Saturday, November 9, 2013

SC stays Gauhati HC's order that declared CBI 'unconstitutional'

Supreme Court stays Gauhati HC's order that declared CBI 'unconstitutional'

The Gist of Stay Order passed by the Hon'ble SC is available at: http://supremecourtofindia.nic.in

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Supreme Court stays Gauhati HC's order that declared CBI 'unconstitutional'


By PTI | 9 Nov, 2013, 04.48 PM IST



 The Centre had challenged before the Supreme Court the Gauhati High Court order declaring CBI as unconstitutional and sought a stay on it.
The Centre had challenged before the Supreme Court the Gauhati High Court order declaring CBI as unconstitutional and sought a stay on it

NEW DELHI: The Supreme Court on Saturday stayed the Gauhati high court's verdict that declared the CBI 'unconstitutional'. The Centre had 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 was 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. 


In its appeal, the government had 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 had 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. 


Courtesy_

http://economictimes.indiatimes.com

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SC stays Gauhati HC's order that declared CBI 'unconstitutional'


TNN | Nov 9, 2013, 04.45 PM IST


NEW DELHI: The Supreme Court on Saturday stayed the Gauhati high court's verdict that declared the CBI 'unconstitutional'. The next hearing is on December 6.


Earlier in the day, the Centre had challenged before the Supreme Court the Gauhati high court order and sought a stay on it contending that the verdict will adversely impact thousands of criminal cases pending across the country.


The matter was heard at the residence of Chief Justice P Sathasivam.


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 GE 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.


Courtesy_

http://timesofindia.indiatimes.com

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Courtesy_
Dinamalar ePaper

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"When the people fear the government, there is tyranny. When the government fears the people, there is liberty." (DOJ: 06-11-2013) (Sh Navendra Kumar Vs. Union of India and another) (I.A. Ansari and Mrs. Indira Shah, JJ) (W. A. No. 119 OF 2008) (Gau HC) (Sources: http://ghconline.gov.in/Judgment/WA1192008.pdf)

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Gauhati High Court sets aside 1963 resolution on CBI formation

GUWAHATI, November 8, 2013

SUSHANTA TALUKDAR

Rules that the agency is neither an organ nor part of the DSPE

The Gauhati High Court has quashed the Union Home Ministry resolution by which the Central Bureau of Investigation was constituted way back in 1963. The court held that the CBI was neither an organ nor part of the Delhi Special Police Establishment and thus could not be treated as a "police force" constituted under the DSPE Act.

In their 89-page judgment, Justices I.A. Ansari and Indira Shah said : "While we decline to hold and declare that the DSPE Act, 1946 is not a valid piece of legislation, we do hold that the CBI is neither an organ nor part of the DSPE and the CBI cannot be treated as a police force constituted under the DSPE Act, 1946."

Though the Division Bench had directed the respondents to produce the original records on creation of the CBI, they just submitted a certified copy of the records from the National Archive.

"However, even a perusal of the entire records makes it clear that the Resolution, dated April 1, 1963, was neither produced before the President, nor did it ever receive the assent of the President. Hence, strictly speaking, the Resolution cannot even be termed the decision of the Government of India. That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE."

Courtesy_

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Centre to challenge High Court verdict on CBI formation

NEW DELHI, November 8, 2013

DEVESH K. PANDEY

Union Law Minister Kapil Sibal told reporters in New Delhi that the Department of Personnel and Training would move the Supreme Court. File photo: Shanker Chakravarty
Union Law Minister Kapil Sibal told reporters in New Delhi that the Department of Personnel and Training would move the Supreme Court. File photo: Shanker Chakravarty

CBI chief Ranjit Sinha on Friday said the agency is seeking urgent action from the Centre in the wake of the Gauhati High Court striking down the resolution through which the CBI was set up. File photo
CBI chief Ranjit Sinha on Friday said the agency is seeking urgent action from the Centre in the wake of the Gauhati High Court striking down the resolution through which the CBI was set up. File photo

Citing Gauhati HC judgment, Raja seeks stay on proceedings but Special Court says 'no'

A day after the Gauhati High Court quashed the Union Home Ministry's resolution by which the Central Bureau of Investigation was constituted in 1963, Union Law Minister Kapil Sibal on Friday said the Centre would file an appeal.

Mr. Sibal told reporters here that the Department of Personnel and Training (DoPT) would move the Supreme Court. The Department discussed the issue with him; thereafter the decision to appeal was made.

The High Court held that the CBI was neither an organ nor part of the Delhi Special Police Establishment, therefore it could not be treated as a "police force" constituted under the DSPE Act.

Several legal experts termed the ruling "hyper-technical.

