TITLE

Why is CBI Constitutional?

AUTHORED BY
Utkarsh Pandey
B.A. LLB Student 3
rd
year at National Law University & Judicial Academy Assam
Contact No.: +91-9085613359
e Mail: utkarsheternal@hotmail.com

















Why is CBI Constitutional?
The ruling of Gauhati High Court declaring CBI unconstitutional is itself incomplete and
Government can come up with major propositions to support the validity of CBI by referring
back to several provisions of Constitution and analyzing the relation of CBI with CVC and
already decided case laws.
The facts of the case
The appeal in the Gauhati High Court lay from the judgment and order dated 30-11-2007
passed in writ petition by a single Judge bench of Court dismissing the petition. Under the
writ petition in the High Court, the petitioner had sought to (i) quash the Resolution No.
4/31/61-T passed by the home ministry dated 01-04-1963 and through which the Central
Bureau of Investigation stands established and declare it ultra vires to the Constitution and
(ii) quash the criminal proceeding/prosecution which arose due to FIR which was against
petitioner in the Court of Special Judge (C.B.I), Assam, at Guwahati.
A criminal case was registered on 31-07-2001 under sections 120B and 420 IPC and sections
13(2) of the Prevention of Corruption Act, 1988, in the office of the Superintendent of Police,
Central Bureau of Investigation, Silchar, Assam, against the petitioner who was an employee
of Mahanagar Telephone Nigam Limited, New Delhi. The CBI investigated the matter and
laid a charge sheet dated 25-11-2004, in the Court of the Special Judge, CBI, Assam,
Kamrup, Guwahati.
Arguments advanced in Special CBI Court
The counsel of petitioner laid reliance on its major argument contending that CBI is not a
statutory body and had not been constituted under any Statute but has its existence only due
to the Executive Order/Resolution No. 4/31/61-T, dated 01-04-1963, of the Ministry of Home
Affairs, Government of India. It was further contended that Police is a state subject within the
scheme of the Constitution and thus it is only State Legislature under Entry No. 3 of List II
(State list) of seventh schedule that the States are competent to legislate on the subject of
Police and therefore Central Government cannot take away such power.
The argument was further substantiated by putting reliance on the Constituent Assembly
debates dated 29-08-1949, in which Dr. B R Ambedkar had said that word investigation
appearing in Entry 8 of List I of Seventh schedule which reads, Central Bureau of
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 not
be 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 7
th
schedule to Constitution is clear when it uses the word Central Bureau
of Intelligence and Investigation. Secondly, here and can 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
originally the part of List II but had been incorporated only by the 42
nd
amendment 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 also
interpret 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 24
th
Amendment.
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
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 manner than 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 is
in 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
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 term Police then 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/

REFERENCES
1. For Constituent Assembly debate text retrieved from
http://parliamentofindia.nic.in/ls/debates/vol9p20.htm
2. Pandey, J. N., The Constitutional Law of India, 49
th
Ed. Central Law Agency,
Allahabad
3. The Constitution of India bare text, 2010
4. Navendra Kumar v. Union of india Writ Appeal ;119/2008
5. M.C. Mehta (TajCorridor Scam) Vs. Union of India and others (2007) 1 SCC 110
6. 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, 1946
8. About CBI retrieved from http://cbi.nic.in/aboutus/cbiroles.php
9. 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/