CBI Independent From Union Govt, West Bengal's Suit Against Centre Not Maintainable : SG Tells Supreme Court

It was in November 2018 when the State government withdrew its consent that allowed the CBI to conduct investigations of cases in West Bengal. The State has contended that despite the revocation of the consent for the central agency under the Delhi Special Police Establishment Act of 1946, the CBI continued to register FIRs in respect of offences which took place within the State. 

The present suit has been filed under Article 131 of the Indian Constitution, which deals with the Supreme Court's original jurisdiction in a dispute between the Centre and one or more states.

A three-long hearing before a bench comprising Justices BR Gavai and Justice Sandeep Mehta witnessed the preliminary objections raised by Solicitor General Tushar Mehta regarding the suit's maintainability under Article 131.

The Solicitor General primarily raised two arguments. First, CBI is an independent legal person and has a separate legal identity outside the Union of India. Second, the suppression of the fact that several FIRs were registered by the CBI pursuant to the orders of the Calcutta High Court.

Based on this, Mehta fervently argued that the suppression of the facts must lead to the dismissal of the suit. Since the State's Special Leave Petitions under Article 136 challenging the HC orders are pending, a similar issue cannot be raised in a suit under Article 131.

“Suppose, if a similar issue is pending, say in SLP, and is also brought by the same party before this Court under Article 131, there is likelihood of conflicting views in the SLP and the suit….So, if there is other jurisdiction under the constitution then original jurisdiction will not be entertained.”

This was said in the context of a pending special leave petition before the Top Court against a 2021 Calcutta High Court verdict directing a CBI investigation into allegations of post-poll violence in 2021.

Union Has Not Registered Any Case In The State 

At the outset, Mehta submitted that Article 131 is the most sacred jurisdiction of the Supreme Court. Taking a cue from this, he said that the principles that would govern entertaining or dismissing the present suit “will have to be examined more rigorously.”

Mehta also argued that the suit has been filed against the Union, however, the latter has not registered any case and the same has been done by the CBI. Reading the reliefs sought under the present suit, Mehta said that they are against the CBI that could not have been made a party under Article 131.

“It is submitted that the Union of India has neither registered any case in the State, neither can it register any case , nor it has been investigating any case. Yet, as it is evident from the prayer…each and every prayer is directed either restraining UOI from investigating any case or quashing any case where UOI has allegedly registered FIRs. On the other hand, as per the pending proceedings, it is the CBI which has registered FIRs and is investigating cases. However, the CBI is not made a party to the suit as obviously made party to the Suit considering the mandate of Article 131.”

He went on to submit that even if the present suit is decreed in favor of the State, the same will remain “unenforceable” against the present defendant, i.e., the Union.

To support this, Mehta relied upon a five-judge bench decision in the State of Bihar v. Union of India wherein, with respect to Article 131, it was observed:

“This is, therefore, an intrinsic circumstance which shows that the founding fathers of the Constitution intended that the dispute should be contained only to the Government of India and the States as a polity or a constituent unit of the republic instead of bringing in dispute raised by the Government run by a particular Council of Ministers which does not pertain to the State as such.”

Subsequently, in the hearing, Mehta also read out the relevant paragraphs of the seven-judge bench decision in the State Of Rajasthan & Ors. Vs Union Of India.

Herein, the Court had opined that the true construction of Article 131(a) is that a dispute must arise between the Union of India and a State. One of the paragraphs highlighted by Mehta was:

“There are two limitations in regard to the nature of the suit which can be entertained by the Supreme Court under this Article. One is in regard to parties and the other is in regard to the subject matter. The Article provides in so many terms in clauses (a), (b) and (c) that the dispute must be between the Government of India and one or more States, or between the Government of India and any other State or States on one side and one or more other States on the other, or between two or more States. It does not contemplate any private,, party being arrayed as a disputant on one side or the other."

CBI's Supervision Is Not With The Union Of India 

Mehta, tried to make his case that CBI is an independent legal person and has a separate legal identity outside the Union of India.

“What is CBI? The argument is that it was created by the Union. So are all the other departments of the Government. There are several union territories created by the government or by the parliament.,” Mehta submitted in this regard.

He strengthened his contention by stating that CBI's supervision is not with the Union of India. The latter cannot supervise either the registration of the offence or investigation of an offence. He supported that same by the provisions of the Delhi Special Police Establishment Act, 1946.

