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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.6249-6250 0F 2001
STATE OF WEST BENGAL & ORS. -- APPELLANTS
VERSUS
THE COMMITTEE FOR PROTECTION OF DEMOCRATIC -- RESPONDENTS
RIGHTS, WEST BENGAL & ORS.
WITH
W.P. (CRL.) 24 OF 2008,
SLP (CRL.) NO.4096 OF 2007 AND
W.P. (C) NO.573 OF 2006
J U D G M E N T
D.K. JAIN, J.:
1.The issue which has been referred for the opinion of
the Constitution Bench is whether the High Court, in
exercise of its jurisdiction under Article 226 of the
Constitution of India, can direct the Central Bureau of
Investigation (for short "the CBI"), established under
the Delhi Special Police Establishment Act, 1946 (for
short "the Special Police Act"), to investigate a
cognizable offence, which is alleged to have taken place
within the territorial jurisdiction of a State, without
the consent of the State Government.
2.For the determination of the afore-stated important
legal issue, it is unnecessary to dilate on the facts
obtaining in individual cases in this bunch of civil
appeals/special leave petitions/writ petitions and a
brief reference to the facts in Civil Appeal Nos.6249-
6250 of 2001, noticed in the referral order dated 8th
November, 2006, would suffice. These are:
One Abdul Rahaman Mondal (hereinafter referred to
as, "the complainant") along with a large number of
workers of a political party had been staying in several
camps of that party at Garbeta, District Midnapore, in
the State of West Bengal. On 4th January, 2001, the
complainant and few others decided to return to their
homes from one such camp. When they reached the
complainant's house, some miscreants, numbering 50-60,
attacked them with firearms and other explosives, which
resulted in a number of casualties. The complainant
managed to escape from the place of occurrence, hid
himself and witnessed the carnage. He lodged a written
complaint with the Garbeta Police Station on 4th January,
2001 itself but the First Information Report ("the FIR"
for short) for offences under Sections
148/149/448/436/364/302/201 of the Indian Penal Code,
1860 (for short "the IPC") read with Sections 25/27 of
the Arms Act, 1959 and Section 9 (B) of the Explosives
Act, 1884 was registered only on 5th January, 2001. On 8th
January, 2001, Director General of Police, West Bengal
directed the C.I.D. to take over the investigations in
the case. A writ petition under Article 226 of the
Constitution was filed in the High Court of Judicature at
Calcutta by the Committee for Protection of Democratic
Rights, West Bengal, in public interest, inter alia,
alleging that although in the said incident 11 persons
had died on 4th January, 2001 and more than three months
had elapsed since the incident had taken place yet except
two persons, no other person named in the FIR, had been
arrested; no serious attempt had been made to get the
victims identified and so far the police had not been
able to come to a definite conclusion whether missing
persons were dead or alive. It was alleged that since
the police administration in the State was under the
influence of the ruling party which was trying to hide
the incident to save its image, the investigations in the
incident may be handed over to the CBI, an independent
agency.
3.Upon consideration of the affidavit filed in opposition
by the State Government, the High Court felt that in the
background of the case it had strong reservations about
the impartiality and fairness in the investigation by the
State police because of the political fallout, therefore,
no useful purpose would be served in continuing with the
investigation by the State Investigating Agency.
Moreover, even if the investigation was conducted fairly
and truthfully by the State police, it would still be
viewed with suspicion because of the allegation that all
the assailants were members of the ruling party. Having
regard to all these circumstances, the High Court deemed
it appropriate to hand over the investigation into the
said incident to the CBI.
4.Aggrieved by the order passed by the High Court, the
State of West Bengal filed a petition for special leave
to appeal before this Court. On 3rd September, 2001 leave
was granted. When the matter came up for hearing before a
two-Judge Bench on 8th November, 2006, taking note of the
contentions urged by learned counsel for the parties and
the orders passed by this Court in The Management of
Advance Insurance Co. Ltd. Vs. Shri Gurudasmal & Ors.1 and
Kazi Lhendup Dorji Vs. Central Bureau of Investigation &
Ors.2, the Bench was of the opinion that the question of
law involved in the appeals was of great public
importance and was coming before the courts frequently
and, therefore, it was necessary that the issue be
settled by a larger Bench. Accordingly, the Bench
directed that the papers of the case be placed before the
Hon'ble Chief Justice of India for passing appropriate
orders for placing the matter before a larger Bench.
When the matter came up before a three-Judge Bench,
1
1970 (1) SCC 633
2
1994 Supp (2) SCC 116
headed by the Hon'ble Chief Justice of India, on 29th
August, 2008, this batch of cases was directed to be
listed before a Constitution Bench. This is how these
matters have been placed before us.
The Rival Contentions:
5.Shri K.K. Venugopal, learned senior counsel appearing
on behalf of the State of West Bengal, referring to Entry
80 of List I of the Seventh Schedule to the Constitution
of India; Entry 2 of List II of the said Schedule as also
Sections 5 and 6 of the Special Police Act strenuously
argued that from the said Constitutional and Statutory
provisions it is evident that there is a complete
restriction on Parliament's legislative power in enacting
any law permitting the police of one State to investigate
an offence committed in another State, without the
consent of that State. It was urged that the Special
Police Act enacted in exercise of the powers conferred
under the Government of India Act, 1935, Entry 39 of List
I (Federal Legislative List) of the Seventh Schedule, the
field now occupied by Entry 80 of List I of the Seventh
Schedule of the Constitution, replicates the prohibition
of police of one State investigating an offence in
another State without the consent of that State. It was
submitted that Entry 2 of List II which confers exclusive
jurisdiction on the State Legislature in regard to the
police, the exclusive jurisdiction of a State Legislature
cannot be encroached upon without the consent of the
concerned State being obtained.
6.Learned senior counsel submitted that the separation of
powers between the three organs of the State, i.e. the
Legislature, the Executive and the Judiciary would
require each one of these organs to confine itself within
the field entrusted to it by the Constitution and not to
act in contravention or contrary to the letter and spirit
of the Constitution.
7.Thus, the thrust of argument of the learned counsel was
that both, the federal structure as well as the
principles of separation of powers, being a part of the
basic structure of the Constitution, it is neither
permissible for the Central Government to encroach upon
the legislative powers of a State in respect of the
matters specified in List II of the Seventh Schedule nor
can the superior courts of the land adjure such a
jurisdiction which is otherwise prohibited under the
Constitution. It was urged that if the Parliament were
to pass a law which authorises the police of one State to
investigate in another State without the consent of that
State, such a law would be pro tanto invalid and,
therefore, the rule of law would require the courts,
which are subservient to the Constitution, to ensure that
the federal structure embodied in the Constitution as a
basic principle, is not disturbed by permitting/directing
the police force of a State to investigate an offence
committed in another State without the consent of that
State.
