In Supreme Court, Centre says it sends CBI to States for probes

In Supreme Court, Centre says it sends CBI to States for probes

Subject: Polity

Sec: Constitution

Tag: Art 131, Original jurisdiction of SC

Context:

The Supreme Court on Wednesday refused to accept at face value the Centre’s claim that it has no control over the Central Bureau of Investigation (CBI), asking who else can send the premier investigating agency to States to investigate cases.

What is the issue?

• The SC is hearing an original suit filed by the State of West Bengal under Article 131 of the Constitution, accusing the Union government of “interfering” in cases originating within the State’s jurisdiction by unilaterally  authorising the CBI to probe them.
• West Bengal said the Centre continues to employ the CBI regardless of the fact that the State had withdrawn its general consent to CBI investigations within its territory under Section 6 of the Delhi Special Police Establishment (DSPE) Act, 1946 way back in November 2018. The CBI has registered over 15 cases in West Bengal.

Article 131:

• According to Article 131, the SC has exclusive and original jurisdiction over legal issues originating between States or between States and the Union.
• Original jurisdiction is the power of the court to hear and determine a dispute in the first instance.
• Original jurisdiction of the SC:
• between the Government of India and one or more States
• between the Government of India and any State or States on one side and one or more other States on the other
• between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
• The nature of Article 131 is subject to provisions of the Constitution and is limited to disputes involving legal rights, as mentioned in the Article itself.
• Thus, disputes of political nature are not covered under this, unless legal rights are at stake.
• The SC held that the meaning of the word ‘State’ under Article 131 does not include any private citizen, company, or a government department, even if it had filed a complaint along with any State Governments.

Restrictions:

• The original jurisdiction of the SC does not extend to disputes arising out of any treaty, agreement, covenant, engagement, sanad, or any other similar instrument which came into being before the commencement of the Constitution.
• The parliament may exclude the jurisdiction of the SC in disputes relating to the use, distribution, or control of the water of any inter-state river;
• Suits brought by private individuals against the Government of India.

What is CBI?

• Central Bureau of Investigation (CBI) is the premier investigating police agency in India.
• It functions under the superintendence of the of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India – which falls under the prime minister’s office.
• However for investigations of offences under the Prevention of Corruption Act, its superintendence vests with the Central Vigilance Commission.
• It is also the nodal police agency in India which coordinates investigation on behalf of Interpol Member countries.
• Its conviction rate is as high as 65 to 70% and it is comparable to the best investigation agencies in the world.

Cases Handled by the CBI

• Anti-Corruption Crimes – for investigation of cases under the Prevention of Corruption Act against Public officials and the employees of Central Government, Public Sector Undertakings, Corporations or Bodies owned or controlled by the Government of India.
• Economic Crimes – for investigation of major financial scams and serious economic frauds, including crimes relating to Fake Indian Currency Notes, Bank Frauds and Cyber Crime, bank frauds, Import Export & Foreign Exchange violations, large-scale smuggling of narcotics, antiques, cultural property and smuggling of other contraband items etc.
• Special Crimes – for investigation of serious and organized crime under the Indian Penal Code and other laws on the requests of State Governments or on the orders of the Supreme Court and High Courts – such as cases of terrorism, bomb blasts, kidnapping for ransom and crimes committed by the mafia/the underworld.
• Suo Moto Cases – CBI can suo-moto take up investigation of offences only in the Union Territories.
• The Central Government can authorize CBI to investigate a crime in a State but only with the consent of the concerned State Government.
• The Supreme Court and High Courts, however, can order CBI to investigate a crime anywhere in the country without the consent of the State.

Director of CBI

• Director, CBI as Inspector General of Police, Delhi Special Police Establishment, is responsible for the administration of the organisation.
• Till 2014, the CBI Director was appointed on the basis of the DSPE Act, 1946.
• In 2003, DSPE Act was revised on Supreme Court’s recommendation in the VineetNarain case. A committee that had members from Central Vigilance Commission, Secretaries from Home Ministry, Ministry of Personnel and Public Grievances would send recommendations to Central Government for the appointment of CBI Director.
• In 2014, the Lokpal Act provided a committee for appointment of CBI Director: Headed by Prime Minister, Other members – Leader of Opposition/ Leader of the single largest opposition party, Chief Justice of India/ a Supreme Court Judge.
• Home Ministry sends a list of eligible candidates to DoPT. Then, the DoPT prepares the final list on basis of seniority, integrity, and experience in the investigation of anti-corruption cases, and sends it to the committee.

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.