Central Bureau of Investigation has been the top notch and a premier investigating agency of India, for more than five decades. But a question rises in mind and that too after a span of almost five decades that whether the agency is within the four corners of our Constitution? This question owes its credit to the 2013 Gauhati High court division bench judgment[1] where, before the court was the question of prime importance that whether CBI is Constitutional or not.

The Court declared the CBI as unconstitutional, which was a major blow for the Government, the judgment was delivered with immediate effect meaning thereby the CBI is at one stroke of the pen of their lordships an unconstitutional body and cannot investigate or arrest the accused persons.

The judgment had its own repercussions and the Govt. rushed to the Supreme Court for a stay citing the difficulties in the ongoing trials, as the Gauhati HC judgment declared CBI as unconstitutional it also meant that CBI cannot arrest any further and the ongoing trials in the special CBI courts are also of no legal standing, till then many accused persons had filed for the disposals and their acquittals as the CBI is declared as unconstitutional.

The Supreme Court stayed the Gauhati High court judgment and till date it is stayed. This important question needs to be answered by the apex court and clear the law on the subject. By diving into the merits of the legal arguments the author has briefly summed up his view by analyzing arguments from both the sides, which are mentioned below.

Arguments against the CBI

Article 21, is one of the most cherished provisions of our Constitution[2] which prohibits the State from depriving a person of his life and liberty except according to the procedure established by law. However what happens if by the State's action, which has been neither sanctioned by legislation nor has been taken in valid exercise of its executive powers, smudge the ineffaceable mandate of Art 21. This is precisely the issue.

Central Bureau of Investigation (hereinafter referred to as CBI) was established vide Resolution No. 4/31/61-T, dated 01.04.1963[3] by the Ministry of Home Affairs. Being an executive action, it has no law to lay its birth, hence it is not a statutory body. In absence of any law laying its birth, the CBI exercising the powers of the police, such as registration of Fist Information Reports, arrest of persons, laying charge-sheet and prosecution of the offenders cannot be permitted, for, allowing it to do the same it would infringe the fundamental rights guaranteed under Art 21[4].

To the contrary what CBI claims is that it has been established under the Delhi Special Police Establishment Act 1946[5] (hereinafter referred to as DSPE Act). On bare reading of the said resolution it is evident that it is not a delegated legislation as per the DSPE Act, nowhere does the resolution mentions it, nor it is mentioned under sec. 2 of the DSPE Act 1946 therefore it is not a statutory body. As far as sec. 2 is concerned the statutory body to be established under sec. 2 is Delhi Special Police Establishment and not the CBI.

Further there is no mention by the central govt. that it is issuing the resolution in exercise of powers conferred to it by the DSPE Act because the resolution nowhere reflects the source of its powers. It has been held by their lordships in several cases that an executive action without a legal sanction cannot infringe the fundamental right to life under Art 21. In, State of M.P v. Thakur Bharat Singh[6] and also in the case of Bishambhar Dayal Chandra Mohan v. State of U.P[7] The ratio of all these stellar pronouncements was that executive action without a legislation, infringing the fundamental right is unconstitutional.

The meaning of word 'law' under Art 21 would mean a law which is enacted by the Parliament or the state legislatures or by far it would cover an executive action backed up by necessary legislation, a mere resolution which is nothing but an executive fiat cannot be termed as procedure established by law, hence cannot infringe Art 21. It is further submitted that 'police' being in list II(state list) as Entry 2 only a state government can legislate on that subject and the Union govt. vide resolution no. . 4/31/61-T encroached upon the sphere of the state law making.

In State of A.P v. Mcdowell[8] held that if a particular matter is in the exclusive competence of the state legislature i.e in List I of seventh schedule, then that represents the prohibited field for the union to legislate. As there is no law which gives birth to CBI, at best it can be treated to be constituted under Entry 8 of List I of the constitution, which reads Central Bureau of Intelligence and Investigation, but the fact is, the meaning of the word investigation under entry 8 list I is different from the 'investigation' what police does as per section 2(h) of the code of criminal procedure 1973.

