AI Drafter 
TaxTMI 
TaxTMI 
2013 (11) TMI 500
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....isely the issue, which the appellant has been, for almost a decade of litigation, urging the court to decide. Having been unsuccessful in his attempt to convince the Court in his writ petition of the correctness and righteousness of his contentions, the appellant is, now, before us, seeking a revisit to his submissions. 2a. Some of the prominent questions, which have arisen for determination, in this appeal, are: (i) Whether 'Central Bureau of Investigation', popularly called CBI, is a constitutionally valid police force empowered to 'investigate' crimes? (ii) Could a 'police force', empowered to 'investigate' crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers? (iii) Could a 'police force', constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender? (iv) Whether CBI is a 'police force' constituted under the Union's Legislative powers conferred by List I Entry 8? (v) Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a....
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....challenge. (iii) The two substantive prayers, made by the petitioner-appellant, were as follows: "(i) quash the impugned Resolution No. 4/31/61-T, dated 01-04-1963, as ultra vires the Constitution of India, by way of an appropriate writ, order or direction in the nature of certiorari and (ii) quash the criminal proceeding/prosecution originated from the FIR/RC No. 39(A)/2001/CBI/SIL pending against the petitioner in the court of Special Judge (C.B.I) for Assam at Guwahati, by way of an appropriate writ, order or direction in the nature of certiorari." (iv). The constitutional validity of the formation of the CBI and its powers to investigate and function as a police force and/or its powers to prosecute an offender were challenged, in the writ petition, by contending that the CBI is not a statutory body, the same having been constituted not under any Statute, but under an Executive Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Ministry of Home Affairs, Government of India, though police is a State subject within the scheme of the Constitution of India....
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....t only the Delhi Special Police Establishment Act is a valid piece of legislation, as originally enacted, but the same has been validly continued after coming into force of the Constitution and is in harmony with the provisions thereof and, therefore, the said legislation validly continues to hold the field" 5. Aggrieved by the order, dated 30-11-2007, aforementioned, the writ petitioner has preferred the present writ appeal. 6. We have heard Dr. LS Choudhury, learned counsel for the appellant, and Mr. PP Malhotra, learned Additional Solicitor General of India, appearing on behalf of the respondents. We have also heard Mr. N Dutta, learned Senior counsel, who has appeared as Amicus Curiae. SUBMISSIONS ON BEHALF OF THE PETITIONER: 7. It is submitted by Dr. LS Choudhury, learned counsel for the appellant, that the CBI is a non-statutory body inasmuch as it has been constituted by way of an Executive Order/Resolution, dated 01.04.1963, issued by the Ministry of Home Affairs, Government of India, and not by making any legislation. 8. According to Dr. Choudhury, learned counsel for the appellant, in the absence of any law laying the birth of the CBI, the exercise of power....
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....y, learned counsel, is that though Parliament is competent to make law on the Central Bureau of Intelligence and Investigation, the CBI, which is constituted under the Resolution No.4/31/61-T, dated 01.04.1963, cannot carry out functions of police inasmuch as the Constitutional scheme does not permit the Central Government to carry out functions of police and the police functions, according to Dr. LS Choudhury, lies within the exclusive domain of the State Government concerned. 12. Yet another leg of argument of Dr. Choudhury, learned counsel for the petitioner, is that even Delhi Special Police Establishment Act, 1946 (in short, 'the DSPE Act, 1946') is ultra vires the Constitution, for, it offends, according to Mr. Choudhury, Article 372 of the Constitution inasmuch as Parliament is not competent to make law on police for whole of India and it is only a State legislature, reiterates Mr. Choudhury, which can make, or could have made, law, on police by taking resort to Entry No.2 in the State List (List II). Thus, the DSPE Act, 1946, submits Dr. Choudhury, cannot continue anymore inasmuch as its continuance violates the basic Constitutional scheme. 13. Reverting to the Consti....
