# STATE OF WEST BENGAL & ORS v. THE COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL & ORS

- **Citation:** [2010] 2 S.C.R. 979
- **Court:** Supreme Court of India
- **Decided:** 2010-02-17
- **Case number:** Civil Appeal Nos. 6249-6250 of 2001
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, D.K. Jain, P. Sathasivam, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-ors-v-the-committee-for-protection-of-democratic-rights-26645
- **Pages:** 51

## Headnote

,1·-.
Constitution of India, 1950:
Articles 32 and 226 rlw Article 21 - Fundamental rights
- Fair and impartial investigation - Judicial Review -
Direction by Supreme Court/High Court to CBI to investigate
A
B
c
a cognizable offence committed within territorial jurisdiction
0
of a State without the consent of the State Government -
HELD: Will neither impinge upon the federal structure of the
Constitution nor will it violate the doctrine of separation of
powers, and shall be valid in law - State has a duty to enforce ·
human rights of a citizen providing for fair and impartial
E
investigation - Constitutional courts can exercise its power of
judicial review and direct CBI to take up investigation within
the jurisdiction of the State - However, this extra ordinary
power must be exercised sparingly, cautiously and in
exceptional situations only when the Court after considering
the material on record ·comes to a conclusion that such
F
material does disclose a prima facie case calling for an
investigation by CBI or any other similar agency - Restriction
on Parliament by the Constitution and on the Executive by
Parliament under an enactment do not amount to restriction
on power of Judiciary under Articles 32 and 226 -
The
G
restriction imposed by s. 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on the
powers of the constitutional courts - Delhi Special Police
Establishment Act, 1946, ss. 3, 5 and 6 - Investigation.
979
H
980
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
Articles 13, 32, 142, 144 and 226 - Judicial Review -
Nature and scope of - HELO: The Constitution expressly
confers the power of judicial review on the Supreme Court and
: High Courts under Articles 32 and 226 respectively - In view
of the constitutional scheme and the jurisdiction conferred on
. B the Supreme Court under Article 32 and on High Courts under
Article 226, the power of judicial review being an integral part
and essential feature of the Constitution constituting its basic
structure, no Act of Parliament can exclude or curtail the
powers of the constitutional courts with regard to the
c enforcement of fundamental rights - Besides supremacy of
the Constitution, separation of powers between Legislature, -·
Executive and Judiciary constitutes basic feature of the
·
Constitution - Nevertheless, judicial review stands entirely on
a different pedestal - Judicial review is essential for resolving
0 the disputes regarding the limits of constitutional power and
entering the constitutional limitations as an ultimate
interpreter of the Constitution - Judicial review of laws is
embedded in the Constitution by virtue of Article 13 read with
'" Articles 32 and 226 of the Constitution - It acts as the final
arbiter not only to give effect to the distribution of legislative
E powers between the Parliament and the State Legislatures, it
is also necessary to show any transgression by each entity -
Significance of and difference between power of Supreme
Court under Articles 32, 142 and 144 and that of High Court
under Article 226 - Explained - Doctrines - Separation of
'F
powers - Basic structure the~ry- Principle of constitutionality.
\
Articles 245 and 246 rlw Seventh Schedule, List I, Entries
2-A a11~ 80 - List II, Entry 2, List Ill and Articles 32 and 226 -
Legislative powers of Parliament and State Legislatures -
G Judicial review of- HELD: The broad proposition is 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 -
However, the words "notwithstanding anything contained in
H
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION
981
OF DEMOCRATIC RIGHTS, WEST BENGAL
clauses (2) and (3)" in Article 246 (1) and the words "subject
A
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
enu

## Text

_Characters 0–39,993 of 99,986. This is a partial read: ask again with offset=39993 for what follows._

[2010] 2 S.C.R. 979
STATE OF WEST BENGAL & ORS.
v.
THE COMMITTEE FOR PROTECTION OF DEMOCRATIC
RIGHTS, WEST BENGAL & ORS.
