INTRODUCTION
The executive wing of the state plays a crucial role in maintaining law and order. They have the tangible instruments that enforce our legislated laws. The Republic of India is a shining example of a successful federal structure with such a diverse population. The country’s constitutional structure is what legal experts call, quasi-federal. This fundamentally means that it is not absolutely federal but the framework is inclined towards a unitary element. The unitary inclination does not render the federal element defunct or irrelevant. Preserving the country’s unity is important and hence a unitary structure provides for a rigid magnetism that binds every piece of India. Therefore, India as a heterogeneous society, people need a sense of freedom to exist and allow themselves to enjoy some autonomy that governs them in conformity with their respective cultures. Even though our federal character is brilliantly scrutinised by our courts, there are always some glitches that cause friction in the smooth functioning of our constitutional machinery. The Central Bureau of Investigation (CBI) being the central agency has its intervening elements that can facilitate justice or be used as a tool to eliminate injustice.
HISTORY OF CBI
A high level investigating agency was formed in 1941 under the Special Police Establishment Act. This agency was formed to investigate cases of bribery and corruption that happened during the transaction of money and supplies in World War 2. It was then called SPE (Special Police Establishment). Later, it was transferred from the SPE (Special Police Establishment) Department to the Home Department through the Delhi Special Police Establishment Act in 1946. The current form of CBI came into existence by a special resolution of the Home Ministry in 1963. Initially, CBI only investigated cases of corruption involving government servants but at later stages the PSUs (Public Sector Undertaking) and Public Sector Banks also came under its ambit. CBI became immensely popular and gained massive social capital as it dealt with high profile cases of murder and kidnapping etc. Soon, CBI gained the trust of Indian courts and controversial cases were usually transferred to CBI by the High Courts and the Supreme Court to ensure a transparent investigation.
THE STATES AND CBI
CBI falls under the Central Government’s mandate, considering its very existence emanates from the Home Ministry’s resolution. CBI is nothing but an evolution of the Special Police Establishment and has its jurisdiction restricted to Delhi and Union Territories. However, under section 5 of the Delhi Special Police Establishment Act, the central government is empowered to widen the CBI’s jurisdiction, subjected to the consent of the State governments. Section 6 of the aforementioned act, empowers the States to revoke its consent and restrict CBI from taking cognizance of any new case.
It is clear from the facts and the law that CBI’s functioning and its powers have been demarcated in a way, so as to shield the federal structure of our Union of States. But when a state revokes its consent from such an high esteem agency, it directly has pernicious impacts on India’s federal structure. To understand the cause of this friction, we need to understand the concept of Indian Federalism. Federal structure comprises the centre, states and the three lists. The three lists comprise the Union list, State list and concurrent list. Centre is mandated to legislate laws under the union list, the state under the state list and both can legislate under the concurrent list. Now, CBI is an investigating body that acts as a police when taking up a case, but the subjects of Law and public order fall under the state list. This gives rise to practical and constitutional inconsistencies. One might argue that the union list empowers the state to legislate on the Central Bureau of Intelligence and Investigation. However, it has been clarified in the constitutional assembly debates that the term Intelligence and Investigation shall not be construed in a manner, which is to be concurrent with the Criminal Procedure Code, 1973 [1]. The word `investigation’ is, therefore, according to the 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, who can conduct ‘investigation’. This deadlock between CBI policing and its mandate being constitutionally invalid and has raised an array of unanswered questions.
RELEVANT CASES
- The Sushant Singh Rajput case has sparked a fire in the fight for jurisdiction. The standard procedures dictate that the case is under the Police Department which has its jurisdiction of the area where the cause of action arose. In this case, the Mumbai Police had the rightful jurisdiction. Considering the ostensibly shady nature of the conduct by the Maharashtra police, the Bihar government transferred the case to CBI even though it did not hold any sustainable cause of action or any authority to order such a transfer. The matter reached the Supreme Court, and the Supreme Court exercising its wide powers, transferred the case to the CBI in the interest of natural justice. This was an exceptional case where the investigation of a neutral party was important to make sure that justice was not just delivered but also seemed to have been delivered.
- In 2018, States such as Andhra Pradesh and West Bengal revoked the General Consent that gave CBI, the policing authority over the territories of these two states. However, this did not mean that CBI wasn’t allowed to investigate cases it had already taken up in these states. It had lost the power to take up new cases. The Chief Ministers stated that they did not trust the CBI as they underwent a power struggle within its own hierarchy which questioned its potential as a non-political, unbiased and independent agency.
CONCLUSION: CONSTITUTIONALITY OF CBI
CBI traces its emanation back to the Special Police Establishment. However, CBI in its current form came into existence through the resolution of the Home Ministry which does not give it a strong constitutional validity. In order to create a constitutionally valid statutory body, it needs to be passed by the Parliament. The Delhi Special Police Establishment Act gives constitutional validity to the Special Police Establishment and not the Central Bureau of Investigation. In November, 2013 the Gauhati High Court had declared the existence of CBI ‘unconstitutional’ [2]. This order was stayed by the Supreme Court and the stay has been in a state of perpetual existence ever since. CBI is a highly equipped team of competent officers that can be used for the fulfilment of political agendas, that would lead to a complete failure of its primary objectives. An investigating agency such as CBI should be free from those, who are in power and backed by Parliamentary legislation. This would definitely enhance the reputation of the Central Investigating Agency and prevent the Indian courts from calling it a ‘caged parrot’.
Article by – Adamya Ojha; B.COM LLB(hons.), Institute of law, Nirma university, Gujarat.
Editor – Sushant Agrawal ; BA LLB (hons.), Department of Law, Aligarh Muslim University.
Disclaimer: Every single effort has been made to maintain the accuracy of this publication at the time it was written by the Author. The article does not intent to provide any kind of legal advice or claim a guaranteed outcome and the law which has been mentioned may have changed since the publication. Readers considering legal action should consult with an experienced professional lawyer to understand the current laws and how they are in a position to affect the case. For any specific technical or legal advice on the information provided in the Article/blog, please contact the author.
REFERENCES
- Indian Kanoon: Navendra Kumar vs The Union Of India & Ors, 26th November 2013
- The Times Of India: Gauhati high court declares CBI ‘unconstitutional’ .
The Gavel's Ken 