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.

SUPREME COURT OF INDIA

FULL BENCH

DR. JAYA THAKUR — Appellant

Vs.

UNION OF INDIA & OTHERS — Respondent

( Before : B.R. Gavai, Vikram Nath and Sanjay Karol, JJ. )

Writ Petition (Civil) No.456 of 2022 with Writ Petition (Civil) No. 1271 of 2021; Writ Petition (Civil) No.1274 of 2021; Writ Petition (Civil) No.1272 of 2021; Writ Petition (Civil) No.1307 of 2021; Writ Petition (Civil) No.1330 of 2021; Writ Petition (Civil) No.14 of 2022; Writ Petition (Civil) No.274 of 2022; Writ Petition (Civil) No.786 of 2022; M.A. No. 1756 of 2022 In Writ Petition (Civil) No.1374 of 2020 and Writ Petition (Civil) No.1106 of 2022

Decided on : 11-07-2023

A. Central Vigilance Commission Act, 2003 – Section 25(d) – Delhi Special Police Establishment Act, 1946 – Section 4B(1) – 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.

B. Central Vigilance Commission Act, 2003 – Section 25 – General Clauses Act, 1897 – Section 21 – Appointment of Director of Enforcement – Extension – 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.

C. Central Vigilance Commission Act, 2003 – Section 25 – General Clauses Act, 1897 – Section 21 – Appointment of Director of Enforcement – Extension – 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. (See : Common Cause (A Registered Society) vs. Union of India and Others : Docid # IndLawLib/1600372 )

Counsel for Appearing Parties

Mr. Tushar Mehta, Solicitor General, Mr. S.V. Raju,A.S.G., Mr. Zoheb Hossain, Advocate, Mr. Kanu Agrawal, Advocate, Mr. Udai Khanna, Advocate, Mr. Mayank Pandey, Advocate, Mr. Adit Khorana, Advocate, Mr. Mukesh Kumar Maroria, Advocate, Mr. Arvind Kumar Sharma, Advocate, Mr. Gopal Sankarnarayanan, Sr. Advocate, Mr. Shrutanjaya Bhardwaj, Advocate, Ms. Tanya Srivastava, Advocate, Ms. Nupur Kumar, Advocate, Mr. Anup G. Choudhary, Sr. Advocate, Mr. Varun Thakur, Advocate, Mr. Ramkaran, Advocate, Mr. Varinder Kumar Sharma, Advocate, Mr. Abishek Manu Singhvi, Sr. Advocate, Mr. Muhammad Ali Khan, Advocate, Mr. Omar Hoda, Advocate, Mr. Abishek Jebaraj, Advocate, Ms. Eesha Bakshi, Advocate, Mr. Uday Bhatia, Advocate, Mr. Kamran Khan, Advocate, Ms. A. Reyna Shruti, Advocate, Mr. Ravi Raghunath, Advocate, Mr. Prashant Bhushan, Advocate, Ms. Alice Raj, Advocate, Mr. Braj Kishore Mishra, Advocate, Mr. Sarim Naved, Advocate, Mr. Aakarsh Kamra, Advocate, Mr. Muhammad Ali Khan, Advocate, Mr. Omar Hoda, Advocate, Mr. Abishek Jebaraj, Advocate, Ms. Eesha Bakshi, Advocate, Mr. Uday Bhatia, Advocate, Mr. Kamran Khan, Advocate, Ms. A. Reyna Shruti, Advocate, Petitioner-in-person, Mr. Vishal Jogdand, Advocate, Mr. Sharangouda Patil, Advocate, Mr. Randhir Kumar Ojha, Advocate and Ms. Vanshaja Shukla, Advocate, for the Appearing Parties.

