CONSTITUTIONAL LAW

Answering the question, the Court

HELD: 1.1. Article 21 of the Constitution in its broad perspective seeks to
protect the persons of their lives and personal liberties except according
to the procedure established by law. The said Article in its broad
application not only takes within its fold enforcement of the rights of an
accused but also the rights of the victim. The State has a duty to enforce
the human rights of a citizen providing for fair and impartial
investigation against any person accused of commission of a cognizable
offence, which may include its own officers. In certain situations even a
witness to the crime may seek for and shall be granted protection by the
State. [Para 44(ii)] [1025-g-h; 1026-a-b]

Kharak Singh vs. State of U.P. (1964) 1 SCR 332; Kehar Singh & Anr. vs.
Union of India & Anr. 1988 ( 3 ) Suppl. SCR1102= (1989) 1 SCC 204; M.
Nagaraj & Ors. vs. Union of India & Ors. 2006 (7) Suppl. SCR336 =
(2006) 8 SCC 212; Minerva Mills Ltd. & Ors. vs. Union of India & Ors. 1981
( 1 ) SCR 206=(1980) 3 SCC 625; Maneka Gandhi v. Union of India (1978) 1
SCC 248, referred to.

A.K. Gopalan v. State of Madras AIR 1950 SC 27, stood overruled.

1.2. From a bare reading of Entries 2-A and 80 of List I and Entry 2 of
List II of the Seventh Schedule to the Constitution, it is manifest that by
virtue of these entries, the legislative power of the Union to provide for
the regular police force of one State to exercise power and jurisdiction in
any area outside the State can only be exercised with the consent of the
Government of that particular State in which such area is situated, except
the police force belonging to any State to exercise power and jurisdiction
to railway areas outside that State. [Para 18] [1005-f]

1.3. The Delhi Special Police Establishment Act, 1946, which extends to the
whole of India, and whereunder the Delhi Special Police Establishment,
namely, "the CBI" has been constituted, was enacted with a view to
constitute a special force in Delhi for investigation of certain offences
in Union Territories and to make provisions for superintendence and
administration of the said force and for extension to other areas of the
powers and jurisdiction of the members of the said force in regard to the
investigation of the notified offences u/s 3 thereof. The "superintendence"
of the Establishment vests in the Central Government. Although s.5(1) of
the Act empowers the Central Government to extend the powers and
jurisdiction of members of the Delhi Special Police Establishment to any
area in a State, but s.6 imposes a restriction on the power of the Central
Government to extend the jurisdiction of the said Establishment only with
the consent of the State Government concerned. [Para 19 and 22] [1005-g-h;
1006-a-f; 1007-g-h]

Vineet Narain & Ors. vs. Union of India & Anr. 1997 ( 6 ) Suppl. SCR
595= (1998) 1 SCC 226, referred to.

1.4. Restriction on the Parliament by the Constitution and restriction on
the Executive by the Parliament under an enactment, do not amount to
restriction on the power of the Judiciary under Articles 32 and 226 of the
Constitution. [Para 44 (v)] [1027-c]

1.5. If in terms of Entry 2 of List II of the Seventh Schedule on the one
hand and Entry 2-A and Entry 80 of List I on the other, an investigation by
another agency is permissible subject to grant of consent by the State
concerned, there is no reason as to why, in an exceptional situation, court
would be precluded from exercising the same power which the Union could
exercise in terms of the provisions of the statute. Exercise of such power
by the constitutional courts would not violate the doctrine of separation
of powers. In fact, if in such a situation the court fails to grant relief,
it would be failing in its constitutional duty. [Para 44(vi)] [1027-d-f]

1.6. When the Special Police Act itself provides that subject to the
consent by the State, the CBI can take up investigation in relation to the
crime which was otherwise within the jurisdiction of the State Police, the
court can also exercise its constitutional power of judicial review and
direct the CBI to take up the investigation within the jurisdiction of the
State. The power of the High Court under Article 226 of the Constitution
cannot be taken away, curtailed or diluted by s.6 of the Special Police
Act. Irrespective of there being any statutory provision acting as a
restriction on the powers of the courts, the restriction imposed by s.6 of
the Special Police Act on the powers of the Union, cannot be read as
restriction on the powers of the constitutional courts. Therefore, exercise
of power of judicial review by the High Court, would not amount to
infringement of either the doctrine of separation of powers or the federal
structure. [Para 44(vii)] [1027-g-h; 1028-a-b]

1.7. A direction by the High Court, in exercise of its jurisdiction under
Article 226 of the Constitution, to the 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
powers and shall be valid in law. Being the protectors of 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 under Article 21 of the
Constitution in particular, zealously and vigilantly. [Para 45] [1028-d-e]

