Supreme Cult As Upholder Of Constitution
Recently, the Congress government of Chhattisgarh moved a civil suit in the Supreme Court of India against the National Investigation Agency Act, 2008 on the ground that it is violative of the Constitution. The Chhattisgarh government has filed this suit under Article 131 of the Constitution. It has contended that the Act is beyond the legislative competence of Parliament since this Act empowers the Centre to create a police agency for investigation whereas Police is a subject of the State under Entry 2, List II, Schedule 7 of the Constitution. Article 131 of the Constitution stipulates original jurisdiction of the Supreme Court in disputes between the Centre and any number of states or between the states themselves.
NIA Act was passed by the then Congress government (UPA) in the wake of the 26/11 Mumbai terrorist attack though it was passed presumably under the pressure of the same vote bank which propelled the present party to power at the Centre. Therefore, it is interesting that a Congress government is challenging this Act. Purpose of this piece is to highlight the apparent futility of filing such petitions in the highest court of the land and not the party politics involving such legislations But, of course, the act itself of filing the petition may be a part of party politics. Uselessness of filing such a petition may be assessed from the treatment meted out to another such petition in respect of another investigative agency of the Central government called the Central Bureau of Investigation(CBI). In fact there may be many more organisations created by politicians of the day to grind their own respective axes, for example, the Planning Commission (now NITI Aayog) and the Intelligence Bureau which do not have any legislative base.
As regards CBI, its Silchar Branch registered a case on 31.7.2001 against officials of BSNL and others on the allegation of corruption. After investigation, a charge sheet was filed in the court in 2004 against accused Navendra Kumar of BSNL and others. The Trial Court finally convicted the accused on 14.10.2014.
On the other side, accused Navendra Kumar filed a criminal writ petition before Gauhati High Court on 22.09.2005 challenging the Constitutional validity of the formation of the CBI. On 30.11.2007, a Single Bench of Gauhati High Court dismissed the above petition and held the Delhi Special Police Establishment Act, 1946 as a valid piece of legislation. This is the Act under which initially Special Police Establishment was created and later, by a Resolution dated 01.04.1963, the Establishment was enlarged in the form of CBI. The Single Bench remained silent about this Resolution by which CBI was constituted.
The petitioner filed an Appeal on 06.02.2008 before a Double Bench of Gauhati High Court raising the issues again. On 06.11.2013, Gauhati High Court, (Justice I.A. Ansari and Dr.(Mrs.) Justice Indira Shah) set aside and quashed the Resolution dated 01.04.1963 of the Government of India and held that CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946. It indicated, inter alia, in the judgment that the Resolution had not received the assent of the President of India, CBI had not been constituted under any law, the Central government cannot create CBI in this way, such an agency cannot carry out police functions, there was no statute giving legal sanction to CBI, the Resolution did not mention the source of power for its issue and the DSPE Act was passed only to exercise power of investigation in Delhi and Union Territories. In layman's language, the Gauhati High Court dissolved the CBI.
This judgement was bound to create havoc all over the country in view of thousands of cases already investigated by CBI and decided in courts and those under active investigation of CBI at the moment and many related fallouts. Without delay, Union of India through Secretary, Department of Personnel and Training, filed a Special Leave Petition(SLP) in the Supreme Court which on 09.11.2013 stayed the order dated 06.11.2013 of Gauhati High Court. The CBI is administratively and financially controlled by the Department of Personnel and Training of the Government of India, that is, the Central government. In this matter, the CBI and the aforesaid accused also filed an SLP each. In March 2014, all the three SLPs were tagged together for hearing.
The relevant website of the Supreme Court shows that since 09.11.2013 these three SLPs came up in Supreme Court total 38 times. But all these dates were meant for procedural or peripheral matters. The regular hearing or arguments on the issues involved are yet to begin. On the last date of hearing in a Vacation Bench on 26.6.2019, the following order was passed - "List after Summer Vacation".
The website does not indicate that the matter came up after that. If such an important matter cannot be brought even to regular hearing by the Supreme Court in more than 6 years of its stay against an important judgment, what chance does the NIA Act stand for regular hearing in our lifetimes?
