The Supreme Court on Saturday stayed the Guwahati High Court’s decision that held the creation of CBI as illegal.
In a hearing urgently called at Chief Justice of India’s residence on Saturday evening, the Bench of CJI P Sathasivam and Justice Ranjana Desai was convinced that a stay of the order was essential as many accused were seeking a stay of trial on the basis of the HC judgement. It said: “We have come to know from media reports that many people are seeking stay of trial because of this judgement.” With 9,000 trials pending and over 1,000 cases under investigation, the Supreme Court (SC) was convinced of the Centre’s urgency.
However, with the question whether the CBI could be validly constituted through an executive Resolution passed by the Ministry of Home Affairs (MHA) on April 1, 1963 left to be debated, the bench issued a notice to the original petitioner Navendra Kumar, the CBI and MHA, directing them to file a response by December 6.
The CBI will also file its appeal separately. The Department of Personnel and Training (DoPT), which filed the appeal earlier in the day in SC, was represented by Attorney — General GE Vahanvati and his team of lawyers led by Devdutt Kamat. Vahanvati took a preliminary objection to the order for not including DoPT — the nodal ministry for CBI, before the HC.
“It’s a matter of far-reaching consequences and only the CBI and MHA were included,” he said. But the bench asked him to focus on the legal questions involved. The AG argued that the Resolution creating CBI was wrongly understood by the HC to be a delegated legislation under the DSPE Act. Instead, he submitted under Section 2 of the Act, the Centre was empowered to constitute a special police force. But the fact that the Resolution did not bear any mention of DSPE Act came under notice of the SC bench. “Did not the draftsman notice itIJ It should have been mentioned,” the bench told Vahanvati.
At the same time, the SC agreed that under Section 2, the Centre did have power to constitute a police force. Contradicting the HC’s claim that the challenge to the CBI’s constitution was never dealt by any court in the past, the DoPT produced a 1986 decision of the Rajasthan High Court where this issue was squarely dealt with and dismissed. later, on August 30, 1994, the decision attained finality as the appeal against this order was dismissed by the SC.
The Centre even pointed out other decisions of the apex court to show how the CBI was referred to as a body deriving power and function under the DSPE Act. “Merely because the Resolution does not refer to DSPE Act, it is wrong to assume there is no power to issue the Resolution,” the petition said. lawyers representing the original petitioner Navendra Kumar sought time to file their objections to the Centre’s appeal. The SC directed all parties to be ready with their response on December 6, the next date of hearing.