Explained: West Bengal Government vs. Center Regarding CBI’s Jurisdiction; Why the SC Said Law & Order Is a State Subject

Following the government’s withdrawal of its general permission to the Central Bureau of Investigation (CBI) on November 16, 2018, the West Bengal administration has contested the CBI’s authority to look into crimes in the state.

The West Bengal government filed a lawsuit, and the Supreme Court postponed making a decision on its maintenance on Wednesday. However, top attorney Kapil Sibal, representing the state, said that the CBI “derogated the doctrine of federalism” and “violated the constitutional provisions.”

“Once the state grants its approval, you become a state police officer and are entitled to all the powers granted to officers under the code. Thus, Sibal informed the Bench on Thursday that “the CBI is not only violating… but usurping and ousting the jurisdiction of the State Police, which is statutory for such offenses, by exercising its power under the Act without the necessary state’s consent,” as reported by The Indian Express.

Following the West Bengal government’s suit over the CBI, the Supreme Court said on May 2 that law and order are state matters. Law and order pertain to the state. If a Central employee engages in dacoity, would the CBI be the sole agency to look into the matter? Justice BR Gavai, cited by The Hindu.

WHAT IS ALLEGED BY THE WEST BENGAL GOVT?
The West Bengal government, headed by Mamata Banerjee, has sued the Central Bureau of Investigation (CBI) under Article 131 of the Constitution, claiming that the agency was looking into many cases and filing Federal Criminal Records (FIRs) within its purview without first getting permission from the state government.

According to Kapil Sibal, who was cited by The Hindu, the state withdrew general approval for CBI investigations conducted inside its borders on November 16, 2018, in accordance with Section 6 of the Delhi Police Special Establishment (DPSE) Act.

It is not our position that these instances should go uninvestigated. However, you cannot say that I have the only authority to look into them by using the Code of Criminal Procedure. According to a story by The Hindu, Sibal said, “You cannot say that the offenses relating to Central government employees will be investigated only by a Central agency.”

COMMENTS FROM THE UNION GOVT?
The Center’s attorney general, Tushar Mehta, opposed the state government’s first lawsuit. He brought up the preliminary objection that the Union and the states are the only parties involved in original cases brought before the Supreme Court under Article 131.

The cases in issue have been lodged by the CBI. However, Mehta said, as cited by The Hindu, “the CBI is not a defendant in this suit and cannot be made one, as the CBI is not a’state’ under Article 131.” The Union of India has no authority over the CBI. The CBI exists independently of the Union of India and is a separate entity. He said, “It is not a’state’ under Article 131, so it cannot be made a defendant.”

He emphasized that the CBI was not the Union’s police force. The Department of Personnel and Training (DoPT) is not able to supervise the FIR registration process; it is only a cadre governing body.

The state government had already petitioned the Supreme Court for special leave based on the same federalism and lack of state agreement to the CBI probes, the Solicitor General said.

He also mentioned the state’s ongoing appeal of a Calcutta High Court ruling ordering the CBI to look into illicit coal mining and railway coal traffic in West Bengal.

Describe Article 131.
The disagreement under Article 131 must inevitably be between the states and the Center, and it must concern a matter of fact or law that determines whether the state of the Center has a legitimate claim.

Justice PN Bhagwati said in a 1978 ruling in State of Karnataka v. Union of India that a legal issue, not a claim that the state’s legal rights have been infringed, must be raised in order for the Supreme Court to consider a suit under Article 131.

Political disagreements between state and federal administrations led by various parties cannot be resolved via Article 131.

Can a state be sued by the center under Article 131?
A state may get instructions from the Center to carry out legislation passed by Parliament. The Center may file a court request for a permanent injunction against the states to compel them to abide by the legislation if they do not follow the instructions. The chief secretaries of the state who are in charge of carrying out laws are often called before the court in cases of non-compliance with court orders, which may lead to contempt of court.

Parliamentary laws are deemed to be constitutional unless and until a court decides otherwise. However, disagreements between the governments are frequent under the quasi-federal constitutional system of India.