In the ORF Issue Brief, 'Legally Empowering the Sentinels of the Nation,' written in August 2009, Member of Parliament and Supreme Court lawyer Manish Tewari had nevertheless argued: "Why does not the government enact a straight and simple law empowering the CBI rather than let it function on the basis of a dubious piece of legislation whose basic legality is open to question….the CBI has no independent standing in law."

However, eminent lawyer Anupam Gupta told The Hindu: "I have read the judgment and I do not agree with it at all. The court is alive to the constitutional nuances, but has overlooked the fact that DSPE is synonymous with the CBI and nowhere has it been claimed that it applies to any investigating body other than the CBI. The agency has also never invoked its existence under any law but DSPE, a pre-constitutional statute like several other substantive and procedural statutes including the Indian Penal Code and the Evidence Act. The verdict is over-nuanced and has, in effect, rendered the whole statute redundant."

Meanwhile, the former Telecom Minister, A. Raja, and other accused in the 2G scam case asked for a stay, during proceedings in a Delhi court on Friday, citing the Gauhati High Court ruling.

Lawyer Majeed Memom, appearing for Swan Telecom promoter Vinod Goenka, said going ahead with the proceedings would amount to contempt of court. Counsel for Mr. Raja also raised the issue. However, the Special CBI Judge rejected their pleas.

Courtesy_

Also read the related Editoria in DNA

Caged; now unconstitutional too

Saturday, Nov 9, 2013, 11:20 IST | Agency: DNA

The Gauhati high court judgment rendering the CBI unconstitutional is a warning to the government to play by the rules of democracy.

The Centre has only itself to blame for the Gauhati high court judgment that has put the existence of the Central Bureau of Investigation (CBI) under a cloud. The court ruled that a 1963 Ministry of Home Affairs resolution creating the CBI was unconstitutional and that the CBI could not be treated as a "police force" created under the Delhi Special Police Establishment (DSPE) Act, 1946.

For a long time, the demand for bringing the CBI under its own legislative framework has been under the consideration of the political class. Recently, a Supreme Court bench hearing the coal block allocation case, upset over executive interference, directed the Centre to introduce a bill in Parliament providing statutory cover and functional autonomy for the agency.

The damage-control exercise initiated by the government includes plans to move an appeal in the Supreme Court on Monday challenging the judgment. Meanwhile, Additional Solicitor-General PP Malhotra, who unsuccessfully argued the case before the high court, slammed the judgment as "totally erroneous". Malhotra contended that the Supreme Court had upheld the constitutional validity of the DSPE Act and the CBI through several judgments. But the two-judge Gauhati HC bench ruled that none of the judgments Malhotra cited, including the Taj Corridor case, had pondered whether the CBI was a "constitutionally valid police force". With the judgment also quashing the CBI's chargesheet against the petitioner, high-profile accused in CBI cases will mount stiff legal challenges against the agency. 

While the CBI's predecessor, the DSPE was founded in 1946, and had a mandate to investigate corruption cases, the need for a specialised agency to investigate inter-state crime and serious economic offences was felt. Anticipating opposition from states, since law and order was a state subject, the existing DSPE Act became the vehicle to create the CBI. The DSPE Act, a two-page sketchy statute, offers nothing by virtue of statutory powers or responsibilities to the CBI, its personnel, or its director. Several ills hampering the agency including its inability to take cognizance of offences, register cases or prosecute top officials without government sanction, besides staffing and financial constraints have been blamed on the poorly-defined provisions of this Act.

One area where the judgment stands on weak ground is that Constitution's union list has "Central Bureau of Intelligence and Investigation" as entry number 8. A casual, or logical, reading of this entry would offer justification for the 1963 resolution constituting the CBI and empowering it to investigate offences and file chargesheets. But here, the high court has chosen to go by the Constituent Assembly debates where investigation was interpreted as "enquiry" by the Centre to ascertain the fact of any matter as opposed to the powers of the police to arrest and prosecute. 

In 2010, Congress leader Manish Tewari had questioned the legality of the CBI on some of these points through a private member's bill. Ultimately, this judgment, regardless of its merits, helps reassert the supremacy of Parliament. It has raised serious questions about constitutionality that are best resolved by Parliament rather than the Supreme Court. The 1963 resolution worries about the CBI's creation "being unduly held up" if an Act was to be passed by Parliament and the states consulted. Recent executive orders, bypassing Parliament, that expeditiously created agencies like the UIDAI will also come under the scanner now.

Courtesy_

Also read the FULL Judgment at: http://ghconline.gov.in

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This Blog Spot is meant for publishing landmark judgments pronounced by the Court of law as we collected from the renowned Dailies, Magazines, etc., so as to create an awareness to the general public and also to keep it as a ready reckoner by them. As such the readers may extend their gratitude towards the Original Author as we quoted at the bottom of each Post under the title "Courtesy/Sources". Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.



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