What General Consent to CBI Means & Why Bihar Could Soon Be the 10th State to Revoke It | News18 Explains

Bihar, which recently witnessed power shifting from the JDU-BJP alliance to a rekindled JDU-RJD alliance, could soon become the 10th state to withdraw general consent to the Central Bureau of Investigation, with leaders of the ruling Mahagathbandhan alleging that the agency is being used by the BJP-led central government to settle political scores.

News agency PTI quoted a senior RJD leader saying on condition of anonymity that the Nitish Kumar government has started working towards withdrawing the consent given to the CBI.

The move comes days after the CBI searched the premises of several RJD leaders in Bihar in connection with the alleged land-for-jobs scam that allegedly took place when party patriarch Lalu Prasad Yadav was the railway minister. The searches were conducted the day Chief Minister Nitish Kumar, who parted ways with the BJP to ally with the Rashtriya Janata Dal (RJD), was scheduled to face a trust vote in the state Assembly.

CBI sources, however, told News18 that withdrawal of general consent would have no impact on the land-for-jobs scam investigation since the case is registered in Delhi. Any decision taken now won’t have retrospective effect, they said.

As the issue becomes yet another Centre vs State flashpoint, News18 takes a look at what the general consent constitutes and why nine states have withdrawn it since 2015.

What General Consent to CBI Means

Unlike the National Investigation Agency (NIA) which has a countrywide jurisdiction to take over any case related to terrorism, the CBI requires consent of the state government under the Delhi Special Police Establishment Act, the law that governs the agency’s functioning. According to Section 6 of the DSPE Act, 1946, the CBI needs consent from the respective state governments for conducting investigations in their jurisdictions.

Section 6 of the DSPE Act states: “Nothing contained in section 5 (titled “Extension of powers and jurisdiction of special police establishment to other areas”) shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”

Pursuant to the provision, some state governments have granted general consent to the CBI for the investigation of specified class of offences against specified categories of persons, enabling CBI to register and investigate those specified matters.

In states where general consent has not been accorded or where the general consent does not cover the particular case, there is requirement of specific consent of the state government under Section 6. Only when the consent of the state government is received, can extension of jurisdiction of CBI under provisions of Section 5 of the DSPE Act, 1946, be considered.

In cases where the Supreme Court and high courts entrust matters for investigation or enquiry to the CBI, there is no requirement for any notification conveying consent under Section 5 or 6 of the DSPE Act.

According to the CBI manual: “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.”

States That Have Withdrawn General Consent & Why

Since 2015, nine states, mostly ruled by parties opposed to the BJP, have withdrawn general consent to the CBI.

• Mizoram was the first state to withdraw general consent to the CBI in 2015 when it was ruled by the Congress with Lal Thanhawla as the CM. The government changed in 2018 when Zoramthanga’s Mizo National Front, a BJP ally, came to power. The general consent to CBI, however, is yet to be restored.
• West Bengal withdrew general consent in November 2018, with the Mamata Banerjee government alleging that states were losing faith in central agencies due to their “misuse” by the Narendra Modi government at the Centre. The general consent had been accorded to the CBI in West Bengal by the then Left Front government in West Bengal in 1989.
• Chhattisgarh followed Andhra Pradesh and West Bengal in withdrawing general consent to the CBI in January 2019. The Bhupesh Baghel-led Congress government wrote to the Union Home Ministry and the Ministry of Personnel asking them to direct the CBI not to register fresh cases in the state. The general consent to CBI had been initially accorded by the Chhattisgarh government in 2001.
• The Ashok Gehlot-led Congress government in Rajasthan withdrew the general consent in July 2020. The state government had issued a notification requiring the CBI to take prior consent of the state government for investigation of an offence under Section 3 of the DSPE Act, 1946. The move echoed a June 1990 decision of the then Rajasthan government to refuse “general consent” to the Centre
• Maharashtra withdrew general consent to the CBI in October 2020 amid allegations that the Centre was using the agency to circumvent investigations by the state police, especially in cases related to the death of actor Sushant Singh Rajput and the TRP scam. General consent had initially been accorded by the then Maharashtra government by an order on February 22, 1989. Much like Bihar now, Maharashtra too witnessed power shift from Uddhav Thackeray to Eknath Shinde, who joined hands with the BJP to oust the MVA government. General consent to the CBI is, however, yet to be restored.
• Left-ruled Kerala withdrew the general consent to CBI in November 2020 even as the federal agency was probing various alleged irregularities in the state government’s ambitious Life Mission project, a housing initiative for the poor.
• Within days of Kerala, the Hemant Soren government in Jharkhand also revoked general consent to the CBI. The powers vested in the CBI were given via an order dated February 19, 1996, by the then Bihar government to the CBI.
• Shortly after Jharkhand, then Congress government in Punjab too withdrew general consent to the central agency. The Punjab government had earlier withdrawn consent to the CBI for investigating the 2015 sacrilege incidents after the state Assembly passed a resolution in this regard in 2018.
• In March this year, Meghalaya became the ninth state to withdraw general consent to the CBI. The BJP is part of the ruling coalition, National Democratic Alliance (NDA), in Meghalaya led by Chief Minister and National People’s Party leader Conrad Sangma.

