The Supreme Court and the High Courts have the power to order a CBI probe without a State’s consent into a cognizable offence allegedly committed within the State’s territory, a five-judge Constitution Bench of the Supreme Court held on Wednesday.

The Bench, headed by Chief Justice K.G. Balakrishnan, said: “Being the protectors of civil liberties of the citizens, this court and the High Courts have not only had the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.”

The Bench, which comprised Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, rejected the contentions of many States that a CBI probe could not be ordered without their consent, as such an order would impinge on the federal structure of the Constitution.

Writing the judgment, Mr. Justice Jain said: “Ordering a CBI probe without the State’s consent will neither impinge upon the federal structure nor violate the doctrine of separation of power and shall be valid in law.”

The Bench said the moot question was whether the doctrine of separation of powers would curtail the power of judicial review conferred on constitutional courts even in situations where the fundamental rights were sought to be abrogated or abridged on the ground that exercise of such power would impinge upon the doctrine. “The Constitution is a living and organic document. It cannot remain static and must grow with the nation. The constitutional provisions have to be construed broadly and liberally, having regard to the changed circumstances and the needs of time and polity,” it observed.

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