Boost for federalism: SC says CBI needs state’s consent

This comes as nine states have withdrawn general consent to the CBI.
Supreme Court
Supreme Court
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The Centre cannot extend the jurisdiction of the Central Bureau of Investigation (CBI) into the states without their consent, the Supreme Court said during a ruling, and this, it said, was in tune with the principle of federalism. 

"As per law, state consent is a must and the Centre cannot extend CBI jurisdiction without the state's consent. The law is in tune with the federal structure of the constitution," the Supreme Court reportedly said. As things currently stand, nine states — Kerala, Maharashtra, Jharkhand, West Bengal, Rajasthan, Chhattisgarh, Mizoram, Tripura and Punjab — have withdrawn general consent for CBI.

A Bench of Justices AM Khanwilkar and BR Gavai referred to sections 5 and 6 of the Delhi Special Police Establishment (DSPE) Act, which deal with extension of powers and jurisdiction of special police establishment to other areas and consent of state government to exercise powers of jurisdiction.

Pertaining to the provision, the judgment read, “Obviously, the provisions are in tune with the federal character of the Constitution, which has been held to be one of the basic structures of the Constitution.”

The CBI has the powers to investigate because of the Delhi Special Police Establishment (DSPE) Act, 1946, to investigate a case in Delhi, without any permission, since it is part of the Centre. To investigate a case pertaining to a state or in its jurisdiction, the states have to give their consent. States give general consent (which can be withdrawn) or carte blance permission to the CBI. However, in the case of public servants, approval has to be obtained for each case. 

"It could thus be seen, that though Section 5 enables the central government to extend the powers and jurisdiction of members of the DSPE beyond the Union Territories to a State, the same is not permissible unless a State grants its consent for such an extension within the area of State concerned under Section 6 of the DSPE Act," the bench said. 

Boost for federalism?

Constitutional expert Subash Kashyap says that law and order are state subjects. 

“With the consent of the state, because the Constitution is of three lists - the State list, the Union list and the Concurrent list, only the state has the responsibility in law and order as they are state subjects and it should be left to them according to the Constitution,” he said. There are circumstances in which the Union can do so, but they are exceptions, he added.   

Mathew Idiculla, a research consultant with the Centre for Law and Policy Research, said it is a shot in the arm for the states because it reasserts the existing position. 

However, he argues that there is no clear provision under the Constitution for a body like the CBI to exist. “Under the existing constitutional scheme, law and order lies with the state, and the Centre really doesn’t have much of a role in that. Under the seventh schedule of the constitution which lists subjects, there is no clear provision for a body like the central bureau of investigation to exist. What it actually provides for something in the nature of an Intelligence agency,” he said.

Something similar was ruled by the Gauhati High Court in 2013, which said that the CBI “is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946.”

“Whether a body like the CBI should be allowed to investigate cases in a regular manner like how the police do is still an unresolved constitutional question,” he added. 

He added that states withdrawing general consent has been seen as an aberration when it is well within the constitutional structure of how Indian federalism was envisioned.

“In this context, the Supreme Court must always abide by the constitutional spirit which supports federalism. The Constitutional scheme in India has aspects which go against federalism, but in terms of law and order, it is very clear under the Constitution that it is the state which takes precedence,” he added.

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