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August 2009 ISSUE BRIEF # 20

Legally Empowering
the Sentinels of the Nation
Manish Tewari

T he lawyer in me has always been intrigued by

the legal architecture that empowers both
our central law enforcement and intelligence
services. In response to a series of questions during
the recently concluded budget session of Parliament,
and Governor General of India Lord Linlithgow by
the India and Burma (Emergency Provisions Act)
1940 passed on June 27, 1940 by the British
Parliament.

the government provided answers that only The Emergency Provisions Act interminably
underscore the ambivalence, procrastination and extended the validity of ordinances promulgated by
perhaps even the dilemma of successive the Governor General invoking the powers available
governments to break out of the status quo mold and to him under Section 72 of the Ninth Schedule of
address this critical governance issue. The objective the Government of India Act 1935 which otherwise
of this piece is to explore and navigate the legal mandated that the maximum validity of an ordinance
underpinnings of the Central Bureau of could be six months .
Investigation, Serious Fraud Investigation office
(SFIO), Intelligence Bureau and the Research and With the Second World War coming to a close in
Analysis Wing. (R&AW). 1945 the said act stood repealed by His Majesty's
Order in Council, namely The India and Burma
The Central Bureau of Investigation was created by (Termination of Emergency) Order 1946, which
an executive order on the April 1, 1963. However, it declared the end of emergency with effect from April
was really born 22 years earlier as a Special Police 1, 1946. The emergency had occasioned the passage
Establishment in the Department of War in 1941. In of the Emergency Provisions Act in the first
1943 it was constituted by an ordinance into an instance.
independent entity, namely the Special Police
Establishment (War Department), in exercise of the Fearing that all acts done under the Emergency
Emergency powers conferred upon the then Viceroy Powers Act would either lapse with effect from

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 ISSUE BRIEF l Legally Empowering the Sentinels of the Nation

October 1, 1946 or get extinguished as the validity the legalese. The CBI has no independent standing in
period of an ordinance stood revived to six months law. Simply put it is a piece of legal fiction whose
as envisaged in Section 72 of the Ninth Schedule of underpinnings in law are tenuous to say the least It
the Government of India Act 1935 with effect from still draws all its powers of investigation and arrest
April 1 1946, the government of the day from the antiquated 1946 act which essentially being
promulgated another ordinance on September 25, a local act provides that each state through an
1946 called the Delhi Special Police Establishment executive order under Section 6 of the said Act has to
(War) Department ordinance. On October 1, 1946 in give the Special Police Establishment, what is
exercise of powers conferred by the said ordinance colloquially called the CBI, permission to investigate
dated September 25, 1946 the then Federal particular offences in that state. In other words the
g over nment mutated the Special Police CBI can investigate a case only if requested by the
Establishment (War Department) into the Delhi concerned state government or directed by the High
Special Police Establishment. Court or Supreme Court, except if it is a matter that
pertains to the Central government.
However this apprehension was later proved to be
unfounded as the Supreme Court of India in an At various points of time in the past several states
another matter challenging the legality and life of had revoked orders giving consent, that too with
ordinances promulgated under the Emergency retrospective effect to the Special Police
powers Act 1940 held that while the Act itself may Establishment (read CBI) to investigate matters. The
have been repealed by the termination order of 1946; beneficiaries alas, were card carrying members of the
the ordinances promulgated under it are valid into much maligned political class. The Supreme Court
perpetuity unless an ordinance itself had a self finally put paid to this practice in Kazi Lhendup
limiting time frame (Hans Raj Moolji vs State of Dorji v CBI 1994 Supp (2) SCC 116 by holding that
Bombay AIR 1957 SC 497). state governments can not revoke consent given to
the Special Police Establishment to investigate and
The ordinance of September 25, 1946 was also prosecute any matter with retrospective effect.
subsequently repealed by the Delhi Special Police
Establishment Act that came into force in November It is also questionable whether the constitutional
1946, even though the 1946 ordinance was to remain scheme provides for a Central police force. Entry I
valid till March 1947. and 2 of the state list seventh schedule makes police a
state subject.
In the discharge of its legal duties the CBI still
functions as the Delhi Special Police Establishment The moot point is that when legislative powers are
ostensibly constituted before independence, on available to the Central government in terms of
October 1, 1946. It is not quite clear as to whether a Entry 8 of list 1 of the seventh schedule_that speaks
subsequent notification re-constituting the Delhi of a Central Bureau of intelligence and investigation
Special Police Establishment under the said act was _why does the government not enact a straight and
ever issued as the 1946 ordinance only midwived and simple law empowering the CBI rather than let it
morphed the Special Police Establishment (War function on the basis of a dubious piece of
Department) into the Delhi Special Police legislation whose basic legality is open to question.
Establishment. Jurists however may propound that Incidentally, the government has recently constituted
the earlier transition is saved by the Provisions of the the National Investigation Agency drawing upon
General Clauses Act 1897, which is also open to these very legislative powers mentioned herein
dispute as to whether constitution of a force is a above.
substantive right saved by the provisions of the said
Act. Similar is the case of the Serious Fraud Investigation
office (SFIO) that has investigated 36 cases and has
Before you get lost in a legal jungle let me demystify filed 574 complaints for violation of various

