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    TITLE

    Why is CBI Constitutional?

    AUTHORED BY

    Utkarsh Pandey

    B.A. LLB Student 3rd

    year at National Law University & Judicial Academy Assam

    Contact No.: +91-9085613359

    eMail:[email protected]

    mailto:[email protected]:[email protected]:[email protected]:[email protected]
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    Intelligence and Investigation would not permit making of an investigation into a crime by

    the Central Government inasmuch as investigation would be constitutionally possible only by

    a police officer under the Cr.P.C. The Counsel thus contended that the word investigation

    according to Constituent Assembly Debates intended to cover general enquiry for the purpose

    of finding out what is going on and such an investigation is not an investigation preparatory

    to the filing of a charge sheet against an offender, because it is only a police officer under the

    Cr.P.C who can conduct investigation.

    The Counsel appearing on behalf of CBI contended that it derives its authority from Delhi

    Special Police Establishment Act, 1946 and since it had been functioning for more than four

    decades wherein its constitutional validity was not ever challenged and thus this must be

    assumed to be a settled position. The Single judge of the Court thus dismissed the writ

    petition holding both DSPE and CBI constitutional.

    Categories of questions formulated by the High Court

    A Division Bench of Justices Iqbal Ahmed Ansari and Indira Shah had certain set of

    questions formulated to decide upon the legitimacy of the CBI. The petition revolved around

    the contentions like, Is CBI constitutionally valid police force empowered to register an FIR

    under section 154 of Cr.P.C, investigate crime and do an arrest, and if not then should it notbe considered as an violation of Article 21 of the Indian Constitution and can by a mere

    resolution of Ministry of Home Affairs, Government of India under executive order such a

    police force be constituted. Is CBI a police force constituted under the Unions legislative

    power conferred by List I Entry 8 of Seventh Schedule to the Indian Constitution? Whether

    Entry 1 & 2 of Concurrent list empowers the Union Government to raise a police force and

    that too by way of Executive instruction of the Union Home Ministry? Does Delhi Special

    Police Establishment, 1946 empower the Union Home Ministry to establish a police force in

    name of CBI.

    Is CBI Policein legal terms?

    Entry 8 of List I in 7thschedule to Constitution is clear when it uses the word Central Bureau

    of Intelligence and Investigation. Secondly, here andcan also be assumed to be as or in

    this context as far as it suits the need of administration. Thirdly, though the Police have been

    made specifically a state subject under Entry 2 of List II but the term police has been defined

    nowhere as an absolute domain of state vis-a-vis Centre. Interestingly, Police was also not

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    originally the part of List II but had been incorporated only by the 42 ndamendment in 1976

    with effect from 03-01-1977. This meant that before this Police could have been subjected to

    jurisdiction of either and therefore the Home Ministry executive order on establishment of

    CBI delivered fourteen years prior to this is valid. The Entry 2 of List II also specifies that it

    is subjected to the provision of Entry 2A of List I and when the required entry is observed it

    clearly states that if Centre deploys any forces in any State in aid of the civil power; power

    jurisdiction, privileges and liabilities of the members of such forces while on such

    deployment rests with Centre. This further part of entry has been overlooked by the Court.

    One other aspect by which CBI can be termed Police is that the recruitments to its posts are

    through the Indian Police Services under UPSC. The very fact that all top officials are IPS

    officers also leaves no doubt as to why the CBI should be considered as Police.

    Validity of CBI in light of an Executive Order

    Article 13(3)(a) clearly states that law also includes order, rule, regulation and notification

    along with few others. The HC has contended that since CBI was formed through a mere

    executive order then it is not covered under law and is thus unconstitutional.

    But CBI is not a statutory body because it is not formed by the statute of any legislation but

    through order of a ministry. Since it was formed under order or notification; Court can alsointerpret it otherwise. Secondly, the question of Presidential assent has also been raised. The

    answer to this question can be obtained from Article 368 regarding Amendment procedure

    wherein the phrase regarding assent from President was inserted only after 24thAmendment.

    Had this not have happened then amendments could have been also done without taking

    presidential assent if Constitution was to be strictly adhered to and therefore same logic could

    also be applied to in the case of CBI.

    DSPE is a pre-independence Act and Article 371 to Constitution provides for the continuance

    of the all such laws which were in existence immediately before the commencement of the

    Constitution and will be enforceable unless altered, amended or repealed by the legislature.

    This upholds the constitutionality of DSPE and furthermore also legitimizes the CBI which

    undoubtedly derives its authority from the said Act. It should be remembered that CBI had

    started as a body to check fraud and related offences during Second World War.

    Source of Power, Privileges and liabilities

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    In his speech delivered in Constituent Assembly Dr. B R Ambedkar clearly mentioned that

    CBI shall be an investigating agency which shall have power throughout the territory of India

    to conduct investigation. Dr. Ambedkar said, The idea is this that at the Union office there

    should be a sort of Bureau which will collect all information with regard to any kind of crime

    that is being committed by people throughout the territory of India and also make an

    investigation as to whether the information that has been supplied to them is correct or not

    and thereby be able to inform the Provincial Government as to what is going on in the

    different parts of' India so that they might themselves be in a position to exercise their Police

    powers in a much better mannerthan they might be able to do otherwise and in the absence

    of such information.

