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Attack on federalism

CBI’s provocative action in Kolkata comes in direct conflict with the basics of the Constitution as it disrespects the autonomy of the states

Attack on federalism

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 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, CBI is ever-present in every state. While Justice Lodha once described 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 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 a 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 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 – the state should facilitate the investigation.

The West Bengal State Police wrote to CBI offering cooperation. However, CBI issued the summons under Section 60 CrPC. The state moved Calcutta High Court opposing the summons against its officers. The Calcutta High Court kept the summons in abeyance.

While the Calcutta High Court is seized of the matter, 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 CBI has the power to raid 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 the CBI summons to the Kolkata police in relation to the investigation in abeyance. 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 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. And, it is no wonder that 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 crimes. A challenge to its legality is pending, indefinitely, in the Supreme Court of India.

The Supreme Court of India itself is being repeatedly 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? As elections come closer, we can expect to see more and more attacks on the courts and the Constitution.

(Courtesy: The Leaflet. The author is an advocate. The views expressed are strictly personal)

Indira Jaising

Indira Jaising

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