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....on of Dr. Choudhury, learned counsel for the petitioner, that even if the CBI is considered to be a validly constituted body, it cannot function in the manner as is done by the police under the scheme of the Code of Criminal Procedure and the CBI, so constituted, can, at best, collect information by making 'enquiries' to assist any investigation carried out by a local police. SUBMISSIONS OF THE CBI 17. Resisting the writ petition, what the learned ASG, appearing on behalf of the CBI, submits, may be summarized as follows: A) That the CBI derives its power to 'investigate', like a police force, as contemplated by the Cr. PC, from the DSPE Act, 1946; B) That the CBI is only a change of the name of the DSPE and the CBI is, therefore, not an organization independent of the DSPE; C) That as per Section 5 of the DSPE Act, the Central Government may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and as per Section 6 of the DSPE Act, 1946, the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the Gov....
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.... not disclose that the CBI has been constituted under DSPE Act. Had it been so, the impugned Resolution would have so mentioned. ii) Secondly, the plea, that the CBI is merely a change of name of the DSPE, cannot stand scrutiny of law inasmuch as the DSPE Act, 1946, specifically mentions, under Section 2, that the police force, constituted under the DSPE Act, shall be called "Delhi Special Police Establishment". Hence, when the DSPE Act itself defines the name of the force, which the DSPE Act, has created and established, the argument that the CBI is merely a change of name of the DSPE cannot hold water. Had it been so, the name of the DSPE ought to have been changed in the DSPE Act itself; more so, when several amendments have, otherwise, been introduced into the DSPE Act. iii) Thirdly, though Union of India's executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, whereunder CBI h....
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....ficer within the limits of his station. It has also been pointed out by the learned Amicus Curiae that under Section 2(c) of the DSPE Act, 1946, a member of the DSPE may, subject to any order, which the Central Government may make in this behalf, exercise any power of the Officer-in-Charge of a police station in the area, which he is, for the time being, posted to, and, when so exercising the powers, he shall be subject to any such orders, which may be made by the Central Government and be deemed to be an Officer-in-Charge of a police station discharging the function of an officer within the limits of his station. If the expression, "Officer-in-Charge of a police station", appearing in Section 2(c) of the DSPE Act, 1946, is read together with Section 36 of the Cr.P.C, then, it would become clear, according to learned Amicus Curiae, that an officer of the DSPE, while functioning in any State, shall be subordinate to the superior officers of the State police; whereas, in the case of CBI, while investigating a case, in any State, purportedly, by virtue of its powers under Section 5 read with Section 6 of the DSPE Act, 1946, the CBI investigators reports to their own hierarchy of offic....
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....ent of the President of India, this Court, vide its order, dated 20.01.2013, directed the respondents to produce the records relating to the creation of the CBI. Though the relevant records have not been produced, in original, a copy thereof has been produced by the learned Additional Solicitor General and has been perused by the Court and the parties concerned inasmuch as the learned Additional Solicitor General had made it clear to this Court that the said records were no longer classified documents, the same having been obtained from the National Archives and could, therefore, be perused by the parties concerned. 26. Before proceeding further, it is pertinent to note that in response to a specific query put by this Court as to whether the issue, raised in the petition, with regard to the Constitutional validity of the CBI, can be found to have been raised in any decision of any Court, the learned ASG as well the learned Amicus Curiae, with commendable fairness, have admitted that in the light of the reported decisions, this issue has never been raised, in any case, in any other High Court or the Supreme Court. 27. The points, which, now, falls for determination, is: whethe....
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.... the CBI came into existence by the Resolution No. 4/31/61-T, dated 01.04.1963., issued by the Government of India, Ministry of Home Affairs, the impugned Resolution, being relevant, is reproduced below: "No. 4/31/61-T GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New Delhi, the 1st April, 1963 RESOLUTION The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular imp....
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....on 3 thereof. Thus, the police force, which may be constituted by the Central Government deriving power from the DSPE Act, 1946, is, in the light of the provisions of the DSPE Act, 1946, can be called Delhi Special Police Establishment, which we have been referring to as the DSPE. 38. The learned ASG has completely failed to show that the CBI can be said to have been established or constituted as an organ or part of the DSPE or is a special force, which has been constituted by taking recourse to Section 2 of the DSPE Act, 1946. We have, therefore, no hesitation in concluding that CBI is not established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment . 39. While considering the question, framed above, it is worth noticing that there is no dispute that CBI came into existence with the issuance of Resolution, dated 01.04.63. If CBI is an integral part of the DSPE, then, such a resolution ought to have been issued by the Central Government in exercise of powers vested in the Central Government by the DSPE Act, 1946. In other words, had the CBI been constituted under the DSPE Act, 1946, by the Central Government, the CBI could have been treated a....
