Saturday, February 20, 2010

The CBI Judgment

The CBI judgment

Rajeev Dhavan

Indian courts seemed to have invented a new slogan about the State police investigating serious crimes: “When in doubt, call in the CBI (the Central Bureau of Investigation)”. It is precisely this question this that was resolved by the Constitution five Judge bench in the West Bengal v. Committee of Democratic Rights judgment delivered on 21 February 2010. It was a much awaited judgment. The Mulayam Singh corruption case hinges on this issue. So also, the Moga sex scandal case – pending before the Supreme Court. Every time, the Moga case was listed, the Court adjourned to await the judgment in the CBI case. Why the Supreme Court takes so long to deliver judgments is not clear? The Narco test judgment is awaited for over two years. The Bangalore Akravaty land acquisition judgment has not arrived for one and a half years. In both cases the present Chief Justice of India presided. Judgment on the constitutionality of the panchayat amendment, argued before the Chief Justice, is delayed. Clearly, the Supreme Court does not lead by example.

The CBI judgment is clearly unconstitutional. It violates the federal framework and annihilates statutory provision on the basis that fundamental rights are at risk when the State police are corrupt or under the control of politicians. First, the federal question. Under the constitutional framework, policing is exclusively a State subject. The Union’s armed forces can be brought in to quell public order in aid of the civil power. (Schedule VII, List II, List II E 1 and 2, List I, E2A). The Constitution allows the Union to extend the powers of State police of one State to another State without the consent of that other State (List I, E 80). There is little dispute that the CBI is not an armed force or a State police. The Delhi Police Establishment Act 1946 under which the CBI is constituted is solicitous of State federalism. Under the CBI statute, the CBI cannot oust the State police’s investigative jurisdiction except with consent of the State. Thus, the Constitution and the CBI statute are crystal-clear. Only the State police and not the CBI can investigate state crimes. The CBI needs the State’s consent to do so.

If this is true, the CBI judgment is, prima facie, illegal and unconstitutional. How, then, did the Supreme Court play ‘Houdini’ to pull a federal rabbit out of the States’ exclusive hat. The Supreme Court’s assumption that its constitutional power to do ‘complete’ justice (article 142) enables such a dismantling of federalism is totally belied by its own decision in the Bar Association case (1998) which decided that the complete justice power of the Supreme Court could not violate either a statute or the Constitution.

Aware of this, the Court took refuge in the ‘basic structure’ doctrine which treats judicial review as part of Constitution basic structure. But, the Bommai case (1994) also declares federalism to be part of the basic structure. The issue was not the separation of powers, but a straightforward competition between the judiciary and state power. The Constitution sides with the federal structure and the exclusive power of the States to police investigation. The Supreme Court judges virtually set the Constitution at naught and sided with themselves to expand their own judicial power. The Supreme Court’s justification that the higher judiciary must enhance its jurisdiction to defend the fundamental rights of the people seems to be declaring that in the defence of Fundamental Rights, it can do anything and everything – even injure the federal structure.

Second, What are the limits of this power reposed in the High Courts and Supreme Court to call in the CBI. The Supreme Court feels that this power can be used only in “exceptional” circumstances. The Court was generously wide in giving considerable leeway to the Courts by stating: “This extraordinary power must be exercised sparingly, cautiously, and in exceptional situations where it becomes necessary to provide creditability and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights”. This catalogue ambiguously justifies all kinds of judicial intervention. Legal elephants can run amok with his judicial script. We are back to square one: The more things change, the more they remain.

Third, is the public interest and governance argument. It is true that State police are under the thumbs of Chief Ministers in power. Party and other hoodlums pressurize the local police. This is true of all lead cases: Jessica Lal, Katara, Mulayam, Mayawati, Jayalalitha and others. I agree that the Constitution is a dynamic document which is not a state of “becoming” not simply “being” (Justice Dwivedi in a famous 1973 case). But, is that sufficient justification for dismantling India’s federalism?

What were the options before the Supreme court ? (i) The Indian Police Act gives the State government the power of “superintendence” of the police – a power which has now been interpreted narrowly by the Supreme Court in the West Bengal Boys case. The Courts can always superintend investigation of State police. (ii) The High Court can transfer cases from one district to another within the State. (iii) Following, the Hawala case (1998) the Courts can monitor a State police investigation to when the charge sheet is filed. After that the judicial process begins. (iv) When the Supreme Court feels a case ought to be transferred to another State, it can always do so – as it did by sending the Gujarat riots case to Maharashtra, the Shankaracharya case to Pondichery and the Jayalalitha case from Tamil Nadu to Karnataka. It is now abundantly clear that the transferee State’s (and not the original States’) police and prosecutors will exclusively deal with the investigation and prosecution – much to Jayalalitha chagrin in the Shankracharya case. (v) Alternatively, it could have reposed the CBI option only in the Supreme Court. The Court did not examine these options. It chose ignored the Constitution and statutes to indulged in self empowerment.

Fourth, comes the case of the CBI itself. In the Moga police case the CBI frankly told the Court it was short staffed and busy. But the investigation was forced on it. The CBI did not credit itself in the Bofors case. When the CBI investigates political cases it inspires unease. This became apparent in the Mulayam case where it changed colour depending on when Mulayam’s party gave voting support to the Congress led UPA. The CBI is not suited for these cases. Its forte is international crime, economic offences, terrorism, smuggling and so on. The Central government wants the CBI to investigate 231 offences under the Penal code; and several others under 69 Central and 18 State acts with the consent of the States. In 2007 114 cases were sent to the CBI by courts. In December 2009, the CBI had 988 cases pending investigation, 138 cases pending sanction for prosecution. 9475 criminal cases were pending for trial. The CBI does not have sufficient staff or resources. In big political cases it flounders for posture. In the Havala and Noida scandal cases, the court’s monitored the CBI investigation to fruition.

At worst, the Supreme Court could have directed that only the Supreme Court will have the power to ask the CBI to investigate violations of fundamental rights. Alternatively, it should have looked at other solutions to monitor investigations of State police. In its efforts to empower High Courts and itself, the Court has gone over-board.

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