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Is the CBI illegal? What is the technical backing behind it? I hear it is hyper technical

edited November 2013 in Current Affairs
the CBI.

Comments

  • A reading of the judgement for the arguments put up by the petitioner against the CBI (only the relevant points copied from the order)

    1)That the CBI is a non-statutory body inasmuch as it has been constituted by way of an Executive Order/Resolution issued by the Ministry of Home Affairs, Government of India, and not by making any legislation.

    2)In the absence of any law laying the birth of the CBI, the exercise of powers of police,, ‘investigation’ of crimes, filing of charge sheets and prosecution of the offenders cannot be permitted, for, allowing the CBI to do so would offend the fundamental rights guaranteed under Article 21

    3)The word ‘law’, within the meaning of Article 21, would mean legislation and not executive instructions or executive fiat, such as, the one, whereunder the CBI has been created

    4)the CBI may be treated to have been constituted by the Central Government under Entry 8 of the List-I (Union List) Entry 8 of List I does not, in the light of the Constituent Assembly Debates, permit ‘investigation’ of a crime in the manner as is, ordinarily, done by the police

    5)CBI, which is constituted under the Resolution No.4/31/61-T, dated 01.04.1963, cannot carry out functions of police inasmuch as the Constitutional scheme does not permit the Central Government to carry out functions of police and the police functions lies within the exclusive domain of the State Government concerned

    6)Delhi Special Police Establishment Act, 1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the Constitution, for, it offends, 372 of the Constitution inasmuch as Parliament is not competent to make law on police for whole of India and it is only a State legislature ( CBI derives its legitimacy from DSPE act)

    7)A statutory body, as the name suggests, is a body, which has a legislative sanction. In other words, a body or agency can be termed as statutory only when it is created by a statute to carry out certain functions. The petitioner submits that the CBI has not been constituted under any law; rather, the same has been created by the Central Government by way of Executive Order/ Resolution No. 4/31/61-T, 19

    8)The Central Government cannot create CBI by way of an Executive Order and such an agency cannot carry out police functions, i.e., to register FIR under Section 154 Cr.P.C

    9)CBI came into existence with the issuance of Resolution, dated 01.04.63. If CBI is an integral part of the DSPE, then, such a resolution ought to have been issued by the Central Government in exercise of powers vested in the Central Government by the DSPE Act, 1946 In other words, had the CBI been constituted under the DSPE Act, 1946, by the Central Government, the CBI could have been treated as having been created by way of delegated legislation. There is, however, nothing, either in the DSPE Act, 1946 to suggest it was created by delegated legislation.

    10)The word, ‘investigation’, appearing within the expression, ‘Central Bureau of Intelligence and Investigation’, was sought to be justified, in the Constituent Assembly, contending that Police is exclusively a State subject and it has no place in the Union List. The word ‘investigation’ was, therefore, according to the Constituent Assembly, intended to cover general ‘enquiry’ for the purpose of finding out what is going on and this ‘investigation’ is not an ‘investigation’ preparatory to the filing of a charge-sheet against an offender, which only a police officer, under the Criminal Procedure Code, can do.

    11)Discussion, which took place in the Constituent Assembly, it becomes crystal clear that the Parliament cannot, by taking resort to Entry 8 of List I (Union List), make any law empowering a police officer to make ‘investigation’ in the same manner as is done, under the Criminal Procedure Code, by a police officer, while conducting an ‘investigation’ into an offence for the purpose of bringing to book an offender.

    12)A careful reading of the preamble to the DSPE Act, 1946, would make it evident that the DSPE Act, 1946, has been made for the ‘Union Territories’.

    13)It will be seen that Entry 80 of List I (Union List) merely enables the Parliament to extend the operation of police force of one State to another. However, Entry 80 of List I does not empower the Parliament, far less the Central Government, to enact a law creating a separate police force for the purpose of ‘investigation’ into a crime preparatory to the filing of charge sheets.

