On Wednesday, 21 October, the Maharashtra government withdrew its ‘general consent’ for the Central Bureau of Investigation (CBI) to operate in the state, which had been granted back in February 1989.
This will mean that the CBI will need the prior approval of the state government to conduct any investigation arising out of the state going forward, on a case-to-case basis.
It is important to note that the order of the Home Department states that it also withdraws the consent granted to the CBI by “any other instruments issued by the Government of Maharashtra, from time to time” to exercise its powers in the state.
In doing so, Maharashtra has gone further than Opposition-ruled Rajasthan, for instance, which also revoked its general consent for the CBI to operate in June this year, but specified that consent granted for specific individual cases would continue to remain valid.
But what does this all mean? Will this withdrawal of consent affect the CBI’s investigation of the Sushant Singh Rajput case? Does it block the CBI’s ability to probe the TRP manipulation scam, which it has just started looking into? And does the CBI have any options to work around this order?
WHY DOES THE CBI NEED CONSENT OF A STATE GOVT TO OPERATE?
Police and public order are issues that fall within the purview of state governments, not the Centre, according to the Constitution. The Centre only controls the police in Union territories (and Delhi) and in connection with the Railways – otherwise investigation of cases is generally supposed to rest with state governments.
The CBI operates under a pre-Independence law called the Delhi Special Police Establishment Act 1946 (DSPE Act), under which its creation was notified in 1963. Interestingly, the Gauhati High Court had held in 2013 that the CBI was an unconstitutional body as the DSPE Act could not be properly viewed as the basis for its creation.
The Supreme Court put a stay on the high court’s judgment but has yet to hear the appeal against it, and take a final call on the constitutionality of the CBI.
Unlike the National Investigation Agency (NIA), which was set up by a proper Act of Parliament and can take up a case dealing with its scheduled offences (basically terror cases) anywhere in the country without the consent of the state government in question, the CBI cannot just operate wherever it wants, even in cases dealing with its core competencies, like anti-corruption, or foreign exchange violations.
This is specified in the DSPE Act itself. Section 6 of the DSPE Act says that the CBI cannot:
"“exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without consent of the Government of that State.”"
To prevent this from becoming a logistical nightmare, most states issue a ‘general consent’ to the CBI to investigate cases assigned to them. They also grant consent for specific individual cases where further sanction is required, such as in cases involving government servants.
HAVE ANY OTHER STATES WITHDRAWN THEIR GENERAL CONSENT TO THE CBI?
Maharashtra is now the fifth state to withdraw its general consent for the CBI to operate, after Andhra Pradesh and West Bengal (in November 2018), Chhattisgarh (January 2019), and as mentioned above, Rajasthan (June 2020).
All the states that have done so have been ruled by parties in Opposition to the BJP at the Centre.
Andhra Pradesh revoked its general consent after the then Chief Minister Chandrababu Naidu’s Telugu Desam Party left the BJP-controlled NDA. However, after the YSRCP government led by Jagan Mohan Reddy came to power in 2019, it restored the CBI’s general power to operate in the state.
SO DOES THIS MEAN THE CBI CAN’T OPERATE IN MAHARASHTRA AT ALL ANY MORE?
This move by the Maharashtra government does not put a bar on the CBI’s operation in the state. It only means that the CBI has to take permission to conduct any investigation into a case arising out of the state – which is completely in accordance with the DSPE Act.
Given the political tensions at play, of course, the Maharashtra government may not grant such consent easily, or in all cases, but this would not necessarily be an abuse of the law. Of course, the general assumption is that no state should have a problem with the CBI conducting an investigation there, but the CBI has had a reputation as a ‘caged parrot’, as a bench of the Supreme Court put it, for some time now.
Despite the Maharashtra government’s order, there are certain circumstances in which the CBI can operate in the state even without the Uddhav Thackeray administration’s approval.
First off, there are cases where a CBI investigation has been ordered by a high court or the Supreme Court of India. As has been clarified by the courts, in such cases, no state government can object to the probe.
This is why the CBI’s investigation into the death of actor Sushant Singh Rajput will not be affected by the withdrawal of consent – the Supreme Court had ordered the handing over of the investigation to the CBI on 19 August.
Secondly, there are cases where the offence being investigated by the CBI arose/arises outside Maharashtra. In 2018, the Delhi High Court held that in such cases, the CBI has to be free to conduct its investigation into the offence even if that stretches to a state which has not granted consent for the agency to operate.
SO WILL THE CBI’s TRP PROBE BE AFFECTED?
At this point, it is unclear what the extent of the CBI’s TRP probe is going to be. The complaint on the basis of which it is registered is extremely vague and makes no specific mention of any channel or individual, or where the scam was operating out of, or how it was being run.
The complainant, a regional director at an advertising agency in Lucknow, merely says:
"“I have reliable information that certain unknown accused have in furtherance of a common intention, entered into a criminal conspiracy to cheat and also commit the offence of criminal breach of trust, forgery and in the process gain wrongfully by manipulating Television Rating Points commonly referred to as TRPs.”"
Given how ambiguous this is, the CBI can rely on the Delhi High Court judgment from 2018 to say that the offence it is investigating arose outside Maharashtra, and hence it can conduct its investigation into that offence to the extent it has spilled over into Maharashtra, with or without the Maha Vikas Aghaadi government’s permission.
This approach is likely to lead to proceedings in the courts, whether challenging the legality of the Delhi High Court order or to argue that the offence in question actually arose in Maharashtra itself. The Mumbai Police’s investigation, at any rate, deals with offences committed within the state, so the CBI would have to show their investigation goes beyond what’s being looked at there.
This question may of course become moot because the Bombay High Court is currently hearing a plea by Republic to (among other requests) transfer the investigation of the TRP manipulation scam to the CBI. The next hearing in the matter is on 5 November – if the high court were to order the CBI to take over the investigation, then the withdrawal of consent is irrelevant.
However, this is not something the court is required to do, as the subject matter of the investigation is not something within the CBI’s exclusive jurisdiction. However, if the Maharashtra government gets into too public a spat with the CBI over this issue, then it may see the courts pass an order like the one in the Sushant Singh Rajput case, where the matter was assigned to the CBI precisely because of the dispute between the Mumbai and Patna Police.
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