TMI Blog2013 (11) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Judge, CBI, Assam, Kamrup, Guwahati – Held that:- CBI 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 - 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. No statute has been enacted by Parliament establishing a body called CBI. Since there is no legislation constituting the CBI, the CBI’s constitutional validity, according to the learned Amicus Curiae, has to be tested in the light of the provisions embodied in the Constitution of India - Whereas DSPE has been established under the DSPE Act, 1946, the CBI, has been constituted by a mere executive fiat - If the impugned Resolution had received the assent 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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 Article 13(3) (a) nor can the executive instructions, embodied in the impugned Resolution, dated 01.04.1963, be regarded to fall within the expression, "procedure established by law", as envisaged by Article 21 of the Constitution - Actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused, etc., offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional. Appellant has been able to make out a case calling for interference with the impugned Resolution, dated 01.04.1963, and also with the impugned prosecution of the appellant on the basis of the charge-sheet, which has been laid by the CBI, in the Court of the learned Special Judge, Assam, Kamrup, and, as a sequel to the conclusions - Impugned Resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 2 of the Concurrent List empower the Union Government to raise a police force and that, too, by way of Executive instructions of Union Home Ministry? (vi) Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a police force in the name of CBI? (vii) Above all, is it permissible for the Executive to create a police force with power to investigate crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21? 3. The present appeal has arisen out of the judgment and order, dated 30-11-2007, passed, in Writ Petition (Civil) No. 6877 of 2005, by a learned Single Judge of this Court dismissing the writ petition, whereby the writ petitioner had sought for, inter alia, (i) quashing of the impugned Resolution No. 4/31/61-T, dated 01-04-1963, whereunder the Central Bureau of Investigation stands established, as ultra vires the Constitution of India and (ii) quashing of the criminal proceeding/prosecution, which originated from the FIR/RC No. 39(A)/2001/CBI/SIL and is presently pending against the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Legislature, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India. (v). To substantiate the above contention, reliance was placed on the Constituent Assembly debates, dated 29-08-1949, wherein Dr. BR Ambedkar had clarified that the word investigation , appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, Central Bureau of Intelligence and Investigation , would not permit making of an investigation into a crime by the Central Government inasmuch as investigation would be constitutionally possible only by a police officer under the Cr.P.C., police being exclusively a State subject and the word investigation , appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an enquiry and not investigation into a crime as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of First Information Reports, arrests of persons, investigation of crimes, filing of charge sheets and prosecution of the offenders cannot be permitted, for, allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21 of the Constitution of India, which expressly provides that no person shall be deprived of his life and liberty except according to the procedure established by law. 9. The word law , within the meaning of Article 21, would, according to the learned counsel for the appellant, mean legislation and not executive instructions or executive fiat, such as, the one, whereunder the CBI has been created and established inasmuch as no executive instructions can be acted upon if any such instructions violate or offend the fundamental rights guaranteed under Part III of the Constitution of India. 10. It is the submission of the learned counsel for the appellant that at best, the CBI may be treated to have been constituted by the Central Government under Entry 8 of the List-I (Union List); but there is no co-relation between the Entry 8 of List I and Entry 2 of List II inasmuch as Entry 8 of List I does not, in the light of the Constituen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is competent to make law on any of the subjects/entries mentioned in List-II, yet, such laws can be made only for Union Territories inasmuch as these territories do not have their own legislature and according to Article 239 of the Constitution of India, the laws, enacted by Parliament for Union Territories, are to be administered through an administrator. It is submitted by Mr. Choudhury, learned counsel, that the power to make laws is one thing and the administration of those laws is quite another and it is not vice versa. Though Parliament may make law, for Union Territories, on the State subjects, the fact remains that the administration of these laws, reiterates Dr. Choudhury, has to be through an administrator appointed under Article 239 and not by the Central Government. 