The judgment in the case of State of West Bengal v. The Committee for Protection of Democratic Rights has not got the attention it deserves. Except Rajeev Dhavan’s article, there has been no serious attempt to critique the judgment. The case involved answering the question whether the High Courts can direct the CBI to investigate into a crime, without the consent of the State Government. The Supreme Court answered this question in the affirmative.

The judgment is significant for further expanding the scope of Article 21. The Court has held that Article 21 not only takes within its fold enforcement of the rights of an accused, but also the rights of the victim, and that the State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain circumstances, even a witness to the crime may seek for and shall be granted protection by the State. [Para 44:ii]

This positive feature apart, there are some noticeable flaws in the judgment, apart from those which Rajeev Dhavan has pointed out. Here are some of the flaws, as I understand.

1. The Court has not answered the question whether Judicial review would enable a High Court to substitute itself in the place of State Government or the Centre. There is no dispute over the Court’s claim that judicial review acts as a final arbiter to give effect to the distribution of legislative powers between Parliament and State Legislatures, and to show any transgression by such entity. [Para 44:iii] But this case involved neither of these two issues.

2. Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure, because the Courts act as guardians and interpreters of the Constitution whenever the federal structure is violated by the legislative action. [Para 44:iv] Correct. But the present case did not involve a similar issue.

3. The Court claims (Para 44:v) that Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226. This is confusing. How does the Court claim this power? The Constitution restricts Parliament from encroaching on the State’s rights by distributing the legislative powers between them. How can the Courts justify similar encroachment by themselves, even while restricting Parliament from doing so?

4. Para 44:vi is even more confusing. Entry 2A of List I is about deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State. Is the CBI -which is not an armed force -subject to the control of the Union? Entry 80 of List 1 makes it very clear that extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State would require the consent of the Government of that State in which such area is situated. Overlooking these express provisions, the Court justifies its exercising the “same power” (Non-existent!) which the Union could exercise in terms of the provisions of the statute.

5. If Para 44:vii is any guide, then judicial review henceforth would mean that the Courts can substitute themselves for State and Central Governments, whenever they don’t exercise their responsibilities assigned to them under the Constitution, for whatever reason or no reason. Thus if the State Government concerned has not given its consent for the CBI investigation, there is no problem; the High Court can give the same consent on behalf of the State Government. Can this be stretched to other matters? – if the President does not decide a mercy petition, can the Supreme Court or a High Court step in, and decide on her behalf?

6. Para 46 of the judgment classifies the victims, whose rights the Court has sought to defend in this case, rather unreasonably. It is only those victims of those incidents with national and international ramifications who deserve the Courts’ intervention in the absence of State Government’s consent, to direct CBI investigation. Or if the investigation by the State police lacks credibility or does not inspire confidence. The CBI’s own reputation and limited manpower apart, has the judgment opened a Pandora’s box, because it is common to find all manner of victims alleging bias, when the State police investigates? If the Courts have the discretion to decide whether in a particular case, the State police lacks credibility or does not inspire confidence, then it will be difficult for the Courts to justify its discretion – in the absence of clear guidelines – inviting the charge of arbitrariness.