I am pleased to present a guest post by Ms. Deekshitha Ganesan, a Fourth Year student in the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore
The Central Bureau of Investigation is commonly seen as India's premier investigation agency, tasked with solving the most challenging cases. This, naturally, has lead to an intense level of scrutiny of its every move - best seen through the constant media updates surrounding the allegations against the former Director. However, the actual workings of the Bureau: its statutory basis, funding, operational methods etc. are relatively unknown to most of us. Through this post, I wish to explain these rather lesser known aspects of the CBI, and highlight some major issues plaguing the functioning of the Bureau.
In 1943, the Special Police Establishment ["SPE"] was established by Ordinance (No. XXII of 1943) to deal with those individuals taking wrongful advantage of the emergency conditions during WWII and enriching themselves at the cost of the Central Government. Soon there was a challenge to its validity, which led to passing of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”]. The Act was in exercise of powers conferred upon the Central Legislature through Entry 39 of List I of the Seventh Schedule to the Government of India Act 1935. Subsequent to the statute, the SPE was transferred under the Ministry of Home Affairs and its functions were expanded to cover all Central Government departments. Investigations into matters of the state government needed their consent. In 1963, the Ministry of Home Affairs passed Resolution No. 4/31/61-T creating a Central Bureau of Investigation, and the functions of the SPE were transferred to the newly created Bureau. Today, the CBI falls under the purview of the Department of Personnel and Training [“DoPT”] of the Government of India. It has six branches/wings, one of which absorbed the erstwhile SPE.
With the CBI under the DoPT, until 2013 its budgetary allocations were subsumed under the allocation for the DoPT. In 2013, in response to an affidavit of the Central Government rejecting the CBI’s demand for greater autonomy, the Bureau pointed out the many layers of scrutiny within the DoPT to requisition money spent on basic facilities such as laptops for investigators on the field. Since then, the interim budget of 2014 and the 2015 budget have both included separate, specific budget allocations for the CBI. However, there is no clarity as to whether this was a result of a Supreme Court order.
Despite the limited financial autonomy, the CBI deals with a huge variety and volume of cases. This necessitated establishment of a Central Forensics Science Laboratory [“CFSL”] in New Delhi with 11 divisions, under administrative control of the CBI. The CFSL also has a Digital Imaging Centre to assist in the analysis of electronic evidence. In a controversial move, the Government Examiner for Questioned Documents [“GEQD”] was merged with the CBI to assist in the investigation of white collar crimes. GEQDs across the country argued they were pioneering organisations in the field of forensic sciences and that their documentation divisions and those of the CFSL function differently, which will make coordination difficult. Nevertheless, the Government went through with the decision in 2012. More recently, in May 2015, a new CBI Academy was inaugurated at Ghaziabad to decode information contained in Apple and Linux devices to aid in the investigation of bank frauds, cyber crimes, complex financial crimes, among other conventional crimes.
Expertise and Commencing Investigations
The history of the organisation makes it evident that its expertise lay in economic crimes, and this forms the bulk of cases handled by the Bureau today as well. However, being the sole investigative agency beyond the powers of the State Government contributed to a perception of the CBI as an "independent" organisation. Consequently, several sensitive cases regardless of their nature continue to be transferred to the Bureau owing to allegations of bias in investigations by the local State Police. How does the CBI operate? The division of labour between Union and State Legislatures means there is a need for specific consent from the concerned state before the CBI begins investigating in its territory [Section 6]. Even otherwise, the Union must specify by notification the offences/classes of offences which are to be investigated by the CBI [Section 3]. Therefore, the preliminary challenge to any investigation is the issue of consent. Recently, a Constitution Bench clarified that the requirement of consent does not affect the powers of the Constitutional Courts to order the Bureau to conduct an investigation in spite of any consent from the concerned government [See, State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476].
Another preliminary issue is that of obtaining sanction. Prosecuting public servants in India involves taking a prior sanction. In the case of the CBI, Section 6A of the DSPE Act was inserted in 2003 making it necessary to obtain a sanction even before beginning an investigation on allegations against certain officers. Apart from it being an unreasonable fetter on the CBI's investigative power, it was also argued that placing certain officers behind such a protection was unconstitutional under Article 14. The issue was referred to a Constitution Bench of the Supreme Court, and in Dr. Subramanian Swamy v. Director, CBI [(2014) 8 SCC 682] Section 6-A was struck down as unconstitutional.
Conducting an Investigation
Investigation is required to be conducted as per the provisions of the Code of Criminal Procedure, 1973 and the Crime Manuals merely act as guidelines However, the CBI does not investigate all offences falling under a notification under Section 3. As per Chapter 1 of the CBI Crime Manual, there exists an arrangement between the State Police Force and the CBI on division of cases to ensure coordination and avoid duplication. This is to be seen in light of the fact that ‘Police’ is a State subject and Section 6 of the DSPE Act which requires permission to be taken for exercise of powers by the CBI in a State.
The CBI is empowered to conduct investigations based on complaints received from any person, including members of the general public. Upon receipt, the complaint is forwarded to the appropriate branch of the CBI. However, the most common way by which the CBI begins investigation in a case is upon complaints from the Central Government Departments, State Governments, Ministries and Public Sector Undertakings etc. In these cases, the procedure for registration and verification of the complaint is required to be followed. However, where the complaint itself mentions specific allegations and reveals a criminal offence that is fit to be registered as a Regular Case, the permission of the Competent Authority is required to be taken.
The most important issue surrounding the CBI today is the debate surrounding whether a separate statute should be enacted to recognise its independence. At the moment, right from its constitution to the list of offences which it can investigate, everything is determined by the Central Government. Until very recently, the CBI needed the sanction of the Central Government to prosecute certain classes of bureaucrats. Many officers of the CBI have suggested that the Bureau's powers and autonomy should be along the lines of those granted to the Election Commission. Without a statute clearly defining the extent of the Bureau's powers, without removing the curbs on its powers laid down in DSPE and without amending the extent of the Central Government’s superintendence over the CBI, decisions like that of the Gauhati High Court in Navendra Kumar v. Union of India & Anr. [Writ Appeal No.199/2008, decided on 06.11.2013], will continue to be a reality.