Neither State not Union can bar CBI, Centre tells SC

Context:

The Union Government told the Supreme Court that Mamata Banerjee’s government in West Bengal does not have any “absolute” power to keep the Central Bureau of Investigation (CBI) from investigating crimes inside the State.

Relevance:

GS-II: Polity and Constitution

Dimensions of the Article:

1. Central Bureau of Investigation (CBI)
2. Functions of CBI
3. About the current tussle regarding CBI
4. Union Government’s Argument:
5. What is General Consent?
6. Does withdrawal of General Consent mean that the CBI can no longer probe any case in the state?

Central Bureau of Investigation (CBI)

• The Central Bureau of Investigation (CBI) was set up in 1963 after the recommendation of Santhanam committee under Ministry of Home affairs and was later transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
• Now, the CBI comes under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions.
• The CBI derives its powers from the Delhi Special Police Establishment Act, 1946, however, it is NOT a Statutory Body.
• CBI is the apex anti-corruption body in the country – Along with being the main investigating agency of the Central Government it also provides assistance to the Central Vigilance Commission and Lokpal.
• The CBI is required to obtain the prior approval of the Central Government before conducting any inquiry or investigation.
• The CBI is also the nodal police agency in India which coordinates investigations on behalf of Interpol Member countries.
• The CBI’s conviction rate is as high as 65 to 70% and it is comparable to the best investigation agencies in the world.
• The CBI is headed by a Director and he is assisted by a special director or an additional director. It has joint directors, deputy inspector generals, superintendents of police.
• CBI has following divisions
  1. Anti-Corruption Division
  2. Economic Offences Division
  3. Special Crimes Division
  4. Policy and International Police Cooperation Division
  5. Administration Division
  6. Directorate of Prosecution
  7. Central Forensic Science Laboratory

Functions of CBI

1. Investigating cases of corruption, bribery and misconduct of Central government employees
2. Investigating cases relating to infringement of fiscal and economic laws, that is, breach of laws concerning export and import control, customs and central excise, income tax, foreign exchange regulations and so on. However, such cases are taken up either in consultation with or at the request of the department concerned.
3. Investigating serious crimes, having national and international ramifications, committed by organized gangs of professional criminals.
4. Coordinating the activities of the anti-corruption agencies and the various state police forces.
5. Taking up, on the request of a state government, any case of public importance for investigation.
6. Maintaining crime statistics and disseminating criminal information.
7. The CBI acts as the “National Central Bureau” of Interpol in India.

About the current tussle regarding CBI

• The Union Government has told the Supreme Court that the West Bengal State Government does not have any absolute power to keep the Central Bureau of Investigation (CBI) from investigating crimes inside the State.
• West Bengal has challenged the CBI’s jurisdiction to register FIRs and conduct investigations in the State in myriad cases. West Bengal said it had withdrawn “general consent” to the CBI way back in 2018.
• The Union Government, through the Department of Personnel and Training, was responding to a suit filed by the West Bengal Government against the Union of India under Article 131 of the Constitution.
• Article 131 gives the Supreme Court original jurisdiction (i.e., the Supreme Court can hear the case first-hand rather than reviewing a lower court’s judgment) to mediate disputes between states or between the Centre and states.

Union Government’s Argument:

• The Union Government has said that the withdrawal of general consent would not stand in the way of constitutional courts entrusting the CBI with the cases “where it is found that the State police would not effectively conduct a fair and impartial investigation”.
• Besides, it argues that the CBI is empowered to probe cases concerning any of the Central subjects enumerated in the Union List in the Seventh Schedule of the Constitution.
• It also argues that the alleged crimes under investigation were offences under parliamentary laws.

What is General Consent?

• In order to conduct an investigation in a state, the CBI must mandatorily have the consent of that state government.
• The general consent is routinely given by State governments for periods ranging from six months to a year to the CBI and all agencies under the Delhi Special Police Establishment (DSPE) Act, 1946.
• The consent is necessary as the jurisdiction of these agencies is confined to Delhi and Union Territories under this Act.
• There are two kinds of consent: case-specific and general. Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent.
• “General consent” is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state. Almost all states have given such consent. Otherwise, the CBI would require consent in every case.
• Other states such as West Bengal, Andhra Pradesh, Rajasthan and Maharashtra have also withdrawn consent to the CBI to operate freely in their respective jurisdictions.

Does withdrawal of General Consent mean that the CBI can no longer probe any case in the state?

• Withdrawal of consent will only bar the CBI from registering a case within the jurisdiction of such states.
• 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 a state that has withdrawn general consent, would allow CBI’s jurisdiction to extend to these states.
• There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government.
• However, there are legal remedies to that as well. The CBI can always get a search warrant from a local court in the state and conduct searches.
• In case the search requires a surprise element, there is CrPC Section 166, which allows a police officer of one jurisdiction to ask an officer of another to carry out searches on his behalf.
• And if the first officer feels that the searches by the latter may lead to loss of evidence, the section allows the first officer to conduct searches himself after giving a notice to the latter.

-Source: The Hindu