General consent for CBI

FEDERALISM/ GOVERNANCE

• GS-2: Issues with Federalism
• GS-2: Statutory, regulatory and various quasi-judicial bodies. 

General consent for CBI

Context: The Supreme Court this week expressed concern over a submission by the CBI 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since 2018, around 150 requests for sanction to investigate have been pending with eight state governments that have withdrawn general consent to the agency.

What is general consent?

• The National Investigation Agency (NIA), which is governed by The NIA Act, 2008, has jurisdiction across the country. But the 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.
• A “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. 
• Almost all states have traditionally given such consent, in the absence of which the CBI would have to apply to the state government in every case, and before taking even small actions.

Which states have withdrawn general consent, and why?

• Eight states have currently withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram.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.
• At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.
  • 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.
  • The amendments made it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
  • 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.
• It is not that states started denying consent only after the present government came to power. States, including Sikkim, Nagaland, Chhattisgarh and Karnataka, have done this throughout the history of the agency. It is not a new phenomenon.

What does the withdrawal of general consent mean?

• 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.
• With consent, CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.
• 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 2021, 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.

So where does the CBI currently stand in these eight states?

• The agency can use the Calcutta HC order to its advantage until it is — if it is — struck down by the Supreme Court.
• Even otherwise, the withdrawal of consent did not make the CBI defunct in a state — it retained the power to investigate cases that had been registered before consent was withdrawn.
• Also, a case registered anywhere else in the country, which involved individuals stationed in these states, allowed the CBI’s jurisdiction to extend to these states.
• There is ambiguity on whether the CBI can carry out a search in connection with an old case without the consent of the state. But the agency has the option to get a warrant from a local court in the state and conduct the search.
• In case the search requires an element of surprise, Section 166 of the Criminal Procedure Code (CrPC) can be used, which allows a police officer of one jurisdiction to ask an officer of another to carry out a search on their behalf.
• And should the first officer feel that a search carried out by the latter may lead to loss of evidence, the section allows the first officer to conduct the search himself after giving notice to the latter.
• Finally, consent does not apply in cases where someone has been caught red-handed taking a bribe.

But what about fresh cases?

• Again, the CBI could use the Calcutta HC order to register a fresh case in any state. Alternatively, it could file a case in Delhi and continue to investigate people inside these states.
• In an order passed on October 11, 2018, Delhi High Court ruled that the agency could probe anyone in a state that has withdrawn general consent, if the case was not registered in that state
• In sum, avenues remain available to the CBI to proceed even without consent. The CBI could register cases in Delhi if some part of the offence is connected with Delhi, and still arrest and prosecute individuals in these states.

Can you answer this question now?

What are the various constitutional and statutory bodies constituted to address corruption in public life? How effective have these bodies been? Examine.