Cases Referred

• A.S. Krishna v. State of Madras, AIR 1957 SC 297 : 1957 Cri LJ 409
• Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216
• Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 : 3 SCEC 35
• Asif Hameed and others v. State of Jammu and Kashmir and others, 1989 Supp (2) SCC 364
• Beghar Foundation through its Secretary and another v. Justice K. S. Puttaswamy (Retired) and others, (2021) 3 SCC 1
• Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661
• Bhaktawar Trust and others v. M.D. Narayan and others, (2003) 5 SCC 298
• Binoy Viswam v. Union of India and others, (2017) 7 SCC 59
• Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96
• Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41 : 1950 SCR 869
• Common Cause (A Registered Society) v. Union of India & Ors., 2021 SCC OnLine SC 687
• Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)
• Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90
• Goa Foundation and another v. State of Goa and another, (2016) 6 SCC 602
• Gopal Narain v. State of U.P., AIR 1964 SC 370
• Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 : 1960 Cri LJ 735
• Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943)
• Indian Aluminium Co. and others v. State of Kerala and others, (1996) 7 SCC 637
• K. T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414
• K.S. Puttaswamy (Retired) and another (Aadhar) v. Union of India and another, (2019) 1 SCC 1
• Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245
• M/s Kishan Lal Lakhmi Chand and others v. State of Haryana and others, 1993 Supp (4) SCC 461
• Madan Mohan Pathak and another v. Union of India and others, (1978) 2 SCC 50
• Madras Bar Association v. Union of India and another, (2014) 10 SCC 1
• Madras Bar Association v. Union of India and another, 2021 SCC OnLine SC 463= (2022) 12 SCC 455
• Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942
• Medical Council of India v. State of Kerala and others, (1995) 6 SCC 16
• Medical Council of India v. State of Kerala, (2019) 13 SCC 185
• Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731
• Om Prakash Agarwal v. Giri Raj Kishori, (1986) 1 SCC 722
• Prakash Singh and others v. Union of India and others (Prakash Singh-1), (2006) 8 SCC 1
• Prakash Singh and others v. Union of India and others(Prakash Singh-3), (2019) 4 SCC 1
• Prakash Singh and others v. Union of India(Prakash Singh-2), (2019) 4 SCC 14
• R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)
• R.K. Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30
• Rajbala v. State of Haryana, (2016) 2 SCC 445
• Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and others, (2020) 6 SCC 1
• S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC (L&S) 1334
• Shri Prithvi Cotton Mills Ltd. and another v. Broach Borough Municipality and others, (1969) 2 SCC 283
• State of A.P. v. McDowell & Co., (1996) 3 SCC 709
• State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318 : (1951) 52 Cri LJ 1361
• State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481
• State of Rajasthan v. Union of India, (1977) 3 SCC 592
• State of W.B. v. E.I.T.A. India Ltd., (2003) 5 SCC 239
• Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589
• Trop v. Dulles [356 US 86]
• V. Sasitharan & Ors. v. The Government of Tamil Nadu & Ors., 1995 SCC OnLine Mad 592
• Vineet Narain and others v. Union of India and another, (1998) 1 SCC 226
• Welfare Association, A.R.P., Maharashtra and another v. Ranjit P. Gohil and others, (2003) 9 SCC 358

JUDGMENT

B.R. Gavai, J. – This batch of writ petitions seeks a writ, order or directions in the nature of certiorari for quashing of order dated 17th November 2021 passed by the respondent No.1 for further extension of tenure of the respondent No.2. 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 the validity of Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police 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 order dated 13th 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”).

6. This Court though dismissed the said Writ Petition (Civil) No. 1374 of 2020 [Common Cause (A Registered Society) v. Union of India & Ors.] vide judgment and order dated 8th September 2021 [hereinafter referred to as “Common Cause (2021)” ], yet directed that no further extension shall be granted to the respondent No. 2.

7. On 14th 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. Simultaneously, the President of India also promulgated the Delhi Special Police Establishment (Amendment) Ordinance 2021, thereby inserting two new provisos to Section 4B(1) of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as “the DSPE Act”).

