Withdrawing the general consent to the CBI


    In News

    • Recently, Bihar’s newly formed government called for withdrawing the general consent to the CBI.


    • Case of Bihar:
      • The newly formed state government alleged that the central government was using the CBI for political purposes.
        • The Chief Minister of Bihar also alleged that central agencies such as CBI, ED and Income Tax Department are being misused in a similar way.
    • Other states:
      • Nine states, including West Bengal, Chhattisgarh, Rajasthan, Punjab and Meghalaya, have withdrawn general consent for the Central Bureau of Investigation (CBI) to probe cases in their jurisdiction.
        • At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.

    Opinion of CJI

    • Recently, the Chief Justice of India had also said that “CBI’s credibility has come under deep public scrutiny with the passage of time as its actions and inactions have raised questions in some cases”. 

    What is general consent?

    • The CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946.
    • It must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.
    • Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: 
      • Nothing contained in section 5 (titled “Extension of powers and jurisdiction of special police establishment to other areas”) 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.
    • State’s consent:
      • The state government’s consent to CBI can be either case-specific or general.
      • General consent is usually given by states to help the CBI in the seamless investigation of cases of corruption against central government employees in their states. 
        • This is consent by default, in the absence of which the CBI would have to apply to the state government in every case, and before taking even small actions.
    • As opposed to NIA:
      • The CBI’s position is in this respect different from that of the National Investigation Agency (NIA), which is governed by The NIA Act, 2008, and has jurisdiction across the country.

    Implications of withdrawal of general consent 

    • No registration of fresh cases:
      • It means the CBI will not be able to register any fresh case involving officials of the central government or a private person in the state without the consent of the state government.
    • Loss of power:
      • CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.

    Other issues Faced by CBI

    • 2018 amendments to the Prevention of Corruption Act, 1988:
      • After the 2018 amendments to the Prevention of Corruption Act, 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
        • The government pushed through Parliament amendments to Section 17A of the Act making it mandatory for the CBI to seek the Centre’s permission before registering a case of corruption against any government servant.
        • Earlier, the Centre had mandated that such permission was required only for officials of the level of joint secretary and higher
      • The amendments were brought after the Supreme Court struck down the government’s directive.
      • The 2018 amendment virtually means the agency can investigate only the officers that the government of the day wants to be investigated. 
      • Outcome:
        • Corruption cases registered by the CBI dropped by over 40 percent between 2017 and 2019.
    • The Chief Justice of India listed several issues that were affecting the system:
      • General issues:
        • Lack of infrastructure, sufficient manpower and modern equipment; 
        • In-human conditions, especially at the lowest rung; 
        • Questionable methods of procuring evidence; 
        • Officers failing to abide by the rule book; and 
        • Lack of accountability of erring officers.
      • The issues leading to delay in trials were: 
        • Lack of public prosecutors and standing counsels; seeking adjournments; arraying hundreds of witnesses and filing voluminous documents in pending trials; undue imprisonment of undertrials; change in priorities with the change in the political executive; cherry picking of evidence; and repeated transfers of officers leading to a change in the direction of the probe.
      • These issues often lead to the acquittal of the guilty and incarceration of the innocent
      • This severely affects the public trust in the system and the courts cannot simply monitor every step.

    About Central Bureau of Investigation (CBI)

    • It is the premier investigating police agency in India. 
    • It has its origin in the Special Police Establishment set up in 1941 to probe bribery and corruption during World War II.
    • It was set up by a resolution of the Ministry of Home Affairs in 1963 after Santhanam committee recommendation.
    • It functions under the Department of Personnel, Ministry of Personnel, Pension & Public Grievances, Government of India.
    • It is an elite force playing a major role in preservation of values in public life and in ensuring the health of the national economy
    • It is also the nodal police agency in India, which coordinates investigations on behalf of Interpol Member countries.
    • The Supreme Court, the High Courts, the Parliament and the public, holds CBI as an organization in high esteem

    Way ahead

    • Creation of Independent umbrella institution:
      • There is an immediate need for the creation of an independent umbrella institution, so as to bring various central agencies like the CBI, Enforcement Directorate and the Serious Fraud Investigation Office under one roof.
      • This body is required to be created under a statute, clearly defining its powers, functions and jurisdictions. 
      • Independence: 
        • The organisation should be headed by an independent and impartial authority, appointed by a committee akin to the one which appointed the CBI Director. 
        • Its head could be assisted by deputies having specialisation in different domains.
    • Relationship between the State and Central agencies:
      • There should be a harmonious relationship between the State and Central agencies and collaboration was the key, given that the goal of all those organisations was to secure justice.
    • Upgradation of knowledge:
      • There is a need for regular upgradation of knowledge, deployment of state-of-the-art technology, and international exchange programmes to learn the best practices.
    • The role, jurisdiction and legal powers of the CBI need to be clearly laid down.