CBI and Consent of States

Subject – Polity

Context – The CBI has filed an affidavit in the Supreme Court on the withdrawal of ‘general consent’ to the agency by several States

Concept –

The CBI is governed by the Delhi Special Police Establishment Act (DPSEA). This law makes the CBI a special wing of Delhi Police and thus its original jurisdiction is limited to Delhi.

General Consent

The CBI needs consent of the state government in whose territorial jurisdiction, the CBI has to conduct an investigation (unlike NIA which enjoys All-India jurisdiction).
Section 6 of the DPSE Act authorizes the central government to direct CBI to probe a case within the jurisdiction of any state on the recommendation of the concerned state government.
However, the courts (SC and HC) can also order a CBI probe, and even monitor the progress of investigation in which case it won’t need states consent.
However even after withdrawal of the general consent The CBI continues to probe in old cases until specifically taken back by the state government. Further, it continues to investigate cases that were given to it by a court order.
When a state gives a general consent 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.
If the general consent is withdrawn CBI needs to seek case-wise consent for investigation from the concerned state government.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.
In case of lack of general consent the CBI can approach a local court for a search warrant and conduct investigation.

Has the agency’s job been affected?

The withdrawal of general consent does not affect pending investigation (KaziLendhupDorji 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cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent; nor does the withdrawal circumscribe the power of the jurisdictional High Court to order a CBI investigation.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.
The United Nations Convention against Corruption to which India is a signatory also requires firm impartial steps to combat corruption at all levels.

To know more about it, please refer October 2021 DPN.