The Supreme Court will need to consider whether the CBI’s officers could be detained and stopped by Kolkata Police.

CBI vs Kolkata Police: Legal and Constitutional Issues Before SC

On Tuesday, 5 February, the Supreme Court will hear an application and contempt petition by the CBI in relation to the ongoing tussle between the investigating agency and the West Bengal government. Solicitor General Tushar Mehta mentioned the matters on Monday morning before Chief Justice Ranjan Gogoi’s court, but his request for an urgent hearing on the same day was refused.

The CBI has asked the Supreme Court to issue a direction to Mamata Banerjee’s government instructing them to cooperate with the agency’s investigation into the Saradha chit fund scam, and not impede their progress. This request follows the unprecedented events in Kolkata on Sunday, 3 February, when CBI officials who went to question Police Commissioner Rajeev Kumar and tried to enter his house, were detained by the Kolkata police (before eventually being released).

The CBI say that they are concerned that Kumar and the Kolkata Police (who had investigated the scam till the SC transferred it to the CBI) may be trying to destroy electronic evidence relating to the case. CJI Gogoi took a dim view of this claim, saying:

“I have gone through your IA and your contempt petition. There is nothing in it. Where is the material showing there is a danger they will destroy evidence?”

The CJI has told the CBI to submit proof over the next 24 hours that indicates Kumar and Kolkata Police are trying to destroy evidence in the case. This claim of tampering with evidence only adds to the tense atmosphere, with West Bengal Chief Minister Mamata Banerjee coming out in support of the commissioner and starting a dharna, which is fast gathering support from opposition parties. In the meanwhile, speculation has begun over whether the Modi government may try to impose President’s Rule in the state.

But with the an application for directions and a contempt petition filed by the CBI, what does the law and the Constitution to say about this situation? Can the police in West Bengal prevent the CBI from functioning? Did the Kolkata Police commit contempt? And can the Centre impose President’s Rule over this issue?

Here’s what we know so far, and what the Supreme Court will have to consider when looking at this matter.

Did CBI Have to Take Consent of West Bengal Government to Operate?

One of the first questions asked the moment this crisis arose, was whether the CBI had the ability to operate in the West Bengal in the first place. This is because the Trinamool Congress government had in November 2018 revoked the general authorisation provided to the CBI and other agencies under the Delhi Special Police Establishment Act 1946 (DSPE Act).

Requirement of State Govt Consent for CBI to Operate

Police and public order are ‘State Subjects’ in the Constitution, ie, state governments run police forces in their respective states and the Centre cannot interfere. The CBI, however, is an agency that was created by the DSPE Act, a Central law. As a result, it can only operate in any other state if it has the consent of the relevant state government (Section 6, DSPE Act).

All states used to give a blanket general authorisation for this to the CBI that was renewed every few months, though Andhra Pradesh and West Bengal withdrew this last November.

Since the West Bengal government withdrew their general authorisation, this means that the CBI has to get permission from them on a case-to-case basis whenever it wants to do anything in the state. This is likely to be one of the arguments raised by the West Bengal legal team in the Supreme Court when defending the actions of the Kolkata Police -- they will no doubt argue that the CBI never took permission before going to Rajeev Kumar’s to question him.

CBI Counter-Argument: Supreme Court’s 2014 Judgment

However, the CBI has a strong counter-argument on this issue. On 9 May 2014, the Supreme Court itself had passed a judgment directing the CBI to investigate the Saradha chit fund scam, after concerns had emerged over the operation of the state government-appointed SIT, which was headed by Rajeev Kumar.

Though the apex court made no findings about the conduct of Kumar and the SIT, it decided that it was appropriate for the investigation to be transferred to the CBI. The court also expressly noted in para 36 of the judgment that:

“Needless to say that the State Police Agencies currently investigating the cases shall provide the fullest cooperation to the CBI including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.”  
(emphasis added)

The CBI will certainly use this judgment to justify their actions, and challenge the Kolkata Police’s interference. Interim director Nageshwar Rao has already indicated as much in his comments to the press.

It is difficult to see how the West Bengal government (represented by senior advocate and Congress leader Abhishek Manu Singhvi) will be able to argue around this. One possible argument could be that at the time the judgment was passed, the general authorisation for the CBI was still in force, but now that it has been revoked, the CBI has to get permission every time it wants to operate in the state, despite the 2014 directions of the SC.

However, this argument is unlikely to succeed because of another Supreme Court judgment in 2010 in State of West Bengal vs Committee for Protection of Democratic Rights, West Bengal. In this judgment, a Constitution Bench of the apex court had considered whether it was a violation of the federal structure of the Constitution for a high court or the SC to order an investigation by the CBI without the consent of a state government.

