Gauhati High court decision declaring constitution of CBI as unconstitutional is not proper and for understanding the issue in proper perspective it is necessary to understand the powers of executive and legislature under constitution. Both executive and legislature has been given powers to make law as per the division of powers and powers to both co exist together. The only thing is that when any legislation is passed on any point executive can not make law on that point and if there is no legislation on any subject than executive can make law on that subject and that will be constitutional valid. In this case also there in legislation on constitution of CB I therefore constitution of C B I be 1963 resolution is perfect and there is no unconstitunility and further more executive order is neither required assent of President or approval of cabinet . when legislation is passed than only assent of president is required.
Section 2 of DSPE Act provide authority to the CBI to function as police organization under code of criminal procedure similar to state police. The section further empower union government to set up a special police force to investigate offences and member of such force would have all powers of police officer conferred by criminal procedure code. This issue has also been examined by Supreme court in C B I v/s Shri ravishankar srivastava criminal appeal no 36/2002 decided on 10.08.2006 by Division bench comprising of Justice Arjit pasayat and AltamasKabir.it has been decided without going in depth of the matter by division bench and it also seems that bench was not properly assisted by the bar in this matter as this matter no more resintegra in view of the decision of Supreme court of India.
