Is CBI a legal entity?

On Friday, October 26, 2018, the Supreme Court issued interim directions trying to bring about a quietus to the civil war that has gutted the Central Bureau of Investigation (CBI) and firebombed the other law enforcement and intelligence structures. However, a fundamental issue has still not been addressed: Is the CBI a legal organisation with a constitutionally kosher legal architecture or is it an illegal and unconstitutional entity? To answer that question you need to start right at the beginning.

The CBI was created by an executive order on April 1, 1963. However, it was really born 22 years earlier as a Special Police Establishment in the department of war in 1941. In 1943, it was constituted by an ordinance into an independent entity, namely the Special Police Establishment (War Department), in exercise of the Emergency powers conferred upon the then Viceroy and governor general of India Lord Linlithgow by the India and Burma (Emergency Provisions) Act, 1940 passed on June 27, 1940 by the British Parliament.

The Emergency Provisions Act interminably extended the validity of ordinances promulgated by the governor general invoking the powers available to him under Section 72 of the Ninth Schedule of the Government of India Act, 1935 which otherwise mandated that the maximum validity of an ordinance could be six months only.

With the Second World War coming to a close in 1945 the said act stood repealed by His Majesty’s Order in Council, namely the India and Burma (Termination of Emergency) Order, 1946, which declared the end of emergency with effect from April 1, 1946. The emergency had occasioned the passage of the Emergency Provisions Act in the first instance.

Fearing that all acts done under the Emergency Powers Act, 1920 would either lapse with effect from October 1, 1946 or get extinguished as the validity period of an ordinance stood revived to six months as envisaged in Section 72 of the Ninth Schedule of the Government of India Act, 1935 with effect from April 1, 1946. The government of the day promulgated another ordinance on September 25, 1946 called the Special Police Establishment (War Department) Ordinance.

On October 1, 1946 in exercise of powers conferred by the said ordinance dated September 25, 1946 the then federal government mutated the Special Police Estab-lishment (War Depart-ment) into the Delhi Special Police Establish-ment.

The Delhi Special Police Establishment Act that came into force in November 1946 subsequently repealed the ordinance of September 25, 1946 even though the 1946 ordinance was valid till March 1947.

In the discharge of its legal duties, the CBI still functions as the Delhi Special Police Establishment ostensibly constituted before Independence on October 1, 1946. It is not quite clear as to whether a subsequent notification reconstituting the Delhi Special Police Establishment under the said act was ever issued as the 1946 ordinance only midwifed and morphed the Special Police Establishment (War Department) into the Delhi Special Police Establishment. The critical question therefore is whether the Delhi Special Police Establishment, and that is what the CBI is in legal parlance even today, was ever officially constituted through a proper notification.

Before you get lost in a legal jungle let me demystify the legalese. The CBI has no independent standing in law. It is a piece of legal fiction whose underpinnings in law are tenuous to say the least. It still draws all its powers of investigation and arrest from the antiquated 1946 Act which essentially being a local act provides that each state through an executive order under Section 6 of the said Act has to give the Special Police Establishment, what is colloquially called the CBI, permission to investigate particular offences in that state. In other words, the CBI can investigate a case only if requested by the concerned state government or directed by the high court or Supreme Court, except if it is a matter that pertains to the Central government. It is also questionable whether the constitutional scheme provides for a central investigative agency. Entry 1 and 2 of the State List seventh schedule makes police a state subject.

My interest in the legality of the CBI commenced in 1994 when a special leave petition filed in the Supreme Court in 1986, Bajrang Lal Kedia vs Union of India, landed in the law chambers of P.R. Kumaramangalam — former law minister of India — for final arguments. The said SLP challenged the legality and vires of the CBI. I was then working with Kumaramangalam. Along with two colleagues Vipin Gogia and Pawan Kumar, I prepared the final arguments. Sushil Kumar Jain was the advocate on record.

On August 30, 1994, Kumaramangalam argued the matter at length in the Supreme Court before a division bench of Justices K. Ramaswamy and N. Venkatachala. After hearing the Union of India and us, the court dismissed the matter in limine — leaving all the substantive questions of law open for future adjudication.

That is where the matter lay till I raised it in the Lok Sabha on July 22, 2009 through a starred question. It pertained to the very legality of the CBI. On not getting a satisfactory answer I researched the subject extensively and wrote an exhaustive policy brief for the Observer Research Foundation (ORF) entitled “Legally Empowering the Sentinels of the Nation”. I followed it up by tabling a Private Members Bill in the Lok Sabha on August 13, 2010 entitled “The Central Bureau of Investigation Bill 2010” to give the CBI a proper statutory underpinning. http://www.prsindia.org/mptrack/15loksabha/manishtewari

My apprehensions about the ambiguous legal basis of the CBI came true on November 6, 2013 when a division bench of the Gauhati high court quashed the resolution constituting the CBI. Justices I.A. Ansari and Indira Shah held “…while we decline to hold and declare that 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. We hereby also set aside and quash the impugned resolution, dated 01.04.1963, whereby CBI has been constituted…”

Though on November 9, 2013, the then Chief Justice of India, P. Sathasivam, and Justice Ranjana Desai, in an urgent hearing held at the residence of the CJI stayed the said judgment but that is where the matter rests since then. The CBI’s existence hangs by the thread of a stay.