1.8. In so far as the question of issuing a direction to the CBI to conduct
investigation in a case is concerned, although no inflexible guidelines can
be laid down to decide whether or not such power should be exercised but
time and again it has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party has levelled some
allegations against the local police. An order directing an enquiry by the
CBI should be passed only when the High Court, after considering the
material on record, comes to a conclusion that such material does disclose
a prima facie case calling for an investigation by the CBI or any other
similar agency. This extra-ordinary power must 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. Otherwise, the CBI 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. [Para 46 and 47] [1028-f-h;
1029-a-c]

Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Ors. vs.
Sahngoo Ram Arya & Anr. (2002) 5 SCC 521, referred to.

2.1. In a democratic country governed by a written Constitution, it is the
Constitution which is supreme and sovereign. All organs of the State,
including the Supreme Court and the High Courts, derive their authority,
jurisdiction and powers from the Constitution and owe allegiance to it.
[Para 25] [1008-g]

Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Ors. 2007 (1) SCR317 =
(2007) 3 SCC 184, referred to.

2.2. The Constitution is a living and organic document. It cannot remain
static and must grow with the nation. The Constitutional provisions have to
be construed broadly and liberally having regard to the changed
circumstances and the needs of time and polity. The Constitution of India
expressly confers the power of judicial review on the Supreme Court and the
High Courts under Article 32 and 226 respectively. Judicial review of laws
is embedded in the Constitution by virtue of Article 13 read with Articles
32 and 226 of the Constitution. [Para 29 and 32] [1012-h; 1013-a-b; 1015-d]

2.3. In view of the constitutional scheme and the jurisdiction conferred on
the Supreme Court under Article 32 and on the High Courts under Article
226, the power of judicial review being an integral part and essential
feature of the Constitution constituting its basic structure, no Act of
Parliament can exclude or curtail the powers of the constitutional courts
with regard to the enforcement of fundamental rights. As a matter of fact,
such a power is essential to give practicable content to the objectives of
the Constitution embodied in Part III and other parts of the Constitution.
Moreover, in a federal constitution, the distribution of legislative powers
between the Parliament and the State Legislature involves limitation on
legislative powers and, therefore, this requires an authority other than
the Parliament to ascertain whether such limitations are transgressed.
Judicial review acts as the final arbiter not only to give effect to the
distribution of legislative powers between the Parliament and the State
Legislatures, it is also necessary to show any transgression by each
entity. Therefore, judicial review is justified by combination of "the
principles of separation of powers, rule of law, the principle of
constitutionality and the reach of judicial review". [para 44(iii)] [1026-
c-g]

2.4. It is trite that in the Constitutional Scheme adopted in India,
besides supremacy of the Constitution, the separation of powers between the
legislature, the executive and the judiciary constitutes the basic features
of the Constitution. Nevertheless, apart from the fact that our
Constitution does not envisage a rigid and strict separation of powers
between the said three organs of the State, the power of judicial review
stands entirely on a different pedestal. Being itself part of the basic
structure of the Constitution, it cannot be ousted or abridged by even a
constitutional amendment. Even otherwise, judicial review is essential for
resolving the disputes regarding the limits of constitutional power and
entering the constitutional limitations as an ultimate interpreter of the
Constitution. [Para 26] [1009-e-h; 1010-a-b]

Special Reference No.1 of 1964 [1965] 1 S.C.R. 413; Kesavananda Bharati
Sripadagalvaru vs. State of Kerala & Anr. 1973 Suppl. SCR 1= (1973) 4
SCC 225; Smt. Indira Nehru Gandhi vs. Shri Raj Narain & Anr. 1975 (Supp)
SCC 1; L. Chandra Kumar vs. Union of India & Ors. 1997 (2) SCR1186=
(1997) 3 SCC 261; ; State of U.P. & Ors. vs. Jeet S. Bisht & Anr. 2007 (7 )
SCR705 = (2007) 6 SCC 586; and I.R. Coelho (D) By LRs. vs. State of Tamil
Nadu 2007 (1)SCR706 = (2007) 2 SCC 1, referred to.

Lawson A.W. Hunter & Ors. vs. Southam Inc. (1984) 2 S.C.R.145 (Can SC),
referred to.

Julius Stone: Social Dimensions of Law and Justice (1966) p.668, referred
to.

