CBI Declared As Unconstitutional

A division bench of Gauhati High Court comprising Justice IA Ansari and Justice Indira Shah on November 8, ruled that the Central Bureau of Investigation (CBI) was legally not a police force and stripped it of its powers to investigate crimes, arrest suspects and file charge-sheets.

“We hereby…set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted… We do hold that the CBI is neither an organ nor a part of the Delhi Special Police Establishment (DSPE) and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946,” the High Court had said.

The bench said, “A careful reading of the preamble to the DSPE Act, 1946, would make it evident that the DSPE Act, 1946, has been made for the Union Territories. This legislative power cannot be exercised by Parliament except under Article 246(4) of the Constitution, which enables Parliament to enact laws on subjects covered by List-II (State List), in respect of Union Territories.”

Although the validity of DSPE Act has not questioned by the court but the CBI has been barred from acting as a ‘police force’ on the basis of it being “neither an organ nor a part of the DSPE”.

The high court’s order came on a petition challenging a CBI charge-sheet against a Mahanagar Telephone Nigam employee, which ended up questioning the validity of the agency for the first time in its 50-year existence.

Amicus Curiae’s View On CBI
  • N Dutta, amicus curiae, told the court that the CBI and the DSPE are not one and the same thing
  • He brought to the court’s notice that DSPE was established under the DSPE Act, 1946, the CBI has been constituted by a mere executive fiat.
  • The CBI has been empowered to ‘investigate’ crimes, no power has been specifically provided for ‘prosecution’ of offenders by the CBI.
  • The DSPE can merely ‘investigate’ a case and lay charge-sheet
CBI’s Defence
  • CBI derives its power to ‘investigate’, like a police force, and is only a change of the name of the DSPE
  • As per the DSPE Act, the Centre may extend the powers and jurisdiction of the members of Delhi Police Establishment to investigate an offence beyond the territorial limits of Delhi and the members of the Delhi Police Establishment can exercise powers and jurisdiction in any area of any other State with the consent of the state government
Setting Up Of CBI

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Department Of India during World War II. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Actwas therefore brought into force in 1946. The CBI’s power to investigate cases is derived from this Act. The Ministry Of Home Affairs (MHA) had, by a resolution dated April 1, 1963, constituted the CBI as a police force under the Delhi Special Police Establishment (DSPE) Act, 1946.

Government will move the Supreme Court seeking a stay on the Gauhati High Court order terming CBI as unconstitutional. The government is moving with urgency in the matter because it feels that the Gauhati High Court order may create uncertainty over the functioning of the premier central probe agency.

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