    The official website of CBI clearly specifies that it derives its authority from Delhi Police

    Special Establishment Act, 1946. The High Court in its judgment has held that the said Act

    can only be meant for Union Territories within the Jurisdiction of India. But a further careful

    reading of its preamble also allows for its extension to other areas of the power and

    jurisdiction of the members of the force in regards to the investigation of the offences.

    Further the High Court also cited Entry 80 to List I which allows the extension of jurisdiction

    of police force belonging to one state to other only with the permission of that other. But the

    relevance of this Entry could not be ascertained here primarily due to two reasons firstly, It isin regard to the relation between two States and Secondly, CBI is wholly Central

    governments organization by the virtue of which its jurisdiction extends to the whole

    country. Section 5 of the DSPE Act also enables the Central Government to extend the ambit

    of such police force to areas of State and allows for carrying out the investigation and during

    such course of time the Police man working in other States territory shall be deemed to be as

    a recognized authority in that territory, provided that it should be only through the approval

    of concerned State government under section 6.

    CVC in aid of CBI

    As the major source of contention has arisen out from the Delhi Special Police Establishment

    Act of 1946 the need is felt to analyze its legitimacy. The Chief Vigilance Commission has

    been given an authority over the Central Bureau of Investigation in matters relating to the

    investigation of crime done by government officials. Also the CVC is a statutory body which

    has the power of superintendence over the DSPE Act of 1946. The ordinance for effectuating

    the same was promulgated in year 1998 which gave CVC both statutory power and authority

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    over DSPE. Though the resolution initially failed to pass in house but successively in year

    2003 CVC became a statutory body by an act of Parliament. It is noteworthy to mention here

    that since CVC has been given superintendence over DSPE this automatically also extends its

    ambit to the CBI. This also in a way recognizes the CBI as an organ within the Government

    of India. Thus the Courts contention that CBI has been established by an executive order of

    Ministry of Home Affairs under GoI can be challenged on the above ground. This is one such

    important aspect which the Courts failed to observe.

    Judicial Precedence has it for existence of CBI

    Article 141 of the Indian Constitution provides for the binding of judgment of Supreme

    Courts on all lower judiciary, including High Courts. In the decided case of State of West

    Bengal & Ors Vs. Committee for Protection of Democratic Rights, West Bengal & Ors

    Supreme Court approved the evolution and establishment of the CBI and traces its history in

    DSPE Act. Similarly in decided case of M.C. Mehta (Taj Corridor Scam) Vs. Union of India

    & Ors the apex court upheld the validity of CBI to investigate and register FIR in criminal

    cases. Both of these cases also find mention in the judgment of Gauhati High Court.

    Conclusion

    Interestingly no legislation in India defines the termPolicethen be it Cr.P.C or the Police Act

    of 1861. This even did not arise for discussion in the Court and reliance was made heavily

    upon Constituent Assembly debates and Seventh schedule. At such a time when the existence

    of CBI has come under fire, only easy route is through immediately bringing an ordinance

    and seeking for stay form Supreme Court against the ruling.

    This article was previously put in Authors blog. For other related articles kindly visit his blog

    at utkarshnlu.blogspot.in/

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    REFERENCES

    1. For Constituent Assembly debate text retrieved fromhttp://parliamentofindia.nic.in/ls/debates/vol9p20.htm

    2. Pandey, J. N., The Constitutional Law of India, 49thEd. Central Law Agency,Allahabad

    3. The Constitution of India bare text, 20104. Navendra Kumar v. Union of india Writ Appeal ;119/20085. M.C. Mehta (TajCorridor Scam) Vs. Union of India and others (2007) 1 SCC 1106. State of West Bengal & Ors. Vs. Committee for Protection of Democratic Rights,

    West Bengal & Ors. (2010) 3 SCC 571

    7. The Delhi Special Police Establishment (DSPE) Act, 19468. About CBI retrieved fromhttp://cbi.nic.in/aboutus/cbiroles.php9. END OF CBI? Guwahati High Court says CBI formation is ultra vires retrieved from

    http://www.livelaw.in/guwahati-high-court-says-cbi-formation-is-ultra-vires/

    http://parliamentofindia.nic.in/ls/debates/vol9p20.htmhttp://parliamentofindia.nic.in/ls/debates/vol9p20.htmhttp://cbi.nic.in/aboutus/cbiroles.phphttp://cbi.nic.in/aboutus/cbiroles.phphttp://cbi.nic.in/aboutus/cbiroles.phphttp://www.livelaw.in/guwahati-high-court-says-cbi-formation-is-ultra-vires/http://www.livelaw.in/guwahati-high-court-says-cbi-formation-is-ultra-vires/http://www.livelaw.in/guwahati-high-court-says-cbi-formation-is-ultra-vires/http://cbi.nic.in/aboutus/cbiroles.phphttp://parliamentofindia.nic.in/ls/debates/vol9p20.htm