This is not the first time India's premier investigating agency CBI is under scrutiny. Since it's very inception the institution invited unsolicited deliberations over its controversies rather than its often short lived triumphs. Recently, ex CBI Chief Nageshwar Rao tweeting Swami Agnivesh's death as 'good riddance' attracted criticism on social media. This conduct from someone who was once at the helm of CBI further befouled the integrity of the institution, which is already withering under its lost glory. The latest addition to these woes is the general consent conundrum where multiple states have proceeded to withdraw their consent to CBI investigation in connection with the ongoing cases in their jurisdiction. Amongst the several issues of constitutionality, credibility, and political interference faced by the CBI the issue of general consent is at the core of the crisis edging towards a slow death of the institution.
There has always been a silent ongoing tone of displeasure between the state governments and the CBI which in the subsequent years became very loud and obvious. Section 6 of the Delhi Special Police Establishment Act 1946 requires the CBI to obtain the consent of the state government before conducting investigation in a particular state thereby limiting its jurisdiction as provided under Section 5 of the Act. In case of 'general consent' the CBI does not have to obtain the prior permission of the state government before investigation. When a state withdraws general consent, CBI officers lose the powers to conduct investigation in the concerned state. In order to register a new case, the agency has to seek specific consent from the State government. As a result, it stalls registration of new cases. And over the years, general consent has been used as a tool of political rivalry between the centre and state.
Karnataka is one state that withdrew the general consent multiple times in the past. In November 2018, Andhra Pradesh withdrew general consent owing to the State's ruling party TDPs fears that the BJP was misusing its powers by influencing the central agency to target the ministers of the ruling party. Soon after this, Chief Minister of West Bengal Mamata Banerjee showcased her support in the stance taken by TDP in Andhra Pradesh by withdrawing general consent in her state. Chhattisgarh became the third state during the BJP reign to withdraw the general consent in January 2019 during the CBI and Alok Verma row. Following the league, Rajasthan withdrew general consent on January 2020 after BJP called for a CBI investigation in the state against Chief Minister Ashok Gehlot on leakage of audio tapes with regard to horse trading charges.
In a recent turn of events, the Uddhav Thackeray-led Maharashtra government withdrew general consent owing to dissatisfaction of the interference of the Central Government in opting CBI investigation. This was in connection with the Sushant Singh Rajput case and the TRP scam. In the present matter, CBI took over the investigation carried by the Mumbai Police on the basis of secondary FIRs that were filed in BJP ruling states. The State government feels that central government was trying to settle political scores using CBI. Amidst the continuing tensions, CPI(M) led Kerala government is also considering to withdraw the general consent for protecting the state's interest in the Life Mission Project. The state government puts forth that the CBI probe will discredit the LDF Government, by misuing the the consent granted.
The above examples set a common pattern where general consent is withdrawn by states that are ruled by opposition parties vis à vis the ruling party at the centre which more or less is a reflection of the existing political tussle between the union and the states. In this Union v. States debate, it becomes impossible to weigh the consequences and determine the wrongdoer. As the issue of General Consent has brought out a joint expression of displeasure at the CBI or rather the union government, it only shows how politicised the institution has become.
In effect, withdrawal of general consent will not influence the functioning of the CBI beyond measure as the judiciary can always step up to provide a middle ground by directing CBI investigation in a state (as held in State of West Bengal v. Committee for Protection of Democratic Rights). However, seemingly this will put the judiciary in the title of an admonishing parent mediating a dispute between two constantly fighting children. This endangers the concept of separation of powers requiring judicial intervention over executive action on a regular basis.
The Supreme Court in a multitude of cases has recognised the facet of federalism as a basic structure of the constitution. While analysing the concept of federalism as applying to the Indian context different jurists have provided differing views terming India as 'quasi-federal' or 'asymmetrically federal'. The Supreme Court in the Swaraj Abhiyan Case (V) Delhi Lieutenant Governor Case inclined towards a concept of 'co-operative federalism' or 'pragmatic federalism' which fosters compromise and deliberation.
The essence of federalism lies in the sharing of legal sovereignty between the centre and states, which is facilitated through the demarcation of the legislative and executive powers. This is the idea behind the three lists in the 7th schedule of the Indian Constitution – the union list, state list and the concurrent list. Entry 2 of the List II made 'Police' a state subject conferring exclusive domain to the state to make laws regarding the same. However, the Delhi Special Police Establishment Act which establishes the CBI continues to function as a central agency carrying out its functions as 'Police'. This was one of the contentions in Navendra Kumar v. Union of India which challenged the constitutionality of CBI. While declaring the CBI as unconstitutional the court also analysed the constitutional assembly debates. On an evaluation of the legislative intent behind 'investigation' as under 'Central Bureau of Intelligence and Investigation' in the Union List, the constituent assembly debates point out that investigation here only mean a general enquiry and not investigation under CrPC that is under the purview of police which is exclusively a state subject. Therefore, the constitutionally demarcated lines are quite clear between the centre and state when it comes to police and investigation in theory, albeit problematic in practice. The concept of CBI is more advanced involving specialized information, technical knowledge whilst incorporating extra territorial operation. If the underlying issues of the institution are fixed, the CBI can have a beneficial existence which adequately fills the gaps in the functioning of the state police.
The ongoing polemics surrounding the central and state governments in the matter of general consent has led to a state of coercive federalism. This has put the central agency in a bad light as it is assumed to be persuaded by the central government to settle political scores against the state governments. This can be resolved on compartmentalizing the roles and responsibilities of different stakeholders involved in the matter. Defining the circumstances where the cases will be transferred to the central agency for investigation thereby following a structure of complementary jurisdiction would resolve jurisdictional ambiguity surrounding the CBI. Following the European principle of subsidiarity, framing definite grounds on which state governments can restrict general consent or transfer cases to CBI for a higher-level investigation can aid in reducing the friction between the central and state governments. Most importantly, giving statutory recognition to CBI will provide it with constitutional recognition independent of its existence from DSPE Act. A comprehensive system involving the co-operation of legislature, executive and judiciary can revamp and revive the lost glory of CBI.
Views are personal
(Gauri Thampi P is an Advocate at the High court of Kerala and Tellmy Jolly, is a Law graduate)