Society runs on the fore-wheels of laws. The laws are defined as the rules that govern the society and it is equally clear that these rules are not self-enforceable. There has to be an enforcing body that governs, controls and maintains the follow-up pattern of these rules thus maintaining a sense of security. Since the monarchical times this function has been performed by police (although different rulers defined them with different terminology for eg. The Kotwals during Mughal Dynasty). Gradually with time the structure of society changed and that of the Police. Now, rather than having just one force, all states have their own Police Establishments, divided by jurisdictions and laws. While these were capable to tackle the problems in their local areas, there arose a need to establish a larger, potent, and single unit that could deal with ‘special cases’. Today, we call it the Delhi Special Police Establishment (DSPE).

By: Lalima Gupta

Background

The DSPE, traces its roots back to the British Era in India. It was a part of the then Ministry of Was and Supply Department of India in 1941.

Facing a number of internal Corruption and bribery Issues during WW-II, the department was given the task to solve such ‘special issues’. It was then called the Special Police Establishment (SPE) under the DSPE Act under the Superintendence of Qurban Ali Kan. Though the war ended but not the corporality of the department. In 1946 it acquired the name of DSPE. On partition when Qurban Ali Khan opted for Pakistan, Rai Sahib Karam Chand Jain became the first legal advisor of the department. On Independence, there seemed to be a dire need to handle the rampant corruption in various States for which the department maintained its grip and extended its jurisdiction to the UTs as well.  CBI as acronym came later only in 1963 when the Ministry of Home Affairs declared it to be Central Bureau of Investigation on April 1^st, 1963. Finally, the CBI brought in its ambit the investigation of more serious and heinous crimes like murder, money laundering, kidnapping, terrorism etc. due to growing reliability and efficiency. With greater number of cases being entrusted to the Bureau, the work categorised and put under three different divisions which are namely,

1. Anti-Corruption Division,

2. Special Crimes Division and

3. Economic Offences.

and an entire new Ministry under the leadership of Prmine Minister was assigned the DSPE work-load called Ministry of Personnel, Public Grievances and Pensions with three separate departments under it:

1. Department of Personnel and Training (DOPT) (this also includes recruitment of officers through UPSC and SPSC)
2. Department of Administrative Reforms and Public Grievances
3. Department of Pensions and Pensioners’ Welfare.

1963: the establishment Year and the constitution process

Although formed in 1946, the established date of CBI is considered to be April 1, 1963 with D.P.Kohli as the founding director (1 April 1963 to 31 May 1968).The CBI Director is appointed, for not less than a term of 2 years, by the Appointment Committee on recommendation of Selection Committee as mentioned in DSPE Act 1946. The Appointment Committee (under section 4A of the SDPE Act) consists of:

·   Prime Minister – Chairperson

·   Leader of Opposition of Loksabha or the Leader of the single largest opposition party in the Lok Sabha, if the former is not present due to lack of mandated strength in the Lok Sabha – member

·   Chief Justice of India or a Supreme Court Judge recommended by the Chief Justice – member

When making recommendations, the committee considers the views of the outgoing director.

The Selection Committee( consisting of other members like Central Vigilance Commissioner, Vigilance Commissioners, Secretary to the Government of India in-charge of the Ministry of Home Affairs in the Central Government, Secretary, Co-ordination and Public Grievances, Cabinet Secretariat ) nominates a certain number of names to the Appointment Committee, and one among whom the Appointment Committee appoints as the CBI director.

Ambivalent Constitutional Validity of CBI

The constitutional validity of CBI went under spotlight when in 2013 Gauhati High Court’s Judge Justice (retd) Ansari  in 2013 stated in a judgment that

“The CBI was never constituted under any statute, but under an executive order of the Union Home Ministry in the year 1963, and that too, with no backing from the Constitution,”

and asked the Supreme Court to clarify its status. “In India, police is, strictly speaking, a state subject under the Constitution. At best, the Centre, under our Constitution, has power to collect intelligence. But it cannot enter a state to investigate crimes unless Constitution so permits.”

In an impromtu action the  judgment was immediately stayed by then Chief Justice of India P. Sathasivam. According to Justice Ansari says it cannot be considered “settled in law” since the apex court has never really discussed or decided the matter.^[1]

The Authority of CNI Vis-a-Vis the State Police

Deriving  its authority from the central government, the CBI follows the rules for investigation laid down in DSPE Act 1946.

Section 5-Extension of powers and jurisdiction of DSPE.

Accordingly, Scetions 6 and 6A clarify. The central government may extend its power to any area for investigation, subject to the consent of the government of the concerned state but not in cases investigating offences committed within union territories by state government employees acting in their official capacity.^[2](Apex Court’s verdict as on April 25^th,2020). Being the central investigating agency, the CBI can investigate union subjects like:

·   Offences against central-government employees, or concerning affairs of the central government and employees of central public-sector undertakings and public-sector banks

·   Cases involving the financial interests of the central government

·   Breaches of central laws enforceable by the Government of India

·   Major fraud or embezzlement; multi-state organised crime

·   Multi-agency or international cases

However, in order to conduct such investigations within a state, the CBI is required to take prior consent from the State Government. This consent can be in the form of a ‘general consent’ under Section 6 of the Delhi Special Police Establishment Act, or a ‘specific consent’ concerning individual cases. Almost every state in India has provided the CBI with a general consent to investigate within their borders but the contrary might fall in action at times.

