Friday, November 8, 2013

The Decision Of Gauhati High Court Declaring CBI Unconstitutional Is Legally Sustainable- Praveen Dalal

For too long techno legal experts like Praveen Dalal have been stressing that law enforcement agencies and intelligence agencies of India must not only be regulated through a legal framework but they must also be bound by parliamentary oversight. However, Indian government preferred to keep this crucial aspect under the carpet.

Indian Government did not understand and accept that law enforcement and intelligence work is not an excuse for non accountability. For some strange reasons intelligence infrastructure of India has become synonymous for unaccountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of intelligence agencies of India.

Lawlessness and unreasonableness is guaranteed if there is no accountability. Accountability is absent when there is no legal framework for those managing essential governmental functions challenging the human rights and fundamental rights of the affected persons. Perry4Law has already provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” (PDF) to the Government of India in September 2009. However, the Indian government failed to act upon the same and to formulate a techno legal framework accordingly.

The problem with the central bureau of investigation (CBI) is that it has not been constituted under a valid law and till now CBI has been operating through an executive order. Even Indian government was well aware of this dangerous situation and despite that it failed to remedy the situation.

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 like Praveen Dalal.

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.