8. On 15th November 2021, the Fundamental Rules, 1922 was amended by the Fundamental (Amendment) Rules, 2021, whereby the fifth proviso to F.R. 56(d) was substituted by a new proviso.

9. On 15th November 2021 itself, a meeting of the Committee headed by the Central Vigilance Commissioner was held to consider the proposal for extension of the tenure of the respondent No.2. The Committee decided to extend the tenure of the respondent No.2 as Director of Enforcement for a period of one year i.e. upto 18th November 2022 in public interest.

10. Vide Office Order No.238 of 2021 dated 17th November 2021, the tenure of the respondent No.2 was extended for a period of one year beyond 18th November 2021 i.e. upto 18th November 2022 or until further orders, whichever was earlier.

11. Challenging the vires of the Amendment Ordinances and / or the Fundamental (Amendment) Rules, 2021 and/or the said Office Order dated 17th November 2021, Writ Petition (Civil) Nos. 1307 of 2021, 1272 of 2021, 1274 of 2021, 1330 of 2021 and 1271 of 2021 came to be filed before this Court.

12. On 18th December 2021, Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021.

13. Challenging the vires of the Amendment 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 Shukla, learned counsel appearing on behalf of the respondent No.3 in M.A. No.1756 of 2022.

16. Mr. Anoop G. Choudhary, learned Senior Counsel appearing on behalf of the petitioner in Writ Petition (Civil) No. 456 of 2022 and Writ Petition (Civil) No.1106 of 2022 submits that any action which nullifies the effect of the order of this Court dated 8th September 2021 is not permissible in law.

17. Mr. Choudhary further submits that the respondent No.2 was also a party to the judgment of this Court in the case of Common Cause (2021). He submits that, as such, the direction of this Court that no further extension should be granted to the respondent No.2 is binding on him as well as the Union of India. 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 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.

18. Mr. 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. He submits that this Court has specifically stated that any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. It is submitted that all these directions issued by this Court have been annulled by the respondent No.1-Union of India. He submits that though the respondent No.2 was initially appointed for a period of 2 years, by virtue of extensions granted, he will continue for a period of 5 years.

19. Mr. Sankarnarayanan further submits that the words that have been used by this Court are, “to facilitate the completion of on-going investigations” and “in rare and exceptional cases”. However, ignoring those words, extension is being given to the respondent 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 Prakash Singh and others v. Union of India and others(Prakash Singh-3), (2019) 4 SCC 1 [Prakash Singh-3) has consistently held that the tenure of the high-ranking officials like the Director of Enforcement, the Director of CBI and the Director General of Police should be for a fixed period of two years in order to insulate such an officer from extraneous pressures and enable him to work independently and freely. It is submitted that the very provision which permits the authority to grant extension is contradictory to the requirement of insulation. An incumbent if he performs as per the wishes of the authority, he would get an extension. Per contra, if the incumbent in the office does not perform as per the wishes of the authority, he would be denied an extension. It is submitted that as such, the very independence of such an officer would be taken away. It is, therefore, submitted that the insulation provided to the said offices from extraneous pressures is taken away. The learned counsel, therefore, submits that both the Amendments need to be quashed and set aside. So also, the extension granted to the respondent No.2 needs to be set aside.

22. Mr. Sharangowda, learned counsel appearing on behalf of the petitioner in Writ Petition (Civil) no. 274 of 2022 submits that the vigilance clearance is also required at the stage of extension. He submits that in the present case no such vigilance clearance has been done and as such, the extension granted is not permissible in law.

23. Learned counsel appearing on behalf of the original petitioner in Writ Petition (Civil) No.1374 of 2020 submits that M.A. No. 1756 of 2022 filed by the Union of India for modification of the judgment and order passed by this Court dated 8th September 2021 is not permissible in law. He submits that by way of present M.A. for modification, the applicants are, in effect, seeking review of the judgment of this court.

