In recent news, a case, which involved the Central Bureau of Investigation (CBI) filing an affidavit regarding the withdrawal of ‘general consent’ to CBI by several States, has been referred to the Chief Justice of India by the Supreme Court.
Overview of the Central Bureau of Investigation (CBI)
Established in 1963 by a resolution of the Ministry of Home Affairs, the CBI now falls under the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions. The creation of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962–1964).
Operating as a non-statutory body, the CBI draws its authority from the Delhi Special Police Establishment Act, 1946. Serving as the Central Government’s primary investigating agency, the CBI also offers assistance to the Central Vigilance Commission and Lokpal. It operates as India’s nodal police agency, coordinating investigations for Interpol Member countries.
Background: Withdrawal of Consent to CBI by States
Eight states, including West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh and Mizoram, have retracted their consent, restricting the CBI from initiating investigations in their territory.
According to the CBI, this wide-scale withdrawal of consent is crippling its ability to investigate corruption charges against Central employees and entities operating within various States. This withdrawal is perceived as a politico-legal strategy employed by States to prevent the Central Government from using its agencies power in those territories.
The Consent Process Explained
Based on Section 6 of the Delhi Special Police Establishment Act of 1946, which governs the CBI, the consent of a State is necessary for the CBI to carry out investigations beyond Union Territories. This legal foundation is designed from Entry 80 of the Union List that allows one State’s police force to extend its powers to another State, but only with the latter’s permission.
Consent Types
There are two types of consents:
1. ‘General Consent’ enables the CBI to investigate cases within a state without needing to seek fresh approval each time.
2. In the absence of ‘General Consent’, the CBI must obtain ‘Specific Consent’ for each case from the concerned state government. The absence of specific consent hinders seamless investigation by the CBI.
Important Precedents and Impact on Ongoing Investigations
As per a judgment in the Advance Insurance Co. Ltd case (1970), the term “State” in The General Clauses Act incorporates Union Territories. Hence, the CBI, constituted for Union Territories under the Delhi Special Police Establishment Act of 1946, can only proceed with investigations in state territories with their approval.
The withdrawal of general consent does not affect ongoing investigations or cases registered in other States where the investigation extends into the territory of a State that has withdrawn general consent.
Looking Ahead
The main obstacle lies in the law, which doesn’t clearly define the CBI as a federal police force. This issue could push towards creating a federal agency with clear powers and independence, while retaining the appointment process of the CBI chief through a constitutional trio consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of India by consensus. If such legislation takes place, Section 6 of the Delhi Special Police Establishment Act might give way to a clearer legal provision assuring fair investigation and prosecution.