8.Relying heavily on the observations of the Constitution
Bench in Supreme Court Bar Association Vs. Union of India
& Anr.3 to the effect that Article 142, even with the
width of its amplitude, cannot be used to build a new
edifice where none existed earlier, by ignoring express
statutory provisions dealing with a subject and thereby
to achieve something indirectly which cannot be achieved
directly, learned counsel contended that when even
Article 142 of the Constitution cannot be used by this
Court to act contrary to the express provisions of law,
the High Court cannot issue any direction ignoring the
Statutory and Constitutional provisions. Learned counsel
went to the extent of arguing that even when the State
police is not in a position to conduct an impartial
investigation because of extraneous influences, the Court
still cannot exercise executive power of directing the
police force of another State to carry out investigations
without the consent of that State. In such a situation,
the matter is best left to the wisdom of the Parliament
to enact an appropriate legislation to take care of the
situation. According to the learned counsel, till that
3
(1998) 4 SCC 409
is done, even such an extreme situation would not justify
the Court upsetting the federal or quasi-federal system
created by the Constitution.
9.As regards the exercise of jurisdiction by a High Court
under Article 226 of the Constitution, learned counsel
submitted that apart from the fact that there is a
significant difference between the power of this Court
under Article 142 of the Constitution and the
jurisdiction of the High Court under Article 226 of the
Constitution because of territorial limitations under
Article 226 (1) of the Constitution, a High Court is
disentitled from issuing any direction to the authorities
situated outside the territories over which it has
jurisdiction. According to the learned counsel Clause
(2) of Article 226 would have no application in a case,
such as the present one, since the cause of action was
complete at the time of filing the writ petition and the
power under Clause (2) can be exercised only where there
is a nexus between the cause of action which arises
wholly or partly within the State and the authority which
is situated outside the State. It was asserted that the
CBI being a rank outsider, unconnected to the incident,
which took place within the State of West Bengal, the
investigation of which was being conducted by the
jurisdictional local police in West Bengal, had no
authority to take up the case for investigation.
10.Shri Goolam E. Vahanvati, learned Solicitor General of
India, appearing on behalf of the Union of India,
submitted that the entire approach of the State being
based on an assumption that the alleged restriction on
Parliament's legislative power under Entry 80 of List I
of the Seventh Schedule to the Constitution and
restriction on the power of the Central Government under
Section 6 of the Special Police Act to issue a
notification binds the constitutional courts i.e. the
Supreme Court and the High Courts is fallacious, inasmuch
as the restrictions on the Central Government and
Parliament cannot be inferentially extended to be
restrictions on the Constitutional Courts in exercise of
their powers under Articles 32 and 226 of the
Constitution as it is the obligation of the Superior
Courts to protect the citizens and enforce their
fundamental rights. Learned counsel vehemently argued
that the stand of the appellants that the exercise of
power by the Supreme Court or the High Courts to refer
investigation to CBI directly without prior approval of
the concerned State Government would violate the federal
structure of the Constitution is again misconceived as it
overlooks the basic fact that in a federal structure it
is the duty of the courts to uphold the Constitutional
values and to enforce the Constitutional limitations as
an ultimate interpreter of the Constitution. In support
of the proposition, learned counsel placed reliance on
the decisions of this Court in State of Rajasthan & Ors.
Vs. Union of India & Ors.4, S.R. Bommai & Ors. Vs. Union
of India & Ors.5 and Kuldip Nayar & Ors. Vs. Union of
India & Ors.6.
11.Relying on the recent decision by a Bench of nine
Judges of this Court in I.R. Coelho (D) By LRs. Vs. State
of Tamil Nadu7, learned counsel submitted that the
judicial review being itself the basic feature of the
Constitution, no restriction can be placed even by
inference and by principle of legislative competence on
the powers of the Supreme Court and the High Courts with
regard to the enforcement of fundamental rights and
protection of the citizens of India. Learned counsel
asserted that in exercise of powers either under Article
32 or 226 of the Constitution, the courts are merely
discharging their duty of judicial review and are neither
usurping any jurisdiction, nor overriding the doctrine of
separation of powers. In support of the proposition that
the jurisdiction conferred on the Supreme Court by
Article 32 as also on the High Courts under Article 226
of the Constitution is an important and integral part of
the basic structure of the Constitution, learned counsel
placed reliance on the decisions of this Court in Special
4
(1977) 3 SCC 592
5
(1994) 3 SCC 1
6
(2006) 7 SCC 1
7
(2007) 2 SCC 1
Reference No.1 of 19648, Minerva Mills Ltd. & Ors. Vs.
Union of India & Ors.9, Fertilizer Corporation Kamgar
Union (Regd.), Sindri & Ors. Vs. Union of India & Ors. 10,
Nilabati Behera Vs. State of Orissa & Ors.11 and L.
Chandra Kumar Vs. Union of India & Ors.12. Relying on the
decision of this Court in Dwarkanath, Hindu Undivided
Family Vs. Income-Tax Officer, Special Circle, Kanpur &
Anr.13, learned counsel emphasised that the powers of the
High Court under Article 226 are also wide and plenary in
nature similar to that of the Supreme Court under Article
32 of the Constitution.
The Questions for Consideration:
12.It is manifest that in essence the objection of the
appellant to the CBI's role in police investigation in a
State without its consent, proceeds on the doctrine of
distribution of legislative powers as between the Union
and the State Legislatures particularly with reference to
the three Lists in the Seventh Schedule of the
Constitution and the distribution of powers between the
said three organs of the State.
13.In order to appreciate the controversy, a brief
reference to some of the provisions in the Constitution
8
[1965] 1 S.C.R. 413
9
(1980) 3 SCC 625
10
(1981) 1 SCC 568
11
(1993) 2 SCC 746
12
(1997) 3 SCC 261
13
[1965] 3 S.C.R. 536
would be necessary. The Constitution of India is divided
into several parts, each part dealing in detail with
different aspects of the social, economic, political and
administrative set up. For the present case, we are
mainly concerned with Part III of the Constitution, which
enumerates the fundamental rights guaranteed by the State
primarily to citizens and in some cases to every resident
of India and Part XI thereof, which pertains to the
relations between the Union and the States.
14.Bearing in mind the basis on which the correctness of
the impugned direction is being questioned by the State
of West Bengal, we shall first notice the scope and
purport of Part XI of the Constitution. According to
Article 1 of the Constitution, India is a `Union' of
States, which means a Federation of States. Every federal
system requires division of powers between the Union and
State Governments, which in our Constitution is effected
by Part XI thereof. While Articles 245 to 255 deal with
distribution of legislative powers, the distribution of
administrative powers is dealt with in Articles 256 to
261. Under the Constitution, there is a three-fold
distribution of legislative powers between the Union and
the States, made by the three Lists in the Seventh
Schedule of the Constitution. While Article 245 confers
the legislative powers upon the Union and the States,
Article 246 provides for distribution of legislative
powers between the Union and the States. Article 246,
relevant for our purpose, reads as follows:
"246. Subject-matter of laws made by Parliament
and by the Legislatures of States -- (1)
Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List
I in the Seventh Schedule (in this Constitution
referred to as the "Union List").