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 ISSUE BRIEF l Legally Empowering the Sentinels of the Nation

provisions of the Companies act and the Indian functions/mandate efficaciously and efficiently, the
Penal Code from May 2004 to July 2009. The SFIO government did not try and hide behind any
again draws its powers from the investigative obfuscation but candidly admitted, “There is no
provisions of the Companies Act but has no separate/ specific statute g overning the
independent locus or standing under the Companies functions/mandate of the R&AW”. However, in
Act. That is the reason why it had to approach the 2000 following the report of the task force on
courts to gain accesses to the Satyam scam accused, Intelligence Apparatus which examined the entire
something that should have been its inherent right intelligence system in the country, a formal charter
given the nature of the Satyam scam. The irony is that listing the scope and mandate of the R&AW was
the SFIO, despite existing and operating, does not formally approved by the government of India”.
even find mention in the Companies Bill 2009
introduced in Parliament on the August 3, 2009, what Contrast this with the position in various other
to speak of embedding it in a proper legal countries of the world. The Federal Bureau of
framework. Investigation of the US government draws its
powers from Title 28 of the United States code. Title
The case of our intelligence agencies is even more 28 (Judiciary and Judicial Procedure) is that portion
interesting. In response to a question pertaining to of the United States Code (federal statutory law) that
the legislative act or legal architecture from which the governs the federal judicial system.
Intelligence Bureau draws its legal/statutory
authority or right to function the government came The Serious Fraud office of the United Kingdom
up with a very quixotic response. “The Intelligence draws its legal authority and powers from the
Bureau figures in Schedule 7 of the Constitution Criminal Justice Act 1987 (as amended).The impetus
under the Union list”. When pressed that possibly for introducing the Criminal Justice Act 1987 and
this may not be an appropriate answer the creating the SFO was the Fraud Trials Committee
government emphatically reiterated “The Report, popularly known as 'the Roskill Report'
intelligence Bureau finds mention at S.No.8 in the published in 1986. Its main recommendation was the
Union list under the 7th Schedule of the Constitution setting up of a new unified organization responsible
of India” for the detection, investigation and prosecution of
serious fraud cases.
Even an aspiring student of law knows that Article
246 (1) gives Parliament the exclusive right to make Similarly the Central Intelligence Agency (CIA) of
laws on matters enumerated in the Union list in the the United States, created by the National Security
seventh schedule of the Constitution. In other words Act of 1947, was specifically empowered by the
Entry 8 in the Union list enunciated in the Central Intelligence Agency Act of 1949 (CIA Act)
government's response merely gives it the legislative to carry out the duties assigned to it by the 1947 Act.
power to enact a statute to bring a Central Bureau of MI5, the domestic intelligence service of the United
Intelligence to be called by whatever name (IB or BI) Kingdom, draws it's legal authority from The
into existence. A mere mention of a subject in the Security Services Act 1989 and its sister organization,
laundry list of legislative powers neither gives an the James Bond Fame, MI6 or the SIS, from the 1994
organization life or legitimacy. Unfortunately no Intelligence Services Act, thereby subjecting it's
such law has ever been enacted by successive activities to the scrutiny of the British Parliament's
governments since the commencement of the Intelligence and Security Committee.
Constitution.
The Foreign Intelligence Service of Russia draws its
Similar is the case of India's external intelligence legal basis from the Law on Foreign Intelligence
service, the Research and Analysis Wing (R&AW). In Organs 1996. The German Federal Intelligence
response to a question about the law/statute which Service, Bundesnachrichtendienst (BND), draws its
gives R&AW the powers/authority to discharge its legal sustenance from the Federal Intelligence

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 ISSUE BRIEF l Legally Empowering the Sentinels of the Nation

Service Law 1990. Its activities are supervised by the i.e. its principal law enforcement and investigative
Parliamentary Control Commission (PKK) for agencies, are bereft of the armor of legal sanction
intelligence services which in turn is empowered by and protection. It is equally horrifying to even
the Law over the Parliamentary Control of imagine that organizations that wield enormous
Intelligence Activities 1978. Even in Japan the Public powers of depriving people of both life and liberty
Security Intelligence Agency, that post its do it in accordance with legality whose
reorganization in 1996 started focusing upon foreign underpinnings are at best tentative if not completely
intelligence collection, is empowered by the non existent, thereby undermining Article 21 which
Subversive Activities Prevention Law that came into lies at the heart of the Indian Constitution.
force on July 21, 1952. PSIA is credited with
collecting information on Russia, China and North It is imperative in a democracy that every
Korea through their HUMINT networks. organization of the government must draw its
powers, privileges and authority from clearly defined
Both from the national security and the civil liberties legal statutes. The legal basis must not be fuzzy but
point of view, it is inappropriate to allow law sharply defined to obviate any obfuscation about
enforcement and intelligence services to function both the intent of the legislature and the mandate it
without a sound and well defined legal basis. There seeks to bestow. This ispo-facto addresses the issue
can be no case that an equivocal or indeterminate of oversight and provides the structure of checks
legal mandate gives greater operational flexibility. In and balances that is critical for the healthy
fact in an information and litigious age it has both, an functioning of any constitutional system.
inhibiting and. even worse, a debilitating impact.
Maybe competing priorities edged out this critical
It makes one shudder to think that when the spectre issue from the 100-day radar of UPA II, but to put
of multiple security challenges ranging from Jehadi our democratic ethos on an even sounder footing it is
terrorism, economic espionage to Naxalism threaten imperative to provide our central law enforcement
the sovereignty of India, the sentinels of the nation, and intelligence structures with proper legal shields.

ABOUT THE AUTHOR

The author is a lawyer in the Supreme Court of India, Member of Parliament and the National Spokesperson of the
Indian National Congress. The views expressed in this Paper are personal.

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