24. Relying on the judgment of the Constitution Bench of this Court in the case of Beghar Foundation through its Secretary and another v. Justice K. S. Puttaswamy (Retired) and others, (2021) 3 SCC 1, he submits that the Change in Law cannot be a ground for review.

25. Mr. K.V. Viswanathan, learned Amicus, submitted that this Court in the case of Vineet Narain (supra) has approved the recommendations of the Independent Review Committee. He submits that the said Independent 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, he 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 he gets further extension as provided for in the statute by amendment. Learned Amicus, therefore, submits that these provisions being inconsistent with the spirit of the earlier judgments of this Court that the post of the Director of Enforcement as well as the Director of CBI should be kept insulated stand defeated. 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 submits that the impugned Amendments would also result in stagnation and inefficiency of service/administration and cause frustration amongst other eligible officers in the cadre.

27. Learned Amicus, relying on the judgment of this Court in the case of Madras Bar Association v. Union of India and another, (2014) 10 SCC 1 submits that this Court has struck down the provision for re-appointment of the Chairperson/Members for another term of 5 years by holding that such a provision itself has the effect of undermining the independence of the Chairperson/Members of National Tax Tribunal (NTT). He submits that this Court has held that every Chairperson/Member appointed to NTT would be constrained to decide matters in a manner that would ensure his reappointment in terms of Section 8 of the National Tax Tribunals Act, 2005. His decisions may or may not be based on his independent understanding.

28. Learned Amicus further relying on the judgment of this Court in the case of Rojer Mathew v. South Indian Bank Limited represented by its Chief Manager and others, (2020) 6 SCC 1 submits that when the above provision was sought to be introduced by way of Rules, the same was struck down by this Court as being in disregard of the binding principles enunciated by this Court and being destructive of judicial independence.

29. Learned Amicus, relying on the judgment of the Madras High Court in the case of V. Sasitharan & Ors. v. The Government of Tamil Nadu & Ors., 1995 SCC OnLine Mad 592, submits that the extensions granted to the officers beyond the date of retirement generate disgruntlement and dis-appointment amongst the other officers, lower down in the ladder whose only aspiration in their official career would be to reach to the top most post in the administrative set up. 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.

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 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.

31. Learned Amicus submits that he is not concerned with what an individual case is. He submits that he is concerned with the misuse of powers by any political party, which may be in power. It is submitted that the impugned Amendments, if permitted to remain, would lead to a tendency wherein incumbents/officers would succumb to the pressure of the Government in power and act as per their desire so that they get further extensions. Learned Amicus, therefore, submits that the impugned Amendments are liable to be quashed and set aside. It is submitted that, in any case, the amended provisions are manifestly arbitrary.

32. Learned Amicus submits that the argument that the present incumbent needs to be continued on account of an ongoing mutual evaluation of India by the Financial Action Task Force (FATF) is also self-contradictory. It is submitted that even after the Amendment, the respondent No.2 can continue only upto November 2023, whereas the possible plenary discussions are likely to be held in the month of June 2024. It is, therefore, submitted that the contention that the continuation of the present incumbent is necessary so that India represents its case effectively in FATF review, is also without substance.

33. 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. He submits that most of the writ petitioners are members of political parties. He submits that various members of these political parties are under investigation by the ED. It is, therefore, submitted that the present writ petitions are not bona fide public interest litigations, but are filed with an oblique motive.

34. The learned SG submits that the appointment of the Director of Enforcement in the ED is required to be made by the Central Government on the recommendation of the Committee consisting of:

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:

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 independent, impartial, impeccable and isolated.

