CBI is facing a crisis of credibility
is not making this observation in an academic manner.
In the above context, the decision taken by the two state governments to debar CBI from carte blanche investigations makes eminent sense and is legally sound. The statute that governs the establishment and operations for CBI is the Delhi Special Police Establishments Act 1946. Since law and order is a state subject, section 6 of the law requires CBI to seek state consent before the exercise of its powers and jurisdiction. Additionally, the Supreme Court and High Courts have inherent powers to direct such investigations.
The central government cannot, as a matter of right, demand this consent. That it feels it is entitled to this consent without check or discretion, raises unsettling questions with regard to its intentions and overreach.
To further demonstrate this government’s zeal in extending CBI’S control without check, we may recall that in January, CBI approached the Supreme Court (interestingly in an appeal against Congress leader Virbhadra Singh) and used that opportunity to ask for “clarifications” on this restraint contained in section 6. They contended that it would affect its power to investigate. The matter is currently subjudice before the Supreme Court.
This permission, currently in operation in 10 states, was overgenerous to begin with and implied an abdication of the sovereignty of states with regard to criminal investigations of a certain class. Whether other states will follow suit remains to be seen. A licence, howsoever generous, is always revocable, and these two states can decide whether to entrust to CBI on a case by case basis.
Those who claim that this is business as usual are deluding themselves about the sheer and unprecedented extent of manipulation prevalent. In 2012, when the Bhatta Parsaul protests against the Yamuna Expressway took place, there was a demand for a CBI enquiry. The UPA government at the Centre did not as a matter of right or entitlement instruct CBI to investigate or compel the then BSP government to grant consent. In fact, the High Court at Allahabad turned down petitions asking for a CBI inquiry. The Congress held massive protests but did not use CBI to further its political agenda.
The Supreme Court has drawn back the curtains that rendered opaque the functioning of this institution from the public. The late great Justice Louis Brandeis of the US Supreme Court is cited often for his remark that sunlight is the best disinfectant. The BJP government, which seems most comfortable carrying out coups at the CBI office at 2 AM, under the cover of darkness, will likely disagree.
Abhishek Singhvi is a Member of Parliament, senior advocate, Supreme Court and national spokesperson, Congress. Muhammad Khan is advocate, Supreme Court The views expressed are personal