New Delhi, Feb. 17: The Supreme Court on Wednesday held that no express permission is required from the state governments for transferring cases to the Central Bureau of Investigation as it is obligatory of the judiciary to use such powers to protect the

fundamental rights of citizens. The significant ruling sets at rest the controversy over the high judiciary’s power to order a CBI inquiry into any case registered by the state police.

A five-judge Constitution Bench dismissed the argument of the states that transferring of cases by the Supreme Court, or the high courts, to the CBI without their "express" consent would amount to tampering with the "federal structure" of the country.

"There is no reason as to why, in an exceptional situation, the court would be precluded from exercising the same power which the Union could exercise in terms of the provision of a statue. In our opinion, exercise of such power by the constitutional courts (Supreme Court and high courts) would not violate the doctrine of separation of powers," the bench ruled while deciding a long-standing issue raised by the states from time to time whenever the high courts had transferred cases to the CBI.

The bench, comprising Chief Justice of India K.G. Balakrishnan and Justices R.V. Raveendran, D.K. Jain, P Sathasivam and J.M. Panchal, went a step further to hold that if in an extraordinary situation the higher judiciary failed to transfer the probe to the Central agency, "it would be failing in its constitutional duty".

In fact such powers had been given to the Supreme Court under Article 32, and to the high courts under Article 226, of the Constitution to "protect" the fundamental rights of the citizen, and any violation of the "federal structure" by any legislative action, or even if any attempt was made in this regard.

"In these circumstances, any direction by the Supreme Court or the high courts in exercise of powers under Article 32 or Article 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure," the Supreme Court ruled.

The bench reminded the states that as the protector of the Constitution as well as civil liberties of citizens, the Supreme Court and the high courts "have not only powers and jurisdiction but also an obligation to protect the fundamental rights, guaranteed in Part III in general, and in Article 21 of the Constitution in particular, zealously and vigilantly."

But the bench at the same time cautioned the high courts against using the power in a routine manner and said they must keep certain self-imposed limitations. "This extraordinary 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," said the bench in a 50-page verdict of great significance.

Dwelling on how the federal structure should ideally function, the Supreme Court said the distribution of legislative powers between Parliament and 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 such distribution of powers but to prevent any transgression by each entity."

The important constitutional question arose form a petition initially filed by the West Bengal government in 2001 challenging the Calcutta high court ordering a CBI inquiry into the massacre of 11 people in Midnapore district on January 4 the same year. There were allegations that the attackers, in a group of 50-60, were CPI(M) activists who had targeted "sympathisers" of Opposition parties.

The high court transferred the case to the CBI after three months, concluding that no fair investigation was possible by the state police, which was under the "influence" of the Left Front government. Several states had joined the issue later to challenge the power of high courts to order CBI investigations. The West Bengal government raked up the issue again in the Singur firing case when the high court ordered the CBI to probe it.

Among the major cases with political dimensions where the high judiciary had ordered a CBI inquiry without state government consent are the Taj Corridor case against BSP supremo Mayawati, the assets cases against Ms Mayawati and SP leader Mulayam Singh Yadav, the Moga sex scandal probe against some Punjab politicians, the Deo Karan Cane case in Uttarakhand and the Janardhan Reddy case.

After laying down the law and setting at rest the controversy, the Supreme Court directed that its different benches would hear these cases now in a routine manner to decide them on merit.

S.S. Negi