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. 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 request the police of the other state to provide 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 Saradha case, although there was an order directing the CBI to investigate, 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 Police in relation to the investigation.
In the face of the order, the attempted arrest of the CP was not only illegal but grossly malafide.
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? Let’s wait and watch.
As elections come closer, we can expect to see more and more attacks on the courts and the Constitution.
Update
At 10:35 am today (4 February), the Solicitor General Tushar Mehta mentioned the case before the Bench presided over by the Chief Justice of India for urgent orders. The Solicitor General said that the Kolkata Police Commissioner was attempting to destroy evidence, to which the Chief Justice responded by saying that there was no such evidence in the applications filed. Hence, urgent listing for the day was declined.
In addition to gross violations of the CrPc and court orders, the CRPF was illegally deployed to assist the CBI without requisition from the state concerned, which is a legal requirement for bringing in the CRPF.
The CRPF is meant under law, to assist the civil authorities of the state. But the Centre has made it a habit to directly deploy the CRPF, as they did earlier in Karnataka when the Income Tax authorities raided Shiva Kumar while the Congress MLAs were kept away, and again in Tamil Nadu when the office of the Chief Secretary was searched.
Direct use of armed forces in any state is not permissible under the Constitution of India. The Supreme Court has repeatedly made it clear that the Armed Forces in India of which the CRPF is one, can only be deployed to aid civil authority of a state at the request of the state.
Such is the gross misuse of police powers in this country. When a Police Commissioner is not safe from the threat of arbitrary and illegal arrest, how can we the citizens be safe?
At the time of writing, the applications filed in court have not yet been served to the Standing Counsel for the state of West Bengal.
(Indira Jaising is a senior advocate of the Supreme Court and founder of the legal activism group the Lawyers Collective. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. This article was originally published in The Leaflet.)
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