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India's CBI: Cast
In Lawlessness
WSN Bureau
 The
Sikhs have come to know the ways of the functioning of the Central
Bureau of Investigation (CBI), India's top sleuthing body, rather
too well. In the case of a crime as heinous as the genocidal
killings of the Sikhs in 1984 in full public view, the agency showed
more keenness to dish out clean chits to people widely known to be
guilty. Both Sajjan Kumar and Jagdish Tytler have repeatedly
benefitted from the proclivity of Indian investigators to bend and
abuse the investigation and legal processes.
Even as the victims
of 1984 genocide continue to grow old, frustrated, and die one by
one, even as the witnesses tire out and get exhausted, the CBI is in
no hurry to bring the guilty to the book.
But why does the
CBI, which so often compares itself to the FBI in the United States
and is the premier investigative agency in
India,
behave in such a fashion? To look for answers to such an intractable
question, it is imperative that we look into the legal structures,
the statutes, laws and expressed will of the Indian Parliament to
see where does the CBI derive its existence from? Which laws have
sanctioned the formation, rules, functioning style and
accountability of the CBI?
In fact, this is a
search that must expand beyond the CBI. We need to look into the
legal sanction and basis of the existence of other central Indian
agencies like the Intelligence Bureau (IB) and the RAW. After all,
why were they set up and for what purpose? In these times of
transparency, when India is crowing about having passed the Right to
Information Act, there can be little objection if the country's
citizens broach the subject of legal footing of the investigators.
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The CBI from which the Sikhs have been hoping for justice for so
long is itself cast in breach of the law. In fact,
metaphorically and literally, it is an agency set outside the
law and that also explains its functioning that often confounds
the justice seekers. This article traces the legal footing of
the CBI, IB etc and finds gaping loopholes in legal sanction. |
The CBI was created
by an executive order in April 1963. It started life as a Special
Police Establishment in the Department of War in 1941. In 1943, it
was constituted by an ordinance into an independent entity, namely
the Special Police Establishment (War Department). For all purposes,
it still functions as the Delhi Special Police Establishment
ostensibly constituted before independence on October 1, 1946. The
ordinance was repealed by the Delhi Special Police Establishment Act
that came into force in November 1946.
Simply put, the CBI
has no independent standing in law. It still draws all its powers of
investigation and arrest from the antiquated 1946 Act, under which
it was probably never formally re-constituted, and which essentially
being a local act provides that each state through an executive
order under Section 6 of the Act has to give the Special Police
Establishment consent to investigate and prosecute a matter in the
state. Moreover, the CBI can only investigate a case if specifically
requested by the state government concerned or directed by the High
Court or the Supreme Court, except if it is a matter that pertains
to the central government.
Congress leader
Manish Tiwari, who otherwise is often busy defending all actions of
the party on myriad TV channels, has in fact made it clear, in a
rather candid piece of writing generously quoted here, that in the
past, several states had revoked orders giving consent, that too
with retrospective effect, to the Special Police Establishment
(read: CBI) to investigate matters. The beneficiaries, alas, were
members of the much maligned political class much in the same way as
its investigation methods have been benefitting the likes of Tytler.
The Supreme Court finally put paid to this practice by holding that
state governments cannot revoke consent given to the Special Police
Establishment to investigate and prosecute any matter with
retrospective effect. It is also questionable whether the
constitutional scheme provides for a central police force. Entries 1
and 2 of the State List, Seventh Schedule make the police a state
subject.
In response to a
question pertaining to the legislative act or legal architecture
from which the IB draws its statutory authority, the government came
up with a quixotic response: “The Intelligence Bureau figures in
Schedule 7 of the Constitution under the Union List.” When pressed
that this may not be an appropriate answer, the government
reiterated, “The Intelligence Bureau finds mention in Section 8 in
the Union List under the 7th Schedule of the Constitution of India.”
Article 246 (1)
gives Parliament the exclusive right to make laws on matters
enumerated in the Union List in the Seventh Schedule of the
Constitution. In other words, Entry 8 in the Union List merely gives
it the legislative power to enact a statute to bring a Central
Bureau of Intelligence into existence. Unfortunately, no such law
has ever been enacted.
Similar is the case
of India’s external intelligence service, the R&AW. In response to a
question about the law that gives the R&AW the authority to
discharge its functions efficiently, the government candidly
admitted that “there is no separate/specific statute governing the
functions/mandate of the R&AW”. However, in 2000, a formal charter
listing the scope and mandate of the R&AW was formally approved by
the Government of India.
Contrast this with
the position in other countries.
America’s
Federal Bureau of Investigation (FBI) draws its powers from Title 28
of the federal statutory law that governs the federal judicial
system. The Serious Fraud Office of Britain is drawn from the
Criminal Justice Act of 1987. The US Central Intelligence Agency
(CIA) created by the National Security Act of 1947 is empowered by
the Central Intelligence Agency Act of 1949. MI5, the domestic
intelligence service of Britain, draws its legal authority from the
Security Services Act 1989 and the MI6 from the 1994 Intelligence
Services Act.
Both from the
national security and civil liberties point of view, it is
inappropriate to allow law enforcement and intelligence services to
function without a well-defined legal basis.
We have seen how
even the best intentions of the governments are thwarted when law
and law enforcers fail to keep pace with security agencies and
personnel. Guatanamo Bay was an example of the proclivity to abuse
the powers when the law was not looking. The CBI, IB and RAW in
India represent a case in which there is no law to look at, and none
also from where to keep a look out at these agencies and their
functioning.
Clearly, Indian
constitutional scheme of things is heavily flawed and India is in
breach of human rights norms as also its own Constitutional
guarantees of a lawful process to investigate crimes. The CBI from
which the Sikhs have been hoping for justice for so long is itself
cast in breach of the law. In fact, metaphorically and literally, it
is an agency set outside the law and that also explains its
functioning that often confounds the justice seekers. Why, one would
ask, are the widows of a genocide committed 25 years ago, are still
holding protests on the roads in India while the CBI is letting off
free the politicians guilty of the crime?
19
August 2009
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