2010 Supreme(SC) 167

2010 (1) Supreme 707
SUPREME COURT OF INDIA
CJI. K.G. Balakrishnan, R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal, JJ.
State of West Bengal & Ors. —Appellants
versus
The Committee For Protection of Democratic Rights, West Bengal & Ors. — Respondents
Civil Appeal Nos.6249-6250 of 2001
Decided on : 17.02.2010

IMPORTANT POINTS
1. The power of judicial review, vested in the Supreme Court and the High Courts under the said Articles of the Constitution, is an integral part and essential feature of the Constitution, constituting part of its basic structure. Therefore, ordinarily, the power of the High Court and this Court to test the Constitutional validity of legislations can never be ousted or even abridged.
2. Any direction by Supreme Court or High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.

Headnote:Constitution of India,1950- Article 226-Issue in consideration whether High Court, in exercise of its jurisdiction under Article 226 of Constitution , can direct the Central Bureau of investigation established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of State Government-Held a direction by High Court, in exercise of its jurisdiction under Article 226 of Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of Constitution nor violate the doctrine of separation of power and shall be valid in law- Being the protectors of civil liberties of the citizens, Apex Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly (Para 45)

        Constitution of India,1950- Article 226-Issue in consideration whether High Court, in exercise of its jurisdiction under Article 226 of Constitution , can direct the Central Bureau of investigation established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of State Government-Held If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation- In the circumstances, any direction by Supreme Court or High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure- Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution- If in terms of Entry 2 of List II of the Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute- Exercise of such power by the constitutional courts would not violate the doctrine of separation of powers- In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty- When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within jurisdiction of the State Police, court can also exercise its constitutional power of judicial review and direct the CBI to take up investigation within the jurisdiction of the State- Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act- Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, restriction imposed by Section 6 of Special Police Act on the powers of Union, cannot be read as restriction on the powers of the Constitutional Courts- Hence held that , exercise of power of judicial review by High Court would not amount to infringement of either the doctrine of separation of power or the federal structure. (Para 44 to 48)

        Judicial Review-Scope and ambit of - In view of constitutional scheme and the jurisdiction conferred on Apex Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of Constitutional Courts with regard to the enforcement of fundamental rights- Such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution- Moreover, in a federal constitution, the distribution of legislative powers between Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed- Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity- Hence , judicial review is justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review” (Para 44)

        Constitution of India,1950- Article 21-Right to life -Article 21, one of the fundamental rights enshrined in Part III of the Constitution declares that no person shall be deprived of his “life” or “personal liberty” except according to the procedure established by law- It is trite that the words “life” and “personal liberty” are used in the Article as compendious terms to include within themselves all the varieties of life which go to make up the personal liberties of a man and not merely the right to the continuance of person’s animal existence (Para 38)

       Facts of the Case :

        Issue which had been referred for the opinion of the Constitution Bench herein in the instant case was whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation established under the Delhi Special Police Establishment Act, 1946 to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government.

       Findings of the Court :

        If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by Supreme Court or High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution. If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. Exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within jurisdiction of the State Police, court can also exercise its constitutional power of judicial review and direct the CBI to take up investigation within the jurisdiction of the State. Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, restriction imposed by Section 6 of Special Police Act on the powers of Union, cannot be read as restriction on the powers of the Constitutional Courts. Hence held that , exercise of power of judicial review by High Court would not amount to infringement of either the doctrine of separation of power or the federal structure.

       Result : Ordered accordingly