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TMI Blog2023 (7) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice 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. 2021 SCC OnLine SC 687 ] 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Acts and/or the Office Order dated 17th November 2021, Writ Petition (Civil) Nos. 14 of 2022, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent 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 another 2021 SCC OnLine SC 463= (2022) 12 SCC 455 , 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 another (1998) 1 SCC 226 , Prakash Singh and others v. Union of India and others (Prakash Singh-1) (2006) 8 SCC 1 (Prakash Singh-1) , Prakash Singh and others v. Union of India(Prakash Singh-2) (2019) 4 SCC 14 (Prakash Singh-2) and Praka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dras 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 Shri Prithvi Cotton Mills Ltd. and another v. Broach Borough Municipality and others (1969) 2 SCC 283 , Bhaktawar Trust and others v. M.D. Narayan and others (2003) 5 SCC 298 , Cauvery Water Disputes Tribunal, Re 1993 Supp (1) SCC 96 and Madras Bar Association v. Union of India and another 2021 SCC OnLine SC 463 , 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 chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government- Member (v) Secretary to the Government of Indiain- charge of the Department of Revenue, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021) 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 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 when the Common Cause (2021) judgment was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 others 1993 Supp (4) SCC 461 , 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 others (2003) 9 SCC 358 , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Review Committee (IRC) of the need for insulation of the CBI from 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 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: I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (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 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 the CBI. 12. The CBI Manual based on statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor 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. 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 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. 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 of Enforcement. 12. The Annual Report of the Department of Revenue shall contain a detailed account on the working of the Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, 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. (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 (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 (d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (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 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 (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. (3) The Committee shall recommend a panel of offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic 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: 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: 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 total term of such Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges of this Court in the case of Asif Hameed and others v. State of Jammu and Kashmir and others 1989 Supp (2) SCC 364 observed 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 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 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 nonetheless it has power to ensure that the aforesaid two main organs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not an Appellate Authority. 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. 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 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. 69. Recently, this Court in the case of Binoy Viswam v. Union of India and others (2017) 7 SCC 59 , 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 review that are available to adjudge the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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, 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 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) 15. The courts, it is accepted, must presume that 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle that presumption was always in favour of constitutionality of an enactment. *** 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 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, (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepts inspired by the decisions of United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have 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 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. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by subclauses (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was so recognised 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 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. As pointed out in the above extract, even in United States the doctrine is 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional provisions. If that is not achievable then the enquiry enters the third stage. If the offending portion of the 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 . 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 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. 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 undert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrowing 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 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 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. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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. 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 has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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. 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 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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: 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 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, 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 Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 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 of more than two years. 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. Following the dictum of this Court in State of Punjab v. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and others (1978) 2 SCC 50 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 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 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 industr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a mandamus from the High Court could not be taken away in this indirect fashion. 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. 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 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. 110. Relying on the aforesaid observation, this Court in the case of S.R. Bhagwat and others v. State of Mysore (1995) 6 SCC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. 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 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 Article 14 of the Constitution of India. 114. It could, thus, clearly be seen that this Court has held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to 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 (supra) is concerned, the said judgment would be of no assistance to the 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 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 September 30, 1983, the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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