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News Excerpt: 

The Supreme Court of India has upheld the maintainability of a suit filed by West Bengal challenging the Central Bureau of Investigation’s (CBI) authority to register and investigate cases in the state after the withdrawal of general consent in November 2018.

More about the case:

• The Centre’s preliminary objections were rejected, with the court noting that the Central Government has superintendence over the CBI under the Delhi Special Police Establishment (DSPE) Act, 1946.
• The two Judges bench emphasized that the establishment, exercise of powers, and jurisdiction extension of the DSPE (CBI) all fall under the purview of the Central Government.
• Solicitor General Tushar Mehta argued that the CBI operates independently of the Central Government, but the court found this contention unconvincing.
• The bench asserted that the CBI is an instrumentality of the state under Article 12 of the Constitution and that its administrative control lies with the Government of India, as outlined in the DSPE Act.
• Representing West Bengal, advocates contended that the CBI is an investigative agency of the Centre, not a statutory body, and its supervision, except in cases related to the Prevention of Corruption Act, vests with the central government.
• The court clarified that while the CBI can independently investigate specific cases, the Central Government retains overall administrative control.

What is General Consent?

• Section 6 of the DSPE Act, titled "Consent of State Government to exercise of powers and jurisdiction," states: “Nothing contained in section 5 i.e  ‘Extension of powers and jurisdiction of special police establishment to other areas’ shall be deemed to enable any member of the DPSE 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.”
• In simpler terms, the CBI cannot operate within a state's borders without the state government's consent.
  • This requirement makes the CBI different from the National Investigation Agency (NIA), which has jurisdiction throughout India.
• State government consent to the CBI can be granted in two forms: case-specific consent or general consent.

• General consent allows the CBI to operate seamlessly within the state.

• Without general consent, the CBI must seek permission for each individual case and cannot proceed without it. 
• If a state withdraws general consent, the CBI cannot register new cases involving central government officials or private individuals in that state without prior case-specific state government consent. 
• However, the CBI can continue to investigate cases that were registered before the withdrawal of consent.

Current Status:

• Initially, most Indian states had given general consent to the CBI.
• This began to change after 2014 when the Modi government came to power. Mizoram, ruled by the Congress at the time, was the first state to withdraw general consent in 2015 which has not been restored yet.
• As of July 2024 ten states including Punjab, Jharkhand, Kerala, Rajasthan, Chhattisgarh, West Bengal, Mizoram, Telangana, Meghalaya, and Tamil Nadu have withdrawn the general consent.

Court directions:

• The Calcutta High Court ruled that the CBI could investigate central government employees in cases of illegal coal mining and cattle smuggling, regardless of the state's consent status. 
• The court noted that corruption cases should be treated equally across the country and that central government employees should not be exempted from investigation due to the location of their offices in states that had withdrawn general consent.
• The judgment specified that withdrawal of general consent applies only to cases involving exclusively state government employees