How Many Consent Requests are Pending With States?

The Centre had informed the Rajya Sabha in July this year that as many as 221 requests seeking consent for CBI probes are pending with six states, with Maharashtra topping the list. Here’s a breakdown of Union Minister of State for Personnel Jitendra Singh’s submission in the Upper House:

• Maharashtra: As many as 168 requests involving an amount of Rs 29,040.18 crore were pending as on June 30, 2022. Of these, 91 requests were pending for less than six months, 38 for more than six months and less than one year, and 39 for over a year
• West Bengal: Of the total of 27 requests seeking consent from West Bengal, 25 were pending for less than six months, one for six months to one year and one for over a year
• Punjab: Five requests were pending for less than six months and four for six months to one year
• Chhattisgarh: Six requests were pending for less than six months and one for six months to one year
• Jharkhand: Four requests for consent to CBI probe were pending for less than six months and two for more than six months up to one year
• Rajasthan: Two requests were pending with Rajasthan for less than six months and two others for six months to one year

What the Courts Say

In 2020, the Calcutta High Court had given reprieve to the CBI by allowing it to act against central government officials in a state even without general consent, saying “…the Central Government/CBI’s power to investigate and prosecute its own officials cannot be in any way impeded or interfered by the State even if the offenses were committed within the territory of the State…”. The order has been challenged in the Supreme Court.

In November last year, the Supreme Court had expressed concerns over state governments declining to grant consent to the CBI to conduct probe within their territory after the agency informed the court that more than 150 requests were sent to these states between 2018 and June 2021 for grant of specific consent for investigation of cases in their territory.

A bench headed by Justice Sanjay Kishan Kaul observed that state governments not granting consent is a “serious issue”.

The Politics of Consent

Parties in power in states that have withdrawn general consent to the CBI so far have accused the BJP-led central government of “misusing” the agency for “political vendetta”. The BJP has hit back at them, alleging that the parties were trying to cover up their corruption.

In Bihar, the grand alliance or Mahagathbandhan comprises seven parties — JD(U), RJD, Congress, CPIML (L), CPI, CPI(M) and HAM, which together have more than 160 MLAs in the 243-strong Assembly.

Demanding withdrawn of consent, RJD leader Shivanand Tiwari has alleged that the central agencies are being misused to target the BJP’s political rivals. “Besides, option should also be explored by the state government to approach the judiciary to check the misuse of central agencies… I must say that the central investigative agencies have lost their credibility during the NDA regime,” he said.

Chief Minister Nitish Kumar’s JD(U) said it was the right time to withdraw the general consent to the CBI. “The way central agencies such as CBI, ED and Income Tax Department are being misused to ruin the image of Opposition leaders, people of Bihar are watching, and they will give a befitting reply at the appropriate time,” said state minister Madan Sahni of JD(U).

CPI-ML(L) MLA Mehboob Alam claimed there was no doubt that the central agencies were being misused by the Centre to destabilise non-BJP governments in the states. “All central investigative agencies are working with political motives and they never act against BJP leaders. Our grand alliance government in Bihar should immediately withdraw the general consent granted to the CBI, curtailing the agency’s powers in the state,” he said.

Bihar Congress spokesperson Rajesh Rathore said no action by the agencies can be seen against BJP leaders. “The NDA government at the Centre is dictatorial and they try to suppress voices of the opposition by using central agencies. This should stop now and the Bihar government must withdraw its consent to the CBI,” he said.

Hitting back, Nitish Kumar’s ex-ally BJP alleged that his government was being asked to protect “corrupt” RJD by withdrawing general consent to CBI. State BJP spokesperson Nikhil Anand said the clamour for withdrawal of general consent had arisen from “insecurity” that plagued the seven-party coalition.

“The Mahagathbandhan is feeling insecure because of internal political contradictions, besides corruption scandals involving the RJD, its largest constituent,” Anand said. “A hue and cry is being made over autonomous central government agencies just to divert attention from the issues that confront the ruling alliance,” he said.

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