BY V VENKATESAN PUBLISHED IN THE FRONTLINE
“Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation which has the effect or tends to have the effect of whittling down the powers reserved to the States…. Let it be said that federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our historical process, and a recognition of the ground realities” (emphasis added).
THE above observations of Supreme Court judge Justice B.P. Jeevan Reddy in his leading majority opinion in the Bommai case (1994) failed to convince the five-judge Constitution Bench that ruled, on February 17, that the High Courts and the Supreme Court can direct, without the consent of the State government concerned, investigation by the Central Bureau of Investigation (CBI) into offences committed in a State.
The nine-judge Bench in the Bommai case, on the basis of the extraordinary facts pointing to the collusion of State governments in the demolition of the Babri Masjid in 1992, had held that State governments that pursued unsecular policies could be dismissed under Article 356 of the Constitution. However, the principle laid down by Justice Jeevan Reddy with regard to the courts’ responsibility to safeguard federalism should have bound the five-judge Bench. But it did not.
The five-judge Bench, headed by Chief Justice of India K.G. Balakrishnan and comprising Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, held that its decision would neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of powers. The Bench claimed that it had the power and obligation to protect the fundamental rights zealously and vigilantly.
The judgment was an outcome of a nine-year-old case involving the killing of 11 Trinamool Congress workers at Chhota Angaria village, Medinipur district, West Bengal, on January 4, 2001. It was alleged that Communist Party of India (Marxist) workers had committed the crime. The Calcutta High Court, acting on a petition filed by the Committee for Protection of Democratic Rights (CPDR), West Bengal, ordered a CBI probe into the case in 2001 without seeking the consent of the State government. The CPDR told the court that it had no faith in the impartiality of the Criminal Investigation Department (CID) of the State, which was then investigating the case.
The West Bengal government appealed against the High Court’s order as it felt that the State CID was an independent agency and the High Court was wrong in rejecting its plea to give more time to the CID to complete the probe. The case was a complicated one because even the bodies of the victims were not to be found, raising doubts about the veracity of the allegations. The appeal was referred to the Supreme Court’s Constitution Bench in view of the substantial question of law it raised.
The judgment, written by Justice D.K. Jain, sought to expand further Article 21 of the Constitution, which guarantees that no person can be deprived of his or her life or personal liberty except under the procedure established by law. The Bench held that the State had a duty to enforce the human rights that provide for fair and impartial investigation against any person accused of committing a cognisable offence. This aspect of the judgment strengthens human dignity inherent in the guarantee of right to life, in Article 21, which is a basic feature of the Constitution. However, while giving effect to this principle, the five-judge Bench went beyond the constitutional mandate.
The CBI is a special police force set up under the Delhi Special Police Establishment (DSPE) Act, 1946, for the investigation of offences in any Union Territory. The superintendence of the CBI vests in the Central government, which specifies, by notification, the offences or classes of offences to be investigated by the CBI.
Section 5 of the Act empowers the Central government to extend the powers and jurisdiction of the CBI to any area in a State, not being a Union Territory, for the investigation of specified offences. This power is restricted and qualified by Section 6, which reads: “Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or Railway area, without the consent of the government of that State.”
Section 6 is a compulsion and a constitutional imperative arising from the federal nature of the country’s Constitution and the division of powers between the Union and the States. Without Section 6, Section 5 would be outside the legislative competence of Parliament and, as such, unconstitutional and void.
The basic principle of federalism is that the legislature and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre, but by the Constitution itself. The Constitution incorporates the concept of federalism in various provisions. Lists II and III under the Seventh Schedule give plenary powers to State legislatures in specified subjects.
Police, including Railway Police, is a State subject (Entry 2 in List II). The Centre’s power to extend the CBI’s jurisdiction to the States can be traced to Entry 80 in List I. This entry rules out expressly such extension without the consent of the State concerned.