2.5. It is manifest from the language of Article 245 of the Constitution
that all legislative powers of the Parliament or the State Legislatures are
expressly made subject to other provisions of the Constitution, which
obviously would include the rights conferred in Part III of the
Constitution. Whether there is a contravention of any of the rights so
conferred, is to be decided only by the constitutional courts, which are
empowered not only to declare a law as unconstitutional but also to enforce
fundamental rights by issuing directions or orders or writs of or "in the
nature of" mandamus, certiorari, habeas corpus, prohibition and quo
warranto for this purpose. It is pertinent to note that Article 32 of the
Constitution is also contained in Part III of the Constitution, which
enumerates the fundamental rights and not alongside other Articles of the
Constitution which define the general jurisdiction of the Supreme Court.
Thus, the remedy under Article 32 being a fundamental right itself, it is
the duty of the Supreme Court to ensure that no fundamental right is
contravened or abridged by any statutory or constitutional provision. [Para
32] [1015-d-h; 1016-a-c]

2.6. Moreover, it is also plain from the expression "in the nature of"
employed in clause (2) of Article 32 that the power conferred by the said
clause is in the widest terms and is not confined to issuing the high
prerogative writs specified in the said clause but includes within its
ambit the power to issue any directions or orders or writs which may be
appropriate for enforcement of the fundamental rights. Therefore, even when
the conditions for issue of any of these writs are not fulfilled, the
Supreme Court would not be constrained to help the citizen who has come
before it for judicial redress. [Para 32] [1016-d-e]

Bandhua Mukti Morcha vs. Union of India & Ors. 1984 (2) SCR 67= (1984) 3
SCC 161; Nilabati Behera vs. State of Orissa & Ors. 1993 (2) SCR581=
(1993) 2 SCC 746; Khatri & Ors. (II) vs. State of Bihar & Ors. 1981 (2)
SCR 408= (1981) 1 SCC 627; and Khatri & Ors. (IV) vs. State of Bihar &
Ors. 1981 (3) SCR145= (1981) 2 SCC 493, referred to.

2.7. The fundamental rights, enshrined in Part III of the Constitution, are
inherent and cannot be extinguished by any Constitutional or Statutory
provision. Any law that abrogates or abridges such rights would be
violative of the basic structure doctrine. The actual effect and impact of
the law on the rights guaranteed under Part III has to be taken into
account in determining whether or not it destroys the basic structure.
[Para 44(i)] [1025-e-f]

2.8. Further, in so far as the Supreme Court is concerned, apart from
Articles 32 and 142 which empower it to issue such directions, as may be
necessary for doing complete justice in any cause or matter, Article 144 of
the Constitution also mandates all authorities, civil or judicial in the
territory of India, to act in aid of the orders passed by it. [Para 34]
[1017-f]

2.9. As regards the power of judicial review conferred on the High Court,
undoubtedly they are, in a way, wider in scope. The High Courts are
authorised under Article 226 of the Constitution to issue directions,
orders or writs to any person or authority, including any government to
enforce fundamental rights and, "for any other purpose". It is manifest
from the difference in the phraseology of Articles 32 and 226 that there is
a marked difference in the nature and purpose of the right conferred by
these two Articles. Whereas the right guaranteed by Article 32 can be
exercised only for the enforcement of fundamental rights conferred by Part
III of the Constitution, the right conferred by Article 226 can be
exercised not only for the enforcement of fundamental rights, but "for any
other purpose" as well, i.e. for enforcement of any legal right conferred
by a Statute etc. [Para 35] [1017-g-h; 1018-a-b]

Tirupati Balaji Developers (P) Ltd. & Ors. vs. State of Bihar & Ors. 2004
(1) Suppl. SCR494 = (2004) 5 SCC 1 and Dwarkanath, Hindu Undivided
Family vs. Income-Tax Officer, Special Circle, Kanpur & Anr. [1965] 3
S.C.R. 536, referred to.

3.1. As regards the legislative powers of Parliament and the State
Legislatures, Article 246 of the Constitution of India postulates that
Parliament shall have exclusive power to legislate with respect to any of
the matters enumerated in List I notwithstanding anything contained in
clauses (2) and (3). The non obstante clause in Article 246(1) contemplates
the predominance or supremacy of the Union Legislature. This power is not
encumbered by anything contained in clauses (2) and (3), for these clauses
themselves are expressly limited and made subject to the non obstante
clause in Article 246(1). [Para 15] [1002-e-h; 1003-a]

Kesavananda Bharati Sripadagalvaru vs. State of Kerala & Anr. 1973 Suppl.
SCR 1= (1973) 4 SCC 225; Smt. Indira Nehru Gandhi vs. Shri Raj Narain &
Anr. 1975 (Supp) SCC 1, referred to.

