HC, apex court has power to order CBI probe: Centre tells SC

The Centre on Wednesday told the Supreme Court that there was no restriction on High Courts and apex court to order a CBI probe into sensitive cases having national and international ramification. "There is no restriction on the powers of the courts (High Courts and apex court) under Articles 226 and 32 of the Constitution for ordering CBI probe in a case," Solicitor General G E Vahanvati said, stressing that such power has been with the courts to protect the fundamental rights of citizens. "The court can intervene if in any way it is convinced that there is a violation of fundamental rights guaranteed under Article 14, 19 etc," he told a five-judge Constitution Bench headed by Chief Justice K G Balakrishnan which is examining the validity of power of courts to order CBI probes into various incidents occurring in different states. The Solicitor General said though the apex court judgements in the past had said that courts should exercise the power to order CBI probe "sparingly", "there is no restriction, particularly in cases of sensitive nature and those having national and international ramification". "To show that there is a restriction on powers of courts it has to be shown that there is such expression. That is not there under Article 226 and 32," he said before the Bench, also comprising Justices R V Raveendran, D K Jain, P Sathasivam and J M Panchal. Vahanvati contended that arguments of West Bengal was "baseless" that such power vested with the apex court or High Courts would affect the federal structure of the Constitution. "The argument is baseless," he said and stressed that "if federal structure is affected then it is for the court to take care by directing proper investigation". West Bengal Government had contended that the power to order a CBI probe is solely vested with the respective state governments and even the Centre has no power to order a probe by the Central agency unless the state concerned gave its nod. However, the Solicitor General said the argument that courts should respect the interest of the state did not hold much ground as the court while handling cases seeking CBI probe did not act at the instance of the state but "something against it". No sooner Vahanvati concluded the submissions, his colleague and Additional Solicitor General B Dutta stood up to make the arguments for the CBI. What surprised the Bench was that after detailed submission by the Solicitor General, Dutta said even after court order for CBI probe in a given case, the agency seeks the sanction of the concerned government to proceed. At this the Bench asked him what would be the situation if the concerned state refuses to grant sanction despite the court order. Dutta said in that case the CBI abides by the court order as "we can't go by our own". West Bengal and some others have contended that as per Section 5 & 6 of the Delhi Special Police Establishment Act, under which the CBI has been constituted, the investigating agency can conduct a probe in any state only with prior consent of the concerned government. However, in recent years, there have been instances when the Supreme Court and also various High Courts had been ordering probes by the CBI into high-profile cases. West Bengal is the main petitioner in this case as it had taken exception to the Calcutta High Court order for a CBI probe into the Midnapore firing incidents in which several Trinamool Congress workers were killed.

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