14. Learned counsel for the petitioner, while drawing an analogy with the police administration in Delhi, submits that Section 3 of Delhi Police Act, 1978, which is an Act of the Parliament, provides that there shall be one police force for whole of Delhi and, thus, according to Dr. LS Choudhury, there cannot be more than one police force functioning in Delhi, particularly, when, points out Dr. Choudhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken to have been covered by Entry 80 of List I (Union List) of the Seventh Schedule to the Constitution of India inasmuch as the expression, Central Bureau of Intelligence and Investigation , occurring in Entry 8 of List I (Union List), may be read to mean two different agencies, namely, Central Bureau of Intelligence and Central Bureau of Investigation and, for this purpose, the word and , appearing in the expression, Central Bureau of Intelligence and Investigation , may be read as or . E) Under Article 73 of the Constitution of India, the executive powers of the Union extends to matters with respect to which Parliament has the power to make laws and the resolution, dated 01.04.1963, whereunder CBI has been constituted, can be treated to have been issued by virtue of Union of India s executive powers as embodied in Article 73; F) That the Central Government can also be treated to have constituted the CBI by taking recourse to its powers as specified in Entry 1 and 2 of List III (Concurrent List) of the Seventh Schedule to the Constitution of India; G) That the Constitutional validity of Delhi Police Establishment Act, 1946, has already been upheld by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HE AMICUS CURIAE 18. Mr. N. Dutta, learned Amicus Curiae, has submitted that the impugned Resolution, dated 01.04.1963, clearly shows that the CBI has been constituted for achieving six specified purposes as have been mentioned in the Resolution itself and till date, no statute has been enacted by Parliament establishing a body called CBI. Since there is no legislation constituting the CBI, the CBI s constitutional validity, according to the learned Amicus Curiae, has to be tested in the light of the provisions embodied in the Constitution of India. 19. It is also submitted by the learned Amicus Curiae that the CBI and the DSPE are not one and the same thing, but everybody appears to have proceeded on the basis that the CBI and DSPE are one and the same thing. Whereas DSPE has been established under the DSPE Act, 1946, the CBI, points out learned Amicus Curiae, has been constituted by a mere executive fiat. 20. It has been further submitted by the learned Amicus Curiae that though the CBI has been empowered under the impugned Resolution, dated 01.04.1963, to investigate crimes, no power has been specifically provided for prosecution of offenders by the CBI. In fact, poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e local jurisdiction he, as a CBI officer, may be investigating a case. QUERIES RAISED BY THE COURT 23. After hearing the parties as well as the learned Amicus Curiae this court raised the following queries: 1) If a Pre-constitutional law was made on a subject, which is, now, covered by State List, whether the law will be valid after the Constitution has come into force bearing in mind Article 372? 2) Whether a law can be made by Parliament, on a subject covered by the State List, in respect of a Union Territory, after the Constitution has come into force? 3) The Executive power of the State is co-extensive with its legislative power. Is it, therefore, possible to constitute an investigating agency by a State taking recourse to State s executive Power ? 4) Delhi was a Part-C State under the Govt. of India Act. On coming into force of the Constitution, it was made a Union Territory and it has, now, the status of a State, but some of its powers, under the State List, are exercised by Parliament. The Court wants to know details of the legislative history of the present status of Delhi, as a State, and its legislation making process. (Emphasis added) 24. In respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Establishment Act and, if not, whether a force, with the object of investigation of crimes preparatory to filing of charge-sheet for prosecution of offender, can be created by the Central Government by way of an Executive order/Resolution and whether the CBI can be said to be validly created by the Central Government by was of an Executive order/Resolution. 28. Let us consider the first question, namely, whether CBI is established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment Act. WHETHER CBI IS A NON-STATUTORY BODY? 29. A statutory body, as the name suggests, is a body, which has a legislative sanction. In other words, a body or agency can be termed as statutory only when it is created by a statute to carry out certain functions. 