Introduction
On a reading of the various provisions of the DSPE Act, 1946, the executive powers, as endowed by the DSPE Act, 1946, can be pointed as follows:
Section 2:- Central Government may constitute special police force called DSPE for Union Territory of Delhi.
Section 3:- Central Government may notify the offences, which may be investigated by the DSPE
Section 5:- Central Government may notify the areas, where DSPE can exercise jurisdiction meaning thereby that if Central Government has not extended the operation of DSPE to the State of Assam, then even if the State of Assam consents to an investigation by the DSPE, the DSPE would not be in a position to investigate.
In essence, the DSPE was established only to exercise unrestricted power of investigation in the Union Territory of Delhi. It can investigate offences in a State, other than Delhi, provided that the State Government consents thereto.
CONSTITUENT ASSEMBLY DEBATES AND CBI
One of the members, Mr. Nazimuddin Ahmed could visualize a conflict of interest between the States, on the one hand, and the Union Government, on the other, and raised, in the Constituent Assembly, question about the implications and the use of the word, ‘investigation’, appearing within the expression ‘Central Bureau of Intelligence and Investigation’, in the following words:
“Mr. Nazimuddin Ahmad: Mr. President, Sir I beg to move:
“That in amendment No.1 for List I (Sixth Week) in the proposed entry 2 of List I, the words ‘and investigation’ be deleted.”
Then I move my next amendment which is an alternative to the first:
“That in amendment No.1 of List I (Sixth Week) in the proposed entry 2 of List I for the word ‘investigation’ the words ‘Central Bureau of Investigation’ be substituted.”
The original entry was “Central Intelligence Bureau”. The redrafted entry is “Central Bureau of Intelligence and Investigation. The words “and Investigation” seem to me to appear to give an ambiguous effect. I submit that the duty of the Union Government would be to maintain a Central Intelligence Bureau. That is all right. Then we have the words “and Investigation” and we do not know what these words really imply. Do these words “and investigation” mean that the Bureau of Investigation was merely to carry out the investigation? They will mean entirely different things. If it is to enlarge the scope of the Central Intelligence Bureau as well as the Bureau of Investigation, that would have been a different matter but Dr. Ambedkar in answer to a question put by Mr. Mahavir Tyagi has said that the Central Government may think it necessary to carry on investigation. Sir, I submit the effect of this amendment, if that is the kind of interpretation to be given to it, would be extremely difficult to accept. We know that investigation of crime is a provincial subject and we have, already conceded that. If we now allow the Central Government also to investigate, the result would be that for a single crime there must be two parallel investigations, one by the Union Government and other by the State Government. The result of this would be that there will be a clash and nobody will know whose charge-sheet or final report will be acceptable. The Union Government may submit a final report and the Provincial Government may submit a charge-sheet, and there may be a lot of conflict between these two concurrent authorities. If it is to carry on investigation, then it will not be easy to accept it. It was this suspicion that induced me to submit this amendment, though without any hope of being accepted, at least to explain to the House my misgivings and these misgivings are really substantiated by Dr. Ambedkar himself. I would, like to know whether it is possible at once to accept this implication, to give the Central Government power to investigate crimes. My first amendment is intended to remove the words “and investigation”. If you keep the investigation within this entry it should be the Central-Bureau of Intelligence, as well as Bureau of Investigation. If there are two Bureaus only there, could be no difficult and there will be no clash and let us have as many Bureaus as you like but if you want investigation, it will be inviting conflict. Rather it is another attempt to encroach on the provincial sphere. I find there is no limit to the hunger of the Central Government to take more and more powers to themselves and the more they eat, the greater is the hunger for taking more powers. I oppose the amendment of Dr. Ambedkar. I appeal to the House not to act on the spur of the moment; it is easy for them to accept it as it is easy for them to oppose it and the entry does not seem to be what it looks.”
Dr. Ambedkar, in response to the doubts, expressed by Mr. Nizamuddin, had clarified and assured the House, in no uncertain words, that the Central Government cannot and will not have the powers to carry out investigation into a crime, which only a police officer, under Cr.P.C., can do. The response of Dr. Ambedkar is extracted below:
“The Honourable Dr. B. R. Ambedkar: The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do.”
JUDICIAL APPROACH WITH REFERENCE TO CBI
Hon’ble Gauhati High Court in Navendra Kumar Versus Union of India & Another has held that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946, while declining to declare the DSPE Act, 1946 itself as invalid. The High Court basically set aside and quashed the impugned Resolution, dated 01.04.1963, whereby CBI was constituted.
It was argued in Advance Insurance Co. vs. Gurudasmal, reported in (1970) 1 SCC 633, it was because of Entry 80 List I that the constitutional validity of the DSPE Act, 1946, had been upheld by Supreme Court.
The case of Advance Insurance Co. Ltd. (supra), thus, does not say that the CBI is borne out of the DSPE Act, 1946, or that the CBI can be regarded as a ‘police force’ constituted by the Central Government by taking resort to Entry 80 of List I (Union List).