37. Learned SG submits that, equally, the Director of CBI, prior to appointment, has to undergo the process of recommendation by the Committee consisting of:

38. Learned SG further submitted that the extension can be granted to the incumbents in both the offices only if the High-Level Committees (mentioned supra) recommend the same, and that too, in public interest and for the reasons to be recorded in writing. It is submitted that the provision of granting extension of one year at a time is made so that the incumbent functions effectively. 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. He submits that the extensions could be granted only in a case when the Committee, as provided in Section 25 of the CVC Act, recommends such an extension. He submits that such Committee consists of the Central Vigilance Commissioner and the Vigilance Commissioners who are totally independent, impeccable and impartial persons. Learned SG submits that if a long-fixed tenure of 5 years is granted at a time, then there is also a possibility that a person, knowing that he will continue to be in the office for a period of 5 years, may not discharge his duties effectively.

39. Learned SG submits that insofar as the Director of CBI is concerned, equally, the extension can be granted only in an event when the Committee consisting of (a) the Honble Prime Minister; (b) the Leader of Opposition; and (c) the Chief Justice of India or his nominee would recommend such an extension.

40. Learned SG relying on the judgments of this Court in the cases of Indian Aluminium Co. and others v. State of Kerala and others, (1996) 7 SCC 637, Goa Foundation and another v. State of Goa and another, (2016) 6 SCC 602 and K.S. Puttaswamy (Retired) and another (Aadhar) v. Union of India and another, (2019) 1 SCC 1 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. 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 that the cumulative period should not be more than 5 years, the arguments advanced by the petitioners are liable to be rejected. The learned SG further submits that the scope of interference by this Court while exercising power of judicial review of the legislative action of the State is very limited. He submits that unless the Court finds that the legislation is not within the competence of the legislature that has enacted the law or it has violated the fundamental rights or any of the provisions of the Constitution, it will not be permissible for this Court to interfere with the same. He relied on various judgments of this Court in support of this proposition.

42. 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 the mandamus issued by this Court was contextual on the basis of the statutory provision existing then. Since the statutory provision has undergone a complete change taking away the foundation on the basis of which the mandamus is issued, the contention in that regard deserves to be rejected.

43. Learned SG further submitted that India is undergoing FATF review. FATF review plays an important role. It is submitted that the said evaluation is done by a team including members from different countries across the world. A mutual evaluation report provides an in-depth description and analysis of a countrys system for preventing criminal abuse of the financial system as well as focused recommendations to the country to further strengthen its system. It is submitted that the main component of the evaluation is its effectiveness. It is submitted that the said evaluation involves various components/stages. The evaluation had to be done in the year 2019. However, it could not be done on account of the COVID-19 pandemic. It is submitted that the evaluation has already begun and is likely to end in June 2024. 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 presentation of the efforts made by the country, he should be continued till the process of evaluation is complete. Learned SG submits that though nobody is indispensable, however, leadership makes a lot of difference. Therefore, it was found that the present 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 Bench of this Court in the case of Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216 submits that the institutions like the ED and the CBI need to be kept insulated to protect the democracy. He, therefore, reiterates that the impugned Amendments so also the extensions granted to the respondent No.2 be set aside.

46. After hearing the learned counsel for the parties, we find that, following two questions arise for consideration:

47. For answering the said questions, we will have to consider the legal history which gave rise to the provisions for appointment of the Central Vigilance Commissioner and the Director of CBI as well as the Director of Enforcement.

48. The case of Vineet Narain (supra) arose out of a complaint of inertia by the CBI in matters where the accusation made was against high dignitaries. However, as the case progressed, the 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? This Court attempted to innovate the procedure within the constitutional scheme of judicial review to permit intervention by the Court to find a solution to the problem.

49. This Court in the case of Vineet Narain (supra) found the necessity for the insulation of the investigating agencies like the CBI and the Revenue Department from any extraneous influence to enable them to discharge their duties in the manner required for proper implementation of the rule of law. This Court observed thus:

50. This Court, therefore, issued following directions:

51. In pursuance to the aforesaid directions issued by this Court, the Government initially issued ordinance and finally enacted the CVC Act.

