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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 Directorof CBI /Director of Enforcement – Extension of tenure – Validity ofCentral Vigilance Commission (Amendment) Act, 2021 (whereby twonew provisos were inserted to s.25(d) of the Central VigilanceCommission Act), the Delhi Special Police Establishment(Amendment) Act, 2021 (whereby two new provisos were inserted tos.4B(1) of the Delhi Special Police Establishment Act, 1946) andthe Fundamental (Amendment) Rules, 2021 (whereby the fifth provisoto F.R. 56(d) was substituted by a new proviso) – Challenge to –Held: The argument that the impugned Amendments grant arbitrarypower to the Government to extend the tenure of the Director ofED/CBI and has the effect of wiping out the insulation of theseoffices from extraneous pressures, is not tenable – It is not at thesweet-will of the Government that the extensions can be granted tothe incumbents in the office of the Director of CBI /Director ofEnforcement – What has been directed by this Court in the case ofVineet Narain and in subsequent judgments relied on by thepetitioners is that such Director should have a minimum tenure oftwo years irrespective of their date of superannuation – By theimpugned Amendments, the said period is not tinkered with – Whathas been done is only a power is given to extend their period for aperiod of one year at a time, subject to a maximum number of threesuch extensions – However, this has to be done only when theCommittee which is constituted to recommend their appointment findsit necessary, in public interest, to grant such extension – It is furtherrequired to record the reasons in writing for the said purpose –When a Committee can be trusted with regard to recommending theirinitial appointment, there is no reason as to why such Committeescannot be trusted to consider as to whether the extension is required to be given in public interest or not – Challenge to validity of CentralVigilance Commission (Amendment) Act, 2021, the Delhi SpecialPolice Establishment (Amendment) Act, 2021, and the Fundamental(Amendment) Rules, 2021 not tenable.Mandamus – Nullification of, by enactment – Issue of legislativeoverride – Intrusion into judicial power by the legislature –Incumbents in the office of the Director of CBI /Director ofEnforcement – Extension of tenure – Whether the impugned ordersdated 17th November, 2021 and 17th November 2022, which grantedextensions to the tenure of respondent no.2-Director of Enforcementfor a period of one year each, were not valid in light of the specificmandamus 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 alegislative act removing the basis of the judgment – Such law canbe retrospective – However, retrospective amendment should bereasonable and not arbitrary and must not be violative of thefundamental rights guaranteed under the Constitution – Defectpointed out should be cured such that the basis of the judgmentpointing out the defect is removed – Nullification of mandamus byan enactment, however, would be impermissible legislative exercise– Transgression of constitutional limitations and intrusion into thejudicial power by the legislature is violative of the principle ofseparation of powers, the rule of law and of Art.14 of the Constitution– In the case of Common Cause (2021), this Court had specificallyissued a mandamus that no further extension shall be granted torespondent no.2 – The Union of India and respondent No.2 wereboth 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 17thNovember 2021 and 17th November 2022 (granting extensions tothe tenure of respondent No.2 for a period of one year each) inbreach of the mandamus issued by this Court in Common Cause(2021) – The impugned orders dated 17th November 2021 and 17thNovember 2022 are accordingly illegal – However, on facts, in thelarger public interest, respondent No.2 permitted to continue in officetill 31st July, 2023 – Constitution of India – Art. 14 – Service Law.Judicial review – Scope of, in examining legislative functionsof the Legislature – Role of the judiciary – Held: Judicial review is a powerful weapon to restrain unconstitutional exercise of powerby the legislature and executive – The role of the Court is limited toexamine as to whether the Legislature or the Executive has actedwithin the powers and functions assigned under the Constitution –However, while doing so, the Court must remain within its selfimposedlimits.Judicial review – Of Legislative enactment – Scope – Held:Statute enacted by Parliament or a State Legislature cannot bedeclared unconstitutional lightly – Unless there is flagrant violationof the constitutional provisions, the law made by Parliament or aState Legislature cannot be declared bad – Legislative enactmentcan be struck down only on two grounds – Firstly, that the appropriatelegislature does not have the competence to make the law; andsecondly, that it takes away or abridges any of the fundamentalrights enumerated in Part III of the Constitution or any otherconstitutional provisions – No enactment can be struck down byjust saying that it is arbitrary or unreasonable – Some or the otherconstitutional infirmity has to be found before invalidating an Act –Parliament and the legislatures, composed as they are of therepresentatives of the people, are supposed to know and be awareof the needs of the people and what is good and bad for them – Thecourt cannot sit in judgment over their wisdom – Constitution ofIndia – Part III. |
