CBI Declared Unconstitutional by Gauhati High Court- A Case Analysis

Hon’ble Gauhati High Court in Navendra Kumar Versus Union of India & Another has held 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, while declining to declare the DSPE Act, 1946 itself as invalid. The High Court basically set aside and quashed the impugned Resolution, dated 01.04.1963, whereby CBI was constituted.

I have tried to briefly outline the material aspects discussed and decided by the Hon’ble Court.

Facts:- The Petitioner sought to quash the impugned Resolution No. 4/31/61-T dated 01.04.1963, as ultra vires the Constitution of India and subsequently the criminal proceeding/prosecution originated by CBI FIR/ Chargesheet. Interestingly, the Union of India did not file any reply; but the CBI, as respondent No. 2, filed an affidavit, wherein it claimed that it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946 for more than four decades, but its constitutional validity has never been challenged by any one and, hence, this settled position may not be unsettled.

The impugned Resolution, being relevant, is reproduced below:

        “No. 4/31/61-T

GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

New Delhi, the 1st April, 1963

     R E S O L U T I O N

The Government of India have had under consideration the establishment of a Central Bureau of Investigation for the investigation of crimes at present handled by the Delhi Special Police Establishment, including specially important cases under the Defence of India Act and Rules particularly of hoarding, black-marketing and profiteering in essential commodities, which may have repercussions and ramifications in several States; the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organization; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialized crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime. As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely:-

(i) INVESTIGATION AND ANTI-CORRUPTION DIVISION.

(DELHI SPECIAL POLICE ESTABLISHMENT).

(ii) TECHNICAL DIVISION.

(iii) CRIME RECORDS AND STATISTICS DIVISON.

(iv) RESEARCH DIVISION.

(v) LEGAL DIVISON & GENERAL DIVISION.

(vi) ADMINISTRATION DIVISION.

The Charter of function of the above-said Divisions will be as given in the Annexure. The assistance of the Central Bureau of Investigation will also be available to the State Police Forces on request for investigating and assisting in the investigation of interstate crime and other difficult criminal cases.

Sd/- (V. VISWANATHAN)

Secretary to the Government of India”

DSPE ACT, 1946:-       

On a reading of the various provisions of the DSPE Act, 1946, the executive powers, as endowed by the DSPE Act, 1946, can be pointed as follows:

Section 2:- Central Government may constitute special police force called DSPE for Union Territory of Delhi.

Section 3:- Central Government may notify the offences, which may be investigated by the DSPE

Section 5:- Central Government may notify the areas, where DSPE can exercise jurisdiction meaning thereby that if Central Government has not extended the operation of DSPE to the State of Assam, then even if the State of Assam consents to an investigation by the DSPE, the DSPE would not be in a position to investigate.

In essence, the DSPE was established only to exercise unrestricted power of investigation in the Union Territory of Delhi. It can investigate offences in a State, other than Delhi, provided that the State Government consents thereto and the relevant notification, under Section 5, has been issued by the Central Government.

Whether DSPE or CBI?:- The name of the establishment, created by the DSPE Act, 1946, is Delhi Special Police Establishment and not CBI; whereas it is the impugned Resolution, which has created the CBI as a police force for investigation of offences preparatory to filing of charge-sheets. If a statute gives a specific name to an organization, created by the statute, it is not permissible to confer a new name on the organization by any executive instructions. Only Delhi Special Police Establishment can be termed as statutory body created by the DSPE Act, 1946, and not the CBI.

If CBI were part of the DSPE, the Resolution, dated 1.4.63, would have made a mention to the effect that Central Government is issuing the impugned Resolution in exercise of powers vested in it by the DSPE Act, 1946. However, a reading of the Resolution would make it evident that it does not reflect the source of executive power. Since it is found that the Resolution, which created the CBI, is not an act of delegated legislation, the Resolution cannot take shelter in the DSPE Act, 1946.

Original Record, Notings regarding Impugned Resolution & the setting up of CBI:-

Despite directions from the Court, the original records regarding the impugned Resolution were not produced; rather they a certified copy of the records received from the National Archives was produced. However, even perusal of the entire records makes it clear that the Resolution was neither produced before the President of India nor did it ever receive the assent of the President of India. Hence, strictly speaking, the Resolution, in question, cannot even be termed as the decision of the Government of India. That apart, it is apparent from the records that the CBI is a newly constituted body and not the same as DSPE. The very subject of the file reads as Setting up of Central Bureau of Investigation and creation of various posts.

Going through various interesting notings from the record produced, the High Court found it strange, as discernible from the notings, that the Central Government did not want the States to know its intention of expanding the scope of the Bureau in due time.