52. Section 3 of the CVC Act deals with constitution of Central Vigilance Commission.

53. Section 4 of the CVC Act deals with appointment of Central Vigilance Commissioner and Vigilance Commissioners, which reads thus:

54. Section 6 of the CVC Act deals with removal of Central Vigilance Commissioner and Vigilance Commissioner, which reads thus:

55. Section 25 of the CVC Act deals with appointments, etc. of officers of ED, which reads thus:

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:

57. Section 4-B of the DSPE Act deals with the terms and conditions of service of Director, which reads thus:

58. It could thus be seen 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.

59. 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.

60. By the Central Vigilance Commission (Amendment) Act, 2021, in clause (d) of Section 25 of the CVC Act, the following provisos have been inserted:

61. 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:

62. Similarly, in clause (d) of rule 56 of the Fundamental Rules, 1922, the fifth proviso has also been substituted, which is as under:

63. These two amendments to the CVC Act and the DSPE Act along with the amendment to the Fundamental Rules, 1922 are under challenge in the present proceedings.

64. 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.

65. It is the contention of the petitioners that various judgments of this Court have emphasized the necessity for the purpose of ensuring complete insulation of the office of the Director of CBI/Director of Enforcement from all kinds of extraneous influences, as may be, as well as for upholding the integrity and independence of the institution of CBI/ED as a whole. It is contended that the Amendments, which enable the Government to provide for extension and that too for a period of one year at a time and which could extend to three extensions in total, would enable the Government to apply a carrot and stick policy. 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. Per contra, if such a Director does not act as per the desire of the Government, he would be denied extensions. It is, thus, submitted that the very purpose of insulating these premium Agencies from extraneous pressures by the Government is sought to be wiped by the impugned Amendments.

66. For considering the issue with regard to validity of the Amendments, it will be apposite to refer to some of the judgments of this Court delineating the scope of the judicial review in examining the legislative functions of the Legislature.

67. A bench of three learned Judges 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:

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:

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70. It could thus be seen that 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.

71. 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.

72. 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 of the Constitution in so evident a manner as to leave no manner of doubt. It has further been held that if two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing 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 enactment.

75. In the present case, it is nobodys 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.

76. 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.

77. It is sought to be urged that the aforesaid Amendments would defeat the directive issued by this court to have a fixed tenure of the Director of CBI / Director of Enforcement and permit a carrot and stick policy to be adopted by the Executive. It is sought to be urged that if the aforesaid Amendments are permitted to exist, it will frustrate the very purpose of insulating the aforesaid high posts from extraneous pressures. Let us consider this submission.

78. Insofar as the Director of Enforcement is concerned, the Central Government can appoint such a Director only on the recommendation of the Committee consisting of:

79. It can thus be seen that a person can be appointed as Director of Enforcement only if the aforesaid Committee makes a recommendation to that effect. The said Committee, inter alia, consists of the Central Vigilance Commissioner as well as the Vigilance Commissioners.

80. As pointed out herein above, Section 4 of the CVC Act deals with appointment of Central Vigilance Commissioner and Vigilance Commissioners. 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. The explanation thereto provides that when no such Leader of the Opposition in the House 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 been provided to these officers to act independently and the Statute insulates them from extraneous pressures.

83. As already discussed herein above, 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 (supra) 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.

84. 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 consisting of Central Vigilance Commissioner as well as Vigilance Commissioners.

85. As already observed herein above, there is safeguard in the statute which insulate the office of the Central Vigilance Commissioner and the Vigilance Commissioner from extraneous pressures and permits them to act independently.

86. Similarly, the appointment of Director of CBI is to be made only after a candidate is recommended by the Committee consisting of:

87. It is to be noted that insofar as the appointment of the Director of CBI is concerned, this Court in the case of Vineet 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. However, Section 4A of the DSPE Act provides for a Committee, which is consisting of the Members which are at much higher pedestal. It is to be chaired by the Prime Minister, whereas the Chief Justice of India or his/her nominee and the Leader of Opposition in the House of the People are its 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.