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....d Resolution in exercise of powers vested in it by the DSPE Act, 1946. However, a reading of the Resolution would make it evident that it does not reflect the source of executive power. Since it is found that the Resolution, which created the CBI, is not an act of delegated legislation, the Resolution cannot become a part of the DSPE Act, 1946. 45. This Court, vide order, dated 20.01.2013, has directed the respondents to produce the records relating to creation of the CBI. It is relevant to note that despite directions, the respondents did not file the original records; rather they produced a certified copy of the records received from the National Archives. 46. However, even perusal of the entire records makes it clear that the Resolution was neither produced before the President of India nor did it ever receive the assent of the President of India. Hence, strictly speaking, the Resolution, in question, cannot even be termed as the decision of the Government of India. That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE. The very subject of the file reads as Setting up of Central Bureau of Investigation and creation of....
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.... its intention of expanding the scope of the Bureau in due time, which is apparent from the following notings: .....But it is for consideration whether, while communicating the scheme to the State Governments, we should not also tell them of our intentions of expanding its scope in due course to its original conception and that this would require suitable legislation by Parliament which would be undertaken at the appropriate stage. Again at Page 98 Now that a decision has been taken to constitute and set up a Central Bureau of Investigation it has to be considered how best to implement this and to give it a shape. The points that arise for consideration are:- (i) Whether it is necessary to consult the States before setting up the Central Bureau of Investigation? (ii) Whether it is necessary to have a new comprehensive Act to define the functions and the powers of the Central Bureau of Investigation and to give it the legal authority for conducting enquiries and investigations all over India? (iii) What items of work should be allotted to the Central Bureau of Invest....
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....e added to the Central Bureau of Investigations with the consent of the States and the scope of its activities enlarged. At that stage the questions of framing a new comprehensive Act could also be considered. Even otherwise it would be better to frame a new Act after the C.B.I. has been in existence for some time and when its difficulties and requirements as brought out by actual experience are known. At that time it would also be far easier to obtain the consent of the States for fresh legislation. At Page 104: 10. In this connection a point worthy of note is that fresh legislation on the lines contemplated is not free from difficulties. Very great care will have to be taken to frame the proposed Act in such a way as not to infringe on the provisions of the Constitution. Even with all the care in drafting and preparing the Act it is likely to be questioned in courts and it is difficult to anticipate what the decision of the courts would be on the validity of the new Act or on legal points arising from it. On the other hand, it might be mentioned that the Delhi Special Police Establishment Act has already gone through this process. Its provisions have been debated in courts ....
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....edkar. The meaning and importance of the word, 'investigation', which appears within the expression 'Central Bureau of Intelligence and Investigation', were explained by Dr. Ambedkar as under: Dr. B. R. Ambedkar: The idea is this that at the Union office there should be a sort of bureau which will collect information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Governments as to what is going on in the different parts of India so that they might themselves be in a 'position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information. 53. One of the members, Mr. Nazimuddin Ahmed could visualize a conflict of interest between the States, on the one hand, and the Union Government, on the other, and raised, in the Constituent Assembly, question about the implications and the use of the word, 'investigation', appearing within the expression 'Central Bureau of Intelligence and Investigation', in the f....
