Journalism of Courage
Two days after the Gauhati High Court declared that the CBI had no legal standing and was,therefore,unconstitutional,the Centre Friday announced that it would file an appeal in the Supreme Court against the judgment.
I have not studied the judgment so far. But,I have been told that the Department of Personnel and Training (DoPT) intends to file an appeal in the Supreme Court, Union Law Minister Kapil Sibal said. Minister of State for Personnel V Narayanasamy also met Prime Minister Manmohan Singh to discuss the fallout of the verdict and inform him about the steps being taken to deal with the situation.
Sources said Attorney General Goolam E Vahanvati has been asked to personally supervise the filing of the SLP in the Supreme Court and also seek stay of the HC judgment. Worried about the immediate impact of the judgment,the government is trying to file the petition Saturday itself. However,even as the Centre Friday went into damage control mode to initiate steps to undo the November 6 judgment of the High Court,it now transpires that the government had been warned by its legal experts on the subject.
Sources in the Union Ministry of Law and Justice told The Indian Express that during discussions on the proposed CBI Bill,2010,which is awaiting legislation,it was pointed out to the DoPT that the CBIs position as an investigative agency could be questioned.
During our meetings,we told the DoPT that one reason why the CBI should get its own Act is to provide it with some standing in law. But,it is for the DoPT,which is the administrative ministry in charge of the CBI,to get the Bill passed in Parliament, said a senior Law Ministry functionary privy to discussions.
At present,the CBI draws its formation and strength from the resolution issued by the Union Ministry of Home Affairs on April 1,1963. In fact,this finds mention in the HC judgment,with the court ruling 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.
In 2009,I&B Minister Manish Tewari who was just an MP then,had flagged off the issue asking the government through a Starred Question in the Lok Sabha whether it had issued any notification under the DSPE Act constituting the DSPE (present day CBI) and whether the government proposed to provide a legal framework empowering the CBI. The governments answer then had remained ambivalent on whether the notification constituting the DSPE under the said Act had been issued.
Subsequently,in August 2009,Tewari had argued the same in a paper at the Observer Research Foundation (ORF). In 2010,he moved a Private Members Bill in the Lok Sabha stating that the CBI is not a legal body as it draws its powers from the Delhi Special Police Establishment Act (DSPE),1946,whose legality is tenuous.
In his ORF paper,Tewari had pointed out that the CBI had been born as a Special Police Establishment in the Department of War in 1941. In 1943,it was constituted as an independent entity,Special Police Establishment (War Department) through an ordinance,which was covered into DSPE through another ordinance in 1946. This ordinance was subsequently repealed by the DSPE Act in November 1946.
Tewari argued,In the discharge of the legal duties,the CBI still functions as the DSPE ostensibly constituted before Independence. It is not quite clear as to whether a subsequent notification re-constituting the DSPE under the said Act was ever issued…before you get lost into a legal jungle,let me demystify the legalese. The CBI has no independent standing in law. Simply put,it is a piece of legal fiction whose underpinnings in law are tenuous to say the least.
The moot point is that when legislative powers are available to the Central government in terms of Entry 8 of List 1 of the Seventh Schedule that speaks of a CBI and investigation why does the government not enact a straight and simple law empowering the CBI rather than let it function on the basis of a dubious piece of legislation whose basic legality is open to questions. Incidentally,the government has recently constituted the National Investigation Agency drawing upon these very legislative powers mentioned herein, said Tewari.
The I&B minister was not available for comment Friday.
Meanwhile,the CBI Friday said it would explain its position to the SC when the matter comes up for hearing in appeal. CBI director Ranjit Sinha said,We are studying the order of the Gauhati High Court and will submit our opinion to the DoPT. We are definitely seeking an urgent action on the situation.
The Problem Area
July 12,1943: Governor-General enacts Special Police Establishment (War Department) Ordinance,1943,to create a pre-Independence era version of CBI
September 25,1946: Another ordinance of same name promulgated. This one also constituted a special police force for the chief commissioners province of Delhi.
1946: Delhi Special Police Establishment Act,1946,enacted to replaced the earlier ordinance
January 26,1950: DSPE adopted and amended by the Adaptation of Laws Order 1950.
April 1,1963: MHA resolution issued,setting up CBI. Special Police Establishment merged with CBI.
July 12,1943: Governor-General enacts Special Police Establishment (War Department) Ordinance,1943,to create a pre-Independence era version of CBI
September 25,1946: Another ordinance of same name promulgated. This one also constituted a special police force for the chief commissioners province of Delhi.
1946: Delhi Special Police Establishment Act,1946,enacted to replaced the earlier ordinance
January 26,1950: DSPE adopted and amended by the Adaptation of Laws Order 1950.
April 1,1963: MHA resolution issued,setting up CBI. Special Police Establishment merged with CBI.
After Independence,no law passed by Parliament to create or empower CBI.
