Saturday, January 7, 2017

Snippet - Constitutional Evasion and the CBI's Dubious Legal Basis

The Indian Constitutional Law and Philosophy Blog put up an important and timely opinion on what appears to be an emerging doctrine of constitutional evasion, where the Supreme Court is creating an effect by simply not deciding issues of seminal constitutional importance. Demonetisation and Aadhar were taken as two examples, and in this snippet I offer a third - the legal status of the Central Bureau of Investigation.  

The CBI is a curious entity and was once before the subject of a Guest Post on this Blog. It does not have any statutory basis and traces its foundation to a Notification passed in 1963 (Resolution No. 4/31/61-T dated 01.04.1963). Its precursor was the Delhi Special Police Establishment [DSPE], created under the eponymous 1946 statute. The CBI started out under the control of the Ministry of Home Affairs, but Granville Austin in Working a Democratic Constitution notes how the Prime Minister came to exercise far greater control over the Agency during Mrs. Gandhi's tenure at the helm (pages 190-191) and then went back to the Home Ministry under the Janata Government (pages 454-455). He also notes how the Agency was often used to carry out political vendetta in the 1970s, both by the Congress as well as the Janata Governments. The lack of autonomy in the CBI has been a consistent theme in the five decades since, perceived to be constantly trading allegiances, with echoes being seen by papers in the raids conducted in the office of the Delhi Chief Minister in 2015. Nobody likes being maligned, and the CBI itself made calls for greater autonomy with past directors advocating the cause for the Agency to have a statutory basis. The Supreme Court has also been sympathetic to these pleas. It expressed great displeasure upon learning that CBI recommendations had been changed at the behest of ministers in relation to the coal blocks allocation scam, and went ahead and conferred greater autonomy to the Agency in September 2013.  

So far so good. On 06.11.2013, then, the Guwahati High Court famously passed an order holding the CBI was without any legal basis. In an impeccably reasoned decision, the Court held that the CBI could not be located in the DSPE Act. The Guwahati High Court did find the CBI to be distinct from the DSPE after tracing its legislative history as found in the file notings itself (paragraphs 45-49), contrary to what the Union of India asserted. Such an independent police force which conducted investigations and inquiries required statutory backing, and could not be the product of a mere Executive Notification. It refused to lend weight to an argument made by the Union which effectively sought non-interference despite illegality as things had remained this way for decades. In another part of the decision, the Court traced the Constituent Assembly Debates on the subject to show how the Framers never intended to confer investigative powers upon a Central Agency as has been done today (paragraphs 51 - 68), but it did not go ahead and consider the legality of the DSPE itself. 

On 09.11.2013, in a hearing conducted at the residence of the then Chief Justice, the Supreme Court stayed the decision [order available here]. This was understandable and fair, as thousands of investigations and prosecutions would have been thrown into the lurch if the CBI was suddenly disbanded. The problem is the lack of activity that the petition has subsequently witnessed in the Supreme Court, which is where the issue of Constitutional Evasion comes in. The case [SLP (Civil) 34834/2013], along with connected petitions, has been listed a total of eight times since 2013. Long dates came between the filing of submissions etc with the stay remaining operative. The order passed on 15.02.2016 converted the case to Civil Appeal No. 1473/2016 and notes that the hearing was expedited, but no subsequent date was given. On 11.11.2016, applications for vacating the stay were dismissed. No likely date of next listing shows up on the case status webpage as of today.

By prolonging the stay and refusing to hear the matter, the Court is inadvertently supporting the claim of the Union of India that things should not be interfered merely because they have been so. Rather, it would be in the national interests for a speedy resolution of these issues of seminal constitutional importance, that plague the premier investigating agency of India. 

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