(Civil Appeal Nos. 6249-6250 of 2001)
FEBRUARY 17, 2010
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN, D.K.
JAIN, P. SATHASIVAM AND J.M. PANCHAL, JJ.]
,1·-.
Constitution of India, 1950:
Articles 32 and 226 rlw Article 21 - Fundamental rights
- Fair and impartial investigation - Judicial Review -
Direction by Supreme Court/High Court to CBI to investigate
A
B
c
a cognizable offence committed within territorial jurisdiction
0
of a State without the consent of the State Government -
HELD: Will neither impinge upon the federal structure of the
Constitution nor will it violate the doctrine of separation of
powers, and shall be valid in law - State has a duty to enforce ·
human rights of a citizen providing for fair and impartial
E
investigation - Constitutional courts can exercise its power of
judicial review and direct CBI to take up investigation within
the jurisdiction of the State - However, this extra ordinary
power must be exercised sparingly, cautiously and in
exceptional situations only when the Court after considering
the material on record ·comes to a conclusion that such
F
material does disclose a prima facie case calling for an
investigation by CBI or any other similar agency - Restriction
on Parliament by the Constitution and on the Executive by
Parliament under an enactment do not amount to restriction
on power of Judiciary under Articles 32 and 226 -
The
G
restriction imposed by s. 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on the
powers of the constitutional courts - Delhi Special Police
Establishment Act, 1946, ss. 3, 5 and 6 - Investigation.
979
H
980
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
Articles 13, 32, 142, 144 and 226 - Judicial Review -
Nature and scope of - HELO: The Constitution expressly
confers the power of judicial review on the Supreme Court and
: High Courts under Articles 32 and 226 respectively - In view
of the constitutional scheme and the jurisdiction conferred on
. B the Supreme Court under Article 32 and on High Courts under
Article 226, the power of judicial review being an integral part
and essential feature of the Constitution constituting its basic
structure, no Act of Parliament can exclude or curtail the
powers of the constitutional courts with regard to the
c enforcement of fundamental rights - Besides supremacy of
the Constitution, separation of powers between Legislature, -·
Executive and Judiciary constitutes basic feature of the
·
Constitution - Nevertheless, judicial review stands entirely on
a different pedestal - Judicial review is essential for resolving
0 the disputes regarding the limits of constitutional power and
entering the constitutional limitations as an ultimate
interpreter of the Constitution - Judicial review of laws is
embedded in the Constitution by virtue of Article 13 read with
'" Articles 32 and 226 of the Constitution - It acts as the final
arbiter not only to give effect to the distribution of legislative
E powers between the Parliament and the State Legislatures, it
is also necessary to show any transgression by each entity -
Significance of and difference between power of Supreme
Court under Articles 32, 142 and 144 and that of High Court
under Article 226 - Explained - Doctrines - Separation of
'F
powers - Basic structure the~ry- Principle of constitutionality.
\
Articles 245 and 246 rlw Seventh Schedule, List I, Entries
2-A a11~ 80 - List II, Entry 2, List Ill and Articles 32 and 226 -
Legislative powers of Parliament and State Legislatures -
G Judicial review of- HELD: The broad proposition is 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 -
However, the words "notwithstanding anything contained in
H
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION
981
OF DEMOCRATIC RIGHTS, WEST BENGAL
clauses (2) and (3)" in Article 246 (1) and the words "subject
A
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 Ill and in case of an overlapping
B
between Lists II and Ill, the latter shall prevail - But, the
principle of federal supremacy laid down in Article 246 cannot
be resorted to unless there is an irreconcilable direct conflict
between the entries in the Union and the State Lists - If the
federal structure is violated by any legislative action, the c
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 - Doctrine of
separation of powers.
o
In the instant appeals and writ petitions, the question
referred for consideration of the Constitution Bench was:
whether the High Court, in exercise of its jurisdiction
under Article 226 of the Constitution of India, could direct
the Central Bureau of Investigation, established under the
E
Delhi Special Police Establishment Act, 1946, to
investigate a cognizable offence, which was alleged to
have taken place within the territorial jurisdiction of a
State, without the consent of the State Government.
