ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
CBI, NIA & Interpol Story: This is certainly going to add fuel to the fire between the NIA & CBI over the Interpol Ownership as well. Interestingly, the CBI is and for now continues to be, nodal agency for Interpol. Which means that even if it continues to exercise control over its stake in International Policing, it is under identity crisis in at least four of the Indian states as per the verdict of the Hon'ble High Court. This questionable existence of CBI certainly adds to the advantage of NIA's claim over Interpol, which is a recognized/ reputed Investigating Agency at National Level, duly constituted under a valid Act of Parliament, unlike CBI.
Kindly go through Original Text of this interesting Judgment, till we get back to its thorough analysis. (We have highlighted the important parts)
________________________________________________________________________________
IN THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
Navendra Kumar (Appellant) Versus Union of India & Anr. (Respondents)
Navendra Kumar (Appellant) Versus Union of India & Anr. (Respondents)
JUDGMENT AND ORDER
(IA
Ansari, J)
“When the people fear the government,
there is tyranny. When the government fears the people, there is liberty.”
Thomas
Jefferson, the principal author of the Declaration of Independence (1776) and
the third President of the United States (1801–1809)
2.
Article 21 is one of the most
cherished provisions in our Constitution, which prohibits the State from
depriving a person of his life and liberty except according to the procedure
established by 2
law. However, what happens if by the State’s action,
which has been neither sanctioned by a legislation nor has been taken in valid
exercise of its executive powers, the ineffaceable mandate of Article 21 gets
smudged. This is precisely the issue, which the appellant has been, for almost
a decade of litigation, urging the court to decide. Having been unsuccessful in
his attempt to convince the Court in his writ petition of the correctness and
righteousness of his contentions, the appellant is, now, before us, seeking a
revisit to his submissions.
2a. Some of
the prominent questions, which have arisen for determination, in this appeal,
are:
(i) Whether ‘Central Bureau of Investigation’,
popularly called CBI, is a constitutionally valid police force empowered
to ‘investigate’ crimes?
(ii) Could a ‘police force’, empowered to ‘investigate’
crimes, have been created and constituted by a mere Resolution of Ministry
of Home Affairs, Government of India, in purported exercise of its executive
powers?
(iii) Could a ‘police force’, constituted by a
Home Ministry Resolution, arrest a person accused of committing an offence,
conduct search and seizure, submit charge-sheet and/or prosecute alleged
offender?
(iv) Whether CBI is a ‘police force’ constituted
under the Union's Legislative powers conferred by List I Entry 8?
(v) Do Entry 1 and 2 of the Concurrent List empower
the Union Government to raise a ‘police force’ and that, too, by way of
Executive instructions of Union Home Ministry? 3
(vi) Whether Delhi Special Police
Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police
force’ in the name of CBI?
(vii) Above all, is it permissible for the Executive
to create a ‘police force’ with power to ‘investigate’ crimes in
exercise of its executive powers, when exercise of such a power adversely
affects or infringes fundamental rights embodied in Part III of the
Constitution, particularly, Article 21?
3.
The present appeal has arisen out of
the judgment and order, dated 30-11-2007, passed, in Writ Petition (Civil) No.
6877 of 2005, by a learned Single Judge of this Court dismissing the writ
petition, whereby the writ petitioner had sought for, inter alia, (i)
quashing of the impugned Resolution No. 4/31/61-T, dated 01-04-1963, whereunder
the Central Bureau of Investigation stands established, as ultra vires the
Constitution of India and (ii) quashing of the criminal
proceeding/prosecution, which originated from the FIR/RC No. 39(A)/2001/CBI/SIL
and is presently pending against the petitioner, in the Court of Special Judge
(C.B.I), Assam, at Guwahati.
4. The material facts, which have given rise to the
present appeal, may, in brief, be set out as under:
(i)
A criminal case being RC No. 39(A)/2001/CBI/SIL was registered, on 31-07-2001,
under Sections 120B IPC/420 IPC and Section 13(1)(d) read with Section 13(2) of
the Prevention of Corruption Act, 1988, in the office of the Superintendent of
Police, Central Bureau of Investigation (hereinafter referred to as ‘CBI’),
Silchar, Assam, against 4
the petitioner, who is an employee of Mahanagar
Telephone Nigam Limited, New Delhi. Having investigated the case, the CBI laid
a charge sheet, dated 25-11-2004, in the Court of the learned Special
Judge, CBI, Assam, Kamrup, Guwahati.
(ii) With the help of the writ petition, bearing
WP(C) No. 6877 of 2005 aforementioned, the constitutional validity of the very
formation of the CBI and its powers to carry out the functions of police,
namely, registration of First Information Report (in short, ‘FIR’) under
Section 154 of the Code of Criminal Procedure (hereinafter referred to as the
‘Cr.P.C’), arrest of a person, as an accused, investigation of offences, filing
of charge-sheets against alleged offenders and to prosecute them were
put to challenge.
(iii) The two substantive prayers, made by the
petitioner-appellant, were as follows:
“(i) quash the impugned Resolution No. 4/31/61-T,
dated 01-04-1963, as ultra vires the Constitution of India, by way of an
appropriate writ, order or direction in the nature of certiorari and
(ii) quash the criminal proceeding/prosecution
originated from the FIR/RC No. 39(A)/2001/CBI/SIL pending against the
petitioner in the court of Special Judge (C.B.I) for Assam at Guwahati, by way
of an appropriate writ, order or direction in the nature of certiorari.”
(iv). The
constitutional validity of the formation of the CBI and its powers to
investigate and function as a police force and/or its powers to prosecute
an offender were challenged, in the writ petition, by contending that the CBI
is not a statutory body, the same having been constituted not under any
Statute, but under an Executive Order/Resolution No. 4/31/61-T, dated
01-04-1963, of the Ministry of 5
Home Affairs, Government of India,
though police is a State subject within the scheme of the Constitution
of India inasmuch as it is only a State Legislature, which, in terms of Entry
No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of
India, is competent to legislate on the subject of police and,
therefore, the Central Government could not have taken away the power, which so
belongs to State legislatures, and create or establish an investigating agency,
in the name of CBI, adversely affecting or offending the fundamental
rights, guaranteed under Part III of the Constitution of India.
(v). To
substantiate the above contention, reliance was placed on the Constituent
Assembly debates, dated 29-08-1949, wherein Dr. BR Ambedkar had clarified that
the word ‘investigation’, appearing in Entry 8 of List I (Union List) of
the Seventh Schedule, which read, “Central Bureau of Intelligence and
Investigation”, would not permit making of an ‘investigation’ into a
crime by the Central Government inasmuch as ‘investigation’ would be
constitutionally possible only by a police officer under the Cr.P.C., police
being exclusively a State subject and the word ‘investigation’,
appearing in Entry 8 of List I (Union List), would, in effect, mean making of
merely an ‘enquiry’ and not ‘investigation’ into a crime as is
done by a police officer under the Code of Criminal Procedure. The word `investigation’
is, therefore, according to the Constituent Assembly Debates, intended to
cover general enquiry for the purpose of finding out what is going on and such
an investigation is not an investigation preparatory to the
filing of a charge-6
sheet against an offender, because it is only a police
officer, under the Criminal Procedure Code, who can conduct ‘investigation’.
(vi). In the
writ petition, the Union of India did not file any response; but the CBI,
as respondent No. 2, filed an affidavit, wherein it claimed that it had been
exercising functions and powers of police under the Delhi Special Police
Establishment Act, 1946. In its affidavit, filed in the writ petition, the CBI
further submitted that the CBI has had been functioning for more
than four decades, but its constitutional validity has never been challenged by
any one and, hence, this settled position may not be unsettled.
(vii). By
the impugned judgment and order, dated 30-11-2007, a learned Single Judge of
this Court dismissed the writ petition holding thus, “.................. not
only the Delhi Special Police Establishment Act is a valid piece of
legislation, as originally enacted, but the same has been validly continued
after coming into force of the Constitution and is in harmony with the
provisions thereof and, therefore, the said legislation validly continues to
hold the field”
5. Aggrieved by the order, dated 30-11-2007,
aforementioned, the writ petitioner has preferred the present writ appeal.
6. We have heard Dr. LS Choudhury, learned counsel for
the appellant, and Mr. PP Malhotra, learned Additional Solicitor General of
India, appearing on behalf of the respondents. We have also heard Mr. N Dutta,
learned Senior counsel, who has appeared as Amicus Curiae.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
7. It is submitted by Dr. LS Choudhury, learned counsel
for the appellant, that the CBI is a non-statutory body inasmuch as it
has been constituted by way of an Executive Order/Resolution, dated 01.04.1963,
issued by the Ministry of Home Affairs, Government of India, and not by making
any legislation.
8. According to Dr. Choudhury, learned counsel for the
appellant, in the absence of any law laying the birth of the CBI, the
exercise of powers of police, by the said organization, such as, registration
of First Information Reports, arrests of persons, ‘investigation’ of
crimes, filing of charge sheets and prosecution of the offenders
cannot be permitted, for, allowing the CBI to do so would offend the
fundamental rights guaranteed under Article 21 of the Constitution of India,
which expressly provides that no person shall be deprived of his life and
liberty except according to the procedure established by law.
9. The word ‘law’, within the meaning of Article
21, would, according to the learned counsel for the appellant, mean legislation
and not executive instructions or executive fiat, such as,
the one, whereunder the CBI has been created and established inasmuch as
no executive instructions can be acted upon if any such instructions
violate or offend the fundamental rights guaranteed under Part III of
the Constitution of India.
10. It is the submission of the learned counsel for the
appellant that at best, the CBI may be treated to have been constituted
by the Central 8
Government under Entry 8 of the List-I (Union List);
but there is no co-relation between the Entry 8 of List I and Entry 2 of List
II inasmuch as Entry 8 of List I does not, in the light of the Constituent
Assembly Debates, permit ‘investigation’ of a crime in the manner as is,
ordinarily, done by the police; whereas Entry 2 of List II permits enactment of
laws relating to police. According to the learned counsel for petitioner, both
these entries are separate and distinct from each other and that the framers of
the Constitution were well aware of the fact that they were enabling the Centre
and State to create two separate authorities, one, which would be covered by
Entry 8 of List I, and the other, which would be covered by Entry 2 of List II,
and while ‘investigation’, under Entry 2 of List II, would mean an ‘investigation’
preparatory to the filing of a police report, commonly called charge-sheet
or final report, under Section 173 (2) (i) of the Cr.PC, the other ‘investigation’
would be in the form of merely an enquiry and not an investigation,
which is conducted by a police officer under the Cr.PC. Support for these
submissions, as mentioned hereinbefore, is sought to be derived by Mr.
Choudhury from the debates of the Constituent Assembly.
11. In short, what is contended, on behalf of the appellant,
by Dr. LS Choudhury, learned counsel, is that though Parliament is competent to
make law on the Central Bureau of Intelligence and Investigation, the CBI,
which is constituted under the Resolution No.4/31/61-T, dated 01.04.1963,
cannot carry out functions of police inasmuch as the Constitutional scheme does
not permit the Central Government to 9
carry out functions of police and the police
functions, according to Dr. LS Choudhury, lies within the exclusive domain of
the State Government concerned.
12. Yet another leg of argument of Dr. Choudhury,
learned counsel for the petitioner, is that even Delhi Special Police
Establishment Act, 1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the
Constitution, for, it offends, according to Mr. Choudhury, Article 372 of the
Constitution inasmuch as Parliament is not competent to make law on police for
whole of India and it is only a State legislature, reiterates Mr. Choudhury,
which can make, or could have made, law, on police by taking resort to
Entry No.2 in the State List (List II). Thus, the DSPE Act, 1946, submits Dr.
Choudhury, cannot continue anymore inasmuch as its continuance violates the
basic Constitutional scheme.
13. Reverting to the Constitution, Dr. LS Choudhury
submits that though Parliament, too, is competent to make law on any of the
subjects/entries mentioned in List-II, yet, such laws can be made only for
Union Territories inasmuch as these territories do not have their own
legislature and according to Article 239 of the Constitution of India, the
laws, enacted by Parliament for Union Territories, are to be administered
through an administrator. It is submitted by Mr. Choudhury, learned counsel,
that the power to make laws is one thing and the administration of those laws
is quite another and it is not vice versa. Though Parliament may make
law, for Union Territories, on the State subjects, the fact remains that the
administration of these laws, 10
reiterates Dr. Choudhury, has to be through an
administrator appointed under Article 239 and not by the Central Government.
14. Learned counsel for the petitioner, while drawing an
analogy with the police administration in Delhi, submits that Section 3 of
Delhi Police Act, 1978, which is an Act of the Parliament, provides that there
shall be ‘one’ police force for whole of Delhi and, thus, according to
Dr. LS Choudhury, there cannot be more than one police force functioning in
Delhi, particularly, when, points out Dr. Choudhury, the police forces,
functioning in Delhi, immediately before commencement of this Act (i.e., Delhi
Police Act, 1978), shall, in the light of the provisions of Section 150 of
Delhi Police Act, 1978, be deemed to have come under the Delhi Police Act,
1978; whereas the CBI is, admittedly, not a ‘force’ functioning
under the Delhi Police Act, 1978. At least, since after coming into force of
Delhi Police Act, 1978, the CBI cannot, in the light of the provisions
of Section 150 of Delhi Police Act, 1978, legally function as a police force
and conduct any ‘investigation’ preparatory to filing of charge
sheets as envisaged by the Code of Criminal Procedure.
15. Dr.
Choudhury points out that in terms of Section 4 of Delhi Police Act, 1978, the
Administrator is the executive Head of police in Delhi and the laws, relating
to police, are required to be administered through him. The Central Government
has, therefore, according to Mr. Choudhury, no role to play in the day to day
functioning of the police in Delhi. 11
16. Seeking
to derive strength from the debates of the Constituent Assembly, as reflected
above, it is the submission of Dr. Choudhury, learned counsel for the
petitioner, that even if the CBI is considered to be a validly
constituted body, it cannot function in the manner as is done by the police
under the scheme of the Code of Criminal Procedure and the CBI, so
constituted, can, at best, collect information by making ‘enquiries’ to
assist any investigation carried out by a local police.
