Earlier this year, the Supreme Court described the Central Bureau of Investigation as a ‘caged parrot’. Far from setting it free, the Gauhati High Court sought to exterminate it. The court’s judgment holding that the CBI is not a legally constituted police force has been stayed by the Supreme Court for now. The absence of a clear legal link between the establishment of the CBI and the Delhi Special Police Establishment Act, 1946, the law under which the agency has been functioning for half a century, is indeed an irresistible point of law that was bound to be raised by someone some day. However, the moot question is whether the High Court ought to have taken such a hyper-technical view and struck down the Union Home Ministry Resolution of April 1, 1963, by which the agency was formed. While there could be some merit in the contention that the CBI’s legal basis was somewhat unclear, the High Court could have highlighted any legal infirmity it found and sought the government’s views on how it could be cured — instead of invalidating the CBI’s very existence. The Supreme Court will have to decide whether to accept the CBI’s legality as a fact established by five decades of existence and functioning with judicial recognition, and how any infirmity, if that exists, is curable.
The Special Police Establishment (SPE), formed in 1941 under the War Department to curb corruption, got statutory status under the Delhi SPE Act, 1946. Its work was transferred to the CBI as soon as it was formed in 1963 by a Resolution. The High Court has now said it was a mere executive instruction with no sanction from the Cabinet or assent from the President. It has been generally assumed that the CBI is synonymous with the SPE, and the High Courts and the Supreme Court have passed orders from time to time transferring to it sensitive investigations from out of the hands of State police departments. The constitutional basis for the CBI’s formation is traceable to Entry 8 in the Union List, ‘Central Bureau of Investigation and Intelligence’, but the High Court did not find it good enough. Prime Minister Manmohan Singh has promised to do everything necessary to establish the agency’s legality and protect its past and future work. It may be an opportune moment to provide a firmer statutory framework for the CBI, one that grants it the functional autonomy that the Supreme Court mandated in the Vineet Narain case in 1997. The Lokpal Bill, stalled due to political bickering despite being passed in the Lok Sabha, also provides for measures to insulate graft investigation from interference and envisages an independent role for the CBI under the Lokpal’s supervision. Strengthening this bill and ensuring its early adoption would be the right course.