Gauhati High Court has declared that the establishment of CBI as an investigating agency is Unconstitutional because the very process that was followed in setting up the CBI violated article 21 of the Indian Constitution. Article 21 of the Indian Constitution guarantees  Protection of life and personal liberty and says
“No person shall be deprived of his life or personal liberty except according to procedure established by law”.
What this means is that any organization or institution established without following the due process of law has no right to investigate into the actions of any person or any crime in India. And CBI, the high court said, was not setup following the due process of law. Why?
CBI was established on 1 April 1963 through a Home Ministry resolution by consolidating the previously established Special Police Establishment (SPE). SPE has its legal roots in the DSPE (Delhi Special Police Establishment) Act of 1946.
The Gauhati High Court has said that since CBI was formed through a Home Ministry resolution, it was
“not the decision of the Union Cabinet nor were these executive instructions assented to by the President”,
and hence the court said
“The actions of the CBI, in registering a case, arresting a person as an offender, conducting search and seizure, prosecuting an accused etc. offend Article 21 of the Constitution and are, therefore, liable to be struck down as unconstitutional.”
Hence, the Home Ministry resolution of 1963 of setting up CBI, the court said
“can, at best, be regarded as departmental instructions, which cannot be termed as ‘law’,”
And according to the Constitution of India, no agency setup without following the due process of law, can have the power to register case, investigate into crimes, or arrest persons.
Hence, the court has concluded, that the establishment of CBI is Unconstitutional. The Guwahai high court judgment would be challenged by the Central government in Supreme Court. It would be interesting to see what would be the judgement of the country’s highest apex court on the constitutional validity of CBI as an investigating agency.
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If we could do more striking down of such things that are formed to avoid due process that would be great!