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....ed, at least to explain to the House my misgivings and these misgivings are really substantiated by Dr. Ambedkar himself. I would, like to know whether it is possible at once to accept this implication, to give the Central Government power to investigate crimes. My first amendment is intended to remove the words "and investigation". If you keep the investigation within this entry it should be the Central-Bureau of Intelligence, as well as Bureau of Investigation. If there are two Bureaus only there, could be no difficult and there will be no clash and let us have as many Bureaus as you like but if you want investigation, it will be inviting conflict. Rather it is another attempt to encroach on the provincial sphere. I find there is no limit to the hunger of the Central Government to take more and more powers to themselves and the more they eat, the greater is the hunger for taking more powers. I oppose the amendment of Dr. Ambedkar. I appeal to the House not to act on the spur of the moment; it is easy for them to accept it as it is easy for them to oppose it and the entry does not seem to be what it looks." 54. Dr. Ambedkar, in response to the doubts, expressed by Mr. Nizamuddi....
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.... to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question." 57. It is necessary to point out here that the intent of embodying the Constituent Assembly debates is to gather an idea behind the general law making process. In any view of the matter, the debates quoted above, becomes relevant and unavoidable when it is contended, on behalf of the respondents, that the creation of the CBI can be traced to the Central Government's power embodied in Entry 8 of List I of the Union List, which provides for creation of 'Central Bureau of Intelligence and Investigation'. 58. It is an admitted position that no independent law exists on Central Bureau of Intelligence and/or Investigation; rather, it is the DSPE Act, 1946, only which, as argued by the ASG, is the law, which, according to the respondents, has created the CBI. But then, Entry 8 List I (Union List) definitely empowers the Parliament to enact a law in the form of 'Central Bureau of Intelligence and Investigation'. Such a legislative....
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....on Government's power embodied in Entry 8 of List I (Union List), which provides for creation of 'Central Bureau of Intelligence and Investigation'. 64. It is an admitted position that no independent law exists on Central Bureau of Intelligence and/or Investigation, though it is the alternative contention of the learned ASG that authority to constitute CBI may be traced to Entry 8 of List I (Union List). 65. We may, however, point out that Entry 8 of List I (Union List), indeed, empowers Parliament to enact a law on the subject of 'Central Bureau of Intelligence and Investigation'. Such a legislative competence is preserved under Art. 246 (1), which reads, "Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List". 66. Coupled with the above, if the debates are borne in mind, it becomes abundantly clear that the word, 'investigation', appearing within the expression "Central Bureau of Intelligence and Investigation" became a heated subject matter of debates, in the Constituent Assembly, primarily, for the r....
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....ved or protected by taking resort to Article 372 and 372A if the provisions, embodied in the Constitution, run counter to the scheme of our Constitution. 71. It is also necessary, in the above context, to take note of the preamble of the DSPE Act, 1946, which reads as follows: "An Act to make provision for the constitution of a special police force [in Delhi for the investigation of certain offences in [the Union territories]], for the superintendence and administration of the said force and for the extension to other [***] of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. WHEREAS it is necessary to constitute a special police force [in Delhi for the investigation of certain offences in [the Union territories]] and to make provision for the superintendence and administration of the said force and for the extension to other areas [***] of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences; Section 1 - Short title and extent (1) This Act may be called the Delhi Special Police Establishment Act, 1946. (2) It....
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....nt of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State." 77. It will be seen that Entry 80 of List I (Union List) merely enables the Parliament to extend the operation of police force of one State to another. However, Entry 80 of List I does not empower the Parliament, far less the Central Government, to enact a law creating a separate police force for the purpose of 'investigation' into a crime preparatory to the filing of charge sheets. What Entry 80 of List I permits is only making of provisions of 'extension' of a valid law governing activities of police of one State to have jurisdiction in any other State with, of course, the consent of the other State concerned. 78. Thus, if the DSPE Act, 1946, were treated to be a valid piece of legislation, then, by virtue of Entry 80 of List I (Union List), the Parliament could have incorporated, in the DSPE Act, 1946, that the operation of DSPE Act, 1946, may be extended to other States if the latter State gives consents thereto. 79. In the backdrop of what have been discussed above, Section 5, subject to Sect....
