[aaykarbhavan] Supreme Court grants stay on High Court's order treating constitution of CBI as 'unconstitutional'

CL : Supreme Court granted stay on the ruling of Gauhati High Court after hearing the Central Government's petition that the verdict will adversely impact thousands of criminal cases pending across the country

Ruling of Gauhati High Court

• There is nothing, either in the DSPE Act, 1946, or in the impugned Resolution, dated 01.04.1963, to show that the CBI is a creation of a delegated piece of legislation. In order to exercise powers under delegated legislation, it is necessary that the Statute itself empowers the Executive to issue notification/resolution to meet the exigencies of time; whereas no such power is vested in the Central Government by the DSPE Act, 1946

• The Resolution does not refer to any provisions of the DSPE Act, 1946, as the source of its power. In other words, deriving strength from the DSPE Act, 1946, the CBI has not been constituted. One cannot, therefore, treat the CBI as an organ or part of the DSPE either.

• There is no dispute that CBI came into existence with the issuance of Resolution, dated 01.04.63.

• If CBI is an integral part of the DSPE, then, such a resolution ought to have been issued by the Central Government in exercise of powers vested in the Central Government by the DSPE Act, 1946.

• In other words, had the CBI been constituted under the DSPE Act, 1946, by the Central Government, the CBI could have been treated as having been created by way of delegated legislation.

• There is, however, nothing, either in the DSPE Act, 1946, or in the impugned Resolution, dated 01.04.1963, to show that the CBI is a creation of a delegated piece of legislation.

• In order to exercise powers under delegated legislation, it is necessary that the Statute itself empowers the Executive to issue notification/resolution to meet the exigencies of time; whereas no such power is vested in the Central Government by the DSPE Act, 1946.

• The name of the establishment, created by the DSPE Act, 1946, is Delhi Special Police Establishment and not CBI; whereas it is the impugned Resolution, which has created the CBI as a police force for investigation of offences preparatory to filing of charge-sheets.

• If a statute gives a specific name to an organization, created by the statute, it is not permissible to confer a new name on the organization by any executive instructions.

• Subject to the validity of the DSPE Act, 1946, only Delhi Special Police Establishment can be termed as statutory body created by the DSPE Act, 1946, and not the CBI.

• If CBI were part of the DSPE, the Resolution, dated 1.4.63, would have made a mention to the effect that Central Government is issuing the impugned Resolution in exercise of powers vested in it by the DSPE Act, 1946. However, a reading of the Resolution would make it evident that it does not reflect the source of executive power.

• Since it is found that the Resolution, which created the CBI, is not an act of delegated legislation, the Resolution cannot become a part of the DSPE Act, 1946

 

Regards

Prarthana Jalan

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