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Constitutional Law Policy

Procedure to Employ CBI Investigation in India: A Long Due Revision

Shubham Gupta

The ongoing controversy of Actor Sushanth Singh Rajput’ death has raised various questions regarding the procedure relating to registration of FIRs  and Investigations. One such issue is the recommendation of investigation by the Central Bureau of Investigation (CBI). In the above-mentioned scenario, there was a constant tussle between the centre and state about opting CBI investigation. The centre believed that the  CBI, being an individual body, should lead the investigation whereas the state of Maharashtra was of the view that the local police should handle the case. This brings us to the question of the procedure regarding the imposition of the CBI investigation. In this article, the author intends to provide the legal procedure regarding the imposition of investigation by CBI. Further, the author has provided the gap in the legal procedure regarding the appointment of the CBI investigation. Additionally, the powers of the constitutional courts to order CBI investigation have been analysed  through the lens of federalism and other constitutional provisions . Lastly, the author has provided suggestions which could be implemented to strengthen the existing procedure.  

The Legal Procedure

The CBI is an independent body having primary jurisdiction in Delhi and other Union Territories It draws its power from the “Delhi Special Police Establishment Act (DSPE) Act”. Section 5 of the Act entitles the “central government” to extend the jurisdiction and powers of CBI to the states for investigation of specified offences. However, this power is restricted by Section 6 which mentions that such extension of jurisdiction provided in the prior section cannot be done without the consent of the concerned state government. This procedure is  derived from the Constitution of India as the “Seventh Schedule” in “Entry 2 of the state list” gives powers of police to the state whereas the “Entry 2-A and Entry 80 of the Union list” extends the jurisdiction and power of the centre towards the police force of any state subject to the consent of the state government.

Additionally, the Supreme Court, in the case of “State of West Bengal and other v. Committee for Protection of Democratic Rights” (CDR Case), held that “notwithstanding the statutory restrictions in the Delhi Special Police Establishment Act, the High Court under Article 226 and the Supreme Court under Article 32, can direct any matter to be investigated by CBI for fair and impartial enquiry”. The court justified its decision under the ambit of Article 21 of the Indian Constitution by mentioning that human rights comes under the purview of Right to Life. The court further elaborated that fair and impartial investigation is one of the inherent features of human rights and hence the constitutional courts being the guardian of the constitution, in order to protect the fundamental rights of the citizen interfere in the process of employment of CBI investigation. The court elaborated that judicial review is a part of the basic structure of the constitution and no legislation or body can hence curtail the Constitutional Court’s power to enforce fundamental rights. Hence apart from the state government’s consent, even the High Court of the respective state and Supreme Court can call for CBI investigation. 

Void in the Status Quo

The procedure appears to be reasonable on the face of it; however, the procedure of consent creates a strain in centre-state relations mostly in cases when the political party forming the government  in centre and state are different. The state government often exercises restraint in consenting to a CBI inquiry even if it appears to be necessary because of the possibility of such agencies being misused against the political party of the state.  Consenting to the CBI investigation raises questions on the lack of administration and credibility of state police which brings out a wrong impression of the ruling political party among the masses. Additionally, the moment CBI investigation is allowed in the state the issue does not remain an affair of the state and becomes a case of national importance which makes it impossible for the state to  hide any detail of the case to maintain it’s good image among the people. Further, the statute does not obligate the state to give any formal justification for refusing CBI inquiry recommended by the centre which creates a possibility of arbitrariness by state. Thereby, the procedure of giving absolute power to the state for giving consent regarding CBI investigation is a faulty step. 

The decision taken by the Supreme Court of empowering the constitutional courts to employ CBI investigation can also be criticised on multifarious grounds. Firstly, the Supreme Court itself in the case of “S.R Bommai v Union of India” explicitly held that the courts should not adopt such an approach of interpretation which whittles down the powers of the state. Further, it elaborated that federalism is not the concept of convenience but is one of the essential features of our Constitution. Hence, the powers of the court to conduct CBI investigation without consent of states meddle with the principle of federalism which is held to be the part of the basic structure in the Kesvananda Bharti Case. Secondly, the Cardinal Rule of Construction of Statutes provides for a literal reading of the statue, by giving the words their grammatical, natural and ordinary meaning. The simple reading of Section 6 of DPSE articulately mandates taking state consent before imposing CBI investigation. Hence, the self granted power by the Supreme Court in the CDR case allowing itself to order CBI investigation contradicts the popular and settled principle of statutory interpretation. Thirdly, “Article 142 of the Indian Constitution”, however, allows the Supreme Court to pass any such order which is necessary to deliver justice yet the Supreme Court in the case of “Bar Association v. Union of India” held that the courts cannot make new rules ignoring the explicitly existing statutes. Hence the CDR case ignoring Section 6 of DPSE neglects the interpretation of Article 142. Lastly, the Constitution has explicitly distributed the legislative and administrative powers among centre and state. The state can delegate its executive powers to the centre only through the provisions mentioned in Article 258-A of the Indian Constitution. The court ignoring these provisions of proper distribution of power and entering into the territory of state authority is hence inconsistent with the principle of separation of power assured by the above-mentioned article and also included in the basic structure of the constitution by the Keshvanada Bharti Case.

The Way Ahead

In our country where there are rampant cases of corruption only a few cases are given to CBI and even after CBI’s decision of declaring a person guilty most of them get acquitted in the court of law. The terrible discernment about the partiality of these bodies in several enquiries because of extension of politics is also a matter of concern. Hence along with the strengthening of CBI, weakness in the process, the relevant law and other institutions should be corrected.

To strengthen the status quo, the current statute should be amended to bind the state government to give a reasonable justification for not allowing CBI investigation when the centre has proposed to do so. Additionally, in the cases of corruption, public order and state security the recommendation of the centre should be held enough to allow CBI investigation irrespective of the state consent.  However, the exhaustive solution to this problem is to make CBI independent of the government. Here, independence means that process, investigation and prosecution should be controlled by the independent body. It will help in eliminating the factor of politics, red-tapeism and bias and will ensure the smooth and effective functioning of such institutions. Additionally, individual functioning will restore the confidence of the public on CBI. 

The Court’s order of intervention by imposing CBI investigation in the case of lack of credibility and confidence in the state police’s investigation is arbitrary and provides unrestricted powers to the court. The fact that there is no parameter to decide the credibility and confidence of the police creates doubt of biasness on such investigative impositions by courts. Hence there must be articulated and exhaustive factors or guidelines, only under which the court might order CBI investigation. The court should also be held obligated to mention the necessity of not taking the respective state’s consent in ordering CBI investigation. However, the courts should not intervene merely because of the reason that the case fulfils such  factors or guidelines. This power should be restricted and must be exercised only in extraordinary circumstances. According to the author, the extra-ordinary can be defined to the incidents having national and international ramification or the question of credibility and confidence among the masses in the justice system or the case of enforcement of Fundamental Rights. The shield of guidelines is also necessary to protect the flooding of cases before the CBI. Bombarding cases on CBI may create a difficulty to appropriately investigate even those matters which need immediate attention because of its limited resources deviating from the very purpose of its existence. 

The novel idea of having an individual investigation organisation should not be drowned by the existing lacunas. A country like India cannot afford to have unreliable and incompetent CBI because most of the people already do not rely on the state police and CBI only remains their hope for efficient investigation. The Centre-State tussle regarding CBI investigation needs to end. Additionally, the unrestricted powers of the court should be exhaustively defined to reduce the burden of CBI and maintain the trust of people in the judicial system and such individual organisations.

The author is a 4th year student at the National Law University, Odisha.

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