General consent for CBI

General consent for CBI

Subject – Polity

Context – The Supreme Court this week expressed concern over a submission by the CBI that since 2018, around 150 requests for sanction to investigate have been pending with eight state governments that have withdrawn general consent to the agency.

Concept –

• The National Investigation Agency (NIA), which is governed by The NIA Act, 2008, has jurisdiction across the country.
• But the CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
• The consent of the state government can be either case-specific or general.
• A “general consent” is normally given by states to help the CBI in seamless investigation of cases of corruption against central government employees in their states.
• Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: “Nothing contained in section 5 (“Extension of powers and jurisdiction of special police establishment to other areas”) shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”

Which states have withdrawn general consent, and why?

• Eight states have currently withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. All except Mizoram are ruled by the opposition.
• At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.

What does the withdrawal of general consent mean?

• It means the CBI will not be able to register any fresh case involving officials of the central government or a private person in the state without the consent of the state government.
• In Vinay Mishra vs the CBI, Calcutta HC ruled in July this year that corruption cases must be treated equally across the country, and a central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent.
  • The HC also said that withdrawal of consent would apply in cases where only employees of the state government were involved.
  • The agency can use the Calcutta HC order to its advantage until it is — if it is — struck down by the Supreme Court.
• Even otherwise, the withdrawal of consent did not make the CBI defunct in a state — it retained the power to investigate cases that had been registered before consent was withdrawn.
• Also, a case registered anywhere else in the country, which involved individuals stationed in these states, allowed the CBI’s jurisdiction to extend to these states.
• There is ambiguity on whether the CBI can carry out a search in connection with an old case without the consent of the state.
  • But the agency has the option to get a warrant from a local court in the state and conduct the search.
• In case the search requires an element of surprise, Section 166 of the Criminal Procedure Code (CrPC) can be used, which allows a police officer of one jurisdiction to ask an officer of another to carry out a search on their behalf.
  • And should the first officer feel that a search carried out by the latter may lead to loss of evidence, the section allows the first officer to conduct the search himself after giving notice to the latter.
• Finally, consent does not apply in cases where someone has been caught red-handed taking a bribe.

But what about fresh cases?

• Again, the CBI could use the Calcutta HC order to register a fresh case in any state.
• Alternatively, it could file a case in Delhi and continue to investigate people inside these states.
  • In an order passed on October 11, 2018, Delhi High Court ruled that the agency could probe anyone in a state that has withdrawn general consent, if the case was not registered in that state.

Political accusations aside, to what extent is the CBI “its master’s voice”?

• After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
• In 2018, the government pushed through Parliament amendments to Section 17A of the Act, making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
  • Earlier, the Centre had mandated that such permission was required only for officials of the level of joint secretary and higher. The amendments were brought after the Supreme Court struck down the government’s directive.
• CBI officers say the 2018 amendment virtually means the agency can investigate only the officers that the government of the day wants investigated.