The Agency Without Consent

(v) The key distinction, and it is the sentence to memorise. Restriction on Parliament by the Constitution, and restriction on the Executive by Parliament under an enactment, do not amount to restriction on the power of the Judiciary under articles 32 and 226.

(vi) The Union's own power measures the Court's. If, in terms of Entry 2 of List II on the one hand and Entries 2A and 80 of List I on the other, an investigation by another agency is permissible subject to the grant of consent by the State, there is no reason why in an exceptional situation the court should be precluded from exercising the same power which the Union could exercise under the statute; and if in such a situation the court fails to grant relief it would be failing in its constitutional duty.

(vii) The application to section 6. When the Act itself provides that, subject to the consent of the State, the agency may take up an investigation otherwise within the jurisdiction of the State police, the court may also exercise its constitutional power of judicial review and direct the agency to take up the investigation within the jurisdiction of the State. The power of the High Court under article 226 cannot be taken away, curtailed or diluted by section 6 of the Special Police Act. Irrespective of any statutory restriction on the powers of the courts, the restriction imposed by section 6 on the powers of the Union cannot be read as a restriction on the powers of the constitutional courts.

The answer to the reference. A direction by the High Court under article 226 to the agency 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 nor violate the doctrine of separation of powers and shall be valid in law. Being the protectors of the civil liberties of the citizens, the Supreme 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 by article 21 in particular.

Why it matters. It converts section 6 from a wall into a gate that the executive alone must knock at. The State's veto is a veto over the Union, not over the citizen's remedy.

The caution, which most students omit and which the Court put in the same judgment

Immediately after the conclusions the Court set limits:

The power is to be exercised sparingly, cautiously and in exceptional situations, where it becomes necessary to provide credibility and instil confidence in investigations, or where the incident may have national and international ramifications, or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.

And the practical reason, in the Court's own terms. Otherwise the agency would be flooded with a large number of cases and, with limited resources, may find it difficult to properly investigate even serious cases, and in the process lose its credibility and purpose with unsatisfactory investigations.

The threshold. Concurring with Secretary, Minor Irrigation and Rural Engineering Services, U.P. v. Sahngoo Ram Arya, (2002) 5 SCC 521, the Court held that an order directing an enquiry by the agency should be passed only when the High Court, after considering the material on record, comes to a conclusion that the material does disclose a prima facie case calling for an investigation by that agency or a similar one.

An answer that gives the power without the caution has given half the case, and the weaker half. The reasoning of a Constitution Bench that a statutory restriction on the executive is not a restriction on the judiciary is the doctrine; the caution is what stops the doctrine from turning every dissatisfied litigant into a petition for a central investigation.

How the two routes now stand

The executive route. Section 3 notification, section 5 order, and section 6 consent, general or special. Chapters 810 and 820.

The judicial route. A High Court under article 226 or the Supreme Court under article 32, on a prima facie case disclosed by the material, in an exceptional situation, sparingly.

And note what the judicial route does not dispense with. The offence must still be within the section 3 notification, because that is the source of the agency's subject-matter jurisdiction, and it must still be a cognizable offence. The Court removes the consent, which is a restriction on the Union; it does not confer a jurisdiction the statute never gave.

A worked example

A person dies in police custody in a State. The State has withdrawn general consent, and the family alleges that the State police are protecting their own.

The executive route is closed. Without a special consent under section 6 the Establishment cannot exercise powers in that State.

A writ petition under article 226. The High Court examines the material. If it discloses a prima facie case calling for an investigation by the central agency, and the situation is exceptional in the sense the Court described, that is where the credibility of the investigation is in question and the enforcement of article 21 requires it, the Court may direct the agency to investigate, without the State's consent.

Why that is not a breach of federalism. Because on conclusion (v) the restriction that Parliament placed on the Executive is not a restriction on the Judiciary, and on conclusion (iv) the courts are the guardians of the federal structure and a direction to uphold the Constitution cannot violate it.

Change the facts: an ordinary property dispute in which the complainant is dissatisfied with the local police. The direction should be refused. The material must disclose a prima facie case calling for a central investigation, and the power is to be used sparingly and in exceptional situations, or the agency will be flooded and will lose its credibility, which is the Court's own reason.

Change them again: the offence is not one notified under section 3. No direction can supply that. The Court removes the consent barrier; the subject-matter jurisdiction still comes from the notification.

What beginners get wrong

That the Court "overruled" section 6. It did not. Section 6 stands and continues to bind the Union. What the Court held is that it does not bind the constitutional courts.

