Why in News?

Recently, a Supreme Court bench has referred a case, in which the CBI (Central Bureau of Investigation) had filed an affidavit on the withdrawal of ‘general consent’ to the CBI by several States, for consideration of the Chief Justice of India.

What is General Consent?

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.
• The consent of the state government to CBI can be either case-specific or general. In case of general consent, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.

Legal provisions:

• “Police” is Entry 2 in the State List under the Seventh Schedule of the Constitution.
• 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 legal foundation of the CBI has been construed to be based on Entry 80 of the Union List which provides for the extension of powers of the police force belonging to one State to any area in another State but not without its permission.

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.

Way Forward

• The fundamental impediment lies in the law that does not clearly envisage the CBI as a federal police force.
• The United Nations Convention against Corruption to which India is a signatory requires firm impartial steps to combat corruption at all levels.
• The predicament of withdrawal of consent by a number of States may lead to the legislative move of creating a federal agency with manifest powers and autonomy while retaining the process of appointment of the CBI chief by a committee consisting of the constitutional trio, the Prime Minister, the Leader of the Opposition and the Chief Justice of India preferably by consensus.
  • In case of such a legislation, Section 6 of the Delhi Special Police Establishment Act may give way to a clearer legal provision which guarantees fair investigation and prosecution.

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