Guest Post: Hacking the Supreme Court in the Age of AI

(This is a guest post by Anand Venkatanarayanan).

Introduction

How do you bring down a democracy? In their seminal paper, Bruce Schneier and Henry Farrell argue that democracy is a political information system, which has the following characteristics.

  • Common knowledge – the consensus beliefs that hold systems together.
  • Contested knowledge – the knowledge that is contestable, where people may disagree.

They argue quite convincingly through the example of Russian election meddling in the US elections, that democratic systems have an inherent vulnerability that can be exploited to bring it down: this vulnerability comes into play when common knowledge becomes contested knowledge. For example, the disinformation campaign launched by the Russians included undermining knowledge assumptions about how voting works, spreading distrust about the candidates and also the political system in general, through a variety of other means.

This post builds on the above paper and further argues that dispensation of justice is also an information system in a democracy, and has the same characteristics. For instance, “settled law” can be viewed as common knowledge, while different interpretations of law by different benches of the Supreme Court of India (due to its polyvocal nature) can be regarded as contested knowledge.

When viewed through this lens, one way in which the Supreme Court could be brought down is by turning common knowledge into contested knowledge. For instance, a party that has lost a case in the court can ascribe extraneous motives to the judge who gave the judgement, and attempt to turn common knowledge (Court orders are binding) into contested knowledge (they are not binding and can be flouted because they are based on extra-legal factors).

While Courts have evolved contempt jurisdiction to handle external attempts to change common knowledge into contested knowledge, this post argues that the Supreme Court has become institutionally blind to how i’s recent judgements, in attempting to deliver substantive justice by disregarding procedure, are turning common knowledge (settled law) into contested knowledge, and thereby undermining public trust on it.

Procedure, Proof and Innovation

It is often said by Karl Popper that Science never proves, but only disproves. At the heart of his assertions is the simple observation that “criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”. The difference between science and pseudo-science is that pseudo-science does not offer any testable experiments (natural or otherwise) that can disprove the hypothesis.

Testability by others, and not just by the claimants, hence is at the heart of scientific inquiry. For instance, while someone can make a claim that peacocks reproduce by crying, by virtue of their position and title (as a judge), it is deemed to be absurd because contrary evidence has been recorded by eyewitnesses and others for a very long time.

How does testability itself works in the scientific world? It is defined as a process that must be followed to ascertain the validity of the claims. This includes formal proofs, experimental observations, peer review through publishing in journals, feedback, revision and finally acceptance or rejection.

Thus process, procedure and innovation are deeply interconnected in furthering scientific knowledge. There are well known cases such as fraudulent stem cell research where all of this failed, but that was not because of lack of application of the due process – it was in spite of it. Thus, failures in applying due process are very rare and practically non-existent – and the necessity of due process itself gets strengthened through exceptions such as the fraudulent stem cell research case.

Scientific due process is hence an information system, which everyone agrees is essential (Common knowledge) to mediate substantive disputes (contested knowledge). Hence innovation (change) in due process, while permissible and welcome, is not arbitrary and accepted only when it aids on mediating disputes and in furthering scientific knowledge.

Evidence Act and other norms

In the legal system, the Evidence Act of 1872 can be viewed as the equivalent of scientific due process, since it provides a legally sanctioned framework, which covers in detail how to establish facts within the context of a legal dispute, and also issues of proof generation, and scrutinizing those proofs via cross-examination.

The Indian Evidence Act embodies the adversarial system of justice, where parties represent their case before judges, who attempt to determine the truth and pass judgment accordingly. In this system, the Courts are expected to follow due process (as set out in laws such as the Evidence Act) and other norms to decide the ratio decidendi of a particular case. This, in turn, implies that (subject to their own interpretation, of course) the rules set out under the Evidence Act and other norms can be thought of as “Common Knowledge”, which used to mediate substantive disputes (Contested knowledge). Innovation in common knowledge (i.e., modifying or bypassing due process) must be accepted only when it aids in delivering justice.

