By Indira Jaising
WHAT began with an attack on
the powers of the Delhi government to govern in accordance with the
Constitution, has ended with an attack on the West Bengal government to govern
in accordance with the Constitution. The NDA government at the Centre appears
to think that the CBI has the right to destroy the federal character of the Constitution.
When convenient, we are told
that law and order is a state problem, but when it is politically expedient to
interfere with the functioning of a State, the CBI is ever-present in every
state. While Justice Lodha once described the CBI as a “caged parrot”, he could
not have imagined that the consequence of uncaging it would be to destroy the
very federal structure of the Constitution.
India has no “federal crimes”,
only a federal investigating agency. Its powers are subject to the State giving
its consent to investigate a crime within its territory.
In the case of an interstate
crime, the police of a particular State that wants custody of a person, has to
requests the police of the other State to provide police assistance, and obtain
a production warrant from the court where the crime is being investigated.
It is true that the Supreme
Court can, when satisfied that there is good reason to do so, direct the CBI to
investigate a crime in any State.
However, in the Sharada case , although there was an order directing the CBI to
investigate the case, the Court was not monitoring the case and had directed
that all further applications should be made to the High Court.
The Supreme court while doing
so had directed the States to “cooperate” with the investigation, an expression
which must be understood in its ordinary meaning, that is that the State should
facilitate the investigation.
The West Bengal State Police
wrote to the CBI offering cooperation.
However, the CBI issued summons under Section 60 CrPC. The State moved
the Calcutta High Court against the summons against its officers. The Calcutta
High Court kept the summons in abeyance.
While the Calcutta High Court is seized of the
matter, the CBI scooped down to the office of the Kolkata Police Commissioner,
Rajeev Kumar, on a Sunday evening without any warrant of search.
By no stretch of imagination
did it mean that the CBI has the power to make the raid at the office of the
Kolkata Police Commissioner in relation to the investigation, when the High Court is seized of the matter and has
passed an order keeping in abeyance the CBI summons to the Kolkata the police
in relation to the investigation. In the face of the order, the attempted
arrest of the CP was not only illegal but grossly mala fide.
Those who are tasked with the
duty of governing in accordance with the Constitution, have failed us. A
government which believes it represents “the Will of the People” due to its
majority in Parliament, has failed to understand that it governs under a
federal Constitution, where each State is autonomous. Such an attack would
never be made in a State governed by the BJP.
When police systems are
operated for political gain, we live in a police state. It is no wonder that
Anand Teltumbde gets arrested in the face of an order protecting him for four
weeks. It in no wonder that the CBI is being used to curb dissent.
The very existence of the CBI
hangs by a thread of a resolution, undermining the power given to the States to
investigate crime. A challenge to its legality is pending, indefinitely, in the
Supreme Court of India.
The Supreme Court of India
itself is being repeatedly being tested, as in the Rafale case, the Alok Verma
case and now in the West Bengal case. Will it emerge as the guardian of the Constitution?
As elections come closer, we can expect to see more and more attacks on the
courts and the Constitution.(IPA
Service)
Courtesy: The Leaflet
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