Attorney General G E Vahanvati said the high court judgment, if allowed, would have far-reaching consequences and should, therefore, be stayed immediately. He added CBI was investigating a thousand important cases and about 9,000 trials were underway. The chief justice agreed the matter should be looked into and a stay order should be passed. He said within just two days of the high court ruling, those accused in two sensational cases had reportedly moved courts for a stay on their prosecutions.
The lawyer for original petitioner in the high court said the court shouldn’t go by newspaper reports. He added the government’s appeal was “collusive” and the affected parties—CBI and the home ministry—hadn’t appealed.
The chief justice said arguments from all parties would be heard on December 6. The high court petitioner, Navendra Kumar, can file a response to the appeal within two weeks and the government can reply to it within the next two weeks.
The attorney general said the high court had raised “two wrong questions and gave two wrong answers to those”. On the first—whether CBI was constitutionally constituted—he said the government had the power under the Delhi Special Police Establishment Act to raise a police force. The second question was whether it could be created by a mere resolution. The counsel said it could be done, adding this was an exercise of statutory power. “There was complete misunderstanding of the ordinary laws,” Vahanvati told the bench which included Ranjana Desai.
He added in at least five judgments, the Supreme Court has upheld the constitutionality of CBI and it had referred several cases to the agency for investigation. Hence, the high court should not have passed a contrary order.
In the Centre’s special leave petition, drafted overnight due to the embarrassment caused to the government, it stated the high court order quashing the resolution was “ex facie erroneous, contrary to the express provisions of the Constitution and the DSPE Act”. It said the high court judgment “flies in the face of several judgments of the Supreme Court, which had categorically upheld the constitutional validity of the DSPE Act, 1946.”
Supreme Court judgments on CBI’s constitutionality
State of West Bengal & Ors vs Committee for Protection of Democratic Rights, West Bengal of 2010
“In the final analysis, our answer to the question referred is a direction by the high court, in exercise of its jurisdiction under Article 226 of the Constitution, to 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 the Constitution nor violate the doctrine of separation of power and shall be valid in law.”
Bhavesh Jayanti Lakhani versus State of Maharashtra & Ors of 2009
“We may notice that by reason of the Government of India’s resolution dated 01.04.1963, the CBI was empowered to conduct investigation with regard to coordination, Inter-State matters and participation as: the National Central Bureau in the work connected with the INTERPOL thereby presupposing the non-requirement of concerned State’s consent.”
Vineet Narain vs Union of India of 1997
“For all practical purposes, the jurisdiction in respect of all such offences is exercised in the consenting states only by the CBI and not the state police ... technically the additional jurisdiction under the general law of the state police in these matters is of no practical relevance.” This was with respect to the jurisdiction of the CBI on investigating crimes in states.