C.R.
A the matter, we find that in order to ensure the transition to be smooth in
the larger public interest, it will be appropriate to permit respondent No.2
to continue to be in office till 31st of July 2023.
120. Before we part with the judgment, we place on record our
deep appreciation for the assistance rendered by the learned Amicus
B Curiae Shri K.V. Viswanathan (as His Lordship then was), Shri Tushar
Mehta, learned Solicitor General, Shri S.V. Raju, learned Additional
Solicitor General, Mr. Anoop G. Choudhary, Mr. Gopal Sankarnarayanan,
Dr. Abhishek Manu Singhvi, learned Senior Counsel, and Mr. Prashan
Bhushan, Mr. J.S. Sinha, Mr. Sharangowda, and Ms. Vanshaja Shukla,
learned counsel. We also place on record our appreciation for the valuable
C assistance rendered by Mr. Ravi Raghunath, learned Advocate-on-
Record, who ably assisted the learned Amicus Curiae.
121. In the result, we pass the following order:
(i) The challenge to Central Vigilance Commission
(Amendment) Act, 2021 and the Delhi Special Police
D
Establishment (Amendment) Act, 2021 as well as to the
Fundamental (Amendment) Rules, 2021 is rejected and the
writ petitions are dismissed to that extent.
(ii) The impugned orders dated 17th November 2021 and 17th
November 2022 granting extensions to the tenure of the
E respondent No.2- Sanjay Kumar Mishra for a period of
one year each are held to be illegal. The writ petitions are
partly allowed to that extent.
(iii) However, the respondent No.2- Sanjay Kumar Mishra is
permitted to continue to hold office till 31st July, 2023.
F 122. All the writ petitions as well as Miscellaneous Application
including all pending applications, if any, shall stand disposed of in the
above terms. No order as to costs.
Bibhuti Bhushan Bose Petitions disposed of.
G (Assisted by : Rahul Rathi, LCRA)
H
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