Civil Services Reforms

What is ‘General Consent’ for CBI?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : CBI

Mains level : General consent to CBI by states and issues in CBI investigation

Meghalaya has withdrawn consent to the CBI to investigate cases in the state, becoming the ninth state in the country to have taken this step.

General Consent

  • Unlike the National Investigation Agency (NIA), which is governed by its own NIA Act and has jurisdiction across the country, the CBI is governed by the Delhi Special Police Establishment Act.
  • This makes consent of a state government mandatory for conducting an investigation in that state.
  • There are two types of consent: case-specific and general.
  • Given that the CBI has jurisdiction only over central government departments and employees, it can investigate a case involving state government employees or a violent crime in a given state only after that state government gives its consent.

When is Consent needed?

  • General consent is normally given to help the CBI seamlessly conduct its investigation into cases of corruption against central government employees in the concerned state.
  • Almost all states have given such consent.
  • Otherwise, the CBI would require consent in every case.

What does the withdrawal of consent mean?

  • It means the CBI will not be able to register any fresh case involving a central government official or a private person stationed in these two states without getting case-specific consent.
  • Withdrawal of consent simply means that CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.

Under what provision has general consent been withdrawn?

  • In exercise of the power conferred by Section 6 of the Delhi Special Police Establishment Act, 1946, the government can withdraw the general consent to exercise the powers and jurisdiction.
  • Section 6 of the Act says nothing contained in Section 5 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.

Does that mean that the CBI can no longer probe any case in the two states?

  • The CBI would still have the power to investigate old cases registered when general consent existed.
  • Also, cases registered anywhere else in the country, but involving people stationed in that particular state would allow CBI’s jurisdiction to extend to these states.
  • There is ambiguity on whether the agency can carry out a search in either of the two states in connection with an old case without the consent of the state government.

Why such a move by the States?

  • If a state government believes that the ruling party’s ministers or members could be targeted by CBI on orders of the Centre, and that withdrawal of general consent would protect them.
  • This is a debatable political assumption.
  • CBI could still register cases in Delhi which would require some part of the offence being connected with Delhi and still arrest and prosecute ministers or MPs.
  • The only people it will protect are small central government employees.

Legal Remedies for CBI

  • The CBI can always get a search warrant from a local court in the state and conduct searches.
  • In case the search requires a surprise element, there is CrPC Section 166, which allows a police officer of one jurisdiction to ask an officer of another to carry out searches on his behalf.
  • And if the first officer feels that the searches by the latter may lead to loss of evidence, the section allows the first officer to conduct searches himself after giving notice to the latter.

Back2Basics: Central Bureau of Investigation (CBI)

  • The Bureau of Investigation traces its origins to the Delhi Special Police Establishment, a Central Government Police force, which was set up in 1941 by the Government of India.
  • It then aimed to investigate bribery and corruption in transactions with the War and Supply Department of India.
  • It then had its headquarters in Lahore.
  • After the end of the war, there was a continued need for a central governmental agency to investigate bribery and corruption by central-government employees.
  • The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated in 1963.

Mandate of the CBI

  • The CBI is the main investigating agency of the GoI.
  • It is not a statutory body; it derives its powers from the Delhi Special Police Establishment Act, 1946.
  • Its important role is to prevent corruption and maintain integrity in administration.
  • It works under the supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of Corruption Act, 1988.
  • The CBI is also India’s official representative with the INTERPOL.

Cases to investigate

  • Cases connected to infringement of economic and fiscal laws
  • Crimes of a serious nature that have national and international ramifications
  • Coordination with the activities of the various state police forces and anti-corruption agencies.
  • It can also take up any case of public importance and investigate it
  • Maintaining crime statistics and disseminating criminal information.

Issues with CBI

  • Caged parrot: The Supreme Court has criticized the CBI by calling it a “caged parrot speaking in its master’s voice”.
  • Political interference: It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
  • Investigation delay: It has been accused of enormous delays in concluding investigations due to political inertia.
  • Loss of Credibility: CBI has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal, Bhopal gas tragedy.
  • Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
  • Acute shortage of personnel: A major cause of the shortfall is the government’s sheer mismanagement of CBI’s workforce.
  • Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
  • Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government is a big obstacle in combating corruption at higher levels of bureaucracy.

Reforming CBI

  • Need for autonomy:   As long as the government of the day has the power to transfer and post officials of its choice in the CBI, the investigating agency will not enjoy autonomy and will be unable to investigate cases freely.
  • Selection of director/ Officers: To ensure that the CBI is a robust, independent and credible investigation agency, there is an urgent need to work out a much more transparent mechanism for selection and induction of officers on deputation.
  • Lokpal scrutiny: The Lokpal Act already calls for a three-member committee made up of the PM, the leader of the opposition and the CJI to select the director.
  • Bifurcation of Cadre: CBI should be bifurcated into an Anti-Corruption Body and a National Crime Bureau.
  • Develop own cadre: One of the demands that have been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers.
  • Annual social audit should be carried out by ten reputed, knowledgeable persons with background of law, justice, public affairs and administration and the audit report should be placed before the parliament.

 

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