SUBMISSIONS
OF THE CBI
17. Resisting the writ petition, what the learned ASG,
appearing on behalf of the CBI, submits, may be summarized as follows:
A)
That the CBI derives its power to ‘investigate’, like a police
force, as contemplated by the Cr.PC, from the DSPE Act, 1946;
B)
That the CBI is only a change of the name of the DSPE and the CBI is,
therefore, not an organization independent of the DSPE;
C)
That as per Section 5 of the DSPE Act, the Central Government may extend the
powers and jurisdiction of the members of Delhi Police Establishment to investigate
an offence beyond the territorial limits of Delhi and as per Section 6 of
the DSPE Act, 1946, the members of the Delhi Police Establishment can exercise
powers and jurisdiction in any area of any other State with the consent of the
Government of that State;
D)
That the creation of CBI may also be taken to have been covered by Entry
80 of List I (Union List) of the Seventh Schedule to the 12
Constitution of India inasmuch as the expression, “Central
Bureau of Intelligence and Investigation”, occurring in Entry 8 of List I
(Union List), may be read to mean two different agencies, namely, Central
Bureau of Intelligence and Central Bureau of Investigation and, for
this purpose, the word “and”, appearing in the expression, “Central
Bureau of Intelligence and Investigation”, may be read as “or”.
E)
Under Article 73 of the Constitution of India, the executive powers of the
Union extends to matters with respect to which Parliament has the power to make
laws and the resolution, dated 01.04.1963, whereunder CBI has been
constituted, can be treated to have been issued by virtue of Union of India’s
executive powers as embodied in Article 73;
F)
That the Central Government can also be treated to have constituted the CBI by
taking recourse to its powers as specified in Entry 1 and 2 of List –III
(Concurrent List) of the Seventh Schedule to the Constitution of India;
G)
That the Constitutional validity of Delhi Police Establishment Act, 1946, has
already been upheld by the Supreme Court in Advance Insurance Co. vs.
Gurudasmal, reported in (1970) 1 SCC 633, and the history of
formation of the CBI has been highlighted by the Constitution Bench, in State
of West Bengal & Ors. Vs. Committee for Protection of Democratic Rights,
West Bengal & Ors. reported in (2010) 3 SCC 571, and
also by a three Judge Bench in M.C. Mehta (Taj 13
Corridor Scam) Vs. Union of India and others, reported in (2007) 1 SCC 110;
H)
That since the CBI has been functioning for the last 50 years under the
DSPE Act, 1946, it may not be sound or proper exercise of discretion to
unsettle the settled law and thereby create turmoil ‘unnecessarily’;
(I)
Repelling the plea of the respondents that the CBI is constituted under
Delhi Special Police Establishment Act, 1946, Dr. LS Choudhury, learned counsel
for the petitioner, submits that the plea is not tenable for the following
reasons:
i) First, there is no co-relation between the DSPE
Act, 1946, and CBI. In DSPE Act, the word ‘CBI’ is, nowhere,
mentioned, even though the DSPE Act has undergone several amendments. This
apart, even the Executive Order, dated 1st April, 1963, does not disclose that the CBI has
been constituted under DSPE Act. Had it been so, the impugned Resolution would
have so mentioned.
ii) Secondly, the plea, that the CBI is merely
a change of name of the DSPE, cannot stand scrutiny of law inasmuch as the DSPE
Act, 1946, specifically mentions, under Section 2, that the police force,
constituted under the DSPE Act, shall be called “Delhi Special Police
Establishment”. Hence, when the DSPE Act itself defines the name of the force,
which the DSPE Act, has created and established, the argument that the CBI is
merely a change of name of the DSPE cannot hold water. Had it been so, the name
of the DSPE ought to have been changed in the DSPE Act itself; more so, when
several amendments have, otherwise, been introduced into the DSPE Act.
iii) Thirdly, though Union of India’s executive powers
may, in the light of Article 73, be co-extensive with its legislative powers,
the fact remains that the executive powers cannot be exercised offending
fundamental rights, guaranteed by Part III, unless the exercise of such
executive powers is backed by appropriate legislation; but, in the cast at
hand, the resolution, dated 01-04-1963, whereunder CBI has been constituted, is
not backed by any legislation.
SUBMISSIONS OF THE AMICUS CURIAE
18. Mr. N.
Dutta, learned Amicus Curiae, has submitted that the impugned
Resolution, dated 01.04.1963, clearly shows that the CBI has been
constituted for achieving six specified purposes as have been mentioned in the
Resolution itself and till date, no statute has been enacted by Parliament
establishing a body called CBI. Since there is no legislation
constituting the CBI, the CBI’s constitutional validity,
according to the learned Amicus Curiae, has to be tested in the light of
the provisions embodied in the Constitution of India.
19.
It is also submitted by the learned Amicus
Curiae that the CBI and the DSPE are not one and the same
thing, but everybody appears to have proceeded on the basis that the CBI and
DSPE are one and the same thing. Whereas DSPE has been
established under the DSPE Act, 1946, the CBI, points out learned
Amicus Curiae, has been constituted by a mere executive fiat.
20.
It has been further submitted by the
learned Amicus Curiae that though the CBI has been empowered
under the impugned Resolution, dated 01.04.1963, to ‘investigate’ crimes,
no power has been specifically provided for ‘prosecution’ of offenders
by the CBI. In fact, points out the learned Amicus Curiae, even
under the DSPE Act, 1946, DSPE can merely ‘investigate’ a case and lay charge-sheet
and, hence, the CBI’s role shall come to an end once ‘investigation’
is complete.
21.
Referring to the case of Vineet
Narayan, Mr. Dutta, learned Amicus Curiae, points out that in Vineet
Narayan’s case (supra), the Supreme Court has recommended establishment of
an independent 15
directorate of prosecution for the CBI and till
such time, a directorate is so established, the Supreme Court has directed that
the Attorney General of India shall nominate a panel of advocates to conduct
the prosecution. However, notwithstanding the directions, so given,
prosecution, contends the learned Amicus Curiae, is being conducted by
the CBI, through its appointed advocates, though it lacks jurisdiction
to do so.
22.
It has been pointed out by the
learned Amicus Curiae that in terms of Section 36 of the Cr.PC, police
officers, superior in rank to an officer-in-charge of a police station, may
exercise the same powers, throughout the local area to which they are
appointed, as may be exercised by such officer within the limits of his
station. It has also been pointed out by the learned Amicus Curiae that
under Section 2(c) of the DSPE Act, 1946, a member of the DSPE may, subject to
any order, which the Central Government may make in this behalf, exercise any
power of the Officer-in-Charge of a police station in the area, which he is,
for the time being, posted to, and, when so exercising the powers, he shall be
subject to any such orders, which may be made by the Central Government and be
deemed to be an Officer-in-Charge of a police station discharging the function
of an officer within the limits of his station. If the expression, “Officer-in-Charge
of a police station”, appearing in Section 2(c) of the DSPE Act, 1946, is
read together with Section 36 of the Cr.P.C, then, it would become clear,
according to learned Amicus Curiae, that an officer of the DSPE, while
functioning in 16
any State, shall be subordinate to the superior
officers of the State police; whereas, in the case of CBI, while
investigating a case, in any State, purportedly, by virtue of its powers under
Section 5 read with Section 6 of the DSPE Act, 1946, the CBI investigators
reports to their own hierarchy of officers and not to the superior police
officers of the police station within whose local jurisdiction he, as a CBI officer,
may be investigating a case.
QUERIES
RAISED BY THE COURT
23. After hearing the parties as well as the learned Amicus
Curiae this court raised the following queries:
1) If a Pre-constitutional law was made on a subject,
which is, now, covered by State List, whether the law will be valid after the
Constitution has come into force bearing in mind Article 372?
2) Whether a law can be made by Parliament, on a
subject covered by the State List, in respect of a Union Territory, after the
Constitution has come into force?
3) The Executive power of the State is co-extensive
with its legislative power. Is it, therefore, possible to constitute an
investigating agency by a State taking recourse to State’s executive Power ?
4) Delhi was a Part-C State under the Govt. of India
Act. On coming into force of the Constitution, it was made a Union Territory
and it has, now, the status of a State, but some of its powers, under the State
List, are exercised by Parliament. The Court wants to know details of the
legislative history of the present status of Delhi, as a State, and its
legislation making process.
(Emphasis added)
24. In response to the queries raised by the Court, the
appellant as well as the CBI have filed their respective written
replies/submissions. The CBI has also filed an additional affidavit
stating, at para 6 thereof, 17
that vide resolution, dated 01.04.1963, the DSPE has
been made an integral part of the CBI. The said para 6 is reproduced
hereinbelow:
“6. That in exercise of its executive powers vide
Resolution NO.4/31/61-T dated 1st April, 1963 of Ministry of Home Affairs, the
Government of India set up an organization named Central Bureau of
Investigation consisting of 6 (six) Divisions. One of the division of the
organization is Investigation and Anti-Corruption Division (Delhi Special
Police Establishment). Thus, the DSPE by way of this resolution has been made
an integral part of CBI in its original form as established under the
DSPE Act, 1946.”
25. As this Court noticed that the Central Bureau of
Investigation was claimed to have been created by a Resolution, dated
01.04.1963, of the Government of India, Ministry of Home Affairs, but it was
not, however, clear if the impugned Resolution had received the assent of the
President of India, this Court, vide its order, dated 20.01.2013, directed the
respondents to produce the records relating to the creation of the CBI.
Though the relevant records have not been produced, in original, a copy thereof
has been produced by the learned Additional Solicitor General and has been
perused by the Court and the parties concerned inasmuch as the learned
Additional Solicitor General had made it clear to this Court that the said
records were no longer classified documents, the same having been obtained from
the National Archives and could, therefore, be perused by the parties
concerned.
26. Before proceeding further, it is pertinent to note
that in response to a specific query put by this Court as to whether the issue,
raised in the petition, with regard to the Constitutional validity of the CBI,
can 18
be found to have been raised in any decision of any
Court, the learned ASG as well the learned Amicus Curiae, with commendable
fairness, have admitted that in the light of the reported decisions, this issue
has never been raised, in any case, in any other High Court or the Supreme
Court.
27.
The points, which, now, falls for
determination, is: whether CBI is established under the DSPE Act, 1946, or is
an organ of the Delhi Special Police Establishment Act and, if not, whether a
force, with the object of investigation of crimes preparatory to filing of charge-sheet
for prosecution of offender, can be created by the Central Government by
way of an Executive order/Resolution and whether the CBI can be said to be
validly created by the Central Government by was of an Executive
order/Resolution.
28. Let us consider the first question, namely, whether
CBI is established under the DSPE Act, 1946, or is an organ of the Delhi
Special Police Establishment Act.
WHETHER CBI IS A NON-STATUTORY BODY ?
29. A statutory body, as the name suggests, is a body,
which has a legislative sanction. In other words, a body or agency can be
termed as statutory only when it is created by a statute to carry out certain
functions.
30. The petitioner submits that the CBI has not
been constituted under any law; rather, the same has been created by the
Central Government by way of Executive Order/ Resolution No. 4/31/61-T, 19
dated 01.04.1963. It is further submitted by the
petitioner that the Central Government cannot create CBI by way of an
Executive Order and such an agency cannot carry out police functions, i.e., to
register FIR under Section 154 Cr.P.C., arrest the persons, raid their
premises, investigate crimes and file charge-sheets against the
offenders and/or to prosecute them in the Court without being supported by
legislation.
31. The learned ASG, appearing on behalf of CBI,
has, on the other hand, submitted that though the CBI has been
constituted by way of Resolution No. 4/31/61-T, dated 01.04.1963, it derives
its powers from the Delhi Special Police Establishment Act, 1946, and the
impugned Resolution merely gives a new name, namely, CBI, DSPE, inasmuch
as the CBI is an organ or part of the DSPE in terms of the DSPE Act,
1946.
32. The learned Amicus Curiae has fairly submitted that
the Government of India by an executive order, dated 01.04.1963, has
constituted a body called “CBI” for six specific purposes as mentioned
in the said executive order; but till date, there is no statute to give legal
sanction to the body called “CBI” and, hence, validity of the executive
order has to be tested under Article 246 and 252 of the Constitution of India.
33. Considering the fact that it has not been in dispute
that the CBI came into existence by the Resolution No. 4/31/61-T, dated
01.04.1963., issued by the Government of India, Ministry of Home Affairs, the
impugned Resolution, being relevant, is reproduced below:
“No. 4/31/61-T 20
GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS
New Delhi, the 1st April, 1963
R E S O L U T I O N
The Government of India have had under consideration
the establishment of a Central Bureau of Investigation for the investigation of
crimes at present handled by the Delhi Special Police Establishment, including
specially important cases under the Defence of India Act and Rules particularly
of hoarding, black-marketing and profiteering in essential commodities, which
may have repercussions and ramifications in several States; the collection of
intelligence relating to certain types of crimes; participation in the work of
the National Central Bureau connected with the International Criminal Police
Organization; the maintenance of crime statistics and dissemination of
information relating to crime and criminals; the study of specialized crime of
particular interest to the Government of India or crimes having all-India or
interstate ramifications or of particular importance from the social point of
view; the conduct of Police research, and the coordination of laws relating to
crime. As a first step in that direction, the Government of India have
decided to set up with effect from 1st April, 1963 a Central Bureau of
Investigation at Delhi with the following six Divisions, namely:-
(i) INVESTIGATION AND
ANTI-CORRUPTION DIVISION.
(DELHI SPECIAL POLICE ESTABLISHMENT).
(ii) TECHNICAL DIVISION.
(iii) CRIME RECORDS AND STATISTICS
DIVISON.
(iv) RESEARCH DIVISION.
(v) LEGAL DIVISON & GENERAL
DIVISION.
(vi) ADMINISTRATION DIVISION.
The Charter of function of the above-said Divisions
will be as given in the Annexure. The assistance of the Central Bureau
of Investigation will also be available to the State Police Forces on request
for investigating and assisting in the investigation of interstate crime and
other difficult criminal cases.
Sd/- (V. VISWANATHAN)
Secretary to the Government of India”
34. The
expression “As a first step in that direction”, appearing in the
impugned Resolution, dated 01-04-1963, goes to show that the CBI was
constituted as an ad hoc measure to deal with certain exigencies. This
measure, taken by the Union Government, was not in the form of any Ordinance;
rather, constitution of the CBI was an executive decision and that too,
without citing, or referring to, the source of power.
35. We have read and read many a times the impugned
Resolution, dated 01.04.1963.
36. On a careful reading of the contents of the impugned
Resolution, what becomes evident is that the Resolution does not refer to, as
already indicated above, any provisions of the DSPE Act, 1946, as the source of
its power. In other words, deriving strength from the DSPE Act, 1946, the CBI
has not been constituted. One cannot, therefore, treat the CBI as an organ or
part of the DSPE either.
