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Chapter 3.7.2: CBI: Existential Crisis

(November 2013)

The recent judgment of the Guwahati HC in Navendra Kumar vs. Union of India (Re: Navendra Kumar vs. Union of India, W.A. No. 119 of 2008 in the Guwahati HC; download from http://ghconline.gov.in/Judgment/WA1192008.pdf) has created an existential crisis for the CBI. Before the HC, the CBI tried to justify its existence on the basis of two sources: first as a “police” force established under the Delhi Special Police Establishment Act, and secondly as a central bureau of “investigation” established u/a 73 r/w entry 8 of the list 1 of the seventh schedule of the Indian Constitution.

As far as the first argument of the CBI is concerned, I think it was ill-founded and has been rightly trashed by the Guwahati HC. The CBI can’t be a police force under the DSPE Act because there was never an intention to create one as is evident from the notings made in reference to the establishment of the CBI. An attempt was also made to justify the police force as having been setup for Delhi u/a 73 r/w a 246&245 r/w entry 2 of the state list and extended to other states under entry 80 of the union list. However, the attempt was rejected on two premises: first that there was no executive action u/a 73 for there was neither any cabinet decision nor any assent of the president, and secondly that mere executive instructions can’t infringe the fundamental rights. I think the Guwahati HC has probably erred with respect to the first premise: In Visakha v. State of Rajasthan (Re: Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241, AIR 1997 SC 3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202; download the judjment from http://indiankanoon.org/doc/1031794/), the SC allowed the contribution from the Solicitor General to be an appropriate executive action u/a 73. However, in Visakha’s case, the law was laid down u/a 32, thus there could be a question that even if there is an appropriate executive action through an administrative instruction, would it tantamount to laying down a “law”; I would say it wouldn’t, and, therefore, the second challenge with respect to infringement of fundamental rights should succeed.

So, the best argument for justifying the existence of CBI can be made u/a 73 r/w entry 8 of the union list because even if there is no law in the strictest sense, the executive action u/a 73 would be valid in view of the precedence in Visakha’s case, and the Executive can definitely take ad-hoc measures as residuary measures for setting up a central agency for “investigation”, which agency would have enough authority to face the challenge of infringement of fundamental rights. However, this argument of the CBI has been trashed by the Guwahati HC holding that the word “investigation” appearing in the entry 8 is used in the sense of “enquiry”, and it doesn’t give powers to the agency, so setup, to investigate the crimes as a police force can do. Well, I think the Guwahati HC has erred here. Interpretation of the word “Investigation” is no more res integra in view of the orders passed by the SC in SLP (Criminal) 1088 of 2008 r/w orders passed in WP (Criminal) 109/2003. In WP (Criminal) 109 of 2003, the SC directed the constitution of a SIT to “enquire/investigate” the Gujarat riots cases. The “/” has different meanings depending upon the context. It may mean “or”, and it may be used denoting the use of synonyms separated by “/”. Now, the question arises how the two words “enquire” and “investigate” have been used by the SC in its order directing the constitution of a SIT. Later on, the same SIT constituted under the directions of the SC in WP (Criminal) 109 of 2003 was asked to examine the complaint filed by Zakia Zafri before the DGP, Gujarat, and file a report thereof. Subsequently, the further investigation was carried out by the SIT, and the same was reviewed by the Amicus Curiae. No FIR was ever filed against Narendra Modi, an accused in the complaint, but, in its final order, the SC directed the SIT to file the investigation report before the Trial Court, which clearly means that the SC used “/” in the sense denoting synonyms, which further means that the SC has held that “enquiry” and “investigation” are one and the same thing. In fact, there is no use of the word “enquiry” in chapter XII of CrPC, which deals with investigation by police, and the view taken by the SC is influenced by a simple interpretation of the CrPC. Now, coming to the question of the usage of the word “investigation” in reference to the CBI: The Guhawati HC rejected the argument of the ASG that the powers to establish the CBI vide the impugned resolution/order can be derived from entry 8 of the union list on the premise that the word “investigation” used in the entry 8 is used in the sense of “enquiry”, as differentiated from “investigation”, and, while doing so, it also made reference to the difference between an “enquiry” and an “investigation” carried out by the police under the CrPC. Thus, the premise of the Guhawati HC comes in direct conflict with the view taken by the SC in Zakia Zafri’s case. Moreover, the whole premises of the SC order directing the filing of the final investigation report before the trial court is based on the reading of the earlier reported judgments passed in reference to the CBI, so the interpretation of the word “investigate”, as appearing in the entry 8, has been well considered in the SC order in Zakia Zafri’s case; thus, this issue is no more res integra as the interpretation of the word “investigate” as appearing in the entry 8 had direct bearing on the decision rendered by the SC: If the word had been interpreted as meaning “enquiry”, as interpreted by the Guhawati HC, the SC couldn’t have directed the filing of the investigation report before the Trial Court but could have only directed the filing of the FIR by the SIT.

Moreover, an interesting question has arisen as to whether the judgment of the Guhawati HC has rendered the CBI void through out India or only in certain parts of the NE. The answer to this question lies in the way in which the existence of the CBI is justified. If it is justified relying upon the DPSE Act, then, obviously, the CBI has been rendered void through out India for if it is a state police force extended to the NE, over a part of which the Guwahati HC has territorial jurisdiction u/a 226(1), the whole police force has been rendered void. However, if the CBI’s existence is justified as a central bureau of “investigation” having been constituted u/a 73 r/w entry 8 of the union list — for which there is enough precedence in Visakha’s case irrespective of the observation of Guwahati HC in Para 124 of the judgment — the HC derived its jurisdiction u/a 226(2), and thus the CBI has been rendered void only in certain parts of the NE where the Guwahati HC exercises territorial jurisdiction. The notes leading to the formation of the CBI have been well discussed in the judgment, and, as appearing from the discussion, the intention of the then government was to set up a central bureau of investigation through executive actions u/a 73 r/w entry 8 of the union list but not as a police force under the DSPE Act. Now, in escalation of its commitment to uphold the popular belief, if the government insists on the argument that the CBI has been setup under the DSPE Act, it will only make fool of itself and may not even get a stay from the SC. © 2013-2015 Ankur Mutreja