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Dhankhar orders CBI investigation, but how?

The Home Ministry, through a resolution, set up the agency in April 1963. Under Section 5 of the Act, the Central government can extend its powers and jurisdiction to the States, for the investigation of specified offenses.

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The West Bengal Governor, Jagdeep Dhankar, has sanctioned a Central Bureau of Investigation probe into certain Trinamool Congress ministers – Subrata Mukherjee, Firhad Hakim, and Madan Mitra – as well as a former Trinamool and current BJP leader Sovan Chatterjee – who were allegedly involved in the Narada scam. This is a stated fact, as of now. However, the debate may arise as to whether the Governor has the power to sanction such an investigation when the state government has withdrawn its consent to the CBI for any fresh probe into cases in West Bengal.

Technically, the CBI’s primary jurisdiction is confined to Delhi and the Union Territories. This is because the CBI draws its power from the Delhi Special Police Establishment (DSPE) Act. The Home Ministry, through a resolution, set up the agency in April 1963. Under Section 5 of the Act, the Central government can extend its powers and jurisdiction to the States, for the investigation of specified offences. However, this power is restricted by Section 6, which says its powers and jurisdiction cannot be extended to any State without the consent of the government of that State.

Hence withdrawal of consent by a state government means the CBI cannot investigate a new crime – it can still investigate an old case that it had already been investigating before withdrawal of consent by the state government, which is not the case here – in West Bengal.

There is a way around for the agency – the agency, by the nature of its conception, is not a national agency. The Supreme Court or a High Court can allow the CBI to carry out any probe. That has not happened in this case. The CBI did not approach any court of law.

The press release from the Governor’s House in West Bengal takes shelter under a curious argument. A May 9 statement by the Governor’s office said: “Governor Jagdeep Dhankhar has accorded sanction for prosecution in respect of Firhad Hakim, Subrata Mukherjee, Madan Mitra, and Sovan Chatterjee, for the reason that all of them at the relevant time of the commission of the crime was holding the position of ministers in the Government of West Bengal.”

It added: “Governor is the competent authority to accord sanction in terms of law as he happens to be the appointing authority for such ministers in terms of Article 164 of the Constitution. The sanction came to be accorded by the Governor after CBI had made a request and made available entire documentation relevant to the case to the Governor and he invoked his powers under Articles 163 and 164 of the Constitution, being the competent authority to accord such sanction.”

This is a splitting of hair, really.

The following is what Articles 163 and 164 of the Constitution say:

Power of Governor under Art 163

The Council of Ministers to aid and advise Governor:

(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.

Art 164 of Indian Constitution

Article 164 (1): The Chief Minister is appointed by the Governor of the state.

Article 164 (2): The Council of Ministers are collectively responsible to the Legislative Assembly of the state.

Article 164 (3): The Governor administers the oaths of the minister.

Article 164 (4): A Minister who is not a member of the Legislative Assembly shall cease to be a minister at the end of six months.

Read Also: Punjab Government to make NCERT, CISCE certified books for private unaided schools mandatory, says Punjab and Haryana High Court

Articles 163 (2) and (3) may be called into execution at this stage, where the governor has been given certain discretionary powers. And, being the Governor, he will also enjoy a certain degree of immunity from court action. Also, the Governor administered the oath of office to the ministers. That can be a prickly point, as well an opportunity for the governor to interfere into the administrative powers of the state.

Hence the situation is definitely not an open and shut case. It has also to be seen how much interference of the governor can be accepted by a state government. ILNS

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