Stroke of the Pen, Law of the Land

The Gauhati High court  ruled  that the process through which the CBI was constituted  on 1st April 1963  was invalid since it was an  order  by the executive single-handedly  with the stroke of a pen. Is  the resolution laid down on fools day, fool proof? (The first of April, some do say  Is set apart for All Fool's Day) It is a arduous experience  for the premier investigating agency   for an alleged  unconstitutional exercise by the executive. The fate of horde of cases investigated by C.B.I. hangs in  balance.

The high court observed that a police force with powers to investigate crime cannot be constituted by merely issuing an executive order without the nod of the cabinet  and the president of  India.For that purpose, an act shall have to be passed by the legislature. The high court further maintained that C.B.I. was not an organ of the Delhi Special Police Establishment (DSPE) Act, 1946, and so cannot be treated as a police force formed under the law - “The name of the establishment, created by the DSPE Act, 1946, is Delhi Special Police Establishment and not CBI. If a statute gives a specific name to an organization, it is not permissible to confer a new name on the organization by any executive instructions. The judgment has created ripples. Whether  the judgment  abrogate the executive power. I make no attempt to explicate or assail  the judgment of the Gauhati high court .I simply take over the significance of the forms of argument commonly shared by Advocates fraternity.

In the year 1941  the Special Police Establishment was  tasked with investigation of bribery and corruption in transaction with war and supply dept of india during world war 11. After  the end of the war the British government felt the need of an agency to investigate bribery and corruption of Government servants.In 1946 the Delhi Special police establishment act was enacted. DSPE is a pre independence Act ostensibly constituted before  independence on October 1, 1946. Article 372 of Constitution provides for the continuance of the all such laws which were in existence immediately before the commencement of the Constitution and will be enforceable unless altered, amended or repealed by the legislature.This upholds the constitutionality of DSPE and furthermore also legitimizes the CBI which undoubtedly derives its authority from the said Act.  It was renamed  the Central Bureau of Investigation on 1st  April 1963. C.B.I. is organized, trained and equipped primarily for the performance of police functions.

(I.B.) Intelligence Bureau,(C.B.I.) Central Bureau of Investigation,Bureau of Police Research & Development. (BPRD) National Crime Records Bureau(N.C.R.B.)  are collectively called central police organizations. Intrinsically D.S.P.E Act is capable of producing various shades.The meaning attached to the Act must be arrived at by reference to the scheme of the act . The role of C.B.I is to  carry out the policies and purposes of this Act viz  to  undertake investigations of crimes and other offenses.  Hence the literal interpretation has to be avoided and it has to be deemed that the word Delhi Special police establishment is only illustrative and  it implies special police unit viz C.B.I. which is necessary  for  the security of the nation.

The question of the genesis of the CBI has been settled.” in Vineet Narain case  reported in  AIR 1998 SC 889. The apex court ruled :―The Delhi Special Police Establishment Act, 1946 is an Act to make provision for the Constitution of a special police force in Delhi for the investigation of certain offences in the Union Territories for the superintendence and administration of the said force and for the extension to other areas of the said force in regard to the  investigation of the said offences.

Let me take a cue from Criminal procedure  Code .Crpc defines ‘investigation in  Section 2 (h) of the Code, which  is material to the context . It spells out “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person. The phrase "any police officer" incorporated  in the code  is well-knit  by rules of interpretation, such words of wide import should be  read as other persons falling in the category of police officers. Ejusdem generis can also be pressed into service. List of examples of law enforcement personnel  viz  local or state police, Central Bureau of  Investigation  Special Investigating Team ,Anti  corruption Bureau and members of central armed police organization   are included within the scope of the categorical term "police officer. The phrase "police officer" can embrace persons beyond those that the statute expressly lists.

The dictionary definition for "police officer" is "a member of a police force."Police force," in turn, is defined as "a professional body of trained officers  entrusted by government with the maintenance of public peace and order, the enforcement of laws, and the prevention and detection of crime.The CBI is empowered to investigate an offence, the process of investigation, including its initiation, is governed by the Criminal procedure code. Therefore, CBI is a police force exercising the powers of investigation of the police when dealing with a criminal case. It acts as a duly empowered force and enjoys full police powers as ordained  by CrPC while probing offences entrusted to it.The accepted principle of law is that  when Crpc empowers  “any police officer “to do something  non mention of  special source  or power  would not vitiate their  action.

When Crpc  gives ample powers to investigate why should the center implore the state government  to give consent to investigate. There is no need for a constitutional amendment to provide for extension of the CBI to any State. I guess that it would not be incompatible to quote from Lord Dennings noteworthy ruling -

“I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected, and the honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted and, if need be, bring the prosecution or see that it is brought, but in all these things he is not the servant of anyone, save of the law itself. No Minister of the crown can tell him that he must, or must not, keep observation on this place or that, or that he must, or must not, prosecute this man or that man. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.”

INTERPOL (International police Organization) is plagued for many years by accusations of illegitimacy because it was not founded on the basis of an international treaty and its membership consist of police agencies, not nations per se. So one could make the logical argument that Interpol is not an international organization. However, both the United Nations and the United States have taken the position that Interpol qualifies as an international organization. On  December 17, 2009,the White House released an Executive Order “Amending President Reagan’s 1983 Executive Order and removed the limitations on INTERPOL. The executive order granted  INTERPOL a new level of full diplomatic immunity afforded to foreign embassies and select other “International Organizations” as set forth in the United States International Organizations Immunities Act of 1945. INTERPOL is now free to operate on American soil with zero accountability .It  has the full authority to conduct investigations and carry other law enforcement activities on U.S. soil beyond the reach of its own top law enforcement arm  the FBI, and is immune from Freedom Of Information Act

A good government cannot be run by strictly following the rules entirely. with the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations calculated to promote public interest. It is the duty of the executive branch of the Government to make such laws and regulations as will effectually conserve peace and good order and protect the lives and property of the citizens of the State. That discretionary power is exercised by the Ministry as Chief Executive "when they  deem such action necessary for the peace and domestic tranquility of the nation. Any delay and hindrance tend to jeopardize public interests and the safety of the whole society

In all Indian states the Special InvestigationTeam comprising personnel from different units, who have shown professional excellence in the investigation of crimes, had been formed by Executive Directive to crack down crimes. Ministry  of Home affairs  assume  office after taking  oath of office in substance that he will support the constitution and fearlessly enforce the law as to all persons without fear or favor . He is endowed to promulgate rules and regulations to implement the provision and intent of  statute. This is effected by their promulgation of what are known as resolutions . When law confers  power upon minister or other  authority to be used in discretion, it is obvious that the discretion ought to be that of  the designated authority. Discretion is never unfettered when it is reasonable exercised in public interest and in conformity to the objective. Whether the discretion is exercised  prudently or imprudently, the authority’s word is the law and the remedy is to be political only. Ministry of Home have the legal right to promulgate the circular letter in question and to enforce its provisions. These resolutions have the force and effect of law. Article 13 (3) (a) of the Indian constitution  defines Law  -Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India has the force of law

Therefore my humble opinion is the circular dated 1st  April 1963  in question, being in the nature of an executive order made for the good of the society and to promote the enforcement of the law, and it being a reasonable the resolution should be underpinned.

K.SURESH BABU

ADVOCATE

9, RAJA COLONY,SECOND MAIN ROAD,COLLECTORS OFFICE ROAD,

TRICHY-620001

Email: lawyersureshbabu@gmail.com