The Central Government had set up altogether a new body known as CBI by the impugned Resolution and the Union Home Ministry was working on the assumption that there is already provision in the Constitution for creation of the CBI. Admittedly, at that time, no legislation was made to set up the CBI and the source of power were being traced to Entry 8 of Part I (Union List), which reads, “Central Bureau of Intelligence and Investigation” by way of an executive instruction.

Constituent Assembly Debates concerning “investigation” in ‘Central Bureau of Intelligence and Investigation’:- The Court however accepted the argument that the word, ‘investigation’, which appears in the expression, ‘Central Bureau of Intelligence and Investigation’ under Entry 8 of List I of the Union List, does not mean ‘investigation’, which is, ordinarily, carried out by a police force under the CrPC, preparatory to the filing of charge-sheet, against an offender.

Support for the above submission was traced to the Constituent Assembly Debates, which took place on 29.08.1949, wherein the functions of the Central Bureau of Intelligence and Investigation was discussed in the Constituent Assembly and explained by Dr. B. R. Ambedkar. The meaning and importance of the word, ‘investigation’, which appears within the expression ‘Central Bureau of Intelligence and Investigation’, were explained by Dr. Ambedkar as under:

Dr. B. R. Ambedkar: The idea is this that at the Union office there should be a sort of bureau which will collect information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Governments as to what is going on in the different parts of India so that they might themselves be in a ‘position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information.

Dr. Ambedkar, in response to the doubts, expressed by one member Mr. Nizamuddin, had clarified and assured the House, in no uncertain words, that the Central Government cannot and will not have the powers to carry out investigation into a crime, which only a police officer, under Cr.P.C., can do. The response of Dr. Ambedkar is extracted below:

The 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 was argued that if the language of an Act is unambiguous and clear, no reliance can be placed on the Parliamentary debates and one may look to the Statement & Objects and Reasons and not to the Parliamentary debates. The Court pointed out that the intent of embodying the Constituent Assembly debates is to gather an idea behind the general law making process. The reference to CAD, becomes all the more relevant and unavoidable when it is contended that the creation of the CBI can be traced to the Central Government’s power embodied in Entry 8 of List I of the Union List, which provides for creation of ‘Central Bureau of Intelligence and Investigation’.

In the Constituent Assembly, the word, ‘investigation’, became a heated subject matter of debates, primarily, for the reason that empowering the Parliament to enact law, on ‘investigation’ conducted into an offence by police, would amount to encroachment into the realm of the subject matter of State List, though ‘police’ is a subject, which falls in the State List. The word, ‘investigation’, appearing within the expression, ‘Central Bureau of Intelligence and Investigation’, was sought to be justified, in the Constituent Assembly, contending that Police is exclusively a State subject and it has no place in the Union List. The word ‘investigation’ was intended to cover general ‘enquiry’ for the purpose of finding out what is going on and this ‘investigation’ is not an ‘investigation’ preparatory to the filing of a charge-sheet against an offender, which only a police officer, under the Criminal Procedure Code, can do. It is the State legislature, which is entitled to constitute a ‘police force’ for the purpose of conducting ‘investigation’ into crime.

Entry 8 List I (Union List): definitely empowers the Parliament to enact a law in the form of ‘Central Bureau of Intelligence and Investigation’. Such a legislative competence is preserved under Art. 246 (1), which reads, “Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).

Having enacted a law, under Entry 8 of List I (Union List), if the Central Govt, decides to extend its operation in other States, then, it is necessary that the said law be amended in terms of Entry 8 of list I (Union List) so as to enable the Central Government to extend the operation of the law with the consent of the Government concerned.

The impugned Resolution, dated 01.04.1963, constituting the CBI, as an investigating agency, in order to carry out ‘investigation’ into commission of offences in the manner as is done by a police officer under the Criminal Procedure Code, cannot be traced to Entry 8 of List I (Union List).

The preamble of the DSPE Act, 1946: reads as follows:

“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 [***] 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 areas [***] of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences;

Section 1 - Short title and extent

(1) This Act may be called the Delhi Special Police Establishment Act, 1946.

(2) It extends to [the whole of India], [***].”

A careful reading of the preamble to the DSPE Act, 1946, would make it evident that the DSPE Act, 1946, has been made for the ‘Union Territories’. This legislative power cannot be exercised by the Parliament except under Art 246 (4), which enables Parliament to enact laws on subjects, covered by List II (State List), in respect of Union Territories. Thus, though police is a State subject, Parliament is competent to make laws, on the subject of police, for the Union Territories only inasmuch as Union Territories do not have any legislative assembly of their own.

Again, a reading of Sec. 1 of the DSPE Act, 1946, would show that the DSPE Act, 1946, extends to whole of India meaning thereby that it is an embodiment of Entry 80 of List I (Union List), which enables Parliament to make law permitting extension of the operation of a police force to another State. It is in this light that Sections 5 and 6 of the DSPE Act, 1946, need to be read together inasmuch as a combined reading of Sections 5 and 6 of the DSPE Act, 1946, makes it clear that the Central Government is empowered to extend the activities of the DSPE to any other State with, of course, the consent of the State concerned.

