INDIA BUSINESS WORLD - APRIL 2007
The Month that was ...

SC HAS POWER TO ORDER CBI PROBE

THE centre on Wednesday backed the judicial order of CBI inquiry even without the consent of the states. Such orders are not against the principle of federalism contained in the constitution, said the Centre.

The additional solicitor general, appearing for centre, told a bench comprising Justice C K Thakker and Justice Altamas Kabir, "The court has inherent power under the constitution to direct a CBI inquiry even without the consent of states".

Under Article 142 of the constitution, the apex court has inherent power to direct such an inquiry. Such power cannot be fettered by any statutory provision, said Subramanium.

Section 6 of the Delhi Special Police Establishment Act, 1946, is an enabling provision for Union of India to get consent of states. It does not in any way come in the way of inherent power of the court, said Subramanium.

The satisfaction of the court that a situation is arisen where the CBI inquiry is essential, is the guiding principle and not any statutory provision, said Subramanium.

Senior counsel Harish Salve, appearing for UP Chief Minister Mulayam Singh Yadav's son and MP Akhilesh Yadav, had said that under Section 6 of the Delhi Special Police Act under which the CBI is constituted, the agency cannot take up investigations without the prior consent of the state government.

Subramanium also sought dismissal of the stand of Mulayam and his family members seeking revision of the apex court March 1 order directing a CBI inquiry on the ground that the issue of whether the court is competent to order such an inquiry without consent of state being referred to a five judge constitution bench.

"On many occasions, the courts have rejected such pleas. Against that backdrop, the order for a CBI inquiry cannot be deferred till the constitution bench gives its verdict," said Subramanium.

Subramanium said that in the larger public interest, the issue has to be examined. "If the court is satisfied that the state's consent is not coming and the state police machinery will not play a fair role on the matter, is it powerless to order the inquiry by an independent investigating agency?" queried Subramanium.

"Restraining the court of such power will lead to dangerous consequences. The rule of law cannot be established in the country if such a proposition was to be accepted," said Subramanium.

Subramanium also pointed out that the Akhilesh Yadav, who is currently an MP and Mulayam Singh Yadav, for some time acted as central servants. "CBI does not require any prior consent to probe against public servants serving the Central Government" said Subramanium.

However, for state officials, the consent of concerned state government is required, said Subramanium.