30. The petitioner submits that the CBI has not been constituted under any law; rather, the same has been created by the Central Government by way of Executive Order/ Resolution No. 4/31/61-T, dated 01.04.1963. It is further submitted by the petitioner that the Central Government cannot create CBI by way of an Executive Order and such an agency cannot carry out police functions, i.e., to register FIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of laws relating to crime. As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:- (i) INVESTIGATION AND ANTI-CORRUPTION DIVISION. (DELHI SPECIAL POLICE ESTABLISHMENT). (ii) TECHNICAL DIVISION. (iii) CRIME RECORDS AND STATISTICS DIVISON. (iv) RESEARCH DIVISION. (v) LEGAL DIVISON GENERAL DIVISION. (vi) ADMINISTRATION DIVISION. The Charter of function of the above-said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases. Sd/- (V. VISWANATHAN) Secretary to the Government of India 34. The expression As a first step in that direction , appearing in the impugned Resolution, dated 01-04-1963, goes to show that the CBI was constituted as an ad hoc measure to deal with certain exigencies. This measure, taken by the Union Government, was not in the form of any Ordinance; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary that the Statute itself empowers the Executive to issue notification/resolution to meet the exigencies of time; whereas no such power is vested in the Central Government by the DSPE Act, 1946. 40. On a reading of the various provisions of the DSPE Act, 1946, the executive powers, as endowed by the DSPE Act, 1946, can be pointed as follows: Section 2:- Central Government may constitute special police force called DSPE for Union Territory of Delhi. Section 3:- Central Government may notify the offences, which may be investigated by the DSPE Section 5:- Central Government may notify the areas, where DSPE can exercise jurisdiction meaning thereby that if Central Government has not extended the operation of DSPE to the State of Assam, then even if the State of Assam consents to an investigation by the DSPE, the DSPE would not be in a position to investigate. 41. The following aspects may be culled out on an analysis of the scheme of the DSPE Act, 1946: 42. In essence, the DSPE was established only to exercise unrestricted power of investigation in the Union Territory of Delhi. It can investigate offences in a State, other than Delhi, provided that the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant. In India there is, at present, no Inter-State Agency. 47. At Page 20, there is a letter dated 20.8.1962, of the Director General of Special Police Establishment, which reads as follows: I forward herewith, for what it may be worth, a note giving certain suggestions of implementing the decision of the Home Minister to constitute and set up a Central Bureau of Investigation At page 21: I think there was some discussion previously whether the setting up of this Bureau of Investigation required the consent of the States or not. Now under the Defence of India Regulations, the Centre can perhaps set up this bureau as an emergency measure. At page 23:- In the `summary placed below, the previous history of the proposal for the re-organisation of the Central Intelligence Bureau into the Central Bureau of Intelligence and Investigation has been briefly brought out. This question was examined in 1949-51 and a suitable provision enabling the Parliament to legislate for the establishment of a Central Bureau of Intelligence and Investigation was made in the draft Constitution. Thereafter, it was proposed to undertake legislation for this purpose and State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes. 3. When these questions are examined in the light of existing arrangements between the Centre and the States and of the legal provisions that are already available, it does not appear to be necessary to have consultation with the States and to promulgate a new comprehensive Act before constituting the Central Bureau of Investigation. 4. There is already a provision in the Constitution for setting up a Central Bureau of Investigation. The States and their Chief Ministers would have been consulted and all aspects of the matter would have been examined and taken into consideration by the framers of the Constitution before this provision was incorporated. It would, therefore, be perfectly legal and within the ambit of the Constitution to constitute and set up a Central Bureau of Investigation. Moreover, it is understood that even after the Constitution was passed the States were consulted on this issue and there was general agreement on the need for setting up a Central Bureau of Investigation. 5. If the functions and the items to be allotted to the C.B.I. are only those which are already being attended to by one Agency or another under the Central government, there should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppear that all that is necessary to implement this proposal is to issue administrative orders (i) constituting and setting up a Central Bureau of Investigation as provided for in the Constitution; (ii) declaring the S.P.E. to be a wing of the C.B.I. and an integral part of it and under its administrative control; 49. At page 126, various posts and pay scales are mentioned. 50. It is apparent from the notings, which we have referred to above, that the Central Government had set up altogether a new body known as CBI by the impugned Resolution. It is further found that the Union Home Ministry was working on the assumption that there is already provision in the Constitution for creation of the CBI. Admittedly, at that time, no legislation was made to set up the CBI and the source of power were being traced to Entry 8 of Part I (Union List), which reads, Central Bureau of Intelligence and Investigation. . 