SC stays Gauhati HC order that declared CBI 'unconstitutional'

In a huge relief to the Centre and the Central Bureau of Investigation, the Supreme Court on Saturday stayed the Gauhati high court verdict declaring the agency as "unconstitutional", saying accused in "sensational cases" have sought halting of criminal proceedings based on that judgment.

The apex court relief came on an urgent petition filed by the Department of Personnel and Training, the nodal ministry for the CBI, from a bench headed by Chief Justice P
Sathasivam.

The bench, also comprising Justice Ranjana Prakash Desai, heard the appeal at an extraordinary hearing at the CJI’s residence.

"In the meantime, there shall be a stay of operation of the final judgment and the impugned order dated November 6, 2013 passed by the Gauhati high court," said the bench.

It rejected the objections raised by the counsel for Navendra Kumar -- on whose petition the high court had passed the verdict -- that the DoPT was not authorised to file the Special Leave Petition as it was not a party in the high court.

"Respondent 1 (Kumar) is permitted to raise all objections in his proposed reply," the bench said in its order.

It also asked Kumar’s lawyer L S Chaudhary, who accepted the notice, to file the reply within two weeks, after which the Centre will respond with its rejoinder.

Posting the matter for hearing on December 6, the bench rejected the contention of Kumar's lawyer that the Centre's plea is a "collusive petition" as, instead of the CBI and the ministry of home affairs, it has been filed by the DoPT, which was not a party in the high court.

“The DoPT is an appropriate department. The CBI will file a separate appeal. We can't dismiss DoPT's appeal in limine," the bench said while taking note of Attorney
General G E Vahanvati's submission -- that the CBI and the home ministry will file separate appeals.

Questioning the findings of the high court, the attorney general said the judgment was based on a wrong question and presumptions that led to a wrong conclusion.

"You did not implead proper respondents before the high court," the bench told Kumar's lawyer.

"We read in the newspapers that many people are seeking stay (of proceedings based on this judgment). We have to stay (high court's order). You have read that the two accused in two sensational cases (of CBI) have sought stay of the trial. You file your objections. We will consider everything. Notice does not mean that we are rejecting your plea," it said.

"We are concerned about all other cases (of the CBI)," the bench observed.

After a 10-minute-long hearing, the bench stayed the November 6 verdict of the high court, which had virtually crippled the agency from performing its investigating and prosecuting functions in thousands of cases across the country.

At the outset, Vahanvati said, "It is a serious matter with which the DoPT is concerned and the CBI will file its appeal later."

He contended that the division bench framed "wrong questions and proceeded on wrong presumption and arrived at a wrong conclusion".

The AG questioned the high court’s finding that the CBI is not constituted under the law and created by the central government under the executive order.

He also referred to the findings of the high court which quashed the 1963 Resolution as it does not refer to section 2 of the Delhi Special Police Establishment Act.

At this point, the bench reminded the government's top law officer, "No follow up actions were taken after the Resolution."

The attorney general said "the reasoning given by the high court is unacceptable. It is a total misunderstanding of the principle of administrative law. How does the concept of delegated legislation apply here? This shows complete misunderstanding of the concept of delegated legislation. There is a distinction between delegated legislation and conferment of executive powers."

The bench said, "We will consider (the appeal of the Centre). We will have to go through it."

The AG said the high court’s reasoning -- that the DSPE Act is not applicable to the CBI -- is a "convoluted logic".

Vahanvati said thousands of cases are pending before the CBI.

"I am told there are 9,000 cases pending and there are 6,000 people in the CBI. The judgment came on November 6 and its copy came to us yesterday," he said

The day witnessed hectic activities, with the government first filing its appeal in the court registry and seeking an urgent hearing at the CJI's residence.

The rival side, which had filed the caveat in the matter, also rushed to the CJI's residence.

The CJI’s residence at 5, Krishna Menon Marg was the centre of attention where media personnel, including TV crew and photographers, had been stationed since morning.

The announcement about the evening hearing was made by a staff member of CJI at 12.50 pm.