The mysterious case of CBI’s legality

India’s ‘premier investigating agency’ needs to be backed up in the statute book

YS Rao | June 3, 2019


#Delhi Special Police Establishment   #Central Bureau of Investigation   #Central Bureau of Investigation   #investigative agency   #CBI   #DSPE  


The Central Bureau of Investigation (CBI) came into existence, based on a Resolution of the home ministry, dated April 1, 1963 – a sheer coincidence that it also happens to be April Fool’s day. Over the past few months, we have seen the CBI live up to its founding day with great zeal, being in the news for unprecedented and the wrongest of reasons. 
 
The Resolution states that the CBI would investigate “crimes at present handled by the Delhi Special Police Establishment (DSPE), including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities…” Its mandate would also include collection of intelligence relating to certain types of crimes; the interface of the National Central Bureau and the International Criminal Police Organisation; police research and crime statistics having all-India or interstate ramifications. The CBI would have six divisions: Investigation and Anti-Corruption Division (DSPE); Technical Division; Crime Records and Statistics Division; Research Division; Legal Division and General Division; and Administration Division. 
 
The expression, “As a first step in that direction” appearing in the Resolution goes to show that the CBI was constituted as an ad hoc measure to deal with certain exigencies, not through an Ordinance or legislation, but through an executive decision, without citing or referring to the source of power. The Resolution does not refer to any provisions of the DSPE Act, 1946, as the source of its power. How then can the CBI be treated as an organ of the DSPE Act? 
 
It would be interesting at this point to give some historical background of the Delhi Special Police Establishment DSPE. To begin with, an outfit called Special Police Establishment (SPE) was set up during the years of World War II, after the government of India realised that there was a great deal of corruption happening among both officials and non-officials in activities connected with the war. To address this, the government in 1942, by an executive order, set up the SPE under a DIG of police. This organisation functioned under the then War and Supply Department, and the SPE was also authorised to deal with cases of corruption in the railways.
 
The executive order was later replaced by the Delhi Special Police Establishment Act (XXV of 1946) which came into force on November 19, 1946. It functioned within the Home Department, under the charge of Director, Intelligence Bureau. In 1948, a post of Inspector General of Police SPE was created and DSPE functioned under him. After the CBI was created by the Resolution, the DSPE was treated as one of the divisions of CBI.
 
How then does the CBI become a police force vested with the powers of registration of a criminal offence, search, seizure, arrest and filing of a charge-sheet in a criminal court under the CrPC? By a smart sleight of hand, this police force called the CBI was created, without consulting the state governments, even though police is a state subject according to the constitution. 
 
When the Central Vigilance Commission Act, 2003 was passed, in its Section 26, an amendment was made to Section 4 of the DSPE Act by substituting Section 4(3). The amendment reads as follows: 
 
“The administration of the said police Establishment shall vest in an officer appointed by the Central Government, (herein after referred to as the Director)…” The word ‘Director’ does not have the suffix of ‘CBI’ in this amendment.
 
In WA No 119 of 2008, Sh Navendra Kumar versus Union of India, the Gauhati high court in its order dated November 6, 2013 held that “CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946….. We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted.” 
 
This decision was challenged in a special leave petition by the union government. On November 9, 2013, the then chief justice of India, who took up the petition at his residential office, stayed the order of the high court. Since then, for over five years, there has been no further movement in this matter. Strangely, no questions appear to be raised on this issue either by political parties, state governments, think tanks, or the legal fraternity. 
 
So clearly, within our governance structure, we have an untenable investigation outfit called the CBI, sometimes termed as the “premier investigation agency” of India, and other times termed as “a caged parrot”, which has no legal legs to stand upon. It has been constituted through a Resolution, a mere Executive Order, without cover of a legal statute; it acts as a police force and performs investigation functions under the CrPC, without any source of legitimate power, as is clearly brought out in the Gauhati high court judgment. The ‘Director CBI’ is, legally speaking, persona non grata, as his designation appears nowhere – neither in the DSPE Act nor in the CVC Act, 2003 – and the source of his police powers is not traceable! 
 
Justice Chelameswar, participating in a session titled ‘Caged Birds: Institutions under Assault, Or Operation Clean-up?’ during the India Today Conclave 2019 in New Delhi, commented on this situation thus: “The very legal basis of the CBI was doubted by the (Gauhati) high court some years back. It said the CBI lacks legal backing. The judges may be right or wrong, but this is too serious a matter and the supreme court didn’t find the time to decide it.... Sitaram Yechury had moved a private member bill to create a statutory body, which was shot down by the government of the day. Nobody would have it! Everybody wants a flexible organisation! That is the nature of power!” 
 
Recently, the country witnessed an unprecedented and shocking civil war within the CBI, its siege by the Delhi Police, and the rot and atrophy that has set in within India’s “premier investigation agency”. Rule of law and good governance, both principles enshrined in our constitution, demand that the grey legal status of the CBI should be brought to an end at the earliest, and its responsibilities, functions and accountability be stated in specific terms by law. n

Rao is a retired IPS officer.

(The article apperas in June 15, 2019 edition)

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