LAW RESOURCE INDIA

HCs, apex court don’t need OK from state for CBI probe: SC

Posted in COURTS, JUDICIARY, JUSTICE, LIBERTY AND JUSTICE by NNLRJ INDIA on February 18, 2010

INDIAN EXPRESS

The Supreme Court today ruled 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”.

http://www.indianexpress.com/news/hcs-apex-court-dont-need-ok-from-state-for-cbi-probe-sc/581278/0

One Response

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