However, if common knowledge (due process and norms) can be converted into contested knowledge (due process and norms are not important and hence can be discretionary), it introduces an “attack surface” on the justice system itself, which is not patchable (in software terms, not patchable means that it can’t be fixed). What would be the implication if this attack succeeds?

The Salem witch trials offers us an example of this played out in medieval times: in these trials, “tribunals” admitted spectral evidence based on dreams and visions. Leaving aside the problematic outcomes of the witch trials, they resulted in results void of any reason and reflected the bias and prejudices of the population as well as the judge.

Modern-day effects are very similar, and a critical analysis of CJI Dipak Misra’s judgements pointed out how outcomes void of reason have become the norm. Sealed covers and power point “evidence” are the modern day variants of medieval spectral evidence. And whether it the non-existent CAG report in the Rafale judgement or the dodging of facts and inverting reality and claiming that something that was argued in open Court was never actually argued in the Aadhaar judgment, jettisoning reason has serious consequences and makes judgements unintelligible.

If reason and norms are abandoned, what replaces them? Both the Rafale judgement and the Aadhaar judgement show that it is replaced by excessive faith in the government of the day, and statements by government functionaries have higher evidentiary value, even when they are unsigned, not placed on affidavit and demonstrably false, when put under scrutiny.

Attack surfaces on the Supreme Court

The structural faults elaborated above exposes the Supreme Court to new attack vectors, which can be pulled off by actors in the age of Big data and Artificial intelligence (AI). State governments are turning towards AI systems for crime detection and even the court seems to believe that it can be used for medical education reform. Note that faith in technological regimes is not new, but even the creators of AI are not sure what they have built and how they work – in contrast to their employers, who believe that we can have, not just accurate AI but trusted AI as well. But if they manage to convince the executive and the government of the day to publicly pronounce their faith in new technological regimes, success is guaranteed against any litigation, since the court places excessive faith in the statements of the government and it’s functionaries. For example, as the creator of Aadhaar had so convincingly demonstrated, all that was required was to convince three judges that mattered, and Court’s belief in the government’s statements overrode reason, logic and other norms, including open contempt towards it’s interim orders.

This post predicts that this “trust us at the cost of established due process norms to establish contested knowledge” would be the new normal in how technology projects would be rolled out in the future, and litigation by citizens against those projects will always fail, unless the court reverses course.

Conclusion

This post made three claims based on the paper by Bruce Schneier and Henry Farrell

  1. Justice is an information system in a democracy and hence has the same vulnerabilities: common knowledge attacks are deadly to its legitimacy.
  2. The Supreme Court of India, in its quest to deliver substantive justice, has often ignored laws and norms which constitute common knowledge, and has hence unknowingly participated in an insider attack (in information security parlance) that has the potential to erode the court’s legitimacy in the public eye.
  3. The vulnerability caused by this blindness will be ruthlessly exploited by marketers of technology projects which will use Big data and AI.

It is entirely possible for others to disagree with the above claims, but the claims are at least testable in the Popperian sense; and thinking about justice as an information system that has unique vulnerabilities might bring to the fore new perspectives about its relationship to security.

Guest Post: Using International Law in Indian Constitutional Adjudication

(This is a guest post by Shubhangi Agarwalla.)

Since the late 1970s, the Supreme Court, on the basis of Article 51 of the Constitution of India, has started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.

Monism and Dualism

Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes.

As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.” The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, “[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.”

Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms. The language of the article was based on the Havana Declaration, adopted at the Second Conference of American State Members of the International Labour Organization, 1939, in which the signatories proclaimed their faith in the imperative need to achieve international peace, inter alia, ‘by the maintenance of justice and the scrupulous respect for treaty obligations in the dealings of organized peoples with one another.’ Based on this Declaration, and after going through various drafts and amendments, the Art. took its present shape. The debates indicate that Art. 51 was considered non-obligatory, and was clearly intended to guide India’s foreign policy and form the basis of its international relations, rather than provide for how India should approach its international law obligations domestically.

