CBI Investigation: Constitutional Power of The High Courts to Direct It

Author: - Tanya Mehta

4th Year B.A. LL.B
Ramaiah Institute of Legal Studies, Bengaluru


A Supreme Court Judge once condemned the Central Bureau of Investigation (CBI) as a “caged parrot’’ and “its master’s voice’’. Article 32 and 226 of the Indian Constitution talks about the restriction on the powers of the Parliament and the executive, but not on the restriction on the powers of the judiciary, said by the bench comprising Chief Justice K G Balakrishnan, Justice R V Raveendran, Justice D K Jain, Justice P Sathasivam and Justice J M Panchal in a judgement in 2010.(1) The Supreme Court has clearly said that if a High Court directs that a particular investigation be handed over to the CBI, there is no need for any consent under the Delhi Special Police Establishment Act. A landmark judgment of this regard was the 2010 Supreme Court decision which has handed over the case of the killing of 11 Trinamool Congress workers in West Bengal in 2001 to the CBI.(2)

Being the protectors of civil liberties of the citizens, Supreme Courts and the High Court do not only have the power and jurisdiction but also have the liability to protect the Fundamental Rights guaranteed under part III of the Constitution of India in general and Article 21 (protection of life and personal liberty) in particular, zealously and vigilantly.”


The Central Bureau of Investigation is an independent body having its jurisdiction in New Delhi and other Union Territories. The CBI gets its primary power from the Delhi Special Police Establishment Act (DSPE). Section 5 of the said Act says that the “central government’’ extends its jurisdiction and powers of the CBI to the states for specified offences only. Though, Section 6 of the same Act mentions that the jurisdiction in Section 5 cannot be exercised without the consent of the needed state government.

The above procedure is derived from the Constitution of India. The “Seventh Schedule”, under the Constitution in “Entry 2 of the state list” gives powers of police of the state whereas the “Entry 2-A and Entry 80 of the Union list” extends the jurisdiction and power of the centre towards the police force of any state, subject to the consent of the state government.

In the case, “State of West Bengal and other vs. Committee for Protection of Democratic Rights’’ (CDR Case), the Supreme Court held that despite the statutory restriction in the DSPE Act, the Supreme Court under Article 32 and the High Court under Article 226, can direct any case to the CBI for a fair and unprejudiced enquiry. The court has always emphasized on the fact that an unprejudiced investigation is a basic human right and the concerned people owe it to the people to protect the fundamental rights of the citizen during the course of the investigation. Hence apart from the state government’s consent, the Supreme Court and even the High Court of the respective state can call for a CBI investigation. “A constitutional court being itself the custodian of the federal structure, the invocation of the federal structure doctrine is misplaced,” said Justice Jain writing the verdict for the bench. (3)


India, unfortunately, has a large number of corruption cases, despite this, a very small number of cases are transferred to the CBI. The tiny amount of cases that do end up going to the CBI and are found guilty later get acquitted by the court of law. The unnecessary interference of politics makes the protocols of CBI a tiresome process. Hence this is something that needs to be worked on along with the strengthening of the CBI, the law and the other bodies. To improve the current state of affairs, the statute today needs to be amended and make CBI an independent body and allow them to take up investigations and need not take consent from the state governments. This will eliminate unbiased factors, and make it easier for the CBI to function and not indulge in any kind of mishaps. With the current status of the court, they have immense power that’s vested with them. But with power comes great responsibility. In this case, the courts have been given a free hand to wave off investigations when they feel the need. This judgement is not backed by any guidelines, parameters, etc. This power needs to be restricted and must only be taken up under extraordinary conditions. Having said that, CBI remains an elite body and it needs to be protected in terms of having too much pressure on them with cases that aren’t particularly difficult for the state police to take over.

In a country like India, where people do not trust their state police, CBI stands to be an important part of providing unbiased justice to its people. The judicial system always needs to be the first step towards justice and protecting the fundamental rights of the people. The Supreme Court and High courts should have unrestricted powers in helping the CBI to provide a fair chance towards protecting their rights.



1. ‘High Courts can order CBI probe without State’s nod’ by J. Venkatesan 15th December 2016,

2. Limits of CBI jurisdiction by Devesh Kumar Pandey November 21st 2018,


3. HCs can direct CBI probe sans state consent By Sanjay K Singh 18th FEB 201, https://economictimes.indiatimes.com/news/politics-and-nation/hcs-can-direct-cbi-probe-sans-state-consent/articleshow/5586026.cms.

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