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 time subject to the maximum period of five years including the period mentioned in the initial appointment. As already stated herein above, such extensions can be granted by the Government only if the Committees, which are constituted for recommending their appointment, recommend their extension, in public interest and also record the reasons in writing.

91. 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.

92. What has been directed by this Court in the case of Vineet Narain (supra) and in subsequent judgments relied on by the petitioners is that such Director should have a minimum tenure of two years irrespective of their date of superannuation. By the impugned Amendments, the said period is not tinkered with. What has been done is only a power is given to extend their period for a period of one year at a time, subject to a maximum number of three such extensions. However, this has to be done only when the Committee which is constituted to recommend their appointment finds it necessary, in public interest, to grant such extension. It is further required to record the reasons in writing for the said purpose.

93. As already discussed herein above, the aforesaid provisions with regard to appointment have been enacted in pursuance to the directions given by this Court in the case of Vineet Narain (supra). 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. At the cost of repetition, such Committee is also required to record reasons in writing in support of such recommendations.

94. We are, therefore, unable to accept 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.

95. Insofar as challenge to the amendment 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:

96. The amended fifth proviso to clause (d) of Rule 56 of the Fundamental Rules, 1922 has already been reproduced by us in paragraph 62.

97. It can thus be seen that by virtue of the Amendment the power which was available with the Central Government to grant extension, if it considers necessary in public interest so to do, in case of certain officers, has now been also extended to the Director of CBI appointed under the DSPE Act and Director of Enforcement in the ED appointed under the CVC Act. The second change that has been brought is that such extension in service does not exceed two years or the period provided in the respective Act or rules made thereunder, under which their appointments are made.

98. 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. Consequently, we are of the considered view that the challenge to validity of Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021, and the Fundamental (Amendment) Rules, 2021 fails and the writ petitions at the behest of the petitioners to that extent are liable to be rejected.

99. That leaves us with the next question, as to 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.

100. In the case of Common Cause (2021), what was under challenge was the order dated 13th November 2020, vide which the President of India had approved the modification of the order dated 19th November 2018, by amending the period of appointment from two years to three years. As such, in effect, what was under challenged was one years extension granted to the tenure of the second respondent. It was sought to be urged before this Court that it was not permissible for the Government to extend the period of tenure beyond two years. In paragraph 15, this Court posed the following question for consideration:

101. In paragraph 20, this Court observed thus:

102. It could thus clearly be seen that this Court rejected the contention that the Government does not have a power to extend the tenure of the Director of Enforcement beyond a period of one year. In spite of holding this, this Court specifically observed thus in paragraph 23:

103. As such, it is clear that this Court issued a specific mandamus that no further extension shall be granted to the second respondent. Undisputedly, the Union of India as well as the respondent No.2- Sanjay Kumar Mishra in Writ Petition (Civil) No. 456 of 2022 herein were 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 industrial establishments. However, it had no impact insofar as the employees of the LIC were concerned. However, the employees of the LIC were denied the benefits which they were entitled to. In these circumstances, the All-India Insurance Employees Association and some others filed writ petition(s) before the High Court of Calcutta for a writ of mandamus and prohibition directing the LIC to act in accordance with the terms of the Settlement dated 24th January 1974 read with the administrative instructions.

105. The learned Single Judge of the Calcutta High Court allowed the writ petition and issued a writ of mandamus and prohibition as prayed for in the said writ petition. The LIC preferred a Letters Patent Appeal (“LPA” for short). However, during the pendency of the LPA, on 29 th May, 1976, the Act impugned before this Court was enacted. The effect of the enactment was to annul the benefits which the employees of the LIC were entitled to in view of the mandamus issued by the Calcutta High Court.

