Legitimacy In Limbo: Judicial Endorsement And Legislative Silence On CBI

While police investigations in politically sensitive cases are shrouded in skepticism, in such cases, a clarion call for a CBI investigation emerges from all the relevant stakeholders in unison. Considering the confidence that the Central Bureau of Investigation commands amongst the people of this country, despite certain aberrations, it is extremely troubling that the premiere investigation agency of the country with the powers of broad amplitude and overarching jurisdiction is dependent on a stay order for sustenance. In 2013, the Guwahati High Court declared CBI to be illegal on various counts, including lack of jurisdiction, powers, and statutory basis. This judgment was immediately stayed by the Supreme Court, and the matter was never taken up thereafter. On multiple occasions, Indian courts have not only acted oblivious to the aforementioned proceedings, but they have also judicially endorsed the agency by ordering CBI investigations in sensitive cases. CBI continues to lead the investigative front of the country while the fundamental question of legality remains in abeyance. Judicial procrastination is not unheard of in India; Indian courts have developed a tendency of shying away from sensitive cases that require a sense of promptitude. This case becomes even more distressing, considering the fact that no political party has pursued this matter before the Supreme Court.

Legislative origins of the DSPE and CBI

The Delhi Special Police Establishment Act was enacted in 1946^[1] to empower the special force, under the superintendence of the central government in the Union Territory of Delhi. The jurisdiction and powers under this act are extendable to other states, subject to their consent. Pertinently, no agency akin to the Central Bureau of Investigation found its mention in the act. Subsequently, vide an executive order dated 1st April 1963^[2], the Ministry of Home Affairs created the Central Bureau of Investigation to deal with a class of cases handled by the Delhi Special Police Establishment at that time. The executive order was silent on the powers of the agency, nor did it categorically transfer the jurisdiction conferred under the DSPE Act to the CBI, thereby creating a legislative limbo that requires a final resolution. Subsequent amendments to the DSPE act have presumed CBI to be a body formed under the act and have laid down the procedure for the appointment of officeholders in CBI. A plethora of judgments have ordered CBI investigations in matters of societal and political relevance. The Supreme Court in the case of State of West Bengal v. Union of India^[3] presumed that the DSPE act forms the statutory basis of CBI without referring to or considering the Guwahati High Court judgement. The High Court order is a blot on the otherwise accepted jurisdiction of the CBI.

The Forgotten Judgment: Guwahati High Court on CBI

In the 2013 judgment of the Guwahati High Court in Navendra Kumar v. Union of India^[4]. The Court held that the Central Bureau of Investigation (CBI), constituted merely by a 1963 executive resolution, lacked statutory basis. Since “police” is a State subject under Entry 2 of List II, the Union could not, by executive fiat, create a force with powers of search, seizure, arrest, and prosecution. At best, the Delhi Special Police Establishment Act, 1946 (DSPE Act) empowered the Union within limited confines, and even there, the CBI's existence was on shaky constitutional ground. The High Court pointed to Constituent Assembly debates where Dr. B.R. Ambedkar clarified that “investigation” in Entry 8 of The Union List meant “inquiry” into general matters of intelligence, not criminal investigation akin to police powers. By arrogating these powers, the CBI was exercising coercive authority without legislative sanction, violating Article 21's guarantee that liberty can be curtailed only by “procedure established by law.”

The implications of this judgment were seismic. If upheld, it would render thousands of prosecutions, past and pending, legally questionable. The Union rushed to the Supreme Court, which stayed the judgment on 9th November 2013. Twelve years later, the matter remains undecided. The country's premier investigative agency continues to function in constitutional limbo, not because the legal question is too complex but because the Court has chosen to defer it indefinitely.

Dates in Installments, Justice in Abeyance

The Guwahati judgment is not an outlier in the annals of judicial procrastination. As documented extensively, Indian courts have normalized endless adjournments. From property disputes lingering for 60 years to undertrials rotting for decades without charge, delay has become the rule; justice. Such delay is not benign lethargy; it actively rewards impunity. As Shrilal Shukla remarked, the doctrine of rebirth was invented in civil courts so that litigants might die with the hope that justice would arrive in their next life.^[5] Adjournments, the “slow poison” of litigation, ought to be abolished or tightly restricted. The Amendments introduced in Code of Civil Procedure, during the 1990s, tried to curb them, but Supreme Court in Salem Bar Association-II, virtually nullified it^[6]. Yet in State v. Kalyan Singh^[7], the Supreme Court itself mandated day-to-day hearings without adjournments, proving such measures are viable. Justice by installments corrodes democracy. Both Parliament and the judiciary must shoulder responsibility, one by legislating clear rules against delay, the other by faithfully applying them. Without structural reform, truth will remain invisible and justice forever adjourned.