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....sis, for the argument, was that Entry 80 of List I speaks of police force of a State; whereas DSPE, 1946, was a police force of a Union Territory, namely, Union Territory of Delhi. 84. The argument, so raised, in Advance Insurance Co. Ltd. (supra), by the appellant, was overruled by the Supreme Court in the context of Entry 39 of List I (Union List) under the Government of India Act, 1935, corresponding to Entry 80 of List I (Union List) of the Constitution of India. Relying on the definition of 'State', as given in Section 3 (58) of the General Clauses Act, the Supreme Court held that 'State' also meant a 'Union Territory' and so far as Entry 80 was concerned, since the substitution of term 'Union Territory', for the term 'State,' is not repugnant to the context thereto, the term 'State' would also mean a Union Territory. The Supreme Court further observed, in Advance Insurance Co. Ltd. (supra), that since Entry 80 of List I (Union List) under the Government of India Act, 1935, corresponding to Entry 39 of List I of the Seventh Schedule, enables the police force of one State to function and carry out 'investigation' into an offence in another State if the latter State consents ....
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....bsp; "1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution." 89. Article 246 (2), dealing with Concurrent List, provides that notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. 90. Thus, both, Union and State, can enact a criminal or penal law. However, such a penal law should not be on any of the subjects mentioned in List I or II and should not be laws on use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. Again, as empowered by Entry 2, both, Union and State, can introduce changes in the Code of Criminal ....
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....r instance, for the State of Assam, the Assam Police Act, 2007, has been enacted by the State Legislature. It, however, needs to be mentioned here that Police Act, 2007, governs the administrative aspects of police. So far as 'investigation', a matter falling within the realm of Cr.PC, is concerned, only those police officers, who are recognized as Investigating Officers, under CrPC, have the power to investigate an offence. In other words, under the Assam Police Act, 2007, there may be several police officers; but not all of them have the power to register a case, investigate an offence and/or submit a charge-sheet. 98. An example may be given by referring to Sec. 30 and Sec. 55 of Assam Police Act, 2007, which read as under: "Sec. 30 District Armed Reserve: The District Armed Reserve, which will function under control, direction and supervision of the District Superintendent of Police shall be the armed wing of the District Police to deal with an emergent law and order problem or any violent situation in the district, and for providing security guards or escort of violent prisoners, or such other duties as may be prescribed". Sec. 55 ....
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....on any one of the provisions, would suffice. 103. The extent of executive powers of the Central Government has been prescribed by Article 73 of the Constitution, which is reproduced below: "73. Extent of executive power of the Union - (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend - (a) To the matters with respect to which Parliament has power to make laws; and (b) To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement; Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or....
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....nt can make laws, on police, for the Union Territories. 108. The Delhi Police Act, 1978, can be cited as one such example. The Delhi Police Act, 1978, was enacted by the Parliament for the Union Territory of Delhi even though 'police' is a subject falling under State List. 109. Explaining the concept of the extent of executive powers, the Supreme Court held, in Dr. D.C.Wadhwa & Ors. Vs. State of Bihar & Ors (AIR 1987 SC 579), that the executive cannot take away the functions of the legislature. The relevant observations, made in this regard, read as under: "....The law making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting it to the voice of legislature, it would be nothing short of usurpations by the executive of the law making function of the legislature. The executive cannot by taking resort to an emergency power exercising by it only when the legislature is not in session, take over the law making function of the legislat....
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....r ordinary law in order to carry on the particular trade or business. Thus, when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation, sanctioning such a course, would have to be passed. 114. The Supreme Court, in Ram Jawaya Kapur (supra), cautioned that if, by the notifications and acts of the executive Government, the fundamental rights, if any, of the petitioners have been violated, then, such executive actions have to be termed as unconstitutional. 115. The case law, most appropriate to the above aspect of the Constitutional limitations, imposed on the exercise of the executive power, can be found in D. Bhuvan Mohan Patnaik vs State of AP (AIR 1974 SC 2092), wherein some prisoners had challenged the installation of live electric wire on the top of jail wall as being violative of personal liberty enshrined in Article 21 of the Constitution. The Supreme Court, having questioned the legal authority justifying such installation of live wires, rejected the argument that installing of the live high-voltage wire, on the walls of jail, was solely for the purpose of preventing the escape of prisoners a....
