Prime Minister Manmohan Singh's assurance to the CBI's brass to look into the agency's legal status, raised by a Gauhati High Court ruling last week, must have come as much-needed relief.
The matter will now head to the Supreme Court, which has stayed the order, and more will be heard on December 6. But the HC's quashing of a 1963 resolution of the Union ministry of home affairs that created the CBI has raised a constitutional debate that is essential to any democracy. The judges raised pertinent issues about the powers of the CBI and also issues related to Article 21 that guarantees life and liberty as well as Article 73 from which the legislature draws its powers to enact laws.
The origins of the CBI are shrouded in legal confusion and that has led to the conundrum. In 1941, the imperial department of war exercised its emergency powers to create an anti-corruption unit to curb malpractices in war procurements. After the war ended in 1946, the emergency powers were withdrawn and lawmakers realised that the anti-corruption unit would be folded up. They passed the Delhi Special Police Establishment (DSPE) Act of 1946 to continue with this agency. On April 1, 1963 the Union ministry of home affairs passed an executive order using the provisions of Section 6 of the DSPE Act to set up what was a Special Police Establishment or the CBI.
Can an agency, created by an executive order, operate in other states tied together by a federal structure? Can such an agency conduct investigations that are legally tenable in a court of law, and also arrest citizens, depriving them of their fundamental rights? When the high court closely examined these issues, based on the documents and arguments provided by the Centre, they found glaring loopholes.
Ironically, the CBI is also a law enforcement agency, one among the nine designated by the ministry of home affairs along with the Intelligence Bureau and the R&AW. All of them can conduct surveillance, tap phones, and intercept emails and have other intrusive powers that impinge on fundamental rights. Interestingly, the Constitution, in Schedule 7 has given Parliament the power to create intelligence and investigation organisations. But successive governments have avoided doing so to prevent public accountability of these agencies.
Perhaps this is why the CBI was also taken out of the RTI's ambit earlier. However, in other democracies like Britain, Acts passed by Parliament now govern investigation and intelligence agencies. This is an opportunity to re-examine these lapses of history and adopt a modern and democratic framework.