The Centre has told the Supreme Court that West Bengal's power to withhold consent to the Central Bureau of Investigation is not absolute and the probe agency is entitled to carry out investigations that are being carried out against Central government employees or have a pan-India impact.
The Centre submitted an affidavit in response to a lawsuit by the West Bengal government which alleged that the CBI is going ahead with the investigation in post-poll violence cases without securing the pre-requisite nod from the state under the law.
It told the apex court that the Union of India has not registered any case in West Bengal, nor has it been investigating any case.
"Yet, as is evident from the prayers, each and every prayer in the present suit is directed either towards restraining the Union of India from investigating any case or towards quashing cases where the Union of India has allegedly registered FIRs. On the other hand, it is the CBI that has registered FIRs and investigated cases, but strangely, the CBI is not made a party to the suit," the 60-page affidavit filed by the department of personnel and training stated.
The affidavit said that numerous investigations are being carried out against Central government employees or have either pan-India impact or impact on more than one state to investigate such offences.
"It is always desirable and in the larger interest of justice that the central agency conducts the investigation in such cases. In the event of offence being committed by a central government employee or an offence having multi-state or pan-India implication, an investigation made by the central agency would not harm or affect the federal structure or take away the right of the state government to investigate offences within the state's jurisdiction," the DoPT said.
It said the consent of West Bengal was sought for some offences but it is not understood as to why the state government came in the way of such an investigation which would have an inevitable effect of shielding those who are guilty of such multi-state/pan-India offences.
"That the power of the state government to give consent for an investigation by the CBI, cannot and would not include a right of an omnibus power, to pass over-arching sweeping directions not to grant consent in any case and/or withdraw the consent already granted.
"From the very nature of such power, it can be validly exercised only on a case-to-case basis and for good, sufficient, and germane reasons to be recorded by the state government. The power to take a decision not to grant consent in any case to the central agency and/or power to pass a sweeping order withdrawing consent in all cases is an ultra vires exercise of power and is non-est (does not exist)," it said.
Referring to the constitutional scheme, the Centre said the Union List, ie, List I, sets out a large number of entries including defence of India (entry 1), naval, military and air force works (entry 4), arms, firearms, ammunition, and explosives (entry 5), atomic energy and mineral resources (entry 6), as well as among others, duties of customs including export duties (entry 83), duties of excise (entry 84) and so on.
Each one of the Acts passed concerning these entries contains offences, it said.
"The combined result of a reading of these provisions would show that the only authority which can investigate offenses arising from List I laws would be the police forces or investigative agencies of the Union of India. The Delhi Special Police Establishment Act sets up such a force.
"The suit is filed by proceeding on the basis that the power to withhold consent is absolute. This certainly cannot be so for the reasons pointed out above. The result of this discussion is that the CBI is entitled to investigate all offences related to the entries in List 1, where laws made under those entries create offences," the Centre said while seeking dismissal of the suit filed by the state government.
The affidavit stated that the Central Vigilance Commission can give directions to the CBI to discharge the responsibilities entrusted to it and the autonomy of the investigative agency is statutorily maintained and cannot be interfered with even by the Centre.
"However, in light of the fact that in terms of Article 131 of the Constitution, the dispute has to be between the government of India and one or more states, or between states, the plaintiff has used a device by which it excludes the real defendant and substitutes the central government, which has not done anyone of the acts sought to be prevented by the prayers in the suit," it said.
The Centre said that from a combined reading of the Constitution, the relevant entries in the List I, List II and List III, the DSPE Act, and the relevant precedents of the apex court, it cannot be stated that there is a complete embargo on any investigation by the Delhi special police in all situations irrespective of the factual situation.
It said even if the consent is withdrawn by the state government, the power of the DSPE Act to investigate the offences relating to railway areas continues to apply.
The Centre stated that the CBI does not need prior consent from the respective state government before proceeding to investigate its employee, irrespective of the fact whether the concerned employee is within the territorial jurisdiction of the agency to investigate upon or not.