What the Central Bureau of Investigation Actually Is

Say all of this in the first paragraph of any question on the Central Bureau of Investigation. It is short, it is verifiable, and it distinguishes an answer immediately.

Section 2: what the force is

Section 2(1). Notwithstanding anything in the Police Act 1861, the Central Government may constitute a special police force called the Delhi Special Police Establishment for the investigation in any Union territory of offences notified under section 3.

The non obstante clause matters. Police is a State subject, and the Police Act 1861 is the general law of police organisation. Parliament had to displace it to create a force of its own.

Section 2(2). Subject to any orders of the Central Government, members of the Establishment shall have throughout any Union territory, in relation to the investigation of such offences and the arrest of persons concerned in them, all the powers, duties, privileges and liabilities which police officers of that Union territory have in connection with the investigation of offences committed there.

Section 2(3). Any member of the Establishment of or above the rank of Sub-Inspector may, subject to such orders, exercise in any Union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being.

Read section 2(2) and (3) together and the technique of the whole Act appears. The Act does not invent police powers. It borrows them: a member of the Establishment is given the powers of the local police, and an officer of or above Sub-Inspector is given the powers of a station house officer. The Establishment is a police force that carries the local law with it wherever the Act lets it go, and chapter 810 shows the same technique used again for the States in section 5(2) and (3).

Section 3: the offences

The Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.

One sentence, and it is the whole of the agency's subject-matter jurisdiction.

Note what the section does not do. It does not name a single offence. The list is entirely in the Central Government's hands, revisable by notification and not by amendment of the Act. The words "committed in connection with matters concerning Departments of the Central Government" were omitted from the section by Act 26 of 1952, so even that limitation is gone.

And note the consequence for the reader of a newspaper. When it is said that a case has been "given to the Central Bureau of Investigation", the legal question is always the same pair: is the offence one notified under section 3, and does the Establishment have jurisdiction in the place where it was committed? If the answer to either is no, the agency cannot investigate however grave the matter.

Section 4: who the agency answers to

Chapter 680 read the section as section 26(b) of the Central Vigilance Commission Act 2003 substituted it, with effect from 11 September 2003:

4(1). The superintendence of the Delhi Special Police Establishment so far as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act 1988 shall vest in the Commission.

4(2). Save as otherwise provided in sub-section (1), the superintendence in all other matters shall vest in the Central Government.

4(3). The administration shall vest in an officer appointed by the Central Government, referred to as the Director, who shall exercise in respect of the Establishment such of the powers exercisable by an Inspector-General of Police in respect of a State police force as the Central Government may specify.

Learn the three-way split, because half the confusion about this agency comes from collapsing it.

Corruption investigations: superintended by the Central Vigilance Commission. Everything else: superintended by the Central Government. Administration in all matters: the Director, under the Central Government.

And "administration" is the larger word. Postings, transfers, promotions, discipline, deployment and resources are administration; and chapter 750 showed what that means for the reality of the Commission's supervision.

What the agency looks like today

The Supreme Court's recital in Vineet Narain records the growth. The Establishment's function was enlarged to cover all departments of the Government of India, its superintendence was transferred to the Home Department, and after the Resolution of 1963 the organisation acquired three Investigation Divisions: the Anti-Corruption Division, the Special Crimes Division and the Economic Offences Division, the last being separated because of the increased workload of bank frauds and economic offences in 1994.

Which is why the syllabus places this label where it does. Only the Anti-Corruption Division's work is superintended by the Central Vigilance Commission under section 4(1). The Special Crimes and Economic Offences Divisions answer to the Central Government under section 4(2). The agency that the vigilance machinery supervises is one part of a larger organisation, and chapter 850 takes the structure further.

A worked example

A newspaper reports that a case of a bank fraud in Nagpur has been handed to the Central Bureau of Investigation.

What has actually happened, in law. The offence must be one notified under section 3. The Delhi Special Police Establishment must have jurisdiction in Maharashtra, which requires an order of the Central Government under section 5 extending its powers and jurisdiction to that area, and the consent of the State Government under section 6. Only then may its officers act, and when they do, section 5(2) deems them members of the police force of that area.

Who supervises the case. A bank fraud is not necessarily an offence under the Prevention of Corruption Act 1988. If it is not, section 4(1) does not apply and superintendence is the Central Government's under section 4(2). If a public servant took an undue advantage, that part of the case falls under section 4(1) and the Central Vigilance Commission superintends it.

Who decides who investigates it, where he sits and whether he is transferred. The Director, under section 4(3), and above the level of Superintendent of Police the Committee under section 4C, which chapter 800 works.

And if the State had withdrawn its general consent? Chapters 820 and 830 answer it, and the answer is not the one most students expect.

