SC has power to order CBI probe without state consent: Centre

NEW DELHI: The centre on Wednesday backed the judicial order of CBI inquiry even without the consent of the states. Such order is not against the principle of federalism contained in the constitution, said the Centre.

The additional solicitor general, appearing for centre, told a bench comprising Justice C K Thakker and Justice Altamas Kabir, “the court has inherent power under constitution to direct a CBI inquiry even without consent of the states”.

Under Article 142 of the constitution, the apex court has inherent power to direct such an inquiry. Such power cannot be fettered by any statutory provision, said Subramanium. Section 6 of the Delhi Special Police Establishment Act, 1946, is an enabling provision for Union of India to get consent of states. It does not in any way comes in the way of inherent power of court, said Subramanium.

The satisfaction of the court that a situation is arisen where the CBI inquiry is essential, is the guiding principle and not any statutory provision, said Subramanium.

Senior counsel Harish Salve, appearing for UP Chief Minister Mulayam Singh Yadav’s son and MP Akhilesh Yadav, had said that under Section 6 of the Delhi Special Police Act under which the CBI is constituted, the agency cannot take up investigations without the prior consent of the state government.

Subramanium also sought dismissal of the stand of Mulayam and his family members seeking revision of the apex court March 1 order directing a CBI inquiry on the ground that the issue of whether the court is competent to order such an inquiry without consent of state has been referred to a five-judge constitution bench.

“On many occasions, the courts has rejected such pleas. Against that backdrop, the order for a CBI inquiry cannot be deferred till the constitution bench gives its verdict,” said Subramanium.

Subramanium said that in the larger public interest, the issue has to be examined. “If the court is satisfied that the state’s consent is not coming up and the state police machinery will not play a fair role on the matter, is it powerless to order for the inquiry by an independent investigating agency?” querried Subramanium.

“Restraining the court of such power will lead to bad dangerous consequences. The rule of law cannot be established in the country if such a proposition was to be accepted” said Subramanium.

Subramanium also pointed out that the Akhilesh Yadav who is currently an MP and Mulayam Singh Yadav for some time acted as central servant. “CBI did not require any prior consent to probe against public servants serving the Central Government” said Subramanium.

However, for state officials, the consent of concerned state government is required, said Subramanium. At this the court asked whether UP has given any consent in this regard. By a notification dated August 23, 1990, UP has consented for such provision, informed Subramanium.

Subramanium justifying apex court order directing a CBI inquiry said that in DA cases, cases are not registered at first instance. This expalins why the apex court in its March 1 order talks about Prelimianary Enquiry.

However, Subramanium said that the centre has no objection if the apex court modified its earlier order and gave a fresh direction for submission of the inquiry report to any other forum other than the Union Government.

The court in its order had asked CBI to submit a report after conducting PE to centre who was to take appropriate steps.

The ASG also argued that the Chief Minister and his family members cannot now raise the issue of prior consent of the State Government, as such a plea was never taken by them during the hearing of the PIL which resulted in direction for a preliminary CBI inquiry.