Central Bureau of Investigation has been the top notch and a premier
investigating agency of India, for more than five decades. But a question rises
in mind and that too after a span of almost five decades that whether the agency
is within the four corners of our Constitution? This question owes its credit to
the 2013 Gauhati High court division bench judgment where, before the court
was the question of prime importance that whether CBI is Constitutional or not.
The Court declared the CBI as unconstitutional, which was a major blow for the
Government, the judgment was delivered with immediate effect meaning thereby the
CBI is at one stroke of the pen of their lordships an unconstitutional body and
cannot investigate or arrest the accused persons.
The judgment had its own
repercussions and the Govt. rushed to the Supreme Court for a stay citing the
difficulties in the ongoing trials, as the Gauhati HC judgment declared CBI as
unconstitutional it also meant that CBI cannot arrest any further and the
ongoing trials in the special CBI courts are also of no legal standing, till
then many accused persons had filed for the disposals and their acquittals as
the CBI is declared as unconstitutional.
The Supreme Court stayed the Gauhati
High court judgment and till date it is stayed. This important question needs to
be answered by the apex court and clear the law on the subject. By diving into
the merits of the legal arguments the author has briefly summed up his view by
analyzing arguments from both the sides, which are mentioned below.
Arguments against the CBI
Article 21, is one of the most cherished provisions of our Constitution which
prohibits the State from depriving a person of his life and liberty except
according to the procedure established by law. However what happens if by the
State's action, which has been neither sanctioned by legislation nor has been
taken in valid exercise of its executive powers, smudge the ineffaceable mandate
of Art 21. This is precisely the issue.
Central Bureau of Investigation (hereinafter referred to as CBI) was established
vide Resolution No. 4/31/61-T, dated 01.04.1963 by the Ministry of Home
Affairs. Being an executive action, it has no law to lay its birth, hence it is
not a statutory body. In absence of any law laying its birth, the CBI exercising
the powers of the police, such as registration of Fist Information Reports,
arrest of persons, laying charge-sheet and prosecution of the offenders cannot
be permitted, for, allowing it to do the same it would infringe the fundamental
rights guaranteed under Art 21.
To the contrary what CBI claims is that it
has been established under the Delhi Special Police Establishment Act
1946 (hereinafter referred to as DSPE Act). On bare reading of the said
resolution it is evident that it is not a delegated legislation as per the DSPE
Act, nowhere does the resolution mentions it, nor it is mentioned under sec. 2
of the DSPE Act 1946 therefore it is not a statutory body. As far as sec. 2 is
concerned the statutory body to be established under sec. 2 is Delhi Special
Police Establishment and not the CBI.
Further there is no mention by the central
govt. that it is issuing the resolution in exercise of powers conferred to it by
the DSPE Act because the resolution nowhere reflects the source of its powers.
It has been held by their lordships in several cases that an executive action
without a legal sanction cannot infringe the fundamental right to life under Art
21. In, State of M.P v. Thakur Bharat Singh
 and also in the case of
Dayal Chandra Mohan v. State of U.P
 The ratio of all these stellar
pronouncements was that executive action without a legislation, infringing the
fundamental right is unconstitutional.
The meaning of word 'law' under Art 21 would mean a law which is enacted by the
Parliament or the state legislatures or by far it would cover an executive
action backed up by necessary legislation, a mere resolution which is nothing
but an executive fiat cannot be termed as procedure established by law, hence
cannot infringe Art 21. It is further submitted that 'police' being in list II(state list) as Entry 2 only a state government can legislate on that subject
and the Union govt. vide resolution no. . 4/31/61-T encroached upon the sphere
of the state law making.
