Consent of States for CBI Investigations | 02 Dec 2021

Why in News

Recently, a Supreme Court bench has referred a case, in which the CBI (Central Bureau of Investigation) had filed an affidavit on the withdrawal of ‘general consent’ to the CBI by several States, for consideration of the Chief Justice of India.

Key Points

• Background:
  • Withdrawal of Consent: Eight States have withdrawn consent to the CBI for launching investigations in their territory.
    • Eight States — West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh and Mizoram have withdrawn consent to the CBI for launching investigations in their territory.
  • Argument of CBI: According to the CBI, such widespread withdrawal of consent is rendering it redundant with regard to investigation of corruption charges against Central employees and undertakings working within the territorial jurisdiction of various States.
    • While the States’ responses were primarily an act of politico-legal ring-fencing against the politics of the Central Government employing its agencies, the withdrawal of general consent by a number of States has left the CBI handicapped.
• About the Consent Given by State Government:
  • Legal and Constitutional Basis: According to Section 6 of the Delhi Special Police Establishment Act of 1946 under which the CBI functions, the State’s consent is required to extend CBI investigation beyond Union Territories.
    • The legal foundation of the CBI has been construed to be based on Entry 80 of the Union List which provides for the extension of powers of the police force belonging to one State to any area in another State but not without its permission.
    • “Police'' is Entry 2 in the State List under the Seventh Schedule of the Constitution.
  • Types of Consent:
    • There are two types of consent for a probe by the CBI.
      • General Consent: When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
        • A general consent is given to facilitate that seamless investigation in a case of corruption or violence.
      • Specific Consent: When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.
        • If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.
        • This hurdle impedes seamless investigation by the CBI.
  • SC Judgement:
    • In the Advance Insurance Co. Ltd case, 1970, a Constitution Bench held that the definition of “State”, as contained in The General Clauses Act, includes Union Territories as well.
    • Hence the CBI, being a force constituted for Union Territories as recognised under the Delhi Special Police Establishment Act of 1946, can conduct investigation into the territories of the States only with their consent.
  • Impact on Pending Investigation:
    • The withdrawal of general consent does not affect pending investigation (Kazi Lendhup Dorji v. CBI, 1994) or the cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent, nor does the withdrawal circumscribe the power of the jurisdictional High Court to order a CBI investigation.

Way Forward

• The fundamental impediment lies in the law that does not clearly envisage the CBI as a federal police force.
• The United Nations Convention against Corruption to which India is a signatory requires firm impartial steps to combat corruption at all levels.
• The predicament of withdrawal of consent by a number of States may lead to the legislative move of creating a federal agency with manifest powers and autonomy while retaining the process of appointment of the CBI chief by a committee consisting of the constitutional trio, the Prime Minister, the Leader of the Opposition and the Chief Justice of India preferably by consensus.
  • In case of such a legislation, Section 6 of the Delhi Special Police Establishment Act may give way to a clearer legal provision which guarantees fair investigation and prosecution.

Source: TH