There are a number of pertinent questions which arise for determination in the petitions about CBI. But the most important of them is the Constitutional validity or otherwise of a legislation or an agency which seemingly impinges on the powers of the states in the federal structure of our polity. Public perception of corruption does not pertain only to the state politicians and authorities. But we have seen only the regional satraps like Lalu Prasad Yadav, J. Jayalalithaa, Om Prakash Chautala, Shibu Soren and the like getting the heat of CBI whereas the ministers of the Central government escape being identified for such treatment. It can be recalled that Shibu Soren and three of his colleagues as MPs were harassed with the full force of law by CBI for their obtaining bribes in order to vote in favour of Narasimha Rao government but Narasimha Rao himself was not touched. Does it not indicate that CBI has become a tool in the hands of the Central government to erode whatever little autonomy the state governments have in their respective jurisdictions as per provisions of the Constitution? So far 104 Constitutional amendments have been made. Some of them, if not many, have been made by the governments of the day to suit their own agendas.
After disenchantment with politicians and recently with most of the news media, the aware Indian public has been looking up to the Supreme Court for alleviation of some of their worries. But their disappointments have grown with the recent decisions and actions of our highest judiciary, in my view, particularly in the handling of the case against Rakesh Asthana, Special Director of CBI, the Babri Masjid case, handling of woman employee’s allegations against the CJI, refusal to hear agitated victims till violence is stopped, delaying hearing on Article 370 and CAA despite widespread discontent and agitation, delay of 8 years in the finality of Nirbhaya case, etc. Any number of such instances of the past can also be cited. Even minorities who expect somewhat better treatment in view of our Constitutional scheme are dispirited. We may recall that Supreme Court did little during three days of massacre of the Sikhs in the national capital in 1984 though it had started entertaining PILs since December 1979 (petition of Kapila Hingorani regarding condition of prisoners). It was already treating letters and telegrams as petitions. Even after 1984, it has not done anything to restore confidence of aggrieved Sikhs. Detection by Jaswant Singh Khalra of cremation of thousands of Sikhs as unidentified dead bodies by Punjab Police during the militancy days led to his own killing by Punjab Police but Supreme Court failed to get such cremations investigated and the guilty brought to book. The work of all levels of judiciary in the cases of Gujarat riots of 2002 is still making adverse news in the public media. In my view, in future it would become all the more difficult for minorities to obtain justice from the highest court of the land as it has already formulated a doctrine of 'collective conscience of the society' which in practice would always mean the will of the majority.
However, reverting to the matter of legitimacy of CBI, there were two major arguments against its existence on the basis of the Constitutional provisions. First, there was Entry Number 2 (Police) in the List II(State List) because of which the states have exclusive power to make laws with respect to the Police. However, CBI functions under a ministry of the Central government. Secondly, there was Entry Number 8 (Central Bureau of Intelligence and Investigation) in the List I(Union List) of the same Schedule because of which the Union government has exclusive power to make laws with respect to the creation of any Central Bureau of Intelligence or Investigation. Apparently, this entry seems to favour the Central government for creation of IB and CBI. While IB is in happy existence without any legislative support, the debates of the Constituent Assembly do not favour the existence of CBI in its present avatar. During these debates, it was clearly made out that the word 'investigation' meant only a fact-finding enquiry and it did not at all mean the investigation conducted by police under the Code of Criminal Procedure(Cr.P.C.) which often results in filing of a chargesheet in court. However, CBI conducts investigation under the provisions of Cr.P.C. which is a police function. The relevant extracts of the debates of the Constituent Assembly presented by the petitioner and as reflected in the judgement of the Gauhati High Court are reproduced below:
"52. Support for the above submission is sought to be derived by the appellant referring to the debates of the Constituent Assembly, which took place on 29.08.1949, wherein the functions of the Central Bureau of Intelligence and Investigation had been discussed in the Constituent Assembly and explained by Dr. B. R. Ambedkar. The meaning and importance of the word, ‘investigation’, which appears within the expression ‘Central Bureau of Intelligence and Investigation’, were explained by Dr. Ambedkar as under:
Dr. B. R. Ambedkar: The idea is this that at the Union office there should be a sort of bureau which will collect information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Governments as to what is going on in the different parts of India so that they might themselves be in a ‘position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information."
