The scheme of the Constitution of India is that freedom is the rule and restriction of freedom, including personal freedom, is the exception and subject to law. That is why the Code of Criminal Procedure (CrPC) categorically states the circumstances under which the freedom of an individual may be restricted by lawful arrest and judicially ordered detention. Any restriction, arrest or detention contrary to this basic principle of law is strictly prohibited. In fact, Article 21 categorically states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This applies to every agency, police or otherwise, which may have the legal power to detain a citizen or restrict his movement. Regardless of the agency which detains an individual, it is the CrPC that lays down how an arrest is made, before whom an arrested person must be produced within 24 hours, how the crime alleged will be investigated and what will be done when investigation is completed. In investigation of offences and prosecution it is the process prescribed in CrPC that will govern every investigating agency. There are no exceptions to this.
In the division of powers between the Union and the States, in the VIIth Schedule framed under Article 246 List 1 is the Union list for which parliament has the legislative competence, List 2 is the state list for which state legislatures have the legislative competence and List 3 the concurrent list in which both parliament and state legislatures have legislative competence. Entry 8 of List 1 empowers parliament to enact legislation on the Central Bureau of Investigation (CBI) and the Intelligence Bureau (IB).
Hitherto parliament has not enacted a law for either agency, though IB has been in existence since the British era and CBI was set up in 1963. Public order and police are at entries 1 and 2 of the state list and here exclusive legislative jurisdiction vests in the state legislatures. Parliament may legislate under entry 2 of List 1 for both the military armed forces and the civil armed forces of the Union. For example, the Border Security Force Act legally creates an entity called the Border Security Force — a civil armed force of the Union. The police, however, can only be created by the state legislature and our Constitution recognises only the police as an agency competent to both prevent crime and investigate it. To circumvent this problem the government of India enacted the Delhi Special Police Establishment Act, 1946, and created the Delhi Special Police Establishment (DSPE). This force originally had jurisdiction over centrally administered territories and employees of the central government, whose jurisdiction was expanded from time to time through laws such as the Prevention of Corruption Act and by empowerment of DSPE by various state governments through consent in specific cases or general authority by notification under section 5 of the DSPE Act.
The DSPE, thus, is a legal entity, a police force and an agency competent to investigate. It acts as a duly empowered force and enjoys full police powers as prescribed by CrPC while probing offences entrusted to it. When courts refer to probe by CBI they either subliminally refer to DSPE, or are confused about the distinction between CBI and DSPE. The judgment of the Gauhati High Court that CBI has no legal statutes and no legal powers is perfectly correct. Whether it can be fully upheld must depend upon if CBI used its authority as DSPE while investigating an offence or it made the cardinal error of assuming for itself a police status which as CBI it does not enjoy.
CBI was created by a government of India resolution dated 1-4-1963. The stated objective of the resolution was to establish a CBI to handle cases then under investigation by DSPE. The simple way would have been to enact legislation under entry 8, List 1,VIIth Schedule of the Constitution so that CBI was given legal cover. Instead, by executive notification an agency called CBI was constituted with six divisions, of which the investigation division comprises DSPE, a legal entity and five other divisions — technical, crime records, research, law and administration — that only have existence as an executive agency. CBI as such has no competence to arrest anyone or probe an offence, because it is not a police force, it is not an outfit empowered by law, in contrast with the forest department whose officers are empowered by the Indian Forest Act and the Wildlife Protection Act to investigate and prosecute forest offences.
CBI is not a police force. It is not a specialised agency empowered by law to probe offences notified to be in its jurisdiction, it is not the executive superior of government servants performing executive functions and is not an ombudsman. The April 1963 notification may be all right for internal consumption, but by itself it does not create an agency that has any legal existence. The best way forward, therefore, would be: For the Supreme Court to uphold the Gauhati High Court judgment while directing that the cases under investigation by CBI should either stand transferred to DSPE or, where DSPE does not have jurisdiction, then to the State Police; for the central government to enact legislation creating a CBI subsuming DSPE into it; for the newly constituted CBI to be given a specific jurisdiction; for CBI to stop sitting in judgment over executive actions and decisions and restricting itself to investigation of offences where there is an FIR about the commission of a cognisable offence.
Then and then alone will CBI function within a framework of legality. Today it works as anything but a police agency. Its officers, who are not competent or qualified enough, question and sit in judgment over the policy and decisions of senior officers and ministers. CBI officers virtually lord over top businessmen, preen themselves before the media as persons of superhuman power, hide behind the courts, generally by acting as martyrs hampered in their duty by the executive, while willingly acting as the handmaiden of the party in power to selectively investigate or drop cases against rivals. Thus, the corruption of CBI itself is hidden behind a mist of self-righteousness. CBI does need reforming. It needs a law to give it a legal status and to prescribe its bounds and it needs strict accountability. This the judiciary cannot do because enactment of law lies in the legislative domain and supervising the police is in the executive’s.
(M N Buch, a former civil servant, is chairman, National Centre for Human Settlements and Environment, Bhopal; E-mail: buchnchse@yahoo.com)