51. Coming, now, to the argument of learned ASG that the CBI may be found to be treated to have been created by way of an executive instruction, the source of power being traceable to Entry 8 of List I (Union List), it may noted that Entry 8 of List I (Union List) reads, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The original entry was Central Intelligence Bureau . The redrafted entry is Central Bureau of Intelligence and Investigation. The words and Investigation seem to me to appear to give an ambiguous effect. I submit that the duty of the Union Government would be to maintain a Central Intelligence Bureau. That is all right. Then we have the words and Investigation and we do not know what these words really imply. Do these words and investigation mean that the Bureau of Investigation was merely to carry out the investigation? They will mean entirely different things. If it is to enlarge the scope of the Central Intelligence Bureau as well as the Bureau of Investigation, that would have been a different matter but Dr. Ambedkar in answer to a question put by Mr. Mahavir Tyagi has said that the Central Government may think it necessary to carry on investigation. Sir, I submit the effect of this amendment, if that is the kind of interpretation to be given to it, would be extremely difficult to accept. We know that investigation of crime is a provincial subject and we have, already conceded that. If we now allow the Central Government also to investigate, the result would be that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o place in the Union List. The word investigation therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do. 55. The learned ASG, on the other hand, argues, that if the language of an Act is unambiguous and clear, no reliance can be placed on the Parliamentary debates and one may look to the Statement Objects and Reasons and not to the Parliamentary debates. 56. In support of the above contention, the learned ASG has relied upon the decision, in Anandji Haridas Co. (P) Ltd. Vs. Engineering Mazdoor Sangh (1975) 3 SCC 862, wherein the relevant observations, appearing at para 9, reads, 9. We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction clause (e) of section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words. 10. As a general principle of interpretation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government concerned. 60. Coupled with the above, if the debates, in the Constituent Assembly, are borne in mind, the word, investigation , became a subject matter of debate, primarily, for the reason that it would amount to encroachment into the realm of the subject matter of State List. The word, investigation , appearing within the expression, Central Bureau of Intelligence and Investigation , was sought to be justified, in the Constituent Assembly, contending that Police is exclusively a State subject and it has no place in the Union List. The word investigation was, therefore, according to the Constituent Assembly, intended to cover general enquiry for the purpose of finding out what is going on and this investigation is not an investigation preparatory to the filing of a charge-sheet against an offender, which only a police officer, under the Criminal Procedure Code, can do. 61. Learned ASG further argues that the expression Intelligence appearing in Entry 8 may be read in the Central Bureau of Investigation even though in general the expression in not used in its designation. 62. It is necessary to point out here that the intent of embodying the Constitue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debates, intended to cover general enquiry for the purpose of finding out what was going on and this investigation , which amounts to a mere enquiry , is not an investigation preparatory to the filing of charge sheet against an offender, for, such an investigation can be carried on by only a police officer, under the Criminal Procedure Code, and none else. This apart, it is State legislature, which is entitled to constitute a police force for the purpose of conducting investigation into crime. 68. From the above discussion, which took place in the Constituent Assembly, it becomes crystal clear that the Parliament cannot, by taking resort to Entry 8 of List I (Union List), make any law empowering a police officer to make investigation in the same manner as is done, under the Criminal Procedure Code, by a police officer, while conducting an investigation into an offence for the purpose of bringing to book an offender. 69. In the above view of the matter, the impugned Resolution, dated 01.04.1963, constituting the CBI, as an investigating agency, in order to carry out investigation into commission of offences in the manner as is done by a police officer under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DSPE Act, 1946, would show that the DSPE Act, 1946, extends to whole of India meaning thereby that it is an embodiment of Entry 80 of List I (Union List), which enables Parliament to make law permitting extension of the operation of a police force to another State. It is in this light that Sections 5 and 6 of the DSPE Act, 1946, need to be read together inasmuch as a combined reading of Sections 5 and 6 of the DSPE Act, 1946, makes it clear that the Central Government is empowered to extend the activities of the DSPE to any other State with, of course, the consent of the State concerned. 