Creation of CBI by Executive Order invalid, says court; Centre to move SC
Over 50 years since its constitution, every single investigation, prosecution and conviction done by CBI in cases, including major scams such as 2G, coal, fodder and Bofors, faces an imminent threat of becoming invalid after the Guwahati High Court on Wednesday held the creation of the premier investigation agency itself to be unconstitutional.
Taken aback by the HC decision, the Centre on Thursday night said that it would move the Supreme Court as early as Monday next to challenge the court order.
A division bench of Justices IA Ansari and Indira Shah, by an 89-page judgement, set aside the Resolution, issued by the Union Home Ministry on April 1, 1963, that set up the CBI. It held, “The resolution number 4/31/61-T dated 1/4/1963 issued by secretary to the Government of India, V Viswanathan, constituting the CBI is ultra vires. The CBI is neither an organ nor part of the Delhi Special Police Establishment Act and the CBI can’t be treated as a police force constituted under the act.”
The decision has come as a huge shock to the CBI and legal fraternity as the judgement carries serious ramifications on cases already probed and being probed by the agency. “In effect, this judgement would tantamount to suggest a layman having investigated and prosecuted the case; the entire conviction is invalid, and meaning, thereby, that all the accused will have to be released,” said a senior CBI official.In the HC, the CBI was represented by ASG PP Malhotra.
It was believed all these years that CBI derived its existence and power to investigate and prosecute corruption cases from the Delhi Special Police Establishment Act 1946. But the Act talked of Delhi Special Police Establishment and not CBI. later, when the 1963 Resolution expanded the scope of CBI by adding four more divisions, no link was available to show that the Centre delegated these functions to CBI under the DSPE Act.
Thus, the CBI in essence was not born out of a law enacted by Parliament but by an executive fiat.
As a result, the HC questioned, “If the CBI is an integral part of 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 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 or in the impugned resolution to show that the CBI is a creation of a delegated piece of legislation,” the court observed.
Secondly, the court discovered that CBI figured nowhere in the Act. To then accept the argument of the agency that the DSPE intended under the Act was CBI had no legal basis. “If a statute gives a specific name to an organisation, created by the statute, it is not permissible to confer a new name on the organisation by any executive instructions. Subject to the validity of the DSPE Act, 1946, only Delhi Special Police Establishment can be termed as statutory body created by the DSPE Act, 1946 and not the CBI,” the court ruled.
Senior advocate KK Venugopal, who represents CBI in 2G cases before SC, however, said, “Section 6 of the DSPE Act has safeguards in place for CBI to investigate crimes only with consent of States.”
“Even Entry 80 of list I provides for a police organisation of one State to investigate in another State with prior consent. For this purpose, an officer appointed under the DSPE Act to investigate crimes will be deemed to be the police officer of that particular State while investigating the crime in that State,” Venugopal added.
The HC order came on an appeal filed by one Navendra Kumar, an employee of Bharat Sanchar Nigam limited (BSNl) in Assam, who was charge-sheeted under Sections 120B (criminal conspiracy) and 420 IPC (cheating) in 2001 and who sought quashing of the same by challenging the basis of CBI’s constitution. Accepting Kumar’s appeal, the division bench quashed the charge-sheet against him.
The court adopted the reasoning that a police force with powers to investigate crime could not be constituted under an executive order. Moreover, police was a state subject and this was a constitutional barrier the Centre could overcome only by a Parliament-enacted law.