37. A cautious reading of the provisions, embodied in
the DSPE Act, 1946, as a whole, clearly reveals that this Act empowers the
Central Government to constitute a separate police force to be called as
Delhi Special Police Establishment for investigation of offences, which may be
notified under Section 3 thereof. Thus, the police force, which may be
constituted by the Central Government deriving power from the DSPE Act, 1946,
is, in the light of the provisions of the DSPE Act, 1946, can be called Delhi
Special Police Establishment, which we have been referring to as the DSPE. 22
38. The
learned ASG has completely failed to show that the CBI can be said to have been
established or constituted as an organ or part of the DSPE or is a special
force, which has been constituted by taking recourse to Section 2 of the DSPE
Act, 1946. We have, therefore, no hesitation in concluding that CBI is not
established under the DSPE Act, 1946, or is an organ of the Delhi Special
Police Establishment .
39. While
considering the question, framed above, it is worth noticing that there is no
dispute that CBI came into existence with the issuance of Resolution, dated
01.04.63. If CBI is an integral part of the DSPE, then, such a resolution ought
to have been issued by the Central Government in exercise of powers vested in
the Central Government by the DSPE Act, 1946. In other words, had the CBI been
constituted under the DSPE Act, 1946, by the Central Government, the CBI could
have been treated as having been created by way of delegated legislation. There
is, however, nothing, either in the DSPE Act, 1946, or in the impugned
Resolution, dated 01.04.1963, to show that the CBI is a creation of a delegated
piece of legislation. In order to exercise powers under delegated legislation,
it is necessary that the Statute itself empowers the Executive to issue
notification/resolution to meet the exigencies of time; whereas no such power
is vested in the Central Government by the DSPE Act, 1946. 23
40. On a reading of the various provisions of the DSPE Act, 1946, the
executive powers, as endowed by the DSPE Act, 1946, can be pointed as follows:
Section 2:- Central Government may constitute special
police force called DSPE for Union Territory of Delhi.
Section 3:- Central Government may notify the
offences, which may be investigated by the DSPE
Section 5:- Central Government may notify the areas,
where DSPE can exercise jurisdiction meaning thereby that if Central Government
has not extended the operation of DSPE to the State of Assam, then even if the
State of Assam consents to an investigation by the DSPE, the DSPE would not be
in a position to investigate.
41. The
following aspects may be culled out on an analysis of the scheme of the DSPE
Act, 1946:
42. In
essence, the DSPE was established only to exercise unrestricted power of
investigation in the Union Territory of Delhi. It can investigate offences in a
State, other than Delhi, provided that the State Government consents thereto
and the relevant notification, under Section 5, has been issued by the Central
Government.
43.
Secondly, the name of the establishment, created by the DSPE Act, 1946, is
Delhi Special Police Establishment and not CBI; whereas it is the impugned
Resolution, which has created the CBI as a police force for investigation of
offences preparatory to filing of charge-sheets. If a statute gives a specific
name to an organization, created by the statute, 24
it is not permissible to confer a new
name on the organization by any executive instructions. Subject to the validity
of the DSPE Act, 1946, only Delhi Special Police Establishment can be termed as
statutory body created by the DSPE Act, 1946, and not the CBI.
44. Thirdly,
if CBI were part of the DSPE, the Resolution, dated 1.4.63, would have made a
mention to the effect that Central Government is issuing the impugned
Resolution in exercise of powers vested in it by the DSPE Act, 1946. However, a
reading of the Resolution would make it evident that it does not reflect the
source of executive power. Since it is found that the Resolution, which created
the CBI, is not an act of delegated legislation, the Resolution cannot become a
part of the DSPE Act, 1946.
45. This Court, vide order, dated 20.01.2013, has
directed the respondents to produce the records relating to creation of the
CBI. It is relevant to note that despite directions, the respondents did not
file the original records; rather they produced a certified copy of the records
received from the National Archives.
46. However, even perusal of the entire records makes it
clear that the Resolution was neither produced before the President of India
nor did it ever receive the assent of the President of India. Hence, strictly
speaking, the Resolution, in question, cannot even be termed as the decision of
the Government of India. That apart, it is apparent from the records that the
CBI is a newly constituted body and not the same as 25
DSPE. The very subject of the file reads as Setting
up of Central Bureau of Investigation and creation of various posts. We
would like to point out certain notings, at page 11, 20, 21, 23, 25, 26, 103,
104 and 105, which read as follows:
“The setting up of a Central Bureau of Investigation
seems to be necessary for the following reasons:
1. Inter-State Crime Investigation has become most
important. In India there is, at present, no Inter-State Agency.”
47. At Page 20, there is a letter dated 20.8.1962, of
the Director General of Special Police Establishment, which reads as follows:
“I forward herewith, for what it may be worth, a
note giving certain suggestions of implementing the decision of the Home
Minister to constitute and set up a Central Bureau of Investigation”
At page 21:
I think there was some discussion previously whether
the setting up of this Bureau of Investigation required the consent of the
States or not. Now under the Defence of India Regulations, the Centre can
perhaps set up this bureau as an emergency measure.
At page 23:-
In the `summary’ placed below, the previous history of
the proposal for the re-organisation of the Central Intelligence Bureau into
the Central Bureau of Intelligence and Investigation has been briefly brought
out. This question was examined in 1949-51 and a suitable provision enabling
the Parliament to legislate for the establishment of a Central Bureau of
Intelligence and Investigation was made in the draft Constitution. Thereafter,
it was proposed to undertake legislation for this purpose and State Governments
were consulted on the scope and functions of the Bureau. There was a large
measure of agreement among the State that offences pertaining to Central Acts,
affecting the interest of the Central Government and inter-state crime may be
handled by Central Bureau, and investigation of other crimes may also be taken
up by it at the request of the State Government concerned. The proposal was not
pursued beyond this stage.
At
page 25 the following notings were made to give legal basis to the CBI: 26
State Government may be informed
of this and also of our intention to sponsor legislation in due course to give
legal basis to the Bureau and to bring within its purview other crimes
originally envisaged.
48. It is strange, as discernible from the notings at
page 26, that the Central Government did not want the States to know its
intention of expanding the scope of the Bureau in due time, which is
apparent from the following notings:
…..But it is for consideration whether, while
communicating the scheme to the State Governments, we should not also tell them
of our intentions of expanding its scope in due course to its original
conception and that this would require suitable legislation by Parliament which
would be undertaken at the appropriate stage.
Again at Page 98
Now that a decision has been taken to constitute and
set up a Central Bureau of Investigation it has to be considered how best to
implement this and to give it a shape. The points that arise for consideration
are:-
(i) Whether it is necessary to consult the States
before setting up the Central Bureau of Investigation?
(ii) Whether it is necessary to have a new
comprehensive Act to define the functions and the powers of the Central Bureau
of Investigation and to give it the legal authority for conducting enquiries
and investigations all over India?
(iii) What items of work should be allotted to the
Central Bureau of Investigation?
2. If States are to be consulted and if a new
comprehensive Act has to be passed by Parliament before the setting up of the
Central Bureau of Investigation, this proposal is likely to be unduly held up.
Objections might be raised or doubts might be expressed by some States and the
process of resolving them will necessarily take time. Some difficulties might also
arise from the standpoint of the spheres of responsibility of the Centre and
the States. 27
3. When these questions are examined
in the light of existing arrangements between the Centre and the States and of
the legal provisions that are already available, it does not appear to be
necessary to have consultation with the States and to promulgate a new
comprehensive Act before constituting the Central Bureau of Investigation.
4. There is already a provision in the Constitution
for setting up a Central Bureau of Investigation. The States and their Chief
Ministers would have been consulted and all aspects of the matter would have
been examined and taken into consideration by the framers of the Constitution
before this provision was incorporated. It would, therefore, be perfectly legal
and within the ambit of the Constitution to constitute and set up a Central
Bureau of Investigation. Moreover, it is understood that even after the Constitution
was passed the States were consulted on this issue and there was general
agreement on the need for setting up a Central Bureau of Investigation.
5. If the functions and the items to be allotted to
the C.B.I. are only those which are already being attended to by one Agency or
another under the Central government, there should be no need for fresh
consultation with the States. Such consultation might be necessary if new items
of work are to be given to the C.B.I. but that need not be done at present.
At
Page 103
It would appear from the above discussion that it is
possible to give effect to the decision of the Home Minister and to set up a
Central Bureau of Investigation without having prior consultation with the
States and without going to Parliament for fresh legislation. Even within
the ambit of the existing legal provisions and of the accepted arrangements
with the States it is possible to allot the essential and important items of
work to the C.B.I. and to enable it to function effectively and usefully.
9. Later, other functions could be added to the
Central Bureau of Investigations with the consent of the States and the scope
of its activities enlarged. At that stage the questions of framing a new
comprehensive Act could also be considered. Even otherwise it would be better
to frame a new Act after the C.B.I. has been in existence for some time and
when its difficulties and requirements as brought out by actual experience are
known. At that time it would also be far easier to obtain the consent of the
States for fresh legislation. 28
At Page 104:
10. In this connection a point worthy of note is
that fresh legislation on the lines contemplated is not free from difficulties.
Very great care will have to be taken to frame the proposed Act in such a way
as not to infringe on the provisions of the Constitution. Even with all the
care in drafting and preparing the Act it is likely to be questioned in courts
and it is difficult to anticipate what the decision of the courts would be on
the validity of the new Act or on legal points arising from it. On the other
hand, it might be mentioned that the Delhi Special Police Establishment Act has
already gone through this process. Its provisions have been debated in courts
from all possible angles and it has withstood onslaughts from all directions.
Even the highest courts have upheld the validity of the provisions of this Act.
It is a matter for consideration whether it would be worthwhile framing a new
Act just at present with all the delay and difficulty that this involves and
with the risk that it is likely to entail.
At Page 105:
12. From a consideration of the points mentioned in
the foregoing paragraphs it would appear that all that is necessary to
implement this proposal is to issue administrative orders –
(i) constituting and setting up a Central Bureau of
Investigation as provided for in the Constitution;
(ii) declaring the S.P.E. to be a wing of the C.B.I.
and an integral part of it and under its administrative control;
49. At page
126, various posts and pay scales are mentioned.
50. It is apparent from the notings, which we have
referred to above, that the Central Government had set up altogether a new body
known as CBI by the impugned Resolution. It is further found that the Union
Home Ministry was working on the assumption that there is already provision in
the Constitution for creation of the CBI. Admittedly, at that time, no
legislation was made to set up the CBI and the source of 29
power were being traced to Entry 8 of Part I (Union
List), which reads, “Central Bureau of Intelligence and Investigation.”.
51. Coming, now, to the argument of learned ASG that the
CBI may be found to be treated to have been created by way of an
executive instruction, the source of power being traceable to Entry 8 of List I
(Union List), it may noted that Entry 8 of List I (Union List) reads, ‘Central
Bureau of Intelligence and Investigation’. It is the submission of the
appellant that the word, ‘investigation’, which appears in the
expression, ‘Central Bureau of Intelligence and Investigation’ under
Entry 8 of List I of the Union List, does not mean ‘investigation’,
which is, ordinarily, carried out by a police force under the CrPC, preparatory
to the filing of charge-sheet, against an offender.
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 30
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 31
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. 32
55. The
learned ASG, on the other hand, argues, that if the language of an Act is
unambiguous and clear, no reliance can be placed on the Parliamentary debates
and one may look to the Statement & Objects and Reasons and not to the
Parliamentary debates.
56. In support of the above contention, the learned ASG
has relied upon the decision, in Anandji Haridas & Co. (P) Ltd. Vs.
Engineering Mazdoor Sangh (1975) 3 SCC 862, wherein the relevant observations,
appearing at para 9, reads,
“9. We
are afraid what the Finance Minister said in his speech cannot be imported into
this case and used for the construction clause (e) of section 7. The language
of that provision is manifestly clear and unequivocal. It has to be construed
as it stands, according to its plain grammatical sense without addition or
deletion of any words.
10. As a general principle of interpretation, where
the words of a statute are plain, precise and unambiguous, the intention of the
Legislature is to be gathered from the language of the statute itself and no
external evidence such as parliamentary debates, reports of the Committees of
the Legislature or even the statement made by the Minister on the introduction
of a measure or by the framers of the Act is admissible to construe those
words. It is only where a statute is not exhaustive or where its language is
ambiguous, uncertain, clouded or susceptible of more than one meaning or shades
of meaning, that external evidence as to the evils, if any, which the statute
was intended to remedy, or of the circumstances which led to the passing of the
statute may be looked into for the purpose of ascertaining the object which the
Legislature had in view in using the words in question.”
57. It is necessary to point out here that the intent of
embodying the Constituent Assembly debates is to gather an idea behind the
general law making process. In any view of the matter, the debates quoted
above, becomes relevant and unavoidable when it is contended, on behalf of the
respondents, that the creation of the CBI can be traced to the Central
Government’s power embodied in Entry 8 of List I of the 33
Union List, which provides for creation of ‘Central
Bureau of Intelligence and Investigation’.
58. It is an
admitted position that no independent law exists on Central Bureau of
Intelligence and/or Investigation; rather, it is the DSPE Act, 1946, only
which, as argued by the ASG, is the law, which, according to the respondents,
has created the CBI. But then, Entry 8 List I (Union List) definitely empowers
the Parliament to enact a law in the form of ‘Central Bureau of Intelligence
and Investigation’. Such a legislative competence is preserved under Art.
246 (1), which reads, “Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in this Constitution referred to
as the “Union List”).
59. Having enacted a law, under Entry 8 of List I (Union
List), if the Central Govt, decides to extend its operation in other States,
then, it is necessary that the said law be amended in terms of Entry 8 of list
I (Union List) so as to enable the Central Government to extend the operation
of the law with the consent of the Government concerned.
60.
Coupled with the above, if the
debates, in the Constituent Assembly, are borne in mind, the word, ‘investigation’,
became a subject matter of debate, primarily, for the reason that it would
amount to encroachment into the realm of the subject matter of State List. The
word, ‘investigation’, appearing within the expression, ‘Central
Bureau of Intelligence and Investigation’, was sought to be justified, in
the Constituent Assembly, contending that Police is exclusively a State 34
subject and it has no place in the Union List. The
word ‘investigation’ was, therefore, according to the Constituent
Assembly, intended to cover general ‘enquiry’ for the purpose of finding
out what is going on and this ‘investigation’ is not an ‘investigation’
preparatory to the filing of a charge-sheet against an offender,
which only a police officer, under the Criminal Procedure Code, can do.