In the recent Prakash Singh case, the Supreme Court showed an extraordinary interest in reforming the police forces in the States and making them truly professional, insulating them from extraneous political pressures. There can be no dispute about the merits of this intervention by the judiciary. But, as experts have noted, that is no better an argument for acquisition by the Union of powers given to the States than it is for the declaration of President’s Rule in States. As B.R. Ambedkar stated in the Constituent Assembly, the Centre has no authority to intervene in provincial affairs for the sake of good governance in the provinces. Can the judiciary appropriate to itself an authority that is expressly denied to the Centre by our Constitution-makers? This is what the Supreme Court seems to have done while justifying its decision in this case. Section 6 of the DSPE Act, according to the five-judge Bench, cannot control the High Courts or the Supreme Court.
Article 142 of the Constitution mandates that the Supreme Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. However, as laid down by the Supreme Court’s five-judge Bench in an earlier case, this Article cannot be used to build a new edifice where none existed by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. The Bench noted this concern expressed by counsel for the West Bengal government, K.K. Venugopal, but did not bother to answer it.
Attorney-General G.E.Vahanvati, who, as the Solicitor General at that time, appeared for the Centre during the arguments before the Bench, defended the courts’ power to direct CBI investigations without the consent of State governments. He argued that in a federal structure it was the duty of the courts to uphold constitutional values and enforce constitutional limitations, as the ultimate interpreter of the Constitution.
There is no dispute over the court’s claim – supported by the Centre – that judicial review acts as the final arbiter to give effect to the distribution of legislative powers between Parliament and State legislatures and to show any transgression by such entity. But there was no dispute between the Centre and the States over the distribution of legislative powers, nor was there any allegation that either of them transgressed those powers.
One would agree with the Bench that any direction by the Supreme Court or the High Court in the exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violation of the federal structure because courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by legislative action. But the present case did not involve any violation of the federal structure by legislative action.
The judgment included bland assertions of courts’ powers, such as the following: “Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.”
The Constitution prevents Parliament from encroaching upon States’ rights by distributing the legislative powers between them. How the courts could approve similar encroachment by themselves, even while restricting Parliament from doing so in the guise of protecting fundamental rights, is not clear.
Entry 2A of List I is about the deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. The CBI is not an armed force, and, therefore, cannot be subject to the control of the Union. Overlooking this and Entry 80 of List I, the court justifies its exercise of the “same power” (which is non-existent!) that the Union could exercise in terms of Section 5 of the DSPE Act.
Paragraph 46 of the judgment classifies the victims, whose rights the court has sought to defend in this case, rather unreasonably. It is only those victims of incidents with national and international ramifications who deserve the courts’ intervention, in the absence of the State government’s consent, to direct a CBI investigation. That the courts may well ignore the plight of ordinary victims who fail to grab the attention of the national and international media is the inference one would draw from the judgment.
According to the Supreme Court, if the investigation by the State police lacks credibility or does not inspire confidence, then also the constitutional courts can direct a CBI investigation. The judgment may well open a Pandora’s box because it is common to find all manner of victims alleging bias when the State police investigate. If courts have the discretion to decide whether in a particular case the State police lack credibility or do not inspire confidence, then it will be difficult for courts to justify their discretion – in the absence of clear guidelines – and this can invite the charge of arbitrariness.
In a sense, the February 17 judgment has removed the bar on the CBI going ahead with its investigation into cases assigned to it earlier by courts without State government consent. The CBI’s probe into the March 14, 2007, police firing at Nandigram, West Bengal, in which 14 people were killed, is one of them. The Supreme Court may have to decide, in the light of this judgment, whether directions to the CBI to investigate cases such as the Chhota Angaria massacre and the Gujarat carnage satisfy the conditions laid down by it.
Constitutional courts such as the High Courts and the Supreme Court could have better defended the right to fair investigation into certain crimes by ensuring the effective monitoring of the State police than by directing the CBI to take up such cases, which is contrary to the letter and spirit of federalism, notwithstanding the CBI’s poor track record in freeing itself from political influences and its inadequate manpower to investigate all and sundry cases.