(2) Notwithstanding anything in clause (3),
Parliament and, subject to clause (1), the
Legislature of any State also, have power to
make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule
(in this Constitution referred to as the
"Concurrent List").
(3) Subject to clauses (1) and (2), the
Legislature of any State has exclusive power to
make laws for such State or any part thereof
with respect to any of the matters enumerated in
List II in the Seventh Schedule (in this
Constitution referred to as the `State List').
(4) Parliament has power to make laws with
respect to any matter for any part of the
territory of India not included in a State
notwithstanding that such matter is a matter
enumerated in the State List."
15.The Article deals with the distribution of legislative
powers between the Union and the State Legislatures.
List I or the `Union List' enumerates the subjects over
which the Union shall have exclusive powers of
legislation in respect of 99 items or subjects, which
include Defence etc.; List II or the `State List'
comprises of subjects, which include Public Order, Police
etc., over which the State Legislature shall have
exclusive power of legislation and List III gives
concurrent powers to the Union and the State Legislatures
to legislate in respect of items mentioned therein. The
Article postulates that Parliament shall have exclusive
power to legislate with respect to any of the matters
enumerated in List I notwithstanding anything contained
in clauses (2) and (3). The non obstante clause in
Article 246(1) contemplates the predominance or supremacy
of the Union Legislature. This power is not encumbered
by anything contained in clause (2) and (3) for these
clauses themselves are expressly limited and made subject
to the non obstante clause in Article 246(1). The State
Legislature has exclusive power to make laws for such
State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule and
it also has the power to make laws with respect to any
matters enumerated in List III (Concurrent List). The
exclusive power of the State Legislature to legislate
with respect to any of the matters enumerated in List II
has to be exercised subject to clause (1) i.e. the
exclusive power of Parliament to legislate with respect
to matters enumerated in List I. As a consequence, if
there is a conflict between an Entry in List I and an
Entry in List II, which is not capable of reconciliation,
the power of Parliament to legislate with respect to a
matter enumerated in List II must supersede pro tanto the
exercise of power of the State Legislature. Both
Parliament and the State Legislature have concurrent
powers of legislation with respect to any of the matters
enumerated in List III. The words "notwithstanding
anything contained in clauses (2) and (3)" in Article 246
(1) and the words "subject to clauses (1) and (2)" in
Article 246 (3) lay down the principle of federal
supremacy viz. that in case of inevitable conflict
between Union and State powers, the Union power as
enumerated in List I shall prevail over the State power
as enumerated in Lists II and III and in case of an
overlapping between Lists II and III, the latter shall
prevail. Though, undoubtedly, the Constitution exhibits
supremacy of Parliament over State Legislatures, yet the
principle of federal supremacy laid down in Article 246
of the Constitution cannot be resorted to unless there is
an irreconcilable direct conflict between the entries in
the Union and the State Lists. Thus, there is no quarrel
with the broad proposition that under the Constitution
there is a clear demarcation of legislative powers
between the Union and the States and they have to confine
themselves within the field entrusted to them. It may
also be borne in mind that the function of the Lists is
not to confer powers; they merely demarcate the
Legislative field. But the issue we are called upon to
determine is that when the scheme of Constitution
prohibits encroachment by the Union upon a matter which
exclusively falls within the domain of the State
Legislature, like public order, police etc., can the
third organ of the State viz. the Judiciary, direct the
CBI, an agency established by the Union to do something
in respect of a State subject, without the consent of the
concerned State Government?
16.In order to adjudicate upon the issue at hand, it
would be necessary to refer to some other relevant
Constitutional and Statutory provisions as well.
17.As noted earlier, the Special Police Act was enacted
by the Governor General in Council in exercise of the
powers conferred by the Government of India Act, 1935
(Entry 39 of List I, Seventh Schedule). The said Entry
reads as under:-
"Extension of the powers and jurisdiction of
members of a police force belonging to any part
of British India to any area in another
Governor's Province or Chief Commissioner's
Province, but not so as to enable the police of
one part to exercise powers and jurisdiction
elsewhere without the consent of the Government
of the Province or the Chief Commissioner as the
case may be; extension of the powers and
jurisdiction of members of a police force
belonging to any unit to railway areas outside
that unit."
It is manifest that the Special Police Act was passed in
terms of the said Entry imposing prohibition on the
Federal Legislature to enact any law permitting the
police of one State from investigating an offence
committed in another State, without the consent of the
State. The said Entry was replaced by Entry 80 of List I
of the Seventh Schedule to the Constitution of India.
The said entry reads thus:
"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 Govt. of the
State in which such area is situated; extension
of the powers and jurisdiction of members of a
police force belonging to any State to railway
areas outside that State."
Entry 2 of List II of the Constitution of India, which
corresponds to Entry 2 List II of the Government of India
Act, conferring exclusive jurisdiction to the States in
matter relating to police reads as under:
Entry 2 List II:
"Police (including railway and village police)
subject to the provisions of entry 2A of List
I."
Entry 2A of List I:
"Development of any armed force of the Union or
any other force subject to the control of the
Union or any contingent or unit thereof in any
State in aid of the civil power; powers,
jurisdiction, privileges and liabilities of the
members of such forces while on such
deployment."
18.From a bare reading of the afore-noted Constitutional
provisions, it is manifest that by virtue of these
entries, the legislative power of the Union to provide
for the regular police force of one State to exercise
power and jurisdiction in any area outside the State can
only be exercised with the consent of the Government of
that particular State in which such area is situated,
except the police force belonging to any State to
exercise power and jurisdiction to railway areas outside
that State.
19.As the preamble of the Special Police Act states, it
was enacted with a view to constitute a special force in
Delhi for the investigation of certain offences in the
Union Territories and to make provisions for the
superintendence and administration of the said force and
for the extension to other areas of the powers and
jurisdiction of the members of the said force in regard
to the investigation of the said offences. Sub-section
(1) of Section 1 specifies the title of the Special
Police Act and sub-section (2) speaks that the Special
Police Act extends to the whole of India. Section 2
contains 3 sub-sections. Sub-section (1) empowers the
Central Government to constitute a special police force
to be called the Delhi Special Police Establishment for
the investigation of offences notified under Section 3 in
any Union Territory; sub-section (2) confers upon the
members of the said police establishment in relation to
the investigation of such offences and arrest of persons
concerned in such offences, all the powers, duties,
privileges and liabilities which police officers of that
Union Territory have in connection with the investigation
of offences committed therein and sub-section (3)
provides that any member of the said police establishment
of or above the rank of Sub-Inspector be deemed to be an
officer in charge of a police station. Under Section 3 of
the Special Police Act, the Central Government is
required to specify and notify the offences or classes of
offences which are to be investigated by the Delhi
Special Police Establishment, constituted under the
Special Police Act, named "the CBI". Section 4 deals
with the administrative control of the establishment and
according to sub-section (2), the "superintendence" of
the Establishment vests in the Central Government and the
administration of the said establishment vests in an
officer appointed in this behalf by the Central
Government. Explaining the meaning of the word
"Superintendence" in Section 4(1) and the scope of the
authority of the Central Government in this context, in
Vineet Narain & Ors. Vs. Union of India & Anr. 14, a Bench
of three Judges of this Court said:
"40....The word "superintendence" in Section 4(1)
cannot be construed in a wider sense to permit
supervision of the actual investigation of an
offence by the CBI contrary to the manner
provided by the statutory provisions. The broad
proposition urged on behalf of the Union of
India that it can issue any directive to the CBI
to curtail or inhibit its jurisdiction to
investigate an offence specified in the
notification issued under Section 3 by a
directive under Section 4(1) of the Act cannot
be accepted. The jurisdiction of the CBI to
investigate an offence is to be determined with
reference to the notification issued under
14
(1998) 1 SCC 226
Section 3 and not by any separate order not
having that character."
