(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.
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.