J. Venkatesan

New Delhi: The Supreme Court and the High Courts have no power to order a CBI probe, contrary to the Delhi Special Police Establishment Act (DSPE) that contemplates prior consent of the State concerned.

Senior counsel K.K. Venugopal made this submission before a five-judge Constitution Bench, hearing the question raised by the West Bengal government on the courts’ powers to order a probe by the Central Bureau of Investigation.

The State challenged the powers of the Calcutta High Court to order a CBI inquiry into the death of 11 Trinamool Congress workers in an incident at Gabreta in Midnapore district, which allegedly involved ruling party workers.

During the pendency of this special leave petition, several other State governments also questioned the powers of the High Courts to order a CBI enquiry and hence the matter was referred to the Constitution Bench.

Statutory limitations

Mr. Venugopal said though the High Courts had on several occasions held that they had the inherent powers to refer a matter for CBI probe even without the State government’s consent, they could not do so in the face of statutory limitations.

Under Section 6 of the DSPE Act, prior consent of the State government was a necessity for ordering a CBI probe.

On many occasions, the State governments had themselves, on political or other considerations, given leave for CBI probe but even as the enquiry was on, in the face of unpleasant investigation, the consent was withdrawn, he pointed out.

When Justice R.V. Raveendran told counsel that Section 6 would bind only the Centre and not the courts, Mr. Venugopal said even in the case of inter-State crimes, they could not order a CBI probe without State government’s consent as the matter had wide ramifications.

Checks and balances

He said the function of the apex court or the High Court in a federal/quasi-federal structure was to maintain the ‘checks and balances’ between the Centre and the States.

“This is a crucial role and the apex court would not so interpret the Constitution as to defeat or affect the federal balance maintained by it.

“No provision of the Constitution authorises the court to exercise judicial power contrary to the express provisions of the Constitution itself, or of an Act of Parliament.”

Only curative powers

On the powers of the Supreme Court exercising powers under Article 142 to do substantive justice, Mr. Venugopal, quoting an earlier judgment, said “Powers under Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it.”

“The argument that the enquiry is against a Chief Minister or against the interests of the party in power and hence the court has the jurisdiction and duty to direct an investigation and prosecution by the CBI is to ignore a few fundamentals”, he said.

Arguments will continue on December 10 before the Bench, which includes Chief Justice K.G. Balakrishnan and Justices D.K. Jain, P. Sathasivam and J.M. Panchal.