The Gauhati High Court's judgement yesterday nullifying
the very existence of India's premier investigating agency,
the Central Bureau of Investigation, shouldn't have come
as a shock to the government. It had been warned by
one its own: Manish Tiwari, Congress MP and
currently minister for information and broadcasting.
| NEW DELHI | NOVEMBER 08 2013
Four years ago, Tiwari had written an Issue Brief for the Observer Research
Foundation, a prominent think tank, pointing out the legal vulnerability
of the CBI and the Intelligence Bureau, and the need to give them legal
sanctity. Like many things, it was sound advice on deaf ears. We
reproduce the article "Legally empowering the sentinels of the nation"
from the ORF Issue Brief of August 2009 with permission.
Foundation, a prominent think tank, pointing out the legal vulnerability
of the CBI and the Intelligence Bureau, and the need to give them legal
sanctity. Like many things, it was sound advice on deaf ears. We
reproduce the article "Legally empowering the sentinels of the nation"
from the ORF Issue Brief of August 2009 with permission.
Full text of Tiwari's article (PDFs attached below):
The lawyer in me has always been intrigued by the legal architecture that
empowers both Tour central law enforcement and intelligence services.
In response to a series of questions during the recently concluded budget
session of Parliament, the government provided answers that only
underscore the ambivalence, procrastination and perhaps even
the dilemma of successive governments to break out of the status
quo mold and address this critical governance issue. The objective
of this piece is to explore and navigate the legal underpinnings
of the Central Bureau of Investigation, Serious Fraud
Investigation office (SFIO), Intelligence Bureau and the Research
and Analysis Wing. (R&AW). The Central Bureau of Investigation
was created by an executive order on the April 1, 1963.
However, it was really born 22 years earlier 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),
in exercise of the Emergency powers conferred upon the then
Viceroy and Governor General of India Lord Linlithgow by
the India and Burma (Emergency Provisions Act) 1940
passed on June 27, 1940 by the British Parliament.
The Emergency Provisions Act interminably extended
the validity of ordinances promulgated by the Governor
General invoking the powers available to him under
Section 72 of the Ninth Schedule of the Government of
India Act 1935 which otherwise mandated that the
maximum validity of an ordinance could be six months .
With the Second World War coming to a close in 1945 the said
act stood repealed by His Majesty's Order in Council, namely
The India and Burma (Termination of Emergency) Order
1946, which declared the end of emergency with effect from
April 1, 1946. The emergency had occasioned the passage
of the Emergency Provisions Act in the first instance.
Fearing that all acts done under the Emergency Powers Act
would either lapse with effect from October 1, 1946 or get
extinguished as the validity period of an ordinance stood
revived to six months as envisaged in Section 72 of the
Ninth Schedule of the Government of India Act 1935 with
effect from April 1 1946, the government of the day promulgated
another ordinance on September 25, 1946 called the Delhi
Special Police Establishment (War) Department ordinance.
On October 1, 1946 in exercise of powers conferred by the said
ordinance dated September 25, 1946 the then Federal
government mutated the Special Police Establishment
(War Department) into the Delhi Special Police Establishment.
However this apprehension was later proved to be unfounded
as the Supreme Court of India in an another matter challenging
the legality and life of ordinances promulgated under the
Emergency powers Act 1940 held that while the Act
itself may have been repealed by the termination order
of 1946; the ordinances promulgated under it are valid into
perpetuity unless an ordinance itself had a self limiting time
frame (Hans Raj Moolji vs State of Bombay AIR 1957 SC 497).
The lawyer in me has always been intrigued by the legal architecture that
empowers both Tour central law enforcement and intelligence services.
In response to a series of questions during the recently concluded budget
session of Parliament, the government provided answers that only
underscore the ambivalence, procrastination and perhaps even
the dilemma of successive governments to break out of the status
quo mold and address this critical governance issue. The objective
of this piece is to explore and navigate the legal underpinnings
of the Central Bureau of Investigation, Serious Fraud
Investigation office (SFIO), Intelligence Bureau and the Research
and Analysis Wing. (R&AW). The Central Bureau of Investigation
was created by an executive order on the April 1, 1963.
