Under the Delhi Special Police Establishment (DSPE) Act, CBI needs the consent of states to take up cases in their jurisdictions.
Published Oct 30, 2022 | 5:43 PM ⚊ Updated Oct 30, 2022 | 5:43 PM
10 states withdraw CBI general consent. (Creative Commons)
On Saturday, 29 October, a Government Order — GO No: 51, issued two months back on 30 August by the state government — was mentioned in the Telangana High Court. The GO said that the general consent given to the CBI to investigate cases in the state stood withdrawn.
Telangana thus became the 10th state in the country to withdraw consent to the CBI to investigate cases within its jurisdiction.
The court was hearing the plea by BJP state leader Gujjula Premender Reddy seeking a CBI inquiry in the Cash for MLAs case in Telangana.
While the state BJP leader being unaware of the GO, which would have been sent to the Union Home Ministry headed by BJP’s No 2 Amit Shah, and the CBI itself, was surprising, let’s take a look at what withdrawal of general consent means.
CBI is governed by the Delhi Special Police Establishment (DSPE) Act, 1946, and the investigating agency has to have the consent of the states to take up the investigation of cases in their jurisdictions. The consent to CBI is either case-specific or a “general consent”.
When a state gives a general consent to the CBI, the agency is not required to seek permission every time it enters that state in connection with an investigation or for every case.
After the Act came into force, most of the states gave general consent to the CBI to help in the seamless investigation of cases of corruption against Union government employees in their states. This was consent by default.
If there is no general consent, the CBI has to seek permission from the state to register a case and investigate it.
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With politics playing around the CBI investigations in every state, several Opposition-led state governments have withdrawn the general consent given to the CBI. Telangana is the 10th such state.
After the death by suicide of actor Sushant Singh Rajput, when there were demands that the case be handed over to CBI — allegedly orchestrated by the BJP in its bid to embarrass the then Udhav Thackeray-led Opposition alliance government — the Maharashtra government withdrew the general consent given to CBI in October 2020.
The withdrawal made headlines in daily newspapers and sparked debates on TV news channels.
After Maharashtra, Opposition-led states like Punjab, Rajasthan, Jharkhand, Chhattisgarh, and Kerala withdrew the general consent given to the CBI.
The N Chandrababu Naidu-led Andhra Pradesh government in, November 2018, had withdrawn the general given to the CBI, but YS Jagan Mohan Reddy-led government in 2019 restored the consent.
The northeastern state of Mizoram, led by then Congress chief minister Lal Thanhawla, withdrew the general consent in 2015. Even after the formation of a NDA government in Mizoram in 2018, the state did not reinstate the general consent rule in the state.
The West Bengal government withdrew the general consent in November 2018, at the same time as Naidu did in Andhra Pradesh.
The Chhattisgarh government led by the Congress’ Bhupesh Baghel withdrew general consent in January 2019.
Interestingly, in March this year the NDA-led Meghalaya government also withdrew the consent given to the CBI.
When a state withdraws general consent, the CBI has to take case-by-case permission to conduct its investigations.
What if state denies consent even for a case-specific investigation?
The CBI can then appeal to the state high court or Supreme Court seeking a direction to the state to allow it to investigate the case. The Supreme Court or high courts can order CBI to investigate a crime anywhere in the country without the consent of the state.
Even if a state has withdrawn general consent, according to a judgment by Calcutta High Court in the Vinay Mishra vs the CBI case in July 2021, corruption cases must be treated equally across the country, and a central government employee could not be treated differently just because his office is located in a state that had withdrawn general consent.
The court said the general consent withdrawal will only apply when state government employees are involved.
In old and ongoing cases, CBI can get a warrant from a local court in case a search is required.
Also, Section 166 of the Criminal Procedure Code (CrPC) allows the CBI to carry out searches without informing the state police.
Consent is also not required in cases where someone has been caught red-handed taking bribe.
