Centre-state turf wars over investigations
In July 1987, the then Prime Minister Rajiv Gandhi was nonplussed when Srikrishna Eknath Joshi, then RAW chief, refused his offer of extension of service. I was then working as his Chief Staff Officer. Joshi was appointed in that position in January 1986 and retired in July 1987 at the age of 58.
Joshi told me that the PM was quite upset hearing his reasons for refusal. He told him that it would be highly improper for the civil service ethics if he accepted an extension. The PM was also irked at his gratuitous advice not to grant extension to people on the verge of retirement as it would be considered politically oriented. Perhaps the PM did not know that Joshi, who was made of sterner stuff, was the grandson of legendary freedom fighter and social reformer Sir Moropant Joshi.
This incident comes to my mind on the recent retrospective revision of the 2018 order on the term of office of the present Director of Enforcement Directorate (ED) to enable him to continue in office for one more year. While ‘public interest’ was quoted for the unprecedented order, the string of politically important cases cited by the media revealed the real intention to all. Is it that the government could not find any other suitable officer in any of our services to succeed the present incumbent, who is the first head to be given a three-year tenure against the norm of two?
That this coincides with the complaints from state governments and jurists on the unconstitutionality of increasing use of Central agencies by the NDA government for organising raids and conducting criminal investigations is also significant as it is in violation of the distribution of powers.
A study of our Constituent Assembly proceedings would reveal that our founding fathers were very reluctant to confer any investigating powers in the states on the Central agencies. Although this was a British policy after the 1857 uprising, leading to the 1860 Police Commission and the 1861 Indian Police Act, our Constituent Assembly too adopted this policy for minority protection and bestowing more confidence among the states. Thus, we copied the Seventh Schedule (List II-Provincial) of the Government of India Act, 1935, as our Constitution’s Seventh Schedule (List II-State List) wherein public order and police, including village and railway police, were placed with the states.
True, the Union Powers Committee had recommended ‘Central Intelligence Bureau’ as item No. 3 in the Central List. However, the drafting committee changed it to ‘Central Bureau of Intelligence & Investigation’ as item No. 8 when it came for review on August 29, 1949. This change was necessary as the secret order of the Secretary of State creating our IB on December 23, 1887, had called it ‘Central Criminal Intelligence Department’.
Dr BR Ambedkar explained the position when some members objected to this as police and public order were with the states: “The word ‘investigation’ here does not permit and will not permit the making of an investigation into a crime because that matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a state subject, it has no place on the Union list.” He added that it was meant only as a general enquiry “for the purpose of finding out what is going on.” That is exactly the charter of our Intelligence Bureau.
In 1966, a Supreme Court Bench headed by Chief Justice M Hidayatullah amplified the role of the Centre in national security in Dr Ram Manohar Lohia vs State of Bihar (AIR 1966 SC 740). The SC ‘imagined’ three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of state. In other words, the Centre should be concerned only with national security and not with public order and law and order in normal times.
This protocol of Central agencies working through the state police was maintained even during the ill-famed Emergency (1975-77) as was my experience as the head of Bombay Special Branch. Although India was virtually a ‘unitary state’ during that period; not once did the CBI or ED conduct any raid independently of the state police. All detentions and prosecutions were done through cooperation with the state police.
This protocol is still followed by the CBI, which derives its power from the Special Police Establishment (SPE) Act of 1946 which lays down (Section 6) that the consent of the state concerned has to be obtained before they take up any investigation in the states.
Some sections believe that the NIA has direct all-India jurisdiction. Perhaps they forget that the then Tamil Nadu Chief Minister J Jayalalithaa had refused the NIA’s request to take over the investigation into the May 1, 2014, bombing of the Guwahati-Bangalore Express in which a TCS employee was killed. The case was investigated by the local CB (CID) and is still with the 11th MM Court, Saidapet.
Similar would be the case with the ED’s persistent efforts to do a parallel investigation, bypassing the local government, into the ‘irrigation scam’ which the Maharashtra Police are investigating, as reported by a national daily on October 18.
The Narcotics Control Bureau (NCB) was created in 1986 primarily for coordinating efforts with the state police and international agencies for big seizures. India continues to be the transit, storage and export point of big Af-Pak Golden Triangle drug syndicates. Yet, our opiate seizures (opium, morphine, heroin) in 2018, as reflected in UNODC 2020 report (Book-3), were found very low. Why then is the NCB focusing on sensational raids on soft Bollywood targets leading to such meagre seizures?
