The lawyer in me has always been intrigued about the legal architecture that empowers both our central law enforcement and intelligence services. What exactly is the legal footing of the Central Bureau of Investigation (CBI), the Serious Fraud Investigation Office (SFIO), the Intelligence Bureau (IB) and the Research and Analysis Wing (R&AW)?
The CBI was created by an executive order in April 1963. It started life as a Special Police Establishment in the Department of War in 1941. In 1943, it was constituted by an ordinance into an independent entity, namely the Special Police Establishment (War Department). For all purposes, it still functions as the Delhi Special Police Establishment ostensibly constituted before independence on October 1, 1946. The ordinance was repealed by the Delhi Special Police Establishment Act that came into force in November 1946.
Simply put, the CBI has no independent standing in law. It still draws all its powers of investigation and arrest from the antiquated 1946 Act, under which it was probably never formally re-constituted, and which essentially being a local act provides that each state through an executive order under Section 6 of the Act has to give the Special Police Establishment consent to investigate and prosecute a matter in the state. Moreover, the CBI can only investigate a case if specifically requested by the state government concerned or directed by the High Court or the Supreme Court, except if it is a matter that pertains to the central government.
In the past, several states had revoked orders giving consent, that too with retrospective effect to the Special Police Establishment (read: CBI) to investigate matters. The beneficiaries, alas, were members of the much maligned political class. The Supreme Court finally put paid to this practice by holding that state governments cannot revoke consent given to the Special Police Establishment to investigate and prosecute any matter with retrospective effect. It is also questionable whether the constitutional scheme provides for a central police force. Entries 1 and 2 of the State List, Seventh Schedule make the police a state subject. Similar is the case of the SFIO that has investigated 36 cases and has filed 574 complaints for violation of various provisions of the Companies Act and the Indian Penal Code from May 2004 to July 2009. The SFIO again draws its powers from the investigative provisions of the Companies Act, but has no standing under the Companies Act. The SFIO doesn’t even find mention in the Companies Bill 2009 introduced in Parliament on August 3, 2009.
In response to a question pertaining to the legislative act or legal architecture from which the IB draws its statutory authority, the government came up with a quixotic response: “The Intelligence Bureau figures in Schedule 7 of the Constitution under the Union List.” When pressed that this may not be an appropriate answer, the government reiterated, “The Intelligence Bureau finds mention in Section 8 in the Union List under the 7th Schedule of the Constitution of India.”
Article 246 (1) gives Parliament the exclusive right to make laws on matters enumerated in the Union List in the Seventh Schedule of the Constitution. In other words, Entry 8 in the Union List merely gives it the legislative power to enact a statute to bring a Central Bureau of Intelligence into existence. Unfortunately, no such law has ever been enacted.
Similar is the case of India’s external intelligence service, the R&AW. In response to a question about the law that gives the R&AW the authority to discharge its functions efficiently, the government candidly admitted that “there is no separate/specific statute governing the functions/mandate of the R&AW”. However, in 2000, a formal charter listing the scope and mandate of the R&AW was formally approved by the Government of India.
Contrast this with the position in other countries. America’s Federal Bureau of Investigation (FBI) draws its powers from Title 28 of the federal statutory law that governs the federal judicial system. The Serious Fraud Office of Britain is drawn from the Criminal Justice Act of 1987. The US Central Intelligence Agency (CIA) created by the National Security Act of 1947 is empowered by the Central Intelligence Agency Act of 1949. MI5, the domestic intelligence service of Britain, draws its legal authority from the Security Services Act 1989 and the MI6 from the 1994 Intelligence Services Act.
Both from the national security and civil liberties point of view, it is inappropriate to allow law enforcement and intelligence services to function without a well-defined legal basis.
It is imperative in a democracy that every organisation of the government must draw its powers, privileges and authority from clearly defined legal statutes. This is critical for the healthy functioning of any constitutional system. Perhaps competing priorities edged out this critical issue from the 100-day radar of UPA II. But to put our democratic ethos on an even sounder footing it is imperative to provide our central law enforcement and intelligence structures with proper legal clothes.
Manish Tewari is an MP and the National Spokesperson of the Indian National Congress
The views expressed by the author are personal