This was rejected on the basis that such an order would be under the constitutional courts’ power of judicial review, which cannot be restricted by any legislation. As a result, the requirement of state governments to consent to a CBI investigation under Section 6 of the DSPE Act does not apply when the Supreme Court or a high court transfers an investigation to the CBI.

Interestingly, current Attorney-General KK Venugopal had represented the State of West Bengal in that case, arguing that Section 6 of the DSPE Act meant a state government’s consent was necessary, even when the higher judiciary ordered the case to be transferred.

Does the CBI Need a Warrant to Enter Rajeev Kumar’s Home and Question Him?

A better line of argument for the West Bengal government would be to focus on a different procedural violation by the CBI. Chief Minister Mamata Banerjee and a Trinamool Congress leader Derek O’Brien have publicly stated that the CBI officers who turned up at Rajeev Kumar’s house did not have a warrant to do so.

Abhishek Manu Singhvi has claimed that the CBI only had a notice under Section 160 of the Code of Criminal Procedure with them when they went to Kumar’s house. A notice under this section is a document requiring a person to attend an investigation, issued by an investigatory authority. Kumar reportedly failed to respond to these notices.

There are only limited conditions in which an investigating officer can enter a person’s home without a warrant, for example if any undue delay would make it impossible to recover the relevant evidence (Section 165 of the CrPC). Unless the CBI can show such grounds, the lack of a warrant may be one of the key grounds on which the West Bengal government will be able to defend the actions of the Kolkata Police.

These procedural safeguards would apply even if it is true that Kumar has not been meeting with the CBI when asked. Instead of turning up at his house without a warrant, the CBI could have just approached the courts, obtained an arrest and search warrant, and been in a much better position.

Other Procedural Challenge – Violation of High Court Stay

Singhvi appears to be referring to a Calcutta High Court judgment in his tweets where the high court stayed a number of notices issued to witnesses by the CBI in December 2018. The court was surprised to see that the CBI had issues notices compelling witnesses to attend investigations on dates prior to the date of the notices. This had happened not once but twice.

It will still need to be seen if this stay order applies to Rajeev Kumar, but it will definitely be a big issue going forward. The fact that the CBI was getting dates wrong the way it was demonstrates ineptitude, if not mala fides.

Singhvi also stated in court that Kumar had been cooperating with the CBI and had answered the questions sent to them, and that he was a witness in the case, not an accused – making the CBI attempt to enter his home even more problematic.

Are There Grounds for Imposition of President’s Rule in West Bengal?

Regardless of whether or not the CBI had the authority to operate in West Bengal, or whether or not they had a warrant, the actions of the Kolkata Police may not have been entirely kosher. The Kolkata Police officers didn’t just stop the CBI officers from entering Rajeev Kumar’s house, they also detained several of them, and images have emerged of them being forced into police vehicles.

Subsequently, the CRPF were deployed around two CBI offices in Kolkata after the CBI asked for security arrangements. Kolkata Police forces had reportedly been depolyed around those offices in large numbers before being withdrawn.

These elements of the standoff have raised questions over whether or not President’s Rule should be imposed in the state from BJP supporters. There is no concrete information that this is being planned, but if it is true that the Centre is seeking reports from the governor, it is possible that they are considering the move.

President’s Rule can be imposed in a state under Article 356 of the Constitution of India, when the governor certifies that there has been a failure of the constitutional machinery in that state. In the SR Bommai case, the Supreme Court interpreted this to include the following (apart from the government losing its majority):

  1. Large-scale breakdown of the law and order or public order situation;
  2. Gross mismanagement of affairs by a State Government;
  3. Corruption or abuse of its power;
  4. Danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and
  5. Subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric.

It is difficult to say that any of these conditions have been met just yet in West Bengal, especially conditions 1, 2, 4 or 5. Even though the Centre could argue that what has happened could possibly fall under condition 3, given the corruption angle to the Saradha chit fund case and the questionable actions of the Kolkata Police, President’s Rule is to be used sparingly, and only as a last resort (according to the Sarkaria Commission and the Supreme Court). This situation does not yet meet that standard.

This may change after the Supreme Court’s hearing on tuesday, in the event the judges direct the West Bengal authorities to cooperate with the CBI, and then Mamata Banerjee prevents this from happening. Once the court clarifies things, the Centre could also issue a direction to the state government in an exercise of their executive power (since the Centre has powers of supervision over the CBI) to allow the CBI to function.

If the West Bengal government fails to comply with such a direction from the Central Government, then this could lead to imposition of President’s Rule under Article 365 of the Constitution of India instead.

Thus, even though the apex court will not be hearing arguments on the issue of President’s Rule on Tuesday, any decision the judges take could play a part in whether or not it does eventually get imposed.