Apex court stays CBI illegitimacy verdict - Chief Justice alludes indirectly to Sajjan, Raja bid to stall cases

against th em R. BALAJI New Delhi, Nov. 9: The Supreme Court today stayed Wednesday s Gauhati High Court v erdict that invalidated the CBI s formation, after the Centre sought a special sit ting at the Chief Justice of India s home during the weekend break. Wednesday s order, which curbed the agency s powers relating to FIRs, arrests, raids and chargesheets, had hung a question mark over what the government said were 1 0,000 CBI cases in investigation or trial stage. As it stayed the judgment, the apex court referred to newspaper reports that sai d high-profile accused like politicians A. Raja and Sajjan Kumar were citing the high court order to seek a stay on their trial in CBI courts. There was drama of sorts, however, before the special bench of Chief Justice P. Sathasivam and Justice Ranjana Prakash Desai passed their order. Since the Supreme Court doesn t function on Saturdays and Sundays, the Centre had yesterday spoken of moving a plea for a stay on Monday before seeking an unsched uled court sitting today. However, L.S. Chowdhary, counsel for BSNL employee Navendra Kumar (accused of co rruption by the CBI) whose petition had led to the high court order, turned up a t the CJI s home. He claimed to have come after reading media reports that said the department of personnel and training (DoPT) might seek a quick stay. Chowdhary objected to the unscheduled hearing, saying the department had not ser ved his client with a notice. He also objected to the DoPT filing the petition o n the ground that it was not a party before the high court. However, Justice Sathasivam overruled the objection saying attorney-general G.E. Vahanvati, who was appearing on behalf of the department, had made it clear tha t the CBI functioned under the DoPT s supervision. Further, Vahanvati agreed to accept a notice on behalf of the CBI and the home m inistry, which were parties in the high court. We want to know whether you read today s newspapers, Justice Sathasivam asked Chowdh ary. Within a day, two of the accused in sensational cases have prayed for stay o f their trial. When Chowdhary argued that the highest court could not be influenced by newspape r reports, Justice Desai shot back: We are not influenced by newspaper reports. After ordering the stay, the court asked Kumar to file his reply within two week s, sought responses from the CBI and the home ministry, and slated the next hear ing for December 6. Vahanvati said the CBI would soon file an appeal against the high court verdict. Justice Sathasivam reassured Chowdhary: Merely because we are issuing notice on t heir (DoPT s) special leave petition does not mean we are rejecting your prayer. Cut and thrust

The DoPT s chief arguments were: Several judicial orders, including a Supreme Court Constitution bench ruling, ha d upheld the constitutional validity of the Delhi Special Police Establishment ( DSPE) Act, 1946, under which the CBI was formed. Section 2 of the 1946 act empowers the Centre to constitute a special police forc e , and that the 1963 home ministry resolution (executive circular or order) const ituting the CBI was issued under this section. The high court, however, had not questioned the legality of the DSPE Act merely ruled that the CBI was not established under the DSPE Act . it had

It said the entity created by the 1946 act was the Delhi Special Police Establis hment, and that a name given by a statute could not be changed through an execut ive order it required legislation. However, the DoPT s stress on the validity of the DSPE Act appears linked to its i nsistence that Section 2 allowed the constitution of the CBI. It s very clear that there is a power under Section 2 for setting up the CBI, ti said. Vahanva

Justice Sathasivam responded: The resolution very unfortunately did not notice it (Section 2). But it is there in the act. We take it that there is a mention in Section 2. The DoPT s petition for a stay, too, argued that merely because the resolution does not refer to Section 2, it cannot be concluded that the resolution is not under the DSPE Act . More importantly, it added, as a matter of law, it is not required that a resolutio n or an order should refer to a legal provision indicating the source of power. Direct impact The DoPT petition, filed through counsel Devdatt Kamat, said the high court judg ment directly impacts about 9,000 trials currently under way and about 1,000 inve stigations . It questioned the high court s quashing of a 50-year-old resolution which had stood the test of time , and under which the CBI s staff of 6,000 functioned effectively . It cited several court precedents to bolster its case: A Supreme Court Constitution bench ruling in Advance Insurance vs Gurudas Mal (1 970) that upheld the constitutional validity of the DSPE Act. The high court ord er seeks to directly impinge upon the decision of this Hon ble Court , the petition s aid. Rajasthan High Court s 1986 dismissal of a writ petition that had challenged the c onstitution of the CBI on similar grounds as Kumar. A Rajasthan High Court judge s dismissal, relying on the earlier judgment, of a si milar petition again in 1986 (Bajranglal Kedia s/ Nathmal Kedia vs Union of Indi a and Ors). The apex court later rejected an appeal against the order in 1994. Therefore, the petition submitted, Gauhati High Court had been wrong in observin g, in Para 26 of its judgment, that the validity of the CBI s formation had not be en raised in any court before.

The petition said the high court had also erred in holding that the 1963 resolut ion that constituted the CBI should have obtained presidential assent. It said t here was no legal requirement for a resolution to be placed before the President . It is thus submitted that the impugned judgment is patently erroneous, contrary t o the law laid down by this Hon ble Court.