20.Section 5 of the Special Police Act empowers the
Central Government to extend the powers and jurisdiction
of the Special Police Establishment to any area, in a
State, not being a Union Territory for the investigation
of any offences or classes of offences specified in a
notification under Section 3 and on such extension of
jurisdiction, a member of the Establishment shall
discharge the functions of a police officer in that area
and shall, while so discharging such functions, be deemed
to be a member of the police force of that area and be
vested with the powers, functions and privileges and be
subject to the liabilities of a police officer belonging
to that police force.
21.Section 6, the pivotal provision, reads as follows:-
"6. Consent of State Government to exercise of
powers and jurisdiction. - 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."
22.Thus, although Section 5(1) empowers the Central
Government to extend the powers and jurisdiction of
members of the Delhi Special Police Establishment to any
area in a State, but Section 6 imposes a restriction on
the power of the Central Government to extend the
jurisdiction of the said Establishment only with the
consent of the State Government concerned.
23.Having noticed the scope and amplitude of Sections 5
and 6 of the Special Police Act, the question for
consideration is whether the restriction imposed on the
powers of the Central Government would apply mutatis
mutandis to the Constitutional Courts as well. As stated
above, the main thrust of the argument of Shri K.K.
Venugopal, learned senior counsel, is that the course
adopted by the High Court in directing the CBI to
undertake investigation in the State of West Bengal
without the consent of the State is incompatible with the
federal structure as also the doctrine of separation of
powers between the three organs of the State, embodied in
the Constitution even when the High Court, on the
material before it, was convinced that the State Police
was dragging its feet in so far as investigation into the
4th January, 2001 carnage was concerned.
24.In so far as the first limb of the argument is
concerned, it needs little emphasis that, except in the
circumstances indicated above, in a federal structure,
the Union is not permitted to encroach upon the
legislative powers of a State in respect of the matters
specified in List II of the Seventh Schedule. However,
the second limb of the argument of the learned counsel in
regard to the applicability of the doctrine of separation
of powers to the issue at hand, in our view, is clearly
untenable. Apart from the fact that the question of
Centre - State relationship is not an issue in the
present case, a Constitutional Court being itself the
custodian of the federal structure, the invocation of the
federal structure doctrine is also misplaced.
25.In a democratic country governed by a written
Constitution, it is the Constitution which is supreme and
sovereign. As observed in Raja Ram Pal Vs. Hon'ble
Speaker, Lok Sabha & Ors.15, the Constitution is the
suprema lex in this country. All organs of the State,
including this Court and the High Courts, derive their
authority, jurisdiction and powers from the Constitution
and owe allegiance to it. Highlighting the fundamental
features of a federal Constitution, in Special Reference
No.1 (supra), the Constitution Bench (7-Judges) observed
as follows:
"...the essential characteristic of federalism is
`the distribution of limited executive,
legislative and judicial authority among bodies
which are coordinate with and independent of
each other'. The supremacy of the Constitution
is fundamental to the existence of a federal
State in order to prevent either the legislature
of the federal unit or those of the member
States from destroying or impairing that
delicate balance of power which satisfies the
particular requirements of States which are
desirous of union, but not prepared to merge
their individuality in a unity. This supremacy
of the Constitution is protected by the
15
(2007) 3 SCC 184
authority of an independent judicial body to act
as the interpreter of a scheme of distribution
of powers."
26.It is trite that in the Constitutional Scheme adopted
in India, besides supremacy of the Constitution, the
separation of powers between the legislature, the
executive and the judiciary constitutes the basic
features of the Constitution. In fact, the importance of
separation of powers in our system of governance was
recognised in Special Reference No.1 (supra), even before
the basic structure doctrine came to be propounded in the
celebrated case of His Holiness Kesavananda Bharati
Sripadagalvaru Vs. State of Kerala & Anr.16, wherein while
finding certain basic features of the Constitution, it
was opined that separation of powers is part of the basic
structure of the Constitution. Later, similar view was
echoed in Smt. Indira Nehru Gandhi Vs. Shri Raj Narain &
Anr.17 and in a series of other cases on the point.
Nevertheless, apart from the fact that our Constitution
does not envisage a rigid and strict separation of powers
between the said three organs of the State, the power of
judicial review stands entirely on a different pedestal.
Being itself part of the basic structure of the
Constitution, it cannot be ousted or abridged by even a
Constitutional amendment. [See: L. Chandra Kumar Vs.
Union of India & Ors. (supra)]. Besides, judicial review
16
(1973) 4 SCC 225
17
1975 (Supp) SCC 1
is otherwise essential for resolving the disputes
regarding the limits of Constitutional power and entering
the Constitutional limitations as an ultimate interpreter
of the Constitution. In Special Reference No.1 of 1964
(supra), it was observed that whether or not there is
distinct and rigid separation of powers under the Indian
Constitution, there is no doubt that the Constitution has
entrusted to the judicature in this country the task of
construing the provisions of the Constitution and of
safeguarding the fundamental rights of the citizens. In
Smt. Indira Nehru Gandhi (supra), Y.V. Chandrachud, J.
(as His Lordship then was), drawing distinction between
the American and Australian Constitution on the one hand
and the Indian Constitution on the other, observed that
the principle of separation of powers is not a magic
formula for keeping the three organs of the State within
the strict confines of their functions. The learned
judge also observed that in a federal system, which
distributes powers between three coordinate branches of
government, though not rigidly, disputes regarding the
limits of Constitutional power have to be resolved by
courts. Quoting George Whitecross Paton, an Australian
Legal Scholar, that "the distinction between judicial and
other powers may be vital to the maintenance of the
Constitution itself", the learned judge said that the
principle of separation of powers is a principle of
restraint which "has in it the percept, innate in the
prudence of self-preservation (even if history has not
repeatedly brought in home), that discretion is the
better part of valour"18.
