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 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 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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