Friday, November 8, 2013

CBI Is An Unconstitutional Agency Says Gauhati High Court

Central bureau of investigation (CBI) is the premier investigation agency of India. It has been managing many high profile cases of India. However, CBI has not been constituted under a valid law and till now CBI has been operating through an executive order.

From time to time many legal experts have asked the Indian government to confer legal status upon CBI through a separate law. However, Indian government failed to do so and now a situation has arisen where the very existence of CBI is in danger.

In a recent landmark judgment (PDF), the constitution of CBI was held Unconstitutional by Gauhati High Court. The Division Bench of Gauhati High Court has endorsed the views that have been expressed by selective few legal experts of India.

According to Praveen Dalal, managing partner of law firm Perry4Law and a Supreme Court Lawyer, although almost all have criticised this decision of Gauhati High Court yet it is “neither absurd nor an uncalled one”. Parliamentary Oversight of any Law Enforcement Agency is the “Core Requirement” under Indian Constitution. However, our Intelligence Agencies and many Law Enforcement Agencies, including CBI, are not governed by any sort of Parliamentary Oversight, opines Dalal.

So judged from this legal position, the decision of Gauhati High Court is correct and legally sustainable. Even CBI is well aware of this ground reality. The Draft Central Bureau of Investigation Act, 2010 was suggested by CBI but the same could not see the light of the day. CBI’s case is a political fiasco that has arisen due to the PMO indifference.

Even the Intelligence Services (Powers and Regulation) Bill, 2011 failed to materialise and till now our intelligence agencies are not governed by any law. In fact, intelligence agencies are vehemently opposing the proposed Right to Privacy Bill 2013 so that they remain ungoverned and unaccountable in every possible sense.

India has already launched illegal and unconstitutional projects like Aadhar, central monitoring system, national intelligence grid (Natgrid), etc without any legal framework and parliamentary oversight. Now when we have a chance to bring some sanity among the chaos created by the intelligence infrastructure of India, the intelligence agencies have pulled their sleeves to stall the proposed privacy bill.

There are no Shortcuts to Worth Initiatives and Agencies and in case of CBI the Indian Government preferred the “Shortcut Mode”, says Dalal. The correct procedure was to formulate a Comprehensive and Holistic Legal Framework for the CBI rather than keeping it operational under an Executive Order, opines Dalal. Let us see how the Supreme Court of India would decide in this regard.