By SK Padhi*
The Constitutional Bench (five Judges) judgment of the Hon’ble Supreme Court in the case of State of West Bengal and others Vs. Committee for Protection of Democratic Rights, West Bengal and others, reported in (2010) 3 SCC 571, was a landmark judgment in which it has been held that notwithstanding the statutory restrictions in the Delhi Special Police Establishment Act, the High Court under Article 226 and the Supreme Court under Article 32, can direct any matter to be investigated by CBI for fair and impartial enquiry. The power of the Constitutional Courts to direct for CBI enquiry was being resisted on twin constitutional principles of separation of power and federalism. In the conclusions of the said judgment, the Hon’ble Court observed as follows:
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(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
- In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
- Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”
CBI is primarily an anti-corruption bureau of the Central Government. But slowly due to the various court orders it had encroached into the area of State subjects more and more. We are aware of the corruption cases of Lalu, Mulayam, Mayawati being investigated by CBI so also many critical cases like chit fund cases. There is no doubt all these cases are of very serious nature and honesty has never been the bane of an Indian politician. There are many sensitive cases which can never be left to State investigating agencies without proper supervision. But the next question, is it appropriate to direct for CBI investigation? CBI as an organisation had great credibility and lot of ethos. We had very good Directors of CBI who maintained those ethos. But slowly the organization is losing its credibility and the Supreme Court itself has observed it to be a caged parrot. In India, no other organisation in recent history has slided so fast as CBI.
Now the CBI has reached its nadir with its former Directors facing enquiry/prosecution, there was cat fight between the Director and Special Director and both filed prosecution against each others. The present Director possibly has no CBI experience. Notwithstanding the judgment of the Supreme Court which made the post of Director, a tenure post of two years and the statutory safeguard in the Delhi Special Police Establishment Act in providing that the Director shall be appointed by a committee consisting of Prime Minister, leader of Opposition or leader of largest party in opposition and the Chief Justice or Judge of the Supreme Court nominated by him (Section 4A of the Delhi Special Police Establishment Act) and also making the tenure of the Director not less than two years (u/s. 4B of the said Act) the Directors are not insulated from political interference due to various ways and subterfuge. Section 4C of the said Act provided that any appointment of Superintendent of Police and above except Director, it shall be done on the recommendation of the CVC., Vigilance Commission, Secretary of Home, Secretary of Personnel Department and shall consult the Director before recommending. Needless to say when the interim Director, Sri Nageswar Rao was promoted and appointed as Addl. Director, the Director was never consulted. It is now very important to restore the credibility of CBI. There are various ways to restore the credibility of CBI and I have the following suggestions.
The CBI should be made a professional organisation and all officers should be inducted through scrutiny. The Director must be an officer with CBI background and preference should be given who is working as Addl. Director or Special Director. And till the credibility of CBI is restored, the High Court and the Supreme Court should not direct any investigation having political ramifications to be transferred to CBI. In many cases it requires impartial investigation and the Court can direct that it can be done by a Special Investigation team being monitored by a former officer of impeccable integrity or former Judge of the High Court or statutory bodies like Lokayukta and report directly to the Courts. Simultaneously, I think the Chief Vigilance Commissioner which has some supervisory powers on CBI should be manned by a former Judge of the High Court or Supreme Court. There is great modicum of honesty, impartiality left in our judicial system and the bureaucracy when asked to bend are prepared to crawl and politicians are exploiting it to the hilt.
Unfortunately the Central Government and the parties in power in Centre are utilising CBI to settle political scores. Till the credibility of CBI is fully restored, the Hon’ble Courts are humbly requested not to direct for CBI investigation involving the political dispensation of the States.
The views expressed in the article are solely those of the author and in no way reflect that of www.odishasuntimes.com
(SK Padhi is a senior lawyer at Orissa High Court and former retainer counsel, CBI. He can be contacted at 9437022242)
The article was published in http://saurjyakantapadhi.blogspot.com