Towards a statutory framework: A way forward

The constitutional questions surrounding the CBI cannot be brushed aside. If “police” is a state subject, how can the Union, through executive order, create a parallel police force that operates nationwide? The DSPE Act, 1946, was a colonial statute meant for Delhi. It never mentioned the “CBI.” The 1963 resolution creating the Bureau was an administrative measure, not legislation. Article 21 requires that any deprivation of liberty must be backed by “law.” Law, as the Guwahati High Court rightly held, means enacted law, not executive fiat. The Union has argued that fifty years of practice have crystallized into legitimacy and that dismantling the CBI would destabilize the criminal justice system. But the longevity of illegality does not convert it into legality.

At this juncture, the question that emerges for consideration is whether mere longevity of the existence of an agency is sufficient to confer the status of lawful existence. An effective resolution on this issue is called for, not only on the judicial side but also on the legislative side. An investigative agency of this nature cannot continue to function on the basis of a stay order; therefore, it's high time that the parliament, in conjunction with the state governments, exercised its powers and enacted legislation that resolves the question of legality and defines the power of the CBI in a comprehensive way. This brings us to the second issue for consideration, that is, what will be the fate of investigations and prosecutions that have already been concluded across the years? A blanket declaration of illegality will unsettle a humongous number of cases that will in turn inundate the already overburdened courts. The courts have to be wary of such an eventuality and resolve this question through application of accepted judicial doctrines and principles. For instance, the doctrine of de facto judge and de facto court.

The doctrine of de facto judgment as propounded by the Supreme Court in the case of Gokaraju Rangaraju v. The state of AP^[8] says that if an appointment of a judge is found to be illegal, such illegality will not be automatically imposed on the acts of that judge whose appointment is declared defective at later stages. The orders passed by such a judge cannot be assailed in collateral proceedings if the same were discharged in a duty-bound manner. Application of this doctrine was extended to courts where a defect is found in the creation of such office itself, in the case of Ramaiah v. State of Karnataka^[9] by the Karnataka High Court. The rationale behind this judgement was drawn from American case laws and came to be known as the de facto court doctrine. It was held that the underlying philosophy behind both these doctrines is the same, that is, the duties discharged by a court/judge were under the color of law. In light of these doctrines, it is for the courts to decide whether the same rationale can be applied to investigations and prosecutions conducted by the Central Bureau of Investigation to confer finality.

Ensuring legitimacy and Accountability

In any democratic setup, investigative agencies like the Central Bureau of Investigation hold a special position wherein they are shouldered with the responsibility of dealing with crucial matters in a duty-bound fashion. Over the years, through several acclaimed and criticized investigations, CBI has carved its place in the criminal justice system. To sustain this confidence, it is a matter of utmost importance to find a judicial and a legislative solution to the pending crisis that has been swept under the carpet for over a decade. The ace investigative agency of a country like ours cannot strive and function only on a prolonged stay order without any statutory expression. Legislative will coupled with judicial action is warranted to put an end to this indefinite deferral.

Shashank Maheshwari is an Assistant Professor at Jindal Global Law School. Sankalp Guru is a student at Jindal Global Law School. Views Are Personal. 

1. Delhi Special Police Establishment Act 1946 ↑

2. Government of India, Ministry of Home Affairs, Resolution No. 4/31/61-T dated 1 April 1963 ↑

3. State of W.B. v. Union of India, (2024) 8 SCC 767 ↑

4. Navendra Kumar v. Union of India, 2013 SCC OnLine Gau 305 ↑

5. Shrilal Shukla, Rag Darbari (New Delhi: Rajkamal Paperbacks, 1991), Chapter 5, p. 31. ↑

6. Salem Bar Association-II v. Union of India, (2005) 6 SCC 344. ↑

7. State (through Central Bureau of Investigation v. Kalyan Singh and Others (2017) 7 SCC 444 ↑

8. Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132 ↑

9. Ramaiah v. State of Karnataka, 2003 SCC OnLine Kar 180 ↑