In Search of a Principle

Unfortunately, the Court has used international law norms with cheerful abandon and offered little by the way of justification and explanation for this interpretive move. This has invited criticism that judges assert international law for its status as opposed engaging with its content. The failure of the Court to justify its use of international material is of legal significance. Take for example, Narmada Bachao Andolan v UOI, wherein the court relied on ILO Convention 107 just because it was law at the time despite the fact that it was being hotly debated for its assimilationist and paternalistic approach towards the indigenous population. This Convention came to be replaced by Convention 169. Thus, read against jurisprudence as a whole, Narmada was a mistake. Had the Court engaged with the reasons underlying the Convention it would have made it harder to overrule.

Moreover, it has directed the State to give effect to treaties which have not been incorporated into domestic law (PUCL v UOI), judicially incorporated it itself (Vishakha), referred favourably to treaties to which India is not a party (G Sundarajan) without even attempting to address concerns that it causes democratic deficit and is a veiled (if not overt) threat to the doctrine of separation of powers.

Separation of Powers and Democratic Deficit

The argument about separation of powers is that pursuant to Art 141, the role of the judiciary is to declare law and not to make law. In Vishakha, the Court relied on Art. 11 of CEDAW, an unincorporated treaty, to frame guidelines for addressing sexual harassment in the workplace. This amounts to an encroachment on the law-making domain of the Legislature.

The argument about the democratic deficit is as follows- international law is not generated within the institutional framework of liberal constitutional democracy and does not allow for a central role for electoral supervision. Theoretically, it may be argued that given the consent requirement for treaties, all that is necessary to ensure constitutional legitimacy is to establish a constitutional framework that ensures that the Executive who is authorized constitutionally to give that consent is subjected to adequate democratic controls domestically. However, it is doubtful that much legitimating value can be placed on a state’s consent to a treaty, when the state is confronted with a take it or leave it option by economically powerful Western nations which are notoriously difficult to hold accountable and the international institutions they control. Moreover, the costs of not participating or deviating from the international standard are prohibitively high, as monitoring and enforcement mechanisms are strengthened.

Thus, although state actors are participants in the international legal process, this cannot meaningfully be connected to an ideal of national self-government either with regard to the procedures followed or outcomes generated. Modern customary international law significantly discounts the requirement of long, general and consistent state practise followed by states from a sense of legal obligation in favour of an approach that focuses primarily on international pronouncements. Particularly in the area of human rights, declarations made by representatives of states either in international fora such as the General Assembly or in the context of multilateral treaty-making are central to the inquiry whether a rule of CIL has developed or not. Here too the effect is to further disconnect the creation of an international legal obligation from a state’s specific consent. Moreover it does not have sufficient legal content to be norm-creating. So when judges rely upon customary international law (Vellore) they expand their own power at the cost of the democratic process.

 There are accusations that this is an exercise in self-interest for judges make persuasive use of international law to window-dress a judgement that has already been reached on other grounds and further their own standing in the transnational judicial network. All these concerns get compounded by the lack of representation and bargaining power India has in international bodies. It is doubtful that much legitimating value can be placed on India’s consent to a treaty when the cost of not participating are prohibitively high. This increases the burden on the Court to justify its use of international law especially when it is directly incorporating it. As Bickel explains, in liberal democracies, the power of judicial review cannot be legitimised through democratic accountability so the very legitimacy of the institution hinges on its interpretive methodology.

A Model of Engagement

Thus, in the absence of any guidance from the Constitution, this becomes a question of principle. I argue that there is merit in engaging with international law as opposed to rejecting it or completing converging it with domestic law.

