‘CBI An Independent Agency, West Bengal's Suit Not Maintainable Against Union Govt’: SG Tushar Mehta To Supreme Court

Raising preliminary objections to the maintainability of the suit under Article 131 of the Constitution, Solicitor-General Tushar Mehta told a bench of Justices BR Gavai and Aravind Kumar that no cause of action arose against the central government, arguing that the Central Bureau of Investigation was an independent agency.

He explained that Article 131, which conferred original jurisdiction on the Supreme Court, could only be invoked to settle disputes between federal units of governance, and the enlarged definition of ‘state’ within the meaning of Article 12 would not extend to it, referring to a number of judicial precedents. Then, he argued –

“Article 131 of the Constitution is a remedy for deciding disputes between federal units of governance. No other party can be joined in a suit under Article 131. Here, there is no cause of action against the Union of India because the CBI is an independent agency. The bureau is not a limb of the central government, but the respondent in this suit is the Union of India through the Department of Personnel and Training. The DoPT has nothing to do with registration, investigation, or prosecution of cases by the CBI…If the department cannot direct the registration of a case or setting aside of the registered offence, nor direct the manner of investigation, how will the cause of action arise against it?”

Not only this, but the union government is prohibited from directing or monitoring a CBI probe, the law officer added, pointing to the provisions of the Delhi Special Police Establishment Act, 1946. Although after the Supreme Court’s judgment in Vineet Narain (1997), the central agency was placed under the supervision of the Central Vigilance Commission (CVC), the commission does not supervise the manner of investigation, he said. Invoking 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, the solicitor general argued –

“Even the CVC has only administrative supervision, and not supervision in terms of merit. The idea of Vineet Narain was to bring the Central Bureau of Investigation under the supervision of a separate statutory body and insulate it from the central government. The DoPT has not registered any case, nor can it. Therefore, there is no cause of action and according to the Supreme Court rules, this suit is liable to be dismissed.”

The other ground on which the Union of India raised a preliminary objection was the pendency of collateral proceedings arising out of the same cause of action. He illustrated this point by referring to a pending special leave petition against a 2021 Calcutta High Court verdict directing a CBI investigation into allegations of post-poll violence in 2021. 

 “Can they maintain a proceeding under Article 131 when the same cause of action is pending in collateral proceedings, a fact that has been wilfully and deliberately suppressed? The suit is fraudulent and liable to be dismissed only on that ground. Even if the facts are different but the question of law is the same...the suit is liable to be dismissed on grounds of the principle of res sub judice.”

Additionally, the law officer argued that several of the cases, which the state government had cited in support of its contention about the Central Bureau of Investigation acting without jurisdiction, had been registered on the strength of a direction either by the Calcutta High Court, the Central Vigilance Commission, or the Supreme Court itself. He also pointed out that the Central Bureau of Investigation itself was not impleaded as a party to West Bengal’s original suit.

The SG also said that in the event of the Court holding the suit maintainable, the Union Government proposed to serve interrogatories on the State on how the decision to institute the suit was taken and approved and seeking the relevant files and papers. "A message should go that before highest court of the land, you cannot suppress facts or employ tricks...," he said.

Suit has nothing to do with CBI which is only a repository of the powers conferred by central government: Kapil Sibal

Right at the outset of his submissions, Senior Advocate Kapil Sibal, representing the State of West Bengal took objection to the aspersions cast by the solicitor-general on its motives. “The Union of India, especially in the context of federalism, should not use harsh words about the motive of the state government...calling it mischievous, fraudulent…I did not expect this from my learned friend,” the senior counsel exclaimed.

The main thrust of Sibal’s argument was against SG Mehta’s contention that the Central Bureau of Investigation was completely and statutorily insulated from the central government. While providing a brief historical conspectus of the evolution of the agency, Sibal pointed out that it was originally intended to investigate only corruption cases, although this was later, by an act of the government, extended to penal offences under various legislations. In this connection, he also mentioned that the CBI was formed not by means of a statutory enactment, but through a government notification. Sibal argued –

“My learned friend has said that the CBI is an independent body, having nothing to do with the Union of India. But it is the central government that gives the agency its power to investigate these offences. Our suit has nothing to do with the Central Bureau of Investigation, which is only a repository of that power. It is one thing to say that the CBI’s superintendence is with the Central Vigilance Commission. But it’s quite a different thing to say that the CBI has nothing to do with union government. Of course it does, it was created by the government’s notification. According to Section 4, superintendence, insofar as it relates to matters other than the Prevention of Corruption Act, vests with the central government. Therefore, how can my learned friend say that the CBI has nothing to do with the Union of India? This is another conceptual confusion, which has resulted in this unique argument by the solicitor.”

It was not necessary to implead the Central Bureau of Investigation as a party to these proceedings for the same reasons, Sibal added.

The senior counsel also countered the government officer’s contention that the state government was attempting to either ‘re-litigate’ issues that had already been settled or raise the same issues in a collateral proceeding. “This is a constitutional issue of whether the Central Bureau of Investigation can investigate after consent has been withdrawn under Section 6 of the DSPE Act. The state government does not have the locus to challenge these CBI FIRs in the way that an accused can. The only challenge that the government can make is on grounds that they were lodged after the withdrawal of permission.”

The Central Bureau of Investigation cannot keep investigating after the state government withdrew its consent, Sibal insisted, adding that it was a violation of the principle of federalism that has been recognised as a basic structure of the Constitution. He also said –

“This is not about individual cases, but to an attempt by the central government, through a central agency, to continue the investigation even after the sanction has been withdrawn. So, let’s disabuse ourselves of the notion that what is being sought is quashing of one case or the other. This is a constitutional question about the CBI’s jurisdiction.”

Finally, Sibal deprecated the solicitor-general’s attempt to examine the details of the individual cases that the West Bengal government’s plaint cited. “No relief has been sought against them. It’s incorrect to say so. The illustrations are examples of cases where FIRs were filed after withdrawal. The question of looking into individual cases does not arise at all. The only issue before the court is the ambit of the jurisdiction of the CBI, if at all, in respect of cases registered by it after the state government has withdrawn consent.”

“There has been no attempt to suppress any material facts either,” Sibal added, “Only a few of the cases have been registered on the strength of court orders, which has been indicated by us. As far as court orders are concerned, we have no grievance. We can't. Our grievance is a general jurisdictional issue.”

Sibal stated that the State, in the present proceedings, was not challenging the registration of cases by the CBI based on the orders of the Court, but was questioning its action in registration of cases even after the Government revoked the consent.

The hearing will resume on Thursday, November 23.  A bench headed by Justice L Nageswara Rao issued notice in the suit in September 2021.  

Case Details

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