General consent to CBI

In News

• Recently, the Supreme Court (SC) expressed concern over the phenomenon of state governments withdrawing their consent for the CBI to investigate.

About

• CBI made a submission to the Supreme Court that since 2018, around 150 requests for sanction to investigate have been pending with eight state governments that have withdrawn general consent to the agency.
• The CBI had filed the affidavit after the court inquired about the bottlenecks it faced, and the steps it had taken to strengthen prosecutions.

Image Courtesy: TOI 

Central Bureau of Investigation (CBI)

• It is the main investigation agency of the central government for cases relating to corruption and major criminal probes.
• It has its origin in the Special Police Establishment set up in 1941 to probe bribery and corruption during World War II.
• CBI was set up by a resolution of the Ministry of Home Affairs in 1963 after the Santhanam committee recommendation.
• Superintendence of CBI rests with CVC in corruption cases and with the Department of personnel and training in other matters.
• Presently it acts as an attached office under DOPT.
• Although DSPE Act gives legal power to CBI, CBI is not a statutory body as:
• Word ‘CBI’ is not mentioned in the DSPE act.
• The executive order of MHA did not mention CBI to be constituted under DSPE Act.
• Important provision relating to when Consent can be withdrawn:
  • Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: “Nothing contained in section 5 (“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.”
• Can withdrawal mean that the CBI can no longer probe any case?
  • No. The CBI would still have the power to investigate old cases registered when general consent existed. 
  • Also, cases registered anywhere else in the country, but involving people stationed in states which have withdrawn consent, would allow CBI’s jurisdiction to extend to these states.
• Functions of CBI include solving:
  • Corruption Cases
  • Economic Crimes like financial frauds, narcotics, antiques, smuggling etc.
  • Special Crimes like Terrorism, ransom for kidnapping etc

Image Courtesy: TH 

• Have states started denying consent only after the present government came to power in Delhi?
  • No. States, including Sikkim, Nagaland, Chhattisgarh and Karnataka, have done this throughout the history of the agency.
  • Previous cases: 
    • In 1998, the Janata Dal government of Chief Minister J H Patel withdrew general consent to the CBI in Karnataka. 
    • The Congress government of S M Krishna, which took over in 1999, did not revoke the previous government’s order. The home minister of Karnataka then was Mallikarjun Kharge, the current Leader of Opposition in Rajya Sabha.
• Is CBI it’s own master voice?
  • After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
  • In 2018, the government pushed through Parliament amendments to Section 17A of the Act, making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
  • Earlier, the Centre had mandated that such permission was required only for officials of the level of joint secretary and higher. The amendments were brought after the Supreme Court struck down the government’s directive.
  • CBI officers say the 2018 amendment virtually means the agency can investigate only the officers that the government of the day wants investigated. In fact, corruption cases registered by the CBI dropped by over 40 per cent between 2017 and 2019.
  • So it can’t be said that CBI is its own master voice.

Issues

• Consent: 
  • CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
  • The consent of the state government can be either case-specific or general.
• States withdrawing consent:
  • Eight states have currently withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. 
  • All except Mizoram are ruled by the opposition.
  • Reason stated by the Governments:  The Central Government is using the CBI and other agencies to pursue its own political interests and vendetta.
• Prior permission of states: 
  • The conduct or continuance of investigation into offences committed with the territory of a state, consent of the state is required which most of the time is delayed or even denied.
• Lack of Administrative autonomy: 
  • Currently, vacancies in CBI have to be plugged through State or other Central forces on deputation. 
  • Thus, it is susceptible to the government’s ability to manipulate the senior officers, as their future postings are dependent on it.
• Lack of Financial Independency: 
  • Currently the CBI is not financially independent as administrative and financial control rests with the Ministry of Personnel.
• Delay in case handling: 
  • As of now CBI faces enormous delays in concluding investigation due to lack of manpower and resources.
• Deficient of workforce: 
  • It lack of adequately qualified and competent workforce
• Other issues: 
  • CBI powers are misused for vested gains leading to poor transparency and accountability of the agency to the people at large.

Effects of state withdrawing Consent

• No new cases registered: 
  • 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.
• Losing Powers: 
  • CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.

Court’s stand

• 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.

Way Ahead

• The role, jurisdiction and legal powers of the CBI need to be clearly laid down.
• It will give it goal clarity, role clarity, autonomy in all spheres.

Source: IE