In a very bold decision (PDF) a Division Bench of Gauhati High Court has held that the very process of setting up the Central Bureau of Investigation (CBI) was invalid and unconstitutional. Although almost all have criticised this decision of Gauhati High Court yet it is neither absurd nor an uncalled one.
Parliamentary oversight of any law enforcement agency is the core requirement under Indian Constitution. However, our intelligence agencies and many law enforcement agencies, including CBI, are not governed by any sort of parliamentary oversight.
Even CBI is well aware of this ground reality. The Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same could not see the light of the day. CBI’s case is a political fiasco that has arisen due to the PMO indifference.
Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to materialise and till now our intelligence agencies are not governed by any law. In fact, intelligence agencies are vehemently opposing the proposed Right to Privacy Bill 2013 so that they remain ungoverned and unaccountable in every possible sense.
India has already launched illegal and unconstitutional projects like Aadhar, central monitoring system, national intelligence grid (Natgrid), etc without any legal framework and parliamentary oversight. Now when we have a chance to bring some sanity among the chaos created by the intelligence infrastructure of India, the intelligence agencies have pulled their sleeves to stall the proposed privacy bill.
In the present case, the Gauhati High Court observed that CBI was constituted through a resolution issued by the Union ministry of home affairs on April 1, 1963. The creation of the CBI through the resolution, which was signed by then secretary to the Union government V. Viswanathan was held to be as ultra vires by the Court. The Court also set aside the impugned resolution. As a result of that, from today, the CBI ceased to be a constitutionally valid police force empowered to investigate crimes and all CBI cases have become void ab initio.
The High Court was of the view that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order. For that purpose, an act shall have to be passed by the Legislature. This is a valid stand taken by the Court and this situation could have been avoided if proper law for CBI was drafted in time. There is nothing wrong per se with CBI but its constitution is highly controversial and debatable. The present judgment of the Gauhati High Court has just reaffirmed this position.
Meanwhile, the legal team of CBI is examining the judgment. According to CBI, the order seems to be faulty as so many CBI cases are being monitored by the Supreme Court at present and several High Courts often ask the country’s investigative agency to probe cases. An official source said the CBI is likely to challenge the judgment in the Supreme Court.
Additional solicitor-general of India P.P. Malhotra appeared for the Centre and the CBI. Malhotra said the judgment was totally erroneous and the Centre would appeal in the apex court on November 11 after the vacation.