Nov. 6: The 1963 executive order under which the CBI was formed is unconstitutional, Gauhati High Court ruled today, and said an act should have been passed for the purpose.
“The resolution number 4/31/61-T dated 1/4/1963 issued by secretary to the Government of India, V. Viswanathan, constituting the CBI is ultra vires. The CBI is neither an organ nor part of the Delhi Special Police Establishment Act and the CBI can’t be treated as a police force constituted under the act,” a division bench of Justices Iqbal Ahmed Ansari and Indira Shah said.
The ruling was met with disbelief from CBI officers and several senior lawyers.
Additional solicitor-general P.P. Malhotra, who had appeared for the Union government and the agency in the high court, dubbed the judgment “totally erroneous” and said an appeal would be filed in the Supreme Court once it reopens on Monday after the Diwali break.
Viswanathan, who had signed the resolution, was then secretary in the Union home ministry. The agency functions under the Delhi Special Police Establishment Act (DSPE), 1946.
But the court said a force with powers to investigate crimes can’t be formed by merely issuing an executive order. “Could a police force empowered to investigate crimes have been created and constituted by a mere resolution of ministry of home affairs, Government of India, in purported exercise of its executive powers?” the bench asked.
The order came on an appeal by an employee of the Centre-owned BSNL charged by the CBI in a corruption case.
Navendra Kumar had challenged the process of setting up the CBI and sought quashing of the charges. Kumar’s petition was earlier rejected by a single-judge bench of the high court. He then moved the division bench, which also quashed the CBI chargesheet and aborted his trial.
Today’s order cast a cloud on the high-profile CBI cases, including those on the coal block allocations being monitored by the apex court.
“It will be interesting to see the Supreme Court ruling once the CBI challenges the order,” Assam public prosecutor Z. Kamar said.
In Delhi, CBI officers said they had started consulting their legal teams. “We are shocked. We have consulted our legal team and they have been asked to examine the judgment,” said a senior officer.
Many CBI cases are being monitored by the Supreme Court and high courts often ask the agency to take up probes, the officer said. “How can it be so if the CBI is ultra vires?”
He pointed to Supreme Court observations underscoring the need for the agency’s independence. “It is surprising that the Supreme Court wants to free us from bureaucratic clutches, (but) Gauhati High Court wants us to pack our bags.”
Lawyers, too, expressed surprise. “…the ruling that the very setting up of the CBI is void will have far-reaching implications,” noted criminal lawyer Kamini Jaiswal said in Delhi.
Constitutional expert Anil Divan also disagreed with the ruling. “It is very clear that the CBI has been set up under the DSPE so where is the question of it being not validly constituted.”