"The CBI is created by a statute. Statute says that the notification will be issued by the Central Government. So is RBI, LIC…so is most of other companies and corporations which are (under Article 12 (State).”

Suppression of Facts Must Lead To Dismissal Of Suit

The second limb of Mehta's arguments was that there was suppression of facts. He argued that the FIRs, as shown in the suits, also contained the ones which were registered by the CBI following the order of the High Court.

"The list contains FIR numbers which are ordered by the High Court of Calcutta. Not only directed by the High Court, the State of WB is in SLP which is pending where they have framed one of the questions of law 'whether absence of consent…CBI has the jurisdiction to proceed with the matter' and arguments on federalism. That has suppressed…. This is not that we missed it, I will show that it is deliberate suppression. Notice would not have been issued but for the fact that this was disclosed.”

In aid of his contention, Mehta also referred to Order XXVI Rule 9 of the Supreme Court Rules of 2013 which lays down the lack of a cause of action as a ground for the dismissal of suits.

Based on this, Mehta contended that the suit ought to be dismissed on a preliminary ground that the basic facts are neither disclosed nor even indicated which would constitute the cause of action. Thereafter, referring to the suit, he took the Bench through the twelve FIRs which were cited as illustrations by the State.

After being asked by Justice Mehta how many were under the High Court's order, the Solicitor General replied, “All, except one or two.” However, Senior Advocate Kapil Sibal(for WB) disputed this, saying that there were only two.

Direction Is Not Being Sought Against The CBI

Though Senior advocate Kapil Sibal, appearing for the State, did not argue at length today, he gave a broad view to the Court about these responses. He briefly countered the arguments advanced by the Union officer. They are as follows:

What Is The CBI?

Sibal, after posing this question to the Bench, said that it is an investigating agency, not a statutory authority. Explaining, he submitted that the CBI is an investigating arm of the government. It is not a statutory authority under a statute like LIC and other statutes. He gave an example of a police that is also not a statutory authority. They are subject to a regulation of a statute, but they are not under a statute., Sibal said and added:

“An investigating agency cannot say on its own that I will investigate you. It has no power. Therefore, consent is necessary before you get entry into the State."

The State Is Not Seeking Direction To The CBI

On the contention of CBI not being a party to the case, Sibal argued that the state is not seeking direction to the CBI.

“I am saying that as long as I withdraw my consent, your investigating agency cannot enter my State. In a federal structure, you cannot do it unless the Court does it Under A 226 of the Indian Constitution.”

“This does not apply, for example under PMLA or the NIA Act. Sao, essentially, there is a structural difference in the context. What is happening in the State is you give a foothold to the CBI in the State and ED enters here…the whole exercise is meant for that. It has huge ramifications on the polity of this Country.,” Sibal added. 

Sibal explained this further with the help of the Delhi Special Police Establishment Act of 1946. Under the Act, the CBI's supervision is with the CVC only in respect of the offences related to the Prevention of Corruption Act.

However, as per Section 4(2) of the Act for all other matters, the superintendence of the CBI vests in the Central Government. “In the administrative structure of the Union of India, the supervision of the police establishment is with the department of personnel and training (DOPT). So, if a question is asked in the parliament about the CBI, who stands up?...the cabinet minister of the DOPT is the prime minister. Seldom does the PM stand up and answer, it is the minister of State.,” Sibal remarked.

CBI Is Not An Independent Agency

On the issue of CBI being an independent agency, Sibal said, “The CBI cannot say that I will not accept what the Union says. I am an independent agency….It will be a shocking statement to make, and the proposition of law should be rejected at the outset.” Elaborating, he said that under Section 3 of the Delhi Special Police Establishment Act, 1946, notification is issued by the Union with respect to the classes of offences that can be investigated by the CBI. Further, under section 5, another notification is issued extending the jurisdiction to the States, and then the State Government provides the consent. What does that have to do with the CBI? Sibal posed.

Relief Under Article 136 Of The Indian Constitution Is Discretionary

Lastly, on the issue of collateral proceedings pending, Sibal contended that while the relief under Article 136 (SLP) of the Indian Constitution is discretionary, the same is mandatory under Article 131. “My submission is that Article 136 jurisdiction is on facts of individual cases and is a discretionary jurisdiction. If you read the plaint and there is a cause of action then the suit will have to proceed.”

The arguments will continue next week.

Case Details: State of West Bengal v. Union of India | Original Suit No. 4 of 2021