Jurisdiction Powers of CBI

Jul 16, 2024

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Jurisdiction Powers of CBI

Context: The Supreme Court upheld the maintainability of the West Bengal government’s suit accusing the Union government of “constitutional overreach” accusing the CBI of investigating cases in the state despite the withdrawal of general consent in November, 2018.

About CBI

The Central Bureau of Investigation (CBI) was set up in 1963 by a resolution of the Ministry of Home Affairs.
Later, it was transferred to the Ministry of Personnel and now it enjoys the status of an attached office.
The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment Act, 1946

General consent and Specific Consent

CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946.
Section 5 of the DSPE Act empowers special police establishments (SPEs), including CBI, to investigate cases in the states.However under Section 6 of the DSPE Act, the CBI is required to obtain consent from the concerned State government before initiating an investigation within its jurisdiction.

When a state gives a general consent (Section 6 of the Delhi Special Police Establishment Act) 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.
This permission is crucial since “police” and “public order” are subjects that fall within the State List under the Seventh Schedule of the Constitution.
No such prior consent is necessary in Union territories or railway areas.
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 all over the country.
Since 2015 several opposition-ruled states have revoked general consent on grounds of misuse of power.

Specific Consent: When general consent is withdrawn, the CBI needs to seek case-wise consent for investigation from the concerned state government.

Implication of withdrawal of general consent

Corruption may rise as the conviction rate of CBI is high vis-a-vis state police.
Impact on federalism.

Court’s view

Vinay Mishra vs the CBI(2021): The Calcutta High Court ruled that the central agency cannot be stopped from probing an employee of the central government in another state.

The order has been challenged in the Supreme Court which is being heard now.

The HC also said that withdrawal of consent would apply in cases where only employees of the state government were involved.
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.
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.

About the case

The constitution conferred original and exclusive jurisdiction upon the Supreme Court to address centre -state disputes, under Article 131.
August 2021, the West Bengal government 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.
For a suit to be maintainable under this provision, two conditions have to be satisfied —

It should relate to a dispute between the Government of India and one or more State Governments (or) between one or more State Governments,
It must involve a question of law or fact crucial to the determination of legal rights.

Centres Argument against admitting the case

Asked the Court to dismiss West Bengal’s suit under Article 131 by raising preliminary objections to its maintainability.
The centre pointed out that original suits under Article 131 of the Constitution exclusively involve the Union and States as parties.
Since this case was filed by CBI which is an “independent agency”thus the central government cannot be made part of the case.

Courts Judgement about admitting the case

Rejected the Centre’s preliminary objections that it was wrongly made a defendant in the suit as it did not control the CBI, which was an “independent agency”.
Right from the constitution of the CBI, the classes of offences which are to be investigated by it, to its administration and powers, it is the Central government that holds the power.
The central agency cannot initiate any investigation without the express authorisation of the Union government under Section 5 of the DSPE Act.