Can states enfeeble the Central Bureau of Investigation? An examination of the policies surrounding

Introduction

In June, the DMK-led government in Tamil Nadu withdrew the provision of general consent given to the Central Bureau of Investigation (CBI) under Section 6 of the Delhi Special Police Establishment Act (DSPE). An official release from the Tamil Nadu state government stated that "The CBI should henceforth seek prior permission from the Tamil Nadu government for undertaking an investigation."

Given that Tamil Nadu is not the first state to withdraw the consent, this article examines the impact of such withdrawals on the CBI's operations and argues that while they complicate the investigative process, they are often undertaken as political symbols. By closely examining CBI-related policies, it becomes evident that the Bureau still possesses discretion and power to investigate state matters without the consent of respective governments.

The Central Bureau of Investigation's Powers

The CBI derives its powers primarily from the DSPE Act of 1946, which grants the Bureau jurisdiction and authority to investigate offences specified by the central government and function as a special police force for specific offences. Several penal and criminal acts incorporated into Indian law provide the CBI with discretionary and operational powers that expand its scope and establish it as India's primary investigative body. For example, the Prevention of Corruption Act of 1988 empowers the CBI to investigate and prosecute cases related to corruption by public servants, including bribery, abuse of position, and illicit enrichment. The Code of Criminal Procedure Act amendment in 2003 grants the CBI enhanced powers, such as the authority to investigate and prosecute offences committed outside India by Indian nationals or entities, subject to certain conditions and international agreements.

In addition, the CBI also has provisions in The Official Secrets Act of 1923, which it can invoke to investigate cases related to the unlawful possession, dissemination, or disclosure of classified or confidential information that may compromise national security.

However, despite these numerous policies detailing the functioning of the CBI, there is still ambiguity surrounding its jurisdiction. Under the DSPE Act, the central government can extend the CBI's jurisdiction to investigate offences related to corruption, economic crimes, major frauds, and other serious criminal cases. However, the broad scope of these notions often lacks specificity, leading to uncertainty about whether a particular offence falls within the CBI's jurisdiction

This ambiguity often strains the cooperative federalism that should underpin the CBI's functioning. A notable example is the NRHM scam investigation in Uttar Pradesh. In 2011, the CBI investigated financial irregularities and corruption allegations related to the NRHM, a healthcare program implemented by the Government of India. During the investigation, it became evident that the CBI's jurisdiction was being stretched beyond its intended scope. The CBI attempted to investigate matters that primarily fell under the purview of state-level agencies, such as the state police and state vigilance departments. The state government argued that the CBI was encroaching upon its jurisdiction, resulting in a legal battle between the state and central governments.

The Power of State Governments to Inhibit the CBI

Under Section 6 of the DSPE Act, state governments can provide general consent to the CBI, allowing the Bureau to exercise its powers and investigate cases within the state's jurisdiction without seeking prior permission for each case. However, in recent times, the withdrawal of consent has often been by political reasons.

The effect of the withdrawal is two-fold. One on hand, it will definitely hinder the CBI's functioning in Tamil Nadu and the Bureau will now need to obtain due sanction from the Tamil Nadu government before registering and carrying out investigations or probing central government employees in the state. For the states, by demarcating boundaries with the Bureau, they demonstrate some degree of action.

Yet, the withdrawal will only limit the CBI's powers in the state; it will not eliminate them entirely. The withdrawal of consent applies only to future cases, not ongoing ones. Therefore, ongoing investigations, including the one involving Senthil Balaji's arrest, will not be affected. Furthermore, the judiciary plays a significant role in shaping the CBI's operations. If either the Supreme Court or the High Court orders an investigation, the Bureau can bypass the requirement for state consent. This is evident in the case of West Bengal, where despite the state having withdrawn consent in 2018, the CBI is currently investigating multiple cases, including a coal scam and a municipality recruitment scam.

Conclusion

While the withdrawal of general consent by state governments undoubtedly complicates the operations of the CBI, it is important to recognize that these limitations are not absolute and do not eliminate the Bureau's ability to conduct investigations. The CBI still retains discretionary powers, and it can continue its investigations under specific circumstances, such as when ordered by the courts. While the dynamics between the central and state governments, along with the role of the judiciary, significantly impact the CBI's functioning, existing policies and the Bureau's interpretative latitude ensure its continued investigative capacity in the face of state-level withdrawals of consent.