61. Learned ASG further argues that the expression Intelligence
appearing in Entry 8 may be read in the Central Bureau of Investigation
even though in general the expression in not used in its designation.
62. It is necessary to point out here that the intent of
embodying the Constituent Assembly debates is to gather an idea behind the
Constitution making process relating to Entry 8 of List I (Union List)
providing for creation of ‘Central Bureau of Intelligence and Investigation’
and the meaning of the term ‘investigation’, appearing within the
expression ‘Central Bureau of Intelligence and Investigation’ as had
been construed by the Constitution-makers.
63. In the above view of the matter, the debates, quoted
above, become relevant and unavoidable, when it is contended, on behalf of the
respondents, that the creation of the CBI can be traced to the Union
Government’s power embodied in Entry 8 of List I (Union List), which provides
for creation of ‘Central Bureau of Intelligence and Investigation’.
64.
It is an admitted position that no
independent law exists on Central Bureau of Intelligence and/or Investigation,
though it is the 35
alternative contention of the learned ASG that
authority to constitute CBI may be traced to Entry 8 of List I (Union
List).
65.
We may, however, point out that Entry
8 of List I (Union List), indeed, empowers Parliament to enact a law on the
subject of ‘Central Bureau of Intelligence and Investigation’. Such a
legislative competence is preserved under Art. 246 (1), which reads, “Notwithstanding
anything in clauses (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule
(in this Constitution referred to as the “Union List”.
66. Coupled with the above, if the debates are borne in
mind, it becomes abundantly clear that the word, ‘investigation’, appearing
within the expression “Central Bureau of Intelligence and Investigation” became
a heated subject matter of debates, in the Constituent Assembly, primarily, for
the reason that empowering the Parliament to enact law, on ‘investigation’ conducted
into an offence by police, would amount to encroachment into the realm of the
subject matter of State List, though ‘police’ is a subject, which falls
in the State List.
67.
The inclusion of the word, ‘investigation’,
appearing within the expression, ‘Central Bureau of Intelligence and
Investigation’, was sought to be justified, in the Constituent Assembly, by
contending that police remains exclusively a State subject and it has no
place in the Union List. The word ‘investigation’ was, therefore,
according to the Constituent Assembly debates, intended to cover general ‘enquiry’
for the purpose of finding out what was going on and this ‘investigation’,
36
which amounts to a mere ‘enquiry’, is not an ‘investigation’
preparatory to the filing of charge sheet against an offender, for,
such an ‘investigation’ can be carried on by only a police officer,
under the Criminal Procedure Code, and none else. This apart, it is State
legislature, which is entitled to constitute a ‘police force’ for the
purpose of conducting ‘investigation’ into crime.
68. From the above discussion, which took place in the
Constituent Assembly, it becomes crystal clear that the Parliament cannot, by
taking resort to Entry 8 of List I (Union List), make any law empowering a
police officer to make ‘investigation’ in the same manner as is done,
under the Criminal Procedure Code, by a police officer, while conducting an ‘investigation’
into an offence for the purpose of bringing to book an offender.
69. In the above view of the matter, the impugned
Resolution, dated 01.04.1963, constituting the CBI, as an investigating
agency, in order to carry out ‘investigation’ into commission of
offences in the manner as is done by a police officer under the Criminal
Procedure Code, cannot be traced to Entry 8 of List I (Union List).
70.
In other words, the source of power
to create CBI as an investigating agency cannot be traced to, or be said
to be located in, Entry 8 of List I (Union List). This apart, from the fact
that while the law existing, prior to the coming into force of the Constitution
of India, is protected in terms of the mechanism introduced by Article 372 and
Article 372A of the Constitution of India, no amendment to any such 37
law, if made after the Constitution of India has
already come into force, be saved or protected by taking resort to Article 372
and 372A if the provisions, embodied in the Constitution, run counter to the
scheme of our Constitution.
71. It is also necessary, in the above context, to take
note of the preamble of the DSPE Act, 1946, which reads as follows:
“An
Act to make provision for the constitution of a special police force [in Delhi
for the investigation of certain offences in [the Union territories]], for the
superintendence and administration of the said force and for the extension to
other [***] of the powers and jurisdiction of members of the said force in
regard to the investigation of the said offences.
WHEREAS
it is necessary to constitute a special police force [in Delhi for the
investigation of certain offences in [the Union territories]] and to make
provision for the superintendence and administration of the said force and for
the extension to other areas [***] of the powers and jurisdiction of the
members of the said force in regard to the investigation of the said offences;
Section
1 - Short title and extent
(1) This Act may be
called the Delhi Special Police Establishment Act, 1946.
(2) It extends to [the
whole of India], [***].”
72. A careful reading of the preamble to the DSPE Act,
1946, would make it evident that the DSPE Act, 1946, has been made for the ‘Union
Territories’. This legislative power cannot be exercised by the Parliament
except under Art 246 (4), which enables Parliament to enact 38
laws on subjects, covered by List II (State List), in
respect of Union Territories.
73. Thus, though police is a State subject,
Parliament is competent to make laws, on the subject of police, for the Union
Territories only inasmuch as Union Territories do not have any
legislative assembly of their own.
74. Again, a reading of Sec. 1 of the DSPE Act, 1946,
would show that the DSPE Act, 1946, extends to whole of India meaning thereby
that it is an embodiment of Entry 80 of List I (Union List), which enables
Parliament to make law permitting extension of the operation of a police
force to another State. It is in this light that Sections 5 and 6 of the
DSPE Act, 1946, need to be read together inasmuch as a combined reading of
Sections 5 and 6 of the DSPE Act, 1946, makes it clear that the Central
Government is empowered to extend the activities of the DSPE to any other State
with, of course, the consent of the State concerned.
75. Apprehending that his argument that CBI can
be said to have been constituted, in exercise of power under Entry 8 of List I
(Union List), may not, in the light of the Constituent Assembly debates, cut
much ice with this Court, the learned ASG has submitted, perhaps, as a
precautionary measure, that if constitution of the CBI cannot be traced
to the Parliament’s power under Entry 8 of List I (Union List), CBI may
be validly safeguarded by virtue of Entry 80 of List I (Union List) 39
inasmuch as CBI can be said to have been
constituted in exercise of power under Entry 80 of List I (Union List).
76. Let us, now, examine, in the light of the provisions
embodied in Entry 80 of List I (Union List), the correctness of the above
submissions. Entry 80 of List I (Union List), we notice, reads as follows:
“Extension of the powers and jurisdiction of members
of a police force belonging to any State to any area outside that State, but
not so as to enable the police of one State to exercise powers and jurisdiction
in any area outside that State without the consent of the Government of the
State in which such area is situated; extension of the powers and jurisdiction
of members of a police force belonging to any State to railway areas outside
that State.”
77. It will be seen that Entry 80 of List I (Union List)
merely enables the Parliament to extend the operation of police force of
one State to another. However, Entry 80 of List I does not empower the
Parliament, far less the Central Government, to enact a law creating a separate
police force for the purpose of ‘investigation’ into a crime
preparatory to the filing of charge sheets. What Entry 80 of List I
permits is only making of provisions of ‘extension’ of a valid law
governing activities of police of one State to have jurisdiction in any other
State with, of course, the consent of the other State concerned.
78. Thus, if the DSPE Act, 1946, were treated to be a
valid piece of legislation, then, by virtue of Entry 80 of List I (Union List),
the Parliament could have incorporated, in the DSPE Act, 1946, that the 40
operation of DSPE Act, 1946, may be extended to other
States if the latter State gives consents thereto.
79. In the backdrop of what have been discussed above,
Section 5, subject to Section 6 of the DSPE Act, 1946, can be regarded as an
embodiment of Entry 80 List I (Union List). Such a provision could be made in
the DSPE Act, 1946, because such a power was available with the Governor
General-in-Council under Entry 39 of List I of Seventh Schedule to the
Government of India Act, 1935, which corresponds to Entry 80 of List I (Union
List).
80. Therefore, as regards the reliance placed on Entry
80 of List I (Union List) by the learned ASG, we hold that there must, at
first, be a validly constituted police force and only thereafter, the
question of ‘extension’ of its jurisdiction to other areas by taking
resort to Entry 80 of the List I (Union List) will arise.
81. We must remember that various Entries, in the Lists
of Seventh Schedule, do not give any power to legislate; rather, the Entries
demarcate the fields of legislation between the States and the Centre. In this
regard, following observations, appearing in State of West Bengal &
Ors. Vs. Committee for Protection of Democratic Rights, West Bengal & Ors. (2010)
3 SCC 571, being relevant, are extracted:
“27.Though, undoubtedly, the Constitution
exhibits supremacy of Parliament over the State Legislatures, yet the principle
of federal supremacy laid down in Article 246 of the Constitution cannot be
resorted to unless there is an irreconcilable direct conflict between the 41
entries in the Union and the State
Lists. Thus, there is no quarrel with the broad proposition that under the
Constitution there is a clear demarcation of legislative powers between the
Union and the States and they have to confine themselves within the field
entrusted to them. It may also be borne in mind that the function of the
lists is not to confer powers; they merely demarcate the legislative field...”
(Emphasis supplied)
82.
Learned ASG, while placing reliance
on the case of Advance Insurance Co. vs. Gurudasmal, reported in (1970)
1 SCC 633, argues that that it is because of Entry 80 List I that the
constitutional validity of the DSPE Act, 1946, had been upheld by Supreme
Court.
83. So far as the case of Advance Insurance Co. Ltd.
(supra) is concerned, the argument, before the Supreme Court, was that
Delhi Special Police Establishment Act, 1946, is not constitutionally valid and
that DSPE has no jurisdiction to investigate cases in other States. The basis,
for the argument, was that Entry 80 of List I speaks of police force of
a State; whereas DSPE, 1946, was a police force of a Union Territory,
namely, Union Territory of Delhi.
84. The argument, so raised, in Advance Insurance Co.
Ltd. (supra), by the appellant, was overruled by the Supreme Court in the
context of Entry 39 of List I (Union List) under the Government of India Act,
1935, corresponding to Entry 80 of List I (Union List) of the Constitution of
India. Relying on the definition of ‘State’, as given in Section 3 (58)
of the General Clauses Act, the Supreme Court held that ‘State’ also
meant a ‘Union Territory’ and so far as Entry 80 was 42
concerned, since the substitution of term ‘Union
Territory’, for the term ‘State,’ is not repugnant to the context
thereto, the term ‘State’ would also mean a Union Territory. The
Supreme Court further observed, in Advance Insurance Co. Ltd. (supra), that
since Entry 80 of List I (Union List) under the Government of India Act, 1935,
corresponding to Entry 39 of List I of the Seventh Schedule, enables the police
force of one State to function and carry out ‘investigation’ into an
offence in another State if the latter State consents to such ‘investigation’,
an ‘investigation’ by the DSPE into a case, in Maharashtra, is
permissible. To put it a little differently, the members of the DSPE, the DSPE
being a valid establishment under the DSPE Act, 1946, may be empowered to ‘investigate’
an offence in a State, outside Delhi, provided that the State concerned
given consent to the same. This is precisely what has been done by virtue of
Sections 5 and 6 of the DSPE Act, 1946, and the same is in tune with Entry 39
of List I (Union List) under the Government of India Act, 1935, corresponding
to Entry 80 of List I (Union List) of the Constitution of India.
85. It is, thus, apparent that the case of Advance
Insurance Co. Ltd (supra) is a precedent on the point that DSPE is a
police force functioning in the Union Territory of Delhi. However, by no
stretch of imagination, the case of Advance Insurance Co. Ltd. (supra)
be regarded as a precedent on the point that CBI is a body
constituted under the DSPE Act, 1946, nor is the case of Advance Insurance
Company Limited (supra) be regarded as a precedent to justify CBI
as a validly constituted 43
‘police force’ empowered to ‘investigate’
offences preparatory to filing of charge-sheets.
86.
The case of Advance Insurance Co.
Ltd. (supra), thus, does not advance, or come to the assistance of, the
respondents’ case that the CBI is borne out of the DSPE Act, 1946, or
that the CBI can be regarded as a ‘police force’ constituted by the
Central Government by taking resort to Entry 80 of List I (Union List).
87.
Consequently, it would not be a
correct proposition of law to contend that Entry 80 of List I (Union List)
validates the impugned Resolution, dated 01.04.1963, as an executive
instruction of the Union Government, because Entry 80 of List I (Union List)
presupposes existence of a valid ‘police force’ before the area of
jurisdiction of such a ‘police force’ is extended from one State to
another State with the consent of the latter State. In the present case, the CBI,
which is claimed to be a police force, has itself been brought into
existence with the help of the impugned Resolution, dated 01.04.1963, and not
on the strength of any legislation.
88. In an attempt to bring home his argument that CBI
is a statutorily established agency, learned ASG also took recourse to
Entry 1 and Entry 2 of List III (Concurrent List), which provide as follows:
“1. Criminal law, including all matters included in
the Indian Penal Code at the commencement of this Constitution but excluding
offences against laws with respect to any of the matters specified in List I or
List 44
II and excluding the use of naval,
military or air forces or any other armed forces of the Union in aid of the
civil power.
2. Criminal procedure, including all matters included
in the Code of Criminal Procedure at the commencement of this Constitution.”
89. Article 246 (2), dealing with Concurrent List,
provides that notwithstanding anything in clause (3), Parliament, and, subject
to clause (1), the Legislature of any State also, have power to make laws with
respect to any of the matters enumerated in List III in the Seventh Schedule.
90. Thus, both, Union and State, can enact a criminal or
penal law. However, such a penal law should not be on any of the subjects
mentioned in List I or II and should not be laws on use of naval, military or
air forces or any other armed forces of the Union in aid of the civil power.
Again, as empowered by Entry 2, both, Union and State, can introduce changes in
the Code of Criminal Procedure.
91. Article 246, in essence, lays down the principle of
federal supremacy and in the event of inevitable conflict between the exercise
of power by the Union and a State, it is the power, exercised by the Union,
which would prevail over the State’s powers and, in the case of overlapping of
a legislation made by a State vis-Ã -vis a legislation made by the
Parliament on a subject covered by List III (Concurrent List), it is not the
former legislation, but the later one, which shall prevail. 45
92. Thus,
both, the Union and the State, can frame law on IPC and Cr.PC provided that the
laws do not overlap. In the event of laws overlapping, the law, made by the
Parliament, shall prevail.