That any High Court order can transfer any case to the agency. The threshold is a prima facie case on the material and an exceptional situation, and the power is to be used sparingly.

That the direction cures every defect. The offence must still be within the section 3 notification and must be cognizable.

That the case is about federalism defeating the citizen. The Court held the opposite: the courts are the guardians of the federal structure, and a direction to enforce fundamental rights cannot violate it.

That only the Supreme Court can do this. The reference was about article 226, and the answer is expressly about the High Court.

Quick revision

State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571, five judges, 17 February 2010, D.K. Jain J.

Held: judicial review is part of the basic structure and no Act of Parliament can exclude or curtail the constitutional courts' powers in the enforcement of fundamental rights; a direction to uphold the Constitution cannot violate the federal structure; restriction on Parliament by the Constitution, and on the Executive by Parliament, is not restriction on the Judiciary under articles 32 and 226; the court may exercise the same power the Union could exercise under the statute; the power of the High Court under article 226 cannot be taken away, curtailed or diluted by s.6, whose restriction binds the Union and not the courts.

Answer to the reference: a direction under article 226 to investigate a cognizable offence in a State without that State's consent is valid in law, and the courts have an obligation to protect Part III and article 21.

The caution: exercised sparingly, cautiously and in exceptional situations, to give credibility to an investigation, where there are national and international ramifications, or for complete justice and the enforcement of fundamental rights; otherwise the agency would be flooded and lose its credibility. Threshold, per Sahngoo Ram Arya, (2002) 5 SCC 521: the material must disclose a prima facie case calling for such an investigation.

Test yourself

1. Can a High Court direct the Central Bureau of Investigation to investigate an offence in a State that has not consented? Yes. In State of West Bengal v. Committee for Protection of Democratic Rights a Constitution Bench answered the reference by holding that a direction by the High Court, in exercise of its jurisdiction under article 226, to the agency 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 the Constitution nor violate the doctrine of separation of powers, and shall be valid in law.

2. On what reasoning? On four connected propositions. That the power of judicial review is an integral part of the basic structure, so that no Act of Parliament can exclude or curtail the powers of the constitutional courts with regard to the enforcement of fundamental rights. That the courts are themselves the guardians and interpreters of the Constitution and provide the remedy under articles 32 and 226 when the federal structure is violated, so that a direction to uphold the Constitution cannot be said to violate that structure. That a restriction placed on Parliament by the Constitution, and a restriction placed on the Executive by Parliament under an enactment, do not amount to a restriction on the power of the Judiciary under articles 32 and 226. And that since an investigation by the agency is permissible under the statute subject to the State's consent, there is no reason why the court should be precluded, in an exceptional situation, from exercising the same power that the Union could exercise, so that the restriction in section 6 on the powers of the Union cannot be read as a restriction on the powers of the constitutional courts.

3. What limits did the Court place on that power? That it must be exercised sparingly, cautiously and in exceptional situations, where it is necessary to provide credibility and instil confidence in investigations, or where the incident may have national and international ramifications, or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. The Court gave a practical reason, that otherwise the agency would be flooded with a large number of cases and, with its limited resources, might find it difficult properly to investigate even serious cases and would in the process lose its credibility and purpose. It further concurred with Sahngoo Ram Arya that such an order should be passed only where the High Court, after considering the material on record, comes to the conclusion that the material discloses a prima facie case calling for an investigation by that agency or a similar one.

4. Does a direction by a court dispense with every requirement of the Act? No. It dispenses with the consent required by section 6, which the Court held to be a restriction on the Union and not on the courts. It does not confer a subject-matter jurisdiction the statute has not given: the offence must still be one specified in a notification issued by the Central Government under section 3, which is the source of the agency's competence to investigate at all, and it must be a cognizable offence. The Court removed a barrier; it did not create a power.

5. Has section 6 been rendered ineffective by this decision? No, and it is important to say so precisely. Section 6 stands and continues to operate exactly as before against the Union: the Central Government cannot have the Establishment exercise powers in a State, other than a Union territory or railway area, without that State's consent, whether general or special. What the decision establishes is that the section speaks to the executive and not to the constitutional courts, so that the State's power to refuse is a power against the Union and not against a citizen's remedy under articles 32 and 226. The practical effect is that a withdrawal of general consent shifts serious cases from the executive route to the judicial one, where they must meet the higher threshold of a prima facie case and an exceptional situation.