F
Answering the question, the Court
HELD: 1.1. 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 G
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
H
982
SUPREME COURT REPORTS
[201 OJ 2 S.C.R.
A 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. [Para
~4(ii)] [1025-G-H; 1026-A-B]
ff .
Kharak Singh vs. State of UP. (1964) 1 SCR 332; Kehar
Singh & Anr. vs. Union of India & Anr. 1988 ( 3 ) Suppl.
. SCR 1102 = (1989) 1 SCC 204; M. Nagaraj & Ors. vs. Union
of :lhdia & Ors. 2006 (7) Suppl. SCR 336 = (2006) 8 SCC
C 212; Minerva Mills Ltd. & Ors. vs. Union of India & Ors. 1981
( 1 ) SCR 206 =(1980) 3 SCC 625; Maneka Gandhi v. Union
of India (1978) 1 SCC 248, referred to.
D
A.K. Gopalan v. State of Madras AIR 1950 SC 27, stood
overruled.
1.2. From a bare reading of Entries 2-A and 80 of List
I and Entry 2 of List II of the Seventh Schedule to the
C~mstitution, it is manifest that by virtue of these entries,
the legislative power of the Union to provide for the
E 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
F jurisdiction to railway areas outside that State. [Para 18]
[1005-F]
1.3. The Delhi Special Police Establishment Act, 1946,
which extends to the whole of India, and whereunder the
Delhi Special Police Establishment, namely, "the CBI" has
G been constituted, was enacted with a view to constitute
a special force in Delhi for investigation of certain
offences in Union Territories and to make provisions for
superintendence and administration of the said force and
for extension to other areas of the powers and
H
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION
983
OF DEMOCRATIC RIGHTS, WEST BENGAL
jurisdiction of the members of the said force in regard to
A
the investigation of the notified offences u/s 3 thereof.
The "superintendence" of the Establishment vests in the
Central Government. Although s.5(1) of the Act empowers
the Central Government to extend the powers and
jurisdiction of members of the Delhi Special Police
B
Establishment to any area in a State, but s.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. [Para 19
and 22] [1005-G-H; 1006-A-F; 1007-G-H]
C
Vineet Narain & Ors. vs. Union of India & Anr. 1997 ( 6
) Suppl. SCR 595 = (1998) 1 SCC 226, referred to.
1.4. Restriction on the Parliament by the Constitution
,: .
and restriction on the Executive by the Parliament under D
an enactment, do not amount to restriction on the power
of the Judiciary under Articles 32 and 226 of the
Constitution. [Para 44 (v)] [1027-C]
1.5. If in terms of Entry 2 of List II of the Seventh
Schedule on the one hand and Entry 2-A and Entry 80 of
List I on the other, an investigation by another agency is
permissible subject to grant of consent by the State
1 concerne~, 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. Exercise
E
F
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
G
failing in its constitutional duty. [Para 44(vi)] [1027-D-F]
1.6. 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
H
984
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A 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
B away, curtailed or diluted by s.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 s.6 of the Special Police Act on the powers
of the Union, cannot be read as restriction on the powers
c of the constitutional courts. Therefore, exercise of power
of judicial review by the High Court, would not amount
to infringement of either the doctrine of separation of
powers or the federal structure. [Para 44(vii)] [1027-G-H;
1028-A-B]
D
1.7. 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
E fecieral structure of the Constitution nor violate the
doctrine of separation of powers and shall be valid in law.
