General consent for CBI : now withdrawn by Meghalaya
General consent for CBI : now withdrawn by meghalaya
What is the news:
Meghalaya has withdrawn consent to the CBIto investigate cases in the state, becoming the ninth state in the country to have taken this step.
Meghalaya is ruled by Conrad Sangma’s National People’s Party (NPP) which is part of the BJP-led National Democratic Alliance.
In November last year, the Supreme Court had expressed concernover 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since 2018, around 150 requests for sanction to investigate had been pending with the eight state governments who had withdrawn general consent until then.
What is general consent?
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 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.
The consent of the state government to CBI can be either case-specific or general.
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.
Which states have withdrawn consent, and why?
Traditionally, almost all states have given CBI general consent. However, since 2015 onward, several states have begun to act differently.
Before Meghalaya’s action on Friday (March 4), eight other states had withdrawn consent to the CBI: Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. All these states except Mizoram and Meghalaya are ruled by the anti-BJP opposition.
The first state to withdraw consent was Mizoram in 2015. The state was ruled by the Congress at the time, and Lal Thanhawla was Chief Minister. In 2018, the Mizo National Front (MNF) under Zoramthanga came to power; however, even though the MNF is an NDA ally, consent to the CBI was not restored.
In November 2018, the West Bengal government led by Mamata Banerjee withdrew the general consent that had been accorded to the CBI by the previous Left Front government back in 1989. West Bengal announced its decision within hours of Andhra Pradesh, then ruled by N Chandrababu Naidu’s TDP, taking a similar decision.
“What Chandrababu Naidu has done is absolutely right. The BJP is using the CBI and other agencies to pursue its own political interests and vendetta,” Banerjee said.
After Naidu’s government was replaced by that of Y S Jagan Mohan Reddy in 2019, Andhra Pradesh restored consent.
The Congress government of Chief Minister Bhupesh Baghel in Chhattisgarh withdrew consent in January 2019. Punjab, Maharashtra, Rajasthan, Kerala, and Jharkhand followed in 2020. At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.
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.
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, 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.
The petition had challenged the validity of FIRs registered by the CBI’s Kolkata branch after the withdrawal of consent.
where does the CBI currently stand in these states?
The agency can use the Calcutta HC order to its advantage until it is — if it is — struck down by the SC.
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 government. 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.
About CBI :
The Central Bureau of Investigation (CBI) is the premier investigating agency of India.[4][5] It operates under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions, Government of India.