It was made very clear by the constitution makers, in the constituent assembly debates[9] that the 'investigation' by any central govt established agency would merely mean collection of intelligence and a mere enquiry and not an investigation which a police officers does, i.e filing of the FIR, arresting the accused, preparing charge sheet and prosecuting, that is the sole prerogative of the police and which is exclusively a state subject under entry 2 list II to quote Honourable Dr. B. R. Ambedkar The point of the matter is, the word investigation here does not permit and will not permit the making of an investigation into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List.

The word investigation therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do.[10] It makes it crystal clear that there is qualitative difference between the investigation of the police officer under Crpc and the investigation by the officer of central bureau of intelligence and investigation under list I entry 8.

The CBI can best be said to have been established under the entry 8 of union list, hence a CBI officer's work is just to enquire, collect information and provide it to the concerned police department of the state, till this extent the constitution permits, but on the contrary they, under the garb of a police officer, investigates the offence not like which the framers of the constitution wanted, but like the police officer under Crpc, to which exactly the framers of our constitution showed reluctance.

If indeed the fathers of our constitution would have intended that both union and state can make laws on 'police' they would have mentioned it in the concurrent list III, the main reason of it being in the state list is that it is the exclusive domain of a state to make laws on the police and the union could not have encroached on that. The said resolution is not only transgressing the law making powers of the union but also offending the federalism of India which is a basic structure of the Constitution as laid down in the legendary case of Keshavnanda Bharti[11]. By making a law on the subject which is under exclusive state domain the union is encroaching upon the state legislative sphere.

It is further submitted that in the case of Dr wadhva v. State of Bihar[12] it was held that executive cannot take away the functions of the legislature, it would then be executive made law and not that of the legislature, meaning thereby unelected people making law which is the subversion of the democratic scheme of our constitution. Also in Chief settlement commissioner v. Om Prakash[13] it was held that executive powers are to fill gaps and not to act as an independent law making agency, if the state permits the executive to make laws like this, then we would be governed by laws not made by the legislature but by the executive, such a situation is the death of democracy and the birth of executive autocracy. Such an executive action without a warrant of a legal sanction cannot be termed as a law under Art 13(3) and art 21 of the constitution.

The question is from where does the executive derive power to pass this resolution no. 4/31/61-T dated 01.04.1963, as there is no mention of the enabling Act in the resolution itself, it should be tested on the threshold of the Constitution. As it is clear from the constituent assembly debates that it cannot be from entry 8 list I because the fact is presently CBI investigates in a manner similar to the police officer under Crpc, they file FIR, arrest and also prosecutes, which is blatantly illegal because the constitution never consented for the same, hence it cannot be formed under entry 8 list I.

Further it can also not be termed as an executive action under Art 73. Under our constitution Art 73 reflects the coextensive executive powers of the Union government with that of the Parliament, Art 73 (a) states that executive powers of the union shall extend to the matters with respect to which parliament has power to make laws. It is clear that the union executive can make laws on which the parliament can make.

But what is pivotal to note is there is a proviso to Art 73 which states the fetter on this power which is that, this exercise of executive power shall not save as expressly provided in constitution or any law made by parliament extended in any state, to matters with respect to which the legislature of the state also has power to make laws. Which makes it clear that the executive cannot make law on the subjects which are exclusively in the state list, i.e 'police' so the resolution could also not have been made under this article.

Art 245 read with art 246 makes it clear that the constitution clearly makes distinction on the subjects on which the union and states can legislate upon. Article 246(3) states that 'subject to clauses 1 and 2 the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list II in the seventh schedule'. It is now clear that Parliament cannot make laws on the subject which is in list II, even the Parliament is restrained and to the contrary this is an executive action which holds no constitutional power.