93. For instance, let us take Section 354 IPC. Even
before the enactment of Criminal Law (Amendment) Act, 2013, which introduced
amendments in Indian Penal Code, CrPC, Evidence Act, etc., there were some
States, which had already amended some of the features of Section 354 IPC.
94. Thus, in the State of Andhra Pradesh, Sec. 354 IPC
Andhra Pradesh Act 6 of 1991 read as follows:
“354.
Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman
intending to outrage or knowing it to be likely that he will thereby outrage
her modesty, shall be punished with imprisonment of either description for a
term which shall not be less than five years but which may extend to seven
years and shall also be liable to fine:
Provided
that the court may for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term
which may be less than five years but which shall not be less than two years.”
95. The State of Orissa had also, by virtue of Orissa
Act 6 of 1995, (w.e.f. 10-3-1995), introduced amendments in Section 354, which
made the offence a non-bailable offence, though in the State of Assam, where 46
no such amendments were made, the offence remained a bailable
offence.
96. So far as constitution of police force is
concerned, Union and the State, both have legislative competence to enact laws
on ‘police’. However, so far as law, enacted by Parliament, is
concerned, it can operate only in the ‘Union territories’ and not in any
‘State’, because ‘police’ is a subject falling under State List.
97. For instance, for the State of Assam, the Assam
Police Act, 2007, has been enacted by the State Legislature. It, however, needs
to be mentioned here that Police Act, 2007, governs the administrative aspects
of police. So far as ‘investigation’, a matter falling within the realm
of Cr.PC, is concerned, only those police officers, who are recognized as
Investigating Officers, under CrPC, have the power to investigate an offence.
In other words, under the Assam Police Act, 2007, there may be several police
officers; but not all of them have the power to register a case, investigate an
offence and/or submit a charge-sheet.
98. An example may be given by referring to Sec. 30 and
Sec. 55 of Assam Police Act, 2007, which read as under:
“Sec.
30 District Armed Reserve: The
District Armed Reserve, which will function under control, direction and
supervision of the District Superintendent of Police shall be the armed wing of
the District Police to deal with an emergent law and order problem or any
violent situation in the district, and 47
for providing security guards or escort of violent
prisoners, or such other duties as may be prescribed”.
Sec.
55 Investigation by special crime investigation unit:-The state government shall ensure that in all
metropolitan Police Stations having a population of 10 (ten) lakhs or more, a
Special Crime Investigation Unit, headed by an officer not below the rank of
Inspector of Police, is created with an appropriate strength of officers and
staff, for investigating organized, economic, and heinous crimes. The personnel
posted to this unit shall not be diverted to any others duty, except under very
special circumstances with the written permission of the Director General of
Police. The State Government may, however, gradually extend this scheme to
other urban Police Stations.
99. It will
be seen that Officers of the Armed Reserve, as conceived under Section 30, have
not been entrusted with the responsibility of ‘investigation’ even
though they are Police Officers. On the other hand, Special Crime Investigative
Unit has been conceived as an investigation organ in cities having population
of more than 10 lakhs.
100. The
arguments of learned ASG, with reference to Entry I and 2 of List III, do not
come to the rescue of the respondents for the simple reason that under List
III, laws, on criminal procedure and penal laws, can be framed on any of the
subjects, which are not covered by List I and List II. Since Entry 8 of List I
(Union List) makes Parliament specifically competent to enact a law on ‘Central
Bureau of Intelligence and Investigation’, it would be a destructive
submission to say that if not 48
under Entry 8 of List I, then, under
Entry 1 and 2 of List III, CBI’s existence can be validated, particularly, when
Entry 2 of List III (Concurrent List) deals with ‘procedure’ of ‘investigation’
and ‘trial’ of offences and not with the ‘constitution’ of a
‘police force’.
101. The question, now, is: whether the impugned
Resolution, dated 01.04.1963, is an executive action and, therefore ‘law’
within the meaning of Article 13 (3)(a) and/or Article 21 of the Constitution
of India?
102. Before entering into the discussion whether the
impugned Resolution, dated 01.04.1963, is a valid executive action, It is
necessary that the extent of executive powers of the Union and the State, as
have been provided in Article 73 and Art. 162, respectively, be examined. Since
both these provisions, embodied in the Constitution, define the limits of the
law making capacity, discussion, on any one of the provisions, would suffice.
103. The extent of executive powers of the Central
Government has been prescribed by Article 73 of the Constitution, which is
reproduced below:
“73. Extent of executive power of the Union –
(1) Subject to the provisions of this Constitution, the executive power of the
Union shall extend –
(a) To the matters with respect to which Parliament
has power to make laws; and
(b) To the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of India by virtue of any
treaty or agreement;
49
Provided that the executive power
referred to in sub-clause (a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in any State to matters
with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State
and any officer or authority of a State may, notwithstanding anything in this
article, continue to exercise in matters with respect to which Parliament has
power to make laws for that State such executive power or functions as the
State or officer or authority thereof could exercise immediately before the
commencement of this Constitution.”
104. A bare reading of Article 73 makes it evident that
the executive powers of the Union extends to all the matters with respect to
which the Parliament has power to make laws; but, there are three fetters on
exercise of the executive powers. First, this exercise is subject to provisions
of the Constitution and, secondly, this exercise of executive power shall not,
save as expressly provided in the Constitution or in any law made by
Parliament, extend, in any State, to matters with respect to which the
Legislature of the State also has power to make laws. Thirdly, as we would
show, the exercise of executive power cannot be stretched to the extent of
infringing fundamental rights.
105. What is, now, of great importance to note is that
Article 73 cannot be read in isolation and it becomes necessary to understand
its co-relation with Article 245 and Article 246 of the Constitution, which
embody the concept of federal structure of our Constitution. Though within the
powers vested in the Union and the States, each of these entities possesses
plenary powers, their powers are, among others, limited by two important
barriers, namely, (i) the distribution of powers by the Seventh Schedule and
(ii) the Fundamental Rights included in Part III. 50
106. A
combined reading of Article 245 and Article 246 shows that Parliament and State
Legislatures have Constitutional competence to make laws. However, the subject
matter of the laws to be made have been delineated in the form of three lists,
namely, Union List, State list and the Concurrent list. This apart, Parliament
has the power to make laws, with respect to any matter, for any part of the
territory of India, not included in a State, notwithstanding that such a matter
is a matter enumerated in the State List. In other words, it is within the
legislative competence of Parliament to make law, on subjects covered by State
List, for those territories, which do not fall within any of the States.
107. For instance, ‘police’ is a subject falling
under Entry 2 of List II (State List). In view of Article 246 (3), therefore,
only State has exclusive power to make laws on ‘police’ by taking
recourse to Entry 2 of List II (State List). However, Union Territories are not
States within the meaning of Article 246 and, hence, Parliament can make laws,
on police, for the Union Territories.
108. The Delhi Police Act, 1978, can be cited as one such
example. The Delhi Police Act, 1978, was enacted by the Parliament for the
Union Territory of Delhi even though ‘police’ is a subject falling under
State List.
109.
Explaining the concept of the extent
of executive powers, the Supreme Court held, in Dr. D.C.Wadhwa & Ors.
Vs. State of Bihar & Ors (AIR 1987 SC 579), that the executive
cannot take away the 51
functions of the legislature. The relevant
observations, made in this regard, read as under:
“….The law making function is entrusted by the
Constitution to the legislature consisting of the representatives of the people
and if the executive were permitted to continue the provisions of an ordinance
in force by adopting the methodology of re-promulgation without submitting it
to the voice of legislature, it would be nothing short of usurpations by the
executive of the law making function of the legislature. The executive cannot
by taking resort to an emergency power exercising by it only when the
legislature is not in session, take over the law making function of the
legislature. That would be clearly subverting the democratic process which lies
at the core of our Constitutional Scheme, for then the people would be governed
not by the laws made by the legislature as provided in the Constitution, but,
by the laws made by the executive. The government cannot bypass the
legislature and without enacting the provisions of the Ordinance into Act of
legislature, re-promulgate the Ordinance as soon as the legislature is
prorogued…..
…..It is settled law that a constitutional authority
cannot do indirectly what it is not permitted to do directly. If there is a
constitutional provision inhibiting the constitutional authority from doing an
act, such provision cannot be allowed to be defeated by adopting of any
subterfuge. That would be clearly a fraud on the Constitution…..”
(Emphasis
is supplied)
110. Thus, there remains no doubt that though the
executive powers are co-extensive with legislative powers of the Union or of
the States, as the case may be, this power is to be exercised within the limits
prescribed by the Constitution or any law for the time being in force. That
apart, once a legislation occupies a field, neither any of the States nor the
Union can exercise its executive powers on the same field inasmuch as the
legislation is the primary work of the Legislature and not of the Executive. 52
111. So far
as the operational effectiveness of executive action is concerned, the Supreme
Court, in the case of Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC 549),
while dealing with an argument of violation of fundamental rights,
observed that ordinarily, the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away.
112. Elucidating further, the Supreme Court, in Ram
Jawaya Kapur vs State of Punjab (AIR 1955 SC 549), observes that our
Constitution does not contemplate assumption, by one organ or part of the
State, of functions that essentially belong to another and that Executive can,
indeed, exercise the powers of departmental or subordinate legislation, when
such powers are delegated to it by the Legislature.
113. The Supreme Court, however, without mincing any
words, held, in Ram Jawaya Kapur (Supra), that specific legislation may,
indeed, be necessary if the Government requires certain powers in addition to
what they possess under ordinary law in order to carry on the particular trade
or business. Thus, when it is necessary to encroach upon private rights in
order to enable the Government to carry on their business, a specific
legislation, sanctioning such a course, would have to be passed.
114. The Supreme Court, in Ram Jawaya Kapur (supra),
cautioned that if, by the notifications and acts of the executive
Government, the 53
fundamental rights, if any, of the petitioners have
been violated, then, such executive
actions have to be termed as unconstitutional.
115. The case law, most appropriate to the above aspect
of the Constitutional limitations, imposed on the exercise of the executive
power, can be found in D. Bhuvan Mohan Patnaik vs State of AP (AIR 1974 SC
2092), wherein some prisoners had challenged the installation of live
electric wire on the top of jail wall as being violative of personal liberty
enshrined in Article 21 of the Constitution. The Supreme Court, having
questioned the legal authority justifying such installation of live wires,
rejected the argument that installing of the live high-voltage wire, on the
walls of jail, was solely for the purpose of preventing the escape of prisoners
and was, therefore, a reasonable restriction on the fundamental
rights of the prisoners.
116. Observed the Supreme Court, in D. Bhuvan Mohan
Patnaik vs State of AP AIR 1974 SC 2092 (Supra), that if the petitioners
succeed in establishing that the particular measure, taken by the jail
authorities, violated any of the fundamental rights available to them
under the Constitution, the justification of the measure must be sought in some
‘law’ within the meaning of Article 13(3) (a) of the Constitution. The
Supreme Court also observed, in D. Bhuvan Mohan Patnaik (Supra), that the
installation of the live high-voltage wire lacks statutory basis and seemed to
have been devised on the strength of departmental instructions, though such
instructions were neither ‘law’ within the meaning of Article 13(3) (a)
nor do these instructions 54
constitute "procedure established by law"
within the meaning of Article 21 of the Constitution. Therefore, if the petitioners are right in their
contention that the mechanism, in question, constitutes an infringement of any
of the fundamental rights available to them, they would be entitled to the
relief sought for by them that the mechanism shall be dismantled.
117. The State, in D. Bhuvan Mohan Patnaik (Supra),
which had acted on executive instructions in installing live high-voltage wire
on the walls of the jail, could not justify installation of this mechanism on
the basis of a ‘law’ or ‘procedure established by law’ inasmuch
as the executive instructions, which had been acted upon, were held by the
Supreme Court to be not a ‘law’ within the meaning of Article 13(3)(a) nor
could these instructions, according to the Supreme Court, fall within the
expression, “procedure established by law’, as envisaged by Article 21.
The relevant observations, appearing in this regard, in D Bhuban Patnaik
(supra), read as follows;
14. But before examining the petitioners'
contention, it is necessary to make a clarification. Learned counsel for
the respondents harped on the reasonableness of the step taken by the jail
authorities in installing the high-voltage live- wire on the jail walls. He
contended that the mechanism was installed solely for the purpose of preventing
the escape of prisoners and was therefore a reasonable restriction on the
fundamental rights of the prisoners. This, in our opinion, is a wrong approach
to the issue under consideration. If the petitioners succeed in establishing
that the particular 55
measure taken by the jail
authorities violates any of the fundamental rights available to them under the
Constitution, the justification of the measure must be sought in some
"law", within the meaning of Article 13(3) (a) of the Constitution.
The installation of the high voltage wires lacks a statutory basis and seems to
have been devised on the strength of departmental instructions. Such
instructions are neither "law" within the meaning of Article 13(3)
(a) nor are they "procedure established by law" within the meaning of
Article 21 of the Constitution. Therefore, if the petitioners. are right in
their contention that the mechanism constitutes an infringement of any of the funda-
mental rights available to them, they would be entitled to the relief sought by
them that the mechanism to be dismantled. The State has not justified the installation of the
mechanism on the basis of a law or procedure established by law"
(Emphasis is supplied)
118. Moreover, a Constitution Bench of the Supreme Court,
in the case of State of M.P. v. Thakur Bharat Singh (1967
SCR 454), has held that the executive action cannot infringe rights of a
citizen without lawful authority.
119. Again, in the case of Bishambhar Dayal Chandra
Mohan v. State of UP, reported (1982) 1 SCC 39, it has
been held that though the executive powers of the State are co-extensive with
the legislative powers of the State, no executive action can interfere with the
rights of the citizens unless backed by an existing statutory provision. 56
120. It will
not be out of place to mention here that the executive powers of the State are
to fill up the gaps and not to act as an independent law making agency inasmuch
as the function of enacting law, under our Constitution, lies with the
Legislature and the Executive has to implement the policies/laws made by the
Legislature and if the State is permitted to take recourse to its executive
powers to make laws, then, we would be governed by the laws not made by the
Legislature, but by the Executive. As held by the Supreme Court, in the case of
Chief Settlement Commissioner v. Om Prakash (AIR 1969 SC 33), the
notion of inherent and autonomous law making power, in the executive
administration, is a notion that must be emphatically rejected.
