The Power of Investigation: Center using CBI for State Investigation and its Constitutionality

The Central Bureau of Investigation (CBI) keeps stirring debates throughout the country every now and then[1]. The agency never seems to be out of heated exchanges between the Central Government and the State Governments, often depicted as a scapegoat between the two. In view of the constant tug of war, there seems no solution on the horizon even when the apex court of the country has itself taken up the review of the agency several times passing various important judgements[2]. This article closely examines the constitutionality of the CBI and deduces the suggestions to further the strengthening and the functioning of the agency.

The Guwahati High Court in its judgement in Sh. Narendra Kumar v. Union of India[3] in 2013, noted that the CBI was established by a Central Government Resolution in 1963 (No. 4/31/61-T, dated 01-04-1963)[4], and has worked under the Delhi Special Police Establishment Act, 1946[5]. The judgement held that the establishment of the CBI in the above manner was unconstitutional and was not set up by or under the DPSE Act, 1946. The judgement caused great stirs in the legal as well as the political corridors which was followed by a stay order by the Supreme Court[6].

There are several constitutional challenges to the establishment and working of the CBI. As per the current constitutional scheme, the parliament is not empowered to constitute a police force attributable to Entry 8[7] or Entry 80[8] of List 1[9]. The term ‘investigation’ in entry 8 i.e. ‘Central Bureau of Intelligence and Investigation’ is expandable to as far as a form of ‘inquiry’ and collect ‘intelligence’ and thus cannot be interpreted in the same spirit as mentioned in section 2(h)[10] of the Code of Criminal Procedure, 1973. This is supported by the constitutional assembly debates as well which mentions that ‘investigation into a crime is exclusive to a police officer; police being a state subject the Union is not empowered to legislate upon.’[11]

The CBI is currently empowered to investigate cases after the state in question has given its consent to the investigation[12]. However, the same has resulted in a lot of friction between the Centre and the State Governments over the years. Several instances have highlighted the constant tussle where the opposition lead parties in the state have denied the CBI to investigate, over political considerations. The Supreme Court has gone as far as to remark CBI as “a caged parrot”[13] and “it’s master’s voice”[14].In the past, states like Andhra Pradesh and West Bengalwithdrew their ‘general’ consent to CBI investigations.[15]

Efforts have been undertaken in the past to remedy the fallacies present in the agency. Five decades ago, the then Union Minister Y.B. Chavan had told the parliament that a central law was being prepared, though the law never saw the light of the day. In 1978, former Union Home Secretary L.P. Singh chaired a committee that made comprehensive recommendations[16] to bring in reforms but the report was consigned to the archives. The Estimates Committee of the parliament (1991-1992) further added to the suggestions. In the case of Vineet Narain and vs Union of India[17], the Supreme court also gave directions to the Government to ensure the autonomy of the organisation.

Prima facie, there are key problems to the establishment and working of the CBI. Firstly, the agency lacks a firm legislative base to back its legal status and empower its functioning, which if existed could serve as solutions to other contentious issues as well. Furthermore, the power, procedures and enforcement mechanisms followed by the agency and the legal framework is further spread across several other statutes like the Central Vigilance Commission and Lokpal Acts. This brings ambiguity to a lot of allied issues like which cases can be transferred to the CBI and which cases should the CBI prioritise.

To ease the functioning of the CBI in relation to the ‘consent’ from the states, the same should be subject to statutorily backing. ‘Federal offences’ should be included in the Union list so as to enable the Central government to legislate upon the same and allow the CBI to investigate such offences. The CBI and the State Police should both be allowed to exercise jurisdiction on such offences with CBI exercising precedence over the police. This would negate the requirement of state ‘consent’ and should also include an additional provision allowing the CBI to exercise discretion to intervene or not in any particular case. Furthermore, financial autonomy should be granted to the agency to free it from any ‘external influence’.

Long have the reforms being warranted. The continuous turmoil that accompanies the agency needs to resolve. India’s premier investigation agency should function as a model for other allied agencies. The agency needs to work both as an Anti-corruption unit and a National Crime Bureau so as to investigate cases of utmost importance. The call for these essential reforms is much more than just improving the image and credibility of the agency, but is more eccentric for upholding the core values of refurbishing Rule of Law in the nation. This is the need of the hour and rightly deserves the mandate for its implementation!