27.Recently in State of U.P. & Ors. Vs. Jeet S. Bisht &
Anr.19, S.B. Sinha, J. dealt with the topic of separation
of powers in the following terms:
"77. Separation of powers is a favourite topic
for some of us. Each organ of the State in
terms of the constitutional scheme performs one
or the other functions which have been assigned
to the other organ. Although drafting of
legislation and its implementation by and large
are functions of the legislature and the
executive respectively, it is too late in the
day to say that the constitutional court's role
in that behalf is non-existent. The judge-made
law is now well recognised throughout the
world. If one is to put the doctrine of
separation of power to such a rigidity, it
would not have been possible for any superior
court of any country, whether developed or
developing, to create new rights through
interpretative process.
78. Separation of powers in one sense is a
limit on active jurisdiction of each organ. But
it has another deeper and more relevant
purpose: to act as check and balance over the
activities of other organs. Thereby the active
jurisdiction of the organ is not challenged;
nevertheless there are methods of prodding to
communicate the institution of its excesses and
shortfall in duty. Constitutional mandate sets
the dynamics of this communication between the
organs of polity. Therefore, it is suggested to
not understand separation of powers as
operating in vacuum. Separation of powers
doctrine has been reinvented in modern times.
xxx xxx xxx
18
Julius Stone: Social Dimensions of Law and Justice, (1966) p. 668.
19
(2007) 6 SCC 586
80. The modern view, which is today gathering
momentum in constitutional courts the world
over, is not only to demarcate the realm of
functioning in a negative sense, but also to
define the minimum content of the demarcated
realm of functioning. Objective definition of
function and role entails executing the same,
which however may be subject to the plea of
financial constraint but only in exceptional
cases. In event of any such shortcoming, it is
the essential duty of the other organ to advise
and recommend the needful to substitute
inaction. To this extent we must be prepared to
frame answers to these difficult questions.
xxx xxx xxx
83. If we notice the evolution of separation of
powers doctrine, traditionally the checks and
balances dimension was only associated with
governmental excesses and violations. But in
today's world of positive rights and
justifiable social and economic entitlements,
hybrid administrative bodies, private
functionaries discharging public functions, we
have to perform the oversight function with
more urgency and enlarge the field of checks
and balances to include governmental inaction.
Otherwise we envisage the country getting
transformed into a state of repose. Social
engineering as well as institutional
engineering therefore forms part of this
obligation."
28.Having discussed the scope and width of the doctrine
of separation of powers, the moot question for
consideration in the present case is that when the
fundamental rights, as enshrined in Part III of the
Constitution, which include the right to equality
(Article 14); the freedom of speech [Article 19(1)(a)]
and the right not to be deprived of life and liberty
except by procedure established by law (Article 21), as
alleged in the instant case, are violated, can their
violation be immunised from judicial scrutiny on the
touchstone of doctrine of separation of powers between
the Legislature, Executive and the Judiciary. To put it
differently, can the doctrine of separation of powers
curtail the power of judicial review, conferred on the
Constitutional Courts even in situations where the
fundamental rights are sought to be abrogated or abridged
on the ground that exercise of such power would impinge
upon the said doctrine?
29.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. In Kehar Singh & Anr.
Vs. Union of India & Anr.20, speaking for the Constitution
Bench, R.S. Pathak, C.J. held that in keeping with modern
Constitutional practice, the Constitution of India is a
constitutive document, fundamental to the governance of
the country, whereby the people of India have provided a
Constitutional polity consisting of certain primary
organs, institutions and functionaries with the intention
of working out, maintaining and operating a
Constitutional order. On the aspect of interpretation of
a Constitution, the following observations of Justice
20
(1989) 1 SCC 204
Dickson of the Supreme Court of Canada in Lawson A.W.
Hunter & Ors. Vs. Southam Inc.21 are quite apposite:
"The task of expounding a constitution is
crucially different from that of construing a
statute. A statute defines present rights and
obligations. It is easily enacted and as easily
repealed. A constitution, by contrast, is
drafted with an eye to the future. Its function
is to provide a continuing framework for the
legitimate exercise of governmental power and,
when joined by a Bill or a Charter of rights,
for the unremitting protection of individual
rights and liberties. Once enacted, its
provisions cannot easily be repealed or amended.
It must, therefore, be capable of growth and
development over time to meet new social,
political and historical realities often
unimagined by its framers. The judiciary is the
guardian of the constitution and must, in
interpreting its provisions, bear these
considerations in mind."
30.In M. Nagaraj & Ors. Vs. Union of India & Ors.22,
speaking for the Constitution Bench, S.H. Kapadia, J.
observed as under:
"The Constitution is not an ephemeral legal
document embodying a set of legal rules for the
passing hour. It sets out principles for an
expanding future and is intended to endure for
ages to come and consequently to be adapted to
the various crisis of human affairs. Therefore, a
purposive rather than a strict literal approach
to the interpretation should be adopted. A
Constitutional provision must be construed not in
a narrow and constricted sense but in a wide and
liberal manner so as to anticipate and take
account of changing conditions and purposes so
that a constitutional provision does not get
fossilised but remains flexible enough to meet
the newly emerging problems and challenges."
[Emphasis supplied]
21
(1984) 2 S.C.R.145 (Can SC)
22
(2006) 8 SCC 212
31.Recently, in I.R. Coelho (supra), noticing the
principles relevant for the interpretation of
Constitutional provisions, Y.K. Sabharwal, C.J., speaking
for the Bench of nine Judges of this Court, observed as
follows:
"The principle of constitutionalism is now a
legal principle which requires control over the
exercise of Governmental power to ensure that it
does not destroy the democratic principles upon
which it is based. These democratic principles
include the protection of fundamental rights.
The principle of constitutionalism advocates a
check and balance model of the separation of
powers; it requires a diffusion of powers,
necessitating different independent centres of
decision making. The principle of
constitutionalism underpins the principle of
legality which requires the Courts to interpret
legislation on the assumption that Parliament
would not wish to legislate contrary to
fundamental rights. The Legislature can restrict
fundamental rights but it is impossible for laws
protecting fundamental rights to be impliedly
repealed by future statutes."
Observing further that the protection of fundamental
constitutional rights through the common law is the main
feature of common law constitutionalism, the Court went
on to say:
"Under the controlled Constitution, the
principles of checks and balances have an
important role to play. Even in England where
Parliament is sovereign, Lord Steyn has observed
that in certain circumstances, Courts may be
forced to modify the principle of parliamentary
sovereignty, for example, in cases where
judicial review is sought to be abolished. By
this the judiciary is protecting a limited form
of constitutionalism, ensuring that their
institutional role in the Government is
maintained."
32.The Constitution of India expressly confers the power
of judicial review on this Court and the High Courts
under Article 32 and 226 respectively. Dr. B.R. Ambedkar
described Article 32 as the very soul of the Constitution
- the very heart of it - the most important Article. By
now, it is well settled that the power of judicial
review, vested in the Supreme Court and the High Courts
under the said Articles of the Constitution, is an
integral part and essential feature of the Constitution,
constituting part of its basic structure. Therefore,
ordinarily, the power of the High Court and this Court to
test the Constitutional validity of legislations can
never be ousted or even abridged. Moreover, Article 13
of the Constitution not only declares the pre-
constitution laws as void to the extent to which they are
inconsistent with the fundamental rights, it also
prohibits the State from making a law which either takes
away totally or abrogates in part a fundamental right.
