CBI: CENTRE VS STATES
- 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 CBI by several States, for consideration of the Chief Justice of India.
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BACKGROUND
- Many non-BJP-ruled states – Punjab, Maharashtra, Jharkhand, West Bengal, Rajasthan, Chhattisgarh and now Kerala – have shut their doors to the CBI by withdrawing the general consent accorded by the state governments to the central agency investigate cases in their territories.
- 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.
- The National Investigation Agency (NIA), which by law, enjoys an all-India jurisdiction but CBI does not provide all India jurisdiction.
- CBI law – Section 6 of the DPSE Act authorises the central government to direct CBI to probe a case within the jurisdiction of any state on the recommendation of the concerned state government. The courts can also order a CBI probe, and even monitor the progress of investigation.
- The CBI manual says, “The central government can authorize CBI to investigate such 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 such a crime anywhere in the country without the consent of the state.”
TYPES OF CONSENT
There are two types of consent for a probe by the CBI. These are: general and specific.
- General – 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.
- Specific Consent – When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.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.
- This hurdle impedes seamless investigation by the CBI. A general consent is given to facilitate that seamless investigation in a case of corruption or violence.
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.
- “CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them,” a former CBI officer who has handled policy during his time in the agency, said.
- Calcutta High Court recently ruled in a case of illegal coal mining and cattle smuggling being investigated by the CBI, that the central agency cannot be stopped from probing an employee of the central government in another state. The order has been challenged in the Supreme Court.
- 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 petition had challenged the validity of FIRs registered by the CBI’s Kolkata branch after the withdrawal of consent.
WHAT TYPES OF CASES THE CBI INVESTIGATES IN A STATE?
- The CBI investigates three types of cases through three specialised wings. The Anti-Corruption Division that probes cases of corruption against public servants.
- The Economic Offences Division probes crimes of financial malfeasance, bank frauds, money laundering, black money operations, and the like. However, the CBI usually transfers cases of money laundering to the Enforcement Directorate (ED).
- There is a Special Crimes Division to investigate cases of violence such as murder, crimes related to internal security such as espionage, narcotics and banned substances, and cheating. It is this division of the CBI that generally handles cases that get wide media coverage, for example, actor Sushant Singh Rajput’s death case.
WAY FORWARD
- The fundamental impediment lies in the law that does not clearly envisage the CBI as a federal police force.
- The United Nations Convention against Corruption to which India is a signatory requires firm impartial steps to combat corruption at all levels.
- 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.
CENTRAL BUREAU OF INVESTIGATION (CBI)
- The CBI was set up in 1963 by a resolution of the Ministry of Home Affairs.
- Now, the CBI comes under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions.
- The establishment of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962–1964).
- The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946.
- The CBI is the main investigating agency of the Central Government.
- It also provides assistance to the Central Vigilance Commission and Lokpal.
- It is also the nodal police agency in India which coordinates investigations on behalf of Interpol Member countries.