However, it was really born 22 years earlier 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),
in exercise of the Emergency powers conferred upon the then
Viceroy and Governor General of India Lord Linlithgow by
the India and Burma (Emergency Provisions Act) 1940
passed on June 27, 1940 by the British Parliament.
The Emergency Provisions Act interminably extended
the validity of ordinances promulgated by the Governor
General invoking the powers available to him under
Section 72 of the Ninth Schedule of the Government of
India Act 1935 which otherwise mandated that the
maximum validity of an ordinance could be six months .
With the Second World War coming to a close in 1945 the said
act stood repealed by His Majesty's Order in Council, namely
The India and Burma (Termination of Emergency) Order
1946, which declared the end of emergency with effect from
April 1, 1946. The emergency had occasioned the passage
of the Emergency Provisions Act in the first instance.
Fearing that all acts done under the Emergency Powers Act
would either lapse with effect from October 1, 1946 or get
extinguished as the validity period of an ordinance stood
revived to six months as envisaged in Section 72 of the
Ninth Schedule of the Government of India Act 1935 with
effect from April 1 1946, the government of the day promulgated
another ordinance on September 25, 1946 called the Delhi
Special Police Establishment (War) Department ordinance.
On October 1, 1946 in exercise of powers conferred by the said
ordinance dated September 25, 1946 the then Federal
government mutated the Special Police Establishment
(War Department) into the Delhi Special Police Establishment.
However this apprehension was later proved to be unfounded
as the Supreme Court of India in an another matter challenging
the legality and life of ordinances promulgated under the
Emergency powers Act 1940 held that while the Act
itself may have been repealed by the termination order
of 1946; the ordinances promulgated under it are valid into
perpetuity unless an ordinance itself had a self limiting time
frame (Hans Raj Moolji vs State of Bombay AIR 1957 SC 497).
The ordinance of September 25, 1946 was also subsequently
repealed by the Delhi Special Police Establishment Act that
came into force in November 1946, even though the 1946 ordinance
was to remain valid till March 1947. In the discharge of its legal
duties the CBI still functions as the Delhi Special Police
Establishment ostensibly constituted before independence,
on October 1, 1946. It is not quite clear
as to whether a subsequent notification re-constituting the Delhi
Special Police Establishment under the said act was ever issued
as the 1946 ordinance only midwived and morphed the Special
Police Establishment (War Department) into the Delhi Special
Police Establishment. Jurists however may propound that the
earlier transition is saved by the Provisions of the General Clauses
Act 1897, which is also open to dispute as to whether constitution
of a force is a substantive right saved by the provisions of the said Act.
Before you get lost in a legal jungle let me demystify the legalese.
The CBI has no independent standing in law. Simply put it is a
piece of legal fiction whose underpinnings in law are tenuous to say
the least It still draws all its powers of investigation and arrest from
the antiquated 1946 act which essentially being a local act provides
that each state through an executive order under Section 6 of the said
Act has to give the Special Police Establishment, what is colloquially
called the CBI, permission to investigate particular offences in that
state. In other words the CBI can investigate a case only if
requested by the concerned state government or directed by the
High Court or Supreme Court, except if it is a matter that pertains
to the Central government. At various points of time 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 card carrying
members of the much maligned political class. The Supreme Court
finally put paid to this practice in Kazi Lhendup Dorji v CBI 1994
Supp (2) SCC 116 by holding that state governments cannot
revoke consent given to the Special Police Establishment to in
vestigate and prosecute any matter with retrospective effect.
It is also questionable whether the constitutional scheme
provides for a Central police force. Entry I and 2 of the state
list seventh schedule makes police a state subject. The moot
point is that when legislative powers are available to the Central
government in terms of Entr _ y 8 of list 1 of the seventh schedule
that speaks of a Central Bureau of intelligence and investigation _
why does the government not enact a straight and simple law
empowering the CBI rather than let it function on the basis of a
dubious piece of legislation whose basic legality is open to question.