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....ation. If the petitioners succeed in establishing that the particular measure taken by the jail authorities violates any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some "law", within the meaning of Article 13(3) (a) of the Constitution. The installation of the high voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither "law" within the meaning of Article 13(3) (a) nor are they "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore, if the petitioners. are right in their contention that the mechanism constitutes an infringement of any of the funda- mental rights available to them, they would be entitled to the relief sought by them that the mechanism to be dismantled. The State has not justified the installation of the mechanism on the basis of a law or procedure established by law" (Emphasis is supplied) 118. Moreover, a Constitution Bench of the Supreme Court, in the case of State of M.P. v. Thakur Bharat Singh (1967 SCR 454), has held that the executive action cannot infring....
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....art of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 123. The 'ratio', as can be gathered from the case of Jitendra Kumar Srivasatava (supra), is that if a legal right of a person is sought to be curtailed, it has to be done only by Statutory Rules and not by an executive instructions. 124. It is, thus, seen that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. In fact, we have already indicated above that the impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be regarded as departmental instructions, which cannot be termed as 'law' within the meaning of Art....
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....ling with the expression, "subject to the other provisions of this Constitution", has held as follows: "But the continuance in force of such an existing law is `subject to the other provisions of this Constitution'. In other words if the said law contravenes or is repugnant to any other provisions of the Constitution then it has to give way to such provision of the Constitution and its continuance in force after the commencement of the Constitution is affected to the extent it contravenes or is repugnant to the said provision. The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article 285. It is neither a law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. In either vi....
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....tice, "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" and that, "it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds." 132. In Advance Insurance Co. Ltd (supra), the question, before the Supreme Court, was whether Delhi Special Police Establishment is constitutionally valid and whether Delhi Special Police Establishment has jurisdiction to investigate cases in other States. 133. The Supreme Court had the occasion to deal with the history of the DSPE Act, 1946, and it observed as follows: "On July 12, 1943 the Governor General enacted an ordinance (XXII of 1943) in exercise of his powers conferred by Section 72 of the Government of India Act which was continued in the Ninth Schedule to the Government of India Act, 1935. An emergency had been declared owing to World War II and the powers were exercisable by the Gove....
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.... should be obtained to the extension before the powers would be exercised. Ordinance No. XXII of 1946 was repealed by the Delhi Police Establishment Act 1946 (XXV of 1946) which re-enacted the provisions of the Ordinance. This Act was adapted and amended on more than one occasion. First came the Adaptation of Laws Order 1950, enacted under Clause 2 of Article Next came the changes introduced by Part B States (Laws) Act, 1951 (Act III of 1951). They were indicated in the schedule to that Act. Those changes removed the words 'in the States' in the long title and the preamble. The purpose of this was to remove reference to the States in the phrases "for the extension to other areas in the States". The more significant changes came in 1952 by the Delhi Special Police Establishment (Amendment) Act 1952 (XXVI of 1952). In the long title (after the "Adaptation of Laws Orders 1950) the words were: An Act to make provision for the Constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government etc. After the amendment the words read : An Act to make pr....
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....ed to function in an area. In this way, Delhi Police Establishment means a police force constituted and functioning in the Union Territory of Delhi and, previously, the same force functioned, in the Chief Commissioner's Province of Delhi, then, in Part C State of Delhi and, now, it functions in the Union territory of Delhi. The relevant observations, made in this regard, in Advance Insurance Co. Ltd (supra), read as under: 29. Now the scheme of the Constitution is that the Union territories are centrally administered and if the words 'belonging to' mean belonging to a part of India, the expression is equal to a police force constituted to function in an area. In this way the Delhi Police Establishment means a police force constituted and functioning in the Union territory of Delhi. Previously the same force functioned in the Chief Commissioner's Province of Delhi, then in Part C State of Delhi and now it functions in the Union territory of Delhi. (Emphasis is supplied) 136. It will, thus, be seen that there is a clear finding, in Advance Insurance Co. Ltd (supra), that DSPE means a police force, constituted and functioning in the Union Ter....
