States say “No” to CBI

In India’s yet-another political war, the Andhra Pradesh and West  Bengal governments have decided to withdraw their consent to the functioning of Central Bureau of Investigation (CBI) in their States alleging that the Central Government is misusing agencies like CBI to target political opponents.

The law pertaining to this issue:

1. The CBI functions under the Delhi Special Police Establishment Act,1946 (“the Act”) and derives its powers therefrom.
    
2. An excerpt from the FAQ section of the CBI website describes the three divisions in the CBI and the type of offences that the CBI can enquire as follows:
   • Anti-Corruption Division – for investigation of cases under the Prevention of Corruption Act, 1988 against public officials and the employees of Central Government, Public Sector Undertakings, corporations or bodies owned or controlled by the Government of India – it is the largest division having presence almost in all the States of India.
      
   • Economic Offences Division – for investigation of major financial scams and serious economic frauds, including crimes relating to fake Indian currency notes, bank frauds and cyber crimes.
      
   • Special Crimes Division – for investigation of serious, sensational and organized crime under the Indian Penal Code and other laws on the requests of State governments or on the orders of the Supreme Court and High Courts.
      
3. Section 6 of the Act provides that the Delhi Special Police Establishment cannot exercise powers and jurisdiction in any area in² a State without the consent of the Government of that State.

Takeaways:

1. Pursuant to these orders it can be safely presumed that CBI cannot investigate any of the offences listed above in the states of Andhra Pradesh or West Bengal without obtaining the permission of the respective State governments for every such investigation.
    
2. However the CBI can investigate an offence in these States without the consent of the State government, if the CBI is ordered to do so by the Hon’ble Supreme Court or the Hon’ble High Court.
    
3. It is likely that the investigation of the aforesaid offences in these States will now be entrusted to the State investigation authorities.
    
4. The opposition parties in the Centre have, on several occasions, alleged that the Central Government is using the CBI and the Income Tax Department to harass the supporters of its political opponents. The powers of the CBI will be significantly curtailed if all non-BJP states were to exercise their power under Section 6.
    
5. It is interesting to note that the Act is silent about the power of the State governments to withdraw consent.
    
6. It is unclear what to happens to ongoing investigations and the impact of the orders if the consent is withdrawn by a State. Will such withdrawal of consent have retrospective effect?