HindustanTimes Sat,27 Dec 2014

Manish Tewari had warned about CBI's weak legal foundations in 2009

Saikat Datta, Hindustan Times  New Delhi, November 08, 2013
First Published: 22:51 IST(8/11/2013) | Last Updated: 22:54 IST(8/11/2013)

Four years ago, minister of state for information and broadcasting Manish Tewari had mapped the "dubious" legal architecture of the Central Bureau of Investigation (CBI) that was declared "invalid" by the Gauhati High Court on Thursday.

Tewari, a Supreme Court lawyer and just a Congress MP then, had researched into the legal foundations of the CBI, IB and the R&AW and come up with some stunning facts.

"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. It still draws its powers of investigation and arrest from the antiquated 1946 (Delhi Special Police Establishment) Act …," he wrote in a brief prepared for the Observer Research Foundation in its August 2009 issue. In fact, Tewari would go on to raise questions about the government's lack of vision in introducing a Bill in Parliament to remedy these legal lacunae.

"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 question?" he asked then. He also pointed out that the government could easily do this since it had steered a Bill in Parliament that created the National Investigation Agency (NIA).

In fact, these issues also apply to the IB, R&AW and the NTRO, which were all created by executive decisions and were never taken to Parliament for a debate on their powers as well as their charter of duties. In fact, even the United Kingdom, which bequeathed these legacies to independent India had moved and created statues through Acts of Parliament, giving a legal identity to its intelligence agencies. In 1989, it passed the Security Service Act and in 1994 the Intelligence Services Act.

A division bench of Gauhati high court comprising justice IA Ansari and justice Indira Shah, while upholding the constitutional validity of DSPE Act, said the CBI is neither an organ nor a part of the DSPE and it cannot be treated as a 'police force' constituted under the DSPE Act.

The ruling stripped the agency of its powers to investigate crimes, arrest suspects and file chargesheets. Unless this ruling is reviewed and amended by a higher court, the CBI will not function as police force and cannot proceed further in some high-profile cases such as Coalgate, 2G spectrum scan and those related to Gujarat riots.

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