First, the duty to obey international law is a function of its legitimacy. The subject matter of international law has expanded significantly. Today there is significant overlap between the kind of questions that traditionally have been addressed by liberal democracies as domestic concerns and the kind of questions that international law addresses. In the context of Chapter VII of the UN Charter, for example, international peace and security encompasses concerns relating to money laundering and national criminal law, as well as violations of human rights. International law, then, has been the handmaiden of denationalization by having generated an increasingly dense set of substantive rules that directly concern questions traditionally decided by national legal processes. Scholars argue that international law reflects an emerging consensus on certain normative commitments. Thus, the Court may find it helpful to read international law not necessarily to borrow solutions but rather to test out ones supported by its own domestic traditions against other’s experiences. Moreover, they contend that norms from the domestic order get universalised and become international norms so relying on international law is simply a re-import of those ideas (for example democracy becomes self-determination). Under some circumstances, notably those involving groups disadvantaged in the political process, the outcomes of a non-parliamentary procedure may be preferable over the outcome of a parliamentary procedure. From the vantage point of a member of such a group, international law gives them the legal vocabulary to assert their rights.

Thus, we cannot simply reject international law as a whole. At the same time, international law itself comes in different shapes and sizes-and not all international law norms are progressive. This necessitates the attitude of openness towards international law to be tempered with careful evaluation of the suitability of its norms in the country’s specific domestic contexts. For example, while the use of CEDAW in Vishakha helped fill a gap on sexual harassment in the workplace, this new law through the wholesale importation of entire convention without any analysis, failed to reflect the reality of caste based discrimination India, leaving no recourse for women in the informal sector.

Second, reliance on any foreign source heightens constitutional self-understanding. International law can be used effectively to identify many assumptions, both factual and normative, inherent in Indian constitutional adjudication. By asking why international law has reasoned a certain way the Court will be forced to ask itself why it reasons the way it does. In case of a difference, it will have to justify its reasoning. International law is no treated as binding authority on constitutional interpretation- the Court may choose to accept or reject international law, as the Court may consider academic scholarship. At this stage, the presumption may be in favour of Indian cultural norms over international norms, to overcome the problem of democratic deficit. According to Habermas, citizens of a nation often use constitutional discourse as a means to “clarify the way they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, and how they want to deal with their history.” Citizens want their law to reflect their values. Identifying what these values are is a comparative exercise. Only by placing our values against another can we have any claim to uniqueness. This serves both a functional and an expressive function. Functionally, it heightens the Court’s ability to understand its own constitutional commitments and expressively, it reflects the Court’s effort to either break away from a troubled past by showing concern for international human rights law or to distinguish itself from norms with which it disagrees. This is similar to how precedent is used both to promote its legitimacy and to reflect alignments with favoured or disfavoured cases of the past.

South African constitutional jurisprudence has much to offer by way of example in this regard. In Ministry of Home Affairs v Fourie, the South African constitutional court concluded that under its constitution, limitations of marriage to exclude same sex couples was unconstitutional. Justice Sachs recognised that international law does not afford protection to same-sex marriages, but also nothing in the international instruments forbade recognition of such marriages. The petitioners had referred to the UDHR, which encapsulates the right of “a man and a woman” to marry and has a heteronormative conception of the term “family” but Justice Sachs said their reading or UDHR was incorrect and that “rights will atrophy if they are frozen.”

In case, the assumptions are similar, the Court can still ask why these assumptions ought to be shared. Even if it doesn’t lead to legal change it can serve as a device to affirm a constitutional identity, and increase its internal legitimacy. This goes beyond a mere confirmation bias. The entire process of engagement exposes domestic traditions as practises which are mutable and circumstantial. Moreover, it can still look for ways to implement this shared assumption. All in all, this model of engagement ought to be preferred over complete rejection or convergence because it makes no normative claims about international law norms- it simply uses these norms instrumentally, as a means to stimulate constitutional self-reflection.

Third, engagement can work both ways. Not only does it have the potential to uncover the assumptions in Indian Constitutional law but it can also uncover the assumptions present in international law, particularly through soft law. The Court has unreflectively applied soft law like the Yogakarta principles (NALSA) which are framed not by states but by human rights experts. In failing to engage with these principles dialogically, the Court may have missed an opportunity to assist in the re-characterisation of international norms so that they better reflect the Third World experience.

In Navtej Johar, Justice Chandrachud followed a similar model while invoking comparative case law from various jurisdictions. He used comparative constitutional law as one of the many sources, and not a central one at that to advocate for the decriminalisation of homosexuality. International law should be used in a similar vein to facilitate the development of, and reasoning within, our established constitutional tradition.