Being the protectors of civil liberties of the citizens, the
Supreme Court and the High Courts have not only the
power and jurisdiction but also an obligation to protect
F the fundamental rights, guaranteed by Part Ill in general
and under Article 21 of the Constitution in particular,
zealously and vigilantly. [Para 45] [1028-D-E]
1.8. In so far as the question of issuing a direction to
G 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
H
STATE OF WEST BENGAL v. COMMITIEE FOR PROTECTION
985
OF DEMOCRAT1C RIGHTS, WEST BENGAL
because a party has levelled some allegations against the
A
local police. 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
B
similar agency. This extra-ordinary power must be
exercised sparingly, cautiously and in exceptio,nal
situations where it becomes necessary to provide
credibility and instil confidence in investigations or where
the incident may have national and international c
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 0
in the process lose its credibility and purpose with
unsatisfactory investigations. [Para 46 and 47] [1028-FH; 1029-A-C]
Secretary, Minor Irrigation & Rural Engineering Services,
U.P. & Ors. vs. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521,
referred to.
2.1. In a democratic country governed by a written
Constitution, it is the Constitution which is supreme and
sovereign. All organs of the State, including the Supreme
Court and the High Courts, derive their authority,
jurisdiction and powers from the Constitution and owe
allegiance to it. [Para 25] [1008-G]
E
F
Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Ors.
G
2007 (1) SCR 317 = (2007) 3 SCC 184, referred to.
2.2. 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
H
, rit
986
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A changed circumstances and the needs of time and polity.
The Constitution of India expressly confers the power of
judicial review on the S\,lpreme Court and the High Courts
under Article 32 and 226 respectively. Judicial review of
laws is embedded in the Constitution by virtue of Article
B 13 read with Articles 32 and 226 of the Constitution. (Para
29 and 32] (1012-H; ~013-A-B; 1015-0]
. 2.3. In view of the constitutional scheme and the
jurisdiction conferred on the Supreme Court under
Article 32 and on the High Courts under Article 226, the
C power of judicial review being an integral part and
~ssential feature of the Constitution constituting its basic
structure, 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,
D such a power is essential to give practicable content to
the objectives of the Constitution embodied in Part Ill and
other parts of the Constitution. Moreover, in a federal
cqnstitution, the distribution of legislative powers
between the Parliament and the State Legislature
E involves limitatio.n on legislative powers and, therefore,
this requires an authority other than the Parliament to
ascertain whether such limitations are transgressed.
Jμdicial review acts as the final arbiter not only to give
effect to the distribution of legislative powers between the
F Parliament and the State Legislatures, it is also necessary
to show any transgression by each entity. Therefore,
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
G review". [para 44(iii)] (1026-C-G]
2.4. 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
H of the Constitution. Nevertheless, apart from the fact th~t
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION 987
OF DEMOCRATIC RIGHTS, WEST BENGAL
our Constitution does not envisage a rigid and strict A
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. Even
B
otherwise, judicial review is essential for resolving the
disputes regarding the limits of constitutional power and
entering the constitutional limitations as an ultimate
interpreter of the Constitution. [Para 26] (1009-E-H; 1010A-B] .
C
Special Reference No.1 of 1964 (1965] 1 S.C.R. 413;
Kesavananda Bharati Sripadagalvaru vs. State of Kera/a &
Anr. 1973 Suppl. SCR 1 = (1973) 4 SCC 225; Smt. Indira
Nehru Gandhi vs. Shri Raj Narain & Anr. 1975 (Supp) SCC
. 1; L. Chandra Kumar vs. Union of India & Ors. 1997 (2)
D
SCR 1186 = (1997) 3 sec 261;; State of UP. & Ors. vs.
Jee(s.· Bisht & Anr. 2007 (7 ) SCR 705 = (2007) 6 SCC 586;
/
and l.R. Coelho (D) By LRs. vs. State of Tamil Nadu 2007
• (1) SCR 706 = (2007) 2 SCC 1, referred to.
Lawson A. W. Hunter & Ors. vs. Southam Inc. (1984) 2
S.C.R.145 (Can SC), referred to.
Julius Stone: Social Dimensions of Law and Justice
(1966) p.668, referred to.