Therefore, judicial review of laws is embedded in the
Constitution by virtue of Article 13 read with Articles
32 and 226 of our Constitution. It is manifest from the
language of Article 245 of the Constitution that all
legislative powers of the Parliament or the State
Legislatures are expressly made subject to other
provisions of the Constitution, which obviously would
include the rights conferred in Part III of the
Constitution. Whether there is a contravention of any of
the rights so conferred, is to be decided only by the
Constitutional Courts, which are empowered not only to
declare a law as unconstitutional but also to enforce
fundamental rights by issuing directions or orders or
writs of or "in the nature of" mandamus, certiorari,
habeas corpus, prohibition and quo warranto for this
purpose. It is pertinent to note that Article 32 of the
Constitution is also contained in Part III of the
Constitution, which enumerates the fundamental rights and
not alongside other Articles of the Constitution which
define the general jurisdiction of the Supreme Court.
Thus, being a fundamental right itself, it is the duty of
this Court to ensure that no fundamental right is
contravened or abridged by any statutory or
constitutional provision. Moreover, it is also plain
from the expression "in the nature of" employed in clause
(2) of Article 32 that the power conferred by the said
clause is in the widest terms and is not confined to
issuing the high prerogative writs specified in the said
clause but includes within its ambit the power to issue
any directions or orders or writs which may be
appropriate for enforcement of the fundamental rights.
Therefore, even when the conditions for issue of any of
these writs are not fulfilled, this Court would not be
constrained to fold its hands in despair and plead its
inability to help the citizen who has come before it for
judicial redress. (per P.N. Bhagwati, J. in Bandhua Mukti
Morcha Vs. Union of India & Ors.23).
33.In this context, it would be profitable to make a
reference to the decision of this Court in Nilabati
Behera (supra). The Court concurred with the view
expressed by this Court in Khatri & Ors. (II) Vs. State
of Bihar & Ors.24 and Khatri & Ors. (IV) Vs. State of
Bihar & Ors.25, wherein it was said that the Court is not
helpless to grant relief in a case of violation of the
right to life and personal liberty, and it should be
prepared "to forge new tools and devise new remedies" for
the purpose of vindicating these precious fundamental
rights. It was also indicated that the procedure
suitable in the facts of the case must be adopted for
conducting the enquiry, needed to ascertain the necessary
facts, for granting the relief, as may be available mode
of redress, for enforcement of the guaranteed fundamental
rights. In his concurring judgment, Dr. A.S. Anand, J.
(as His Lordship then was), observed as under:
"35. This Court and the High Courts, being the
protectors of the civil liberties of the
citizen, have not only the power and
jurisdiction but also an obligation to grant
relief in exercise of its jurisdiction under
Articles 32 and 226 of the Constitution to the
victim or the heir of the victim whose
fundamental rights under Article 21 of the
23
(1984) 3 SCC 161
24
(1981) 1 SCC 627
25
(1981) 2 SCC 493
Constitution of India are established to have
been flagrantly infringed by calling upon the
State to repair the damage done by its officers
to the fundamental rights of the citizen,
notwithstanding the right of the citizen to the
remedy by way of a civil suit or criminal
proceedings. The State, of course has the right
to be indemnified by and take such action as may
be available to it against the wrongdoer in
accordance with law - through appropriate
proceedings."
34.It may not be out of place to mention that in so far
as this Court is concerned, apart from Articles 32 and
142 which empower this Court to issue such directions, as
may be necessary for doing complete justice in any cause
or matter, Article 144 of the Constitution also mandates
all authorities, civil or judicial in the territory of
India, to act in aid of the orders passed by this Court.
35.As regards the power of judicial review conferred on
the High Court, undoubtedly they are, in a way, wider in
scope. The High Courts are authorised under Article 226
of the Constitution, to issue directions, orders or writs
to any person or authority, including any government to
enforce fundamental rights and, "for any other purpose".
It is manifest from the difference in the phraseology of
Articles 32 and 226 of the Constitution that there is a
marked difference in the nature and purpose of the right
conferred by these two Articles. Whereas the right
guaranteed by Article 32 can be exercised only for the
enforcement of fundamental rights conferred by Part III
of the Constitution, the right conferred by Article 226
can be exercised not only for the enforcement of
fundamental rights, but "for any other purpose" as well,
i.e. for enforcement of any legal right conferred by a
Statute etc.
36.In Tirupati Balaji Developers (P) Ltd. & Ors. Vs.
State of Bihar & Ors.26, this Court had observed thus:
"8. Under the constitutional scheme as framed
for the judiciary, the Supreme Court and the
High Courts both are courts of record. The High
Court is not a court "subordinate" to the
Supreme Court. In a way the canvas of judicial
powers vesting in the High Court is wider
inasmuch as it has jurisdiction to issue all
prerogative writs conferred by Article 226 of
the Constitution for the enforcement of any of
the rights conferred by Part III of the
Constitution and for any other purpose while the
original jurisdiction of Supreme Court to issue
prerogative writs remains confined to the
enforcement of fundamental rights and to deal
with some such matters, such as Presidential
elections or inter-State disputes which the
Constitution does not envisage being heard and
determined by High Courts."
37.In Dwarkanath's case (supra), this Court had said that
Article 226 of the Constitution is couched in
comprehensive phraseology and it ex facie confers a wide
power on the High Court to reach injustice wherever it is
found. This Article enables the High Courts to mould the
reliefs to meet the peculiar and extra-ordinary
circumstances of the case. Therefore, what we have said
above in regard to the exercise of jurisdiction by this
26
(2004) 5 SCC 1
Court under Article 32, must apply equally in relation to
the exercise of jurisdiction by the High Courts under
Article 226 of the Constitution.
38.Article 21, one of the fundamental rights enshrined in
Part III of the Constitution declares that no person
shall be deprived of his "life" or "personal liberty"
except according to the procedure established by law. It
is trite that the words "life" and "personal liberty" are
used in the Article as compendious terms to include
within themselves all the varieties of life which go to
make up the personal liberties of a man and not merely
the right to the continuance of person's animal
existence. (See: Kharak Singh Vs. State of U.P.27)
39.The paramountcy of the right to "life" and "personal
liberty" was highlighted by the Constitution Bench in
Kehar Singh (supra). It was observed thus:
"To any civilised society, there can be no
attributes more important than the life and
personal liberty of its members. That is
evident from the paramount position given by the
courts to Article 21 of the Constitution. These
twin attributes enjoy a fundamental ascendancy
over all other attributes of the political and
social order, and consequently, the Legislature,
the Executive and the Judiciary are more
sensitive to them than to the other attributes
of daily existence. The deprivation of personal
liberty and the threat of the deprivation of
life by the action of the State is in most
civilised societies regarded seriously and,
recourse, either under express constitutional
provision or through legislative enactment is
provided to the judicial organ."