Incidentally, the government has recently constituted the National
Investigation Agency drawing upon these very legislative powers
mentioned herein above.Similar is the case of the Serious Fraud
Investigation office (SFIO) that has investigated 36 cases and has
filed 574 complaints for violation of various provisions of the
Companies act and the Indian Penal Code from May 2004 to July
2009. The SFIO again draws its powers from the investigative
provisions of the Companies Act but has no independent locus
or standing under the Companies Act. That is the reason why it had
to approach the courts to gain accesses to the Satyam scam accused,
something that should have been its inherent right given the nature
of the Satyam scam. The irony is that the SFIO, despite existing and
operating, does not even find mention in the Companies Bill 2009
introduced in Parliament on the August 3, 2009, what to speak
of embedding it in a proper legal framework.The case of our
intelligence agencies is even more interesting. In response
to a question pertaining to the legislative act or legal architecture
from which the Intelligence Bureau draws its legal/statutory
authority or right to function the government came up with a
very quixotic response. “The Intelligence Bureau figures in Schedule
7 of the Constitution under the Union list”. When pressed that
possibly this may not be an appropriate answer the governmen
t emphatically reiterated “The intelligence Bureau finds mention
at S.No.8 in the th Union list under the 7 Schedule of the Constitution
of India”Even an aspiring student of law knows that 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 enunciated in the government's response
merely gives it the legislative power to enact a statute to bring a
Central Bureau of Intelligence to be called by whatever name
(IB or BI) into existence. A mere mention of a subject in the
laundry list of legislative powers neither gives an organization life
or legitimacy. Unfortunately no such law has ever been enacted by
successive governments since the commencement of the Constitution.
Similar is the case of India's external intelligence service, the
Research and Analysis Wing (R&AW). In response to a question about
the law/statute which gives R&AW the powers/authority to discharge
itsfunctions/mandate efficaciously and efficiently, the government did
not try and hide behind any obfuscation but candidly admitted,
“There is no separate/ specific statute governing the functions/mandate
of the R&AW”. However, in 2000 following the report of the task force
on Intelligence Apparatus which examined the entire intelligence system
in the country, 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 various other countries of
the world. The Federal Bureau of Investigation of the US government
draws its powers from Title 28 of the United States code.
Title 28 (Judiciary and Judicial Procedure) is that portion of
the United States Code (federal statutory law) that governs
the federal judicial system. The Serious Fraud office of the
United Kingdom draws its legal authority and powers from
the Criminal Justice Act 1987 (as amended).The impetus for
introducing the Criminal Justice Act 1987 and creating the
SFO was the Fraud Trials Committee Report, popularly known
as 'the Roskill Report' published in 1986. Its main recommendation
was the setting up of a new unified organization responsible
for the detection, investigation and prosecution of serious
fraud cases. Similarly the Central Intelligence Agency (CIA)
of the United States, created by the National Security Act of
1947, was specifically empowered by the Central Intelligence
Agency Act of 1949 (CIA Act) to carry out the duties assigned
to it by the 1947 Act. MI5, the domestic intelligence service of the
United Kingdom, draws it's legal authority from The Security
Services Act 1989 and its sister organization, the James Bond
Fame, MI6 or the SIS, from the 1994 Intelligence Services Act
, thereby subjecting it's activities to the scrutiny of the
British Parliament's Intelligence and Security Committee.
repealed by the Delhi Special Police Establishment Act that
came into force in November 1946, even though the 1946 ordinance
was to remain valid till March 1947. In the discharge of its legal
duties the CBI still functions as the Delhi Special Police
Establishment ostensibly constituted before independence,
on October 1, 1946. It is not quite clear
as to whether a subsequent notification re-constituting the Delhi
Special Police Establishment under the said act was ever issued
as the 1946 ordinance only midwived and morphed the Special
Police Establishment (War Department) into the Delhi Special
Police Establishment. Jurists however may propound that the
earlier transition is saved by the Provisions of the General Clauses
Act 1897, which is also open to dispute as to whether constitution
of a force is a substantive right saved by the provisions of the said Act.
Before you get lost in a legal jungle let me demystify the legalese.
The CBI has no independent standing in law. Simply put it is a
piece of legal fiction whose underpinnings in law are tenuous to say
the least It still draws all its powers of investigation and arrest from
the antiquated 1946 act which essentially being a local act provides
that each state through an executive order under Section 6 of the said
Act has to give the Special Police Establishment, what is colloquially
called the CBI, permission to investigate particular offences in that
state. In other words the CBI can investigate a case only if
requested by the concerned state government or directed by the
High Court or Supreme Court, except if it is a matter that pertains
to the Central government. At various points of time 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 card carrying
members of the much maligned political class. The Supreme Court
finally put paid to this practice in Kazi Lhendup Dorji v CBI 1994
Supp (2) SCC 116 by holding that state governments cannot
revoke consent given to the Special Police Establishment to in
vestigate and prosecute any matter with retrospective effect.
