Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur Vs. Union of India)

Jojy George Koduvath

Abstract

  • Is Nullification of a Mandamus (by Changing Law) Permissible? Ans. No.

Dr. Jaya Thakur Vs. Union of India – Facts in a Nutshell

Shri. Sanjay Kumar Mishra was appointed as the Director of Enforcement Directorate, on 19th November 2018, for two years, by the President of India (as the head of various investigating agencies). On 13th November 2020, the President of India approved the extension of his tenure, for one year.

A Writ Petition was filed in 2020 before the Supreme Court of India, as ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687), in public interest, under Article 32 of the Constitution of India, praying to quash the extension order.

Contention – It was contented before the Apex Court, in ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687) that the Government did not have the power to extend the tenure of the Director.

Decision: In ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687) the Court, rejected the contention of the petitioners and dismissed the Writ Petition. But, the Court directed that no further extension shall be granted. The Court observed in paragraph 23, as under:

  • “23. … Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make 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. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25(a) of the CVC Act.
  • 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. We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent (Sanjay Kumar Mishra).”

Law Amended & Very BASIS of  the Judgment was Changed

After dismissal of the Writ Petition in 2021, two new provisos were added to Sec. 25(d) of the Central Vigilance Commission Act (CVC Act), by way of Amendment. Parliament also amended the Central Vigilance Commission Act, and the Delhi Special Police Establishment Act. By the amendment the very basis on which the judgment was delivered has been taken away. The new provision permits an extension at a time for one year with a rider that the cumulative period should not be more than 5 years.

Challenging the Amendments Writ Petitions were filed before the Apex Court.

Term of Director Was Further Extended: During the pendency of the said writ petitions, on 17th November 2021, the tenure of the Director was extended for a period of one year, i.e. upto 18th November 2022, or until further orders, whichever was earlier; and thereby another Writ Petition was also was filed.

Contentions of the Petitioners & Amicus Curiae

  1. The Union of India annulled Court decision. It was not permissible in law. It is to be quashed and set aside.
  2. The nullification of mandamus by an enactment is also an impermissible legislative exercise.
  3. The impugned Amendments does not change the BASIS, though, in view of the judgment of the Apex Court in Madras Bar Association v. Union of India, (2022) 12 SCC 455, the effect of the judgments could be nullified by a legislative act of removing the BASIS of the judgment, and such law could be retrospective. .
  4. It is not permissible to ‘set aside’ an individual Court decision inter partes by amending Law (so as to affect the rights and liabilities of the parties), 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. Following decisions were relied on-
    • Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283,
    • Bhaktawar Trust v. M.D. Narayan, (2003) 5 SCC 298,
    • Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96, and
    • Madras Bar Association v. Union of India, 2021 SCC OnLine SC 463
    • The amended provisions are manifestly arbitrary.
  5. Amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights, though, the effect of the judgments could be nullified by a legislative act of removing the BASIS of the judgment.
  6. Apex Court 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. Follwing decisions were placed –
    • Vineet Narain  v. Union of India, (1998) 1 SCC 226
    • Prakash Singh v. Union of India (Prakash Singh-1), (2006) 8 SCC 1
    • Prakash Singh  v. Union of India(Prakash Singh-2), (2019) 4 SCC 14 and
    • Prakash Singh  v. Union of India (Prakash Singh-3), (2019) 4 SCC 1
  7. The very independence of an officer would be taken away by the situation – if an incumbent performs as per the wishes of the authority, he would get an extension.
  8. The Court in Vineet Narain v. Union of India, (1998) 1 SCC 226, has approved the recommendations of the Independent Review Committee. It was tasked, inter alia, to suggest the changes needed to ensure against extraneous pressures, arbitrary withdrawals or transfers of personnel etc.
  9. In Madras Bar Association v. Union of India (2014) 10 SCC 1, the Court had struck down the provision for re-appointment of the Chairperson/ Members for another term of 5 years under the National Tax Tribunals Act, 2005, by holding that such a provision itself has the effect of undermining the independence of the Chairperson/ Members of National Tax Tribunal (NTT).
  10. In Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1, when the provision for reappointment of the Chairperson/Members under the NTT Act, 2005 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.
  11. The Madras High Court in V. Sasitharan v. The Government of Tamil Nadu, 1995 SCC OnLine Mad 592, pointed out that the extensions granted to the officers beyond the date of retirement, generate disgruntlement and dis-appointment amongst 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.
  12. 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.
  13. There is chance of misuse of powers by any political party, which may be in power.
  14. 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.
  15. 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. Even after the Amendment, the incumbent can continue only upto November 2023, whereas the possible plenary discussions are likely to be held in the month of June 2024. The argument is, therefore, without substance.
  16. The institutions like the ED and the CBI are needed to be kept insulated to protect the democracy (relied on: Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216).

