This article contains a brief note for the leading case of State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476, which is a part of the paper “Leading Cases” for the Supreme Court Advocate on Record Examination 2015. This note was a part of my lecture delivered in 2013 to about 100+ Advocates who were preparing for the AOR examination. It is a part of the AOR series on leading cases.
State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571 : AIR 2010 SC 1476:
It is pertinent to point out that ‘Police” is a State subject and the Central Bureau of Investigation (CBI), established under the Delhi Special Police Establishment Act, 1946, is a Central Government agency. Section 6 of the aforesaid DSPE Act lays down that the CBI requires consent of the State Government for investigating a cognizable offence occurring within the territorial jurisdiction of that State.
The issue before the Constitution Bench of 5-Judges in this case was whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the CBI to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. The Supreme Court unanimously answered this question in the affirmative.
Some relevant observations of the Supreme Court are as under:
- The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision.
- 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.
- In view of the constitutional scheme and the jurisdiction conferred on the Supreme 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 Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than 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 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”.
- If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that the 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.
- Restriction on Parliament by the Constitution and restriction on the executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution.
- If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2-A 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, the Court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the statute. 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.
- When the Delhi Special Police Establishment Act itself provides that subject to the consent by the State, 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 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 Delhi Special Police Establishment 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, would not amount to infringement of either the doctrine of separation of power or the federal structure.
Thus, it was held by the Supreme Court that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the CBI to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.
IMPORTANT: Read notes on other leading cases for the SC AOR Examination: AOR Series.
