Assessing The Constitutional Validity Of CBI: An Analysis Of Navendra Kumar v/s The Union Of India
The method of establishing the CBI was found to be flawed and
unconstitutional in a courageous ruling by the Guwahati High Court in the
case of Navendra Kumar vs. Union of India. The Calcutta High Court, in a
decision dated March 29, 2019, posed some grave questions about the CBI's legal
existence for a larger panel to address.
Guwahati High Court, in Navendra Kumar v. Union of India, nullified the
Central Bureau of Investigation's operations, jurisdiction, and composition in
one stroke on November 6, 2013. The country's top investigating agency is
unconstitutional, according to presiding-judge Justice A. Ansari's findings. The
decision has far-reaching ramifications, as it is likely to instill optimism in
individuals who fear an inquiry and conviction. The decision is significant
because it limits the executive's ability to infringe on citizens' rights. It
answers the fundamental question of whether an organization established solely
by administrative fiat can infringe on citizens' right to life as enshrined in
This Article tries to decipher the reasoning behind this decision while
expanding the scope of the Constitutional Status of the CBI by giving various
reasonings by different Courts and Legal Arguments to support the
The Special Police Establishment (SPE), established by the Government of India
in 1941, is the forerunner of the Central Bureau of Investigation. During World
War II, the SPE's role was to examine accusations of bribery and corruption in
dealings with the Indian War & Supply Department.
The necessity for a Central Government body to examine accusations of bribery
and corruption by Central Government workers was realized even after the war
ended. As a result, the Delhi Special Police Establishment Act was enacted in
1946. The SPE's supervision was shifted to the Home Department, and its powers
were expanded to include all departments of the Indian government. The SPE's
jurisdiction extended to all Union Territories and might be expanded to States
with the permission of the respective State Government.
By decision in 1963, the Ministry of Home Affairs altered the name of the
Special Police Establishment to the Central Bureau of Investigation or
CBI. Apart from economic offenses, the CBI began to be entrusted with the
investigation of other crimes on special request in subsequent years.
In 1987, the CBI established two branches to help it work more efficiently and
effectively. The Anti-Corruption Division was one branch, while the Special
Crime Division was another. The CBI was also tasked with investigating
high-profile fraud and criminal cases.
Constitutional Debacles leading to this CaseCBI has been around for many decades. It has used sophisticated scientific
approaches to successfully examine high-profile cases involving politicians and
criminals. In the case of Bajrang Lal Kedia v. Union of India, the topic
of the CBI's legality was first questioned. The case was dismissed by the
learned bench. The Significance of the current case can be gauged by its
far-reaching ramifications and the impact it will have on the investigation
While the decision has been stayed by the Supreme Court, it is vital to address
the issues highlighted in the proceedings as they pertain to a variety of
topics, including executive authority abuse, legislative split between states,
and the much-vaunted ambit of Article 21. For the first time, the case calls
into doubt the existence of the country's most valued investigation body.
The case has sparked a hornet's nest by invalidating the existence of the
country's top investigation agency in one fell swoop. The scathing issue which
was laid before the honorable Court was, Whether the CBI, like ordinary police,
is a constitutionally valid police force to investigate offenses under Section
154 of the Code of Criminal Procedure, is a critical subject that has been
pending before the Supreme Court for almost eight years.
The Rationale of CBI being UnconstitutionalThe fact that the CBI is the successor of the Delhi Special Police Establishment
Act (DSPE) is undeniable. The sole issue of contention is whether CBI is an
alias for the DSPE or a distinct institution entirely.
According To the Executive Order that formed the CBI on April 1, 1963, "The
Government of India has taken under consideration the formation of a Central
Bureau of Investigation for the investigation of offenses now handled by the
Delhi Special Police Establishment."
This declaration makes it clear that the investigations formerly handled by the
DSPE will be transferred to the newly constituted CBI. Unfortunately, it is
unclear if the CBI was intended to replace the DSPE or whether the former was
simply an alias for the latter.
