Bihar makes consent mandatory for CBI to probe public servants

Why in the News

The Bihar Home Department has issued a notification regulating the jurisdiction of the Central Bureau of Investigation (CBI) in the State under Section 6 of the Delhi Special Police Establishment Act, 1946. It widens the agency’s standing general consent over offences involving employees of the Government of India, central Public Sector Undertakings (PSUs) and private persons implicated alongside them. A proviso then removes that automatic authority over public servants appointed in connection with the affairs of the Bihar government and over State-owned, State-controlled and State-aided bodies. The notification supersedes every previous notification on the subject. The result is a two-tier regime. The same agency needs no permission to investigate a central employee in Bihar. It needs case-by-case permission to investigate a State employee.

What is consent under Section 6 of the Delhi Special Police Establishment Act, 1946?

1. The statute is the CBI’s source of police powers: The CBI cannot ordinarily exercise its powers and jurisdiction inside a State without that State government’s consent.
2. Two forms of consent: General consent allows the agency to investigate specified offences or categories of cases without seeking permission each time. Specific consent is granted for an individual case.
3. Consent is tied to a notified offence list: The offences the agency may investigate are notified under Section 3 of the Act, so a State’s general consent operates only over that notified list.

What does the Bihar notification alter on each side of the line?

1. The offence list under general consent is widened: Consent now covers offences under the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023, the Information Technology Act, 2000, cybercrime, and the Prevention of Corruption Act, 1988 as amended.
2. Whom the wider consent covers: It applies to employees of the Government of India, employees of PSUs under the Government of India, and private persons implicated alongside them.
3. The proviso carves out the State’s own establishment: Prior consent of the Bihar government is mandatory for any probe of public servants appointed in connection with the affairs of the State, and of persons in any corporation, company or bank owned by, controlled by, or receiving financial assistance from the State.
4. The State decides each request individually: On receiving a proposal from the Delhi Special Police Establishment, the State government considers it and takes a decision on granting powers of investigation case by case.

Why is the order read as widening the agency’s reach rather than curbing it?

1. The two-pronged reading inside the police establishment: The stated reading is that the first part of the order lets the CBI investigate cases that were the State’s prerogative, and the second part balances that by requiring the State’s permission.
2. It is read as a template for other States: The assessment within the agency is that Bihar may have set a precedent for other States, and that the order gives the CBI more scope rather than less.
3. The consent bar binds the executive alone: The requirement of State consent applies only to executive action by the CBI. It does not restrict a High Court or the Supreme Court from ordering a CBI investigation within a State without the State government’s consent.

Challenges to the general consent mechanism

1. Consent is revocable at will and leaves probes suspended: A State can withdraw general consent at any time, and the agency must then seek permission for every fresh case in that State. Eg. West Bengal withdrew its general consent in November 2018 and has required case-by-case permission since.
   The Fix: Prescribe a statutory period within which a State must decide a case-by-case request, with reasons recorded for a refusal.
2. The agency has no charter of its own: The CBI rests on a 1946 police establishment law and a 1963 executive resolution, so its very constitution has been litigated. Eg. The Gauhati High Court in Navendra Kumar v. Union of India (2013) held the 1963 resolution constituting the CBI to be invalid, and the Supreme Court stayed that order within days.
   The Fix: Enact a dedicated CBI statute fixing its composition, its jurisdiction over notified central offences and the limits of State consent.
3. Corruption probes against State officials face two separate gates: Consent under Section 6 is only the first permission, and a further approval is needed before an inquiry into a public servant’s official decisions can begin. Eg. Section 17A of the Prevention of Corruption Act, 1988, inserted in 2018, requires prior approval of the competent authority before any enquiry into a recommendation made or decision taken by a public servant in discharge of official functions.
   The Fix: Run both approvals through a single time-bound window, so a refusal at either gate is recorded once and is appealable.
4. Selective consent invites a political reading of every case: The State controls access to its own officials, so each grant or refusal is readable as a political act rather than a legal one. Eg. The Supreme Court described the agency as a “caged parrot speaking in its master’s voice” in the coal blocks allocation matter in 2013.
   The Fix: Publish an annual statement of consent requests received, granted, refused and pending, State by State, so the pattern is visible rather than inferred.
5. Joint cases now straddle two consent regimes: One case involving a central employee and a State public servant is fully open on one accused and permission-dependent on the other, which splits a single investigation. Eg. A corruption case in a centrally funded scheme executed by a State department typically names officials of both.
   The Fix: Provide that where a case includes even one accused covered by general consent, the State decides on the whole case within a fixed period rather than on each accused separately.

Conclusion

The notification is in force and it supersedes every earlier consent order in the State. It settles nothing about the underlying arrangement, which lets the same agency be widened and fenced by a single executive order that no legislature debated. What is worth watching is whether other States adopt the split model, and whether Bihar attaches any timeline to the permissions it has now reserved to itself. A permission with no deadline is a refusal that never has to be written down.

Back2Basics: Central Bureau of Investigation

1. Constitution: The CBI was set up by a resolution of the Ministry of Home Affairs in 1963, and it is not a statutory body created by its own Act.
2. Administrative control: It functions under the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions.
3. Superintendence is split: For offences under the Prevention of Corruption Act, 1988, superintendence vests in the Central Vigilance Commission. For all other matters it vests in the Central Government.
4. Appointment of the Director: The Director is appointed on the recommendation of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India or a Supreme Court judge nominated by the Chief Justice.

Matching Previous Year Question

“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.”