Contentions of the Union of India

  • The applicants are, in effect, seeking review of the judgment of this court. In Beghar Foundation v. Justice K.S. Puttaswamy (Retired) (2021) 3 SCC 1, it was submitted that the Change in Law cannot be a ground for review.
  • The Legislature has power even to annul the mandamus issued by the Court. (M/s Kishan Lal Lakhmi Chand v. State of Haryana, 1993 Supp (4) SCC 461, relied on.)
  • It was submitted that in view of the judgment of this Court in the case of Madras Bar Association v. Union of India, (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.
  • The contention that the Amendment annulled the mandamus is without substance. The mandamus 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.
  • (a) The Legislature is undoubtedly competent to pass such a legislation.
    • (b) The question is – whether this Court would have rendered the same judgment in Common Cause (2021), had it considered the law which has undergone change.
    • (c) Following decisions were relied on –
    • Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637,
    • Goa Foundation v. State of Goa (2016) 6 SCC 602 and
    • K.S. Puttaswamy (Retired) (Aadhar) v. Union of India (2019) 1 SCC 1
  • Scope of interference by the Court while exercising power of judicial review of the legislative action of the State is very limited. Unless the Court finds that –
    • (i) the legislation is not within the competence of the legislature or
    • (ii) it has violated the fundamental rights or any of the provisions of the Constitution, it will not be permissible for the Court to interfere with the same. (various judgments were relied on).
  • The words “rare” and “exceptional” as found in the case of Common cause (2021) have now been taken away by an Amendment. (Welfare Association, A.R.P., Maharashtra v. Ranjit P. Gohil, (2003) 9 SCC 358, relied on).
  • The present writ petitions are not bona fide public interest litigations, but are filed with an oblique motive. Most of the writ petitioners are members of political parties. Various members of these political parties are under investigation by the ED.
  • The extension can be granted to the incumbents only if the High- Level Committees 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.
  • 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. Such Committee consists of the Central Vigilance Commissioner and the Vigilance Commissioners who are totally independent, impeccable and impartial persons. The Director of CBI is concerned, equally, the extension can be granted only in an event when the Committee consisting of (a) the Hon’ble Prime Minister; (b) the Leader of Opposition; and (c) the Chief Justice of India or his nominee would recommend such an extension.
  • 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.
  • Nobody is indispensable; however, leadership makes a lot of difference.
  • Present incumbent needs to be continued on account of an ongoing mutual evaluation of India by the Financial Action Task Force (FATF). The evaluation had to be done in the year 2019. However, it could not be done on account of the COVID- 19 pandemic. The evaluation has already begun and is likely to end in June 2024.
  • The main component of the evaluation is its effectiveness.  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.
  • A mutual evaluation report provides an in-depth description and analysis of a country’s system for preventing criminal abuse of the financial system as well as focused recommendations to the country to further strengthen its system. Therefore, it was found that the present assessment should be done under the leadership of the present incumbent.

Findings of the Court

1. Rule of Law  and of Article 14: Investigating agencies are to be protected from any extraneous influence to enable them to discharge their duties in the manner required for proper implementation of the rule of law. In  Vineet Narain  v. Union of India, (1998) 1 SCC 226, it was found as under:

  • “In view of the common perception shared by everyone including the Government of India and the Independent 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.”

In Madras Bar Association v. Union of India, (2022) 12 SCC 455, it was held as under:

  • “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.”

Read Blog: Can Legislature Overpower Court Decisions by an Enactment?

2. Judicial Review: The Apex Court held in this case (Dr. Jaya Thakur Vs. Union of India) as under –

  • “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.”