75. Apprehending that his argument that CBI can be said to have been constituted, in exercise of power under Entry 8 of List I (Union List), may not, in the light of the Constituent Assembly debates, cut much ice with this Court, the learned ASG has submitted, perhaps, as a precautionary measure, that if constitution of the CBI cannot be traced to the Parliament s power under Entry 8 of List I (Union List), CBI may be validly safeguarded by virtue of Entry 80 of List I (Union List) inasmuch as CBI can be said to have been constituted in exercise of power under Entry 80 of List I (Union List). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat various Entries, in the Lists of Seventh Schedule, do not give any power to legislate; rather, the Entries demarcate the fields of legislation between the States and the Centre. In this regard, following observations, appearing in State of West Bengal Ors. Vs. Committee for Protection of Democratic Rights, West Bengal Ors. (2010) 3 SCC 571, being relevant, are extracted: 27.Though, undoubtedly, the Constitution exhibits supremacy of Parliament over the State Legislatures, yet the principle of federal supremacy laid down in Article 246 of the Constitution cannot be resorted to unless there is an irreconcilable direct conflict between the entries in the Union and the State Lists. Thus, there is no quarrel with the broad proposition that under the Constitution there is a clear demarcation of legislative powers between the Union and the States and they have to confine themselves within the field entrusted to them. It may also be borne in mind that the function of the lists is not to confer powers; they merely demarcate the legislative field... (Emphasis supplied) 82. Learned ASG, while placing reliance on the case of Advance Insurance Co. vs. Gurudasmal, report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce functioning in the Union Territory of Delhi. However, by no stretch of imagination, the case of Advance Insurance Co. Ltd. (supra) be regarded as a precedent on the point that CBI is a body constituted under the DSPE Act, 1946, nor is the case of Advance Insurance Company Limited (supra) be regarded as a precedent to justify CBI as a validly constituted police force empowered to investigate offences preparatory to filing of charge-sheets. 86. The case of Advance Insurance Co. Ltd. (supra), thus, does not advance, or come to the assistance of, the respondents case that the CBI is borne out of the DSPE Act, 1946, or that the CBI can be regarded as a police force constituted by the Central Government by taking resort to Entry 80 of List I (Union List). 87. Consequently, it would not be a correct proposition of law to contend that Entry 80 of List I (Union List) validates the impugned Resolution, dated 01.04.1963, as an executive instruction of the Union Government, because Entry 80 of List I (Union List) presupposes existence of a valid police force before the area of jurisdiction of such a police force is extended from one State to another State with the consent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2013, which introduced amendments in Indian Penal Code, CrPC, Evidence Act, etc., there were some States, which had already amended some of the features of Section 354 IPC. 94. Thus, in the State of Andhra Pradesh, Sec. 354 IPC Andhra Pradesh Act 6 of 1991 read as follows: 354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine: Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years but which shall not be less than two years. 95. The State of Orissa had also, by virtue of Orissa Act 6 of 1995, (w.e.f. 10-3-1995), introduced amendments in Section 354, which made the offence a non-bailable offence, though in the State of Assam, where no such amendments were made, the offence remained a baila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial Crime Investigative Unit has been conceived as an investigation organ in cities having population of more than 10 lakhs. 100. The arguments of learned ASG, with reference to Entry I and 2 of List III, do not come to the rescue of the respondents for the simple reason that under List III, laws, on criminal procedure and penal laws, can be framed on any of the subjects, which are not covered by List I and List II. Since Entry 8 of List I (Union List) makes Parliament specifically competent to enact a law on Central Bureau of Intelligence and Investigation , it would be a destructive submission to say that if not under Entry 8 of List I, then, under Entry 1 and 2 of List III, CBI s existence can be validated, particularly, when Entry 2 of List III (Concurrent List) deals with procedure of investigation and trial of offences and not with the constitution of a police force . 101. The question, now, is: whether the impugned Resolution, dated 01.04.1963, is an executive action and, therefore law within the meaning of Article 13 (3)(a) and/or Article 21 of the Constitution of India? 