106. Bhagwati, J (speaking for himself, Krishna Iyer and Desai, JJ.) observed thus:

107. Beg. C.J. in his concurring judgment observed thus:

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:

110. Relying on the aforesaid observation, this Court in the case of S.R. Bhagwat and others v. State of Mysore, (1995) 6 SCC 16 observed thus:

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111. In the present case also, we may point out that in Common Cause (2021), this Court had not struck down any law, but had issued a mandamus which was binding on the parties before it.

112. A similar view has been taken by this Court in the case of Medical Council of India v. State of Kerala and others, (1995) 6 SCC 16.

113. Recently, in the case of Madras Bar Association v. Union of India and another, 2021 SCC OnLine SC 463= (2022) 12 SCC 455, a bench of learned three Judges of this Court, after considering the earlier judgments of this Court on the issue of permissibility of legislative override, observed thus:

114. It could, thus, clearly be seen that this Court has held that the effect of the judgments of this court can be nullified by a legislative act removing the basis of the judgment. It has further been held that such law can be retrospective. It has, however, been held that retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. It has been held that the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed. This Court has, however, clearly held that nullification of mandamus by an enactment would be impermissible legislative exercise. This Court has further held that 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.

115. Though it is the contention of the learned Solicitor General that the judgment of this Court in Common Cause (2021) was rendered on the basis of the FR existing then, which now stand altered and the very foundation of the judgment is taken away, we are unable to accept the said contention. On the contrary, as could be seen from the judgment in Common Cause (2021), this Court found that there was no proscription on the Government to appoint a Director of Enforcement beyond a period of two years. 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. As such, the contention that the very foundation on which judgment of this Court in the case of Common Cause (2021) was based is taken away is without substance.

116. As already discussed herein above, this Court has specifically issued a mandamus that no further extension shall be granted to the second respondent. The Union of India and the respondent No.2 were both parties in the proceedings before this Court in Writ Petition (Civil) No. 1374 of 2020 [Common Cause (2021) ]. The mandamus 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:

118. As such, it could thus clearly be seen that counsel for the State Government in fairness stated that Section 11 was enacted only to defuse the effect of the writ of mandamus issued by this Court in the case of Om Prakash Agarwal v. Giri Raj Kishori, (1986) 1 SCC 722 to refund the fee collected therein to the appellants therein. However, a statement was made that under its guise the State did not intend to nor would it intend to retain the said fund collected under the Act, which was held invalid and the entire fund would be passed on to the credit of the Board under the Act. As such, on the basis of the concession made by the learned counsel that the State did not intend to retain the fund collected and the entire fund would be passed on to the credit of the Board, this Court did not interfere with Section 11, which was intended to defuse the writ of mandamus. As such, the said judgment cannot be said to be an authority to hold that by a legislative enactment, a writ of mandamus issued by this Court could be defused.

119. Though we have held that orders dated 17th November 2021 and 17th November 2022 granting extensions to respondent No.2 are not valid in law, we are inclined to take into consideration the concern expressed by the Union of India with regard to FATF review. We are further inclined to take into consideration that the process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the 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.

120. Before we part with the judgment, we place on record our deep appreciation for the assistance rendered by the learned Amicus Curiae Shri K.V. Viswanathan (as His Lordship then was), Shri Tushar Mehta, learned Solicitor General, Shri S.V. Raju, learned Additional Solicitor General, Mr. Anoop G. Choudhary, Mr. Gopal Sankarnarayanan, Dr. Abhishek Manu Singhvi, learned Senior Counsel, and Mr. Prashan Bhushan, Mr. J.S. Sinha, Mr. Sharangowda, and Ms. Vanshaja Shukla, learned counsel. We also place on record our appreciation for the valuable assistance rendered by Mr. Ravi Raghunath, learned Advocate-on-Record, who ably assisted the learned Amicus Curiae.

121. In the result, we pass the following order:

122. All the writ petitions as well as Miscellaneous Application including all pending applications, if any, shall stand disposed of in the above terms. No order as to costs.