The scope of the judicial review in examining the legislative functions of the Legislature with regard to validity of the Amendments were considered in the following decisions-

  • Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364
  • Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [356 US 86]
  • Binoy Viswam v. Union of India and others2222 (2017) 7 SCC 59

The Apex Court (Dr. Jaya Thakur v. Union of India) elaborately quoted  Binoy Viswam v. Union of India, (2017) 7 SCC 59, to pointed out  the following –

a. Judicial Review – Grounds available (on the validity of a piece of legislation): The grounds of judicial review that are available to adjudge the validity of a piece of legislation are two and “there is no third ground.”(State of A.P. v. McDowell & Co., 1996-3 SCC 709, State of M.P. v. Rakesh Kohli, 2012- 6 SCC; State of M.P. v. Rakesh Kohli, 2012-6 SCC 312).

The grounds are:

  • First, Legislation, not within the competence of the legislature, and
  • Second, Legislation, in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.

b. Arbitrariness and Unreasonableness By Itself Do Not Constitute A Ground For striking down a statute (though they are Grounds for Administrative Action): Pointing out that there are only two grounds, (1) lack of legislative competence and (2) violation of any of the fundamental rights, and no third ground to invalidate any piece of legislation, it was observed in State of A.P. v. McDowell & Co. 1996-3 SCC 709, as under:

  • “No enactment can be struck down by just saying that it is arbitrary [An expression used widely and rather indiscriminately – an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943): “The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.] or unreasonable. Some or 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. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.
    • unreasonableness, which can more appropriately be called irrationality,
    • illegality, and
    • procedural impropriety
  • (see: Council of Civil Service Unions v. Minister for the Civil Service, 1984-3 All ER 935 (HL) which decision has been accepted by this Court as well).
  • The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.
  • (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 All ER 720 (HL).
  • It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.” (Quoted in State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)
  • A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)”
  • Also referred: State of WB v. EITA India Ltd., (2003) 5 SCC 239, Rajbala v. State of Haryana, (2016) 2 SCC 445 : AS Krishna v. State of Madras, AIR 1957 SC 297.
  • A fortiori, a law cannot be invalidated on the ground that the legislature did not apply its mind or it was prompted by some improper motive.
  • In K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, it was observed as under:
  • “205. Plea of
    • unreasonableness,
    • arbitrariness,
    • proportionality, etc.
  • always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.”

c. Judicial Review – First Ground – Ultra Vires The Constitution: In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, following pertinent observations were made –

  • “219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review.

d. 2nd Ground – Violation of Fund. Rigt. – Presumption In Favour of Constitutionality

  • In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed as under:
  • ’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 discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest …” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
  • In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it. It stated as under:
  • ’15. … and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
  • In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, reiterated the principle that presumption was always in favour of constitutionality of an enactment and observed as under:
  • ‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.’ (referred Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41, and State of Bombay v. F.N. Balsara,  1951 SCC 860 : AIR 1951 SC 318.)

e. In Taxation, The Legislature Enjoys A Greater Latitude: In the field of taxation, the legislature enjoys a greater latitude for classification, as noted by in a long line of cases. Some of these decisions are –

  • Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589,
  • Gopal Narain v. State of U.P., AIR 1964 SC 370 ,
  • Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90,
  • R.K. Garg v. Union of India, (1981) 4 SCC 675.

f. Judiciary – Protector of Constitution & Democracy as ultimate arbiter on Constitution: The Apex Court (in Dr. Jaya Thakur v. Union of India) quoted up to the following passage in Binoy Viswam v. Union of India, (2017) 7 SCC 59 –

  • “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 undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on “limited governance” will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.”

3. Manifest Arbitrariness: Apart from (i) lack of legislative competence and (ii) contravention of any of the fundamental rights, the validity of the legislative act can be challenged on “another ground as could be culled out from the recent judgments of this Court” is “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.

4. It is nobody’s case that Parliament did not have power to enact: In the present case (Dr. Jaya Thakur v. Union of India), it is nobody’s case that Parliament did not have power to enact on the subject.

5. Impugned Amendments Whether Violate Fundamental Rights? Ans. No.

The arguments of the petitioners, in this regard, were not accepted by the Court .

