Is CBI unconstitutional organisation?

Central Bureau of Investigation (CBI) is at the centre of serious controversies in pre-election 2019 dynamics of political decisions. It's uses if not abuses, by the party in power, now or in past, is harming its credibility. Its 'independence' is no more doubtful.

As number one and two of CBI washing their dirty linen in public, its officers being caught accepting bribe, sudden-midnight transfer of investigating team, keeping details about cases under their investigation 'secret' etc the CBI is being suffocated as an institution.

Using of the CBI by Executive has also dragged Judiciary into the controversy. Is CBI a police force as per law? Is it Constitutional?

The functional propriety of CBI as a national investigating agency under the control of the 'Union' in a federal constitution stands on a very fragile foundation.

Product of pre-Independence Emergency

This investigating agency is created by British India using extra-ordinary Emergency powers as 'Special Police Establishment' (SPE) in the department of war in 1941.

An ordinance - SPE (War Department) conferring emergency powers upon Viceroy and Governor General of India- Lord Linlithgow under the India and Burma (Emergency Provisions) Act, 1940 was passed on June 27, 1940 by the British Parliament.

As the World War II was ending, the Emergency was repealed by His Majesty's Order from April 1, 1946 followed by a promulgation of another ordinance - SPE (War Department) Ordinance on September 25, 1946, which on October 1, 1946 was replaced by Delhi SPE Act coming into force in November 1946.

In the beginning, the SPE was used by the Department of Personnel and Training to probe bribery and corruption in transactions in Water and Supply Department.

Its jurisdiction was later extended to all departments, and Union Territories. First Indian Home Minister, Sardar Vallabh Bhai Patel wanted SPE to probe corruption of Dewans and Chief Ministers of Jodhpur, Rewa and Tonk.

It became Central Bureau of Investigation with a resolution of Home Ministry on 1st April 1963.

As per Section 6 of the DSPE Act, State must give an executive order to enable the SPE to investigate crimes in that State.

Thus, CBI can investigate (a) crimes in Central government departments and within Union Territories, (b) as per the directions of the High Courts and Supreme Court, and (c) investigate offences in a State based on the request through an executive order of that State.

There was challenge to vires of the CBI before Supreme Court heard a Special Leave Petition in 1986. Former Law Minister P R Kumara Mangalam argued before a division bench of Justices K Ramaswamy and N Venkatachala, who dismissed the matter in limine - leaving the substantive questions of law unanswered.

Those were answered while confirming doubts about illegality of CBI when Guwahati High Court nullified 1963 resolution constituting CBI and declaring it ultra vires.

Justices I A Ansari and Indira Shah held "…while we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the 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…" It further said that Home Ministry resolution was neither the decision of the Union Cabinet nor were these executive instructions assented to by the President.

Therefore, the impugned Resolution can, at best, be regarded as departmental instructions, which cannot be termed as 'law'".

The court quashed the charge-sheet by CBI along with the trial saying: "the actions of the CBI, in registering a case, and arresting a person as an offender, conducting search and seizure, prosecuting an accused etc, offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional".

The Centre rushed to apex court urging to revive CBI, contending the high court erred in quashing the Resolution and failed to appreciate absence of illegality or unconstitutionality for not having received assent from the President because it had been issued under the Government of India (Transaction of Business) Rules.

The Supreme Court Bench heard at the residence of CJI on November 9, 2013, and P Sathasivam CJI and Ranjana Desai, J, stayed the order of Guwahati HC. The serious questions raised by Guwahati HC are still pending.

A three Judge bench of Supreme Court of Justice R F Nariman, Justice AK Goel and Justice Navin Sinha on 28 March 2018 in the Asian Resurfacing of Road Agency Private Limited & Anr v Central Bureau of Investigation (Criminal Appeal Number 1375-1376 OF 2013) has restricted the validity of stay in both criminal as well as civil trials to a period of six months; saying: "To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within two-three months.

Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial court." This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years.

This lifeline for CBI expired after six months from date of above judgment, i.e., on 28 October 2018. The Centre did not expedite the petition showing any extraordinary situation to continue 'stay'. The CBI cannot survive legally, unless SC validates it in final order. The real issue is how to insulate CBI or NIA of any other enforcing agency from political exploitation and interference?

(The writer is former Central Information Commissioner and Professor of Law, at Bennett University, Greater Noida)