The Issue of Withdrawal of General Consent to CBI – Explained, pointwise

Introduction

Recently, the Supreme Court expressed concern about states withdrawing general consent to the Central Bureau of Investigation (CBI) for investigating cases. At present, eight states have withdrawn general consent to the agency. The court observed this as “not a desirable position.”

What was the case?

SC was hearing an appeal filed by CBI against the Jammu and Kashmir High Court order. The Court observed the delay of 542 days in filing the appeal and inquired about the challenges faced by the CBI in ensuring the timely prosecution. In response, CBI filed an affidavit in the Court stating the issue of withdrawal of consent by the states.

About CBI’s jurisdiction and its power to investigate cases in states

CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946. However, the unlimited jurisdiction of CBI is confined to Union Territories and Railway areas, under this Act.

Section 5 of the DSPE Act empowers special police establishments (SPEs), including CBI, to investigate cases in the states. Section 6 of the DSPE Act restricts the powers of SPEs under section 5 and puts the condition of the consent of the state government to investigate any case in that state.

So, the CBI must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.

What is general consent?

A consent to CBI can be either case-specific or general.

A “general consent” is normally given by states to help the CBI in the seamless investigation of corruption against central government employees. It means CBI doesn’t require permission from the state government before starting an investigation in that state.

If a state doesn’t give general consent to the CBI, it would have to apply to the state government in every case, and before taking even small actions.

Why States are withdrawing general consent?

Although this is not a new trend, states have been withdrawing their consent throughout the history of the agency. But, after the 2018 amendment to the Prevention of Corruption Act (PCA), 1988, many states have withdrawn the consent.

In 2018, an amendment to the Prevention of Corruption Act (PCA), 1988 was enacted. This amendment made it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant. Earlier, permission was required for cases against officials of the level of joint secretary and higher.

This created the following problems – 1) The Centre now exercises the power over the CBI not just administratively, but also legally, 2) Agency can investigate only the officers that the central government wants to be investigated, 3) Corruption cases registered by the CBI dropped by over 40% between 2017 and 2019.

How does the withdrawal of general consent affect CBI powers and jurisdiction?

1) CBI will not be able to register any fresh case against any central government official or a private person, without the consent of the state, 2) CBI officers will lose all powers of a police officer, whenever they enter the state.

However, CBI can investigate a case in the following conditions:

1) CBI has the power to investigate cases that had been registered before consent was withdrawn. 2) CBI can investigate a case against a person if it is registered outside the state in which he is stationed. For example, it can file a case in Delhi, if the case involves a Delhi connection, and investigate a case in any state. 3) CBI can get a warrant from a local court in the state and conduct the search. 4) Consent is not required in the cases, where a person is caught red-handed, taking a bribe. 5) Section 166 of the Criminal Procedure Code (CrPC) allows a police officer of one jurisdiction to ask an officer of another to carry out a search on their behalf. If there is a fear of loss of evidence due to this arrangement, the officer of another jurisdiction can carry out a search by himself and provide the notice for the same later.

Various court rulings and their implications

Vinay Mishra vs the CBI case, 2021: In this, the Calcutta High Court ruled, 1) Corruption cases must be treated equally across the country, 2) A central government employee could not be “distinguished” just because his office was located in a state that had withdrawn general consent, 3) Withdrawal of consent would apply in cases where only employees of the state government were involved.

The ruling has been challenged in the Supreme Court. If it is upheld, CBI will be able to investigate cases against Central government employees in any state, even if consent is not given.

Delhi High Court: In 2018, the court ruled that the CBI can probe anyone in a state that has withdrawn general consent if the case was not registered in that state. Thus, Delhi HC allowed investigation in Chhattisgarh, because the case was registered in Delhi.

Implications of withdrawal of general consent to CBI

1) It is increasing the pendency of cases. As per an affidavit filed by CBI in Supreme Court, CBI’s requests in 78% of cases are pending with the states that have withdrawn the consent. 2) Economic Impacts: Some of the pending cases include important cases such as bank frauds, which can impact the Indian economy.