    14)Article 73 makes it evident that the executive powers of the Union extends to all the matters with respect to which the Parliament has power to make laws; but, there are three fetters on exercise of the executive powers. First, this exercise is subject to provisions of the Constitution and, secondly, this exercise of executive power shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend, in any State, to matters with respect to which the Legislature of the State also has power to make laws. Thirdly, as we would show, the exercise of executive power cannot be stretched to the extent of infringing fundamental rights.

    15)Police’ is a subject falling under Entry 2 of List II (State List). In view of Article 246 (3), therefore, only State has exclusive power to make laws on ‘police’ by taking recourse to Entry 2 of List II (State List). However, Union Territories are not States within the meaning of Article 246 and, hence, Parliament can make laws, on police, for the Union Territories.
    "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren Aabye Kierkegaard
  • Arguments put up by Amicus Curiae

    1)The CBI has been constituted for achieving six specified purposes as have been mentioned in the Resolution itself and till date, no statute has been enacted by Parliament establishing a body called CBI. Since there is no legislation constituting the CBI, the CBI’s constitutional validity, according to the learned Amicus Curiae, has to be tested in the light of the provisions embodied in the Constitution of India.

    2) The CBI and the DSPE are not one and the same thing, but everybody appears to have proceeded on the basis that the CBI and DSPE are one and the same thing. Whereas DSPE has been established under the DSPE Act, 1946, the CBI, points out learned Amicus Curiae, has been constituted by a mere executive fiat.

    3)CBI has been empowered to ‘investigate’ crimes, no power has been specifically provided for ‘prosecution’ of offenders by the CBI. In fact, points out the learned Amicus Curiae, even under the DSPE Act, 1946, DSPE can merely ‘investigate’ a case and lay charge-sheet and, hence, the CBI’s role shall come to an end once ‘investigation’ is complete.

    "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren Aabye Kierkegaard
  • Arguments put up by ASG for CBI
    1)That the CBI derives its power to ‘investigate’, like a police force, as contemplated by the Cr.PC, from the DSPE Act, 1946.

    2)That the CBI is only a change of the name of the DSPE and the CBI is, therefore, not an organization independent of the DSPE.

    3)That as per Section 5 of the DSPE Act, the Central Government may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and as per Section 6 of the DSPE Act, 1946, the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the Government of that State.

    4)Under Article 73 of the Constitution of India, the executive powers of the Union extends to matters with respect to which Parliament has the power to make laws and the resolution, dated 01.04.1963, whereunder CBI has been constituted, can be treated to have been issued by virtue of Union of India’s executive powers as embodied in Article 73.

    5)That the Central Government can also be treated to have constituted the CBI by taking recourse to its powers as specified in Entry 1 and 2 of List –III (Concurrent List) of the Seventh Schedule.

    6) CBI, has, on the other hand, submitted that though the CBI has been constituted by way of Resolution No. 4/31/61-T, dated 01.04.1963, it derives its powers from the Delhi Special Police Establishment Act, 1946, and the CBI is an organ or part of the DSPE in terms of the DSPE Act, 1946 .
    "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren Aabye Kierkegaard
  • Arguments put up by the petitioner against DSPE.

    1) There is no co-relation between the DSPE Act, 1946, and CBI. In DSPE Act, the word ‘CBI’ is, nowhere, mentioned, even though the DSPE Act has undergone several amendments. This apart, even the Executive Order, dated 1st April, 1963, does not disclose that the CBI has been constituted under DSPE Act.

    2) The plea, that the CBI is merely a change of name of the DSPE, cannot stand scrutiny of law inasmuch as the DSPE Act, 1946, specifically mentions, that the police force, constituted under the DSPE Act, shall be called “Delhi Special Police Establishment”. Hence, when the DSPE Act itself defines the name of the force, which the DSPE Act, has created and established, the argument that the CBI is merely a change of name of the DSPE cannot hold water.

    3)Though Union of India’s executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, whereunder CBI has been constituted, is not backed by any legislation.
    "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren Aabye Kierkegaard
  • According to me the petitioner has a water tight case against the GoI hence the Gauhati high court has pronounced CBI as illegal.
    "People demand freedom of speech to make up for the freedom of thought, which they avoid." Søren Aabye Kierkegaard
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