सुप्रीम कोर्ट का ED पर बड़ा फैसला | ED प्रमुख का एक्सटेंशन गैरकानूनी

CASE NOTES: - 

• Dr. Jaya Thakur v. Union of India, 2023 INSC 616
• Reportable Judgment dated 11.07.2023 authored by Hon’ble Justice B.R. Gavai, Bench of Hon’ble Justices B.R. Gavai, Vikram Nath and Sanjay Karol.
• 103 Pages Judgment with 122 Paragraphs.

·        Facts (Paras 1 to 14): -

o   Order dated 19.11.2018 – Respondent No. 2, Mr. Sanjay Mishra, working as Principal Special Director of ED was appointed as a director for 2 years.

o   Order dated 13.11.2020 – Period of appointment extended from 2 years to 3 years.

o   Judgment dated 08.09.2021 – Common Cause v. Union of India & Ors., 2021 SCC OnLine SC 687 – The Court directed that no further extension shall be granted to the Respondent No. 2, ED Director.

o   14.11.2021 – The President of India promulgated Central Vigilance Commission (CVC) (Amendment) Ordinance, 2021 and Delhi Special Police Establishment (DSPE) (Amendment) Ordinance, 2021, inserting certain new provisions in it. These ordinances later on become Acts on 18.12.2021 when Parliament was in session.

o   15.11.2021 - Fundamental (Amendment) Rules, 2021 was passed. On the same date, a Meeting of the Committee headed by Central Vigilance Commissioner was held and the tenure of Respondent No. 2, ED Director was extended up to 18.11.2022 in public interest.

o   17.11.2022 – Further extension was granted to Respondent No. 2 till 18.11.2023 by the Union of India.

o   These Amendment Acts and extension of tenure of Respondent No. 2 were challenged in a batch of Writ Petitions.

·       Issue No. 1 –

o   Three laws in challenge, 2 amendments to CVC and DSPE Act and 1 amendment in the Fundamental Rules.

o   These amendments provide for the period for which CBI or ED Director hold office can be extended for one year at a time in public interest and the maximum period of appointment will be five years (Para 64).

o   Any amendment or law can be struck on three grounds only (Paras 71 to 75): -

§  The legislature does not have the competence to make the law; or

§  It takes away any of the fundamental rights in the Constitution; or

§  It violates a Constitutional Provision being manifestly arbitrary.

o   However, in the present case, the Court said that the CVC Act and DPSE Act provide for a stringent mechanism of appointment and there is no scope for the government to do the same in an arbitrary manner (Paras 91 to 98).

o   Therefore, it cannot be said that Amendments in question grant arbitrary power to the Government to extend the tenure of director of ED/CBI.

·    Issue No. 2 – Regarding extension of tenure of ED Director, the Court said that in the earlier case of Common Cause (2021), a specific direction was given by the Court that no further extension will be granted to Sanjay Kumar Mishra, Respondent No. 2.

o   Even if the Parliament changes or amends a law on the basis of which a decision was given by the Court, still the Parliament cannot change the decision of the Court that is binding on the parties to the case. Parliament can exercise legislative power and not judicial power. (S.R. Bhagwat v. State of Mysore and In Re Cauvery Water Disputes Tribunal cited, Para 108).

o   If a law has been struck down by the Court, the Parliament is free to make a new law on that very issue. There is permissibility of Legislative Override. However, any such new law must not be arbitrary or violative of Fundamental Rights (Madras Bar Association v. Union of India & Another, 2022 12 SCC 455 cited, Para 113 & 114).

o   But where a Mandamus or a specific direction has been given by a court without striking down any law, the Parliament cannot nullify such direction by legislative exercise.

o   Therefore, the Common Cause (2021) Judgment would continue to operate even after passing of the Amendments as no law was struck down in that judgment and only direction was given to the parties to the case. Hence, extension of tenure of ED Director was held as invalid in law.

o   The Court said that in order to ensure the transition to be smooth in the larger public interest, the Respondent No. 2 was allowed to continue in office till 31.07.2023.

·      Thus, the Writ Petitions were dismissed to extent of their challenge to the validity of the Amendments in CVC and DPSE Act, but were partly allowed to the extent that the grant of extension to Respondent No. 2, Sanjay Kumar Mishra, is illegal.