THE Supreme Court judgement that constitutional courts can order a CBI investigation into a serious cognisable offence without the consent of the state government concerned is a landmark ruling. The verdict given by a Constitution Bench consisting of Chief Justice K.G. Balakrishnan, Justice R.V. Raveendran, Justice D.K. Jain, Justice P. Sathasivam and Justice J.M. Panchal addresses one of the most contentious issues that followed the Nandigram police firing when the Calcutta High Court ordered a CBI probe without consulting the state government.
A close look at the judgement suggests that the apex court's rationale behind the ruling was to protect the citizens' fundamental rights at any cost. The doctrine of separation of powers cannot curtail the power of judicial review of constitutional courts (i.e. the Supreme Court and the High Courts) in situations where civil liberties and fundamental rights were being violated, the Bench ruled.
The power of judicial review, vested in the Supreme Court and the High Courts under Articles 32 and 226 respectively, is an integral part of the Constitution, constituting part of its basic structure. Thus, the power of the apex court and the High Courts to test the constitutional validity of legislations "can never be ousted or abridged", the Bench observed.
Under Article 245 of the Constitution, all legislative powers of Parliament or the state legislatures are expressly made subject to other provisions of the Constitution, including the rights conferred in Part III of the Constitution. If any of these rights are violated, the constitutional courts not only declare a law as unconstitutional but also enforce fundamental rights by issuing directions or writs in the nature of mandamus, certiorari, habeas corpus, prohibition or quo warranto.
Interestingly, the Bench referred to the then Chief Justice Y.V. Chandrachud's ruling in the Minerva Mills case, who, speaking for the majority, observed that Articles 14 (right to equality) and 19 (fundamental rights) confer rights which are elementary for the proper and effective functioning of democracy. He said if the two Articles are "put out of operation", Article 32 will be "drained out of its lifeblood".
The Bench rejected the West Bengal government's contention that clipping the state's power of clearance for a CBI probe will violate the federal structure. On the contrary, it ruled that the Constitution protects 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 any "attempted violation." It emphasised that the restriction on Parliament or state legislatures by the Constitution and curbs on the executive by Parliament under an enactment do not amount to a restriction on the judiciary's power under Articles 32 and 226.
Equally significant is the observation that when the Delhi Police Special Establishment Act, 1948, itself provides that subject to the state's consent, the CBI can take up investigation in relation to the crime which was otherwise within the state police's jurisdiction, the court can also exercise its power of judicial review and direct the CBI to take up the investigation within the state's jurisdiction. While the High Court's power under Article 226 cannot be abridged or curtailed by Section 6 of the Delhi Police Special Establishment Act, the restriction imposed by this section on the Union's powers cannot be read as restriction on the constitutional courts' powers, the Bench observed.
Significantly, the Bench has prescribed some riders to constitutional courts in the exercise of the "extraordinary power" of ordering a CBI probe without the state governments' consent. It ruled that the courts must use the power "sparingly, cautiously and in exceptional circumstances"; when it becomes necessary to provide credibility and instil confidence in investigations; when the incident may have national and international ramifications; and when it is necessary for doing complete justice and enforcing fundamental rights.
The Supreme Court was convinced that without these "self-imposed restrictions" on the exercise of powers by constitutional courts, the CBI would be flooded with cases and thus may find it difficult to investigate them properly and, in the process, "lose its credibility and purpose".
At the same time, the court said that no "inflexible guidelines" could be laid down on when such power should be exercised. In other words, it decided on a general principle of law but left individual cases to Benches hearing them. It said the High Courts would have to weigh evidence before deciding if a case could be made out for a CBI probe.
Though the apex court has given its considered opinion on an important issue, the crux of the problem remains: how independent and autonomous is the CBI? For, the country's premier investigating agency is considered more as the handmaiden of the Centre rather than an impartial body inspiring confidence. The CBI seems reluctant to probe allegations of corruption against the big fish. Its flip-flops in Bofors, Hawala, Taj Corridor and several other cases speaks volumes about its efficiency. That it is susceptible to pressures from the Centre can be proved by its questionable role in the Taj Corridor case, involving Uttar Pradesh Chief Minister Mayawati. Both the NDA and the UPA-I governments used it to tame Ms Mayawati for her party's crucial support to their respective governments.
In February 2009, the Supreme Court pulled up the CBI for "acting at the behest" of the Centre in the disproportionate assets case against former UP Chief Minister Mulayam Singh Yadav and his relatives. It questioned the CBI's rationale in seeking the Union Law Ministry's "opinion" about withdrawal of its earlier application seeking to file the report on inquiry to the court. "Why did you file the interim application on the opinion of the Central government? It is incomprehensible", the Bench observed.
Successive governments at the Centre have kept mum on the Supreme Court's 1997 order recommending more autonomy to the CBI. It had also mandated the creation of a prosecution agency similar to that of the United Kingdom's Director of Prosecutions to fix responsibility on individual officers in cases where poor investigation leads to acquittals.
The CBI's increasing politicisation needs to be checked to restore the common man's faith in fair investigation. The ideal solution would be to render complete autonomy to it on the lines of the Election Commission of India. As a first step, the Director's primacy in the institution needs to be restored. At present, he is just an invitee (and not a full-fledged member) to the Central Vigilance Commission Board that selects IPS officers for senior positions in the CBI from states.
The Director's appointment and service conditions as also of other officers should be completely freed of the executive control. And they must be selected by a collegium comprising the Vice-President, the Prime Minister, the Chief Justice of India, the Lok Sabha Speaker and the Leader of Opposition in the Lok Sabha. A similar mechanism should be evolved for the state investigating agencies also.
Worthy of mention in this context is the National Human Rights Commission's submission in the Supreme Court emphasising the need for selecting top officers based on merit and experience rather than their political suitability. Policing and investigation will command credibility only when these agencies are treated essentially as instruments of law and not as the Centre's tools.
The Parliamentary Standing Committee on the Working of the CBI (March 2008) has recommended that the CBI Director should be given the same status as that of his counterparts heading similar international organisations such as the Federal Bureau of Investigation (FBI) in the United States. He should be given suitable powers and discretion to take on-the-spot decisions regarding vital proposals for improvement of infrastructure, methods of investigation, etc. His present sanction limit of Rs 30,000 is a pittance and he is hardly able to do justice to his work.
Over the years, the CBI's workload has increased by leaps and bounds. Too many special courts have come up in states in addition to the increasing pressure on the agency's offices in New Delhi and other zones. Yet, there has been no augmentation of its staff, infrastructure and resources. Implementation of the Parliamentary Standing Committee's March 2008 recommendation for strengthening the CBI in terms of resources and legal mandate brooks no delay.
