AOR 2019

PAPER 4- QUESTION 1

- JYOTI MAURYA

Maneka Gandhi v. Union of India has now established that every authority of the State must
be used fairly, and every use of authority can be tried on the anvil of Article 14 to see if it is
just, reasonable, and fair or arbitrary. If the Court concludes that the State Government's
reluctance to accede to an inquiry by the CBI in a specific instance is arbitrary, the court may
direct an inquiry by the CBI, in which case it would be upholding the right to equality
guaranteed on all individuals by Article 14 of the Constitution. The hon’ble court in State of
West Bengal v. Committee for Protection of Democratic Rights remarked that as the
limitation set out in Entry 80 of List I of Schedule VII of the Constitution, the Court first seek
the consent of the State Government concerned for such investigation by a specialised
agency, and in the case of the State Government unreasonably refusing to give its consent,
the High Court or the Supreme Court, under Article 226 and Article 32 respectively, may
intervene on the ground that the State Government's decision is unreasonable and arbitrary.

The question involved in State of West Bengal v. Committee for Protection of Democratic
Rights, whether a High Court in exercise of its jurisdiction under Article 226 of the
Constitution of India can direct the Central Bureau of Investigation (CBI) established under
the Delhi Special Police Establishment Act, 1946, to investigate cognizable offence which is
alleged to have taken place within the territorial jurisdiction of a State without the consent of
the State Government?

The matter took prominence because it concerned two fundamental characteristics of the

Constitution, namely the federal system and the authority of judicial review. Entry 80 of List
I of Schedule VII of the Indian Constitution 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...”.

However, Section 6 of the Delhi Special Police Establishment Act, 1946 requires consent of
the State Government concerned to permit investigation of any offence within its territory by
any member of the Delhi Special Police Establishment. It reads: “Nothing contained in
Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to
exercise powers and jurisdiction in any area in a State, not being a Union Territory or
Railway area, without the consent of the Government of that State.”. It follows that the
consent of the State Government of the State concerned is a condition precedent to be
satisfied before calling upon the special agency to investigate any offence in that State. This
condition is consistent with the federal structure of the Constitution, which ensures autonomy
for each State, in the matter of legislation and executive action.

In State of West Bengal v. Sampat Lal, the Supreme Court took the view that Section 6 of the
Delhi Special Police Establishment Act does not apply when the court gives a direction to the
CBI to investigate, and observed that the counsel for the parties rightly did not dispute this
position. It was just an undisputed assumption but not a declaration of law made after contest.
However, in the facts of that case, the court held that it was not necessary to take away the
investigation from the hands of the State police machinery, which is a statutory agency, but
suggested that the Director General of Police, West Bengal, should appoint a competent
supervisory officer from the higher ranks of the State police to supervise the investigation in
the case on hand. The Court reiterated the view taken by the Privy Council in King Emperor
v. Khwaja Nazir Ahmad that the functions of the judiciary and the police are complementary,
not overlapping.

Nonetheless, Article 142 of the Constitution enables the Supreme Court in the exercise of its
authority to pass such decree or issue such order as is required for achieving complete justice
in any case or issue standing before it. Such a power is not specifically conferred on High
Courts a s the Supreme Court decided in State of Sanchalakshmi v. Vijaykumar
Raghuvirprasad Mehta. However, in Dwarkanath's case, this Court stated that Article 226 of
the Constitution is couched in broad phraseology and, on the surface, gives complete
authority on the High Court to rectify injustice wherever it is found.

In State of West Bengal v. Committee for Protection of Democratic Rights, the Bench referred
to Entry 80 of List I as well as Entries 2 and 2A of List II of the Constitution, besides the
provisions of the Delhi Special Police Establishment Act, 1946 and the statutory limitations
mentioned in Sections 5(2) and 6 of the Delhi Special Police Establishment Act, 1946.
Finally, the Constitution Bench has since declared the law as follows:

(i) The fundamental right, enshrined in Part III of the Constitution, area inherent and
cannot be extinguished by any constitutional or statutory provision,
 (ii) The State has an obligation to enforce a citizen's human rights by conducting a
fair and impartial inquiry into any individual suspected of committing a
cognizable offence, including its own officials.
(iii) Given the constitutional scheme and the jurisdiction conferred on this Court under
Article 32 and on the High Courts under Article 226 of the Constitution, and the
power of judicial review being an integral part of the basic structure of the
Constitution, no Act of Parliament can exclude or limit the powers of the
constitutional courts in terms of the enforcement of fundamental rights.
(iv) Any order issued by the Supreme Court or a High Court in the exercise of power
under Article 32 or 226 to safeguard the Constitution and the rule of law cannot be
construed as a violation of the federal system, and
(v) The Constitution's limitations on Parliament and the statutory limitations on the
executive do not constitute to limitations on the judiciary's power under Articles
32 and 226 of the Constitution.

CONCLUSION

In other words, the Constitution Bench answered the referred question by holding that, in
exercising its jurisdiction under Article 226 of the Constitution, the High Court may intervene
on the grounds that the State Government's decision is unreasonable and arbitrary, and directs
the specialised agency to investigate an offence alleged to have been committed within the
territory of a State. Such guidance will not impede on the federal framework of the
Constitution or contradict the theory of separation of powers, and it will be legally binding.
Since Article 21 of the Constitution, in its broadest sense, attempts to preserve people's lives
and personal rights except in accordance with the method set by law. In its broad
interpretation, the aforementioned Article encompasses not only the enforcement of an
accused's rights, but also the rights of the victim. The State has an obligation to enforce a
citizen's human rights by conducting a fair and impartial inquiry of any individual suspected
of committing a cognizable act, including its own police. Given the constitutional provision
and the jurisdiction conferred on the High Courts under Article 226 of the Constitution, and
the power of judicial review being an integral part of the basic structure of the Constitution,
no constitutional or statutory provision can exclude or limit the powers of the Constitutional
Court with regard to the enforcement of fundamental rights. The Constitution Bench affirmed
the view expressed in Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya
that, before directing an investigation by the CBI, the High Court should conclude, after
considering the material on record, that the material does disclose a prima facie case
warranting an investigation by the CBI or any other similar agency.