A brief write up on Mamta West Bengal Crisis on various legal issues.
The act of apprehending the CBI officers in Kolkatta when they went for a raid, raises several constitutional questions and we need to know more about the federal structural arrangement under the Indian Constitution. If we examine the federal structure of the Indian Constitution, India is an union of states with clear bifurcation of powers of the center and the state defined under the two lists- Union list and the State List. \
Maintaining law and order and policing is in the State List and a plain reading would suggest that what Mamta has done in West Bengal by stopping CBI is constitutional but if we further read , we find that articles 249, 250, 252, and 253 mention situations in which the Union government can legislate. CBI being a creation of the Parliament is thus having an upper hand in maintaining the law and order situation in any state. State police has a constitutional binding to act on the orders of the CBI officers and by violating the same, they are violating the lawful orders hence violating the constitution.
The following provisions of our Indian Constitution regulating the centre state relation make the issue very clear:
Legislative Relations (Articles 245-255): 1. Parliament has exclusive jurisdiction to make laws regarding (97) items in the Union List; State legislature has exclusive power to make laws in regard to (66) items in the State List; both the union and state legislature can legislate in regard to (47) items in the Concurrent List (Article 246).
Parliament has exclusive power to make laws with respect to any matter not enumerated in the Concurrent to State List (Article 248); Parliament has power to legislate with respect to any matter in the State List in the national interest after the Rajya Sabha’s resolution supported by not less than two-thirds of the members present and voting (Article 249).
Parliament has power to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation (Article 250).
Parliament has power to legislate for two or more States by their consent and adoption of such legislation by any other State (Article 252).
The supremacy of the center in the entire arrangement is further proved under the following provisos:
In case of inconsistency between laws made by Parliament and those made by a State legislature in regard to items in the Concurrent List, the Union law shall prevail except where a State law is reserved for the consideration of the President and receives his assent (Article 254).
The Governor of the state is appointed by the Center who has powers to make a report to the President under Article 356 of the Constitution of India if the Constitutional machinery of the state has broken down.
It is strengthened by the fact that if the federal structure is violated by any legislative action of the State or the Center, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226. Whenever there is an attempted violation the High Court under its powers of Article 226 and Supreme Court under Article 32 can uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. In the chit fund scan, the Supreme Court has already delved into the matter and issued directions for the transfer of the case to CBI way back on 9/5/14 but the West Bengal government has subsequently acted very cleverly and withdrawn the consent given to center for applicability of the Delhi Police Special Establishment Act which empowers CBI to act in West Bengal. But the fact remains that the said withdrawal would not have any retrospective effect as the investigation was already undertaken by CBI in the Shardha Chit Fund matter. On this count, the action of Mamta Banerjee is patently against the Constitution.
Further, when the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. This has already been done in Shardha Case hence there is no irregularity at any stage in the matter.
Needless to say that a plain and simple reading of the said provisions, it is clear that the powers of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
It is apparent that Mamta Banerjee is acting contrary to the mandate of law and the Constitutional provisions and trying to create impediment in the fair investigation of the scam under the orders of Supreme Court. She is thus clearly violating the federal set up of the Constitution and the center is fully empowered to act for protecting the federal structure of the Constitution of India. The center is free to take further actions such as imposing Presidential rule in the state.