Introduction 

• This is a landmark judgment which deals with amendments related to extension of tenure of the Director of Enforcement. 
• This judgment was delivered by a Supreme Court bench comprising of Justice BR Gavai, Justice Vikram Nath and Justice Sanjay Karol.  

Facts 

• The Respondent no. 2 (Sanjay Kumar Mishra) was working as Principal Special Director in the Directorate of Enforcement and was appointed as Director of Enforcement for a period of two years from the date of assumption of his post.  
• The President of India modified the order and amended the period of appointment from two years to three years. This was by way of order dated 13th November 2020. 
• A writ petition was filed Common Cause v. Union of India (2020) praying for quashing of order dated 13th November 2020 and to direct 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 “(CVC Act). 
• The Court dismissed the petition but directed that no further extension shall be granted to Respondent no. 2. 
• On 14^th November 2021, the President of India promulgated the Civil Vigilance Commission (Amendment) Ordinance, 2021 inserting two new provisos to Section 25 (d) of the CVC Act. 
• Simultaneously, the President also promulgated the Delhi Special Police Establishment (Amendment) Ordinance, 2021 (DSPE Act) , thereby inserting two provisos to Section 4B (1) of DSPE Act. 
• On 15^th November 2021 the Fundamental Rules, 1992 (F.R.) whereby a new proviso was added. 
• On 15^TH November 2021 the Central Vigilance Commissioner in a meeting headed by it decided to extend the tenure of Director of Enforcement for one year i.e. 18th November 2022. 
• Consequently, the Parliament enacted the Central Vigilance Commission (Amendment) Act, 2021 and Delhi Special Police Establishment (Amendment) Act, 2021. 
• There were petitions filed challenging the vires of the above mentioned Acts and the F.R. 
• However, during the pendency of the said writ petitions the tenure of Respondent no. 2 was further extended for a period of one year from 18th November 2022 to 18th November 2023.    
• The present writ of certiorari has been filed seeking to quash the order passed by Respondent no 1 for further extension of tenure of the Respondent no 2.  

Issue Involved  

• Whether the amendment to Section 25 of CVC Act by Central Vigilance Commission (Amendment) Act, 2021 and to 4B (1) of the DSPE Act by Delhi Special Police Establishment (Amendment) Act, 2021 and the amendment in F.R are liable to held ultra vires and set aside? 
• Whether the order of extension of tenure of Director of Enforcement for a period of one year vide orders dated 17th November 2021 and 17th November 2022 are legal and valid, and if not, whether liable to be set aside?

Observations 

• With respect to Issue (i): 
  • The Court first delineated the scope of judicial review. It was observed that legislation cannot be held unconstitutional lightly. 
  • It was observed that there are two grounds on which the challenge to the Legislative Act is sustainable: 
    • If it is established that the legislature did not have competence to enact on the subject it has enacted the law. 
    • Such an enactment is in contravention of fundamental rights under Part III or any other provision of the Constitution. 
  • The ground that has been taken in this case to challenge the constitutionality is that the impugned legislation is arbitrary. 
  • It is to be noted that by way of amendment in the present legislations the legislature has empowered the Government to extend the tenure of the incumbent in office by a period of one year at a time subject to maximum of 5 years. Such extensions as per the amended provision can be granted only if the Committee constituted for recommending their appointment recommends the extension in public interest. 
  • Thus, it is not at the sweet will of the incumbent that the extension of tenure can be granted. 
  • Also, the Court held that the provisions are not in contravention of the law laid down in Vineet Narain v. Union of India (1998). 
  • Thus, the Court refused to strike down the legislation in question.
• With Respect to Issue (ii): 
  • In the case of Common Cause v. Union of India (2021) the order dated 13th November 2020 was under challenge by which the President approved the extension of tenure of the second respondent. 
  • In the above mentioned case the Court did not strike down the law but issued a writ of mandamus which was binding on both the parties. 
  • The Court has held in several judgments earlier as well that the effect of the judgment of the Court can be nullified by a legislative act removing the basis of the judgment. 
  • However, the Court held that the nullification of mandamus by an enactment would be impermissible legislative exercise. 
  • The Court thus, in this case held that the contention that the very foundation on which the judgment in the case of Common Cause v. Union of India (2020) is based was taken away is without any substance.  

The Final order Passed: 

• The Court rejected the challenge to the impugned legislations. 
• The order granting extension to the tenure of Respondent no. 2 was held to be illegal. 
• The Respondent No. 2 was however permitted to continue to hold office till 31st July, 2023.

Conclusion 

• This judgment upheld the validity of Central Vigilance Commission (Amendment) Act, 2021 and Delhi Special Police Establishment (Amendment) Act, 2021 that provided for extension of tenure of Director of Enforcement. 
• Further, this judgment reiterates the well settled principle that nullification of mandamus by an enactment is an impermissible exercise.