Mobilenews24x7 Bureau
A fresh debate is raging over the Constitutionality of the Central Bureau Of Investigation(CBI). This has assumed more significance after an observation by Guahati High Court in recent times.
The Supreme Court also recently declined to entertain a petition jointly filed by 14 political parties alleging misuse of investigative agencies like the Central Bureau of Investigation (CBI) and Directorate of Enforcement (ED) in arresting opposition leaders, and sought guidelines on the arrest.
The political parties in the plea, which now stands withdrawn, had sought guidelines to fulfil and realise the guarantee of personal liberty entrenched in Article 21 of the Constitution, for all citizens, including those targeted for exercising their right to political dissent and for performing their duties as the political opposition.
Namely, the political parties that petitioned the apex court were – Congress, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena (UBT), JMM, JD(U), CPI(M), CPI, Samajwadi Party, National Conference, together representing 45.19 per cent of the votes cast in the last state/UT assembly elections, and 42.5 per cent of the votes cast in the 2019 General Elections, and holding power in 11 states/UTs.
Even though the plea now stands withdrawn after the apex court refused to deal with it, the most intriguing question that arises here is the constitutionality of the CBI.
It may be recalled that Justice Ansari of the Gauhati High Court had, in 2019, reiterated his 2013 judgement saying that “the very constitutionality of the CBI is questionable, and this question has to be answered by the Supreme Court”.
A division bench, presided over by Justice Ansari, had held CBI’s actions as “unconstitutional”.
The judgment was almost a shocker and it was immediately stayed by then Chief Justice of India P. Sathasivam at his residence, and has remained that way.
Digging deeper a news agency find out how the CBI was formed and why the retired Gauhati High Court chief justice I.A. Ansari had, in 2019, reiterated his 2013 judgement that the probe agency is an unconstitutional body, which threatens India’s federal structure.
There was a prolonged brain-storming between the Chairman of the Drafting Committee of the Indian Constitution Dr B R Ambedkar and others which led to certain re-draftings.
On August 29, 1949, when the then Chairman of the Drafting Committee of the Indian Constitution, B.R. Ambedkar had re-drafted entry 2 from “Central Intelligence Bureau” to “Central Bureau of Intelligence and Investigation”, he had added two words – “and Investigation”.
“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,” he had elucidated.
Question mark on CBI’s constitutional validity
Now called the “Central Bureau of Investigation”, was never constituted under any statute until an executive order was issued by the secretary of home affairs V. Vishwanath on April 1, 1963, with no backing from the law.
“If somebody has committed an offence, it is not that anybody in any way can punish the person. There is a legal framework and procedure established by the law, which has to be followed and is also a constitutional guarantee under Article 21 of the Constitution.” Speaking with media, Supreme Court advocate Dr. L.S. Chaudhary said:
“We raised the constitutional validity of the CBI on two counts. One was that it has not been created under any law and the second was that Police is a State subject and the Central government cannot carry out Police functions,” Chaudhary added.
Justice Ansari of the Gauhati High Court had, in 2019, reiterated his 2013 judgement saying that “the very constitutionality of the CBI is questionable, and this question has to be answered by the Supreme Court”.
A division bench, presided over by Justice Ansari, had held CBI’s actions as “unconstitutional”.
It is to be noted that while the judgement had created quite a stir, it was immediately stayed by then Chief Justice of India P. Sathasivam at his residence, and has remained that way.
“We hereby set aside the impugned judgement and order, dated 30.11.2007, passed, in WP (C ) No. 6877/2005, and while we decline to hold and declare the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946,” the bench had said.
“Police is a State subject under the Constitution,” Chaudhary told IANS, adding that the purpose of creating CBI by Ambedkar was to collect the statistical data only and not to investigate the crime.
Chaudhary said that CBI was created just to collect the statistical data as to whether information that has been supplied by the state governments to the Parliament is correct or not.
According to the Gauhati High Court, entry 8 does not empower the CBI to enter a state and investigate crimes alleged to have been committed there.
While the matter was stayed by the Supreme Court, Justice Ansari had said that it cannot be considered “settled in law” since the apex court has never really discussed or decided the matter.
