Relevance: GS-2: Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Their in.

Key Phrases: General consent, Corruption, CBI, National Investigation Agency (NIA), State List, Seventh Schedule, DSPE Act, Autonomy, Statutory status, Constitutional amendment.

Why in News?

• Meghalaya has withdrawn consent to the CBI to investigate cases in the state, becoming the ninth state in the country to have taken this step. In November last year, the Supreme Court had expressed concern over a submission by the CBI that since 2018, around 150 requests for sanction to investigate had been pending with the eight state governments who had withdrawn general consent until then. “It is not a desirable position,” a Bench led by Justice S K Kaul had observed, and referred the matter to Chief Justice of India (CJI) N V Ramana.

What is General Consent?

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.

• This is consent by default, in the absence of which the CBI would have to apply to the state government in every case, and before taking even small actions.
• The consent of the state government to CBI can be either case-specific or general. In case of general consent, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.

Legal provisions:

• “Police'' is Entry 2 in the State List under the Seventh Schedule of the Constitution.
• The CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and it must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
• Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: “Nothing contained in section 5 (titled “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.”
• 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.

The CBI’s position is in this respect different from that of the National Investigation Agency (NIA), which is governed by The NIA Act, 2008, and has jurisdiction across the country.

Why withdrawal of consent?

Traditionally, almost all states have given CBI general consent. However, since 2015 onward, several states have begun to act differently. Before Meghalaya’s action, eight other states i.e., Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram had withdrawn consent to the CBI.

• Conflicts between states and central government: All these above states except Mizoram and Meghalaya are ruled by the political party opposing the centre's political party with allegation that centre is using the CBI and other agencies to pursue its own political interests and vendetta.
  • E.g., In 2018, the West Bengal government withdrew the general consent that had been accorded to the CBI by the previous government back in 1989.
• CBI losing its credibility: A "caged parrot" was how the Supreme Court had described the agency during a hearing of the Coalfield allocation cases in 2013. This was due to its excessive political interference irrespective of which party happened to be in power.
  • Over the last years, with the agency pressing ahead with investigations against a multitude of opposition leaders, the agency has been accused of catering to government's demands.

Impact of withdrawal of consent:

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.

• Delay in investigation: CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them and without local police help, they can’t investigate.
  • It will lead to “Justice delayed is justice denied”. If the relief to an injured party is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.
• No impact on pending cases: Kazi Lendhup Dorji v. CBI, 1994 case, Supreme court clarified that withdrawal of general consent does not affect pending investigation.
  • Also, the cases registered in another State in relation to which investigation leads into the territory of the State which has withdrawn general consent will continue.
• Supremacy of judiciary: The withdrawal of general consent does not circumscribe the power of the jurisdictional High Court to order a CBI investigation.

Measures suggested:

• Vinay Mishra vs the CBI case: The 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 exclusively employees of the state government were involved.
• Creation of a new federal agency: With enough powers and autonomy to work independently and impartially on merit of the cases registered.
  • Giving more autonomy to the CBI – The Madras High Court said in the past "The CBI should have autonomy as that of the Comptroller and Auditor General of India, who is only accountable to Parliament".
• Creation of Federal offences: To harmonise the relationship between the CBI and state police, CBI reform must also deal with the problems surrounding state consent. For this, through a constitutional amendment, “federal offences” should be included in the Union List of the Seventh Schedule of the Constitution.
• Granting statutory status to CBI: To make CBI independent with functional autonomy without administrative control of the Government. The court said, "The Government of India is directed to consider and take a decision for enactment of a separate Act giving statutory status with more powers and jurisdiction to CBI at the earliest”.
  • The court also said "The Director of the CBI shall be given powers as that of the Secretary to the Government and shall directly report to the Minister/Prime Minister without going through DoPT."
• Learnings from best practice globally: Facilities for the premier agency have to be enhanced, so that it could be equated with the Federal Bureau of Investigation (FBI) of the United States of America and Scotland Yard of the United Kingdom.

Conclusion:

• It is crucial that India’s premier investigative agency has a well-defined mandate, in addition to appropriate statutory and constitutional backing. The above proposal should enable the CBI to perform its role efficiently and within the federal constitutional framework. If the CBI is not reformed at the earliest, questions will continue to be raised in the future.

Sources: Indian Express  The Hindu

Mains Question:

Q. What is ‘general consent’ given by states to the CBI? Discuss the issues restricting CBI’s autonomy and suggest reforms to ensure independent and smooth functioning. [250 words].