It is to be noted that the DSPE Act which is constituted under the power derived from art 246 (4) which states parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the state list.

This makes it clear that the Parliament can make law on the subjects of state list, but only for union territory. And Delhi being a union territory the parliament was competent to make the DSPE Act, but this resolution establishing the CBI is not even traceable to the Act nor does it is passed under a valid executive action.


Again, the humble attention of the readers is drawn to the fact that the said resolution is not even an ordinance under Art. 123 because that ordinance under 123 is by the President of India and not by the Home ministry, further even that ordinance is laid before both the houses of parliament, which again this resolution lacks i.e no legal sanction.

there is no other provision under the constitution where the union could have exercised the power and passed this resolution, even under entry 80 of list 1 it cannot be passed, because what entry 80 list 1 permits is only making provisions of extension of a valid law governing activities of police of one state to have jurisdiction in any other state which of course is with consent of that state. The requisite under entry 80 is that there should first be a validly established police force, only then the question of extension arises, entry 80 list I does not validates this resolution because entry 80 presupposes the existence of a valid police force in as much it cannot create a police force by itself under the same.

It is submitted that hence there is no constitutional nor any legal backing for the resolution dated 01.04.1963 establishing the CBI, the same cannot be termed as 'law' under article 13(3)(a) and art 21. Further the Constitution of India nowhere permits the union to exercise policing powers, specifically to create an agency at the central level for the purpose of carrying out investigation into penal offences. Further the union has powers under entry 1 of the concurrent list to enact laws with respect to criminal law and criminal procedure but that does not empower the union to create institutions which exercises the police power, except in a Union Territory.

Therefore the idea that the union can establish a police for the union territory and then use it for investigation in other states by using the power under entry 80 is flawed, it would be a fraud on the constitution. Further the ambit of entry 80 list I cannot contemplate a legislation which provides powers of investigation to the union within the states, which power is within the exclusive jurisdiction of the states under state list.

What is happening here is, that the union is indirectly creating a police force which it is entitled to create just for the union territory by getting power under art 246(4) r/w entry 2 list II. And then by using entry 80 list I directing that union established police to go and investigate in the states with their consent.
  This procedure which is directly not available to the union as subject of police is under the state list, now they are indirectly trying to do what is directly prohibited. Hence this is a colorable exercise of the power of Parliament which is not contemplated by the Constitution.
As it is rightly said Democracy without education is hypocrisy without limitation.

Arguments for CBI

Central Bureau of Investigation derives its powers from the Delhi special police establishment Act, 1946 (herein after referred as to 'the Act') and has been the premier investigating agency of the country for more than five decades. It is undisputed that CBI was established vide resolution no.4/31/61-T, dated 01.04.1963[14] which gave the special police establishment – constituted under section 2 of the Act, a new name i.e Central Bureau of Investigation.

Another undisputed fact is that on various occasions the Hon'ble Supreme Court has recognised the above stated fact and also used the words CBI and special police establishment interchangeably. In the case of State of W.B v. committee for protection of democratic rights[15] the very issue framed by court was recognizing the fact that the CBI is established under the Act.

Also in the case of Kazi lhendhup dorji v. CBI[16] the court has at many instances used both CBI and special police establishment interchangeably. This makes it very clear that special police establishment is not any different from CBI. Further reliance is placed on the judgment of Vineet narain and ors v. Uoi[17], in which the Hon'ble SC was not even a bit hesitant to state that CBI is constituted under the Act and also not hesitant to use them interchangeably.

This establishes that CBI although created by the resolution, but derives its powers from the said Act.
The history of the legislation is very important to note and it becomes more important when the apex court narrates this in the case of gurdasmal[18] 8 5 On July 12, 1943 the Governor General enacted an ordinance (XXII of 1943) in exercise of his powers conferred by S. 72 of the Government of India Act which was continued in the Ninth Schedule to the Government of India Act, 1935. An emergency had been declared owing to World War II and the powers were exercisable by the Governor General.