In State of A.P v. Mcdowell
 held that if a
particular matter is in the exclusive competence of the state legislature i.e in
List I of seventh schedule, then that represents the prohibited field for the
union to legislate. As there is no law which gives birth to CBI, at best it can
be treated to be constituted under Entry 8 of List I of the constitution, which
reads Central Bureau of Intelligence and Investigation, but the fact is, the
meaning of the word investigation under entry 8 list I is different from the
'investigation' what police does as per section 2(h) of the code of criminal
It was made very clear by the constitution makers, in the
constituent assembly debates that the 'investigation' by any central govt
established agency would merely mean collection of intelligence and a mere
enquiry and not an investigation which a police officers does, i.e filing of the
FIR, arresting the accused, preparing charge sheet and prosecuting, that is the
sole prerogative of the police and which is exclusively a state subject under
entry 2 list II to quote Honourable Dr. B. R. Ambedkar The point of the matter
is, the word investigation
here does not permit and will not permit the making
of an investigation into a crime because that matter under the Criminal
Procedure Code is left exclusively to a police officer. Police is exclusively a
State subject; it has no place in the Union List.
The word investigation
therefore is intended to cover general enquiry for the purpose of finding out
what is going on. This investigation is not investigation preparatory to the
filing of a charge against an offender which only a police officer under the
Criminal Procedure Code can do. It makes it crystal clear that there is
qualitative difference between the investigation of the police officer under Crpc and the investigation by the officer of central bureau of intelligence and
investigation under list I entry 8.
The CBI can best be said to have been
established under the entry 8 of union list, hence a CBI officer's work is
just to enquire, collect information and provide it to the concerned police
department of the state, till this extent the constitution permits, but on the
contrary they, under the garb of a police officer, investigates the offence not
like which the framers of the constitution wanted, but like the police officer
under Crpc, to which exactly the framers of our constitution showed reluctance.
If indeed the fathers of our constitution would have intended that both union
and state can make laws on 'police' they would have mentioned it in the
concurrent list III, the main reason of it being in the state list is that it is
the exclusive domain of a state to make laws on the police and the union could
not have encroached on that. The said resolution is not only transgressing the
law making powers of the union but also offending the federalism of India which
is a basic structure of the Constitution as laid down in the legendary case of Keshavnanda
Bharti. By making a law on the subject which is under exclusive state domain
the union is encroaching upon the state legislative sphere.
It is further submitted that in the case of Dr wadhva v. State of Bihar
was held that executive cannot take away the functions of the legislature, it
would then be executive made law and not that of the legislature, meaning
thereby unelected people making law which is the subversion of the democratic
scheme of our constitution. Also in Chief settlement commissioner v. Om
 it was held that executive powers are to fill gaps and not to act as
an independent law making agency, if the state permits the executive to make
laws like this, then we would be governed by laws not made by the legislature
but by the executive, such a situation is the death of democracy and the birth
of executive autocracy. Such an executive action without a warrant of a legal
sanction cannot be termed as a law under Art 13(3) and art 21 of the
The question is from where does the executive derive power to pass this
resolution no. 4/31/61-T dated 01.04.1963, as there is no mention of the
enabling Act in the resolution itself, it should be tested on the threshold of
the Constitution. As it is clear from the constituent assembly debates that it
cannot be from entry 8 list I because the fact is presently CBI investigates in
a manner similar to the police officer under Crpc, they file FIR, arrest and
also prosecutes, which is blatantly illegal because the constitution never
consented for the same, hence it cannot be formed under entry 8 list I.
Further it can also not be termed as an executive action under Art 73. Under our
constitution Art 73 reflects the coextensive executive powers of the Union
government with that of the Parliament, Art 73 (a) states that executive powers
of the union shall extend to the matters with respect to which parliament has
power to make laws. It is clear that the union executive can make laws on which
the parliament can make.
But what is pivotal to note is there is a proviso to
Art 73 which states the fetter on this power which is that, this exercise of
executive power shall not save as expressly provided in constitution or any law
made by parliament extended in any state, to matters with respect to which the
legislature of the state also has power to make laws. Which makes it clear that
the executive cannot make law on the subjects which are exclusively in the state
list, i.e 'police' so the resolution could also not have been made under this
Art 245 read with art 246 makes it clear that the constitution clearly makes
distinction on the subjects on which the union and states can legislate upon.
Article 246(3) states that 'subject to clauses 1 and 2 the legislature of any
state has exclusive power to make laws for such state or any part thereof with
respect to any of the matters enumerated in list II in the seventh schedule'. It
is now clear that Parliament cannot make laws on the subject which is in list
II, even the Parliament is restrained and to the contrary this is an executive
action which holds no constitutional power.