Entry 80 of List I (Union List), reads as follows:

“Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.”

Entry 80 of List I (Union List) merely enables the Parliament to extend the operation of police force of one State to another. However, Entry 80 of List I does not empower the Parliament, far less the Central Government, to enact a law creating a separate police force for the purpose of ‘investigation’ into a crime preparatory to the filing of charge sheets. What Entry 80 of List I permits is only making of provisions of ‘extension’ of a valid law governing activities of police of one State to have jurisdiction in any other State with, of course, the consent of the other State concerned.

In the backdrop of what have been discussed above, Section 5, subject to Section 6 of the DSPE Act, 1946, can be regarded as an embodiment of Entry 80 List I (Union List). Such a provision could be made in the DSPE Act, 1946, because such a power was available with the Governor General-in-Council under Entry 39 of List I of Seventh Schedule to the Government of India Act, 1935, which corresponds to Entry 80 of List I (Union List).

But there must, at first, be a validly constituted police force and only thereafter, the question of ‘extension’ of its jurisdiction to other areas by taking resort to Entry 80 of the List I (Union List) will arise. We must remember that various Entries, in the Lists of Seventh Schedule, do not give any power to legislate; rather, the Entries demarcate the fields of legislation between the States and the Centre.

It was argued that in Advance Insurance Co. vs. Gurudasmal, reported in (1970) 1 SCC 633, it was because of Entry 80 List I that the constitutional validity of the DSPE Act, 1946, had been upheld by Supreme Court.

The case of Advance Insurance Co. Ltd. (supra), thus, does not say that the CBI is borne out of the DSPE Act, 1946, or that the CBI can be regarded as a ‘police force’ constituted by the Central Government by taking resort to Entry 80 of List I (Union List).

The Court accepted that the case of Advance Insurance Co. Ltd (supra) is a precedent on the point that DSPE is a police force functioning in the Union Territory of Delhi. However, by no stretch of imagination, the case of Advance Insurance Co. Ltd. (supra) be regarded as a precedent on the point that CBI is a body constituted under the DSPE Act, 1946, nor is the case of Advance Insurance Company Limited (supra) be regarded as a precedent to justify CBI as a validly constituted ‘police force’ empowered to ‘investigate’ offences preparatory to filing of charge-sheets.

Therefore Entry 80 of List I (Union List) doesn’t validate the impugned Resolution, dated 01.04.1963, as an executive instruction of the Union Government, because Entry 80 of List I (Union List) presupposes existence of a valid ‘police force’ before the area of jurisdiction of such a ‘police force’ is extended from one State to another State with the consent of the latter State. In the present case, the CBI, which is claimed to be a police force, has itself been brought into existence with the help of the impugned Resolution, dated 01.04.1963, and not on the strength of any legislation.

Entry 1 and Entry 2 of List III (Concurrent List), reads as follows:

“1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or ListII and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.

2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.”

Thus, both, the Union and the State, can frame law on IPC and Cr.PC provided that the laws do not overlap. In the event of laws overlapping, the law, made by the Parliament, shall prevail. So far as constitution of police force is concerned, Union and the State, both have legislative competence to enact laws on ‘police’. However, so far as law, enacted by Parliament, is concerned, it can operate only in the ‘Union territories’ and not in any ‘State’, because ‘police’ is a subject falling under State List.

Since Entry 8 of List I (Union List) makes Parliament specifically competent to enact a law on ‘Central Bureau of Intelligence and Investigation’, it would be a destructive submission to say that if not under Entry 8 of List I, then, under Entry 1 and 2 of List III, CBI’s existence can be validated, particularly, when Entry 2 of List III (Concurrent List) deals with ‘procedure’ of ‘investigation’ and ‘trial’ of offences and not with the ‘constitution’ of a ‘police force’.

WHETHER THE DSPE ACT, 1946, IS ULTRA VIRES THE CONSTITUTION  

It will, thus, be seen that there is a clear finding, in Advance Insurance Co. Ltd (supra), that DSPE means a police force, constituted and functioning in the Union Territory and, hence, it would not be appropriate, now, for us to enter into the question of vires of the DSPE Act, 1946, particularly, when we have already held that CBI is not an organ or part of the DSPE, under the DSPE Act, 1946, and we are, therefore, not required to determine the constitutional validity of the DSPE Act, 1946.

