M A I N   N E W S

Govt to challenge HC order on CBI formation
Row revolves around Home Ministry’s 1963 resolution File notings voiced concerns over states’ rights 
R Sedhuraman
Legal Correspondent

New Delhi, November 8
On expected lines, the Centre today dug in its heels to seek an "urgent stay" on Thursday's Gauhati High Court verdict questioning the validity of the formation of the Central Bureau of Investigation (CBI).

The government will, however, have to clean the dust off some decades-old files before it hones its response. A revisit to the over 50-year-old Union Home Ministry resolution, which formed the basis of CBI's existence, revealed that the Centre was very much aware of the need for enacting a law in Parliament to give a legal status to the CBI, but resorted to an official order on April 1, 1963, fearing judicial scrutiny and objections from states.

In the 89-page order, the Gauhati High Court yesterday said the CBI was neither set up under the Delhi Special Police Establishment (DSPE) Act nor was its organ.

Sensing the peculiar situation, Minister of State for Personnel V Narayanaswamy said after he met Prime Minister Manmohan Singh: "The CBI is handling a lot of sensitive cases. The High Court's judgment will affect the agency's functioning."

The investigation agency functions under the administrative control of the Department of Personnel and Training (DoPT).

Acknowledging the urgency, he said the government would move the SC on Monday, when the apex court reopens.

Law Minister Kapil Sibal said DoPT had consulted his ministry on the need for challenging the HC verdict in the Supreme Court.

"We will tell the Supreme Court that the CBI was set up under a resolution in 1963 and it has been there for the last 50 years. So, it should be allowed to continue. We will seek a stay of the operation of the order. CBI is handling a lot of sensitive cases. It (order) will affect its functioning," saidNarayanasamy.

The documents accessed by The Tribune revealed the Centre's concerns before the CBI came into being. "If states are to be consulted and if a new comprehensive Act has to be passed by Parliament before the setting up of the CBI, this proposal is likely to be unduly held up. Objections might be raised or doubts might be expressed by some states and the process of resolving them will necessarily take time.

Some difficulties might also arise from the standpoint of the spheres of responsibility of the Centre and the states," a noting on the file created for 'Setting up of CBI and creation of various posts.' It is clear that the remarks in the file were written before the 1963 Union Home Ministry resolution.

Another noting in the file said: "While communicating the scheme (for creating CBI) to the state governments, we should not also tell them of our intentions of expanding its scope in due course to its original conception and that this would require suitable legislation."

The controversy

THE CASE The Gauhati HC verdict came on a writ petition by Navendra Kumar challenging an order by a single judge in 2007 on the Union Home Ministry resolution of 1963 through which CBI was set up

WHAT HC SAID The resolution was "not the decision of the Union Cabinet nor were these executive instructions assented to by the President". Kumar's trial was set aside

Centre's concerns File notings 50 yrs ago reveal that there were serious concerns in the govt over the likely objections from states (as CBI is a Central body). The decision was also open to judicial scrutiny

Political perception Many politicians in states allege the Centre "uses" CBI for partisan ends

Centre's defence Yet to be sharpened. Minister of State for Personnel V Narayanaswamy says the Centre will tell Supreme Court on Monday that since CBI has been handling sensitive cases for 50 years, it should be allowed to continue

What Manish Tewari’s had said

Union Information and Broadcasting Minister Manish Tewari had in a paper prepared in 2009 for a think tank — when he was an MP and a Congress spokesman — acknowledged that the “CBI has no independence standing in law... Simply put, it is a piece of legal fiction whose underpinnings in law are tenuous to say the least.”

Raja, sajjan seek stay on trial

The 2G scam accused on Friday sought a stay on the proceedings of the case in a Delhi court in the wake of the Gauhati High Court ruling on the CBI. The accused, including former Telecom Minister and DMK leader A Raja (pic), referred to the order and said the continuance of the trial in the case would amount to contempt of court. Congress leader Sajjan Kumar has also sought a similar stay in the 1984 riots case.





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