Centre moves SC on CBI verdict, to be heard today evening

The Centre today challenged before the Supreme Court the Gauhati High Court order declaring CBI as unconstitutional and sought a stay on it contending that the verdict will adversely impact thousands of criminal cases pending across the country.

The matter will be heard by Chief Justice P Sathasivam at his residence at 4:30 PM.

The lawyer of Navendra Kumar, petitioner before the Gauhati High Court, filed a caveat and went to the residence of the CJI wanting to know whether the Centre's plea would be taken up.

After the return of the CJI from an official function, one of his staff told Kumar's lawyer L S Chaudhary and the waiting media that the CJI will hear the matter at 4:30 PM.

In its appeal, the government sought an urgent hearing against the high court order saying it "directly impacts about nine thousand trials currently underway and about one thousand investigations which are being undertaken by the CBI."

The Special Leave Petition settled by Attorney General G E Vahanvati, said "if the impugned order is not stayed, it will frustrate the law machinery and may result in multiplicity of proceedings."

"The order is already being seized upon by various accused persons in various proceedings in the country to seek a stay of further proceedings against them," the petition drawn by advocate Devadatt Kamat said.

The Centre also contended that the high court has erred in holding that the constitution of CBI was illegal, that the Resolution constituting it needed Presidential assent and that it could not be treated as a police force.

A division bench of Gauhati high court had on November 6 quashed the April 1, 1963 Resolution constituting CBI under the Delhi Special Police Establishment Act, 1946 and declared all its actions unconstitutional.

The Centre said "the impugned judgement has serious ramifications on the functioning of the CBI as it has quashed a fifty-year-old Resolution which had stood the test of time."

"The CBI has been functioning effectively and has a staff of about 6000 people all of whom are engaged in the investigation and prosecution of various cases.

"The said judgment is thus likely to have serious and severe consequences and it is absolutely necessary in the interests of justice and convenience that immediate ad-interim orders be granted staying the said judgment and operation thereof," the petition said.

Terming the high court order quashing the Resolution as "ex facie erroneous, contrary to the express provisions of the Constitution and the DSPE Act", the Centre said it "flies in the face of several judgements of the Supreme Court which had categorically upheld the constitutional validity of the DSPE Act, 1946."

"It is submitted that the apex court in series of decisions has held that the CBI is constituted under the DSPE Act, 1946. In these circumstances the High Court could not have as a matter of judicial discipline and propriety traversed beyond the said decisions and upset the binding nature of the judgements of this Court (Supreme Court) and come to a conclusion that despite the decisions of apex court, the CBI was not constituted under the DSPE Act, 1946," the petition said.

The Centre has urged the apex court to decide various questions of law including whether the high court erred in quashing the Resolution and whether it had failed to appreciate that there was no illegality or unconstitutionality in the Resolution for not having received assent from the President as it had been issued under the Government of India (Transaction of Business) Rules.

It also challenged the high court order saying it had erred in quashing the resolution as not being validly issued and holding that CBI was not constituted under the DSPE Act.

"The high court failed to appreciate that the validity of the DSPE Act had been upheld by the Supreme Court in series of cases and in these circumstances, the CBI set up under the DSPE Act could not be said to be lacking constitutional validity," it said in the petition.

It also termed as exfacie erroneous the high court's observation that CBI could have have been created by way delegated legislation.

"...this is not a case of delegated legislation but that the Central Government has been specially empowered under Section 2 of DSPE Act to constitute a Special Police Force.... High Court erred in observing that the Resolution needed a Presidential assent," the Centre said.

"The High Court erred in coming to conclusion that it is admitted position that no law exists for CBI," it said and added that "the impugned order is otherwise bad in law and deserves to be set aside in limine."

"... Merely because the Resolution does not refer to the DSPE Act, 1946 it is completely wrong to assume that there is no power to issue the Resolution. The Resolution as a matter of fact, mentions about DSPE," the petition said.

It also contended that the high court ruling that observation of the Supreme Court were not binding on the High Court "is ex facie incorrect and against the well settled canons of judicial discipline. On this ground alone, that the impugned order fails to abide by the binding precedents of this Hon'ble Court, the impugned order ought to be set aside."

It said the high court "patently erred" in holding that the Resolution cannot be said to be a decision of the Centre as it was neither produced before the President nor received the accent of the President.

"Section 2 of the Delhi Special Police Establishment Act does not require that the Notification ought to be issued or that it has to receive Assent of the President. Section 2 merely states that 'Central Government may constitute a Special Police Force'," the petition said.

The Petition said under Article 77 of the Constitution all executive actions of the Centre have to be taken in the name of the President.

It also said under the Government of India (Transaction of Business) Rules, which have been framed under Article 77 (3) read with Government of India (Allocation of Business) Rules, the concerned Ministry at the relevant time in 1963 had issued the Resolution.

"It is therefore, submitted that there is no illegality or unconstitutionality as the action taken by the concerned Ministry was in accordance with the Government of India (Transaction of Business) Rules," it said.