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 19 November 2018. ] was filed on 27 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 13 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”). On 14 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. Challenging the vires of the Amendment Ordinances and/or the Fundamental (Amendment) Rules, 2021 and/or the said Office Order dated 17 November 2021, Writ Petition (Civil) Nos. That during the pendency of the said writ petitions, vide order dated 17 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. Choudhary, learned Senior Counsel appearing on behalf of the petitioner in Writ Petition (Civil) 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 8 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.
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Gopal Sankarnarayanan submits that this Court in paragraph 23 of the judgment in the case of Common Cause (2021), 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. Union of India (Prakash Singh-1), Prakash Singh and others v. Union of India(Prakash Singh-2) and Prakash Singh and others v. Per contra, if the incumbent in the office does not perform as per the wishes of the authority, he would be denied an extension. Viswanathan, learned Amicus, submitted that this Court in the case of Vineet Narain (supra) has approved the recommendations of the Independent Review Committee. 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. 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 further relying on the judgment of this Court in the case of Rojer Mathew v. 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. 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. 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.
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. 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 21 ground. 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. Union of India and another submits 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. 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 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 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 since the present incumbent is at the helm of affairs for the last so many years, it was found necessary that for effective 27 presentation of the efforts made by the country, he should be continued till the process of evaluation is complete. He submits that in view of the judgment of this Court in the case of M/s Kishan Lal Lakhmi Chand and others v. (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 17 November 2021 and 17 November 2022 are legal and valid, and if not, whether liable to be set aside? However, as the case progressed, the 30 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? The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.” 50.
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 the CBI’s functioning.
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 (Personnel) as members. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. 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 (Personnel) with the Director, CBI providing the necessary inputs. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision. 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.
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. The Director, Enforcement Directorate shall monitor and ensure speedy completion of investigations/adjudications and launching of prosecutions. 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. Section 4 of the CVC Act deals with 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: Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a 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. 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 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. (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 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 misbehaviour.” 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,— ( a ) the Central Government shall appoint a Director of Enforcement in the Directorate of Enforcement in the Ministry of Finance on the 43 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 India in charge of the Department of Revenue, Ministry of Finance in the Central Government — Member; ( 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 appointment as a Director of Enforcement; 44 ( d ) a Director of Enforcement shall continue to hold office for a period of not less than Committee for appointment of Director.—(1) The Central Government shall appoint the Director on the 45 recommendation of the Committee consisting of— ( a ) The Central Vigilance Commissioner — Chairperson; ( b ) Vigilance Commissioners — Members; ( c ) Secretary to the Government of India in charge of the Ministry of Home Affairs in the Central Government — Member; ( d ) Secretary (Coordination and Public Grievances) in the Cabinet Secretariat — Member; (2) While making any recommendation under sub-section (1), the Committee shall take into consideration the views of the outgoing Director.
Terms and conditions of service of Director.—(1) The 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. 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: “Provided that the period for which the Director holds the office on his initial appointment may, in public interest, on the 48 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: 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.
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Similarly, in clause (d) of rule 56 of the Fundamental Rules, 1922, the fifth proviso has also been substituted, which is as under: “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 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 49 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 or the period provided in the respective Act or rules made thereunder, under which their appointments are made.” 63. 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 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.
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 of their tenure. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. 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.
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, the court must strike down the action. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.” It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. With this, we advert to the discussion on the grounds of judicial review that are available to adjudge the validity of a piece of legislation passed by the legislature. This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, 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. 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.
Hanif Quareshi [ Mohd. It stated in para 58 15 of the Report as under : (AIR pp. Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735], inter alia, while referring to the earlier two decisions, namely, Bengal 59 Immunity Co. State of Bihar, AIR 1955 SC 661] and Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735], AIR p. Union of India, 1950 SCC 833 : AIR 1951 SC 41 : 1950 SCR 869] and State of Bombay v. 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.
, (1980) 1 SCC 223 : 1980 SCC (Tax) 90], R.K. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and State of W.B. Union of India, (2008) 6 SCC 1 : 3 SCEC 35], this Court made the following pertinent observations : (SCC p. Union of India, (1977) 3 SCC 592] said : (SCC p. … A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz.
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 64 clause/equal protection clause therein. No enactment can be struck down by just saying that it is arbitrary [ An expression used widely and rather indiscriminately — an expression of inherently imprecise import. of State for the Home Deptt., ex p Brind, (1991) 1 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)], AC at pp. , (1996) 3 SCC 709] it 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 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. 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. 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). However, while undertaking substantive judicial review, if it is found that the impugned provision appears to be violative of fundamental rights or other constitutional rights, the Court reaches the second stage of review. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where 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. It has been held that unless there is flagrant violation of the constitutional provisions, 71 the law made by Parliament or a State Legislature cannot be declared bad. It has been held by this Court that there is one and only one 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 72 of the Constitution in so evident a manner as to leave no manner of 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. 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. It is sought to be urged that the aforesaid Amendments would defeat the directive issued by this court to have a fixed 74 tenure of the Director of CBI/Director of Enforcement and permit a ‘carrot and stick’ policy to be adopted by the Executive.
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 Home Affairs (Member); and (c) the Leader of the Opposition in the House of the People (Member) recommends for the same. 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 77 be removed. 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 78 consisting of Central Vigilance Commissioner as well as Vigilance Commissioners. It is to be noted that insofar as the appointment of the Director of CBI is concerned, this Court in the case of Vineet 79 Narain (supra) had directed that the recommendations were to be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as Members. 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. 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.
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. When a committee can be trusted with regard to recommending their initial appointment, we see 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. Provided also that notwithstanding anything contained in the fifth proviso, the Central Government may, if considers it necessary, in public interest, 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.” 84 96. 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. In 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. 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 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.
If the Government has the power to 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.
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 in rare and exceptional cases. As such, it is clear that this Court issued a specific mandamus that no further extension shall be granted to the second respondent.
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Subsequently, the said Ordinance was 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., 25 September 1975. ….We are, therefore, of the view that, in any event, irrespective 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.” 107.
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 the State are concerned, we should adopt an interpretation which upholds those rights.
Case Title: DR. JAYA THAKUR Vs. UNION OF INDIA (2023 INSC 616)
Case Number: W.P.(C) No.-000456 / 2022
