dna edit: Caged; now unconstitutional too

The Centre has only itself to blame for the Gauhati high court judgment that has put the existence of the Central Bureau of Investigation (CBI) under a cloud. The court ruled that a 1963 Ministry of Home Affairs resolution creating the CBI was unconstitutional and that the CBI could not be treated as a “police force” created under the Delhi Special Police Establishment (DSPE) Act, 1946.

For a long time, the demand for bringing the CBI under its own legislative framework has been under the consideration of the political class. Recently, a Supreme Court bench hearing the coal block allocation case, upset over executive interference, directed the Centre to introduce a bill in Parliament providing statutory cover and functional autonomy for the agency.

The damage-control exercise initiated by the government includes plans to move an appeal in the Supreme Court on Monday challenging the judgment. Meanwhile, Additional Solicitor-General PP Malhotra, who unsuccessfully argued the case before the high court, slammed the judgment as “totally erroneous”. Malhotra contended that the Supreme Court had upheld the constitutional validity of the DSPE Act and the CBI through several judgments. But the two-judge Gauhati HC bench ruled that none of the judgments Malhotra cited, including the Taj Corridor case, had pondered whether the CBI was a “constitutionally valid police force”. With the judgment also quashing the CBI’s chargesheet against the petitioner, high-profile accused in CBI cases will mount stiff legal challenges against the agency.

While the CBI’s predecessor, the DSPE was founded in 1946, and had a mandate to investigate corruption cases, the need for a specialised agency to investigate inter-state crime and serious economic offences was felt. Anticipating opposition from states, since law and order was a state subject, the existing DSPE Act became the vehicle to create the CBI. The DSPE Act, a two-page sketchy statute, offers nothing by virtue of statutory powers or responsibilities to the CBI, its personnel, or its director. Several ills hampering the agency including its inability to take cognizance of offences, register cases or prosecute top officials without government sanction, besides staffing and financial constraints have been blamed on the poorly-defined provisions of this Act.

One area where the judgment stands on weak ground is that Constitution’s union list has “Central Bureau of Intelligence and Investigation” as entry number 8. A casual, or logical, reading of this entry would offer justification for the 1963 resolution constituting the CBI and empowering it to investigate offences and file chargesheets. But here, the high court has chosen to go by the Constituent Assembly debates where investigation was interpreted as “enquiry” by the Centre to ascertain the fact of any matter as opposed to the powers of the police to arrest and prosecute.

In 2010, Congress leader Manish Tewari had questioned the legality of the CBI on some of these points through a private member’s bill. Ultimately, this judgment, regardless of its merits, helps reassert the supremacy of Parliament. It has raised serious questions about constitutionality that are best resolved by Parliament rather than the Supreme Court. The 1963 resolution worries about the CBI’s creation “being unduly held up” if an Act was to be passed by Parliament and the states consulted. Recent executive orders, bypassing Parliament, that expeditiously created agencies like the UIDAI will also come under the scanner now.