General Consent to the CBI

Supreme Court recently held that State government’s consent is mandatory for CBI investigation in its jurisdiction.

  • A bench of Justices A M Khanwilkar and B R Gavai said the provisions are in tune with the federal character of the Constitution, which has been held to be one of its basic structures.
  • The apex court referred to sections 5 and 6 of the Delhi Special Police Establishment (DSPE) Act, which deal with extension of powers and jurisdiction of special police establishment to other areas and consent of state government to exercise of powers and jurisdiction.
  • Supreme court observed that, it could thus be seen, that though Section 5 enables the central government to extend the powers and jurisdiction of members of the DSPE beyond the Union Territories to a State, the same is not permissible unless a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act.
  • The apex court’s observation came on an appeal filed by some accused, private and public servants, challenging the validity of the CBI investigation against them in a corruption case on the ground that prior consent was not taken from the state government.
  • The observation assumes significance as recently the governments of Kerala, Punjab, West Bengal, Rajasthan, Maharashtra, Jharkhand and Chhattisgarh withdrew their “general consent” to the CBI.
  • The appeals challenged a judgment passed by the Allahabad High Court in August 2019 against Fertico Marketing and Investment Private Limited and others.
  • The high court had noted that the Uttar Pradesh government had granted post-facto consent against the two public servants who were later named in the charge sheet and that it was sufficient for proceeding with the case.
  • The top court rejected the appeal of the accused and said the state of UP had accorded a general consent for an extension of powers and jurisdiction of the members of DSPE in 1989 in the whole of the state under the Prevention of Corruption Act.

What is a General Consent?

  • The CBI is governed by the Delhi Special Police Establishment Act that makes consent of a state government mandatory for conducting investigation in that state.
  • There are two kinds of consent in the form of case-specific consent and general consent.
  • Central government through notification can ask CBI to investigate against central government employees against Income tax violations, conspiracy against nation, spying etc.
  • As law and order belongs to the states, all states normally gave a general consent to CBI for these investigations.
  • “General consent” is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state.
  • For example, if CBI wanted to investigate a bribery charge against a Western Railway clerk in Mumbai, it would have to apply for consent with the Maharashtra government before registering a case against him.
  • However, despite central government notification, CBI can’t investigate any case registered by state government against state government employees or institutions.
  • Thus the modality of CBI investigation into state government matters is that state governments has to request CBI with permission for a particular case. This will be followed by a central notification to the CBI for that case.
  • Only if High courts or the Supreme court rules that there is a need for CBI investigation, then it is deemed that the consent of state government is there and thus central government notifies.
  • Withdrawal of a consent means that the CBI will not be able to register any fresh case involving a central government official or a private person without getting case-specific consent from the states.
  • This shows that a general consent is not sufficient enough to investigate and CBI has to get case-specific consent from the states.
  • It simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
  • It also makes them to seek permission of the state government for every case and every search it conducted on central government employees.
  • Over the years, several states have withdrawn general consent, including Sikkim, Nagaland, Chhattisgarh and Karnataka, which stands out as an example for the recent move.

What does the CBI law say?

  • 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.”

Impact of Withdrawal of General Consent

  • It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in these two states without getting case-specific consent.
  • Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of respective states. The CBI could still file cases in Delhi and continue to probe people inside the states.
  • Cases registered anywhere else in the country, but involving people stationed in those states, would allow CBI’s jurisdiction to extend to these states.
  • In simple terms withdrawal of consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
  • It will have no impact on investigation of cases already registered with CBI as old cases were registered when general consent existed.