SC stays Gauhati HC order declaring CBI as “unconstitutional“

The Supreme Court has stayed the Gauhati High Court order that declared the Central Bureau of Investigation (CBI) as an "unconstitutional" body that has no powers to investigate crimes or make arrests in criminal cases.

The apex court has served notices on the union home ministry and the CBI seeking their response to the High Court ruling and fixed 6 December as the next date for hearing the matter.

The SC decision comes on an urgent petition moved by the union government against the Guahati HC order, which, according to it, would have adversely impacted thousands of cases pending across the country. 

Chief Justice P Sathasivam, who heard the matter at his residence, stayed the HC order and fixed 6 December for hearing the case.

The SC also issued notices to all parties involved in the case.

The SC decision sets at rest all talk of the CBI becoming non-functional and all proceedings in CBI-investigated cases across the country coming to a halt.

Attorney general, GE Vahanvati said the claims of the CBI's ''demise'' were exaggerated.

In its petition, the government had pointed out that the high court order would ''directly impact about nine thousand trials currently underway and about one thousand investigations which are being undertaken by the Central Bureau of Investigation (CBI).''

''If the impugned order is not stayed, it will frustrate the law machinery and may result in multiplicity of proceedings. The order is already being seized upon by various accused persons in various proceedings in the country to seek a stay of further proceedings against them,'' the special leave petition pointed out.

The petition also contested the Gauhati high court's contention saying that the high court had erred in holding that the constitution of CBI was illegal, that the resolution constituting it needed the President's assent and that it could not be treated as a police force.

In its order of 6 November, the Gauhati High Court has held that the home ministry order under which the Central Bureau of Investigation (CBI) was set up in 1963 was unconstitutional. The HC also said the CBI cannot be treated as a 'police force' constituted under the Delhi Special Police Establishment (DSPE) Act, 1946 (See: CBI has no powers to investigate crimes, make arrests: Gauhati HC).

The high court said the setting up of the CBI as an investigating agency was at best an ad hoc measure to deal with certain exigencies and was not taken by the union government, in the form of an ordinance, a Presidential order or any other piece of legislation.

The CBI was legally not a police force and has no powers to investigate crimes, arrest suspects and file charges, the HC held.