Another Tale of Legislative Overreach? – The RMLNLU Law Review Blog

By- Deborshi Sarkar & Rishab Gupta

INTRODUCTION

The incumbent Enforcement Directorate (ED) director Mr. Sanjay Mishra was initially appointed by an order dated 19.11.2018 by the Central Government. His tenure of service was further extended by one year vide an office order dated 13.11.2020 by the President of India which retrospectively amended the initial appointment order. The legality of this office order adjudicated upon by the Apex Court in Common Cause (A Registered Society)v. Union of India. The Apex Court in this judgment had prevented further extensions from being granted to Mr. Sanjay Mishra owes his attention to the age of superannuation during the first two years of service. However, a second year-long extension was granted to him under the Central Vigilance Commission (Amendment) Ordinance, 2021. This second extension was challenged via a batch of Writ Petitions filed in the Apex Court. During the subsistence of the same, the concerned director was granted a third extension under the Central Vigilance Commission (Amendment) Act, 2021. Against this backdrop, the authors aim at analyzing whether the amendment purportedly results in annulling the effect of the judicial pronouncement in the Common Cause resulting in transgressing the constitutional safeguard of separation of power. Further, the authors attempt to succinctly discuss the importance of ensuring fixity of tenure in probe agencies in order to ensure their independence.

EXPLORING THE CONTOURS OF NULLIFYING THE EFFECTS OF A JUDICIAL PRONOUNCEMENT THROUGH AN AMENDMENT

Decoding the rationale in Common Cause (A Registered Society) v. The Union of India:

The Writ petition filed in Common Cause (A Registered Society)v. Union of India challenged the office order dated 13.11.2020 issued by the President of India, which granted a year-long extension to the director of enforcement. The essence of the challenge to the extension was on the grounds it violated Section 25(d) of the Central Vigilance Commission Act, 2003. The Petitioner contended that the words “not less than two years” in the Act had to be construed as a maximum tenure of two years from the date of the assumption of office. Further, the Petitioner also contended that as the Director of Enforcement had attained the age of superannuation during the initial two years of his appointment, it was not tenable for him to continue with an extension.

The Apex Court following a literal interpretation of the words “not less than two years” in Section 25(d) of the Act construed the same to be a fixed period of service aimed at providing security from any premature transfers based on external political motivations. The Court found that Section 25 of the Act provides no bar to the government’s power to extend the tenure of the Director of Enforcement beyond two years. However, the Apex Court subjected the same to the age of superannuation as provided under the fundamental rules issued by the Department of Personnel and Training, Government of India. Rule 56(a) of Fundamental Rules provides that every government servant in India shall retire after having attained the age of sixty years.

In the present case, the Director of Enforcement had attained the age of superannuation in the interregnum, ie in between his initial tenure of two years. Drawing inference from the judgment of the Apex Court in Uday Babu Khalwadekar v. Union of India, the Court held that notwithstanding the attainment of the age of superannuation in the interregnum of the initial two years in service, the Director was entitled to complete his tenure. The Court ratiocinated the same by construing Section 25 of the Act to have a supervening effect on the fundamental rules. However, notwithstanding such a supervening effect, the Apex Court held that after attaining the age of superannuation, extension of tenure could only be granted in the rarest and most exceptional cases and only for a short duration. Although the Court refrained from delving into the merits of the extension provide to Mr. Sanjay Mishra, any further extension to be granted to Mr. Sanjay Mishra was strictly prohibited. Inference from the same has been drawn from:

“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. A reasonable period of extension can be granted to facilitate the completion of on-going 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 the 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 .”

Amending Section 25(d): A new declaration?

It is settled law that the legislature cannot directly overrule a previous judicial decision only by making a bare declaration. However, in doing the same; the legislature can alter the legal basis or cure the defect on which the decision has been pronounced. Using such a mechanism is considered valid legislative exercise. Inference for the same can be drawn from the judgment of the Apex Court in, Baharul Islam & Ors. v. The Indian Medical Association & Ors., where the Court said, “The Legislature cannot directly overrule a judicial decision. But when a competent Legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the said exercise is a valid legislative exercise provided it does not transgress on any other constitutional limitation.” The moot question that needs to be addressed here is whether the amendment to Section 25(d) of the Central Vigilance Commission Act, 2003 is aimed at defeating the judicial pronouncement of the Apex Court in Common Cause (A Registered Society)v. Union of India by a mere declaration.

(Deborshi Sarkar & Rishab Gupta are law undergraduates at Symbiosis Law School, Noida. The authors may be contacted via email at [email protected] & [email protected] )

Cite as: Deborshi Sarkar & Rishab Gupta , ‘The Central Vigilance Commission (Amendment) Act, 2021: Another Tale of Legislative Overreach?’ (The RMLNLU Law Review Blog13 June 2023) date of access.