The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India. UPSC 2021, 15 Marks

Q11. एक राज्यविशेष के अन्दर प्रथम सूचना रिपोर्ट दायर करने तथा जाँच करने के केन्द्रीय अन्वेषण ब्यूरो (सी०बी०आइ०) के क्षेत्राधिकार पर कई राज्य प्रश्न उठा रहे हैं। हालांकि, सी॰बी०आइ० जाँच के लिए राज्यों द्वारा दी गई सहमति को रोके रखने की शक्ति आत्यंतिक नहीं है। भारत के संघीय ढाँचे के विशेष संदर्भ में विवेचना कीजिए। (उत्तर 250 शब्दों में दीजिए)

Q11. The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.(Answer in 250 words) 15

Answer:

The Central Bureau of Investigation (CBI) was established in 1963 by a Ministry of Home Affairs decree. It was then transferred to the Ministry of Personnel and is currently considered an affiliated office. The Special Police Establishment (which investigated vigilance cases) was integrated with the CBI in 1941.

The Santhanam Committee on Corruption Prevention suggested that the CBI be established (1962-1964). The CBI is not a government agency. The Delhi Special Police Establishment Act of 1946 gives it authority.

A Supreme Court bench recently forwarded a case to the Chief Justice of India for consideration, in which the CBI (Central Bureau of Investigation) had filed an affidavit on the withdrawal of ‘general permission’ to the CBI by many States.

Body

Withdrawal of Consent: Eight states have refused to allow the CBI to conduct investigations on their soil.

West Bengal, Maharashtra, Kerala, Punjab, Rajasthan, Jharkhand, Chhattisgarh, and Mizoram have all refused to allow the CBI to conduct investigations in their respective states.

Argument of CBI: According to the CBI, widespread withdrawal of consent renders it obsolete in the investigation of corruption allegations against Central employees and undertakings operating under the territorial jurisdiction of multiple States.

  • While the States’ replies were essentially an act of politico-legal ring-fencing against the Central Government’s politics in deploying its agencies, the CBI has been hampered by the loss of general permission by a number of States.

About the Consent given by the state government

Legal and constitutional basis: The State’s agreement is required to expand the CBI’s investigation beyond Union Territories, according to Section 6 of the Delhi Special Police Establishment Act of 1946, under which the CBI operates.

  • The CBI’s legal foundation has been considered to be based on Entry 80 of the Constitution. The Union List allows a state’s police force to extend its powers to any territory in another state, but only with that state’s agreement.
  • Entry 2 of the State List in the Constitution’s Seventh Schedule is “Police.”

Types of Consent

For a CBI investigation, there are two sorts of permission.

Consent in General

  • When a state grants the CBI general consent to investigate a case (Section 6 of the Delhi Special Police Establishment Act), the agency is not needed to obtain permission each time it enters the state in connection with an investigation or for each case.
  • In the event of corruption or violence, a general permission is granted to assist a smooth investigation.

Special Consent

  • When a general consent is revoked, the CBI must seek case-by-case consent for an inquiry from the respective state government.
  • If special approval is not given, CBI employees will not be able to enter the state with the authority of police officers.
  • This stumbling block prevents the CBI from conducting a thorough inquiry.

Supreme Court Judgement

  • A Constitution Bench held in the Advance Insurance Co. Ltd case of 1970 that the concept of State under The General Clauses Act encompasses Union Territories as well.
  • As a result, the CBI, as a force established for Union Territories under the Delhi Special Police Establishment Act of 1946, can only conduct investigations into the states’ territories with their approval.

Impact on Pending Investigation

  • The withdrawal of general consent has no bearing on pending investigations (Kazi Lendhup Dorji v. CBI, 1994) or cases pending in another State where the investigation leads into the territory of the State that has withdrawn general consent, nor does it limit the jurisdictional High Court’s ability to order a CBI investigation.

Way Forward

  • The main roadblock is the law, which does not properly define the CBI as a federal police body.
  • The United Nations Convention against Corruption, to which India is a signatory, mandates that all levels of government take decisive, impartial action to eliminate corruption.
  • The situation of a number of States withdrawing consent may lead to a legislative move to create a federal agency with manifest powers and autonomy while retaining the process of a committee consisting of the constitutional trio, the Prime Minister, the Leader of the Opposition, and the Chief Justice of India, preferably by consensus, appointing the CBI chief.
  • If such legislation is enacted, Section 6 of the Delhi Special Police Establishment Act may be replaced by a clearer legal provision that ensures impartial inquiry and prosecution.

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