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Explaining the CBI's existential crisis

What does the Gauhati HC order mean and could we have avoided this situation

Nikhil Inamdar  |  Mumbai 

It is indeed the theatre of the absurd! The Central Bureau of Investigation, the body that’s probing some of the biggest scams in the country is an illegal entity, according to a ruling by the Gauhati High Court this week. Why? What ramifications could this ruling have? And could this situation have been avoided?

Here’s a quick look–

What exactly has the Gauhati High Court said?

The Gauhati High Court has declared the CBI an unconstitutional body, saying: “We decline to hold and declare that the DSPE (Delhi Special Police Establishment) Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946…We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted."

In a nutshell the court has quashed the resolution based on which the CBI was constituted…but WHY!!??

The court acted on a writ petition filed by one Navendra Kumar, who challenged an order by a single judge of the High Court in 2007 on the resolution through which CBI was set up after a case was registered against him by the investigating agency under 2 sections of the IPC. The petitioner said there was no correlation between the CBI and DSPE Act (which have been considered as one and the same for so long) as the word ‘CBI’ found no mention in the act, nor did the executive order of 1963 by the Home Ministry disclose that the CBI has been constituted under the DSPE Act. The court ruled that the Home Ministry resolution was "not the decision of the Union Cabinet” nor were “executive instructions assented to by the President". It felt the “impugned Resolution” at best, be regarded as “departmental instructions, which cannot be termed as 'law'”.

What does this effectively mean?

That the CBI no longer has the power to investigate offences, arrest accused or file chargesheets and cannot be treated as a ‘police force’ constituted under the DSPE Act. The SC apex court will either need to stay or set aside the high court ruling before the CBI can start functioning normally again.

How has the government reacted and what next?

The judgment has been described as "totally erroneous" by Additional Solicitor General P P Malhotra, who said the CBI has been held valid by the Supreme Court by its number of judgments. The government has on Saturday moved the Supreme Court, contesting the Gauhati High Court's verdict. The hearing is likely to take place in the evening itself as the centre moved an application for an urgent hearing. "The CBI has been functioning effectively and has a staff of about 6,000 people all of whom are engaged in the investigation and prosecution of various cases. The said judgment is thus likely to have serious and severe consequences and it is absolutely necessary in the interests of justice and convenience that immediate ad-interim orders be granted staying the said judgment," the Centre's petition in the SC says, according to NDTV.

What has been the immediate fallout of the Gauhati HC verdict?

Chief accused in the 2G spectrum scam - former telecom minister A Raja as well as Congress leader Sajjan Kumar, who has been named by the CBI in a 1984 anti-Sikh riots case sought a stay on the probes against them.

Could this crisis have been avoided?

A draft CBI Act drawn up by the agency in 2010 accessed by the Economic Times shows that the crisis could have been avoided if the legislation had not been rejected in 2011. Congress Minister Manish Tewari had raised doubts on the constitutional validity of the CBI saying, "the CBI has no independence standing in law… Simply put, it is a piece of legal fiction whose underpinnings in law are tenuous to say the least." But in response to Tiwari’s query, the government had maintained that the agency had sufficient powers under the DSPE Act. The government had rejected the draft CBI Act, which was to replace the DPSE Act despite a committee urging the government to give the CBI statutory backing on the lines of the NIA. The crisis could definitely have been averted.

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First Published: Sat, November 09 2013. 14:11 IST