The Director of Enforcement is concerned, the Central Government can appoint such a Director only on the recommendation of the Committee .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 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.

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). The Apex 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.

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.

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.

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.

6. Whether Permissible To Extend Tenure Beyond Two Years? Ans. Yes. 

The arguments of the petitioners, in this regard, were not accepted by the Court .

In Common Cause case (2021) it was urged that it was not permissible for the Government to extend the period of tenure of Director of Enforcement beyond two years; and that if the extension was permitted, it would frustrate the very purpose of insulating the aforesaid high posts from extraneous pressures. The Court rejected the arguments and held as under:

  • “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. Harnek Singh (supra) in which it was held that General Clauses Act has to be read into all Central Acts unless specifically excluded, we are of the considered view that the rule of construction embodied in Section 21 of the General Clauses Act has reference to the context and subject matter of Section 25 of the CVC Act. The judgment of the Constitution Bench of this Court in Kamla Prasad Khetan (supra) is applicable to the facts of this case ….”

7. The Court held in 2021- No Further Extension To The Second Respondent: It is violated. The Court specifically observed in the earlier decision, Common Cause (2021), as under:

  • “23. The justification given by the Union of India for extension of the tenure of second Respondent is that important investigations are at a crucial stage in trans-border crimes. The decision to extend the tenure of the second Respondent is pursuant to the recommendation made by the high powered committee.
  • Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make 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. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25(a) of the CVC Act.
  • 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. We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent.”

8. Is Nullification of a Mandamus (by A Changed Law) Permissible? Ans. No.

It is found in Dr. Jaya Thakur v. Union of India that that the above direction in Common Cause (2021) was “a specific mandamus that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra)”. Undisputedly, the Union of India as well as the respondent No. 2- Sanjay Kumar Mishra were parties to the said proceedings.

Therefore it is held in Dr. Jaya Thakur v. Union of India that the orders giving extensions to the tenure of the respondent No. 2- Sanjay Kumar Mishra, for a period of one year each are illegal.

It is held that nullification of a mandamus by a subsequent legislative exercise would be impermissible.

The Apex Court relied on, mainly, the following earlier decisions –

  • Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50,
  • In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96,
  • S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16
  • Madras Bar Association v. Union of India, (2022) 12 SCC 455,
  • Medical Council of India v. State of Kerala and others, (2019) 13 SCC 185.

9. (a) Madan Mohan Pathak v. Union of India (1978) 2 SCC 50: The employees of the LIC were denied the benefits which they were entitled to. They filed writ petitions  before the High Court of Calcutta for a writ of mandamus and prohibition directing the LIC to act in accordance with the terms of a Settlement. It was allowed by the Calcutta High Court The LIC preferred Appeal. During the pendency of the appeal the Life Insurance Corporation (Modification of Settlement) Act, 1976 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. The Seven Judge Bench in Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50, considered the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976.

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

  • “9. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees.”

Beg. CJ, in his concurring judgment observed thus:

  • “32. I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all. Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself. These could not be touched by an ordinary act of Parliament.”

Doctrine of Change of basis of earlier Judgment

Beg. CJ, continued as under:

  • “Even if Section 3 of the Act seeks to take away the BASIS of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that, where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the BASIS of a mandamus from the High Court could not be taken away in this indirect fashion.”

(b) In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96

The Constitution Bench of the Apex Court, In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, observed as under:

  • “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.”

(c) S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16: In this case it was observed as under:

  • “12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the BASIS or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.
  • … This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.”

(d) Medical Council of India v. State of Kerala and others2525 (2019) 13 SCC 185: A similar view has been taken by the Apex Court in Medical Council of India v. State of Kerala and others2525 (2019) 13 SCC 185 .

(e) Madras Bar Association v. Union of India, (2022) 12 SCC 455: In Madras Bar Association v. Union of India, the Apex Court “on the issue of permissibility of legislative override”, observed as under:

  • “50. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under:
  • 50.1. The effect of the judgments of the Court can be nullified by a legislative act removing the BASIS of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. [Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245]
  • 50.2. The 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.”

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1 Comment

  1. Inder Chand Jain's avatar Inder Chand Jain says:
    July 16, 2023 at 10:34 pm

    Detailed well researched write up

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