121. In one of the recent cases, namely, State of
Jharkhand vs Jitendra Kumar Srivasatava, Civil Appeal 6770/2013 dated 14.8.13,
the question confronting the Supreme Court, was whether, in the absence of any
provision in the Pension Rules, the State Government can withhold a part of
pension and/or gratuity during pendency of departmental/ criminal proceedings?
122.
The Supreme Court, while answering
the query, so posed, held that pension is a property within the meaning of
Article 300A and since the executive instructions, withholding pension, are not
having statutory character, it cannot be termed as ‘law’ within the
meaning of Article 300A. The Supreme Court further held, in Jitendra Kumar
Srivasatava (supra), that on the basis of a circular, which is not having
57
force of law, not even a part of pension or gratuity
can be withheld. The relevant observations made, in this regard, in Jitendra
Kumar Srivasatava (supra), read as follows:
15. It hardly needs to be emphasized that the executive
instructions are not having statutory character and, therefore, cannot be
termed as “law” within the meaning of aforesaid Article 300A. On the basis of
such a circular, which is not having force of law, the appellant cannot
withhold - even a part of pension or gratuity. As we noticed above, so far as
statutory rules are concerned, there is no provision for withholding pension or
gratuity in the given situation. Had there been any such provision in these
rules, the position would have been different.
123.
The ‘ratio’, as can be
gathered from the case of Jitendra Kumar Srivasatava (supra), is that if
a legal right of a person is sought to be curtailed, it has to be done only by
Statutory Rules and not by an executive instructions.
124. It is, thus, seen that CBI has been investigating
offences and prosecuting alleged offenders in the garb of being an organization
under the DSPE Act, 1946. In fact, we have already indicated above that the
impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive
action of the Union within the meaning of Article 73 inasmuch as the executive
instructions, embodied in the impugned Resolution, were not the decision of the
Union Cabinet nor were these executive instructions assented to by the
President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best,
be regarded as departmental instructions, which cannot be termed as ‘law’
within the meaning of Article 13(3) (a) nor can the executive instructions,
embodied in the impugned Resolution, dated 58
01.04.1963, be regarded to fall within the expression,
"procedure established by law", as envisaged by Article 21 of
the Constitution.
125. Situated thus, the actions of the CBI, in
registering a case, arresting a person as an offender, conducting search and
seizure, prosecuting an accused, etc., offend Article 21 of the Constitution
and are, therefore, liable to be struck down as unconstitutional.
WHETHER THE DSPE ACT, 1946, IS ULTRA VIRES THE CONSTITUTION ?
126. This Court had framed a query, i.e., “If a
Pre-constitutional law was made on a subject, which is, now, covered by State
List, whether the law will be valid after the Constitution has come into force
bearing in mind Article 372?”
127. It is submitted, on behalf of the appellant, that
the DSPE Act, 1946, is ultra vires the Constitution of India. There are
three reasons for this submission, the first reason being that an existing
law, or a law, which had been in force, immediately preceding the
commencement of the Constitution of India, would be inoperative and invalid if
it, otherwise, violates any of the fundamental rights, particularly, life
and liberty of a person.
128. Support, for the above submission, is sought to be
derived by Dr. L. S. Choudhury, learned counsel for the appellant, by drawing
attention of this Court to the expression, “subject to the other provisions
of this Constitution’, which appears in Article 372. The second
reason, according to Dr. L. S. Choudhury, is that the Parliament does not have
59
legislative competence to enact law on ‘police’ inasmuch
as ‘police’ is a State subject, covered by Entry No.2 of List II (State
list), and it is, therefore, the State Legislature alone, which is competent to
enact law on ‘police’. Yet another ground, assailing the validity of the
DSPE Act, 1946, is that it extends, in terms of Section 1 of the DSPE Act,
1946, to the whole of India; whereas, no law, made on ‘police’, can
extend to the whole of India.
129. To buttress his argument, with respect to the
phrase, “subject to other provisions of this Constitution”, reliance has
been placed, on behalf of the appellant, on a Constitution Bench decision, in Union
of India v. The City Municipal Council, Bellary (AIR 1978 SC 1803), wherein
the Constitution Bench of the Apex Court, while dealing with the expression, “subject
to the other provisions of this Constitution”, has held as follows:
“But the continuance in force of such an
existing law is `subject to the other provisions of this Constitution’. In
other words if the said law contravenes or is repugnant to any other provisions
of the Constitution then it has to give way to such provision of the
Constitution and its continuance in force after the commencement of the
Constitution is affected to the extent it contravenes or is repugnant to the
said provision. The Act of 1941 creating the liability of the
Railways to taxation by local authorities was passed by the then Central
Legislature which was a Federal Legislature of India. The present Central
Legislature namely, the Parliament has not enacted any law after coming into
force of the Constitution making any provision affecting the exemption of the
property of the Union from all taxes imposed by a State or by any 60
authority within a State. The 1941
Act is repugnant to clause (1) of Article 285. It is neither a law made by
Parliament nor a law made by the Central Legislature after the advent of the
Constitution. In either view of the matter it is not a law covered by the
phrase `save in so far as Parliament may by law otherwise provide’ occurring in
clause (1) of Article 285. There is an additional reason for rejecting the
argument of Mr. Ramamurthi in this regard. If the contention as made were to
hold good it will make clause (2) of Article 285 almost nugatory. We,
therefore, hold that the property in question is exempt from all taxes claimed
by the Bellary Municipal Council under clause (1) of Article 285 unless the
claim can be supported and sustained within the four corners of clause (2).”
(Emphasis
is supplied)
130. The learned ASG has submitted that the DSPE Act,
1946, has been validly enacted and adopted by the Government of India. The
Adaptation of Laws Orders Part II has been placed on record, in this regard, by
the Learned ASG. The Learned ASG has also submitted, in this regard, that the
Constitutional validity of the DSPE Act, 1946, has already been upheld by the
Supreme Court, in Management of Advance Insurance Co. Ltd. Vs. Gurudasmal,
reported in (1970) 1 SCC 633.
131. The Learned ASG has further submitted that the
pre-constitutional laws are not to be regard as unconstitutional and the burden
is not upon the State to establish its validity; rather, the burden is upon the
person, who challenges the constitutional validity of a pre-constitutional law
to show that the pre-constitutional law is invalid. To support his contention,
the learned ASG has placed reliance on the 61
decision of the Supreme Court, in Deena v. Union
of India, reported in (1983) 4 SCC 645, wherein
the Court has observed, at para 11, as under:
“ …Pre-Constitution laws are not to be regarded as
unconstitutional. We do not start with the presumption that, being a
pre-constitution law, the burden is upon the State to establish its validity.
All existing laws are continued till this court declares them to be in conflict
with a fundamental right and, therefore, void. The burden must be placed on
those who contend that a particular law has become void after the coming into
force the Constitution by reason of Article 13(1), read with any of the
guaranteed freedoms…
….a quotation extracted by Krishna Iyer, J. in B.
Banerjee v. Anita Pan – It may a repetition to say that according to the
learned Chief Justice, “there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who attacks it to
show that there has been a clear transgression of the constitutional
principles” and that, “it must be presumed that the Legislature understands and
correctly appreciates the need of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based on
adequate grounds.”
132. In Advance Insurance Co. Ltd (supra), the
question, before the Supreme Court, was whether Delhi Special Police
Establishment is constitutionally valid and whether Delhi Special Police
Establishment has jurisdiction to investigate cases in other States.
133. The Supreme Court had the occasion to deal with the
history of the DSPE Act, 1946, and it observed as follows:
“On July 12, 1943 the Governor General enacted an
ordinance (XXII of 1943) in exercise of his powers conferred by Section 72 of
the Government of India Act which was continued in the Ninth Schedule to the
Government of India Act, 1935. An emergency had been declared owing to World
War II and the powers were exercisable by the Governor General. The ordinance
was called the Special Police Establishment (War Department) Ordinance, 1943.
It extended to the whole of British India and came into force at once. By
Section 2(4) the Special Police Establishment (War Department) was
constituted to exercise throughout British India the power and 62 as follows : 63 of the Constitution on
January 26, 1950. It made two changes. The first was throughout the Act for the
words "Chief Commissioner's Province of Delhi" the words "State
of Delhi" were substituted and for the word "Provinces" the
words "Part A and C States" were substituted. This was merely to give
effect to the establishment of "States" in place of provinces under
the scheme of our Constitution. 64 the words 'for the State of Delhi',
and all references to offences by the words 'committed in connection with matters
concerning Departments of the Central Government' were deleted. 65
same force functioned, in the Chief Commissioner's
Province of Delhi, then, in Part C State of Delhi and, now, it functions in the
Union territory of Delhi. The relevant observations, made in this regard, in Advance
Insurance Co. Ltd (supra), read as under:
29.
Now the scheme of the Constitution is that the Union territories are centrally
administered and if the words 'belonging to' mean belonging to a part of India,
the expression is equal to a police force constituted to function in an area. In
this way the Delhi Police Establishment means a police force constituted and
functioning in the Union territory of Delhi. Previously the same force
functioned in the Chief Commissioner's Province of Delhi, then in Part C State
of Delhi and now it functions in the Union territory of Delhi.
(Emphasis is supplied)
136. It will, thus, be seen that there is a clear
finding, in Advance Insurance Co. Ltd (supra), that DSPE means a police
force, constituted and functioning in the Union Territory and, hence, it
would not be appropriate, now, for us to enter into the question of vires of
the DSPE Act, 1946, particularly, when we have already held that CBI is
not an organ or part of the DSPE, under the DSPE Act, 1946, and we are,
therefore, not required to determine the constitutional validity of the DSPE
Act, 1946.
137. In other words, irrespective of the fact as to whether
the DSPE Act, 1946, is valid or not, the clear conclusion of this Court is that
the CBI is not an organ or part of the DSPE and that the CBI has
not been constituted under the DSPE Act, 1946. In the face of these 66
conclusions, it would be merely an academic exercise
if we try to determine whether the DSPE Act, 1946, is or is not a valid piece
of legislation.
138. Consequent to the discussion, held above, it is
crystal clear that the fundamental question, raised in the appeal, is: Whether
the CBI is an organ of the DSPE under the DSPE Act, 1946 ? Merely
because arguments and counter-arguments have been advanced before us, on the
validity of the DSPE Act, 1946, the arguments and the counter-arguments do not
warrant a decision on this issue inasmuch as no decision, on this issue, is
warranted when we have already held that the CBI is not a part or organ
of the DSPE, under the DSPE Act, 1946.
139. We, however, consider it necessary to look into those
decisions, which have been relied upon by the learned ASG, to contend that CBI
is an organ or part of the DSPE, under the DSPE Act, 1946.
140. With regard to the above, the learned ASG has relied
upon the decision, in Kazi Lhendup Dorji vs. Central Bureau of investigation
& Ors. 1994 Supp (2) SCC 116. The relevant observations read as under:
“2. The Act was enacted to make provision for the
constitution of a special police force in Delhi for the investigation of
certain offences in the Union Territories, for the superintendence and
administration of the said force and for the extension to other areas of the
powers and 67
jurisdiction of members of the said
force in regard to the investigation of the said offences. DSPE constituted
under the said Act is now known as the Central Bureau of Investigation (CBI)….”
(Emphasis is supplied)
141. The learned ASG has also referred to a Constitution
Bench decision, in State of West Bengal &Ors. Vs. Committee for
Protection of Democratic Rights, West Bengal & Ors. reported in (2010)
3 SCC 571, wherein the observations of the Constitution Bench, which the
learned ASG has relied upon, read thus:
“The issue which has been referred for the
opinion of the Constitution Bench is whether the High Court, in
exercise of its jurisdiction under Article 226 of the Constitution of India,
can direct the Central Bureau of Investigation (for short “CBI”), established
under the Delhi Special Police Establishment Act,1946 (for short “The Delhi
Special Police Act”) 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”
(Emphasis is supplied)
142. The learned ASG, relying upon the above
observations, has submitted that the Supreme Court has held that the CBI is
constituted and functioning under Delhi Special Police Establishment Act, 1946.
143. The learned ASG has also referred to the case of M.
C. Mehta (Taj Corridor Scam) vs. Union of India and ors, reported in (2007)
1 SCC 110, wherein S.B. Sinha, J, concurring with the directions, which
were decided to be issued to the CBI, as regards its investigation,
observed as under: 68
“S.B. Sinha, J.
(concurring) – This Court entrusted investigation to the Central Bureau of
Investigation (CBI) which was constituted under the Delhi Special Police
Establishment Act, 1946 (for short, “the Act). It was enacted to make provision
for the constitution of a special police force in Delhi for investigation of
certain offences in the Union Territories, for the superintendence and
administration of the said force and for extension to the other areas of the
powers and jurisdiction of members of the said force in regard to the
investigation of the said offences.”
144. Referring to the decisions, in Kazi Lhendup Dorji
(supra), Committee for Protection of Democratic Rights, West Bengal
& Ors. (supra), and M. C. Mehta (Taj Corridor scam) (supra), the
learned ASG has submitted that in terms of the decisions, in the said three
cases, the CBI has been established, under the DSPE Act, 1946, and,
hence, the ‘ratio’, which has been laid down in the said three cases,
may not be disturbed.
145. Reacting to the above submissions, which have been
made by the learned ASG, it has been contended, on behalf of the appellant,
that the decision, in Kazi Lhendup Dorji (supra), Committee for
Protection of Democratic Rights, West Bengal & Ors (supra), and M.
C. Mehta (Taj Corridor Scam) (supra), which have been referred to, and
relied upon, by the learned ASG, are not applicable to the issues, which have
been raised in the writ petition and the present appeal inasmuch as the
principal issue, in the writ petition and the writ appeal, is as to whether the
CBI is a constitutionally valid police force 69
and, in none of the decisions, which have been
referred to, and relied upon, by the learned ASG, the issue, in question, fell
for determination.
146. It has also been submitted, on behalf of the
appellant, that the Hon’ble Supreme Court’s observations, appearing in Kazi
Lhendup Dorji (supra), Committee for Protection of Democratic Rights,
West Bengal & Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra),
to the effect that DSPE is, now, called the CBI, or that the CBI has
been constituted under the DSPE Act, 1946, are as a measure of narration of
facts and not the ratio of the case inasmuch as it has always been the
claim of the Union of India that CBI has been constituted under the DSPE
Act, 1946, and the correctness of this contention was never questioned or fell
for determination, or discussed and/or answered, by the Supreme Court.
