Meghalaya has become the ninth state in the country to revoke its authorization for the CBI to probe crimes in the state. Conrad Sangma’s National People’s Party (NPP), which is part of the BJP-led National Democratic Alliance, governs Meghalaya.
The Supreme Court expressed worry in November last year after the CBI stated that roughly 150 requests for sanction to investigate had been pending with the eight state governments that had previously withdrawn general consent.
A Bench led by Justice S K Kaul had commented, “It is not a desirable position,” and sent the case to Chief Justice of India (CJI) N V Ramana.
What is the definition of general consent?
The CBI is overseen by the Delhi Special Police Establishment (DSPE) Act, 1946, and it is required to get the state government’s agreement before investigating a crime in that state. “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,” according to section 6 of the DSPE Act.
In this regard, the CBI differs from the National Investigation Agency (NIA), which is controlled by The NIA Act, 2008, and has authority throughout the country. The state government’s approval of CBI can be case-specific or universal.
States typically offer general approval to assist the CBI in conducting a seamless investigation of cases of corruption involving central government personnel in their states. This is consent by default; otherwise, the CBI would have to seek permission from the state government in every case, even for minor measures.
Which states have revoked their consent, and why have they done so?
Historically, practically all states have granted CBI its broad approval. Several governments, however, have begun to operate differently since 2015. Eight other states have withdrawn consent to the CBI before Meghalaya’s step on Friday (March 4), including Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. Except for Mizoram and Meghalaya, all of these states are ruled by the anti-BJP opposition.
Mizoram was the first state to withdraw consent in 2015. At the time, the state was ruled by the Congress party, and the Chief Minister was Lal Thanhawla. Despite the fact that the Mizo National Front (MNF) led by Zoramthanga came to power in 2018, consent to the CBI was not restored, despite the fact that the MNF is an NDA ally.
The West Bengal government, led by Mamata Banerjee, withdrew the general agreement granted to the CBI by the previous Left Front government in 1989 in November 2018. West Bengal made its announcement just hours after Andhra Pradesh, which was then headed by N Chandrababu Naidu’s TDP, made a similar move.
“What Chandrababu Naidu did was completely correct. The BJP is utilizing the CBI and other agencies to further its political agenda and vendetta, according to Banerjee. Andhra Pradesh’s assent was restored after Naidu’s government was replaced by that of YS Jagan Mohan Reddy in 2019.
Chhattisgarh’s Congress administration, led by Chief Minister Bhupesh Baghel, withdrew consent in January 2019. In 2020, Punjab, Maharashtra, Rajasthan, Kerala, and Jharkhand will be added to the list. All states claimed that the federal government was using the CBI to unfairly target the opposition at the time they withdrew consent.
What does it mean to revoke general consent?
It means that the CBI will not be able to file any new cases involving central government officials or private citizens in the state without the state government’s permission.
“Unless the state government has permitted it, CBI officers will lose all police powers as soon as they enter the state,” a former CBI officer who handled policy during his tenure in the agency stated.
In a case of illicit coal mining and cattle smuggling under investigation by the CBI, the Calcutta High Court recently declared that the central agency cannot be barred from investigating a central government employee in another state. The Supreme Court has ruled against the directive.
The Calcutta High Court decided in Vinay Mishra vs the CBI in July that corruption cases must be treated similarly across the country, and that a central government employee could not be “distinguished” just because his office was in a state that had withdrawn general consent. The HC further stated that withdrawal of permission would be applicable in circumstances involving only state government employees.
The legitimacy of FIRs registered by the CBI’s Kolkata branch following the withdrawal of consent was contested in the petition.
So, where does the CBI stand in these states right now?
The agency can take advantage of the Calcutta HC order till it is overturned by the Supreme Court. Even if consent was revoked, a state’s CBI remained operational, with the authority to investigate cases that had been filed before consent was withdrawn. In addition, a case filed elsewhere in the country involving personnel stationed in these states permitted the CBI’s jurisdiction to be extended to them.
It’s unclear if the CBI may conduct a search in connection with an old case without the state government’s permission. However, the agency has the option of obtaining a search warrant from a municipal court in the state.
If the search requires a surprise element, Section 166 of the Criminal Procedure Code (CrPC) might be invoked, which allows a police officer from one jurisdiction to request a search from a police officer from another jurisdiction. If the first officer believes that a search conducted by the latter may result in the loss of evidence, the section authorizes him to undertake the search himself after notifying the latter. Finally, consent does not apply if someone has been caught taking a bribe underhandedly.
What about new cases, though?
The CBI could use the Calcutta HC order to open a new investigation in any state. It might also file a case in Delhi and continue to investigate people within these states.
The Delhi High Court declared on October 11, 2018, that the agency could investigate anyone in a state that has withdrawn general permission even if the case was not registered in that state. The judgment came in response to a corruption case in Chhattisgarh, with the court ruling that the CBI did not need the Chhattisgarh government’s prior consent because the case was registered in Delhi.
In conclusion, even without consent, the CBI has few options for moving forward. “If some aspect of the offense is connected to Delhi, the CBI could record cases in Delhi and still arrest and prosecute individuals in these states,” a CBI officer said.
Is it true that states began to refuse consent only when the current Delhi administration took power?
No, states such as Sikkim, Nagaland, Chhattisgarh, and Karnataka have done so at various times over the agency’s history. In 1998, Chief Minister J H Patel’s Janata Dal government withdrew general consent to the CBI in Karnataka. The order of the previous government was not revoked by the Congress government of S M Krishna, which entered power in 1999. Mallikarjun Kharge, the current Leader of Opposition in the Rajya Sabha, as Karnataka’s home minister at the time.
“It had been eight years since consent had been renewed. “The CBI had to practically close down its office (in Karnataka),” according to a CBI officer at the time. According to the officer, the CBI had to obtain approval from the state government for every case and search it conducted on central government workers.