Advance Insurance Co. Ltd is a precedent on the point that DSPE is a police force functioning in the Union Territory of Delhi. However, by no stretch of imagination, the case of Advance Insurance Co. Ltd. be regarded as a precedent on the point that CBI is a body constituted under the DSPE Act, 1946, nor is the case of Advance Insurance Company Limited be regarded as a precedent to justify CBI as a validly constituted ‘police force’ empowered to ‘investigate’ offences preparatory to filing of charge-sheets.
Therefore Entry 80 of List I (Union List) doesn’t validate the impugned Resolution, dated 01.04.1963, as an executive instruction of the Union Government, because Entry 80 of List I (Union List) presupposes existence of a valid ‘police force’ before the area of jurisdiction of such a ‘police force’ is extended from one State to another State with the consent of the latter State. In the present case, the CBI, which is claimed to be a police force, has itself been brought into existence with the help of the impugned Resolution, dated 01.04.1963, and not on the strength of any legislation.
So far as the operational effectiveness of executive action is concerned, the Supreme Court, in the case of Ram Jawaya Kapur vs State of Punjab , while dealing with an argument of violation of fundamental rights, observed that ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.
Elucidating further, the Supreme Court, in Ram Jawaya Kapur vs State of Punjab , observes that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another and that Executive can, indeed, exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature.
The Supreme Court, however, without mincing any words, held, in Ram Jawaya Kapur, that specific legislation may, indeed, be necessary if the Government requires certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus, when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation, sanctioning such a course, would have to be passed.
The Supreme Court, in Ram Jawaya Kapur (supra), cautioned that if, by the notifications and acts of the executive Government, the fundamental rights, if any, of the petitioners have been violated, then, such executive actions have to be termed as unconstitutional.
The case law, most appropriate to the above aspect of the Constitutional limitations, imposed on the exercise of the executive power, can be found in D. Bhuvan Mohan Patnaik vs State of AP , wherein some prisoners had challenged the installation of live electric wire on the top of jail wall as being violative of personal liberty enshrined in Article 21 of the Constitution. The Supreme Court, having questioned the legal authority justifying such installation of live wires, rejected the argument that installing of the live high-voltage wire, on the walls of jail, was solely for the purpose of preventing the escape of prisoners and was, therefore, a reasonable restriction on the fundamental rights of the prisoners.
Observed the Supreme Court, in D. Bhuvan Mohan Patnaik vs State of AP , that if the petitioners succeed in establishing that the particular measure, taken by the jail authorities, violated any of the fundamental rights available to them under the Constitution, the justification of the measure must be sought in some ‘law’ within the meaning of Article 13(3) (a) of the Constitution. The Supreme Court also observed, in D. Bhuvan Mohan Patnaik, that the installation of the live high-voltage wire lacks statutory basis and seemed to have been devised on the strength of departmental instructions, though such instructions were neither ‘law’ within the meaning of Article 13(3) (a) nor do these instructions constitute "procedure established by law" within the meaning of Article 21 of the Constitution.
ARGUMENTS AGAINST CBI AS A FORCE UNDER DSPE ACT.
i) First, there is no co-relation between the DSPE Act, 1946, and CBI. In DSPE Act, the word ‘CBI’ is, nowhere, mentioned, even though the DSPE Act has undergone several amendments. This apart, even the Executive Order, dated 1st April, 1963, does not disclose that the CBI has been constituted under DSPE Act.
ii) Secondly, the plea, that the CBI is merely a change of name of the DSPE, cannot stand scrutiny of law inasmuch as the DSPE Act, 1946, specifically mentions, under Section 2, that the police force, constituted under the DSPE Act, shall be called “Delhi Special Police Establishment”. Hence, when the DSPE Act itself defines the name of the force, which the DSPE Act, has created and established, the argument that the CBI is merely a change of name of the DSPE cannot hold water.
iii) Thirdly, though Union of India’s executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 01-04-1963, whereunder CBI has been constituted, is not backed by any legislation.
DSPE AMENDMENT BILL 2014.
• The Delhi Special Police Establishment (Amendment) Bill, 2014 was introduced in the Lok Sabha on November 25, 2014 by the Minister of Personnel, Public Grievances and Pensions, Mr. Jitendra Singh.
• The Bill amends the Delhi Special Police Establishment Act, 1946. The Act constitutes a special police force to be called the Delhi Special Police Establishment (also known as the Central Bureau of Investigation).
• The Act provides for a three member committee to make recommendations to the central government for appointment of the Director. The committee comprises the Prime Minister (Chairperson), the Chief Justice of India or a Supreme Court judge nominated by him, and the Leader of Opposition in the Lok Sabha.
• The Bill amends this provision in relation to the Leader of Opposition. It states that where there is no Leader of Opposition, the Leader of the single largest Opposition Party in that House would bCYFBSe part of the committee.
• The Bill introduces a provision that states that the appointment of a Director would not be invalid on the grounds of any vacancy or absence of a member of the Committee.