6 Years Of Supreme Court's Life Support For CBI

Six years ago on this day, a judgment from Gauhati High Court sent ripples across the country.In a startling verdict, the Gauhati High Court struck at the root of the Central Bureau of Investigation - India's premier investigating agency - by declaring its formation to be "unconstitutional". The High Court order passed on November 6, 2013 terminated the existence of the agency by quashing the Government Resolution which gave birth to it. A declaration of unconstitutionality made by a High Court will operate across the country. The possibilities of the widespread repercussions of the Gauhati HC judgment send panic waves across the central establishment. The judgment came as a shocker to the Central Government, quite understandably, as it would have rendered the investigation and prosecution carried out by CBI in thousands of cases void. The then Attorney General Goolam E Vahanvati rushed to the residence of the then CJI P.Sathasivam, as the Courts were closed for holidays. A few months back then, the SC had remarked that "CBI is a caged parrot speaking his master's voice". Nevertheless, the SC was mindful of the importance of keeping the 'parrot' alive. Hence, the then CJI agreed for an urgent hearing at his residence and issued an order of stay of the HC judgment. It is this stay order which is keeping the CBI alive, even on this date. The unexpected decision of Gauhati HC came in a petition filed by one Navendra Kumar, who was facing trial following a final report filed by CBI. He challenged the constitution of CBI and contended that CBI cannot have the power of arrests, search and seizure, criminal investigation and prosecution as it was not a statutory body, but creation of an executive order. The CBI was constituted by a Special Resolution passed by Ministry of Home-Affairs on April 1, 1963, purportedly in exercise of powers under the Delhi Special Police Establishment Act (DSPE Act) 1946. The Resolution reads as below : "The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime. As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi..."(emphasis supplied) The Court held that the tenor of the Resolution revealed CBI's 'ad-hoc' nature, especially from the wordings "as a first step" in the Resolution. From the examination of minutes leading to the Resolution, the Court noted that the Government itself had expressed that the Resolution was a temporary measure to be in force until appropriate legislation was enacted to constitute CBI. Hence, the Government was itself aware of the need of a statute to back the formation of CBI. The Court further noted that DSPE Act is an act for establishment of a special force in Delhi for investigation of certain offences in Union Territories. Therefore, there cannot be the creation of a police force under the said act for the purpose of investigation in States. The executive powers of the Union do not enable them to create such a police force. Also, as per the DSPE Act, the police force established under the same is specifically christened as the 'Delhi Special Police Establishment' and therefore CBI cannot be termed as police force acting under the DSPE Act. "The learned ASG has completely failed to show that the CBI can be said to have been established or constituted as an organ or part of the DSPE or is a special force, which has been constituted by taking recourse to Section 2 of the DSPE Act, 1946. We have, therefore, no hesitation in concluding that CBI is not established under the DSPE Act, 1946, or is an organ of the Delhi Special Police Establishment" , held the judgment delivered by Justice Iqbal Ahmed Ansari and Justice Indira Shah. The attempts made by the Union to trace the powers for creation of CBI from Entry 8 and 80 of List I were not allowed to succeed by the Court. Entry 8 is 'Central Bureau of Intelligence and Investigation'. Entry 80 permits the Parliament to enact laws for extending the...

6 Years Of Supreme Court's Life Support For CBI

Manu Sebastian

A stay order from SC keeps the CBI alive.

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