The CVC and the CBI: The Ruckus

The DOPT supervises and controls the following organizations, namely:

1. Union Public Service Commission (supervises)
2. Staff Selection Commission
3. Public Enterprises Selection Board
4. Lal Bahadur Shastri National Academy of Administration
5. Institute of Secretariat Training and Management
6. Central Vigilance Commission (CVC) (supervises)
7. Central Bureau of Investigation
8. Indian Institute of Public Administration
9. Central Information Commission

Central Vigilance Commission (CVC) (not an investigating agency), is an apex Indian governmental body created in 1964 to address governmental corruption.

On the recommendations of the Committee on Prevention of Corruption, headed by Shri K. Santhanam Committee, who stated the need of  an autonomous body, free of control from any executive authority,

charged with monitoring all vigilance activity under the Central Government of India, advising various authorities in central Government organizations in planning, executing, reviewing and reforming their vigilance work, and to advise and guide Central Government agencies in the field of vigilance, CVC was set up by the Government of India Resolution on 11 February 1964. In 2003, the Parliament enacted a law conferring statutory status on the CVC.

The row between CVC and the CBI started when the Ministries and Departments in the Central Government issued a directive that required the CBI to seek approval of the Central Government before pursuing investigation against bureaucrats of the level of Joint Secretary.

But in  1997 Vineet Narain & Others vs. Union of India ^[3]the SC struck down the validity of a directive on grounds that it violated the independence of the investigative process. 

It was tried to be re-instated in 2003 by another directive however it was again struck down by the Supreme Court in the course of another judgment in 2014 on the basis that it violated the right to equality guaranteed by the Constitution. 

Looking towards the weakening power of CBI in the 1991 Jain Hawal Case failure, the SC decided to consider the and  take account of recommendations made by the Committee headed by N.N. Vohra constituted by Government in 1993, and by the Independent Review Committee (IRC) constituted by Government in 1997, the SC also stated some of the following worth mentioning measure to be taken by the government which are:

1. The Central Vigilance Commission (CVC) shall be given statutory status.
2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The President on the basis of the recommendations made by the Committee shall make the appointment. This shall be done immediately.
3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning.
4. Recommendations for appointment of the Director, CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members.

The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anticorruption work.

The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.

It was then in year 2003 that the recommendations of the Hon’ble Court were adhered to and Central Vigilance Commission Act was enacted which provided CVC statutory status, and DSPE Act was amended so far as the CVC and the CBI is concerned, some of the provisions (of CVC Act, 2014) and amended provisions  (of DSPE Act, 1946) are:

1. Section 8 of the CVC Act conferred on Central Vigilance Commission (CVC) the power of superintendence over the Delhi Special Police Establishment insofar as it relates to the investigation of offences under the Prevention of Corruption Act, 1988; or an offence under the Cr.PC for certain categories of public servants. Also, under the Section 8 CVC can review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.PC, and review the progress of the applications pending with the competent authorities for sanction of prosecution under the Prevention of Corruption Act, 1988. Also under Section 4C of DSPE Act, 1946 The Central Government shall appoint officers to the posts of the level of Superintendent of Police and above except Director, and also recommend the extension or curtailment of the tenure of such officers in the Delhi Special Police Establishment, on the recommendation of a committee consisting of : – (a) The Central Vigilance Commissioner – Chairperson; (b) Vigilance Commissioners – Members; (c) Secretary to the Government of India in Charge of the Ministry of Home – Member; (d) Secretary to the Government of India in charge of the Department of Personnel – Member. Provided that the Committee shall consult the Director before submitting its recommendation to the Central Government.
2. Section 4 of DSPE Act, vested the power of superintendence over the Delhi Special Police Establishment in Central Vigilance Commission.
3. Section 4A (1) of DSPE Act, provided for Committee for appointment of Director of CBI – The Central Government shall appoint the Director of CBI on the recommendation of a committee consisting of the Central Vigilance commissioner as Chairperson, the Vigilance Commissioners, the Secretary to the Government of India in-charge of the Ministry of Home Affairs, and the Secreatary (coordination and public grievances) in the Cabinet Secretariat.
4. Section 4B (1) provided that the Director shall, notwithstanding anything to the contrary contained in the rules relating to his conditions of service, continue to hold office for a period of not less than two years from the date on which he assumes office. (2) The Director shall not be transferred except with the previous consent of the Committee referred to in subsection (1) of section 4A.^[4]

Conclusively it can be stated that despite going through crests and troughs like a challenge to its constitutionality, the CBI v. CBI row, the DSPE’s position as the most trusted investigating agency remains unshaken and affirmed. Hence, now is the peak time to provide it with a statutory authority of its own relying on its popularity an demand else in words of Joginder Singhv(former CBI director)

“The political class will never give independence to the CBI”.

End Notes:

^[1] Constitutionality of CBI is questionable: Ex-HC judge who ruled CBI has no legal backing. The Print on August 20^th , 2020 at 7 at https://theprint.in.

^[2] CBI need not take state consent to probe offences within UTs by state employees. Hindustantimes on August 20^th ,2020 at 7 at https://www.hindustantimes.com

^[3] 1998 CRI LJ 1208.

^[4] CBI feud: History of CBI and CVC. Clatpossible on August 20^th ,2020 at 5 at https://www.clatpossible.com.