During the Congress regime, the SC made an observation that the CBI was acting as a caged parrot. The context of the observation was limited to the court proceedings on that particular day when the court thought the CBI was repeating the words of their masters in the court and was not speaking independently. The media would obviously construe this as a complete control of the government over the CBI. However, the role of the CBI in the present dispensation, especially after the appointment of the new chief in an “illegal” manner, is highly questionable. It can be seen very easily that the CBI is taking motivated actions against the opposition groups, not just politicians.
However, that is not my area of interest in the present piece. I am rather questioning the very jurisdiction of the CBI to make arrests. In fact, the existence of the CBI per se is under scanner, for the Guwahati HC has declared the CBI illegal/unconstitutional.
First and foremost, if the CBI is merely an investigative agency, not a police force, it should not have any power to arrest people. Either it should get arrest warrants from the court or should seek help of the local police for making arrests. The CBI is a central agency, which the Parliament in its wisdom has even equated to an intelligence agency under the RTI Act. The arrest of people across board by a central investigative agency when its very existence is in question is highly objectionable and can be construed as an attack on the federal structure.
My second problem is how can an agency which has been equated to an intelligence agency ever arrest a person. In fact, all actions of the intelligence agencies are prima facie illegal, for they never follow the Constitution or Law. So, how can they be tolerated to carry out any kind of police function. No police force can remain outside the purview of the RTI Act, for the people have the right to know the reasons for arrests, at the least. The fact the CBI is indeed outside the purview of the RTI Act makes any arrest by it illegal.
I think the Bengal Government’s action of forceful retrieval of its MP from the CBI’s custody won’t be illegal, for the CBI per se may be lacking the jurisdiction to arrest people. The lack of jurisdiction can be challenged by the use of force. The Guwahati HC judgment though stayed by the SC is still a guiding light, for the SC has not yet quashed it, and the Guwahati HC or any other court can consider it as a persuasive precedent, if not a binding precedent. The pendency of an issue in the SC itself doesn’t bar the HCs from looking into the same questions on merit as and when they may arise. In fact, the HCs are equivalent in rank to the SC in the matter of administration of justice. The SC doesn’t exercise any supervisory jurisdiction over the HCs and can’t issue administrative directions to the HCs to not consider or deliberate upon any issue unless the same is barred by the principle of precedent or Stare Decisis. I think the SC should not keep such important matters pending for so very long.
(Checkout my new book Kerala Hugged)