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HCs, apex court don’t need OK
from state for CBI probe: SC
New Delhi : The
Indian Supreme Court has said that constitutional courts in the
country can order a CBI inquiry into a crime committed within the
territory of a state without the consent of the state government
concerned.
In an unanimous
ruling, a Constitution Bench led by Chief Justice of India K G
Balakrishnan said it is the “constitutional duty” of superior courts
to order independent inquiry by the CBI into a crime if they have
strong doubts that the fairness and impartiality of the state police
probe is hampered “because of the political fallout”.
Restrictions by
laws of Parliament or of a state legislature cannot restrain
constitutional courts of the land — the Supreme Court and high
courts — from exercising their “obligation to protect the citizens
and enforce their Fundamental Rights” to a fair and impartial
investigation of a cognisable offence.
“No Act of
Parliament can exclude or curtail the powers of the Constitutional
Courts with regard to the enforcement of Fundamental Rights,” the
five-judge bench said.
The verdict
means that constitutional courts can overlook Section 6 of the Delhi
Special Police Establishment Act, 1946 — a Central statute under
which the CBI was set up. As per Section 6, the consent of the state
government is essential to investigate an offence allegedly
committed within its territory as Law and Order and Police are State
subjects under the Constitution.
The Constitution
Bench was deciding an appeal filed by various state governments,
primarily West Bengal, against a decision by the Calcutta High Court
in 2001 to hand over to the CBI the investigation into the violent
deaths of 11 workers of a political party by a mob at Garbeta in
Midnapore district.
The High Court
had come to the decision after allegations were raised that the
state police “was under the influence of the ruling party which was
trying to hide the incident to save its image”. At that time, Goolam
E Vahanvati, then Solicitor General who appeared for the Union of
India, said restrictions on the Central government and Parliament
does not inferentially extend to the powers of the constitutional
courts for judicial review.
Senior advocate
K K Venugopal, who appeared for West Bengal, argued that courts
cannot interfere with State Executive powers by ordering a CBI
inquiry — he called the agency a “rank outsider” — even if it is
apparent that the state police was conducting an “impartial
investigation”.
The Bench said
that a superior court would certainly step in to order a CBI probe
if it has “serious reservations” that a state is lagging behind in
its “duty to enforce the human rights of a citizen by providing for
fair and impartial investigation against any person accused of
commission of a cognisable offence, which may include it own
officers”.
“Article 21
(fundamental right to life) of the Constitution not only takes
within its fold the enforcement of the rights of an accused but also
the rights of the victim,” the Bench observed.
“Being
protectors of civil liberties of the citizens, this Court (the
Supreme Court) and the high courts have not only the power and
jurisdiction but also an obligation to protect the Fundamental
Rights zealously and vigilantly,” the Bench said.
The decision by
the Supreme Court or any high court in the country to order CBI
probe in an “exceptional situation” should not be construed as in
interference in the powers of the State Executive or a violation of
the federal structure, the court said.
“A direction by
the high court to the CBI to investigate a cognisable 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
the Separation of Powers and shall be valid in law,” stated the
Supreme Court judgment, penned by Justice D K Jain.
“In our opinion,
exercise of such power by the Constitutional Courts would not
violate the Doctrine of Separation of Powers, In fact, if in such a
situation the court fails to grant relief, it would be a failing in
its constitutional duty,” observed the Bench, which also comprised
Justices R V Raveendran, P Sathasivam and J M Panchal.
The Bench added
a word of caution to the higher judiciary that “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.”
It went on to
remind that “otherwise the 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”.
24
February 2010
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