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.... Rights, West Bengal & Ors. reported in (2010) 3 SCC 571, wherein the observations of the Constitution Bench, which the learned ASG has relied upon, read thus: "The issue which has been referred for the opinion of the Constitution Bench is whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, can direct the Central Bureau of Investigation (for short "CBI"), established under the Delhi Special Police Establishment Act,1946 (for short "The Delhi Special Police Act") to investigate a cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government" (Emphasis is supplied) 142. The learned ASG, relying upon the above observations, has submitted that the Supreme Court has held that the CBI is constituted and functioning under Delhi Special Police Establishment Act, 1946. 143. The learned ASG has also referred to the case of M. C. Mehta (Taj Corridor Scam) vs. Union of India and ors, reported in (2007) 1 SCC 110, wherein S.B. Sinha, J, concurring with the directions, which were decided to be issued t....
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....been constituted under the DSPE Act, 1946, and the correctness of this contention was never questioned or fell for determination, or discussed and/or answered, by the Supreme Court. 147. When the issue, in question, was never raised in any of the cases, which have been relied upon by the learned ASG, the observations, which have appeared, in Kazi Lhendup Dorji (supra), Committee for Protection of Democratic Rights, West Bengal & Ors (supra), and M. C. Mehta (Taj Corridor scam) (supra), to the effect that CBI is constituted under the DSPE Act, 1946, cannot be regarded as ratio decidendi or even obiter dictum. 148. We have already recorded above that, in the present appeal, we raised a pointed query, namely, whether the constitutional validity of the CBI was ever challenged, discussed and/or answered in any of the reported decisions of the Supreme Court ? To the query, so raised, learned counsel for the parties concerned and the learned amicus curiae have agreed that this issue was not raised, discussed and answered in any of the reported decisions of the Supreme Court. 149. Bearing in mind what we have pointed out above, let us, now, turn to the issues, which fell for deter....
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....otection of Democratic Rights, West Bengal & Ors (supra), was whether the High Court, under Article 226 of the Constitution of India, can direct the CBI to investigate even when the State concerned does not given its consent thereto ? The issue, so raised, in Committee for Protection of Democratic Rights, West Bengal & Ors (supra), is not the same as the one, which we have at hand, namely, whether the CBI is a constitutionally valid 'police force' or not? 155. Turning to the case of M. C. Mehta (Taj Corridor Scam) (supra), we notice that the relevant observations, which the learned ASG relies upon, read as under: "2. A purported vertical difference of opinion in the administrative hierarchy in CBI between the team of investigating officers and the law officers on one hand and the Director of Prosecution on the other hand on the question as to whether there exists adequate evidence for judicial scrutiny in the case of criminal misconduct concerning the Taj Heritage Corridor Project involving 12 accused including a former Chief Minister has resulted in the legal stalemate which warrants interpretation of Section 173(2) CrPC. *....
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....ridor Scam) (supra), that CBI is not a constitutionally valid police force. 157. When the question, which we confront, in the present appeal, was not the question raised in any of the cases, which the learned ASG has cited, it is clear that the ratio decidendi of none of the cases, relied upon by the respondents, can be of any assistance to the respondents' contention that the CBI is a constitutionally valid police force. Factually speaking, it is the general impression that DSPE is, now, called CBI, or CBI is established under the DSPE Act, 1946. It has never been questioned if CBI is, legalistically speaking, another name for the DSPE or if CBI has been validly constituted under the DSPE Act, 1946 ? When such is the situation, what shall be the duty of this Court? 158. On the above aspect of the law, we may refer to the case of Oriental Insurance Company Limited vs. Smt. Raj Kumari & ors. (AIR 2008 SC 403), wherein the Supreme Court has pointed out that the reason or principle, on which a question before a Court has been decided, is alone binding as a precedent. A case is precedent and binding for what it explicitly decides and no more and that the words of the judges, in t....
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....), that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute and that too, taken out of their context. The observations must be read in the context in which they appear to have been made. The relevant observations, made in Oriental Insurance Company Limited (supra), are reproduced hereunder: "12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. (Emphasis is supplied) 160. Again, in Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas & Anr. (AIR 2008 SC 2187), the Supreme Court, while dealing with the doctrine of....
