Cbi and murder case investigations- violation of Right to Equality and Article 39A

Thanks for the comments,please discuss considering following points"

Administrative Discretion and Article 14. Article14 prevents arbitrary discretion being vested in the executive. Equality is antithetic to arbitrariness. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. Right to equality affords protection not only against discretionary laws passed by legislature but also prevents arbitrary discretion being vested in the executive. Often executive or administrative officer or Government is given wide discretionary power. In a number of cases, the Statute has been challenged on the ground that it conferred on an administrative authority wide discretionary powers of selecting persons or objects discriminately and therefore, it violated Article 14. The Court in determining the question of validity of such statute will examine whether the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of selection or classification. The Court will not tolerate the delegation of uncontrolled power in the hands of the Executive to such an extent as to enable it to discriminate. In State of West Bengal v. Anwar Ali, AIR 1952 SC 75. It was held that in so far as the Act empowered the Government to have cases or class of offences tried by special courts, it violated Article 14 of the Constitution. The court further held the Act invalid as it laid down “no yardstick or measure for the grouping  

According to the New International Webster’s Dictionary, discretion means the act or liberty of deciding according to justice and propriety and one’s

idea of what is right and proper under the circumstances, without willfulness or favor.

 

Most of high profile or widely telecasted murder cases get referred to CBI, ex Aarushi murder case, state police did its best but still referred to CBI, Geetanjali garg murder case referred to CBI within 10 days, while many other cases were not referred.

 

CBI is better investigating agency than state police so there are chances that referral will help in investigating the cases in better way. So by referring to CBI state is accepting state police can not do as good job as CBI can. So the case that gets referred to CBI obviously gets benefited compared to those cases which were not referred.Means two murder case were not investigated by police forces with equal competence and were not treated equally by authorities. But what was the ground do decide which cases is to be sent and which case is to be denied; the discretion of chief minister. Then how can that discretion be justified?

 

1. States have discretion to decide on referral to CBI but Right to equality is a fundamental right guaranteed by Constitution; so, is not there a conflict between the fundamental right and law providing discretion to states?

 

2. Does the law providing discretion over rides the fundamental right of equality as guaranteed in constitution?

 

3. The two cases do not get equal opportunity before law because one gets benefited by using discretion to refer while others do not. Is it not violation of Article 39A which provides equal opportunity before law?

 

4. There are no regulations how to use the discretion specially while dealing even murder cases. Should there be some guidelines to use this discretion?

 

5. Discretion without expressed guidelines always leads to favor to few and denial to others. It works like wish of king. In a democratic set up there is no place for wish of king. Is not the current discretionary power accorded to state against very fundamental principles of human rights and democracy as such?