Calcutta HC To Consider Validity Of Formation Of CBI And DSPE Act [Read Order]

Justice Protik Prakash Banerjee noted that these questions arise in the cases before him.

• What is the effect of an order of the Hon'ble Supreme Court which stays the operation of a final order of a Division Bench of a High Court which holds that a Central Statute is not a valid piece of legislation?

• Whether the Delhi Special Police Establishment Act, 1946 is a valid piece of legislation?

• Whether the Central Bureau of Investigation is an organ or a part of Delhi Special Police Establishment?

• In a Constitution having federal form with distinct feels of legislation apportioned to the federal legislature and/or the federating legislature with corresponding executive power where law and order and their maintenance are part of the power given to the federating states whether a federal police force even for investigation can be made by central legislation without following the procedure established by the Constitution of India for central legislature making laws which would be enforceable in each of the States?

• Whether admission of special leave petition and stay of a final judgment of the nature referred to above would mean that Hon'ble Supreme Court has declared any law by such interim order of stay?

After hearing Amicus Curie Phiroze Edulji who expressed his doubt whether it would proper for a single judge to go into the issues raised in this petition on which the appeals will be heard, the Judge requested the Chief Justice/Acting Chief Justice to consider whether or not to constitute a Special Division Bench or a Special Bench comprising two or more judges for deciding the law involving interpretation of the Constitution of India.

I think that these are the questions, which ought to be decided by a bench whose judgment would be binding on all other Courts of this State, said Justice Banerjee.

In 2013, the Gauhati High Court had declared the formation of CBI unconstitutional and quashed the 1963 executive order under which the CBI was formed. This judgment of the Gauhati High Court was stayed by the Apex Court and the matter is still pending consideration.

The Gauhati High Court had held that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946. It had also set aside and quashed the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted.

 Read Order