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....expression to by the Supreme Court which is binding upon the Courts in India. Now, an 'obiter dictum' is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its determination. The Court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the 'ratio decidendi'; the opinion of the tribunal on the question which was not necessary to decide the case would be only an 'obiter dictum'. 166. Reference was, then, made, in Mohandas Issardas (supra), to the definition of 'obiter dictum' as found in Stroud's Judicial Dictionary, which is based upon the case of Flower v. Ebbw Vale Steel Iron and Coal Co., 1934-2 KB 132, and the following passage, at page 154, from the judgment of Talbot, J, in Dew v. United British Steamship Co. Ltd., 192....
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.... 169. The Bombay High Court, in Mohandas Issardas (supra), also considered the decision in Venkanna Narsinha v. Laxmi Sannappa (AIR 1951 Bom 57) and, while holding that `obiter dictum' is not binding, has observed thus: "Therefore, implicit in the Judgment of Mr. Justice Bhagwati is the position that it is only when a point arises for determination and the point is determined that an opinion expressed on that point becomes an 'obiter dictum' which is binding upon the Courts in India." (Emphasis is supplied) 170. The Bombay High Court, in Mohandas Issardas (supra), having considered various judgments of the Privy Council, Supreme Court and other High Courts, came to the conclusion as follows;-- "Now, an 'obiter dictum' is an expression of opinion on a point, which is not necessary for the decision of a case. This very definition draws a clear distinction between a point, which is necessary for the determination of a case and a point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the tribunal. Two questions may arise before a Co....
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....Judges are not oracles. In the very nature of things, it is not possible to give the same attention to incidental matters as is given to the actual issues arising for decision. Further much depends on the way the case is presented to them." In the State of Orissa v. Sudhansu Sekhar Misra and Ors. 1968 AIR 647: 1968 SCR (2) 154 dealing with the question as to the importance to be attached to the observations found in the judgments of this Court. This is what this Court observed "A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it." (Emphasis is supplied) 174. The Supreme Court, in Arun Kumar Aggarwal vs State Of M.P. & Ors. (AIR 2011 SC 3056), has considered the concept of 'obiter dictum' in the following words: "21. At this stage, it is pertinent to consider the nature and scope of a mere observation or obiter dictum in the Order of the Court. The expression obiter dictum or dicta has been discussed in American Jurisprudence 2d, Vol....
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....o P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005), the expression 'observation' means a view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed. 23. The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter dictum' as an opinion not necessary to a judgment; an observation as to the law made by a judge in the course of a case, but not necessary to its decision, and therefore of no binding effect; often called as obiter dictum, ; a remark by the way. 24. The Blacks Law Dictionary, (9th ed, 2009) defines term `obiter dictum' as a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less commonly, obiter. Strictly speaking an `obiter dictum' is a remark made or opinion expressed by a judge, in his decision upon a cause, `by the way' -- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, ana....
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....ion, as a general rule, is not binding as authority or precedent within the stare decisis rule, even on courts inferior to the court from which such expression emanated, no matter how often it may be repeated. This general rule is particularly applicable where there are prior decisions to the contrary of the statement regarded as dictum; where the statement is declared, on rehearing, to be dictum; where the dictum is on a question which the court expressly states that it does not decide; or where it is contrary to statute and would produce an inequitable result. It has also been held that a dictum is not the 'law of the case' nor 'resjudicata' 27. The concept of 'Dicta' has been discussed in Halsbury's Laws of England, Fourth Edition (Reissue), Vol. 26, para. 574 as thus: "574. Dicta. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose at hand are generally termed 'dicta'. They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as 'obiter dictum', whilst cons....
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.... or observation which is not relevant, pertinent or essential to decide the issue at hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment." 175. The elaborate discussions on the concepts of ratio decidendi and obiter dicta, made in the cases pointed above, can be summarized as follows: (a) A decision is an authority for what it actually decides. What is the essence, in a decision, is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or the principles on which a question before a Court has been decided, is alone binding as a precedent. (b) In a given case, two questions may arise before a Court for its determination. The Court may determine both, although only one of them may be necessary for the ultimate decision of the case. The question, ....