The ordi- nance was called the Special Police Establishment (War Department) Ordinance, 1943. It extended to the whole of British India and came into force at once. By s. 2(4) the Special Police Establishment (War Department) was constituted to exercise throughout British India the power and jurisdiction exercisable in a province by the members of the police force of that province possessing all their powers, duties, privileges and liabilities. Under s. 4 the superintendence of the Special Police Establishment (War Department) was vested in the Central Government.

It was, however, provided by s. 3 as follows:
"Offences to be investigated by Special Police Establishmen:
The Central Government may by general or special order specify the offences or classes of offences committed in connection with Departments of the Central Government which are to be investigated by the Special Police Establishment (War Department), or may direct any particular offence committed in connection with a Department of the -Central Government."
This ordinance 'would have lapsed on September 30, 1946.

Before that on September 25, 1946 another ordinance of the same name (No. XXII of 1946) was promulgated. This constituted a special police force for the Chief Commissioner's province of Delhi for investigation of certain offences committed in connection with matters concerning departments of the Central Government.

The scheme of this ordinance was slightly different. Under s. 2 Special Police Establishment was constituted for the Chief Commissioner's Province of Delhi for the investigation in that province of offences notified in s. 3. This was notwithstanding the provisions of the Police Act of 1861. The Police Establishment had throughout the Chief Commissioner's Province of Delhi in relation to those 'Offences the powers, duties, privileges and liabilities of the regular police officers subject, however, to any orders which the Central Government might make in this behalf.

Section 3 of the new ordinance was almost the same as s. 3 of the previous ordinance. The only changes were that the offences had to be notified and the power to refer any particular case was not reveated. In the ordinance s. 5 provided that the consent of the Government of the Governors province or of the Chief Commissioner should be, obtained to the extension before the powers would be exercised. Ordinance No. XXII of 1946 was repealed by the Delhi Police Establishment Act 1946 (XXV of 1946) which re-enacted the provisions of the Ordinance. This Act was adapted and amended on more than one occasion.

First came the Adaptation of Laws Order 1950, enacted under clause 2 of Art. 372 of the Constitution on January 26, 1950. It made two changes. The first was throughout the Act for the words "Chief Commissioner's Province of Delhi" the words "State of Delhi" were substituted and for the word "Provinces" the words "Part A and C States" were substituted. This was merely to give effect to the establishment of "States" in place of provinces under the scheme of our Constitution.

Next came the changes introduced by Part B States (Laws) Act, 1951 (Act III of 1951). , They were indicated in the schedule to that Act. Those changes removed the words 'in the States' in the long title and the preamble. The purpose of this was to remove reference to the States in the phrases "for the extension to other areas in the States".

The more significant changes came in 1952 by the Delhi Special Police Establishment (Amendment) Act 1952 (XXVI of 1952). In the long title (after the "Adaptation of Laws Orders 1950) the words were "An Act to make provision for the constitution of a special police force for the State of Delhi for the investigation of certain offences committed in connection with matters concerning Departments of the Central Government etc."

After the amendment the words read "An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in Part C States."
Similar changes were also made in the preamble and in S. 3 the reference to Departments of Government was also deleted.

The change from 'for the State of Delhi to in Delhi
As time went by, due to the rise in economic offences in the nation it was expedient for Union of India to further specify the offences under section 3 of the Act and it was then felt, SPE would not be able to cope up with the problems arising out of the country's over expanding economy, by reason of a resolution adopted by the government of India dated 01.04.1963 SPE was merged with the CBI and became one of its division and after that till date the central govt. issues notifications under sec 3 empowering the CBI to investigate in regard to the offences specified by it further apart from this, entry 8 of list I also gives the union a power to establish a central bureau of intelligence and investigation.

