The government and the Central Bureau of Investigation Wednesday took opposite stands before the Supreme Court on the higher judiciary’s power to order CBI probes into criminal cases.Their submissions were made before a five-member constitution bench headed by Chief Justice K.G. Balakrishnan, which was hearing a bunch of petitions by various state governments questioning the higher judiciary’s power to order a CBI probe.
As the law and order is a state subject in the constitution and state governments have exclusive power to maintain law and order in their territories, states often see a CBI probe, mandated by a high court or the apex court, into a criminal case as an encroachment of their rights.
Appearing for the central government, Solicitor General Goolam E. Vahanvati told the bench that there was no restriction on the higher judiciary to order a CBI probe into sensitive cases having national and international ramifications.
“There is no restriction on the powers of the courts under Articles 226 and 32 of the constitution for ordering a CBI probe in a case,” said the solicitor general, emphasising that as per the constitution the higher judiciary have the inherent powers to protect the Fundamental Right of citizens.
To protect the Fundamental Rights of citizens, the court can pass any order, including that for a CBI probe into particular criminal case, he said.
“The court can intervene if in any way it is convinced that there is a violation of Fundamental Rights guaranteed under the constitution,” he told the bench, which also included Justices D.K. Jain, R.V. Raveendran, P. Sathasivam and J.M. Panchal.
Vahanvati said though the apex court judgements in the past had said that courts should exercise the power to order a CBI probe “sparingly”, “there is no restriction, particularly in cases of sensitive nature and those having national and international ramifications.”
Appearing for the CBI, Additional Solicitor General B. Dutta, however, contended that as per the Delhi Special Police Establishment Act, the higher judiciary have no power to order a CBI probe unless the state gives its consent to the agency to probe a case in its jurisdiction.
He contended that even where the high court or the Supreme Court ordered the CBI to probe a particular case, the agency took up the probe only after seeking the state government’s consent.
This left the bench a little bewildered with Justice Jain remarking: “At least I am not able to understand what you want to say.”
As Dutta continued to assert that the courts have no power to order a CBI probe, Justice Raveendran asked, “If you are probing cases after taking consent from the state governments, how come the states are here in appeal against our orders? They themselves have given the consent.”
This remark by the bench triggered a laughter in the courtroom with Dutta beating a hasty retreat on the argument.
Dutta’a argument seemed more radical than those by the West Bengal government, which is in the apex court opposing the court’s power to order the CBI probe.
West Bengal counsel argued that though the apex court can order a CBI probe into any cases of violation of the Fundamental Rights, the high court does not have that power.
The apex court will continue hearing arguments on the issue Thursday.
