Pradeep Kumar Panda
Jharkhand became the latest Opposition-ruled state to withdraw general consent to the CBI. Jharkhand has joined the bandwagon of Opposition-ruled states that have withdrawn general consent for an investigation by the Central Bureau of Investigation (CBI). Several other states such West Bengal, Rajasthan, Maharashtra and Kerala had withdrawn their general consent earlier.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 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. The state is currently ruled by a coalition government headed by Hemant Soren of the Jharkhand Mukti Morcha (JMM) in alliance with the Congress and the Rashtriya Janata Dal (RJD).
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.
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.”
There are two types of consent for a probe by the CBI. These are: general and specific. When a state gives a general consent to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case. When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.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. This hurdle impedes seamless investigation by the CBI. A general consent is given to facilitate that seamless investigation in a case of corruption or violence.
The CBI investigates three types of cases through three specialised wings. The Anti-Corruption Division that probes cases of corruption against public servants. The Economic Offences Division probes crimes of financial malfeasance, bank frauds, money laundering, black money operations, and the like. However, the CBI usually transfers cases of money laundering to the Enforcement Directorate (ED). There is a 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. It is this division of the CBI that generally handles cases that get wide media coverage, for example, actor Sushant Singh Rajput’s death case.
There are at least seven states at present which have withdrawn general consent to the CBI requiring the agency to seek case-specific permission. They are Mizoram, West Bengal, Rajasthan, Maharashtra, Chhattisgarh, Kerala and Jharkhand. All of these states are ruled by the opposition parties except Mizoram, where the ruling Mizo National Front (MNF) is part of the NDA but invariably takes a stance opposite of the BJP. Of the rest, Rajasthan, Chhattisgarh, Maharashtra and Jharkhand have the Congress as part of the governments. Congress has its own majority governments in Rajasthan and Chhattisgarh.
In July 2019, a central government release said the CBI does not have a general consent from Tirpura for investigation. However, in a multi-state raid, the CBI later conducted searches in Tripura, which is ruled by the BJP. Punjab, a Congress-ruled state has not withdrawn general consent to the CBI. But in a significant move, it had withdrawn specific consent for a bunch of cases being probed by the CBI related to sacrilege. The cases had been handed over to the CBI in 2015 by the Shiromani Akali Dal-BJP government. After coming to power, the Captain Amarinder Singh government took back all the cases and formed a Special Investigation Team (SIT) to probe them.
Andhra Pradesh, Telangana and Odisha are ruled by non-BJP parties, the YSR Congress Party, the Telangana Rashtra Samiti and AIMIM, and the Biju Janata Dal, respectively. But these parties are not part of the Congress-led alliance either. Andhra Pradesh had previously withdrawn general consent to the CBI when the state was ruled by the Telugu Desam Party (TDP) and N Chandrababu Naidu was the chief minister. Naidu, after quitting NDA, had withdrawn the general consent, which was restored by the YS Jagan Mohan Reddy government, when it came to power in 2019. Delhi too is ruled by the BJP’s rival the Aam Aadmi Party (AAP) led by Chief Minister Arvind Kejriwal. But the Delhi government cannot withdraw its consent to the CBI. The same is the case with Puducherry that is ruled by the Congress. Like Delhi, Puducherry is also a Union Territory.
The CBI continues to probe in old cases until specifically taken back by the state government. Further, it continues to investigate cases that were given to it by a court order. The CBI can challenge the decision in a court showcasing its progress of investigation in the case. In Punjab’s case mentioned earlier, the Punjab and Haryana High Court had refused to reverse the state government’s decision. Further when the CBI does not have a general consent, it can approach a local court for a search warrant and conduct investigation. There is a provision in the CrPC that allows search and investigation in a state by outside agency but it has to happen through a local court.
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. A law came in 1941. It became the DSPE Act in 1946. The Act to set up CBI was not passed by Parliament. It was created by an executive order of the government. In that sense, the CBI is not a statutory body. The CBI functions under the Ministry of Personnel, Public Grievances and Pensions of the central government, and is exempted from the purview of the Right to Information (RTI) Act.
(Writer is a New Delhi based economist. Views are personal.)