The question pertaining to the constituent assembly debates is dissolved there and then when the section of consent is inserted in the Act, the contention in the assembly was that there would be two parallel investigations, one of the CBI and other of the State Police. But as consent is mandatory now, there cannot be two investigations and hence the contention is dissolved there and there so in the present context CBI can investigate with state's consent and that investigation would mean an investigation contemplated by the Criminal procedure code.

Moving towards the pivotal question, pertaining to the power of CBI to investigate, file a charge-sheet and prosecute the offender as per Code of criminal procedure 1973(herein after referred to as Crpc) is because of the fact that it is a special police establishment created by the DSPE Act.
a humble glance at the preamble of the said enactment states:

An Act to make provision for the constitution of a special police force [in Delhi for the investigation of certain offences in [the Union territories]] for the superintendence and administration of the said force and for the extension to other areas * * * of the powers and jurisdiction of members of the said force in regard to the investigation of the said offences.

WHEREAS it is necessary to constitute a special police force [in Delhi for the investigation of certain offences in [the Union territories]] and to make provision for the superintendence and administration of the said force and for the extension to other area *** of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences.

It is crystal clear from the preamble that the SPE or better known as the CBI now, was a police force established for Delhi and Delhi being a Union territory, the Parliament was well competent to make a 'police force' for a Union Territory, although the subject of 'police' falls under List II of the Seventh schedule, this is because Art 246(4) empowers the Parliament to make a law on the subject which falls under the state list (list II) for example 'Police' for the Union territory.

It can very well legislate on the subjects from the state lists for the union territories. And what is meant by raising the police force here is that, throughout that union territory the police force can investigate offences as per the Crpc, in the same manner like a state police officer does.

It becomes pertinent to note here, that keeping in mind the objective of the Act, that to extend it to other areas, and hence by the virtue of Entry 80 of List I(union list) of the seventh schedule it is again very competent to extend the functioning of the police of that particular region to any other state, provided there is consent of the state.

And the expression 'state' used in entry 80 list I also includes the union territory as interpreted by their Lordships of the Supreme court in Gurudasmal verdict (supra), were they also upheld the constitutional validity of the Act. Hence by this, one comes to a logical conclusion that a police force established by the central govt. under Article 245 r/w 246(4) can be extended to a different state by the virtue of entry 80 List I provided with the consent of that state.

Based on section 5 and section 6 of the DSPE Act are adopted and because and only because 'police' being under entry no. 2 of list II exclusively in the legislative sphere of the state, this consent becomes imperative. Had it been the case where the consent would not be needed it would surely be the Union is transgressing and interfering in the state's exclusive power to legislate under list II, but this is not the case because without a prior consent of the concerned state the union cannot extend the CBI to investigate in them.

Parliament has taken extreme caution while enacting the DSPE Act and provided for the vital section of 'consent'. The consent of the state govt. under sec 6 is mandatory to enable CBI to take over investigation in relation to crimes within the state. Merely because CBI overlaps with some of the powers of the state police, that doesn't mean it is without competence, also it already has a provision of prior consent and hence does not by any means encroach upon the powers of the state legislature to legislate on the subject of 'police'.

Recently the Hon'ble apex court has in the case of Bhavesh jayanti lakhani v. state of Maharashtra[19] held that CBI is constituted under DSPE Act and a CBI officer acts as an investigating officer. Further the court held that FIR's are to be lodged and for the said purpose the officer is 'an officer incharge of a police station' within the meaning of sec 154 Crpc. The superintendent of police, CBI, is an officer entitled to carry out investigation, and only when an offence is carried out in relation of an offence which has been committed in the state, the consent of the state is required to be obtained.

Hence it is not traversing the boundaries defined under the seventh schedule. The fact stands strong that without the consent of the state under sec. 6 of the DSPE Act, the CBI cannot investigate in a state.

Conclusion
General notion is that the law is black and white, but the fact is there are much more grey areas in the realm of law. The issue above, no doubt needs a meticulous scrutiny by the Supreme court and the Constitution bench if the constituent assembly debates are admitted. The author is of the view that there should be, no doubt, a legislation dedicated for the CBI.

