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2023 (7) TMI 471 - SC - Indian LawsConstitutional Validity of 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 - extensions granted to the tenure of the respondent No.2 as Director of Enforcement for a period of one year are legal and valid or not. HELD 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 of not less than two years from the date on which he assumes office - 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 of the Committee referred to in subsection (1) of Section 4A. 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. 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. The role of the judiciary is to ensure that the two organs of the State i.e. the Legislature and the 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. In ASHOK KUMAR THAKUR VERSUS UNION OF INDIA ORS 2008 (4) TMI 775 - SUPREME COURT , 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 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. It has been the consistent view of this Court that 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. 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 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. It could thus be seen that the challenge to the legislative Act would be sustainable only if it is established that the legislature concerned 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 Court is that the validity of the legislative act can be challenged on the ground of manifest arbitrariness - In the present case, it is nobody s case that Parliament did not have power to enact on the subject on which the aforesaid Amendments have been enacted. As such, the said ground is not available to the petitioners. Violation of fundamental rights stipulated in Part III of the Constitution or any other provision of the Constitution or not - HELD THAT - 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 NARAIN ORS. VERSUS UNION OF INDIA 1997 (12) TMI 615 - SUPREME COURT 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 the Vigilance Commissioners - 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 and consisting of Central Vigilance Commissioner as well as Vigilance Commissioners. 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 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 - the arguments 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, cannot be accepted. Whether the 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? - HELD THAT - 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 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 - the impugned orders dated 17th November 2021 and 17th November 2022 granting extensions to the tenure of the 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. Petition disposed off.
Issues Involved:
1. Validity of Amendments: Challenge to the Central Vigilance Commission (Amendment) Act, 2021, Delhi Special Police Establishment (Amendment) Act, 2021, and Fundamental (Amendment) Rules, 2021. 2. Legality of Extensions: Validity of the extensions granted to the tenure of the respondent No.2 as Director of Enforcement. Summary: 1. Validity of Amendments: The Court examined whether the amendments to Section 25 of the CVC Act, Section 4B of the DSPE Act, and Rule 56 of the Fundamental Rules, 1922, were ultra vires and should be set aside. The amendments allowed the extension of the tenure of the Director of Enforcement and Director of CBI for one year at a time, up to a maximum of five years, based on the recommendation of a high-level committee. The Court held that these amendments did not grant arbitrary power to the Government and did not violate any constitutional provisions. The amendments were found to be consistent with the principles laid down in Vineet Narain's case, aiming to insulate these offices from extraneous pressures. Therefore, the challenge to the amendments was rejected. 2. Legality of Extensions: The Court assessed the validity of the orders dated 17th November 2021 and 17th November 2022, which extended the tenure of respondent No.2, Sanjay Kumar Mishra, as Director of Enforcement for one year each. The Court noted that in the Common Cause (2021) judgment, a specific mandamus was issued that no further extension should be granted to respondent No.2. The Court held that the extensions granted to respondent No.2 were in breach of this mandamus and thus illegal. However, considering the FATF review and the transition period, the Court allowed respondent No.2 to continue in office until 31st July 2023. Conclusion: The Court upheld the validity of the Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021, and the Fundamental (Amendment) Rules, 2021. However, it declared the extensions granted to respondent No.2 as illegal, permitting him to continue in office only until 31st July 2023.
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