3.2. The exclusive power of the State Legislature to legislate with respect
to any of the matters enumerated in List II has to be exercised subject to
clause (1) i.e. the exclusive power of Parliament to legislate with respect
to matters enumerated in List I. As a consequence, if there is a conflict
between an Entry in List I and an Entry in List II, which is not capable of
reconciliation, the power of Parliament to legislate with respect to a
matter enumerated in List I must supersede pro tanto the exercise of power
of the State Legislature. [Para 15] [1003-b-d]

3.3. Both - Parliament and the State Legislatures - have concurrent powers
of legislation with respect to any of the matters enumerated in List III.
The words "notwithstanding anything contained in clauses (2) and (3)" in
Article 246 (1) and the words "subject to clauses (1) and (2)" in Article
246 (3) lay down the principle of federal supremacy viz. that in case of
inevitable conflict between Union and State powers, the Union power as
enumerated in List I shall prevail over the State power as enumerated in
Lists II and III and in case of an overlapping between Lists II and III,
the latter shall prevail. [Para 15] [1003-d-f]

3.4. Though, undoubtedly, the Constitution exhibits supremacy of Parliament
over State Legislatures, yet the principle of federal supremacy laid down
in Article 246 of the Constitution cannot be resorted to unless there is an
irreconcilable direct conflict between the entries in the Union and the
State Lists. Thus, the broad proposition is that under the Constitution
there is a clear demarcation of legislative powers between the Union and
the States and they have to confine themselves within the field entrusted
to them. It may also be borne in mind that the function of the Lists is not
to confer powers; they merely demarcate the Legislative field. [Para 15]
[1003-e-h]

3.5. If the federal structure is violated by any legislative action, the
Constitution takes care to protect the federal structure by ensuring that
Courts act as guardians and interpreters of the Constitution and provide
remedy under Articles 32 and 226, whenever there is an attempted violation.
In the circumstances, any direction by the Supreme Court or the High Court
in exercise of power under Article 32 or 226 to uphold the Constitution and
maintain the rule of law cannot be termed as violating the federal
structure. [Para 44(iv)] [1026-h; 1027-a-b]

The Management of Advance Insurance Co. Ltd. vs. Shri Gurudasmal & Ors.
1970 (1) SCC 633; Kazi Lhendup Dorji vs. Central Bureau of Investigation &
Ors. 1994 Supp (2) SCC 116; Supreme Court Bar Association vs. Union of
India & Anr. 1998 ( 2 ) SCR 795= (1998) 4 SCC 409; State of Rajasthan &
Ors. vs. Union of India & Ors. 1978 (1) SCR1= (1977) 3 SCC 592; S.R.
Bommai & Ors. vs. Union of India & Ors. 1994 (2) SCR644= (1994) 3 SCC 1;
Kuldip Nayar & Ors. vs. Union of India & Ors. 2006 (5) Suppl. SCR1 =
(2006) 7 SCC 1; and Fertilizer Corporation Kamgar Union (Regd.), Sindri &
Ors. vs. Union of India & Ors. 1981 (2) SCR52= (1981) 1 SCC 568, referred
to.

Case Law Reference:

1970 (1) SCC 633 referred to para 4
1994 Supp (2) SCC 116 referred to para 4
1998 (2) SCR 795 referred to para 8
1978 (1) SCR 1 referred to para 10
1994 (2) SCR 644 referred to para 10
2006 (5) Suppl. SCR 1 referred to para 10
2007 (1) SCR706 referred to para 11
[1965] 1 S.C.R. 413 referred to para 11
1981 ( 1 ) SCR 206 referred to para 11
1981 ( 2 ) SCR 52 referred to para 11
1993 ( 2 ) SCR 581 referred to para 11
1997 ( 2 ) SCR1186 referred to para 11
[1965] 3 S.C.R. 536 referred to para 11
1997 ( 6) Suppl. SCR 595 referred to para 13
2007 (1) SCR317 referred to para 25
1973 Suppl. SCR 1 referred to para 26
1975 (Supp) SCC 1 referred to para 26
2007 (7 ) SCR705 referred to para 27
1988 ( 3) Suppl. SCR1102 referred to para 29
(1984) 2 S.C.R.145 (Can SC) referred to para 29
2006 (7) Suppl. SCR336 referred to para 30
1984 ( 2) SCR 67 referred to para 32
1981 (2) SCR 408 referred to para 33
1981 ( 3) SCR 145 referred to para 33
2004 (1) Suppl. SCR494 referred to para 36
(1964) 1 SCR 332 referred to para 38
(1978) 1 SCC 248 referred to Para 41
AIR 1950 SC 27 stood overruled Para 41
(2002) 5 SCC 521 referred to para 47

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6249-6250 of 2001.

From the Judgment & Order dated 30.03.2001 of the High Court of Calcutta in
Civil Rule No. 1601 (W) of 2001 with writ Petition No. 450 (W) of 2001.