It is to be noted that the DSPE Act
which is constituted under the power derived from art 246 (4) which states
parliament has power to make laws with respect to any matter for any part of
the territory of India not included in a state notwithstanding that such matter
is a matter enumerated in the state list.
This makes it clear that the
Parliament can make law on the subjects of state list, but only for union
territory. And Delhi being a union territory the parliament was competent to
make the DSPE Act, but this resolution establishing the CBI is not even
traceable to the Act nor does it is passed under a valid executive action.
Again, the humble attention of the readers is drawn to the fact that the said
resolution is not even an ordinance under Art. 123 because that ordinance under
123 is by the President of India and not by the Home ministry, further even that
ordinance is laid before both the houses of parliament, which again this
resolution lacks i.e no legal sanction.
there is no other provision under the constitution where the union could have
exercised the power and passed this resolution, even under entry 80 of list 1 it
cannot be passed, because what entry 80 list 1 permits is only making provisions
of extension of a valid law governing activities of police of one state to have
jurisdiction in any other state which of course is with consent of that state.
The requisite under entry 80 is that there should first be a validly established
police force, only then the question of extension arises, entry 80 list I does
not validates this resolution because entry 80 presupposes the existence of a
valid police force in as much it cannot create a police force by itself under
It is submitted that hence there is no constitutional nor any legal backing for
the resolution dated 01.04.1963 establishing the CBI, the same cannot be termed
as 'law' under article 13(3)(a) and art 21. Further the Constitution of India
nowhere permits the union to exercise policing powers, specifically to create an
agency at the central level for the purpose of carrying out investigation into
penal offences. Further the union has powers under entry 1 of the concurrent
list to enact laws with respect to criminal law and criminal procedure but that
does not empower the union to create institutions which exercises the police
power, except in a Union Territory.
Therefore the idea that the union can
establish a police for the union territory and then use it for investigation in
other states by using the power under entry 80 is flawed, it would be a fraud on
the constitution. Further the ambit of entry 80 list I cannot contemplate a
legislation which provides powers of investigation to the union within the
states, which power is within the exclusive jurisdiction of the states under
What is happening here is, that the union is indirectly creating a
police force which it is entitled to create just for the union territory by
getting power under art 246(4) r/w entry 2 list II. And then by using entry 80
list I directing that union established police to go and investigate in the
states with their consent.
This procedure which is directly not available to the
union as subject of police is under the state list, now they are indirectly
trying to do what is directly prohibited. Hence this is a colorable exercise of
the power of Parliament which is not contemplated by the Constitution.
As it is rightly said Democracy without education is hypocrisy without
Arguments for CBI
Central Bureau of Investigation derives its powers from the Delhi special
police establishment Act, 1946 (herein after referred as to 'the Act') and has
been the premier investigating agency of the country for more than five decades.
It is undisputed that CBI was established vide resolution no.4/31/61-T, dated
01.04.1963 which gave the special police establishment – constituted under
section 2 of the Act, a new name i.e Central Bureau of Investigation.
Another undisputed fact is that on various occasions the Hon'ble Supreme Court
has recognised the above stated fact and also used the words CBI and special
police establishment interchangeably. In the case of State of W.B v. committee
for protection of democratic rights the very issue framed by court was
recognizing the fact that the CBI is established under the Act.
Also in the
case of Kazi lhendhup dorji v. CBI
 the court has at many instances used both
CBI and special police establishment interchangeably. This makes it very clear
that special police establishment is not any different from CBI. Further
reliance is placed on the judgment of Vineet narain and ors v. Uoi
, in which
the Hon'ble SC was not even a bit hesitant to state that CBI is constituted
under the Act and also not hesitant to use them interchangeably.
establishes that CBI although created by the resolution, but derives its powers
from the said Act.