Consequently, the Government's claim that the CBI gets its investigative powers
from the DSPE Act is untrue. The "DSPE" is the only agency that can be
constituted under the DSPE Act, according to Section 3. As a result, the CBI is
virtual without legislative support.
The CBI cannot undertake investigations under the CrPC or serve as a police
agency if there is no legislation to justify its legal existence. The clause
related to police is included in Item 2 of the State List, which takes it beyond
the jurisdiction of the Central Government's legislative competence. In this
aspect, the Union's function is restricted to that of a consultant. This is in
contrast to the CBI's role as a national police body with the authority to
investigate certain types of crime across the country.
However, by looking into the constituent assembly discussion records, it debunks
any claim that Entry 8 of the Union List provides for a central investigative
body like the CBI. The members of the constituent assembly did not include Entry
8 of the Union List to form a central investigative agency with the ability to
examine crimes and prosecute offenders, as is plainly stated. Rather, it was
done to create an organization whose sole purpose would be to conduct
investigations, with the material gathered being utilized by various state
police departments to combat crime and do study into police procedures.
As a result, the CrPC's powers were supposed to be limited to police personnel
and not to be extended to a body like the CBI.
To substantiate the argument, the DSPE was not permitted to prosecute offenders
under its legislation. Section 2(2) of the Act, in particular, gives the DSPE
the authority to solely investigate rather than prosecute. As a result, whether
the CBI was an alias for the DSPE or not, the latter would not have the
authority to prosecute offenders. Even the above ruling that established the
CBI, gave it investigative and not prosecutorial authority.
The Gauhati High Court's division bench began investigating all parts of these
legal concerns to the CBI in 2008, and subsequently, on November 6,
2013, declared that the government does not have the authority to form the
CBI under the Delhi Special Police Establishment Act, 1946.
The CBI argued that it was established in 1946 under the Delhi Special Police
Establishment Act. It is a division of the Delhi Special Police Establishment (DSPE). The
High Court flatly refused to accept the argument that the CBI was not
established by any "law" passed by Parliament. As a result, the directions for
its formation contained in the proposal cannot be deemed a legal operation.
There was panic as soon as the order was announced on November 6, 2013, and the
sword hung over the heads of thousands of cases. The Indian government rushed to
the Supreme Court's front doors. The Supreme Court issued a brief
order suspending the implementation of the Gauhati High Court's judgment during
an emergency hearing held on November 9, 2013, at the Chief Justice's office.
According to the Supreme Court's well-established law in Shri Chamundi Mopeds v
Church of South India, a stay order does not nullify the presence of the
original order. Needless to say, the existence of the High Court's judgment is
preserved. The only thing that has been postponed is its implementation. For the
past two years, there has been no hearing in this case. Although the ruling of
the Gauhati High Court was made on good legal grounds, the Supreme Court will
ultimately decide whether it was correct or incorrect, this case involving a
major constitutional issue such as personal liberty should be treated as a
matter of top importance for resolution.
Without a doubt, this order in Navendra Kumar Case will be contested and, more
than likely, upheld. For good reason as courts are prohibited from directing the
enactment of legislation under the concept of separation of powers as this
infringes on the legislative authority. The court can only offer
recommendations, as it did in the case of prohibiting convicted criminals from
running for office because many of the other orders of the High Court involve
policy decisions, which the judiciary is legally prohibited from making.
Amid all of the myth-making in this decade, the faults previously recognized in Vineet
Narain have begun to resurface. I believe the bubble broke in the Aarushi
case when the CBI's ambiguous and inconsistent position drew a lot of negative
attention. The fissures, which were already obvious, widened as a result of
claims of political meddling in the agency's operations in several high-profile
Even though the Gauhati High Court has, in my opinion, cogently reasoned
its conclusion of no relationship between the CBI and the DSPE Act.
Ordinarily, this would have been the end of the matter, except that, given the
circumstances and the gravity of the case, such a finding would almost certainly
be appealed to the Supreme Court, which would then hear it alongside the pending
appeal from the Gauhati High Court, likely adding at least another couple of
years to the litigation. Therefore, India's top investigative body must have a
clear mandate as well as enough statutory and constitutional.
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