102. Before entering into the discussion whether the impugned Resolution, dated 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with Article 245 and Article 246 of the Constitution, which embody the concept of federal structure of our Constitution. Though within the powers vested in the Union and the States, each of these entities possesses plenary powers, their powers are, among others, limited by two important barriers, namely, (i) the distribution of powers by the Seventh Schedule and (ii) the Fundamental Rights included in Part III. 106. A combined reading of Article 245 and Article 246 shows that Parliament and State Legislatures have Constitutional competence to make laws. However, the subject matter of the laws to be made have been delineated in the form of three lists, namely, Union List, State list and the Concurrent list. This apart, Parliament has the power to make laws, with respect to any matter, for any part of the territory of India, not included in a State, notwithstanding that such a matter is a matter enumerated in the State List. In other words, it is within the legislative competence of Parliament to make law, on subjects covered by State List, for those territories, which do not fall within any of the States. 107. For instance, police is a subject falling under Entry 2 of List I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be, this power is to be exercised within the limits prescribed by the Constitution or any law for the time being in force. That apart, once a legislation occupies a field, neither any of the States nor the Union can exercise its executive powers on the same field inasmuch as the legislation is the primary work of the Legislature and not of the Executive. 111. So far as the operational effectiveness of executive action is concerned, the Supreme Court, in the case of Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC 549), while dealing with an argument of violation of fundamental rights, observed that ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. 112. Elucidating further, the Supreme Court, in Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC 549), observes that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another and that Executive can, indeed, exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature. 113. The Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mechanism, in question, constitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought for by them that the mechanism shall be dismantled. 117. The State, in D. Bhuvan Mohan Patnaik (Supra), which had acted on executive instructions in installing live high-voltage wire on the walls of the jail, could not justify installation of this mechanism on the basis of a law or procedure established by law inasmuch as the executive instructions, which had been acted upon, were held by the Supreme Court to be not a law within the meaning of Article 13(3)(a) nor could these instructions, according to the Supreme Court, fall within the expression, procedure established by law , as envisaged by Article 21. The relevant observations, appearing in this regard, in D Bhuban Patnaik (supra), read as follows; 14. But before examining the petitioners' contention, it is necessary to make a clarification. Learned counsel for the respondents harped on the reasonableness of the step taken by the jail authorities in installing the high-voltage live- wire on the jail walls. He contended that the mechanism was installed solely for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3), the notion of inherent and autonomous law making power, in the executive administration, is a notion that must be emphatically rejected. 121. In one of the recent cases, namely, State of Jharkhand vs Jitendra Kumar Srivasatava, Civil Appeal 6770/2013 dated 14.8.13, the question confronting the Supreme Court, was whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during pendency of departmental/ criminal proceedings? 122. The Supreme Court, while answering the query, so posed, held that pension is a property within the meaning of Article 300A and since the executive instructions, withholding pension, are not having statutory character, it cannot be termed as law within the meaning of Article 300A. The Supreme Court further held, in Jitendra Kumar Srivasatava (supra), that on the basis of a circular, which is not having force of law, not even a part of pension or gratuity can be withheld. The relevant observations made, in this regard, in Jitendra Kumar Srivasatava (supra), read as follows: 15. It hardly needs to be emphasized that the executive instructions are not having statutory character ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, or a law, which had been in force, immediately preceding the commencement of the Constitution of India, would be inoperative and invalid if it, otherwise, violates any of the fundamental rights, particularly, life and liberty of a person. 128. Support, for the above submission, is sought to be derived by Dr. L. S. Choudhury, learned counsel for the appellant, by drawing attention of this Court to the expression, subject to the other provisions of this Constitution , which appears in Article 372. The second reason, according to Dr. L. S. Choudhury, is that the Parliament does not have legislative competence to enact law on police inasmuch as police is a State subject, covered by Entry No.2 of List II (State list), and it is, therefore, the State Legislature alone, which is competent to enact law on police . Yet another ground, assailing the validity of the DSPE Act, 1946, is that it extends, in terms of Section 1 of the DSPE Act, 1946, to the whole of India; whereas, no law, made on police , can extend to the whole of India. 