Guest Post: The Unconstitutionality of the CBI

(This is a guest post by Rishav Ambastha.)

There has been a proliferation of agencies at the Centre, exercising investigative powers, such as the Central Bureau of Investigation, the National Investigation Agency, the Narcotic Control Bureau, etc. This gives rise to some important constitutional questions, with federal implications. This is because legislation on the subject of the ‘police’ is within the exclusive jurisdiction of the states, under the Seventh Schedule of the Constitution. In this essay, I examine the ambit of the legislative entry ‘police’, and argue that the concept of investigation is at the core of such powers. Resultantly, any exercise of such power on behalf of the Central Legislature or Central Executive would be beyond its legislative competence, and therefore unconstitutional.

The Judgment of the Guwahati High Court

Indeed, the Guwahati High Court, in Navendra Kumar v. Union of India, held that the resolution of the Ministry of Home Affairs, which constituted the Central Bureau of Investigation [“CBI”], is non est in law. The High Court further held that the resolution is not traceable to Section 2 of Delhi Special Police Establishment Act, 1946 (“the DSPE Act”), which empowers the Central Government to constitute a special police force for a Union Territory. And additionally, it held that, in any case, the Parliament does not have any legislative competence to constitute a police force, traceable to either to Entry 8 or Entry 80 of List I. Resultantly, the creation of what is effectively a federal police force, through a notification by the central Executive, cannot be constitutionally justified. However, the Supreme Court has stayed the operation of the judgment, and has not heard the case in the last five years.

Entry 8, List I

The fundamental question is of legislative competence of the Parliament to enact a law to establish a police force with the power of investigation. In this regard, the Guwahati High Court held that the Central Bureau of Investigation cannot be traced to Entry 8 of List I, Seventh Schedule (which is titled “Central Bureau of Intelligence and Investigation”) of the Constitution, because the term ‘investigation’ appearing in the entry ‘Central Bureau of Intelligence and Investigation’ has a narrow remit. It is limited for the purpose of finding out what’s happening in the different states, and not in the sense of the word “investigation” as it understood under section 2(h) of the Code of Criminal Procedure, 1973, and which pertains to the investigatory powers of an organised police force. This interpretation also finds support in the Constituent Assembly debates:

Constituent Assembly Debates, Vol. IX, 29th August, 1949; “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.”

 

Entry 80, List I

Furthermore, in Mangament of Advance Insurance v. Shri Gurudasmal, the Supreme Court acknowledged that the Section 6 of the DSPE Act relates to Entry 80 of List I, which allows the Central Government to enact laws for the purpose of extension of jurisdiction of one state to another, with the consent of the latter. In this context, the word ‘State’ in the Entry 80 of List I includes a Union Territory. The DSPE Act is traceable to two entries of different schedules. First, Entry 2 of List II, which is the power to enact laws in respect of police and second, Entry 80 of List I, which is power to enact laws to extend jurisdiction of police of one state to another. The relative legislative competence of the legislature of the province qua the central legislature (pre-Constitution) in relation to the state legislature qua the Parliament (post-Constitution) is still preserved. Entry 80 of List I of the Seventh Schedule of the Constitution relates to Entry 39 of List I of the Seventh Schedule of the Government of India Act, 1935.

It is argued that the Union does not have any policing powers, specifically, power to create agency at the Central level for the purpose of carrying out investigation into penal offences. It is to be borne in mind that the power to enact laws with respect to criminal law and criminal procedure is placed in Entry I of List III of the Seventh Schedule. While, the Union may do so, it cannot in itself create institutions which will exercise the police power except for the Union Territories.

The idea that the Union can legislate and establish a police force for Union Territory and then use that, albeit with the consent of the state, to use it as a police force for investigation of offences within other states, is therefore flawed. Doing so is a colourable exercise of power of the Parliament. The ambit of Entry 80 of List I cannot a contemplate a legislation which provides powers of investigation to the Union within the states which is within the exclusive jurisdiction of the state. That power cannot be exercised to grant jurisdiction to police which is in essence a police force of the Union. The Union cannot exercise police powers in the states for which it lacks the legislative competence to enact a law.

