CBI and consent of State

Context:

The Maharashtra government has withdrawn “general consent” given to the Central Bureau of Investigation (CBI) to probe cases in the state. The Centre has told the Supreme Court that States cannot withdraw consent for CBI probe by omnibus order.

Probable Question:

1. What do you mean ‘general consent’      given to the Central Bureau of Investigation by the state? What are the      rationale behind it and its implication on withdrawal of ‘general consent?

Key points:

● The CBI draws its power from the Delhi Special Police Establishment (DSPE) Act. The Home Ministry, through a resolution, set up the agency in April 1963.

● Under Section 5 of the Act, the Central government can extend its powers and jurisdiction to the States, for investigation of specified offences.

● However, this power is restricted by Section 6, which says its powers and jurisdiction cannot be extended to any State without the consent of the government of that State.

● The Supreme Court and High Courts can order CBI to investigate such a crime anywhere in the country without the consent of the state.

Type of Consent:

There are two types of consent for a probe by the CBI. These are: general and specific.

● When a state gives general consent to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that statein connection with investigation or for every case.

Rationale:

● As law and order belong to the states, all states normally give 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.

● The most common reason for withdrawal of consent is a strain in Centre-State relations and the oft-repeated allegation that the agency is being misused against Opposition parties.

The implication of Withdrawal:

● When general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.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.

● Withdrawal of 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.

● However, the CBI would still have the power to investigate old cases registered when general consent existed.

● There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government.

● However, there are legal remedies to that as well. The CBI can always get a search warrant from a local court in the state and conduct searches.

● In terms of fresh registration of cases, withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of the state from which the consent has been withdrawn. The CBI could still file cases in Delhi and continue to probe people inside the specific state.

Conclusion:

CBI serves as an important body for investigation, involving cases of Anti-corruption, Special Crimes and Economic offences. However, its independence has come under question several times with the Supreme Court calling it a ‘caged parrot’. The reason for the withdrawal of consent is mostly political and there is a need for independence of CBI through the constitutional or legislative process to ensure smooth functioning.