129. To buttress his argument, with respect to the phrase, subject to other provisions of this Constitution , reliance has been placed, on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smal, reported in (1970) 1 SCC 633. 131. The Learned ASG has further submitted that the pre-constitutional laws are not to be regard as unconstitutional and the burden is not upon the State to establish its validity; rather, the burden is upon the person, who challenges the constitutional validity of a pre-constitutional law to show that the pre-constitutional law is invalid. To support his contention, the learned ASG has placed reliance on the decision of the Supreme Court, in Deena v. Union of India, reported in (1983) 4 SCC 645, wherein the Court has observed, at para 11, as under: Pre-Constitution laws are not to be regarded as unconstitutional. We do not start with the presumption that, being a pre-constitution law, the burden is upon the State to establish its validity. All existing laws are continued till this court declares them to be in conflict with a fundamental right and, therefore, void. The burden must be placed on those who contend that a particular law has become void after the coming into force the Constitution by reason of Article 13(1), read with any of the guaranteed freedoms .a quotation extracted by Krishna Iyer, J. in B. Banerjee v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on September 25, 1946 another ordinance of the same name (No. XXII of 1946) was promulgated. This constituted a special police force for the Chief Commissioner's province of Delhi for investigation of certain offences committed in connection with matters concerning departments of the Central Government. The scheme of this ordinance was slightly different. under Section 2 Special Police Establishment was constituted for the Chief Commissioner's Province of Delhi for the investigation in that province of offences notified in Section 3. This was notwithstanding the provisions of the Police Act of 1861. The Police Establishment had throughout the Chief Commissioner's Province of Delhi in relation to those offences the powers, duties, privileges and liabilities of the regular police officers subject, however, to any orders which the Central Government might make in this behalf. Section 3 of the new ordinance was almost the same as Section 3 of the previous ordinance. The only changes were that the offences had to be notified and the power to refer any particular case was not repeated. In the ordinance Section 5 provided that the consent of the Government of the Governor's Province or of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications succeeded which notified the offences which the Special Police Establishment could investigate . 134. Having traced out the history of the DSPE Act, 1946, the Supreme Court recorded, in Advance Insurance Co. Ltd (supra), the appellant s argument that Delhi was not a State within the meaning of Entry 80 of List I (Union List) and, hence, Delhi being a Union Territory, its laws cannot be extended to any other State inasmuch as Entry 80 of List I of the Union List speaks of a police force of a State and not of Union Territory. Referring to Section 3 (58) of the General Clauses Act, the Supreme Court pointed out, in Advance Insurance Co. Ltd (supra), that after independence, the General Clauses Act had been adopted by giving a new definition of the State and, hence, the word, State , appearing in Entry 80 of List I (Union List), would include a Union Territory as well. 135. Concluded, therefore, the Supreme Court, in Advance Insurance Co. Ltd (supra), that the scheme of the Constitution is that the Union Territories are centrally administered and if the words 'belonging to', appearing in Entry 80, mean belonging to a part of India, the expression is equal to a police fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the CBI is not a part or organ of the DSPE, under the DSPE Act, 1946. 139. We, however, consider it necessary to look into those decisions, which have been relied upon by the learned ASG, to contend that CBI is an organ or part of the DSPE, under the DSPE Act, 1946. 140. With regard to the above, the learned ASG has relied upon the decision, in Kazi Lhendup Dorji vs. Central Bureau of investigation Ors. 1994 Supp (2) SCC 116. The relevant observations read as under: 2. The Act was enacted 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 areas of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences. DSPE constituted under the said Act is now known as the Central Bureau of Investigation (CBI) . (Emphasis is supplied) 141. The learned ASG has also referred to a Constitution Bench decision, in State of West Bengal Ors. Vs. Committee for Protection of Democratic Rights, West Bengal Ors. reported in (2010) 3 SCC 571, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Bengal Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra), which have been referred to, and relied upon, by the learned ASG, are not applicable to the issues, which have been raised in the writ petition and the present appeal inasmuch as the principal issue, in the writ petition and the writ appeal, is as to whether the CBI is a constitutionally valid police force and, in none of the decisions, which have been referred to, and relied upon, by the learned ASG, the issue, in question, fell for determination. 