J. Venkatesan

“Any law that abrogates or abridges such rights will be in violation of basic structure doctrine”

NEW DELHI: The fundamental rights enshrined in the Constitution are inherent and cannot be extinguished by any constitutional or statutory provision, the Supreme Court held on Wednesday.

Upholding the power to order a CBI probe without a State’s consent, a five-judge Constitution Bench, headed by Chief Justice K.G. Balakrishnan, said: “Any law that abrogates or abridges such rights would be violative of the basic structure doctrine.”

The Bench was disposing of a batch of cases filed by the West Bengal government and others, challenging CBI probe ordered by the High Courts concerned. Since important questions of law were raised in these appeals, the matter was referred to the Constitution Bench.

The Bench said:

“The State has a duty to enforce the human rights of a citizen for fair and impartial investigation against any person accused of commission of a cognisable offence, which may include its own officers.

“The power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights.

“In a federal Constitution, distribution of legislative powers between Parliament and State Legislatures involves limitation on legislative powers and, therefore, this requires an authority other than Parliament to ascertain whether such limitations are transgressed.

“Judicial review acts as the final arbiter not only to give effect to distribution of legislative powers between Parliament and State legislatures, it is also necessary to show any transgression by each entity.”

The Bench noted that when the Delhi Special Police Establishment Act says that subject to the consent by the State, the CBI can take up investigation in relation to the crime that was otherwise within the jurisdiction of the State police, the court could also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State.

The Bench held that the power of the High Court under Article 226 could not be taken away, curtailed or diluted by Section 6 of the DSPE Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the courts, the restriction imposed by Section 6 of the Act on the powers of the Union could not be read as restriction on the powers of the constitutional courts.

The Bench directed that all individual cases be placed before the respective Benches for disposal in terms of this judgment.

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