The history of the legislation is very important to note and it becomes more
important when the apex court narrates this in the case of gurdasmal 8 5
On July 12, 1943 the Governor General enacted an ordinance (XXII of 1943) in
exercise of his powers conferred by S. 72 of the Government of India Act which
was continued in the Ninth Schedule to the Government of India Act, 1935. An
emergency had been declared owing to World War II and the powers were
exercisable by the Governor General.
The ordi- nance was called the Special
Police Establishment (War Department) Ordinance, 1943. It extended to the whole
of British India and came into force at once. By s. 2(4) the Special Police
Establishment (War Department) was constituted to exercise throughout British
India the power and jurisdiction exercisable in a province by the members of the
police force of that province possessing all their powers, duties, privileges
and liabilities. Under s. 4 the superintendence of the Special Police
Establishment (War Department) was vested in the Central Government.
however, provided by s. 3 as follows:
"Offences to be investigated by Special Police Establishmen:
The Central Government may by general or special order specify the offences or
classes of offences committed in connection with Departments of the Central
Government which are to be investigated by the Special Police Establishment (War
Department), or may direct any particular offence committed in connection with a
Department of the -Central Government."
This ordinance 'would have lapsed on September 30, 1946.
Before that on
September 25, 1946 another ordinance of the same name (No. XXII of 1946) was
promulgated. This constituted a special police force for the Chief
Commissioner's province of Delhi for investigation of certain offences committed
in connection with matters concerning departments of the Central Government.
scheme of this ordinance was slightly different. Under s. 2 Special Police
Establishment was constituted for the Chief Commissioner's Province of Delhi for
the investigation in that province of offences notified in s. 3. This was
notwithstanding the provisions of the Police Act of 1861. The Police
Establishment had throughout the Chief Commissioner's Province of Delhi in
relation to those 'Offences the powers, duties, privileges and liabilities of
the regular police officers subject, however, to any orders which the Central
Government might make in this behalf.
Section 3 of the new ordinance was almost the same as s. 3 of the previous
ordinance. The only changes were that the offences had to be notified and the
power to refer any particular case was not reveated. In the ordinance s. 5
provided that the consent of the Government of the Governors province or of the
Chief Commissioner should be, obtained to the extension before the powers would
be exercised. Ordinance No. XXII of 1946 was repealed by the Delhi Police
Establishment Act 1946 (XXV of 1946) which re-enacted the provisions of the
Ordinance. This Act was adapted and amended on more than one occasion.
First came the Adaptation of Laws Order 1950, enacted under clause 2 of Art. 372
of the Constitution on January 26, 1950. It made two changes. The first was
throughout the Act for the words "Chief Commissioner's Province of Delhi
words "State of Delhi" were substituted and for the word "Provinces"
"Part A and C States"
were substituted. This was merely to give effect to the
establishment of "States"
in place of provinces under the scheme of our
Next came the changes introduced by Part B States (Laws) Act, 1951
(Act III of 1951). , They were indicated in the schedule to that Act. Those
changes removed the words 'in the States' in the long title and the preamble.
The purpose of this was to remove reference to the States in the phrases "for
the extension to other areas in the States".
The more significant changes came in 1952 by the Delhi Special Police
Establishment (Amendment) Act 1952 (XXVI of 1952). In the long title (after the
"Adaptation of Laws Orders 1950) the words were "An Act to make provision for
the constitution of a special police force for the State of Delhi for the
investigation of certain offences committed in connection with matters
concerning Departments of the Central Government etc."
After the amendment the words read "An Act to make provision for the
constitution of a special police force in Delhi for the investigation of certain
offences in Part C States."
Similar changes were also made in the preamble and in S. 3 the reference to
Departments of Government was also deleted.