It is also questionable whether the constitutional scheme
provides for a Central police force. Entry I and 2 of the state
list seventh schedule makes police a state subject. The moot
point is that when legislative powers are available to the Central
government in terms of Entr _ y 8 of list 1 of the seventh schedule
that speaks of a Central Bureau of intelligence and investigation _
why does the government not enact a straight and simple law
empowering the CBI rather than let it function on the basis of a
dubious piece of legislation whose basic legality is open to question.
Incidentally, the government has recently constituted the National
Investigation Agency drawing upon these very legislative powers
mentioned herein above.Similar is the case of the Serious Fraud
Investigation office (SFIO) that has investigated 36 cases and has
filed 574 complaints for violation of various provisions of the
Companies act and the Indian Penal Code from May 2004 to July
2009. The SFIO again draws its powers from the investigative
provisions of the Companies Act but has no independent locus
or standing under the Companies Act. That is the reason why it had
to approach the courts to gain accesses to the Satyam scam accused,
something that should have been its inherent right given the nature
of the Satyam scam. The irony is that the SFIO, despite existing and
operating, does not even find mention in the Companies Bill 2009
introduced in Parliament on the August 3, 2009, what to speak
of embedding it in a proper legal framework.The case of our
intelligence agencies is even more interesting. In response
to a question pertaining to the legislative act or legal architecture
from which the Intelligence Bureau draws its legal/statutory
authority or right to function the government came up with a
very quixotic response. “The Intelligence Bureau figures in Schedule
7 of the Constitution under the Union list”. When pressed that
possibly this may not be an appropriate answer the governmen
t emphatically reiterated “The intelligence Bureau finds mention
at S.No.8 in the th Union list under the 7 Schedule of the Constitution
of India”Even an aspiring student of law knows that 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 enunciated in the government's response
merely gives it the legislative power to enact a statute to bring a
Central Bureau of Intelligence to be called by whatever name
(IB or BI) into existence. A mere mention of a subject in the
laundry list of legislative powers neither gives an organization life
or legitimacy. Unfortunately no such law has ever been enacted by
successive governments since the commencement of the Constitution.
Similar is the case of India's external intelligence service, the
Research and Analysis Wing (R&AW). In response to a question about
the law/statute which gives R&AW the powers/authority to discharge
itsfunctions/mandate efficaciously and efficiently, the government did
not try and hide behind any obfuscation but candidly admitted,
“There is no separate/ specific statute governing the functions/mandate
of the R&AW”. However, in 2000 following the report of the task force
on Intelligence Apparatus which examined the entire intelligence system
in the country, 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 various other countries of
the world. The Federal Bureau of Investigation of the US government
draws its powers from Title 28 of the United States code.
Title 28 (Judiciary and Judicial Procedure) is that portion of
the United States Code (federal statutory law) that governs
the federal judicial system. The Serious Fraud office of the
United Kingdom draws its legal authority and powers from
the Criminal Justice Act 1987 (as amended).The impetus for
introducing the Criminal Justice Act 1987 and creating the
SFO was the Fraud Trials Committee Report, popularly known
as 'the Roskill Report' published in 1986. Its main recommendation
was the setting up of a new unified organization responsible
for the detection, investigation and prosecution of serious
fraud cases. Similarly the Central Intelligence Agency (CIA)
of the United States, created by the National Security Act of
1947, was specifically empowered by the Central Intelligence
Agency Act of 1949 (CIA Act) to carry out the duties assigned
to it by the 1947 Act. MI5, the domestic intelligence service of the
United Kingdom, draws it's legal authority from The Security
Services Act 1989 and its sister organization, the James Bond
Fame, MI6 or the SIS, from the 1994 Intelligence Services Act
, thereby subjecting it's activities to the scrutiny of the
British Parliament's Intelligence and Security Committee.