"53. One of the members, Mr. Nazimuddin Ahmed could visualize a conflict of interest between the States, on the one hand, and the Union Government, on the other, and raised, in the Constituent Assembly, question about the implications and the use of the word, ‘investigation’, appearing within the expression ‘Central Bureau of Intelligence and Investigation’, in the following words:
Mr. Nazimuddin Ahmad: Mr. President, Sir I beg to move:
That in amendment No.1 for List I (Sixth Week) in the proposed entry 2 of List I, the words ‘and investigation’ be deleted.”
Then I move my next amendment which is an alternative to the first:
That in amendment No.1 of List I (Sixth Week) in the proposed entry 2 of List I for the word ‘investigation’ the words ‘Central Bureau of Investigation’ be substituted.”
The original entry was “Central Intelligence Bureau”. The redrafted entry is “Central Bureau of Intelligence and Investigation. The words “and Investigation” seem to me to appear to give an ambiguous effect. I submit that the duty of the Union Government would be to maintain a Central Intelligence Bureau. That is all right. Then we have the words “and Investigation” and we do not know what these words really imply. Do these words “and investigation” mean that the Bureau of Investigation was merely to carry out the investigation? They will mean entirely different things. If it is to enlarge the scope of the Central Intelligence Bureau as well as the Bureau of Investigation, that would have been a different matter but Dr. Ambedkar in answer to a question put by Mr. Mahavir Tyagi has said that the Central Government may think it necessary to carry on investigation. Sir, I submit the effect of this amendment, if that is the kind of interpretation to be given to it, would be extremely difficult to accept. We know that investigation of crime is a provincial subject and we have, already conceded that. If we now allow the Central Government also to investigate, the result would be that for a single crime there must be two parallel investigations, one by the Union Government and other by the State Government. The result of this would be that there will be a clash and nobody will know whose charge-sheet or final report will be acceptable. The Union Government may submit a final report and the Provincial Government may submit a charge-sheet, and there may be a lot of conflict between these two concurrent authorities. If it is to carry on investigation, then it will not be easy to accept it. It was this suspicion that induced me to submit this amendment, though without any hope of being accepted, at least to explain to the House my misgivings and these misgivings are really substantiated by Dr. Ambedkar himself. I would, like to know whether it is possible at once to accept this implication, to give the Central Government power to investigate crimes. My first amendment is intended to remove the words “and investigation”. If you keep the investigation within this entry it should be the Central-Bureau of Intelligence, as well as Bureau of Investigation. If there are two Bureaus only there, could be no difficult and there will be no clash and let us have as many Bureaus as you like but if you want investigation, it will be inviting conflict. Rather it is another attempt to encroach on the provincial sphere. I find there is no limit to the hunger of the Central Government to take more and more powers to themselves and the more they eat, the greater is the hunger for taking more powers. I oppose the amendment of Dr. Ambedkar. I appeal to the House not to act on the spur of the moment; it is easy for them to accept it as it is easy for them to oppose it and the entry does not seem to be what it looks.”
"54. Dr. Ambedkar, in response to the doubts, expressed by Mr. Nizamuddin, had clarified and assured the House, in no uncertain words, that the Central Government cannot and will not have the powers to carry out investigation into a crime, which only a police officer, under Cr.P.C., can do. The response of Dr. Ambedkar is extracted below:
The Honourable Dr. B. R. Ambedkar: The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do."
The above words of Dr BR Ambedkar leave no doubt that Police is a state subject and there cannot be a police agency under the Central government, much less for investigation of crime as per the procedure laid down in Cr.P.C. But in addition to the existence of CBI under the Central Government for so long, the Central government has formed NIA also for the same purpose. Since in the present circumstances, we cannot expect the Supreme Court to do much about the erosion of authority of the states, concerned retired judges and other legal luminaries should form a panel from amongst themselves to find ways and means to energise Supreme Court. It is also required of the concerned citizens, more particularly of the followers of Dr. B.R. Ambedkar, to force the Supreme Court to hear urgent matters urgently and restore the spirit of the Constitution.
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