END OF CBI ? Guwahati High Court says CBI formation is ultra vires

In a path breaking judgment Gauhati High Court has ruled that the 1963 executive order under which the CBI was formed is unconstitutional, and that an act should have been passed for the purpose.A Division Bench of Justices Iqbal Ahmed Ansari and Indira Shah in Navendra Kumar v. Union of india Writ Appeal ;119/2008 said "The resolution number 4/31/61-T dated 1/4/1963 issued by secretary to the Government of India, V. Viswanathan, constituting the CBI is ultra vires. The CBI is neither an organ nor part of the Delhi Special Police Establishment Act and the CBI can't be treated as a police force constituted under the Act."Justice Ansari who wrote the Judgment started the Judgment with Thomas Jefferson's famous words "When the people fear the government, there is tyranny. When the government fears the people, there is liberty". The Court formulated the following questions for consideration.(i) Whether 'Central Bureau of Investigation', popularly called CBI, is a constitutionally valid police force empowered to 'investigate' crimes? (ii) Could a 'police force', empowered to 'investigate' crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers? (iii) Could a 'police force', constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender? (iv) Whether CBI is a 'police force' constituted under the Union's Legislative powers conferred by List I Entry 8? (v) Do Entry 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? The Division Bench was considering an appeal against judgment dated 30-11-2007, passed, in Writ Petition (Civil) No. 6877 of 2005, by a Single Judge dismissing the writ petition. The Writ Petition 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 petitioner, in the Court of Special Judge (C.B.I), Assam, at Guwahati.In the writ petition, It was contended that the CBI is not a statutory body, the same having been constituted not under any Statute, but under an Executive Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Ministry of Home Affairs, Government of India, According to the Writ Petitioner, police is a State subject within the scheme of the Constitution of India inasmuch as it is only a State 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.After hearing the parties as well as the learned Amicus Curiae the Bench formulated the following questions: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.The CBI came into existence by the Resolution No. 4/31/61-T, dated 01.04.1963., issued by the Government of India, Ministry of Home Affairs, the impugned Resolution, being relevant, is reproduced below:"No. 4/31/61-TGOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS New ...

END OF CBI ? Guwahati High Court says CBI formation is ultra vires

LIVELAW NEWS NETWORK

Tags