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Archaic CBI be replaced by Central Bureau of


Intelligence and Investigation as provided in the
Constitution
By- S. F. A. Naqvi, Advocate, Allahabad High Court


The Central Bureau of Investigation traces its origin to the Special Police Establishment
(SPE) which was set up in 1941 by the Government of India. The functions of the SPE then
were to investigate cases of bribery and corruption in transactions with the War & Supply
Deptt. of India during World War II. Even after the end of the War, the need for a Central
Government agency to investigate cases of bribery and corruption by Central Government
employees was felt.
The Delhi Special Police Establishment Act was therefore brought into force in 1946. The
CBIs power to investigate cases is derived from this Act. This is an Act to make provision
for the constitution of a special police force (in Delhi for the investigation of certain offences
now extending in the Union Territories also, for the superintendence and administration of
the said force and for the extension to other of the powers and jurisdiction of members of
the said force in regard to the investigation of the said offences.
As the CBI is working under The Delhi Special Police Establishment Act whereby section 4
provides as follows;
4. Superintendence and administration of special police establishment. (1) The
superintendence of the Delhi Special Police Establishment shall vest in the Central
Government. . . . . . . . .
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Interestingly CBI is working with inadequate staff and professional hands, which recurrently
creates delays in finalizing investigations. As many as 831 posts at different levels were
lying vacant in the CBI, according to a data updated till December 31, 2012. The total
sanctioned strength of CBI is 6,586. The vacancies existed in the ranks of special or
additional director, joint director, and deputy inspector general of police, superintendent of
police, additional superintendent of police, deputy superintendent of police, inspector, sub-
inspector, assistant sub-inspector and head constable. The posts of 54 Law Officers and 94
Technical Officers at various levels were also lying vacant.
At the time when the successive government at Centre is accused of interfering in the CBIs
functioning by virtue of its administrative control over the agency, it is suggested that either
enactment of a separate law or amendment in the existing archaic Delhi Special Police
Establishment Act to give CBI a statutory backing. The Delhi Special Police Establishment
(DSPE) Act, governing the CBI, is to my mind grossly inadequate, and hence either make
changes in it or enact a new law.
The question is how this could be achieved? Is there any mode and mechanism available in
the Constitution to make an independent organization?
Reply is yes, and the answer lies in article 246 of Constitution of India which gives powers
to the Parliament and State legislature to enact laws upon the subjects enumerated in the
schedule. Its heading suggests that it relates to subject-matter of laws made by Parliament
and by the Legislatures of States. The article says that the Parliament has exclusive power
to make laws with respect to any of the matters enumerated in list one in the seventh
schedule which is commonly known as Union List.
The Union list of seventh schedule of Constitution of India includes various heads but some
of the important issues upon which the Parliament is authorized to make laws include
Defense of India and, Naval, military and air forces; Arms, firearms, ammunition and
explosives. Atomic energy and mineral resources necessary for its production. Industries
declared by Parliament by law to be necessary for the purpose of defense9/27/14 or for the
prosecution of war. Preventive detention for reasons connected with Defense, Foreign
Affairs, or the security of India; Foreign affairs; all matters which bring the Union into relation
with any foreign country. Diplomatic, consular and trade representation. United Nations
Organisation and Railways, etc. etc.
In this list item no. 8 is about creation of Central Bureau of Intelligence and Investigation. In
view of this provision the Parliament can frame law to create such agency. Thus the
Parliament by legislation shall create Central Bureau of Intelligence and Investigation as
per entry 8 of the Union List of schedule 7 of the Constitution of India as per article 246. As
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the same had not been given consideration till now and all successive governments and for
obvious reasons they relied upon CBI, it can now be given birth to as it is still not too late.
One may misinterpret that agency named as NIA, which came into existence in 2008, and
the Central Bureau of Intelligence and Investigation are the same. The fact is that NIA was
formed after Mumbai attack which only covers terrorism related cases and not beyond that.
The Central Bureau of Intelligence and Investigation when comes into existence will cover
all types of cases directly under the control of Parliament and not under the Central govt.
It is also surprising that nobody, in the government or the opposition, is looking towards this
aspect or calculatingly not looking towards it. Although there is huge hullabaloo for freeing
CBI from the clutches of Central Govt.

The author is practicing lawyer at Allahabad High Court, can be contacted
at naqvifarman@yahoo.com,
X
S F A Naqvi
Author