# DR. JAYA THAKUR v. UNION OF INDIA & ORS

- **Citation:** 2023 INSC 616
- **Court:** Supreme Court of India
- **Decided:** 2023-07-11
- **Bench:** B. R. Gavai, Vikram Nath, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-jaya-thakur-v-union-of-india-ors-36334
- **Pages:** 54

## Headnote

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
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
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
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
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
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
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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
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
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
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
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
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 issu

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[2023] 10 S.C.R. 533 : 2023 INSC 616
533
DR. JAYA THAKUR
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 456 of 2022)
JULY 11, 2023
[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
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
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
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
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
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
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[2023] 10 S.C.R.
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
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
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
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
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
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
(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
of the Legislature - Role of the judiciary - Held: Judicial review is
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a powerful weapon to restrain unconstitutional exercise of power
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 selfimposed limits.
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
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
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.
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;
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
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
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
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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
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
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
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
(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
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
(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
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(2021) 3 SCC 1
referred to
Para 24
[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
[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
[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
[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.
(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)
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
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
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
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SUPREME COURT REPORTS
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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. 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
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.
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
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
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
for quashing of the order dated 13th 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").
1 2021 SCC OnLine SC 687
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6. This Court though dismissed the said Writ Petition (Civil) No.
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,
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
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.
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.
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
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
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,
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
[B. R. GAVAI, J.]
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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
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.
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
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
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
(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
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
paragraph 23 of the judgment in the case of Common Cause (2021),
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though has upheld the power of the Union of India to extend the tenure
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
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.
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".
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
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.
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
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)
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
[B. R. GAVAI, J.]
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[2023] 10 S.C.R.
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
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
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
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
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
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
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
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the ED is concerned, the Director of Enforcement was to be selected
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
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.
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
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
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
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
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
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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.
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 disappointment amongst the other officers, lower down in the ladder whose
only aspiration in their official career would be to reach to the top most
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
including the ones in the case of ShriPrithvi Cotton Mills Ltd. and
another v. Broach Borough Municipality and others11, Bhaktawar
Trust and others v. M.D. Narayan and others12, Cauvery Water
Disputes Tribunal, Re13 and Madras Bar Association v. Union of
India and another14,submits that though it is permissible for the
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
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
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 2021 SCC OnLine SC 463
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that the impugned Amendments, if permitted to remain, would lead to 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.
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
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
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.
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
(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
in-charge of the Ministry of
Personnel in the Central Government- Member
(v)
Secretary to the Government of Indiain-charge of the Department of Revenue,
DR. JAYA THAKUR v. UNION OF INDIA & ORS.
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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
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
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
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.
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
(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
that House.
-
Member
(c) the Chief Justice of India or
Judge of the Supreme Court
nominated by him
-
Member
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38. Learned SG further submitted that the extension can be granted
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
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
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
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
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
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
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
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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
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
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
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
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
said evaluation is done by a team including members from different
countries across the world. A mutual evaluation report provides an indepth 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
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
the last so many years, it was found necessary that for effective
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presentation of the efforts made by the country, he should be continued
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
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
"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
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
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:
(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
(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
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(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?
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
of inertia by the CBI in matters where the accusation made was against
high dignitaries.