Team  SoOLEGAL

CALCUTTA HIGH COURT TO CONSIDER THE VALIDITY OF DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 AND FORMATION OF CBI UNDER IT

Team SoOLEGAL 2 Apr 2019 11:16am

CALCUTTA HIGH COURT TO CONSIDER THE VALIDITY OF DELHI SPECIAL POLICE ESTABLISHMENT ACT, 1946 AND FORMATION OF CBI UNDER IT

The Gauhati High Court had declared formation of Central Bureau of Investigation as unconstitutional in the year 2013, thereby quashing the 1963 executive order under which the CBI was formed. This judgment is still pending for consideration by Supreme Court.

Phiroze Edulji expressed doubts whether it would be right for the Single Judge to look into the issues which are raised in the petition. Chief Justice/Acting Chief Justice was requested by him to consider the matter for being dealt by a Special Division Bench or a Special Bench comprising two or more judges for deciding the law involving interpretation of the Constitution of India.

The following questions arose out of the petition before Justice Protik Prakash Banerjee:

1. What is the effect of an order of the Hon'ble Supreme Court which stays the operation of a final order of a Division Bench of a High Court which holds that a Central Statute is not a valid piece of legislation?

2. Whether the Central Bureau of Investigation is an organ or a part of Delhi Special Police Establishment?

3. Whether the Delhi Special Police Establishment Act, 1946 is a valid piece of legislation?

4. Whether admission of special leave petition and stay of a final judgment of the nature referred to above would mean that Hon'ble Supreme Court has declared any law by such interim order of stay?

5. In a Constitution having federal form with distinct feels of legislation apportioned to the federal legislature and/or the federating legislature with corresponding executive power where law and order and their maintenance are part of the power given to the federating states whether a federal police force even for investigation can be made by central legislation without following the procedure established by the Constitution of India for central legislature making laws which would be enforceable in each of the States?

In the opinion of Gauhati High Court, CBI is neither a part nor an organ of Delhi Special Police Establishment. Thus, it cannot be treated as a police force as constituted under Delhi Special Police Establishment Act, 1946.

Justice Banarjee concluded by saying

"I think that these are the questions, which ought to be decided by a bench whose judgment would be binding on all other Courts of this State. Accordingly, I most respectfully request that the matter be placed before the Hon’ble Chief Justice/Acting Chief Justice for His Lordship to consider whether or not to constitute a Special Division Bench or a Special Bench comprising two or more judges for deciding the law involving interpretation of the Constitution of India. Since I am referring the matter as aforesaid it will not be proper for me to consider interlocutory applications which have been taken out before me including CRAN 582 of 2019."

Tagged: Calcutta High Court   CBI   Delhi Special Police Establishment Act  
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