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CBI, States and General Consent (14 November 2020)

CBI, States and General Consent (14 November 2020)

Why in News:

Jharkhand withdraws general consent to CBI for investigation.

Context:

Jharkhand has joined the bandwagon of Opposition-ruled states that have withdrawn general consent for an investigation by the Central Bureau of Investigation (CBI). Several other states such West Bengal, Rajasthan, Maharashtra and Kerala had withdrawn their general consent earlier. The move, which makes it necessary for the central agency to get the state government's permission to conduct investigations in the state, comes a day after Kerala also withdrew the privilege.

Background:

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.

Recently, a Calcutta High Court order expanded its jurisdiction to investigate the central government employees in West Bengal without seeking specific consent of the state government.

For other matters, the CBI needs consent of the state government in whose territorial jurisdiction, the CBI has to conduct an investigation.

This is unlike other central government agencies, for example, the National Investigation Agency (NIA), which by law, enjoys an all-India jurisdiction.

The official notification by Jharkhand government mentioned that “the powers vested on CBI were given dated 19th February 1996 by the erstwhile then Bihar Govt to CBI”.

Jharkhand came into being as a separate state in 1999.

Summary of the Debate

About CBI:

  • The CBI came into being during the World War II, when the colonial government felt the need to probe cases of corruption in the War and Supply Department.
  • It operates under jurisdiction of Union Ministry of Personnel, Public Grievances and Pensions and functions under the Delhi Special Police Establishment Act (DSPEA), 1946.
  • CBI is not a statutory body. It was created by a resolution of the Home Affairs Ministry.
  • CBI is exempted from the purview of the Right to Information (RTI) Act.

What is general consent?

  • 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 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:

  • General consent:  To aid the CBI easily perform its investigation into cases of corruption against central government employees in the concerned state. Almost all states have given such consent.
  • Case-specific: 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.

Does withdrawal of general consent stop all CBI probes?

  • CBI continues to probe in old cases until specifically taken back by the state government.
  • Supreme Court in its past judgement said that ‘’After withdrawal of consent, fresh case cannot be registered’’.
  • In Kazi Lhendup Dorji vs Central Bureau of Investigation, Supreme Court says that if a case is already in investigation that investigation will continue, withdrawal of consent will not affect that.
  • CBI continues to investigate cases that were given to it by a court order.

Types of cases CBI investigates in States:

  • Anti-Corruption Division: This division probes cases of corruption against public servants.
  • Economic Offences Division: They probe crimes of financial malfeasance, bank frauds, money laundering, black money operations, etc. However, the CBI usually transfers cases of money laundering to the Enforcement Directorate (ED).
  • 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.

Way Forward:

  • It is important to make best of the existing structure. CBI has to carry its own image; nobody is going to build the image.
  • Consent or without consent, CBI must probe in an absolutely independent manner to reach to the bottom of the truth.
  • State governments should mend their ways, the system which has been failing last over 70 years; they should be allowed to function. So, they should restore the general consent for CBI investigation.
  • The central government should take an extra step to mollify the hurt sentiments of the state governments so that they restore the jurisdiction.
  • Whatever comes on the plate of CBI, they should investigate with 100 percent professionalism without any fear or favour.

Important points made by the Guests

M. L. Sharma, Former Special Director, CBI  

  • CBI has concurrent jurisdiction, not only in Union Territory of Delhi, but all UTs.
  • Because of the constitutional framework, in 1946 when this Act was made, at that time, there was Government of India Act, 1935 which divided the subjects between the centre and the state governments.
  • So, keeping all that in view, section 6 of the DSP Act provided that for carrying out investigation in state, prior consent of the state government is required. In Union Territory, no consent is required.
  • The practice that developed was that state governments accorded the consent only for cases under the Prevention of Corruption Act and that too against the central government employees, not against the state government employees and not against the state politicians.
  • The Court has earlier said that ‘In the writ jurisdiction, they can ask CBI to investigate any case whether it has occurred any crime in Union Territory or in any State’.
  • NIA Act stands on very fragile constitutional ground, nobody has challenged it, because they have jurisdiction in 8 crimes- Hijacking, killing head of the state, etc. So, it does not hurt state governments in any manner. Therefore, they have kept quite.
  • Let the legal framework be same as it is, let us enrich it by cooperative federalism.

Dr. Vikram Singh, Former DGP, Uttar Pradesh  

  • CBI is made by deputationists in a very large number. CBI has a cadre of its own but it is supplemented and ably and competently assisted by deputationists of all ranks within the CBI.
  • The CBI works in a different ecosystem and the state investigating machinery works in a different ecosystem. The tools are the same but the ecosystems are different and when the ecosystems are different, the end products are also very different, the priorities are different, and the time frame is different.
  • Public interest and the pursuit of truth are the paramount interests and there can be no compromise on that and they are not negotiable also.

Sangram Patnaik, Advocate, Supreme Court

  • When the concept called the CBI started, way back in 1942 and given shape and size. In 1946, the requirement of CBI was different than of today.
  • CBI was to check economic crime, special crimes, corruption cases, high profile cases, etc.
  • Almost about 8 states have taken of their consent. Several other states such West Bengal, Rajasthan, Maharashtra and Kerala had withdrawn their general consent earlier.
  • Tripura and Mizoram also have revoked the general consent in the past.

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