Nation's premier investigating agency sans constitutional support

Once upon a time, corrupt people in the country were horrified by the very thought of CBI. At present, the scenario got changed since the Central Bureau of Investigation has become a puppet in the hands of authoritarianism, nation's premier investigating agency sans constitutional support to function autonomously.

Hyderabad (Telangana): A mention of that organization’s name fills the corrupted, terrorists and criminals with dread. That organization is not in India but in the USA. And the name is Federal Bureau of Investigation (FBI). There is an investigating agency in our country with a similar name but the similarity ends there. There is criticism that this agency which goes by the name of Central Bureau of Investigation (CBI) is a puppet in the hands of the ruling party. There are allegations that the ruling party uses it to create panic among opposition parties.

The CBI’s situation is similar to that of Bhishma on death bed. It is still functional due to the Supreme Court’s stay order. While a judgement given by the Gauhati High Court 6 years ago pushed CBI to the brink of death, the organization is barely functioning thanks to the SC. On November 6 th, 2013, the Gauhati High Court had struck down the resolution through which CBI was set up as unconstitutional. If any High Court declares an organization or bill as unconstitutional, the rule will be applicable nationwide.

The Gauhati High Court’s judgement came as a blow to the central government, which allotted thousands of cases to CBI and saw to it that the punishment was meted out in most of them. It immediately sent the former attorney general Gulam Vahanvaty to the then chief justice of Supreme Court, P. Sathasivam. Since the court was closed for vacation, Vahanvaty met the chief justice in his residence. Justice Sathasivam, who understood the severity of the case conducted the case hearing in his residence and issued a stay on the High Court’s order. It has been 6 years since this incident and CBI is still alive due to SC’s stay. Months before the Gauhati HC’s order, the SC termed CBI as a caged bird but realized that it must be functional until an effective alternative is established.

The Gauhati HC has passed the judgement that CBI is unconstitutional upon the plea of a petitioner called Navendra Kumar. Kumar, who was being investigated by CBI for cases filed against him, challenged the organization’s constitution. He filed a writ petition stating that CBI is not a constitutional organ but was created by a simple government resolution. He argued that CBI has no authority to carry out arrests, raids or file charge sheets. The altercation among several top CBI officials before the recent Lok Sabha elections and resolutions passed by several governments blocking CBI’s entry into their respective states shows the brittle foundations of the central agency. Recently, Alok Verma and Rakesh Asthana, who are considered the top bosses of CBI made corruption allegations against each other. Some officials were caught taking bribes and a team which was investigating corruption charges was suddenly transferred at midnight. All these instances tarnished the image of CBI. Ruling parties using CBI as a weapon against their opponents became a norm and the judiciary is forced to interfere time and again.

The history of CBI is worth mentioning here. During World War II, the British Raj made issued a special ordinance to set up the Special Police Establishment (SPE) which later became CBI. In 1946, the Delhi Special Police Establishment Act (DSPE) was brought in the place of this special ordinance. In the beginning, SPE was limited to investigating corruption and bribery in the drinking water supply department. Later, the SPE’s scope was enlarged to cover all the government departments and union territories of India.

In 1963, a resolution by the Home Ministry led to the formation of CBI. Section 6 of DSPE states that the respective state government’s consent is needed to carry out investigations in a state. The CBI can investigate in union territories and central government organizations. It can investigate the orders issued by the Supreme and High Courts. But the state governments’ consent is compulsory to investigate in the respective states.

The Gauhati HC ruled out the Home Ministry’s resolution of 1963 as unconstitutional. The reason being the resolution was not passed by the central legislation or through the presidential orders. That being said, the HC did not declare that the DSPE Act, 1946 was invalid. The HC stated that CBI was not a part of the DSPE Act and hence cannot be considered a police force constituted under DSPE.

The 1963 resolution established CBI temporarily. It explained that the resolution is applicable with certain restrictions until the law is formulated for the establishment of CBI. In 2017, a parliamentary committee suggested making a special act to clear up this confusion. Only CBI has the required expertise to investigate crimes related to terrorism and mafia besides international offences. But the powers extended to the agency are limited under the DSPE Act.

The parliamentary committee suggested making CBI an autonomous body through a special law. As a reply to this, the Department of Personnel and Training said that constitutional amends are needed to make such special laws. Since the public order and police are under the State List, the Parliament cannot pass a bill. It said that such a law would be a threat to the constitution. The parliamentary committee reminded that they have clarified such apprehensions in their report and stressed the importance of special law for CBI. It further instructed that CBI must be given a similar status along the lines of FBI. In order to function autonomously, such status is very important.

The federal spirit of India will be disturbed if CBI is given special powers. But it must be made constitutional too. Without harming the federal spirit, CBI must be given powers and provisions to investigate terrorist and hi-tech crimes. Terrorism, spying, drug and human trafficking, money laundering and fake currency destroy the national security. These are classified as federal crimes in the USA. Hence, the FBI can investigate any such federal crime. Due to changing circumstances, India must also categorize such crimes. Since there is no such categorization, CBI is unable to investigate autonomously.

In an event of a federal crime, the state governments delay things to no end and hand them over to CBI as a last resort. By then, the crucial time will be lost. Unless a special law is made, the expansion of CBI is impossible. To pass such a law, unity in political consent is a must. By promising that the special powers in investigating federal crimes won’t be misused by political parties and state governments, the process of formulation must be initiated. During the hearing of the 1997 Hawala scandal, the Supreme Court warned that nobody must interfere in CBI’s affairs either politically or governmentally. The parliamentary committee asserted the same. It stressed that CBI must be free of interventions to effectively tackle acts of terrorism and hi-tech crimes. CBI does not possess the freedom, facilities or legal power that the FBI does. A special law was made for FBI, which was first established as Bureau of Investigation in 1908. Under this law, an FBI director is appointed for a single 10-year term by the President of the United States and confirmed by the Senate.

The recent experiences demand such a provision in CBI. Under the USA Patriot Act, 2001; the FBI was given powers to tap phone calls and keep a check on internet activities. If in case of doubt, the FBI can raid citizens’ homes and offices without their consent. Nor does the organization have to give them prior notice. Likewise, crucial information can be demanded by banks and financial organizations without needing the court’s consent. In the times of rampant financial crimes, FBI is efficiently utilizing the power conferred upon it.