147. When the issue, in question, was never raised in any
of the cases, which have been relied upon by the learned ASG, the observations,
which have appeared, in Kazi Lhendup Dorji (supra), Committee for
Protection of Democratic Rights, West Bengal & Ors (supra), and M.
C. Mehta (Taj Corridor scam) (supra), to the effect that CBI is
constituted under the DSPE Act, 1946, cannot be regarded as ratio decidendi or
even obiter dictum.
148. We have already recorded above that, in the present
appeal, we raised a pointed query, namely, whether the constitutional validity
of the CBI was ever challenged, discussed and/or answered in any of the
reported decisions of the Supreme Court ? To the query, so raised, 70
learned counsel for the parties concerned and the
learned amicus curiae have agreed that this issue was not raised,
discussed and answered in any of the reported decisions of the Supreme Court.
149. Bearing in mind what we have pointed out above, let
us, now, turn to the issues, which fell for determination, in Kazi Lhendup
Dorji (supra), Committee for Protection of Democratic Rights, West
Bengal & Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra).
150. In the case of Kazi Lhendup Dorji (supra),
the issue was entirely different inasmuch as the Supreme Court, in Kazi
Lhendup Dorji (supra), observed as under:
“This Writ Petition filed under Article 32 of
the Constitution raises the question whether it is permissible to withdraw the
consent given by the State Government under Section 6 of the Delhi Special
Police Establishment Act, 1946 (hereinafter referred to as the `Act’) whereby a
member of the Delhi Special Police Establishment (DSPE) was enabled to exercise
powers and jurisdiction for the investigation of the specified offences in any
area in the State and, if so, what is the effect of such withdrawal of consent
on matters pending investigation on the basis of such consent on the date of
withdrawal”.
(Emphasis is supplied)
151. Thus, the real issue, in Kazi Lhendup Dorji (supra),
was whether the ‘consent’, once given by a State, can be recalled by the
State as regards extension of investigation by the CBI and, if so, what
will be the effect on the pending investigations? 71
152. It is
transparent that the issue, as regards the constitutional validity of the CBI,
had not fallen for determination in Kazi Lhendup Dorji (supra). Hence,
the decision, in Kazi Lhendup Dorji (supra), cannot be held to be
applicable to the present case.
153. Similarly, in the case of Committee for
Protection of Democratic Rights, West Bengal & Ors (supra), the issue,
which really fell for determination, was, in the words of the Constitution
Bench, as follows:
“The issue which has been referred for the opinion of
the Constitution Bench is whether the High Court, in exercise of its
jurisdiction under Article 226 of the Constitution of India, can direct the
Central Bureau of Investigation (for short “CBI”), established under the Delhi
Special Police Establishment Act,1946 (for short “The Delhi Special Police
Act”) 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.”
(Emphasis is supplied)
154. Thus, the only issue, which arose for determination,
in Committee for Protection of Democratic Rights, West Bengal & Ors (supra),
was whether the High Court, under Article 226 of the Constitution of India, can
direct the CBI to investigate even when the State concerned does not
given its consent thereto ? The issue, so raised, in Committee for Protection
of Democratic Rights, West Bengal & Ors (supra), is not the same as the
one, which we have at 72
hand, namely, whether the CBI is a
constitutionally valid ‘police force’ or not?
155. Turning to the case of M. C. Mehta (Taj Corridor
Scam) (supra), we notice that the relevant observations, which the learned
ASG relies upon, read as under:
“2. A purported vertical difference of opinion
in the administrative hierarchy in CBI between the team of investigating
officers and the law officers on one hand and the Director of Prosecution on
the other hand on the question as to whether there exists adequate evidence for
judicial scrutiny in the case of criminal misconduct concerning the Taj
Heritage Corridor Project involving 12 accused including a former Chief Minister
has resulted in the legal stalemate which warrants interpretation of Section
173(2) CrPC.
*** *** ***
*** *** ***
Background facts
19. The key issue which arises for determination in
this case is: whether on the facts and the circumstance of this case, the
Director, CBI, who has not given his own independent opinion, was right in
referring the matter for opinion to the Attorney General for India,
particularly when the entire investigation and law officers’ team was ad idem
in its opinion on filing of the charge-sheet and only on the dissenting opinion
of the Director of Prosecution, whose opinion is also based on the
interpretation of the legal evidence, which stage has not even arrived. The opinion of the Director, CBI is based solely on
the opinion of the Attorney General after the reference.
*** *** ***
*** *** *** 73
S.B. SINHA, J. (concurring)— This Court entrusted investigation to
the Central Bureau of Investigation (CBI) which was constituted under the Delhi
Special Police Establishment Act, 1946 (for short “the Act”). It was enacted to
make provision for the constitution of a special police force in Delhi for
investigation of certain offences in the Union Territories, for the
superintendence and administration of the said force and for extension to other
areas of the powers and jurisdiction of members of the said force in regard to
the investigation of the said offences.
38. Section
2 empowers the Central Government to constitute a special force. Indisputably,
the first respondent has been constituted in terms thereof. Sub-section (2) of
Section 2 provides that subject to any orders which the Central Government may
make in this behalf, members of the said police establishment shall have
throughout any Union Territory, in relation to the investigation of such
offences and arrest of persons concerned in such offences, all the powers,
duties, privileges and liabilities which police officers of that Union
Territory have in connection with the investigation of offences committed
therein. The said Act indisputably applies in regard to charges of corruption
made against the public servants.”
156. From a bare reading of what have been observed
above, it becomes clear that the issue, which we have at hand, namely, whether
the CBI is a constitutionally valid police force or not, was not
a question for determination in the case of M. C. Mehta (Taj Corridor Scam) (supra).
In fact, it was never contended, in M. C. Mehta (Taj Corridor Scam) (supra),
that CBI is not a constitutionally valid police force.
157. When the question, which we confront, in the present
appeal, was not the question raised in any of the cases, which the learned ASG
has cited, it is clear that the ratio decidendi of none of the cases,
relied 74
upon by the respondents, can be of any assistance to
the respondents’ contention that the CBI is a constitutionally valid police
force. Factually speaking, it is the general impression that DSPE is, now,
called CBI, or CBI is established under the DSPE Act, 1946. It
has never been questioned if CBI is, legalistically speaking, another
name for the DSPE or if CBI has been validly constituted under the DSPE
Act, 1946 ? When such is the situation, what shall be the duty of this Court?
158. On the above aspect of the law, we may refer to the
case of Oriental Insurance Company Limited vs. Smt. Raj Kumari & ors.
(AIR 2008 SC 403), wherein the Supreme Court has pointed out that the
reason or principle, on which a question before a Court has been decided, is
alone binding as a precedent. A case is precedent and binding for
what it explicitly decides and no more and that the words of the judges, in
their judgements, are not to be read as if they are words in an Act. The
relevant observations, appearing in Smt. Raj Kumari (supra), in this
regard, read as under:
“11. Reliance on the decision without looking into
the factual background of the case before it is clearly impermissible. A
decision is a precedent on its own facts. Each case presents its own features.
It is not everything said by a Judge while giving a judgment that constitutes a
precedent. The only thing in a Judges decision binding a party is the principle
upon which the case is decided and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi. According to the
well-settled theory of precedents, every decision contains three basic
postulates (i) findings of material factors, direct and inferential. An
inferential finding of facts is 75
the inference which the judge
draws from the direct, or perceptible facts; (ii) statements of the principles
of law applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision is an authority
for what it actually decides. What is the essence in a decision is its ratio
and not every observation found therein nor what logically flows from the
various observations made in the judgment. The enunciation of the reason or
principle on which a question before a Court has been decided is alone binding
as a precedent. (See: State of
Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India
and Ors. Vs. Bhanwanti Devi and Ors. (1996 (6) SCC 44.: 1996 AIR SCW 4020). A
case is a precedent and binding for what it explicitly decides and no more. The
words used by Judges in their judgments are not to be read as if they are words
in Act of Parliament. In Quinn v. Leathern (1901) AC 495 (H.L.) Earl of
Halsbury LC observed that every judgment must be read as applicable to the
particular facts proved or assumed to be proved, since the generality of the
expressions which are found there are not intended to be exposition of the
whole law but governed and qualified by the particular facts of the case in
which such expressions are found and a case is only an authority for what it
actually decides.
(Emphasis
is supplied)
159.
Striking a word of caution for Courts, the Supreme Court held, in Smt. Raj
Kumari & Ors. (supra), that Courts should not place reliance on
decisions without discussing as to how the factual situation fits in with the
fact situation of the decision on which reliance is placed. Observations of
Courts are neither to be read as Euclid’s Theorems nor as provisions of the
statute and that too, taken out of their context. The 76
observations must be read in the context
in which they appear to have been made. The relevant observations, made in Oriental
Insurance Company Limited (supra), are reproduced hereunder:
“12. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with the fact
situation of the decision on which reliance is placed. Observations of Courts
are neither to be read as Euclid’s Theorems nor as provisions of the statute
and that too taken out of their context. These observations must be read in the
context in which they appear to have been stated. Judgments of Courts are
not to be construed as statutes. (Emphasis
is supplied)
160. Again, in Dadu Dayalu Mahasabha, Jaipur (Trust)
vs. Mahant Ram Niwas & Anr. (AIR 2008 SC 2187), the Supreme Court,
while dealing with the doctrine of precedent, has held as under:
“19. The judgment of a Court, it is trite,
should not be interpreted as a statute. The meaning of the words used in a
judgment must be found out on the backdrop of the fact of each case. The Court
while passing a judgment cannot take away the right of the successful party
indirectly which it cannot do directly. An observation made by a superior court
is not binding. What would be binding is the ratio of the decision. Such a
decision must be arrived at upon entering into the merit of the issues involved
in the case.”
(Emphasis is supplied)
161. The above observations, made in Dadu Dayalu
Mahasabha, Jaipur (Trust) (supra), clearly show that a judgement of a Court
shall not be interpreted as a statute and that the meaning of the words, used
77
in the judgement, must be found on the backdrop of the
facts of each case and that an observation, made by a superior Court, is not
binding inasmuch as what would be binding is the ratio of the decision
and such a decision has to be reached upon entering into merit of the issues
involved in the case.
162. We may, at this stage, deal with the concept of ‘obiter
dictum.’
163. In Salmond on Jurisprudence (Twelfth Edition),
rules, determining ratio decidendi, have been indicated. It can, broadly
speaking, be said that what is not a ratio decidendi is an obiter
dictum and it is the ratio decidendi, which is binding on the
Courts.
164. In Chapter X of Keeton's Elementary Principles of
Jurisprudence (Second Edition), "obiter dictum" is described
as "statements of law made by a judge in the course of a decision,
arising out of the circumstances of the case, but not necessary for the decision.”…
165. In Mohandas Issardas v. A. N. Sattanathan (AIR
1955 Bom 113), the point, under consideration, was whether an obiter
dictum of the Supreme Court was as much binding upon the High Courts as an
express decision given by the Supreme Court. However, the allied question, as
to what is an obiter dictum, which has a binding effect upon a Court,
was also commented upon. Obiter dictum was regarded as an expression of
opinion on a point, which was not necessary to the decision of the case. The
observations are as follows: 78
“….6. But the question still remains
as to what is an 'obiter dictum' given expression to by the Supreme Court which
is binding upon the Courts in India. Now, an 'obiter dictum' is an expression
of opinion on a point which is not necessary for the decision of a case. This
very definition draws a clear distinction between a point which is necessary
for the determination of a case and a point which is not necessary for the
determination of the case. But in both cases points must arise for the
determination of the tribunal. Two questions may arise before a Court for its
determination. The Court may determine both although only one of them may be
necessary for the ultimate decision of the case. The question which was
necessary for the determination of the case would be the 'ratio decidendi'; the
opinion of the tribunal on the question which was not necessary to decide the
case would be only an 'obiter dictum'.
166. Reference was, then, made, in Mohandas Issardas (supra),
to the definition of 'obiter dictum' as found in Stroud's Judicial
Dictionary, which is based upon the case of Flower v. Ebbw Vale Steel Iron
and Coal Co., 1934-2 KB 132, and the following passage, at page 154, from
the judgment of Talbot, J, in Dew v. United British Steamship Co. Ltd., 1928-139
LT 628, was quoted, which read as follows:
"..................It is of course perfectly
familiar doctrine that obiter dictum though they may have great weight as such
are not conclusive authority. Obiter dictum in this context means what the
words literally signify namely, statements by the way. If a judge thinks it
desirable to give his opinion on some point which is not necessary for the
decision of the case that of course has not the binding weight of the decision
of the case and the reasons for the decision." 79
167.
Thereafter, the statement of the law, in Halsbury, Volume XIX, at page 251, was
quoted, in Mohandas Issardas (supra), which read as follows:
“It may be laid down as general rule that that part
alone of a decision of a Court of law is binding upon courts of co-ordinate
jurisdiction and inferior Courts which consists of the enunciation of the
reason or principle upon which the question before the Court has really been
determined. This underlying principle which forms the only authoritative
element of a precedent is often termed the ‘ratio decidendi’. Statements which
are not necessary to the decision, which go beyond the occasion and lay down a
rule that is unnecessary for the purpose at hand (usually termed dicta) have no
binding authority on another Court, though they may have some merely persuasive
efficacy.”
168. Having considered the earlier Full Bench decision of
Bombay High Court, in Shivaji Ganpati Vs. Murlidhar (AIR 1954 Bom 386),
which was based on the decision of the Privy Council, in Lal Bahadur vs.
Ambika Prasad (AIR 1923 PC 264 (J), in respect of `obiter dictum’, the
Bombay High Court, in the case of Mohandas Issardas (supra), observed
as under:
“The reason why we refused to be bound by this opinion
was that we failed to see any observation which the Privy Council had made on
the rights of after-born sons with regard to alienations of joint family
property. Although this observation was made by the Privy Council, the point
was not determined by the Privy Council, and it is clear from that judgment
that no arguments were advanced and the Privy Council contented itself with
deciding the question on the nature of the alienation, namely, that legal
necessity justified the alienation. 80
169. The
Bombay High Court, in Mohandas Issardas (supra), also considered the
decision in Venkanna Narsinha v. Laxmi Sannappa (AIR 1951 Bom 57)
and, while holding that `obiter dictum’ is not binding, has observed
thus:
“Therefore, implicit in the Judgment of Mr. Justice
Bhagwati is the position that it is only when a point arises for
determination and the point is determined that an opinion expressed on that
point becomes an 'obiter dictum' which is binding upon the Courts in India.”