27
(1964) 1 SCR 332
40.In Minerva Mills (supra), Y.V. Chandrachud, C.J.,
speaking for the majority observed that Articles 14 and
19 do not confer any fanciful rights. They confer rights
which are elementary for the proper and effective
functioning of democracy. They are universally regarded
by the Universal Declaration of Human Rights. If
Articles 14 and 19 are put out of operation, Article 32
will be drained of its life blood. Emphasising the
significance of Articles 14, 19 and 21, the learned Chief
Justice remarked:
"74. Three Articles of our Constitution, and only
three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the
abyss of unrestrained power. They are Articles
14, 19 and 21. Article 31-C has removed two sides
of that golden triangle which affords to the
people of this country an assurance that the
promise held forth by the preamble will be
performed by ushering an egalitarian era through
the discipline of fundamental rights, that is,
without emasculation of the rights to liberty and
equality which alone can help preserve the
dignity of the individual."
41.The approach in the interpretation of fundamental
rights has again been highlighted in M. Nagaraj (supra),
wherein this Court observed as under:
"This principle of interpretation is
particularly apposite to the interpretation of
fundamental rights. It is a fallacy to regard
fundamental rights as a gift from the State to
its citizens. Individuals possess basic human
rights independently of any constitution by
reason of basic fact that they are members of
the human race. These fundamental rights are
important as they possess intrinsic value. Part-
III of the Constitution does not confer
fundamental rights. It confirms their existence
and gives them protection. Its purpose is to
withdraw certain subjects from the area of
political controversy to place them beyond the
reach of majorities and officials and to
establish them as legal principles to be applied
by the courts. Every right has a content. Every
foundational value is put in Part-III as a
fundamental right as it has intrinsic value. The
converse does not apply. A right becomes a
fundamental right because it has foundational
value. Apart from the principles, one has also
to see the structure of the Article in which the
fundamental value is incorporated. Fundamental
right is a limitation on the power of the State.
A Constitution, and in particular that of it
which protects and which entrenches fundamental
rights and freedoms to which all persons in the
State are to be entitled is to be given a
generous and purposive construction. In Sakal
Papers (P) Ltd. v. Union of India28, this Court
has held that while considering the nature and
content of fundamental rights, the Court must
not be too astute to interpret the language in a
literal sense so as to whittle them down. The
Court must interpret the Constitution in a
manner which would enable the citizens to enjoy
the rights guaranteed by it in the fullest
measure. An instance of literal and narrow
interpretation of a vital fundamental right in
the Indian Constitution is the early decision of
the Supreme Court in A.K. Gopalan v. State of
Madras29. Article 21 of the Constitution provides
that no person shall be deprived of his life and
personal liberty except according to procedure
established by law. The Supreme Court by a
majority held that 'procedure established by
law' means any procedure established by law made
by the Parliament or the legislatures of the
State. The Supreme Court refused to infuse the
procedure with principles of natural justice. It
concentrated solely upon the existence of
enacted law. After three decades, the Supreme
Court overruled its previous decision in A.K.
Gopalan and held in its landmark judgment in
Maneka Gandhi v. Union of India30 that the
procedure contemplated by Article 21 must answer
the test of reasonableness. The Court further
28
AIR 1962 SC 305
29
AIR 1950 SC 27
30
(1978) 1 SCC 248
held that the procedure should also be in
conformity with the principles of natural
justice. This example is given to demonstrate an
instance of expansive interpretation of a
fundamental right. The expression 'life' in
Article 21 does not connote merely physical or
animal existence. The right to life includes
right to live with human dignity. This Court has
in numerous cases deduced fundamental features
which are not specifically mentioned in Part-III
on the principle that certain unarticulated
rights are implicit in the enumerated
guarantees."
42.Thus, the opinion of this Court in A.K. Gopalan
(supra) to the effect that a person could be deprived of
his liberty by `any' procedure established by law and it
was not for the Court to go into the fairness of that
procedure was perceived in Maneka Gandhi (supra) as a
serious curtailment of liberty of an individual and it
was held that the law which restricted an individual's
freedom must also be right, just and fair and not
arbitrary, fanciful or oppressive. This judgment was a
significant step towards the development of law with
respect to Article 21 of the Constitution, followed in a
series of subsequent decisions. This Court went on to
explore the true meaning of the word "Life" in Article 21
and finally opined that all those aspects of life, which
make a person live with human dignity are included within
the meaning of the word "Life".
43.Commenting on the scope of judicial review vis-`-vis
constitutional sovereignty particularly with reference to
Articles 14, 19 and 21 of the Constitution, in I.R.
Coelho (supra), this Court said:
"There is a difference between Parliamentary and
constitutional sovereignty. Our Constitution is
framed by a Constituent Assembly which was not
Parliament. It is in the exercise of law making
power by the Constituent Assembly that we have a
controlled Constitution. Articles 14, 19, 21
represent the foundational values which form the
basis of the rule of law. These are the
principles of constitutionality which form the
basis of judicial review apart from the rule of
law and separation of powers. If in future,
judicial review was to be abolished by a
constitutional amendment, as Lord Steyn says,
the principle of parliamentary sovereignty even
in England would require a relook. This is how
law has developed in England over the years. It
is in such cases that doctrine of basic
structure as propounded in Kesavananda Bharati
case (supra) has to apply."
While observing that the abrogation or abridgement of the
fundamental rights under Chapter III of the Constitution
have to be examined on broad interpretation so as to
enable the citizens to enjoy the rights guaranteed by
Part III in the fullest measure, the Court explained the
doctrine of separation of powers as follows: (SCC p.86-
87, paras 64-66)
"...[i]t was settled centuries ago that for
preservation of liberty and prevention of
tyranny it is absolutely essential to vest
separate powers in three different organs. In
The Federalist Nos. 47, 48, and 51, James
Madison details how a separation of powers
preserves liberty and prevents tyranny. In The
Federalist No. 47, Madison discusses
Montesquieu's treatment of the separation of
powers in Spirit of Laws, (Book XI, Chapter 6).
There Montesquieu writes,
"When the legislative and
executive powers are united in the
same person, or in the same body of
Magistrates, there can be no liberty
... Again, there is no liberty, if the
judicial power be not separated from
the legislative and executive."
Madison points out that Montesquieu did not feel
that different branches could not have
overlapping functions, but rather that the power
of one department of Government should not be
entirely in the hands of another department of
Government.
Alexander Hamilton in The Federalist No.78,
remarks on the importance of the independence of
the judiciary to preserve the separation of
powers and the rights of the people:
"The complete independence of the
courts of justice is peculiarly
essential in a limited Constitution.
