The Supreme Court recently observed that the consent of the state government was a prerequisite for any investigation by the CBI. This comes in the wake of states like Maharashtra, Kerala, West Bengal and Rajasthan withdrawing the general consent they had given the CBI for investigating certain cases.
Under India’s system of federal government, only state governments have the power over “public order” and “police”. Therefore the Central government cannot constitute a police force. The CBI or as it is formally known the Delhi Special Police Establishment was raised in terms of the Delhi Special Police Establishment Act of 1946 and is a police force for a Union Territory.
Union Territories are defined as those areas where the Central government also has the powers of a state government. So using this power, the Central government constituted the CBI. However, Section 5 of the Act allows the Centre to extend the jurisdiction of the CBI to other areas. Section 6 states that this extension cannot be done without the consent of the state concerned. This is because the state government has the ultimate power in that area over policing matters.
However, whether the Constitution permits this in the first place itself is a matter of legal validity. The Guwahati High Court in 2013 had issued a ruling that the CBI was unconstitutional. However, this ruling is presently under challenge before the apex court.
Many states in order to confer the CBI with jurisdiction have issued general consents, whereby they have consented to the CBI investigation certain crimes. These usually involve serious crimes where the Central government is concerned and issues such as corruption.
Many times, courts transfer cases pending investigation to the CBI. In these cases consent is not required as the case is being transferred by the court. States have also referred high-profile matters for the CBI to investigate.
However, the withdrawal of the general consents by most non-NDA states shows that the CBI is also thought of as the attack dog of the Central government. This present regime has shown that it will use prosecution as a means to settle political scores. Maybe this explains why the states are giving up on the CBI.
If states withdraw their general consents, the CBI will effectively become a toothless tiger.
