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Calcutta HC to examine validity of DSPE Act and CBI

By IndianMandarins- 02 Apr 2019


The Calcutta High Court will examine and decide the validity of the Delhi Special Police Establishment Act and its baby called the Central Bureau of Investigation (CBI).

Justice Protik Prakash Banerjee has ordered that the case relating to the validity of the DSPE Act be placed before a Bench of two or more judges following the submissions of Amicus Curiae Phiroze Edulji.


The questions framed by the High Court in relation to the case are as follow:


Whether the Delhi Special Police Establishment Act, 1946 is a valid piece of legislation?

Whether the Central Bureau of Investigation is an organ or a part of Delhi Special Police Establishment?


In a Constitution having federal form with distinct feels of legislation apportioned to the federal legislature and/or the federating legislature with corresponding executive power where law and order and their maintenance are part of the power given to the federating states whether a federal police force even for investigation can be made by central legislation without following the procedure established by the Constitution of India for central legislature making laws which would be enforceable in each of the States?


Further, taking note of the fact that the Supreme Court has granted a stay on the Gauhati High Court judgment in this regard, the Calcutta High Court has also framed the following questions:


What is the effect of an order of the Supreme Court which stays the operation of a final order of a Division Bench of a High Court which holds that a Central Statute is not a valid piece of legislation?


Whether admission of special leave petition and stay of a final judgment of the nature referred to above would mean that the Supreme Court has declared any law by such interim order of stay?


Amicus Curiae Edulji submitted that the case involves substantial questions of law as to the interpretation of the Constitution of India. He, therefore, requested the Bench to place the matter before a Bench of three or more judges.

The Court noted his submissions and ordered that the matter be placed before the Chief Justice for the constitution of an appropriate Bench.


“I think that these are the questions, which ought to be decided by a bench whose judgment would be binding on all other Courts of this State. Accordingly, I most respectfully request that the matter be placed before the Hon’ble Chief Justice/Acting Chief Justice for His Lordship to consider whether or not to constitute a Special Division Bench or a Special Bench comprising two or more judges for deciding the law involving interpretation of the Constitution of India”, the High Court stated in its order.

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