E
F
2.5. 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 cohferred in Part Ill of G
the Ccnstitution. 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 i~suin~ directions or orders or writs
H
l_,
988
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A 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 Ill of the Constitution, which
enumerates the fundamental rights and not alongside
B other Articles of the Constitution which define the
general jurisdiction of the Supreme Court. Thus, the
·remedy unde~ Article 32 being a fundamental right itself,
it is the duty of the Supreme Court to ensure that no
fundamental right is contravened or abridged by any
c statutory or constitutional provision. [Para 32] [1015-D-H;
1016-.A-C]
2.6. Moreover, it is also plain from the expression "in
the nature of' emplo~·ed in clause (2) of Article 32 that the .
power con,ferred by the said clause is in the widest term~
D 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
E any of these writs are not fulfilled, the Supreme Court
would not be constrained to help the citizen who has
come before it for judicial redress. [Para 32] [1016-D-E]
Bandhua Mukti Morcha vs. Union of India & Ors. 1984
F (2) SCR 67 = (1984) 3 SCC 161; Nilabati Behera vs. State
of Orissa & Ors. 1993 (2) SCR 581 = (1993) 2 SCC 746;
Khatri & Ors. (II) vs. State of Bihar & Ors. 1981 (2) SCR 408 =
(1981) 1 SCC 627; and Khatri & Ors. (IV) vs. State of Bihar
G
& Ors. 1981 (3) SCR 145 = (1981) 2 SCC 493, referred to.
2.7. The fundamental rights, enshrined in Part Ill 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
H of the law on the rights guaranteed under Part Ill has to
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION 989
OF DEMOCRATIC RIGHTS, WEST BENGAL
be taken into account in determining whether or not it A
destroys the basic structure. [Para 44(i)] [1025-E-F]
2.8. Further, in so far as the Supreme Court is
concerned, apart from Articles 32 and 142 which
empower it to issue such directions, as may be necessary
8
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 it. [Para 34] [1017-F]
/ 2.9. 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 that there is a marked difference in
c
D
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
E
rights conferred by Part Ill 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. [Para 35] [1017-G-H; 1018-AF
B]
Tirupati Balaji Developers (P) Ltd. & Ors. vs. State of
Bihar & Ors. 2004 (1) Suppl. SCR 494 = (2004) 5 SCC 1
and Dwarkanath, Hindu Undivided Family vs. Income-Tax
Officer, Special Circle, Kanpur & Anr. [1965] 3 S.C.R. 536,
G
referred to.
3.1. As regards the legislative powers of Parliament
and the State Legislatures, Article 246 of the Constitution
of India postulates that Parliament shall have exclusive
H
I
~~
;
"
"
,.
990
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A 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
B anything contained in clauses (2) and (3), for these
clauses themselves are expressly limited and made
subject to the non obstante clause in Article 246(1 ). [Para
15] [1002-E-H; 1003-A]
C
Kesavananda Bharati Sripadagalvaru vs. State of Kera/a
.. & Anr. 1973 Suppl. SCR 1 = (1973) 4 SCC 225; Smt. Indira
Nehru Gandhi vs. Shri Raj Narain & Anr. 1975 (Supp) SCC
1, referred to.
·
3.2. The exclusive power of the State Legislature to
D 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
E II, which is not capable of reconciliation, the power of
Parliament to legislate with respect to a matter
enumer.ated in List I must supersede pro tanto the
exercise of power of the State Legislature. [Para 15] [1. 003B-D]
.
.
F
3.3. Both - Parliament and the State Legislatures -
have concurrent P<?Wers of legislation with respect to any
of the matters enumerated· in List Ill. The words
"notwithstanding anything contained in clauses (2) and
(3)" in Article 246 (1) and the words "subject to clauses
G (1) and (2)" in Article 246 (3) lay down th~" 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 th~· State power as
enumerated in Lists II and HI and/ in case of an
H
•''I
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION 991 ..
OF DEMOCRATIC RIGHTS, WEST BENGAL
overlapping between Lists II and Ill, the latter shall prevail.
A . . ..
[Para 15] (1003-0-F]
3.4. Though, undoubtedly, the Constitution exhibits
supremacy of Parliament over State Legislatures, yet the
principle of federal supremacy laid down in Article 246 of 8 ' .
the Constitution cannot be resorted to unless there is an
irreconcilable direct conflict between the entries in the
Union and the State Lists. Thus, the broad proposition
is that under the Constitution there is a clear demarcation
of legislative powers between the Union and the States
C
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. [Para 15] (1003-E-H]
3.5. If the federal structure is violated by any D
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
E
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. [Para 44(iv)]
[1026-H; 1027-A-B]
F
The Management of Advance Insurance Co. Ltd. vs. Shri
Gurudasmal & Ors. 1970 (1) SCC 633; Kazi Lhendup Dorji
vs. Central Bureau of Investigation & Ors. 1994 Supp (2) SCC
116; Supreme Court Bar Association vs. Union of India & Anr.
1998 ( 2) SCR 795 = (1998) 4 SCC 409; State of Rajasthan
G
& Ors. vs. Union of India & Ors. 1978 (1) SCR 1 = (1977) 3
SCC 592; S.R. Bommai & Ors. vs. Union of/ndia & Ors. 1994
(2) SCR 644 = (1994) 3 SCC 1; Ku/dip Nayar & Ors. vs. Union
of India & Ors. 2006 (5) Suppl. SCR 1 = (2006) 7 SCC 1;
and Fertilizer Corporation Kamgar Union (Regd.), Sindri &
H
; ·~· .. t •
. , ... ·.-::.
992
SUPREME COURT REPORTS
[2010] 2 .s.C.R.
A Ors. vs. Union of India & Ors. 1981 (2) SCR 52 = (1981) 1
sec 568, referred to.
B
c
D
E
F
G
H
Case Law Reference:
1910 (1) sec 633
1994 Supp (2) sec 116
1998 (2) SCR 795
1978 (1) SCR 1
1994 (2) SCR 644
2006 (5) Suppl. SCR 1
2007 (1) SCR 706
[1965) 1 S.C.R. 413
1981 ( 1 ) SCR 206
1981 ( 2 ) SCR 52
1993 ( 2 ) SCR 581
1997 ( 2 ) SCR 1186
[1965) 3 S.C.R. 536
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
1997 ( 6) Suppl. SCR 595
referred to
2007 (1) SCR 317
referred to
1973 Suppl. SCR 1
referred to
1975 (Supp) SCC 1
referred to
2007 (7 ) SCR 705
referred to
1988 ( 3) Suppl. SCR 1102
referred to
(1984) 2 S.C.R.145 (Can SC) referred to
2006 (7) Suppl. SCR 336
referred to
para 4
para 4
para 8
para 10
para 10
para 10
para 11
para 11
para 11
para 11
para 11
para 11
para 11
para 13
para 25
para 26
para 26
para 27
para 29
para 29
para 30
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION
993
OF DEMOCRATIC RIGHTS, WEST BENGAL
1984 ( 2) SCR 67
referred to
para 32
A
1981 (2) SCR 408
referred to
para 33
1981 ( 3) SCR 145
referred to
para 33
2004 (1) Suppl. SCR 494
referred to
para 36
B
(1964) 1 SCR 332
referred to
para 38
(1978) 1 sec 248
referred to
Para 41
AIR 1950 SC 27
stood overruled Para 41
c
(2002) s sec s21
referred to
para 47
CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos.
6249-6250 of 2001.
From the Judgment & Order dated 30.03.2001 of the High
D
Court of Calcutta in Civil Rule No. 1601 (W) of 2001 with writ
Petition No. 450 (W) of 2001.
WITH
W.P. (Crl.) No. 24 of 2008,
SLP (Crl) No. 4096 of 2007,
W.P. (C) No. 573 of 2006.
E
F
G. E. Vahanwati, SG, B. Datta, ASG, K. K. Venugopal,
Shyam Diwan, Uday U. Lalit, P.S. Narasimha, K.
Radhakrishnan, Pravin Parekh, Tara Chandra Sharma, Neelam
Sharma, Ankur Talwar, Kishan Datt, Ejaz Maqbool, Vikash
Singh, Taruna Singh, Wasif Gilani, Amit S. Chauhan, K.
Raghavavacharyulu, Sridhar Potaraju, Julius Riamei, Roshmani,
G
Ch. Shamsuddin Khan, Chinmoy P. Sharma, Rajni Ohri Lal,
B.K. Prasad, P. Parmeswaran, Kalyan Kr. Bandopadhyay, Anip
Sachthey, Mohit Paul, Arijit Prasad, Ranjan Mukherjee, Dhiraj
Trivedi, Maitrayee Trivedi Dasgupta, Hiren Dasan, Dhirendra
Kr. Mishra, Rohit Sohgaura, Amit Sharma, Md. Shakil (for
H
994
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A Sarla Chandra), Sunil Kr. Singh, Jatinder Kumar Bhatia,
Prashant Kumar, Triveni Poteker, Amarjit Singh Bedi for the
appearing parties.
The Judgment of the Court was delivered by
B
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
C 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.
o
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
E 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.
F 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,
numbE:li-ing 50-60, attacked them with firearms and other
explosives, which resulted in a number of casualties. The
G 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
H Indian Penal Code, 1860 (for short "the IPC") read with Sections
STATE OF WEST BENGAL v. COMMITIEE FOR PROTECTION 995 .
OF DEMOCRATIC RIGHTS, WEST BENGAL [D.K. JAIN, J.]
25/27 of the Arms Act, 1959 and Section 9 (B) of the
A
Explosives Act, 1884 was registered only on 5th January, 2001.
On 8th January, 2001, Director General of Police, West Bengal
directed the C.l.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
B
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 c
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 bf the ruling party which
0
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
E
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
F
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.
G
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
H
I
'·
996
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A 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 & Ors1• and Kazi Lhendup Dorji vs.
Central Bureau of Investigation & Ors., 2 the Bench was of the
B 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
c 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, headed by the Hon'ble Chief Justice of
India, on 29th August, 2008, this batch of cases was directep
to be listed before a Constitution Bench. This is how these
0
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
E 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
F enacting any law permitting the police of one State to
investigate an offence committed in another State, withoutthe
consent of that State. It was urged that the Special Police Act
enacteJ !n exercise of the powers conferred under the
Government of India Act, 1935, Entry 39 of List I (Federal
G Legislative List) of the Seventh Schedule, the field now
occupied by Entry 60 of List I of the Seventh Schedule of the
Constitution, replicates the prohibition of police c~ one State
investigating an offence in another State without the consent
1.
1910 (1) sec 633.
H 2.
1994 Supp (2) sec 116.
r
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION 997
OF DEMOCRATIC RIGHTS, WEST BENGAL [D.K. JAIN, J.]
of that State. It was submitted that Entry 2 of List II which
A
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
B
to it by the Constitution and not to act in contravention or
C
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
D
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
E
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
F
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
G
& 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
3. {1988) 4 sec 409.
H
998
SUPREME COURT REPORTS
[201 O] 2 S.C.R.
A 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
B 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
c 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 is done, even such
an extreme situation would not justify the Court upsetting the
0
federal or quasi-federal system created by the Constitution.
9. As regards the exercise of jurisdiction by a High Co-urt
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
E 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
F 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
G 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
H take up the case for investigation.
STATE OF WEST BENGAL v. COMMITTEE FOR PROTECTION 999
OF DEMOCRATIC RIGHTS, WEST BENGAL [D.K. JAIN, J.]
10. Shri Goolam E. Vahanvati, learned Solicitor General
A
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
B
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 c
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
0
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
E
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 Ku/dip Nayar & Ors.