GENERAL CONSENT 

1. Background

2. General consent

• The CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946 and it must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.

• 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.
• The consent of the state government to CBI can be either case-specific or general.
• General consent is normally 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.

3. Reasons for states have withdrawn consent 

• Traditionally, almost all states have given CBI general consent. However, from 2015 onward, several states have begun to act differently.

• The first state to withdraw consent was Mizoram in 2015. 
• In November 2018, the West Bengal Government led by Mamata Banerjee withdrew the general consent that had been accorded to the CBI by the previous Left Front Government back in 1989.
• West Bengal announced its decision within hours of Andhra Pradesh, then ruled by N. Chandrababu Naidu.
• In 2019 Y S Jagan Mohan Reddy's government restored consent in Andhra Pradesh.
• In January 2019 Chhattisgarh withdrew consent. Punjab, Maharashtra, Rajasthan, Kerala and Jharkhand followed in 2020.

4. Withdrawal of general consent 

• 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.
• CBI officers will lose all powers of a police officer as soon as they enter the state unless the state government has allowed them.

5. Calcutta High Court 

5.1 Vinay Mishra vs the CBI

• Calcutta HC ruled that corruption cases must be treated equally across the country and a central government employee could not be "distinguished" just because his office was located in a state that had withdrawn general consent.
• The HC also said that withdrawal of consent would apply in cases where exclusively employees of the state government were involved.
• The petition challenged the validity of FIRs registered by the CBI's Kolkata branch after the withdrawal of consent.

6. CBI's stand 

• The agency can use the Calcutta HC order to its advantage until it is struck down by the SC.
• Otherwise, the withdrawal of consent did not make the CBI defunct in a state it retained the power to investigate cases that had been registered before consent was withdrawn.
• Also, a case registered anywhere else in the country, which involved individuals stationed in these states, allowed the CBI's jurisdiction to extend to these states.
• There is ambiguity on whether the CBI can search for connection with an old case without the consent of the state government.
  But the agency has the option to get a warrant from a local court in the state and conduct the search.

7. Section 166 of CrPC

• In case the search requires an element of surprise, Section 166 of the Criminal Procedure Code (CrPC) can be used, which allows a police officer of one jurisdiction to ask an officer of another to search on their behalf.
• Should the first officer feel that a search carried out by the latter may lead to loss of evidence, the section allows the first officer to search himself after giving notice to the latter.
• Finally, consent does not apply in cases where someone has been caught red-handed taking a bribe.

8. Fresh cases 

• The CBI could use the Calcutta HC order to register a fresh case in any state.
• Alternatively, it could file a case in Delhi and Continue to investigate people inside these states.
• Delhi High Court ruled that the agency could probe anyone in a state that has withdrawn general consent if the case was not registered in that state.
• The order came on a case of corruption in Chhattisgarh the court said that since the case was registered in Delhi, the CBI did not require the prior consent of the Chhattisgarh government.
• In sum, avenues remain unavailable to the CBI to proceed even without consent.
• The CBI could register cases in Delhi if some part of the offence is connected with Delhi and still arrest and prosecute individuals in these states.

9. The Prevention of Corruption Act, of 1988

• After the 2018 amendments to the prevention of Corruption Act, of 1988, the Centre has come to exercise power over the CBI not just administratively, but also legally.
• In 2018, 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.
• 2018 amendment virtually means the agency can investigate only the officers that the government of the day wants to be investigated.
• Corruption cases registered by the CBI dropped by over 40 per cent between 2017 and 2019.

For Prelims & Mains