The Foreign Intelligence Service of Russia draws
its legal basis from the Law on Foreign Intelligence Organs
1996. The German Federal Intelligence Service, Bundesnachrichtendienst
(BND), draws its legal sustenance from the Federal Intelligence Service
Law 1990. Its activities are supervised by the Parliamentary
Control Commission (PKK) for intelligence services which in turn
is empowered by the Law over the Parliamentary Control of
Intelligence Activities 1978. Even in Japan the Public Security
Intelligence Agency, that post its reorganization in 1996 started
focusing upon foreign intelligence collection, is empowered
by the Subversive Activities Prevention Law that came into
force on July 21, 1952. PSIA is credited with collecting information
on Russia, China and North Korea through their HUMINT networks.
Both from the national security and the civil liberties point of view,
it is inappropriate to allow law enforcement and intelligence
services to function without a sound and well defined legal basis.
There can be no case that an equivocal or indeterminate legal
mandate gives greater operational flexibility. In fact in an information
and litigious age it has both, an inhibiting and. even worse, a
debilitating impact.It makes one shudder to think that when
the spectre of multiple security challenges ranging from Jehadi
terrorism, economic espionage to Naxalism threaten the
sovereignty of India, the sentinels of the nation,i.e. its principal
law enforcement and investigative agencies, are bereft of
the armor of legal sanction and protection. It is equally
horrifying to even imagine that organizations that wield
enormous powers of depriving people of both life and liberty
do it in accordance with legality whose underpinnings are at best
tentative if not completely non existent, thereby undermining
Article 21 which lies at the heart of the Indian Constitution.
It is imperative in a democracy that every organization of
the government must draw its powers, privileges and authority
from clearly defined legal statutes. The legal basis must not be
fuzzy but sharply defined to obviate any obfuscation about
both the intent of the legislature and the mandate it seeks to
bestow. This ispo-facto addresses the issue of oversight
and provides the structure of checks and balances that is
critical for the healthy functioning of any constitutional
system.Maybe competing priorities edged out this critical
issue from the 100-day radar of UPA II, but to put our
democratic ethos on an even sounder footing it is
imperative to provide our central law enforcement and
intelligence structures with proper legal shields.
its legal basis from the Law on Foreign Intelligence Organs
1996. The German Federal Intelligence Service, Bundesnachrichtendienst
(BND), draws its legal sustenance from the Federal Intelligence Service
Law 1990. Its activities are supervised by the Parliamentary
Control Commission (PKK) for intelligence services which in turn
is empowered by the Law over the Parliamentary Control of
Intelligence Activities 1978. Even in Japan the Public Security
Intelligence Agency, that post its reorganization in 1996 started
focusing upon foreign intelligence collection, is empowered
by the Subversive Activities Prevention Law that came into
force on July 21, 1952. PSIA is credited with collecting information
on Russia, China and North Korea through their HUMINT networks.
Both from the national security and the civil liberties point of view,
it is inappropriate to allow law enforcement and intelligence
services to function without a sound and well defined legal basis.
There can be no case that an equivocal or indeterminate legal
mandate gives greater operational flexibility. In fact in an information
and litigious age it has both, an inhibiting and. even worse, a
debilitating impact.It makes one shudder to think that when
the spectre of multiple security challenges ranging from Jehadi
terrorism, economic espionage to Naxalism threaten the
sovereignty of India, the sentinels of the nation,i.e. its principal
law enforcement and investigative agencies, are bereft of
the armor of legal sanction and protection. It is equally
horrifying to even imagine that organizations that wield
enormous powers of depriving people of both life and liberty
do it in accordance with legality whose underpinnings are at best
tentative if not completely non existent, thereby undermining
Article 21 which lies at the heart of the Indian Constitution.
It is imperative in a democracy that every organization of
the government must draw its powers, privileges and authority
from clearly defined legal statutes. The legal basis must not be
fuzzy but sharply defined to obviate any obfuscation about
both the intent of the legislature and the mandate it seeks to
bestow. This ispo-facto addresses the issue of oversight
and provides the structure of checks and balances that is
critical for the healthy functioning of any constitutional
system.Maybe competing priorities edged out this critical
issue from the 100-day radar of UPA II, but to put our
democratic ethos on an even sounder footing it is
imperative to provide our central law enforcement and
intelligence structures with proper legal shields.
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