(Emphasis is supplied)
170. The Bombay High Court, in Mohandas Issardas (supra),
having considered various judgments of the Privy Council, Supreme Court and
other High Courts, came to the conclusion as follows;--
"Now, an 'obiter dictum' is an expression of
opinion on a point, which is not necessary for the decision of a case. This
very definition draws a clear distinction between a point, which is necessary
for the determination of a case and a point which is not necessary for the
determination of the case. But in both cases points must arise for the
determination of the tribunal. Two questions may arise before a Court for
its determination. The Court may determine both although only one of them may
be necessary for the ultimate decision of the case. The question which was
necessary for the determination of the case would be the 'ratio decidendi'; the
opinion of the tribunal on the question which was not necessary to decide the
case would be only an 'obiter dictum'."
(Emphasis
is supplied)
171. In the light of the observations made above, in Mohandas
Issardas (supra), it becomes clear that, according to the Bombay High 81
Court, in Mohandas Issardas (supra), two
questions may arise before a Court for its determination. The Court may
determine both, although only one of them may be necessary for the ultimate
decision of the case. The question, which was necessary for the determination
of the case would be the 'ratio decidendi', but the opinion of the
tribunal on the question, which was not necessary to decide the case, would be
only an ‘obiter dictum’.
172. The Full Bench of the Allahabad High Court, in the
case of Indian Ceramic House Agra vs. Sales Tax Officer (AIR 1971 All 251), has
also considered and determined `obiter dictum’ as follows:
“The well-recognized principle of interpretation
accepted by the Courts in England, therefore, is:
"Any judgment of any Court is authoritative only
as to that part of it, called the ratio decidendi, which is considered to have
been necessary to the decision of the actual issue between the litigants. It is
for the Court, of whatever degree, which is called upon to consider the
precedent, to determine what the true 'ratio decidendi' was..... Judicial
opinions upon such matters, whether they be merely casual, or wholly gratuitous
or (as is far more usual) of what may be called collateral relevance, are known
as 'obiter dictum' or simply 'dicta', and it is extremely difficult to
establish any standard of their relative weight." (Alien in his Law in the
Making).
173. A Constitution Bench of eleven judges of the Supreme
Court, in H. H. Maharajadhiraja Madhav Rao vs Union of India (1971 AIR 530),
had the occasion to consider the scope of ‘obiter dictum’ and observed
as under: 82
“Every observation of this Court is no doubt, entitled
to weight but an obiter, cannot take the place of the ratio. Judges are not
oracles. In the very nature of things, it is not possible to give the same
attention to incidental matters as is given to the actual issues arising for
decision. Further much depends on the way the case is presented to them.”
In
the State of Orissa v. Sudhansu Sekhar Misra and Ors. 1968 AIR 647: 1968 SCR (2) 154 dealing with the
question as to the importance to be attached to the observations found in the
judgments of this Court. This is what this Court observed
“A
decision is only an authority for what it actually decides. What is of the
essence in a decision is its ratio and not every observation found therein nor
what logically follows from the various observations made in it.”
(Emphasis
is supplied)
174. The Supreme Court, in Arun Kumar Aggarwal vs
State Of M.P. & Ors. (AIR 2011 SC 3056), has considered the concept of
‘obiter dictum’ in the following words:
“21.
At this stage, it is pertinent to consider the nature and scope of a mere
observation or obiter dictum in the Order of the Court. The expression obiter
dictum or dicta has been discussed in American Jurisprudence 2d, Vol. 20, at
pg. 437 as thus:
‘Dicta’
Ordinarily,
a court will decide only the questions necessary for determining the particular
case presented. But once a court acquires jurisdiction, all material questions
are open for its decision; it may properly decide all questions so involved,
even though it is not absolutely essential to the result that all should be
decided. It may, for instance, determine the question of the constitutionality
of a statute, although it is not absolutely necessary to the disposition of the
case, if the issue of constitutionality is involved in the suit and its
settlement is of public importance. An expression in an opinion which is not
necessary to support the decision reached by the court is dictum or obiter
dictum. 83
‘Dictum’ or ‘obiter dictum’ is distinguished from the
‘holding of the court in that the so- called law of the case’; does not extend
to mere dicta, and mere dicta are not binding under the doctrine of stare
decisis,
As
applied to a particular opinion, the question of whether or not a certain part
thereof is or is not a mere dictum is sometimes a matter of argument. And while
the terms ‘dictum’ and ‘obiter dictum’ are generally used synonymously with
regard to expressions in an opinion which are not necessary to support the decision,
in connection with the doctrine of stare decisis, a distinction has been drawn
between mere obiter and ‘judicial dicta’ the latter being an expression of
opinion on a point deliberately passed upon by the court. (Emphasis supplied).
Further
at pg. 525 and 526, the effect of dictum has been discussed:
“190.
Decision on legal point; effect of dictum ... In applying the doctrine of stare
decisis, a distinction is made between a holding and a dictum. Generally stare
decisis does not attach to such parts of an opinion of a court which are mere
dicta. The reason for distinguishing a dictum from a holding has been said to
be that a question actually before the court and decided by it is investigated
with care and considered in its full extent, whereas other principles, although
considered in their relation to the case decided, are seldom completely
investigated as to their possible bearing on other cases. Nevertheless courts
have sometimes given dicta the same effect as holdings, particularly where ‘judicial
dicta’ as distinguished from ‘obiter dictum’ are involved”
22.
According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005), the
expression ‘observation’ means a view, reflection; remark; statement; observed
truth or facts; remarks in speech or writing in reference to something
observed.
23.
The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter dictum' as an
opinion not necessary to a judgment; an observation as to the law made by a
judge in the course of a case, but not necessary to its decision, and therefore
of no binding effect; often called as obiter dictum, ; a remark by the way.
24.
The Blacks Law Dictionary, (9th ed, 2009) defines term `obiter dictum' as a
judicial comment made while delivering a judicial opinion, but one that is
unnecessary to the decision in the case and therefore not precedential
(although it may be considered persuasive). -- Often shortened to dictum or,
less commonly, obiter. Strictly speaking an `obiter dictum' is a remark made or
opinion expressed by a judge, in his decision upon a cause, `by the way' --
that is, incidentally or collaterally, and not directly upon the question
before the court; or it is 84
any statement of law enunciated by the judge or court
merely by way of illustration, argument, analogy, or suggestion.... In the
common speech of lawyers, all such extrajudicial expressions of legal opinion
are referred to as `dicta,' or`obiter dictum,' these two terms being used
interchangeably.
25 The
Word and Phrases, Permanent Edition, Vol. 29 defines the expression `obiter
dictum' or `dicta' thus:
‘Dicta
are opinions of a judge which do not embody the resolution or determination of
the court, and made without argument or full consideration of the point, are
not the professed deliberate determinations of the judge himself; obiter dictum
are opinions uttered by the way, not upon the point or question pending, as if
turning aside for the time from the main topic of the case to collateral
subjects; It is mere observation by a judge on a legal question suggested by
the case before him, but not arising in such a manner as to require decision by
him; ‘Obiter dictum’ is made as argument or illustration, as pertinent to other
cases as to the one on hand, and which may enlighten or convince, but which in
no sense are a part of the judgment in the particular issue, not binding as
a precedent, but entitled to receive the respect due to the opinion of the
judge who utters them; Discussion in an opinion of principles of law which
are not pertinent, relevant, or essential to determination of issues before
court is ‘obiter dictum’.
26.
The concept of ‘Dicta’ has also been considered in Corpus Juris Secundum, Vol.
21, at pg. 309-12 as thus:
Dicta, In General
A
Dictum is an opinion expressed by a court, but which, not being necessarily
involved in the case, lacks the force of an adjudication; an opinion expressed
by a judge on a point not necessarily arising in the case; a statement or
holding in an opinion not responsive to any issue and not necessary to the
decision of the case; an opinion expressed on a point in which the judicial
mind is not directed to the precise question necessary to be determined to fix
the rights of the parties; or an opinion of a judge which does not embody the
resolution or determination of the court, and made without argument, or full
consideration of the point, not the professed deliberate determination of the
judge himself. The term ‘dictum’ is generally used as an abbreviation of
‘obiter dictum’ which means a remark or opinion uttered by the way. Such an
expression or opinion, as a general rule, is not binding as authority or
precedent within the stare decisis rule, even on courts inferior to the court
from which such expression emanated, no matter how often it 85
may be repeated. This general rule is particularly
applicable where there are prior decisions to the contrary of the statement
regarded as dictum; where the statement is declared, on rehearing, to be
dictum; where the dictum is on a question which the court expressly states that
it does not decide; or where it is contrary to statute and would produce an
inequitable result. It has also been held that a dictum is not the ‘law of the
case’ nor ‘resjudicata’
27.
The concept of ‘Dicta’ has been discussed in Halsbury's Laws of England, Fourth
Edition (Reissue), Vol. 26, para. 574 as thus:
“574.
Dicta. Statements which are not necessary to the decision, which go beyond the
occasion and lay down a rule that it is unnecessary for the purpose at hand are
generally termed ‘dicta’. They have no binding authority on another court,
although they may have some persuasive efficacy. Mere passing remarks of a
judge are known as ‘obiter dictum’, whilst considered enunciations of the
judge's opinion on a point not arising for decision, and so not part of the
ratio decidendi, have been termed ‘judicial dicta’. A third type of dictum may
consist in a statement by a judge as to what has been done in other cases which
have not been reported.
...
Practice notes, being directions given without argument, do not have binding
judicial effect. Interlocutory observations by members of a court during
argument, while of persuasive weight, are not judicial pronouncements and do
not decide anything”
28. In
Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 and Divisional
Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, this Court has
observed that “Mere casual expressions carry no weight at all. Not every
passing expression of a judge, however eminent, can be treated as an ex
cathedra statement, having the weight of authority”
29. In
State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court has
discussed the concept of the obiter dictum thus: “A decision, it is well
settled, is an authority for what it decides and not what can logically be deduced
there from. The distinction between a dicta and obiter is well known. Obiter
dictum is more or less presumably unnecessary to the decision. It may be an
expression of a viewpoint or sentiments which has no binding effect. See ADM,
Jabalpur v. Shivakant Shukla. It is also well settled that the statements
which are not part of the ratio decidendi constitute obiter dictum and are not
authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty)”
30. In
Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, this Court has
held: 86
“Thus, observations of the Court did not relate to any
of the legal questions arising in the case and, accordingly, cannot be
considered as the part of ratio decidendi. Hence, in light of the
aforementioned judicial pronouncements, which have well settled the proposition
that only the ratio decidendi can act as the binding or authoritative
precedent, it is clear that the reliance placed on mere general observations or
casual expressions of the Court, is not of much avail to the respondents.”
31. In
view of above, it is well settled that obiter dictum is a mere observation or
remark made by the court by way of aside while deciding the actual issue before
it. The mere casual statement or observation which is not relevant, pertinent
or essential to decide the issue at hand does not form the part of the judgment
of the Court and have no authoritative value. The expression of the personal
view or opinion of the Judge is just a casual remark made whilst deviating from
answering the actual issues pending before the Court. These casual remarks are
considered or treated as beyond the ambit of the authoritative or operative
part of the judgment.”
175. The elaborate discussions on the concepts of ratio
decidendi and obiter dicta, made in the cases pointed above, can be
summarized as follows:
(a) A decision is an authority for what it actually
decides. What is the essence, in a decision, is its ratio and not every
observation found therein nor what logically flows from the various
observations made in the judgment. The enunciation of the reason or the
principles on which a question before a Court has been decided, is alone
binding as a precedent.
(b) In a given case, two questions may arise before a
Court for its determination. The Court may determine both, although only one of
them may be necessary for the ultimate decision of the case. The question,
which was necessary for the determination of the case would be the 'ratio
decidendi'. However, the opinion of 87
the tribunal on the question, which was
not necessary to decide the case would be only an 'obiter dictum'.
(c) ‘Obiter dictum’ is made as argument or
illustration, as pertinent to other cases as to the one on hand, and which may
enlighten or convince, but which in no sense are a part of the judgment in the
particular issue, not binding as a precedent, but entitled to receive the
respect due to the opinion of the judge who utters them.
176. Now, coming to the decisions, relied upon by the
learned ASG, it appears that the observations, upon which the learned ASG is
heavily relying, are not even `obiter dictum’ inasmuch as the issue,
with regard to the constitutional validity of CBI, was neither raised
nor argued nor even the same has been discussed and decided by the Supreme
Court. The issue, with regard to the constitutional validity of the CBI,
was not even ancillary to the issues involved in those cases.
177. Situated thus, we are clearly of the view that the
observations, made in the cases of Kazi Lhendup Dorji (supra), Committee
for Protection of Democratic Rights, West Bengal & Ors (supra), and M.
C. Mehta (Taj Corridor Scam) (supra), which the learned ASG has relied
upon, neither dealt with the issues, which we confront, nor decided the same.
The decisions, therefore, which the learned ASG has referred to, and relied
upon, are not applicable to the facts of the present case. 88
178. Because
of what have been discussed and pointed out above, we are satisfied that the
appellant has been able to make out a case calling for interference with the
impugned Resolution, dated 01.04.1963, and also with the impugned prosecution
of the appellant on the basis of the charge-sheet, which has been laid
by the CBI, in the Court of the learned Special Judge, Assam, Kamrup,
and, as a sequel to the conclusions, which we have so reached, the impugned
judgment and order, dated 30.11.2007, passed, in WP(C) No.6877/2005, need to be
set aside.
179. In the result and for the reasons discussed above,
this appeal partly succeeds. We hereby set aside the impugned judgment and
order, dated 30.11.2007, passed, in WP(C) No. 6877/2005, and while we decline
to hold and declare that the DSPE Act, 1946, is not a valid piece of
legislation, we do hold that the CBI is neither an organ nor a part of
the DSPE and the CBI cannot be treated as a ‘police force’ constituted
under the DSPE Act, 1946.
180. We hereby also set aside and quash the impugned
Resolution, dated 01.04.1963, whereby CBI has been constituted. We
further set aside and quash the impugned charge-sheet, submitted by the CBI,
against the appellant and, consequently, the trial, which rests on the
impugned charge-sheet, shall stand set aside and quashed.
181. We would, however, make it clear that quashing of
the proceedings, pending in the CBI Court, would not be a bar to any further
investigation by police having jurisdiction over the subject-matter.
182. With the above observations and directions, this
appeal shall stand disposed of.
183. No order as to costs.
To be Continued.....
To be Continued.....
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