146. It has also been submitted, on behalf of the appellant, that the Hon ble Supreme Court s observations, appearing 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 DSPE is, now, called the CBI, or that the CBI has been constituted under the DSPE Act, 1946, are as a measure of narration of facts and not the ratio of the case inasmuch as it has always been the claim of the Union of India that CBI has been constituted under the DSPE Act, 1946, and the correctness of this contention was never questioned or fell for determination, or discussed and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lhendup Dorji (supra). Hence, the decision, in Kazi Lhendup Dorji (supra), cannot be held to be applicable to the present case. 153. Similarly, in the case of Committee for Protection of Democratic Rights, West Bengal Ors (supra), the issue, which really fell for determination, was, in the words of the Constitution Bench, as follows: 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) 154. Thus, the only issue, which arose for determination, in Committee for Protection 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms thereof. Sub-section (2) of Section 2 provides that subject to any orders which the Central Government may make in this behalf, members of the said police establishment shall have throughout any Union Territory, in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union Territory have in connection with the investigation of offences committed therein. The said Act indisputably applies in regard to charges of corruption made against the public servants. 156. From a bare reading of what have been observed above, it becomes clear that the issue, which we have at hand, namely, whether the CBI is a constitutionally valid police force or not, was not a question for determination in the case of M. C. Mehta (Taj Corridor Scam) (supra). In fact, it was never contended, in M. C. Mehta (Taj Corridor 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 non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. Vs. Bhanwanti Devi and Ors. (1996 (6) SCC 44.: 1996 AIR SCW 4020). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathern (1901) AC 495 (H.L.) Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides. (Emphasis is supplied) 159. Striking a word of caution for Courts, the Supreme Court held, in Smt. Raj Kumari Ors. (supra), 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s described as "statements of law made by a judge in the course of a decision, arising out of the circumstances of the case, but not necessary for the decision. 165. In Mohandas Issardas v. A. N. Sattanathan (AIR 1955 Bom 113), the point, under consideration, was whether an obiter dictum of the Supreme Court was as much binding upon the High Courts as an express decision given by the Supreme Court. However, the allied question, as to what is an obiter dictum, which has a binding effect upon a Court, was also commented upon. Obiter dictum was regarded as an expression of opinion on a point, which was not necessary to the decision of the case. The observations are as follows: .6. But the question still remains as to what is an 'obiter dictum' given 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 determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of `obiter dictum , the Bombay High Court, in the case of Mohandas Issardas (supra), observed as under: The reason why we refused to be bound by this opinion was that we failed to see any observation which the Privy Council had made on the rights of after-born sons with regard to alienations of joint family property. Although this observation was made by the Privy Council, the point was not determined by the Privy Council, and it is clear from that judgment that no arguments were advanced and the Privy Council contented itself with deciding the question on the nature of the alienation, namely, that legal necessity justified the alienation. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r simply 'dicta', and it is extremely difficult to establish any standard of their relative weight." (Alien in his Law in the Making). 173. A Constitution Bench of eleven judges of the Supreme Court, in H. H. Maharajadhiraja Madhav Rao vs Union of India (1971 AIR 530), had the occasion to consider the scope of obiter dictum and observed as under: Every observation of this Court is no doubt, entitled to weight but an obiter, cannot take the place of the ratio. 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. (Empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. Nevertheless courts have sometimes given dicta the same effect as holdings, particularly where judicial dicta as distinguished from obiter dictum are involved 22. According to 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 conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the professed deliberate determination of the judge himself. The term dictum is generally used as an abbreviation of obiter dictum which means a remark or opinion uttered by the way. Such an expression or opinion, 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations or casual expressions of the Court, is not of much avail to the respondents. 31. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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