Plea on maintainability of CBI probes

What’s in today’s article?

• Why in News?
• What is Article 131 of the Constitution of India?
• What is Central Bureau of Investigation (CBI)?
• Consent Required by the CBI for Conducting Investigation in a State
• Centre’s Plea on maintainability of CBI probes

Why in News?

Supreme Court has reserved its verdict on the West Bengal government's suit alleging that the CBI is pressing ahead with investigation into post-poll violence cases in the state, without securing its prior nod as per the law.

Earlier, the Centre had told SC that West Bengal’s original suit under Article 131 of the Constitution against it to not allow probe by the agency in the state was not maintainable and is an abuse of legal process.

What is Article 131 of the Constitution of India?

• Article 131 of the Constitution of India gives the Supreme Court (SC) the power to exclusively decide disputes between different units of the Indian Federation. 
• These disputes include:
  • Between the Government of India and one or more states
  • Between the Government of India and any state(s) on one side and one or more states on the other
  • Between two or more states, if the dispute involves a question of law or fact on which the existence or extent of a legal right depends 

What is Central Bureau of Investigation (CBI)?

• About
  • The CBI is the premier investigating agency of India operating under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions.
  • It traces its origin from the Delhi Special Police Establishment (DPSE) Act, 1946, which regulates the CBI.
  • As the DPSE Act is not passed by Parliament of India, CBI is created by an executive order of the government, hence not a statutory body yet and is exempted from the purview of theRight to Information (RTI) Act.
  • Originally set up to probe cases of corruption in the government departments, CBI’s jurisdiction expanded to include several economic crimes, special crimes, cases of corruption and other cases. 
  • Investigating powers of CBI are divided into: 
  • Anti-Corruption Division: It investigates cases against central government employees, public servants working under state governments (entrusted to the CBI by the state).
  • The Economic Offences Division: It investigates financial crimes, bank frauds, money laundering, illegal money market operations, graft in PSUs and banks.
  • The Special Crimes Division: It handles cases of conventional nature such as offences relating to internal security, espionage, narcotics and psychotropic substances, etc. 

Consent Required by the CBI for Conducting Investigation in a State:

• Legal basis: Section 6 of the DPSE Act authorises the central government to direct CBI to probe a case within the jurisdiction of any state but only with the consent of the concerned state government.
  • However, the SC and HCs can order CBI to investigate such a crime anywhere in the country without the consent of the state.
• Types of consent:
  • General consent: When a state gives a general consent to the CBI for probing a case, the agency is not required to seek fresh permission every time it enters that state in connection with investigation or for every case.
• It is normally given by states to help the CBI in the seamless investigation of corruption cases against central government employees in their states.
• Specific consent: When a general consent is withdrawn, CBI needs to seek case-wise (specific) 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, preventing the CBI from conducting a thorough inquiry. 
• States which have withdrawn general consent so far
• So far, 10 States have withdrawn the general consent to CBI to probe the case. These are:
  • Punjab, Jharkhand, Kerala, Rajasthan, Chhattisgarh, West Bengal, Mizoram, Telangana, Meghalaya, and Tamil Nadu.
• Withdrawal of General Consent and its Impact:
  • The withdrawal of general consent does not stop CBI probes in all cases.
  • The CBI continues to probe in old cases until specifically taken back by the state government. 
  • Further, it continues to investigate cases that were given to it by a court order.
  • The CBI can also challenge the decision (of withdrawal of general consent) in a court showcasing its progress of investigation in the case. 
  • When the CBI does not have a general consent, it can approach a local court (as per a provision in theCrPC) for a search warrant and conduct investigation. 

Centre’s Plea on maintainability of CBI probes

• Background
  • The Supreme court was hearing an original suit filed by the State of West Bengal under Article 131 of the Constitution.
  • The WB Govt has accused the Union govt of interfering in cases originating within the State’s jurisdiction by unilaterally authorising the CBI to probe them.
• Stand of WB Govt
  • The Centre continues to employ the CBI regardless of the fact that the State had withdrawn its general consent to CBI investigations within its territory.
    • WB had withdrawn the consent under Section 6 of the Delhi Special Police Establishment (DSPE) Act, 1946 way back in November 2018. 
  • The CBI has registered over 15 cases in West Bengal.
• Stand of Centre
  • The Solicitor General had argued that the suit was not maintainable and should be dismissed at the outset. 
  • West Bengal had wrongly made the Union the defendant in the suit. The petitioners were wrong to term the CBI as the “police force of the Union”. 
  • The Centre had no role in where and how the CBI conducted its investigation, he contended.
  • It also argued that the suit could not be amended to make CBI a defendant as it was not a ‘state’ under Article 131. 
    • The original suits under Article 131 could only be filed for disputes involving the Centre and States.
• Observations made by the SC
  • Questioning the claim of the Centre, the SC highlighted Section 5(1) of the DSPE Act, the statute which governs the premier probe agency.
    • Section 5(1) allows the Central government to give the Delhi Special Police Establishment (CBI) jurisdiction over areas in states, including railway areas, to investigate specific offenses.

Q.1. What is general consent to the CBI? 

General consent is a form of consent that a state government can give to the Central Bureau of Investigation (CBI) to investigate crimes within their territory. With general consent, the CBI can operate without needing to apply for consent on a case-by-case basis. However, if a state government withdraws its general consent, the CBI cannot register new cases involving central government officials or private individuals in that state without the state government's prior permission. 

Q.2. What is the role of Ministry of Personnel, Public Grievances and Pensions?

The Ministry of Personnel, Public Grievances and Pensions is the coordinating agency of the Central Government in personnel matters specially issues concerning recruitment, training, career development, staff welfare as well as the post retirement dispensation.

Source: In Supreme Court, Centre says it sends CBI to States for probes | Indian Express | Times of India