Indira Jaising

| @IJaising | February 4,2019

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.

 

 

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.

 

 

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.

 

 

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 1035 am today, the Solicitor General Tushar Mehta mentioned the case before the Bench presided over by the Chief Justice of India for urgent orders. The round of urgency 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.

 

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.

 

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.

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N.S.Thampidamodardas subodhdas deshaabhimaaniA K JainMahendra nath BalaPrabhakaran.MA.M.COM.PGPR.PGOM. Recent comment authors
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Advocate Namrata shrey
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Advocate Namrata shrey

It’s shameful how a witness can be tortured and investigated brutally stigmating like an accused.
CBI is encroaching upon the powers of hon . Supreme court.

Prakhar Dixit
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Beautifully summed up by IJ Ma’am.Center has gone ahead with the arrest of none other than a Police Commissioner.As if Police Commissioner is a habitual offender and a bad character.Whole exercise ends up in not only straining the Center state relations but also puts a lot of stress on Quasi Federal structure of our country.

Samsundaram
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Samsundaram

Modigovernment is very rash and arrogant in dealing with the opposition and abnormally silent when it comes to their own party. People are silently watching their moves. Their only strength seems to be EC and the EVMs. So they are not caring people ‘s opinions. But will soon swallow the same pill very soon .

Kashinath Mishra
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Kashinath Mishra

No doubt Union Govt is acting as a cat out of bag.

Sourav Das
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Sourav Das

Good article. Thank you for making things crystal clear Ma’am.

Abcd
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Abcd

Moreover, stopping the BJP from holding rallies is very good for democracy and is good governance

Gokul Vannan
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Gokul Vannan

Thanks for the article mam, it gives clear perspective.

Rajan
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Rajan

Very timely and factual, such truthful exposure is a necessity in the face gross misutilization and transgression by Modi Government and it’s reliance in immense propaganda through subservient national media.

Prabhakaran.MA.M.COM.PGPR.PGOM.
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Who is Scansion Authority to Arrest Police Commissioner in Criminal Case ? then CBI can Arrest Police Commissioner without Scansion from next higher Authority,U/S 197 said Scansion must Govt servant other then theft and Robbery and burn and damaging Public Property, However in Bangalore Kamakshipalya Police arrest Govt servant during g his duty without Scansion from CPMG then produce Judge house get warrant under the Ground Police beat Govt servant midnight 12 PM.this case related Rs 10000/ misappropriation same return with interest and Penal interest before investigate case but As for CVC not file Police case up to one lakhs… Read more »

Mahendra nath Bala
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Mahendra nath Bala

Very nicely elaborated which enhaced our knowledge on the issue. Thank you.

A K Jain
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A K Jain

Very balanced matured and bold view point expressed in this article. We must congratulate and thank the author. I feel satisfied that in our country at least some people still are there to educate the system.

damodardas subodhdas deshaabhimaani
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damodardas subodhdas deshaabhimaani

all investigations by police forces of any kind including cbi are to be conducted under the code of criminal procedure. the code has detailed provisions for each act to be undertaken by an investigating officer. when police from one jurisdiction wish to do anything in another jurisdiction, they are bound to fallow the provisions of the code of criminal procedure. this is what section 160 says 160. Police officer’ s power to require attendance of witnesses. (1) Any police officer, making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being… Read more »

N.S.Thampi
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Unfortunarely , the general literate public are not well informed about the limited power of CBI for investigating allegations of corruption against any one anywhere in any state. The specific ned to have a direction from the supreme court and the coooperation of the state government are not well knomwn. The public , in general ,feel that CBI is a constitutional authority like the Election Commision and can act independently without governments and court directions and consent. This has happened because of the continuous congress goverment at the centre for a long period in the beginning and their creation of… Read more »

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