Recently, the Supreme Court upheld the maintainability of the West Bengal government’s suit accusing the Union government of “constitutional overreach” by employing the Central Bureau of Investigation (CBI) to register and investigate cases in the State despite its withdrawal of general consent.

• The Court ruled that the suit discloses a valid cause of action and must be heard on merits. 

About the Verdict

In August 2021, the West Bengal government filed an original suit under Article 131 of the Constitution arguing that the actions of the Union government and the involvement of the CBI in the State infringed upon its sovereignty. 

• Responsibility of the Government of India: Perusing various provisions of the Delhi Special Police Establishment (DSPE) Act, 1946, the Bench concluded “the very establishment, exercise of powers, extension of jurisdiction, the superintendence of the DSPE [Act], all vest with the Government of India.”
• Section 4 of the DSPE Act: Under this Act, except the offences under the Prevention of Corruption Act, in which the superintendence will be with the Central Vigilance Commission, the superintendence of the DSPE in all other matters would vest with the Central government. 
• Section 6 of the DSPE Act: The judge also reminded the Centre that Section 6 of the DSPE Act mandates the prior consent of the State government to a CBI probe within its jurisdiction.
• Independence of CBI: While the Court recognised that the CBI would always be entitled to investigate offences independently, it underscored that this autonomy would not dilute its administrative control and superintendence that vests with the Centre. 

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About the Central Bureau of Investigation (CBI)

The CBI, functioning under the Department of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India, is the premier investigating police agency in India. 

• Origin: The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India. 
• Delhi Special Police Establishment Act, 1946: The act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Government of India. 
• Role Played: It is an elite force playing a major role in the preservation of values in public life and in ensuring the health of the national economy. 
• International Collaboration: It is also the nodal police agency in India, which coordinates investigations on behalf of Interpol Member countries.
• Territorial Jurisdiction: The jurisdiction of the SPE extended to all the Union Territories and could be extended to the States with the consent of the State Government concerned.
  • Initially: The offences that were notified by the Central Government related only to corruption by Central Govt. servants.
  • Expansion: With the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. 
  • Coverage of Bank Frauds: With the nationalisation of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the CBI.

About General Consent

General consent is typically given by States to facilitate the agency’s seamless investigation into corruption charges against Central government employees in their territories. 

• Form of Consent: Consent given by a state government to the Central Bureau of Investigation can come in two forms, either case-specific, or ‘general’.
  • General Consent: It allows the CBI to operate seamlessly within states.
  • Case-specific Consent: In contrast, if the CBI does not have the general consent of a state government, it is required to apply for consent on a case-by-case basis and cannot act before the consent is given.
• Revocation: Since 2015, several States such as Chhattisgarh, Jharkhand, Kerala, Mizoram, Punjab, Rajasthan, Telangana, Meghalaya and West Bengal have revoked their general consent alleging that the Union government is misusing the federal agency to unfairly target the Opposition.
• Impact of Withdrawal: Restriction of Fresh Cases: Withdrawal of general consent also means that the CBI will not be able to register any fresh case involving central government officials or private persons in a particular state without prior permission of that state government.
  • Continued Investigations: The CBI can continue to investigate cases in a state registered before the withdrawal of general consent.
• Legal Precedent: Section 6 of DSPE is based on Entry 80 of the Union List, allows extension of powers and jurisdiction of police force of one State in another State but not without the consent of another state.
  • In a case related to illegal coal mining and cattle smuggling, the Calcutta High Court ruled that the CBI cannot be stopped from investigating a central government employee in another state.

Conclusion

While the Supreme Court has so far only addressed the preliminary objections to the maintainability of West Bengal’s suit, the constitutional expert pointed out that the final ruling on its merits will have a significant bearing on other similar pending cases.

• Another Bench of the top Court is tackling a similar question of law related to the State of Tamil Nadu in the case of Ankit Tiwari, had recommended judicial oversight over the cross-fire of criminal cases filed between Central agencies like the ED and the police in Opposition-ruled States to protect innocents from vexatious prosecution.

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