The present judgement has been delivered by the Hon'ble Mr. Justice D.K. Jain ,on behalf of the bench comprising of the Hon'ble the Chief Justice, Hon'ble Mr. Justice R.V. Raveendran, Hon'ble Mr. Justice P.Sathasivam and Hon'ble Mr. Justice J.M. Panchal.
The Back Ground of the Case
The case arose out of the famous Garbeta incident , when goons of the Communist Party of India ( Marxist) murdered some non Communist political workers while they were conducting a meeting . One person managed to escape and the police after great amount of delay lodged a complaint . On huge amount of public pressure the Director General of Police of the state , directed the matter to be taken up the CID . However , a writ was preferred in the High Court by the Respondents praying that the Hon’ble High Court direct investigation of the crime by the CBI since the people did not have confidence in the investigation as most of the accused were supporters of the ruling party . The Hon’ble High Court in it’s judgment went on to direct that CBI should take over investigation of the said crime , which was appealed by the State of West Bengal by the present SLP .
When the matter appeared before the Supreme Court , two sets of decisions were placed before the Court namely Management of Advance Insurance v. Gurudasmal , as contrasted with Kazi Lhundup Dorji v. CBI . The bigger and broader question was offcourse as to whether any High Court can direct investigation of any purported crime by the CBI , which was established by the Delhi Special Police Establishment Act, 1946 , and it was apparent that there were conflicting decisions regarding the same.
The Court therefore referred the matter to the Hon’ble Chief Justice , who in turn constituted the present constitutional bench to go into the matter and the constitutional questions arising therefrom .
The Contentions raised by the Parties :
The contention of the State of West Bengal was that :
“ Shri K.K. Venugopal, learned senior counsel appearing on behalf of the State of West Bengal, referring to Entry 80 of List I of the Seventh Schedule to the Constitution of India; Entry 2 of List II of the said Schedule as also Sections 5 and 6 of the Special Police Act strenuously argued that from the said Constitutional and Statutory provisions it is evident that there is a complete restriction on Parliament's legislative power in enacting any law permitting the police of one State to investigate an offence committed in another State, without the consent of that State. It was urged that the Special Police Act enacted in exercise of the powers conferred under the Government of India Act, 1935, Entry 39 of List I (Federal Legislative List) of the Seventh Schedule, the field now occupied by Entry 80 of List I of the Seventh Schedule of the Constitution, replicates the prohibition of police of one State investigating an offence in another State without the consent of that State. It was submitted that Entry 2 of List II which confers exclusive jurisdiction on the State Legislature in regard to the police, the exclusive jurisdiction of a State Legislature cannot be encroached upon without the consent of the concerned State being obtained.”
The Union of India however contended that :
“ Shri Goolam E. Vahanvati, learned Solicitor General of India, appearing on behalf of the Union of India, submitted that the entire approach of the State being based on an assumption that the alleged restriction on Parliament's legislative power under Entry 80 of List I of the Seventh Schedule to the Constitution and restriction on the power of the Central Government under Section 6 of the Special Police Act to issue a notification binds the constitutional courts i.e. the Supreme Court and the High Courts is fallacious, inasmuch as the restrictions on the Central Government and Parliament cannot be inferentially extended to be restrictions on the Constitutional Courts in exercise of their powers under Articles 32 and 226 of the Constitution as it is the obligation of the Superior Courts to protect the citizens and enforce their fundamental rights. Learned counsel vehemently argued that the stand of the appellants that the exercise of power by the Supreme Court or the High Courts to refer investigation to CBI directly without prior approval of the concerned State Government would violate the federal structure of the Constitution is again misconceived as it overlooks the basic fact that in a federal structure it is the duty of the courts to uphold the Constitutional values and to enforce the Constitutional limitations as an ultimate interpreter of the Constitution.”
The Conclusions of the Court :
The Court was pleased to state point wise as to clearly what it had said :
“ i)The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii)Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers.In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii)In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that 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.
(v) 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.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. 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 failing in its constitutional duty.
(vii)When the Special Police Act itself provides that subject to the consent by the State, the 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 the 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.”
Interestingly the court put a caveat in the end :
“In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521, this Court had said that an order directing an enquiry by the CBI should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency.We respectfully concur with these observations.”
A few Observations :
The case in many ways is a momentous one , in any manner it lays down the principle that there can be no fetters on the judiciary to do complete justice and the Supreme Court declares itself as a bulwark against the excesses committed by the state or those enjoying power.
In many ways the Supreme Court reiterates a principle which is enshrined in our fundamental rights and is natural human right , i.e. the right to life and the right to remedy for breach of fundamental rights . In the course of upholding fundamental rights , the Court has held that mere technicalities of law should not be a barrier to get justice.
The Court in someways it seems was of the opinion that to do justice it is important that justice is seen to be done and in many cases the impression that the state agencies are biased towards the Government is a regular and apparent fact , and therefore those at the receiving end of the excesses of the state are very skeptical as to the justice that they may receive at the hands of the state agencies . It is rightly so.
However there seems to be a niggling worry . It is well known that the CBI is a hand maiden of another Government , that of the Centre, and allowing the CBI to investigate crimes in which the state government or those associated with it are accused , leads to two types of results , clearance of those close to the ruling party at the centre and the harassment of those against it . No doubt that the Supreme Court is aware of the same , however it is indeed strange that there seems to be no observation or guidelines about it , which needed to have been laid down and laying down of which would have done immense service to federal structure of the country .
Epilogue :
It is interesting indeed that the matter about the atrocity at Garbeta comes out now , just when the Communist Government in West Bengal is on the verge of being deposed by the people whom it had held in thrall through the use of violence and terror . It is important that those involved in the incidents at Garbeta and the other incidents like Nandigram be brought to justice so that the gory and violent history of the Communist regime in West Bengal can come to an end and those responsible for inflicting mass violence on innocent people only on the ground that they held a different ideology , be brought to justice and be made answerable for their crimes . I am sure a fair investigation , would lead to the very top , sadly , going by the history of the CBI , I doubt that the investigation would either be fair or transparent and it is rightly feared that the actual directors of the incidents like Garbeta and Nandigram may actually get away......... and there lies the danger of it all.
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