Examining the federal nature of the Central Bureau of Investigation

How does withdrawal of general consent by States impact CBI? What has the Supreme Court observed and what lies ahead?

The story so far: 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 agency by several States, for consideration of the Chief Justice of India. Eight States — West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh and Mizoram — have withdrawn consent to the CBI for launching investigations in their territory, leading the Bench to point out that the situation is “not a desirable position”.

THE GIST

  • The CBI has filed an affidavit in the Supreme Court on the withdrawal of ‘general consent’ to the agency by several States. The agency said that such widespread withdrawal of consent is rendering its functioning redundant with regard to investigation of corruption charges against Central employees and other undertakings within the territorial jurisdiction of various States.
  • 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 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.

What is the CBI’s complaint?

According to the agency, 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. The CBI is said to be bearing the brunt of the States’ ire on its fraternal agencies like the Enforcement Directorate (ED) and the Income Tax Department.

Has the agency’s job been affected?

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cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent; nor does the withdrawal circumscribe the power of the jurisdictional High Court to order a CBI investigation. However, without the States’ general consent, the CBI offices get disrobed of their general status as Police Stations. In other words, the CBI gets handcuffed by the State governments with its freedom of action available only in the aforesaid occasions and in cases in which such a State gives specific consent in relation to an offence to be investigated.

What does the law say?

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 general consent given by the States enables the CBI to investigate corruption charges freely, as “police” is Entry 2 in the State List under the Seventh Schedule of the Constitution.

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. 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 and 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.

What happens next?

As the Supreme Court is currently hearing many cases including the appeal against the decision of the Calcutta High Court in the Vinay Mishra case (2021) by which the High Court refused to interfere with the ongoing CBI investigation, the Court in due course is not barred from reading down the requirement of States’ consent qua investigation on officials of Central establishments, while retaining the need for consent with regard to other aspects of policing. However, whether the Supreme Court will go to the extent of rendering an interpretation contrary to the letter of the statute is left to be seen. The fundamental impediment lies in the law that does not clearly envisage the CBI as a federal police force. 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.

The United Nations Convention against Corruption to which India is a signatory also requires firm impartial steps to combat corruption at all levels.

Abhilash M.R. is a lawyer practising in the Supreme Court

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