The Sources of Existence
The recent Guwahati High Court judgment on CBI in W.A. No. 119 of 2008 (Navendra Kumar vs. Union of India) has created an existential crisis for the CBI. The CBI tried to justify its existence before the high court on the basis of two sources:
- As a “police” force established under the Delhi Special Police Establishment Act (DSPE Act).
- As a central bureau of “investigation” established u/a 73 r/w entry 8 of the list 1 (union list) of the seventh schedule of the Indian Constitution.
Guwahati High Court Judgment on CBI: Rejection of Cited Sources of CBI’s Existence
CBI as a Police Force under the DSPE Act
The Guwahati High Court judgment on CBI rejected the first source of existence. I think the source was was ill-founded and has been rightly trashed by the Guwahati High Court. The CBI can’t be a police force under the DSPE Act because there was never an intention to create one as is evident from the notings made in reference to the establishment of the CBI. An attempt was also made to justify the police force as having been setup for Delhi u/a 73 r/w a 246 & 245 r/w entry 2 of the state list of the Indian Constitution and extended to other states under entry 80 of the union list of the Indian Constitution. However, the attempt was rejected on two premises. First, on the premise that there was no executive action u/a 73 of the Indian Constitution, for there was neither any cabinet decision nor any assent of the president. Secondly, on the premise that mere executive instructions can’t infringe fundamental rights.
I think the Guwahati High Court has erred wrt the first premise: In Visakha v. State, the supreme court allowed the contribution from the solicitor general to be an appropriate executive action u/a 73. However, in Visakha’s case, the law was laid down u/a 32, thus there could be a question that even if there is an appropriate executive action through an administrative instruction, would it tantamount to laying down a “law”. I would say it wouldn’t, and, therefore, the second challenge wrt infringement of fundamental rights should anyways succeed.
CBI as a Bureau of Investigation under the Indian Constitution
The high court rejected this source as well. However, I think the Guwahati High Court has erred here.The best argument for justifying the existence of CBI can be made u/a 73 r/w entry 8 of the union list because even if there is no law in the strictest sense, the executive action u/a 73 would be valid in view of the precedence in Visakha’s case (supra). The executive can definitely take ad-hoc measures as residuary measures for setting up a central agency for “investigation”, which agency would have enough authority to face the challenge of infringement of fundamental rights. However, this argument of the CBI has been trashed by the Guwahati High Court holding that the word “investigation” appearing in the entry 8 is used in the sense of “enquiry” and it doesn’t give powers to the agency, so setup, to investigate the crimes as a police force can do.
Intrepretation of the word “Investigation”
Interpretation of the word “investigation” is no more res integra in view of the orders passed by the supreme court in SLP (Crl) 1088 of 2008 r/w orders passed in WP (Crl) 109/2003. In WP (Crl) 109 of 2003, the supreme court directed the constitution of a SIT to “enquire/investigate” the Gujarat riots cases.
The “/” has different meanings depending upon the context. It may mean “or”, and it may be used denoting the use of synonyms separated by “/”. The question arises how the two words “enquire” and “investigate” have been used by the supreme court in its order directing the constitution of a SIT. Later on, the same SIT constituted under the directions of the supreme court in WP(Crl) 109 of 2003 was asked to examine the complaint filed by Zakia Zafri before the DGP, Gujarat, and file a report thereof.
Subsequently, the further investigation was carried out by the SIT, and the same was reviewed by the amicus curaie. No FIR was ever filed against Narendra Modi, an accused in the complaint, but, in its final order, the supreme court directed the SIT to file the investigation report before the trial court, which clearly means that the SC used “/” in the sense denoting synonyms, which further means that the supreme court has held that “enquiry” and “investigation” are one and the same thing. In fact, there is no use of the word “enquiry” in chapter XII of CrPC, which deals with investigation by the police, and the view taken by the supreme court is influenced by a simple interpretation of the CrPC.
“Investigation” in the Context of Guwahati High Court Judgment on CBI
Coming to the question of the usage of the word “investigation” in reference to the CBI, the Guhawati High Court rejected the argument of the additional solicitor general that the powers to establish the CBI vide the impugned resolution/order can be derived from entry 8 of the union list on the premise that the word “investigation” used in the entry 8 is used in the sense of “enquiry”, as differentiated from”investigation”.
The judgment of the Guhawati High Court comes in direct conflict with the view taken by the supreme court in Zakia Zafri’s case (supra). Moreover, the whole premise of the supreme court order directing the filing of the final investigation report before the trial court is based on the reading of the earlier reported judgments passed in reference to the CBI, so the interpretation of the word “investigate”, as appearing in the entry 8, has been well considered in the supreme court order in Zakia Zafri’s case (supra).
Thus, this issue is no more res integra as the interpretation of the word “investigate” as appearing in the entry 8 had direct bearing on the decision rendered by the SC. If the word had been interpreted as meaning “enquiry”, as interpreted by the Guhawati High Court, the supreme court couldn’t have directed the filing of the investigation report before the trial court. It could have only directed the filing of the FIR by the SIT.
CBI Void in the North East only or the Whole of India
Another interesting question has arisen as to whether the Guhawati High Court judgment on CBI has rendered the CBI void through out India or only in certain parts of the North East. The answer to this question lies in the way the existence of the CBI is justified. If it is justified relying upon the DPSE Act, then, obviously, the CBI has been rendered void through out India, for if it is a state police force extended to the North East, over a part of which the Guwahati High Court has territorial jurisdiction u/a 226(1), the Indian Constitution.
However, if the CBI’s existence is justified as a central bureau of “investigation” having been constituted u/a 73 r/w entry 8 of the union list — for which there is enough precedence in Visakha v. State irrespective of the observation of Guwahati High Court in para 124 of the judgment — the high court derived its jurisdiction u/a 226(2), the Indian Constitution, and thus the CBI has been rendered void only in certain parts of the North East where the Guwahati High Court exercises territorial jurisdiction.
The notes leading to the formation of the CBI have been well discussed in the judgment, and, as appearing from the discussion, the intention of the then government was to set up a central bureau of investigation through executive actions u/a 73 r/w entry 8 of the union list, not as a police force under the DSPE Act. If the government insists on the argument that the CBI has been setup under the DSPE Act, it will only make fool of itself and may not even get a stay from the SC. However, with little tact, the CBI can manage this existential crisis created by the Guwahati High Court judgment on CBI.
© 2013 Ankur Mutreja