It is crystal clear that the fundamental question, raised in the appeal, is: Whether the CBI is an organ of the DSPE under the DSPE Act, 1946 ? Merely because arguments and counter-arguments have been advanced before us, on the validity of the DSPE Act, 1946, the arguments and the counter-arguments do not warrant a decision on this issue inasmuch as no decision, on this issue, is warranted when we have already held that the CBI is not a part or organ of the DSPE, under the DSPE Act, 1946.

In other words, irrespective of the fact as to whether the DSPE Act, 1946, is valid or not, the clear conclusion of the High Court is that the CBI is not an organ or part of the DSPE and that the CBI has not been constituted under the DSPE Act, 1946. In the face of these conclusions, it would be merely an academic exercise if we try to determine whether the DSPE Act, 1946, is or is not a valid piece of legislation.

Ratio & Obiter Dictum:- The Court refused to entertain precedents cited to show CBI has been recognized as DSPE, as the ratio of the cases was never with regard to the constitutional validity of CBI, and was never raised nor argued nor even the same has been discussed and decided by the Supreme Court. The issue, with regard to the constitutional validity of the CBI, was not even ancillary to the issues involved in those cases. Thus the observations, made in the cases of Kazi Lhendup Dorji (supra), Committee for Protection of Democratic Rights, West Bengal & Ors (supra), and M. C. Mehta (Taj Corridor Scam) (supra), which was relied upon, neither dealt with the issues, which we confront, nor decided the same. The decisions, therefore are not applicable to the facts of the present case.

Whether the impugned Resolution, dated 01.04.1963, is an executive action and, therefore ‘law’ within the meaning of Article 13 (3)(a) and/or Article 21 of the Constitution of India?

The extent of executive powers of the Central Government has been prescribed by Article 73 of the Constitution, which is reproduced below:

“73. Extent of executive power of the Union – (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend –

(a) To the matters with respect to which Parliament has power to make laws; and

(b) To the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement; Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws.

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.”

A bare reading of Article 73 makes it evident that the executive powers of the Union extends to all the matters with respect to which the Parliament has power to make laws; but, there are three fetters on exercise of the executive powers. First, this exercise is subject to provisions of the Constitution and, secondly, this exercise of executive power shall not, save as expressly provided in the Constitution or in any law made by Parliament, extend, in any State, to matters with respect to which the Legislature of the State also has power to make laws. Thirdly (as elaborated later) the exercise of executive power cannot be stretched to the extent of infringing fundamental rights.

Article 73 cannot be read in isolation and it becomes necessary to understand its co-relation with Article 245 and Article 246 of the Constitution, which embody the concept of federal structure of our Constitution. Though within the powers vested in the Union and the States, each of these entities possesses plenary powers, their powers are, among others, limited by two important barriers, namely, (i) the distribution of powers by the Seventh Schedule and (ii) the Fundamental Rights included in Part III.

A combined reading of Article 245 and Article 246 shows that Parliament and State Legislatures have Constitutional competence to make laws. However, the subject matter of the laws to be made have been delineated in the form of three lists, namely, Union List, State list and the Concurrent list. This apart, Parliament has the 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 a matter is a matter enumerated in the State List.  

Since Union Territories are not States within the meaning of Article 246 and, the Parliament can make laws, on police, for the Union Territories. The Delhi Police Act, 1978, was enacted by the Parliament for the Union Territory of Delhi even though ‘police’ is a subject falling under State List.

There remains no doubt that though the executive powers are co-extensive with legislative powers of the Union or of the States, as the case may be, this power is to be exercised within the limits prescribed by the Constitution or any law for the time being in force. That apart, once a legislation occupies a field, neither any of the States nor the Union can exercise its executive powers on the same field inasmuch as the legislation is the primary work of the Legislature and not of the Executive.

The executive powers of the State are to fill up the gaps and not to act as an independent law making agency inasmuch as the function of enacting law, under our Constitution, lies with the Legislature and the Executive has to implement the policies/laws made by the Legislature and if the State is permitted to take recourse to its executive powers to make laws, then, we would be governed by the laws not made by the Legislature, but by the Executive.

Conclusion on resolution & its status:- It is, thus, seen that CBI has been investigating offences and prosecuting alleged offenders in the garb of being an organization under the DSPE Act, 1946. In fact, the impugned Resolution, dated 01.04.1963, is not, strictly speaking, an executive action of the Union within the meaning of Article 73 inasmuch as the executive instructions, embodied in the impugned Resolution, were not the decision of the Union Cabinet nor were these executive instructions assented to by the President. Therefore, the impugned Resolution, dated 01.04.1963, can, at best, be regarded as departmental instructions, which cannot be termed as ‘law’ within the meaning of Article 13(3) (a) nor can the executive instructions, embodied in the impugned Resolution, dated 01.04.1963, be regarded to fall within the expression, "procedure established by law", as envisaged by Article 21 of the Constitution.

The Effect:- Therefore the actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused, etc., offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional.