Feb.19 : After a ruling by a five-judge Constitution Bench of the Supreme Court headed by Chief Justice K.G. Balakrishnan on Wednesday, the Supreme Court or a high court can order the Central Bureau of Investigation to probe a cognisable offence allegedly committed within the territory of a state without seeking the consent of that state. This is a pathbreaking interpretation that is likely to be widely welcomed, although it is conceivable that some political parties or state governments might be uncomfortable with it.

The Constitution Bench was disposing of a batch of cases filed by the West Bengal government and some others challenging CBI probes ordered by high courts in those states. Typically, political parties running state governments resist demands for a CBI investigation into actions of their ministers and top bureaucrats that constitute a cognisable offence even if an alleged offence violated the fundamental rights of a citizen. On the other hand, they have often shown alacrity in seeking CBI investigation into allegations involving their political opponents who have held power prior to them. These instances point to freewheeling vendetta politics — arguably a bane of our system — and the easy proclivity to cover up serious violations of the law even if damage was caused to a citizen’s rights or to the state exchequer. It was possible to take this course because under the law, as understood so far, the permission of a state was needed to institute an inquiry by the CBI as the latter is a Central investigation agency while law and order is a state subject in the Indian Constitution. The fresh reading of the law by the Supreme Court alters the situation radically. Not waiting for a state government to take the initiative, a citizen is now free to approach the higher judiciary to seek a CBI probe. Digging up the facts by the national investigating body is typically sought when an affected party does not have faith in the impartiality of the state authorities. In delivering its judgment which marks a departure, the Supreme Court bench has essentially relied on according primacy to the notion of fundamental rights as enshrined in the Constitution. These are deemed to be integral to the basic structure of the Constitution. The Supreme Court and the high courts are protectors of the civil liberties of citizens, and have not only the power and jurisdiction but also the “obligation” to protect the fundamental rights “zealously and vigilantly”, the Constitution Bench observed. It underlined that ordering a CBI probe without a state government’s consent will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of powers “and shall be valid in law”.It is not unlikely that the political class, or sections of it, might join issue with the Constitution Bench, especially on the question of separation of powers as between different organs of the State. Political parties are yet to respond to the Supreme Court’s ruling. In passing, a Congress spokesman has been quoted on  television as saying that his party welcomed the new articulation. But that cannot be deemed to be the settled view of the party. The Budget Session of Parliament, which opens next week, will provide opportunities to the political spectrum to respond to the Supreme Court if it has a mind to do so. In addition to questions concerning separation of powers or the essence of fundamental rights that can come up for debate, some may be inclined to wonder — in line with what the highest court has just said — if the higher judiciary can also oblige the Centre to get a matter examined by the CBI if an allegation of a cognisable offence is involved.