The change from 'for the State of Delhi to in Delhi
As time went by, due to the rise in economic offences in the nation it was
expedient for Union of India to further specify the offences under section 3 of
the Act and it was then felt, SPE would not be able to cope up with the problems
arising out of the country's over expanding economy, by reason of a resolution
adopted by the government of India dated 01.04.1963 SPE was merged with the CBI
and became one of its division and after that till date the central govt. issues
notifications under sec 3 empowering the CBI to investigate in regard to the
offences specified by it further apart from this, entry 8 of list I also gives
the union a power to establish a central bureau of intelligence and
The question pertaining to the constituent assembly debates is
dissolved there and then when the section of consent is inserted in the Act, the
contention in the assembly was that there would be two parallel investigations,
one of the CBI and other of the State Police. But as consent is mandatory now,
there cannot be two investigations and hence the contention is dissolved there
and there so in the present context CBI can investigate with state's consent and
that investigation would mean an investigation contemplated by the Criminal
Moving towards the pivotal question, pertaining to the power of CBI to
investigate, file a charge-sheet and prosecute the offender as per Code of
criminal procedure 1973(herein after referred to as Crpc) is because of the fact
that it is a special police establishment created by the DSPE Act.
a humble glance at the preamble of the said enactment states:
An Act to make provision for the constitution of a special police force [in
Delhi for the investigation of certain offences in [the Union territories]] for
the superintendence and administration of the said force and for the extension
to other areas * * * of the powers and jurisdiction of members of the said force
in regard to the investigation of the said offences.
WHEREAS it is necessary to constitute a special police force [in Delhi for the
investigation of certain offences in [the Union territories]] and to make
provision for the superintendence and administration of the said force and for
the extension to other area *** of the powers and jurisdiction of the members of
the said force in regard to the investigation of the said offences.
It is crystal clear from the preamble that the SPE or better known as the CBI
now, was a police force established for Delhi and Delhi being a Union territory,
the Parliament was well competent to make a 'police force' for a Union
Territory, although the subject of 'police' falls under List II of the Seventh
schedule, this is because Art 246(4) empowers the Parliament to make a law on
the subject which falls under the state list (list II) for example 'Police' for
the Union territory.
It can very well legislate on the subjects from the state
lists for the union territories. And what is meant by raising the police force
here is that, throughout that union territory the police force can investigate
offences as per the Crpc, in the same manner like a state police officer does.
It becomes pertinent to note here, that keeping in mind the objective of the
Act, that to extend it to other areas, and hence by the virtue of Entry 80 of
List I(union list) of the seventh schedule it is again very competent to extend
the functioning of the police of that particular region to any other state,
provided there is consent of the state.
And the expression 'state' used in entry
80 list I also includes the union territory as interpreted by their Lordships of
the Supreme court in Gurudasmal verdict (supra), were they also upheld the
constitutional validity of the Act. Hence by this, one comes to a logical
conclusion that a police force established by the central govt. under Article
245 r/w 246(4) can be extended to a different state by the virtue of entry 80
List I provided with the consent of that state.
Based on section 5 and section 6
of the DSPE Act are adopted and because and only because 'police' being under
entry no. 2 of list II exclusively in the legislative sphere of the state, this
consent becomes imperative. Had it been the case where the consent would not be
needed it would surely be the Union is transgressing and interfering in the
state's exclusive power to legislate under list II, but this is not the case
because without a prior consent of the concerned state the union cannot extend
the CBI to investigate in them.
Parliament has taken extreme caution while enacting the DSPE Act and provided
for the vital section of 'consent'. The consent of the state govt. under sec 6
is mandatory to enable CBI to take over investigation in relation to crimes
within the state. Merely because CBI overlaps with some of the powers of the
state police, that doesn't mean it is without competence, also it already has a
provision of prior consent and hence does not by any means encroach upon the
powers of the state legislature to legislate on the subject of 'police'.
Recently the Hon'ble apex court has in the case of Bhavesh jayanti lakhani v.
state of Maharashtra
 held that CBI is constituted under DSPE Act and a CBI
officer acts as an investigating officer. Further the court held that FIR's are
to be lodged and for the said purpose the officer is 'an officer incharge of a
police station' within the meaning of sec 154 Crpc. The superintendent of
police, CBI, is an officer entitled to carry out investigation, and only when an
offence is carried out in relation of an offence which has been committed in the
state, the consent of the state is required to be obtained.
Hence it is not traversing the boundaries defined under the seventh schedule.
The fact stands strong that without the consent of the state under sec. 6 of the
DSPE Act, the CBI cannot investigate in a state.