By a limited Constitution, I
understand one which contains certain
specified exceptions to the
legislative authority; such, for
instance, that it shall pass no bills
of attainder, no ex post facto laws,
and the like. Limitations of this kind
can be preserved in practice in no
other way than through the medium of
courts of justice, whose duty it must
be to declare all acts contrary to the
manifest tenor of the Constitution
void. Without this, all the
reservations of particular rights or
privileges would amount to nothing."
(434)
Montesquieu finds that tyranny pervades when
there is no separation of powers:
"There would be an end of
everything, were the same man or same
body, whether of the nobles or of the
people, to exercise those three
powers, that of enacting laws, that of
executing the public resolutions, and
of trying the causes of individuals."
The Court further observed: (SCC pg.105, paras 129-
130)
"Equality, rule of law, judicial review and
separation of powers form parts of the basic
structure of the Constitution. Each of these
concepts are intimately connected. There can be
no rule of law, if there is no equality before
the law. These would be meaningless if the
violation was not subject to the judicial
review. All these would be redundant if the
legislative, executive and judicial powers are
vested in one organ. Therefore, the duty to
decide whether the limits have been transgressed
has been placed on the judiciary.
Realising that it is necessary to secure the
enforcement of the Fundamental Rights, power for
such enforcement has been vested by the
Constitution in the Supreme Court and the High
Courts. Judicial Review is an essential feature
of the Constitution. It gives practical content
to the objectives of the Constitution embodied
in Part III and other parts of the Constitution.
It may be noted that the mere fact that equality
which is a part of the basic structure can be
excluded for a limited purpose, to protect
certain kinds of laws, does not prevent it from
being part of the basic structure. Therefore, it
follows that in considering whether any
particular feature of the Constitution is part
of the basic structure - rule of law, separation
of power - the fact that limited exceptions are
made for limited purposes, to protect certain
kind of laws, does not mean that it is not part
of the basic structure."
Conclusions:
44.Thus, having examined the rival contentions in the
context of the Constitutional Scheme, we conclude as
follows:
(i) The fundamental rights, enshrined in
Part III of the Constitution, are
inherent and cannot be extinguished by
any Constitutional or Statutory
provision. Any law that abrogates or
abridges such rights would be violative
of the basic structure doctrine. The
actual effect and impact of the law on
the rights guaranteed under Part III has
to be taken into account in determining
whether or not it destroys the basic
structure.
(ii) Article 21 of the Constitution in its
broad perspective seeks to protect the
persons of their lives and personal
liberties except according to the
procedure established by law. The said
Article in its broad application not
only takes within its fold enforcement
of the rights of an accused but also the
rights of the victim. The State has a
duty to enforce the human rights of a
citizen providing for fair and impartial
investigation against any person accused
of commission of a cognizable offence,
which may include its own officers. In
certain situations even a witness to the
crime may seek for and shall be granted
protection by the State.
(iii) In view of the constitutional scheme and
the jurisdiction conferred on this Court
under Article 32 and on the High Courts
under Article 226 of the Constitution
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. As a
matter of fact, such a power is
essential to give practicable content to
the objectives of the Constitution
embodied in Part III and other parts of
the Constitution. Moreover, in a federal
constitution, the distribution of
legislative powers between the
Parliament and the State Legislature
involves limitation on legislative
powers and, therefore, this requires an
authority other than the Parliament to
ascertain whether such limitations are
transgressed. Judicial review acts as
the final arbiter not only to give
effect to the distribution of
legislative powers between the
Parliament and the State Legislatures,
it is also necessary to show any
transgression by each entity.
Therefore, to borrow the words of Lord
Steyn, judicial review is justified by
combination of "the principles of
separation of powers, rule of law, the
principle of constitutionality and the
reach of judicial review".
(iv) If the federal structure is violated by
any legislative action, the Constitution
takes care to protect the federal
structure by ensuring that Courts act as
guardians and interpreters of the
Constitution and provide remedy under
Articles 32 and 226, whenever there is
an attempted violation. In the
circumstances, any direction by the
Supreme Court or the High Court in
exercise of power under Article 32 or
226 to uphold the Constitution and
maintain the rule of law cannot be
termed as violating the federal
structure.
(v) Restriction on the Parliament by the
Constitution and restriction on the
Executive by the Parliament under an
enactment, do not amount to restriction
on the power of the Judiciary under
Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The
Seventh Schedule on the one hand and
Entry 2A and Entry 80 of List I on the
other, an investigation by another
agency is permissible subject to grant
of consent by the State concerned, there
is no reason as to why, in an
exceptional situation, court would be
precluded from exercising the same power
which the Union could exercise in terms
of the provisions of the Statute. In
our opinion, exercise of such power by
the constitutional courts would not
violate the doctrine of separation of
powers. In fact, if in such a situation
the court fails to grant relief, it
would be failing in its constitutional
duty.
(vii) When the Special Police Act itself
provides that subject to the consent by
the State, the CBI can take up
investigation in relation to the crime
which was otherwise within the
jurisdiction of the State Police, the
court can also exercise its
constitutional power of judicial review
and direct the CBI to take up the
investigation within the jurisdiction of
the State. The power of the High Court
under Article 226 of the Constitution
cannot be taken away, curtailed or
diluted by Section 6 of the Special
Police 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 Special Police Act on the powers of
the Union, cannot be read as restriction
on the powers of the Constitutional
Courts. Therefore, exercise of power of
judicial review by the High Court, in
our opinion, would not amount to
infringement of either the doctrine of
separation of power or the federal
structure.
45.In the final analysis, our answer to the question
referred is that a direction by the High Court, in
exercise of its jurisdiction under Article 226 of the
Constitution, to the CBI to investigate a cognizable
offence alleged to have been committed within the
territory of a State without the consent of that 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. Being the protectors of
civil liberties of the citizens, this Court and the High
Courts have not only 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.
46.Before parting with the case, we deem it necessary to
emphasise that despite wide powers conferred by Articles
32 and 226 of the Constitution, while passing any order,
the Courts must bear in mind certain self-imposed
limitations on the exercise of these Constitutional
powers. The very plenitude of the power under the said
Articles requires great caution in its exercise. In so
far as the question of issuing a direction to the CBI to
conduct investigation in a case is concerned, although no
inflexible guidelines can be laid down to decide whether
or not such power should be exercised but time and again
it has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party
has levelled some allegations against the local police.
This extra-ordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national
and international ramifications or where such an order
may be necessary for doing complete justice and enforcing
the fundamental rights. Otherwise the CBI would be
flooded with a large number of cases and with limited
resources, may find it difficult to properly investigate
even serious cases and in the process lose its
credibility and purpose with unsatisfactory
investigations.
47.In Secretary, Minor Irrigation & Rural Engineering
Services, U.P. & Ors. Vs. Sahngoo Ram Arya & Anr.31, this
Court had said that an order directing an enquiry by the
CBI should be passed only when the High Court, after
considering the material on record, comes to a conclusion
that such material does disclose a prima facie case
calling for an investigation by the CBI or any other
similar agency. We respectfully concur with these
observations.
48.All the cases shall now be placed before the
respective Benches for disposal in terms of this opinion.
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