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Recently several non-BJP ruled states have withdrawn their general consent accorded to the Central Bureau of Investigation (CBI) to investigate cases in their territories. Now, the CBI will need permission from these state governments to investigate cases in their jurisdictions. Under section 6 of the Delhi Special Police Establishment Act, 1946, all states except Delhi and the Union Territories have the option to give their consent to the CBI for an investigation in the state because the law and order is a state subject and the CBI cannot investigate in the states as of right. Many states such as Punjab, Maharashtra, Jharkhand, West Bengal, Rajasthan, and Chhattisgarh have shut their doors for the CBI, a premier investigation agency controlled by the Central Government. The decisions may be politically motivated as many people see this as a confrontation between the centre and the states because of political misuse of the CBI by its political masters. It affects the credibility and integrity of the CBI and this is not a good development at all for our federal democracy. The Central Government should take the concerns of the states seriously.

The CBI is governed by the Delhi Special Police Establishment Act, 1946. It functions under the administrative control of the Central Government. The Director of the CBI is appointed on the recommendation of a high-power committee including the Prime Minister, the Leader of Opposition in the Lok Sabha, and the Chief Justice of India. The CBI has investigated many sensitive cases in the country and has also been criticised on many occasions. This is why the premier agency has always been in news. As per section 6 of the DSPE Act, the CBI needs the consent of the state government where it wants to investigate a case. The CBI manual says, “The Central Government can authorize CBI to investigate such a crime in a state but only with the consent of the concerned state government. The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the state.” When a state government gives its general consent to the CBI for investigating cases, the CBI is not required to seek fresh permission every time it investigates a case in any state. But when a state government withdraws its general consent to the CBI, the agency requires the consent of the state government to investigate the particular case. This affects the investigation functioning of the CBI which investigates several sensitive cases in different parts of the country. There is an urgent need of a dialogue between the centre and the states regarding this issue.

As mentioned in the CBI manual itself, the CBI can still investigate cases in such states without receiving their consent if the constitutional courts (Supreme Court and High Courts) direct the CBI to do so. This is the extraordinary power of the constitutional courts that exercise the judicial review powers. In State of West Bengal &Ors. v. The Committee for Protection of Democratic Rights, West Bengal &Ors, (Civil Appeal No. 6249-6250 of 2001), a 5-judge Constitution Bench of the Supreme Court observed that When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the Supreme Court and High Courts can also exercise their constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Delhi Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as a restriction on the powers of the Supreme Court and High Courts, the Court observed. The Court also observed that exercise of the power of judicial review by the constitutional courts would not amount to infringement of either the doctrine of separation of power or the federal structure.

     The Court further observed: “In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.”

Notably, the Supreme Court also observed that the constitutional courts should exercise this power carefully. This kind of extraordinary power cannot be exercised routinely. This is what the Court observed on this issue: “Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.”

The abovementioned mentioned observations of the Supreme Court make it very clear that the constitutional courts can direct the CBI probe in any case without receiving the consent of that state. The constitutional courts are not bound by section 6 of the Delhi Special Police Establishment Act. The judicial review is an integral part of the basic structure of the Constitution and no statute can take it away. Even Parliament cannot dilute the judicial review power of the constitutional courts by amending the Constitution as per Article 368. An aggrieved person would have to approach the concerned High Court or the Supreme Court for a request of the CBI probe and the Court will have all powers to grant him relief in such cases. In rare cases, these constitutional courts can also take suo motu notice and direct the CBI probe. The states cannot say no to the CBI probe if directed by the constitutional courts. The states will be duty-bound to cooperate with the CBI in such cases. Needless to say, the writ courts should exercise this power carefully as the CBI has limited manpower and resources. The CBI probe cannot be directed routinely. In many cases, the Supreme Court has overruled the decisions of the High Courts pertaining to the CBI probe in different cases. So, the states which have withdrawn their general consent to the CBI cannot say ‘no’ to the CBI if directed by the Supreme Court or the High Courts.

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