The Supreme Court on Thursday categorically said law and order is a State subject after the State of West Bengal complained that the Central Bureau of Investigation (CBI) claims “unilateral right” to investigate offences committed by Central employees within State jurisdiction.
“Law and order is a State subject. Suppose a Central employee commits dacoity, will the case be investigated by the CBI only?” Justice B.R. Gavai queried.
Justice Sandeep Mehta, also on the two-judge Bench, said when Army personnel commit offences even within their camp, officers hand over the culprits to the local police.
Senior advocate Kapil Sibal, for West Bengal said “their intent is to get in through the CBI, then use the Directorate of Enforcement [ED] and then do whatever is to be done… This has far-reaching repercussions”.
Another Bench of the Supreme Court is tackling a similar question of law related to the State of Tamil Nadu in the case of Ankit Tiwari, an ED officer against whom the Tamil Nadu Directorate of Vigilance and Anti-Corruption had launched a criminal prosecution for bribery. ED had approached the apex court claiming the case be transferred to it as Mr. Tiwari was a Central government employee.
The hearing before Justice Gavai’s Bench was based on an original suit filed by West Bengal under Article 131 of the Constitution against the Union government. The State alleged that CBI, a Central agency, was probing several cases and registering FIRs within its jurisdiction without taking prior consent from the West Bengal government. Mr. Sibal said the State had withdrawn prior consent under Section 6 of the Delhi Police Special Establishment (DSPE) Act to CBI investigations within its territory on November 16, 2018.
“It is not our case that there should be no investigation in these cases. But you cannot claim I have a unilateral right to investigate them by giving the Code of Criminal Procedure a go-by. You cannot say that the offences relating to Central government employees will be investigated only by a Central agency,” Mr. Sibal submitted.
Solicitor-General Tushar Mehta, for the Union government, said the original suit of the State was not maintainable and should be dismissed by the court.
He raised the preliminary objection that disputes in original suits filed under Article 131 directly in the apex court exclusively involve the Union and the States.
He said the Union had not registered any cases in West Bengal. Even if the Supreme Court decided this suit in favour of West Bengal, the court decree would not be enforceable as the Union was not the prosecuting agency.
“It is the CBI which has registered the cases in question. But the CBI is not a defendant in this suit, and it cannot be made one, as the CBI is not a ‘state’ under Article 131,” Mr. Mehta contended.
“The CBI is not under the control of the Union of India under the DSPE Act. The Union does not supervise the registration of offences or investigation or closure or filing of chargesheet or conviction or acquittal of cases by the CBI. The CBI is an independent legal person. It has an existence outside the Union of India,” he submitted.
He said the Union was not involved and the CBI cannot be made a defendant in the suit. Mr. Mehta said the CBI was a child of a statute like the Life Insurance Corporation or the Reserve Bank of India or the State Bank of India. “But none of these entities are a ‘state’ under Article 131. They cannot be a defendant in an original suit before the Supreme Court,” the top law officer argued.
The Solicitor-General further submitted that West Bengal had already filed special leave petitions in the Supreme Court on identical issues of federalism and lack of State consent to CBI investigations. He said an original suit on the same issues, when these petitions were still pending, should be barred. Mr. Mehta said the State had suppressed information about these pending petitions in its suit. He referred to a pending challenge by the State against a Calcutta High Court order directing the CBI to investigate illegal mining and transportation of coal through railways in West Bengal.
Mr. Sibal countered that the apex court cannot be stopped from hearing a suit under Article 131 merely because special leave petitions under Article 136 of the Constitution were pending.
The suit was filed to decide a question of jurisdiction while the petitions dealt with the merits of individual cases. The senior lawyer said the relief provided by the court under Article 136 was discretionary. However, the relief under Article 131 was mandatory by nature.
Justice Mehta however pointed out that the issues of federalism and State consent were “exactly the same” in both the petitions and the current suit.
The court listed the suit for further hearing on Wednesday.