Section 6, DSPE Act

One potential problem with this argument is that the Section 6 of the DSPE Act allows the state to consent to the extension of the power and jurisdiction of one state to another. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

The Contrary Judgment of the Bombay High Court

The Bombay High Court, in Pragyasingh Chandrapal Thakur v. State of Maharashtra, analysed the legislative competence of the Parliament to enact National Investigation Agency Act, 2008 (herein after referred as NIA Act). The act in addition to creating offences also, under Section 3(1), establishes a police force to investigate offences. Further, under Section 6, the central government has the power suo moto, without any consent of the state, to direct investigation in offences mentioned in the Schedule (which also includes offences of the Indian Penal Code, 1860). This power trammels over the investigative power of the state, since any investigation by the NIA into such offences automatically terminates any investigation conducted by the state into the schedule offences once the NIA takes over.

The Bombay High Court traced the NIA Act to Entry 8 of List I (Central Bureau of Intelligence and Investigation). This brings out the conflict in the understanding the scope of this entry between the Bombay High Court and Guwahati High Court. The conflict pertains to scope of understanding investigation, which is whether it means investigation as contemplated in the Code of Criminal Procedure, 1973 or as understood in the Constituent Assembly debates, which is limited for the purpose of finding out what’s happening in the vicinity of the states.

In addition to being contrary to the interpretation provided in the Constituent Assembly Debates, the Bombay High Court further has the effect of effacing Entry 2 of List II – the police. It seems to suggest it is open to the Union to create an agency for investigation of offences it enacts, because creation of a police force is only ancillary to enactment of penal offences.  However, the creation of a police cannot be an exercised through an ancillary power, because it is explicitly put in the State List (List II). Such interpretation would trample over the exclusive domain of the state list. Typically, this would involve the extension of powers and jurisdiction of the police of one state, which has legislative competence to legislate on it, to another state. But, since the Union has power to create a police force, in effect, it ends up exercising police powers throughout the territory of India, which, as I have argued is a colourable exercise of the power of the Parliament.

It would also raise questions about the fundamental understanding about the core functions of police. One core aspect of the function of police is to maintain law and order. However, that is already covered within the Entry 1 of List II. If it is stated that maintenance of law and order is the only core aspect of the police function, then Entry 2 of List II becomes redundant. Investigation and prosecution of offences is the other important function of the police, which I argue is what Entry 2 of List II contemplates.

The approach of Guwahati High Court is consistent with my conceptualisation of the Entry 2 of List II, which is that only Police duly constituted by States is competent to undertake investigation. The view of the Bombay High Court that word ‘investigation’ in Entry 8 of List I to mean investigation in terms of CrPC upends the constitutional tilt in favour of the states in the matters of policing powers and bestows that power in the Union. If both the Union and the State were to be contemplated to exercise powers of investigation concurrently, it would have been best placed in the List III of the Seventh Schedule. However, it is not.

Conclusion

It is tempting to look at Entry 8 of List I (“Central Bureau of Intelligence and Investigation”), and automatically assume that the wording covers the CBI. However, in this essay, I have argued that this entry stipulates legislative competence for two purpose (i) establishment of an agency – Central Bureau of Intelligence and Investigation (ii) vesting of power to carry out its ‘investigation’, which is only for the purpose of intelligence gathering, unlike the power of investigation under section 2(h) of the CrPC. The investigation under this Entry is qualitatively distinct from the investigation under the CrPC which emanates from commencement of criminal proceedings in CrPC through either registration of a First Information Report under Section 154 of the CrPC or Complaint before Magistrate under Section 200 of the CrPC.

The Constitution, as it stands today does not allow the Union to create institutions to carry out investigation outside the territorial limit of Union Territory. This becomes even more important, since the Union has enacted various laws where it has assumed the power to investigate and prosecute for penal offences.