The Centre Thursday urged the Supreme Court to dismiss the West Bengal government's petition accusing the Central Bureau of Investigation of registering FIRs and launching investigations without the state's consent, contending the probe agency is an "independent legal person" and the Union government has no "control" over it.
The West Bengal government has filed an original suit in the apex court against the Centre under Article 131 of the Constitution, alleging that the central agency has been filing FIRs and proceeding with investigations despite the state having withdrawn the general consent to it to probe cases within its territorial jurisdiction.
Article 131 of the Constitution empowers a state to move the Supreme Court directly in case of dispute with the Centre or any other state.
The West Bengal government withdrew the 'general consent' accorded to the CBI to conduct probe and raids in the state on November 16, 2018.
Solicitor General Tushar Mehta, appearing for the Centre, told a bench of Justices BR Gavai and Aravind Kumar that the plea of the West Bengal government is not maintainable as a suit cannot be filed against the CBI under Article 131.
"It is a remedy for deciding disputes between federal units of governance. No other party can be joined in a suit under Article 131. The Supreme Court Rules of 2013 say if there is no cause of action, then suit is liable to be dismissed. There is no cause of action against the Union of India because CBI is an independent legal person and has a separate legal identity outside the Union of India. Government has no control over it," Mehta said.
The solicitor general said the suit is also liable to be dismissed due to the absence of cause of action against the respondent -– department of personnel and training.
"The CBI cannot be made a party to the present suit under Article 131 as the same can be only between one or more state governments and Union Government or one or more State Governments on one side and government of India and any other state(s) on the other or two or more states," he said.
The bench then asked Mehta as to what the department of personnel and training has to do with the CBI.
Mehta said the DoPT does not have any functional control over CBI and it only deals with transfer, appointment or repatriation of officials of the probe agency.
"Being autonomous in regard to its functions in investigating FIRs and investigating cases, the CBI is the party against which the plaintiff (West Bengal government) actually is seeking relief," he said.
"However, in light of the fact that in terms of Article 131 of the Constitution of India the dispute has to be between the Government of India and one or more States, or between States, the plaintiff has used a device by which it excludes the real defendant (CBI) and substitutes the central government, which has not done anyone of the acts sought to be prevented by the prayers in the suit," the solicitor general said.
Referring to the prayers made in the suit, Mehta submitted that the first prayer seeks a declaration that registration of cases by the respondent after withdrawal of consent is unconstitutional.
"The Union of India has not registered any case in the state of West Bengal, nor has it been investigating any case. Yet, as is evident from the prayers, each and every prayer in the present suit is directed either towards restraining the Union of India from investigating any case or towards quashing cases where the Union of India has allegedly registered FIRs," he said.
Mehta submitted the 12 cases which have been referred to in the suit were registered by the CBI on the direction of the Calcutta High Court and one was registered under the direction of the apex court.
"These facts are completely absent from the suit. There's an attempt to mislead this court as facts have been suppressed," he said, adding that on similar grounds appeals in cases mentioned in the suit are also pending before the top court.
He submitted that the CBI, as an organisation not being part of the phrase "Government of India", cannot be made a party to the present suit.
"Further, considering the nature of the prayers made, it is clear that the prayers are against the CBI and therefore, the suit itself is not maintainable," he said.
Senior advocate Kapil Sibal, appearing for the West Bengal government, said there cannot be any investigation by the CBI once the general consent has been withdrawn.
"No CBI, nobody can lodge an FIR. This is a constitutional issue. He (Mehta) has filed his written submissions and raised a preliminary objection that the suit is not maintainable," Sibal said, adding that even after the consent was withdrawn several FIRs were lodged and the state had to knock on the door of this court.
He said cases referred to in the suit are illustrations of cases where FIRs were filed after withdrawal of the consent.
"If some FIR is filed, the state government does not have the locus to challenge it. Only the accused can challenge it. This is another conceptual confusion. Only challenge the government can make is that the FIR was lodged by the CBI after the consent was withdrawn," he said.
Sibal said the only issue before the court is the ambit of the jurisdiction of the CBI in respect of cases registered by it after the state government withdrew the consent.
"It violates federalism, which is a basic structure of the Constitution. Let's disabuse ourselves of the notion that what is being sought is quashing of case A or case B. This is a constitutional question which is being raised. It's quite a different thing to say that CBI has nothing to do with the Union government. It was created by the government notification," the senior lawyer said.
The hearing in the matter remained inconclusive and will resume on November 23.
Justice Gavai said the combination of the judges on the bench will change from Friday and therefore he is directing the registry to seek permission of the Chief Justice of India DY Chandrachud for constitution of the bench that would hear the matter.
