2023 Supreme(SC) 625

SUPREME COURT OF INDIA
B.R. GAVAI, VIKRAM NATH, SANJAY KAROL, JJ.
Dr. Jaya Thakur – Petitioner
Versus
Union of India and Others – Respondents
Writ Petition (Civil) Nos. 14, 274, 456, 786, 1106 of 2022, Writ Petition (Civil) Nos. 1271, 1272, 1274, 1307, 1330 of 2021, Writ Petition (Civil) No. 1374 of 2020, M.A. No. 1756 of 2022
Decided On : 11-07-2023

IMPORTANT POINTS
(1) No enactment can be struck down by just saying that it is arbitrary or unreasonable – If two views are possible, one making the statute constitutional and other making it unconstitutional, former view must always be preferred.
(2) Nullification of mandamus by an enactment would be impermissible legislative exercise. Transgression of constitutional limitations and intrusion into judicial power by legislature is violative of principle of separation of powers, rule of law and of Article 14 of Constitution of India.
(3) Challenge to Central Vigilance Commission (Amendment) Act, 2021 and Delhi Special Police Establishment (Amendment) Act, 2021 as well as to Fundamental (Amendment) Rules, 2021 rejected. Orders dated 17th November 2021 and 17th November 2022 granting extensions to tenure of Director of Enforcement for a period of one year each held to be illegal. However, Director of Enforcement permitted to continue to hold office till 31st July, 2023.

Headnote:

(A) Statute Law – Constitutionality of Statute – Whether amendment to Section 25 of Central Vigilance Commission Act, 2003 by Central Vigilance Commission (Amendment) Act, 2021 and to sub-section (1) of Section 4B of Delhi Special Police Establishment Act, 1946 by Delhi Special Police Establishment (Amendment) Act, 2021 and amendment in clause (d) of Rule 56 of Fundamental Rules, 1922 by Fundamental (Amendment) Rules, 2021 are liable to be held ultra vires – Legislative enactment can be struck down only on two grounds – Firstly, that appropriate legislature does not have competence to make law – Secondly, that it takes away or abridges any of fundamental rights enumerated in Part III of Constitution or any other constitutional provisions – No enactment can be struck down by just saying that it is arbitrary or unreasonable – If two views are possible, one making the statute constitutional and other making it unconstitutional, former view must always be preferred – There is always a presumption in favour of constitutionality and a law will not be declared unconstitutional unless case is so clear as to be free from doubt – It is nobody’s case that Parliament did not have power to enact on the subject on which the Amendments have been enacted – Challenge to Central Vigilance Commission (Amendment) Act, 2021 and Delhi Special Police Establishment (Amendment) Act, 2021 as well as to Fundamental (Amendment) Rules, 2021 rejected. (Paras 71, 72, 73, 74 and 121)

(B) Central Vigilance Commission Act, 2003 – Section 25 – Delhi Special Police Establishment Act, 1946 – Section 4B – Appointment of Director of Enforcement – Extension of tenure – Committee which recommends appointment of Director of Enforcement consists of Central Vigilance Commissioner as well as Vigilance Commissioner – Similarly, appointment of Director of CBI is to be made only after a candidate is recommended by Committee consisting of Prime Minister, Leader of Opposition and Chief Justice of India or Judge of Supreme Court nominated by him – Period for which 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 recommendation of Committee which is constituted for their appointments – it is not at sweet-will of Government that extensions can be granted to incumbents in office of Director of CBI/Director of Enforcement – It is only on the basis of recommendations of Committees which are constituted to recommend their appointment and that too when it is found in public interest and when reasons are recorded in writing, such extension can be granted by Government – Impugned orders dated 17th November 2021 and 17th November 2022 granting extensions to tenure of respondent No. 2 for a period of one year each held to be illegal. (Paras 75, 83, 86, 90, 91 and 121)

Facts of the case:

Present batch of writ petitions seeks a writ, order or directions in nature of Certiorari for quashing of order dated 17th November 2021 passed by respondent No. 1-Union of India for further extension of tenure of respondent No. 2-Sanjay Kumar Mishra. In Writ Petition (Civil) No. 1106 of 2022, a further extension granted to respondent No. 2 vide order dated 17th November 2022 has also been challenged. All these petitions also challenge validity of Central Vigilance Commission (Amendment) Act, 2021, Delhi Special Police Establishment (Amendment) Act, 2021 and Fundamental (Amendment) Rules, 2021.

Findings of Court:

Process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, in order to ensure transition to be smooth in the larger public interest, it will be appropriate to permit respondent No. 2 to continue to be in office till 31st of July 2023.

Result : Writ Petitions Partly allowed.