Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law

Jojy George Koduvath

Taken from: Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur Vs. Union of India)

Abstract

  • It is found in Dr. Jaya Thakur v. Union of India (2023) by the Supreme Court of India that that the direction (mandamus) given in an earlier case (Common Cause case, 2021) that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate) could not have been nullified by changing the Law (which formed the basis of the earlier decision).

Brief History

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.

Court directed that no further extension: A Writ Petition was filed in 2020 before the Supreme Court of India, as ‘Common Cause (A Registered Society) v. Union of India’, in public interest, under Article 32 of the Constitution of India, praying to quash the extension order. It was contented before the Apex Court that the Government did not have the power to extend the tenure of the Director. The Court, rejected the contention and dismissed the Writ Petition in 2021 (2021 SCC OnLine SC 687). But, the court directed that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate).

Amendment of Central Vigilance Commission Act (CVC Act): 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 amendments the very basis on which the judgment was delivered has been taken away. The new provisions permitted 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: It was contended by the petitioners (in Dr. Jaya Thakur v. Union of India) that that the direction (mandamus) given in an earlier case (Common Cause case, 2021) that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate) could not have been nullified by changing the Law (which formed the basis of the earlier decision).

The main argument of the Union of India was that – by the amendment the very basis on which the the earlier judgment (Common Cause case, 2021) was delivered has been taken away and that the new provision permited the extension. 

It is held in Dr. Jaya Thakur v. Union of India  (2023) that the orders giving extension to the tenure of the respondent No. 2- Sanjay Kumar Mishra, for a period of one year are illegal; and that the nullification of a mandamus by a subsequent legislative exercise was impermissible.

Nullification of a Mandamus by a Legislation is Impermissible

The Apex Court relied on, mainly, the following earlier decisions to hold that the nullification of a mandamus by a subsequent legislation was illegal –

  • 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.

(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.”

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, (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.”

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

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.”

Judiciary – Protector of Constitution & Democracy as ultimate arbiter on Constitution

The Apex Court (in Dr. Jaya Thakur v. Union of India, 2023) 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.”

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 legislationare 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.)

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