Judgments

STATE OF WEST BENGAL VS THE COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS : CASE SUMMARY

The Supreme Court in State of West Bengal Vs. the Committee for Protection of Democratic Rights  (2010) 2 SCR 979  held that direction of the High Court under 226 of the Constitution to CBI to investigate offence committed within jurisdiction of State of West Bengal does not violate federal structure of the Constitution.

FACTS OF THE CASE

One Abdul Rahaman Mondal alongwith large number of workers were staying in camps of a Political Party in District Midnapore of State of West Bengal. Abdul Rahman Mondal along with some of workers were returning to his home, when some miscreants attacked them with some fire arms and others explosives resulting into several casualties. Abdul Rahman Mondal managed to escape and lodged complaint at Garbeta Police Station on 4th January, 2001. FIR was lodged on 5th January, 2001. On 8th January, CID took over the investigation.

Committee for protection of Democratic Rights filed Writ Petition before the High Court for handing over investigation to CBI as it claimed that investigation was not being done properly. The High Court transferred the investigation from CID to CBI.

The State of West Bengal filed Special Leave to Appeal before the Supreme Court. The issued involved was of public importance as such the matter was heard by Constitution Bench.

FINDINGS OF THE SUPREME COURT

The Supreme Court noted that there are three -fold distribution of legislative powers under Article 246 of the Constitution in form of three lists in the Seventh Schedule. Parliament has exclusive power to make laws on subjects enumerated under List I. State Legislature has exclusive power to make laws on subjects enumerated under List II. Parliament and State Legislature have concurrent power to legislate on matters enumerated under List III. Although the Constitution exhibits supremacy of the Parliament over State Legislature in certain aspects, there is clear demarcation of legislative power between Union and States. Constitution prohibits encroachment of Parliament on state subjects like public order and police.

The issue before the Supreme Court was whether Judiciary can direct the CBI an agency established by Union to do investigation in respect of State Subject without consent of State Government.

The Supreme Court made a survey of relevant provisions. The Court noted that Special Police Act was enacted by Governor General in Council under powers conferred by Government of India Act, 1935. Entry 2 of List II of Seventh Schedule  confers exclusive jurisdiction to State subject related to Police. Entry 2A of List I empowers Union to legislate on development of armed forces of the Union.

Section 5 of the Special Police Act empowers the Union to extend its jurisdiction to other State but Section 6 of the Act prohibits Special Police Establishment to extend jurisdiction to a State without its consent.

Constitution is suprema lex in India. Besides supremacy of the Constitution, separation of powers among Executive, Legislature and Judiciary is also part of basic structure of the Constitution. The Supreme Court noted that judicial review is also a basic feature of the Constitution which cannot be abridged even by Constitutional amendment. The issue was whether separation of powers can limit power of judicial review even in cases of abrogation of Fundamental Rights ?

The Supreme Court observed that Article 32 and 226 grants power of judicial review on Supreme Court and High Court. The power of judicial review is part of basic structure. All the legislative powers of Parliament or State Legislature are subject to provisions of Constitution which include Part III of the Constitution.  It is duty of the Supreme Court to ensure that Fundamental Rights are not violated by any statutory or constitutional provision.

The Court concluded that any direction by the High Court under Article 226 or the Supreme Court under Article 32 to uphold the Constitution and uphold law can not be termed as violation of federal structure. The Supreme Court held that the power of judicial review under Article 226 can not be taken away by Section 6 of Special Police Act. Direction to CBI under Article 226 of the Constitution to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of the State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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