General notion is that the law is black and white, but the fact is there are
much more grey areas in the realm of law. The issue above, no doubt needs a
meticulous scrutiny by the Supreme court and the Constitution bench if the
constituent assembly debates are admitted. The author is of the view that there
should be, no doubt, a legislation dedicated for the CBI.
But the organization is within the contours of our constitution as it is a
delegated legislation, the enabling Act is the DSPE Act, the name is changed
from special police establishment to CBI and that is not a change of policy of
the legislation, the core remains the same, to quash the resolution establishing
the CBI one of any three things needs to be proved.
- Firstly the Act itself is unconstitutional, which is not the case here
as it has been upheld by the SC.
- Secondly the delegated legislation should be unconstitutional meaning
thereby should be infringing the fundamental rights except the reasonable
restrictions. But the language of Art 21 is clear that the rights may be
limited according to the procedure established by law, hence the delegated
legislation is also not unconstitutional and
- Thirdly the delegated legislation should be ultra vires of the Act,
which also is not the case here as the delegated legislation nowhere changes
the policy or the object of the legislation but just changes a name, which
by any stretch of imagination doesn't mean to change the policy.
Hence as per author's view the CBI is a valid force and within the four
corners of our Constitution. To affirm the view there is a need for the Apex
Court to endorse this view as the position is unsettled for the past six
years now. The CBI has been the premier agency and investigated numerous
high profile cases, be it the 2G Spectrum case, the Bhopal Gas tragedy, the
Shorabuddin encounter, the Indian Coal allocation scam or the sensational
Noida double murder case that shook the nation.
By not questioning the
integrity of the State Police, they are under the Home Ministry and it is
difficult at times to investigate the authority in corruption matters, hence
there is a serious need for an independent agency which does not comes under
the control of the state hence this makes the CBI very unique and
qualitative. We hope for a judgment in near future by the Hon'ble SC
clearing the casted clouds upon the functioning of the top notch
investigation agency of the largest democracy of the world.End-Notes:
- Narendra Kumar v. Union of India & Ors. W.P (C) No. 6877 of 2005.
- Consti India. Art. 21.
- Government of India, Ministry of Home Affairs, https://cvc.gov.in/sites/default/files/vm17ch1/GoI%20Resolution%20No.%204-31-61-T,%20dated%201-4-1963.pdf
- Consti India Art 21.
- The Delhi Special Police Establishment Act, 1946 ACT No. 25 OF 1946.
- State of Madhya Pradesh & Anr v Thakur Bharat Singh  AIR 1170 SC.
- Bishambhar Dayal Chandra Mohan & Ors v State of Uttar Pradesh & Ors
 AIR 33 SC.
- State of Andhra Pradesh & Ors v. Mcdowell & Co & Ors 1996 AIR 1627 SC.
- Constituent Assembly Debates, Vol. IX, 29th August, 1949.
- Constitution of India, Constituent Assembly Of India Debates
(Proceedings) - Volume IX, https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-29
- Keshavnanda Bharti Sripadagalvaru & Ors v State of Kerala  4 SCC
- Dr D C Wadhva & Ors v State of Bihar & Ors 1987 AIR 579 SC.
- Chief Settlement Commissioner, Rehabilitation Department Punjab v Om
Prakash & Ors  AIR 33 SC.
- Government of India, Ministry of Home Affairs, https://cvc.gov.in/sites/default/files/vm17ch1/GoI%20Resolution%20No.%204-31-61-T,%20dated%201-4-1963.pdf
- State of West Bengal & Ors v Committee for Protection of Democratic
Rights  SCC 571 SC.
- Kazi Lhendup Dorji v Central Bureau of Investigation  SCC 116 SC.
- Vineet Narain & Ors v Union of India  SCC 226 SC.
- Management of Advance Insurance Co Ltd v Shri Gurudasmal & Ors 
AIR 1126 SC.
- Bhavesh Jayanti Lakhani v State of Maharshtra  SCC 551 SC.
- Management of Advance Insurance Co Ltd v Shri Gurudasmal & Ors 
AIR 1126 SC.