In happenstance, the questions of law shifted from the constitutionality to the powers of CBI recently. The Honorable Supreme Court, not only upheld the power of CBI investigation but also upheld the issuance of such orders by the centre, even if the state has dissented to the same. One of the important conundrums was answered brilliantly by the Supreme Court of India. In the Sushant Singh Rajput case,[18] after the tussle between the Maharashtra government and the Indian government, the Indian Government sought a CBI enquiry for digging deep into the mysterious event surrounding the death of the late actor. Maharashtra government however refused and believed otherwise.

The Supreme Court in its judgement concerning this case according to the CBI probe, and validated it against the wall of the Maharashtra government. This led to the development of new dynamics of the CBI probe in issues pertaining the Centre-state Dispute.

Be as it may, this would help us in substantiating the reasoning of how to dispute could be tackled with ease and composure. Whenever such cases arise, the guardian of judicial process, the Supreme Court, should adjudicate the case on merits like in the present case. This would lead to the end of the dispute, and would pave way for the better functionality of the CBI.

What also would be interesting to notice is the fact that if the Supreme Court adjudicates in such matters, The Centre may not misuse the power vested in them for their political gains. The court has paved the way for better functioning, and how the CBI should investigate cases that involve different grounds from the Centre-state.

The court interestingly noted that "the contention between the two state governments on the question of which among the two is more competent to investigate the case becomes more and more apparent". J. Chauhan in the case of Rajendran v. SP held that only in rare and exceptional circumstances can the Investigation be transferred to CBI, to do justice and instil faith in the hearts of people. Although steps taken by Mumbai police under section 174 crpc in limited inquiry, might not be faulty, the court believes that to ensure the discovery to complete truth, the investigation should be handled by an independent agency, free of the influence of either government. Thus the investigation by CBI is lawful and in case a fresh suit is filed on the same issue, the same would also be investigated by the CBI. This order would enable CBI to avoid requiring consent from the Maharashtra govt. under section 6 of the DSPE act.[19]

Thus, this verdict also serves a perenial development in the dynamism of criminal jurisprudence of the country, and moreover validates the urgency and importance of CBI in the cases of rare importance in order for complete justice. Therefore providing a long asked framework that could end the centre-state dispute vis-à-vis investigation power.

Sanjay Kumar Negi
Student of NUJS, Kolkata


[1]CBI dispute: All you need toknow, THE HINDU (Oct. 24, 2018, 11:17 AM,),

[2]Vineet Narain v. Union of IndiaA.I.R. 1998 S.C. 889 (India).

[3]Sh. Navendra Kumarv. Union of IndiaW.A. No.119 of 2008 in W.P.(C) No. 6877 of 2005.

[4]Annezure 1-A No. 4/31/61-T, Ministry of Home Affairs (Apr. 1, 1963,),%20dated%201-4-1963.pdf.

[5]The Delhi Special Police Establishment Act, 1946 No. 25, Acts of Parliament, 1946 (India).

[6]Supreme Court stays the Gauhati High court order on CBI, Live Law (Nov 9, 2013, 04.55 PM,)

[7]INDIA CONST. art. 246.

[8]INDIA CONST. art. 246.

[9]INDIA CONST. art. 246.

[10]The Code of Criminal Procedure, 1973.

[11]Constituent Assembly Debates, Vol. IX, 29th August, 1949.

[12]Delhi Special Police Establishment Act 1946, Sec. 6.

[13]Satarupa Bhattacharya & Ross Colvin, A "caged parrot" - Supreme Court describes CBI, Reuters (May 10, 2013, 08:48 AM)

[14]CBI a caged parrot speaking in its master's voice: SC, THE HINDU (May 09, 2013, 06:01 AM)

[15]K Venkateshwarlu, A.P., West Bengal withdraw ‘general consent’ for CBI investigations, THE HINDU (Nov. 17, 2018, 01:07 AM)

[16]Shri Prakash Singh, Trifling With CBI,

[17]Vineet Narain v. Union of IndiaA.I.R. 1998 S.C. 889 (India).

[18] Rhea Chakraborty v. State of Bihar and ors. T.P. (Cr.) 225 of 2020.

[19]Id. at ¶ 35, 36.

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