Jurisdiction of CBI

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Context:

The Supreme Court upheld 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.

Background details:

The West Bengal government had 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.
The suit highlighted that despite the withdrawal of general consent for CBI investigations by the state on November 16, 2018, the agency proceeded to register 12 new cases.
Alleging this to be a “constitutional overreach,” the State sought the annulment of these 12 cases and stop the CBI from lodging any further cases.

What is General consent?

Under Section 6 of the DSPE( Delhi Special Police Establishment) Act, the CBI is required to obtain consent from the concerned State government before initiating an investigation within its jurisdiction. Once general consent is given the agency is not required to seek fresh permission every time.
This permission is required since “police” and “public order” fall within the State List under the Seventh Schedule of the Constitution.
No such prior consent is necessary in Union territories or railway areas.
General consent is typically given by States to facilitate the agency’s seamless investigation into corruption charges against Central government employees in their territories.

What’s next, if general consent is withdrawn?

When a general consent is withdrawn, CBI needs to seek case-wise consent for investigation from the concerned state government.
If specific consent is not granted, the CBI officials will not have the power of police personnel when they enter that state.

Revocation of general consent

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.
In this situation the CBI will be unable to register any fresh cases in these States without the explicit permission of the respective State governments.

●Article 131 conferred original and exclusive jurisdiction upon the Supreme Court to address disputes between the Government of India and one or more State Governments (or) between one or more State Governments.

Arguments of Union

As per the Union Government CBI is not a ‘State’ under Article 13.
CBI is an “independent agency” since it did not function under the direct control of the Union government.
The Union does not supervise the registration of offences or investigation or closure or filing of chargesheet or conviction or acquittal of cases by the CBI.

What is the definition of state under article 12 of the constitution?

As per the article following constitutes State:

●Government and Parliament of India i.e the Executive and Legislature of the Union

●Government and Legislature of each State i.e the Executive and Legislature of the various States of India

●All local or other authorities within the territory of India

●All local and other authorities who are under the control of the Government of India

The verdict

The Court held administrative control and superintendence of CBI vests with the Centre. This requires the CBI to take consent of the state prior to investigation.

CBI and DSPE Act

●The establishment of the CBI was recommended by the Santhanam Committee on Prevention of Corruption (1962–1964).

●The CBI was set up in 1963 by a resolution of the Ministry of Home Affairs. The CBI's power to investigate cases is derived from this DSPE Act.

●Now, the CBI comes under the administrative control of the Department of Personnel and Training (DoPT) of the Ministry of Personnel, Public Grievances and Pensions.

History:

●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.

●The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt.

●Of India during World War II, The Delhi Special Police Establishment Act was therefore brought into force in 1946.

Suo Moto Cases -

●CBI can suo-moto take up investigation of offences only in the Union Territories.

○The Central Government can authorise CBI to investigate a crime in a State but only with the consent of the concerned State Government.

○The Supreme Court and High Courts, however, can order CBI to investigate a crime anywhere in the country without the consent of the State.

Appointment:

●Till 2014, the CBI Director was appointed on the basis of the DSPE Act, 1946.

●In 2014, the Lokpal Act provided a committee for appointment of CBI Director:

○Headed by Prime Minister

○Other members - Leader of Opposition/ Leader of the single largest opposition party, Chief Justice of India/ a Supreme Court Judge.

○The Home Ministry sends a list of eligible candidates to DoPT. Then, the DoPT prepares the final list on basis of seniority, integrity, and experience in the investigation of anti-corruption cases, and sends it to the committee.

●Director of CBI has been provided security for two year tenure, by the CVC Act, 2003.

Investigating powers of CBI are divided into:

○Anti-Corruption Division: Investigates cases against central government employees, public servants working under state governments (entrusted to the CBI by the state).

○The Economic Offences Division: Investigates financial crimes, bank frauds, money laundering, illegal money market operations, graft in PSUs and banks.

○The Special Crimes Division: Handles cases of conventional nature such as offences relating to internal security, espionage, narcotics and psychotropic substances, etc.

Delhi Special Police Establishment Act, 1946, as amended in 2021:

●Establishment: The Act establishes the Delhi Special Police Establishment for investigating certain offences in Union Territories.

●Powers: Members of the establishment have the same powers as local police officers in relation to their investigations.

●Offences: The Central Government can specify the offences to be investigated by the establishment via notifications.

●Superintendence: The investigation of corruption-related offences is overseen by the Central Vigilance Commission, while other matters fall under the Central Government's jurisdiction.

●Director Appointment: The Director is appointed by a committee including the Prime Minister, Leader of Opposition, and Chief Justice of India, based on seniority and integrity.

●Terms of Service: The Director serves a minimum of two years, with conditions for extension and transfer requiring committee consent.

●Directorate of Prosecution: A separate Directorate headed by a Joint Secretary conducts prosecutions under the Act.

●Extension to Other Areas: The Central Government can extend the establishment's powers to states for investigating specified offences, subject to state consent.

●Approval for Investigations: Prior approval from the Central Government is required for investigations related to corruption under certain conditions.

Way ahead:

Respect Constitutional Framework and Jurisdictional Issues:

Article 246 which distributes legislative powers between the Union and States should be respected. In the case of CBI vs. State of Rajasthan (2012), the Supreme Court clarified the limitations and jurisdictional boundaries concerning CBI investigations vis-à-vis state police powers.

Balancing Autonomy of States and responsibility of states:

In India states have significant autonomy in law and order but Article 355 gives the Union Duty of the Union to protect states against external aggression and internal disturbance, which sometimes include investigation responsibilities.

Follow Judicial Oversight and Supreme Court Directives:

The Supreme Court's role in resolving conflicts between CBI and state authorities under artcile 131 is to be respected. Lalita Kumari vs. Govt. of U.P. (2014), the Supreme Court mandated that FIRs be registered in cognizable offenses in such example.

Respecting Legislative Intent:

CBI’s jurisdiction and powers to fight corruption, economic offenses, major frauds, and high-profile cases should be remembered.

Dialogue and discussions:

Demands such as autonomy for CBI and misuse of CBI by the ruling party against states should be resolved through forums such as inter state council.

Conclusion:

While the constitutional framework provides a basis for resolving conflicts, ongoing disputes between CBI and state authorities underscore the need for continuous judicial and legislative scrutiny to ensure effective governance and accountability in investigations.

READ ABOUT NEW LAW FOR CBI: https://www.iasgyan.in/sansad-tv-air-summaries/perspective-new-law-for-cbi#:~:text=In%20the%20year%202013%20Supreme,agency%20for%20their%20own%20benefits.

Source:

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PRACTICE QUESTION

Q. Discuss the constitutional and operational dynamics underlying the conflict between the Central Bureau of Investigation (CBI) and state governments in India as seen from recent conflcits between centre and states. How can this conflict be mitigated while ensuring effective law enforcement and accountability?( 250 words)