But the organization is within the contours of our constitution as it is a delegated legislation, the enabling Act is the DSPE Act, the name is changed from special police establishment to CBI and that is not a change of policy of the legislation, the core remains the same, to quash the resolution establishing the CBI one of any three things needs to be proved.

1. Firstly the Act itself is unconstitutional, which is not the case here as it has been upheld by the SC[20].
    
2. Secondly the delegated legislation should be unconstitutional meaning thereby should be infringing the fundamental rights except the reasonable restrictions. But the language of Art 21 is clear that the rights may be limited according to the procedure established by law, hence the delegated legislation is also not unconstitutional and
    
3. Thirdly the delegated legislation should be ultra vires of the Act, which also is not the case here as the delegated legislation nowhere changes the policy or the object of the legislation but just changes a name, which by any stretch of imagination doesn't mean to change the policy.

Hence as per author's view the CBI is a valid force and within the four corners of our Constitution. To affirm the view there is a need for the Apex Court to endorse this view as the position is unsettled for the past six years now. The CBI has been the premier agency and investigated numerous high profile cases, be it the 2G Spectrum case, the Bhopal Gas tragedy, the Shorabuddin encounter, the Indian Coal allocation scam or the sensational Noida double murder case that shook the nation.

By not questioning the integrity of the State Police, they are under the Home Ministry and it is difficult at times to investigate the authority in corruption matters, hence there is a serious need for an independent agency which does not comes under the control of the state hence this makes the CBI very unique and qualitative. We hope for a judgment in near future by the Hon'ble SC clearing the casted clouds upon the functioning of the top notch investigation agency of the largest democracy of the world.

End-Notes:

1. Narendra Kumar v. Union of India & Ors. W.P (C) No. 6877 of 2005.
2. Consti India. Art. 21.
3. Government of India, Ministry of Home Affairs, https://cvc.gov.in/sites/default/files/vm17ch1/GoI%20Resolution%20No.%204-31-61-T,%20dated%201-4-1963.pdf
4. Consti India Art 21.
5. The Delhi Special Police Establishment Act, 1946 ACT No. 25 OF 1946.
6. State of Madhya Pradesh & Anr v Thakur Bharat Singh [1967] AIR 1170 SC.
7. Bishambhar Dayal Chandra Mohan & Ors v State of Uttar Pradesh & Ors [1982] AIR 33 SC.
8. State of Andhra Pradesh & Ors v. Mcdowell & Co & Ors 1996 AIR 1627 SC.
9. Constituent Assembly Debates, Vol. IX, 29th August, 1949.
10. Constitution of India, Constituent Assembly Of India Debates (Proceedings) - Volume IX, https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-29
11. Keshavnanda Bharti Sripadagalvaru & Ors v State of Kerala [1973] 4 SCC 225.
12. Dr D C Wadhva & Ors v State of Bihar & Ors 1987 AIR 579 SC.
13. Chief Settlement Commissioner, Rehabilitation Department Punjab v Om Prakash & Ors [1969] AIR 33 SC.
14. Government of India, Ministry of Home Affairs, https://cvc.gov.in/sites/default/files/vm17ch1/GoI%20Resolution%20No.%204-31-61-T,%20dated%201-4-1963.pdf
15. State of West Bengal & Ors v Committee for Protection of Democratic Rights [2010] SCC 571 SC.
16. Kazi Lhendup Dorji v Central Bureau of Investigation [1994] SCC 116 SC.
17. Vineet Narain & Ors v Union of India [1997] SCC 226 SC.
18. Management of Advance Insurance Co Ltd v Shri Gurudasmal & Ors [1970] AIR 1126 SC.
19. Bhavesh Jayanti Lakhani v State of Maharshtra [2009] SCC 551 SC.
20. Management of Advance Insurance Co Ltd v Shri Gurudasmal & Ors [1970] AIR 1126 SC.