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CASE ANALYSIS Pooja Padmanabhan Jaya Thakur Vs. Union of India (UOI) and Ors.

Case Comment, Publications

W.P. (Civil) Nos. 456 of 2022

CORAM: B.R.Gavai, Sanjay Karol & Vikram Nath

CITATION: MANU/SC/0756/2023

  1. FACTS

Sanjay Kumar Mishra, has been appointed as the Director of Enforcement Directorate, otherwise referred to as ED , through an order dated 19th of November 2018, for a tenure of 2 years by the President if India . This Sanjay Kumar Mishra, is the second respondent, in the instant case. Since the  order dated, 19th November, 2018, has appointed the second respondent, only for 2 years, the president, approved vide order dated 13th of November, 2000, to extend the tenure of the second respondent, for another year. 

There did prevail a yet another, writ petition, in the year of 2000, where the Hon’ble Supreme Court, through the in Common Cause (A Registered Society) v. Union of India and Ors, dismissed the petition through its judgement and directed that no further extension will be granted to the second respondent. The president of India promulgated the Central Vigilance Commission (Amendment) Ordinance, 2021, thereby  adding two new provisos to Section 25(d) of the Central Vigilance  Commission Act and also the Delhi Special Police Establishment (Amendment) Ordinance 2021, which led to the insertion of  two new provisos u/s 4B(1) of the Delhi Special Police Establishment Act, 1946 (otherwise referred to as “the DSPE Act”). This occurred on 14th of November 2021. 

On November 15, 2021, the Fundamental (Amendment) Rules, 2021, altered the Fundamental Rules, 1922, replacing the fifth proviso with a new one. The original proviso, 56(d), was removed. November 18: The respondent’s tenure was extended for an additional year on November 18. There were writ petitions contesting the validity of the decision dated November 17, 2021, the fundamental rules for 2021, and the amended ordinances. The Delhi Special Police Establishment (Amendment) Act of 2021 and the Central Vigilance Commission (Amendment) Act of 2021 were introduced by the parliament on December 18, 2021. 

A yet another writ petition was brought challenging the order dated 17th November 2021. During the pendency of the writ petitions, the first respondent passed yet another order dated 17th November 2022,  to extend the term of the second respondent to another year, and being aggrieved by this , the another  writ petition is filed. 

A three-judge bench chaired by Justice B.R. Gavai heard arguments from the petitioners and Mr. K.V. Viswanathan, the Amicus Curiae assigned to the case, on March 23, 2023.

  1. ISSUES
  1. Whether the legislature could make any law, which extends the tenure of Mr. Mishra, but such law contradicts to an order passed by the supreme court, which prohibits such extensions ?
  2. Do the Amendments pose any form of threat to the independence ,of operation of CBI and ED , as investigating bodies?
  3. Do these modifications go against the ruling in Common Cause v. Union of India?
  4. CONTENTIONS

PETITIONER

  • Any action which nullifies , any order of this court , is not permissible in law. 
  • The respondent, a party to the Common Cause verdict, in which the court directed that the respondent not be granted any more extensions. This ruling has the same binding effect on the respondent as it does on the Union of India.
  • The court , through its judgement in the case of  Common Cause (2021), has mentioned on how any extension allotted beyond a period of office term, must be for a short period and the same shall be granted only under exceptional and rare cases. 
  • Although a legislative measure that eliminates the foundation of a judgement can annul its effect, in this particular case, it is submitted that doing so would be an unlawful legislative action that would nullify the mandamus. 
  • Petitioner, also placed an argument that there also prevailed a need for vigilance clearance , which ought to be done for the grant of extension, which not being done, elucidates that the instant  extension is not permissible in law. 
  • Any change in law, can’t be a ground for review. 
  • It could be observed that the Central Vigilance Commissioners are included in the composition of a Committee aimed specifically at  the Appointment of the Director of Enforcement, which is broader than what the Court , has mandated in the Vineet Narain issue . 

AMICUS CURIAE

  • The arguments of the amicus curiae are primarily based  around the argument that the impugned Amendments to the Central Vigilance Commission Act, 2003 and The Delhi Special Police Establishment Act, 1946are inconsistent with the spirit of earlier judgments of the Court. The amicus curiae argues that the changes would override the court’s order to establish a fixed term for the Director of CBI/Director of Enforcement and allow the Executive to use a “carrot and stick” approach.
  • The amicus curiae further contends that the revisions would create a tendency for incumbents and officials to give in to pressure from the ruling government and operate in a way that would allow them to receive subsequent extensions. Additionally, the amicus curiae argues that the altered conditions are obviously arbitrary and would cause service and administrative stagnation and inefficiency, which will irritate other eligible officers in the cadre.
  • Amicus curiae, further, submits that in order to assert that the basis upon which a court renders a decision may be altered by the Legislature, changing the law generally and impacting a class of people and events broadly. However, an individual decision inter partes cannot be overturned, affecting the rights and obligations of those involved. It is argued that with regard to Respondent No. 2, this Court has issued a specific mandamus stating that he will not be receiving any additional extensions. 
  • Learned Amicus argues that the challenged Amendments essentially negate the mandamus and, as a result, would not be tenable since they alter the foundation upon which a decision was rendered by the Court.
  • The court relied on a series of  judgements for substantiating on the point that “ nullification of a mandamus, by subsequent legislation is considered illegal” These cases include 
  • Madan Mohan Pathak v. Union of India
  • In Re., Cauvery Water Disputes Tribunal
  • S.R. Bhagwat v. State of Mysore
  • Madras Bar Association v. Union of India
  • Medical Council of India v. State of Kerala and others
  1. RATIONALE

The court made an observation  that any judicial pronouncement, which is binding can’t be  made ineffective through the aid of any legislative energy, that is , by enacting any provision which in substance really overrules a judgment unless the foundation of the judgment is eliminated, the Court stated that a legislature cannot directly set aside a judicial decision. The Court further decided that the type of legislative tool that eliminates the vice found in the previous law that has been ruled unconstitutional is not viewed as an infringement on the authority of the courts but rather as an abrogation permitted by the Indian Constitution. The Court additionally stated that 

“It is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict”

The Court further noted that although the legislature might be able to change the law retroactively in order to eliminate the legal foundation for a ruling that declares a particular legislation to be unconstitutional, it is crucial that the modification be limited to updating the law to comply with the Court’s ruling. The Court further stated that disregarding a court’s ruling in its entirety without rectifying the issues raised in it would be disastrous for the rule of law.

  1. DEFECTS OF LAW

The instant case, has indeed answered on the aspects of defects of law, and is a landmark case , which has rejected the argument that, any policy which grants incremental extensions will make the office of these directors of be it the Enforcement Directorate or the Central Bureau of Investigation , prone to the executive influence, thus bridging away the independence of the concerned agency. If not for such a decision, the balance of the organs of the government would have been interfered with increased interference of the organs amongst each other’s functions. 

6. INFERENCE

The CVC and DSPE Amendments were sustained by the Bench on July 11, 2023, on the grounds that the legislature was authorized to pass these laws, they did not infringe any fundamental rights, and there were enough protections in place to keep the CBI and ED safe from pressure from the Executive. Nonetheless, the Supreme Court ruled that S.K. Mishra’s tenure extensions were unlawful. In the interim, until July 31, 2023, the Bench allowed him to continue serving while the Union selects a candidate to take over as Director.

“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.”