What beginners get wrong

That there is a Central Bureau of Investigation Act. There is not. The Act is the Delhi Special Police Establishment Act 1946, and the name comes from a Resolution of 1 April 1963.

That the Central Vigilance Commission supervises the whole agency. Only its Prevention of Corruption Act investigations, under section 4(1).

That the Act lists the offences the agency may investigate. Section 3 leaves the whole list to a notification by the Central Government.

That the agency has all-India jurisdiction of its own. Section 2 confines it to the Union territories; sections 5 and 6 are how it reaches a State.

That the Director is chosen by the Government alone. Since 2003 he is appointed on the recommendation of a Committee: section 4A, chapter 800.

Quick revision

No Central Bureau of Investigation Act. The force is the Delhi Special Police Establishment, constituted under s.2 of Act 25 of 1946; the name comes from Government of India Resolution No. 4/31/61-T/MHA dated 1 April 1963, recited by the Supreme Court in Vineet Narain v. Union of India, (1998) 1 SCC 226.

s.1(2): extends to the whole of India. s.2(1): notwithstanding the Police Act 1861, the Central Government may constitute the force for investigation in any Union territory of offences notified under s.3. s.2(2): members have all the powers of the local police there. s.2(3): a member of or above Sub-Inspector has the powers of an officer in charge of a police station.

s.3: the Central Government by notification specifies the offences. The Act names none.

s.4, substituted by s.26(b) of the CVC Act 2003 w.e.f. 11 September 2003: (1) superintendence in Prevention of Corruption Act investigations vests in the Commission; (2) superintendence in all other matters vests in the Central Government; (3) administration vests in the Director, with such powers of an Inspector-General of Police as the Central Government specifies.

Three Divisions: Anti-Corruption, Special Crimes, Economic Offences, the last separated in 1994. Only the first is superintended by the Commission.

Test yourself

1. Is the Central Bureau of Investigation a statutory body? Not under that name. There is no Act called the Central Bureau of Investigation Act. The force in law is the Delhi Special Police Establishment, which the Central Government is empowered to constitute by section 2 of the Delhi Special Police Establishment Act 1946, and the name Central Bureau of Investigation was conferred on the organisation by the Government of India's Resolution No. 4/31/61-T/MHA dated 1 April 1963, as recited by the Supreme Court in Vineet Narain. Every power the agency exercises is a power under the Act of 1946, and the Resolution adds nothing to those powers.

2. What are the powers of a member of the Delhi Special Police Establishment? Within any Union territory, by section 2(2), all the powers, duties, privileges and liabilities which police officers of that Union territory have in connection with the investigation of offences committed there, in relation to the investigation of notified offences and the arrest of persons concerned in them; and by section 2(3), if he is of or above the rank of Sub-Inspector, any of the powers of the officer in charge of a police station in the area where he is for the time being. Both are subject to any orders the Central Government may make. Outside the Union territories his powers depend on an order under section 5 and the consent of the State under section 6, and when he acts under such an order section 5(2) deems him a member of the police force of that area.

3. Which offences may the agency investigate? Those which the Central Government specifies by notification in the Official Gazette under section 3. The Act itself names none, and the words limiting the section to offences committed in connection with matters concerning Departments of the Central Government were omitted by Act 26 of 1952. The subject-matter jurisdiction of India's principal investigating agency is therefore fixed entirely by executive notification and can be altered without amending the Act.

4. Explain the division of superintendence and administration under section 4. Section 4, as substituted by section 26(b) of the Central Vigilance Commission Act 2003 with effect from 11 September 2003, divides the position three ways. Superintendence of the Establishment so far as it relates to the investigation of offences under the Prevention of Corruption Act 1988 vests in the Central Vigilance Commission. Superintendence in all other matters vests in the Central Government. And the administration of the force vests in the Director, an officer appointed by the Central Government, who exercises in respect of the Establishment such of the powers of an Inspector-General of Police as that Government specifies. Since administration covers postings, transfers, promotions, discipline and resources, the Commission's superintendence extends to how corruption cases are handled and not to the careers of the officers who handle them.

5. Why does it matter that the agency has no Act of its own? For three reasons. First, its subject-matter jurisdiction is fixed by notification under section 3 and its territorial reach by orders under section 5 and consents under section 6, so both can be altered by the executive without reference to Parliament. Second, the safeguards that were added, the selection Committee for the Director in section 4A, the minimum tenure in section 4B and the appointment machinery in section 4C, sit in an Act of 1946 that was drafted for a war-time force of a few officers, and there is no statutory statement of the agency's functions, structure or accountability. Third, the fact that the organisation itself was created by a Resolution and not by legislation was the basis of the constitutional challenge to its existence in 2013, which remains undecided.