CM Chandrababu Naidu alleges Modi govt has used agencies such CBI & ED to threaten his ministers for demanding special status for Andhra Pradesh.
New Delhi: The Andhra Pradesh government notification withdrawing its consent, accorded to the Central Bureau of Investigation (CBI) to carry out probe and search operations in the state without prior approvals, is legally valid, experts said.
Amarendra Sharan, former Additional Solicitor General of India and a standing counsel for CBI, said that it was completely within the state government’s purview to withhold sanction to CBI.
“Many states have done this in the past for specific investigations. Police is a state subject, so it is legally valid,” he said.
The Telugu Desam Party-led Andhra government Friday issued a notification withdrawing the ‘general consent’ accorded to agency to carry out probe and search operations in the state without its approvals.
The move comes months after the TDP pulled out of the BJP-led National Democratic Alliance over the Centre’s refusal to accord “special status” to Andhra Pradesh.
Chief minister Chandrababu Naidu has been alleging that the BJP-led central government has used central agencies, including the CBI, Enforcement Directorate and the income tax department as a tool to arm-twist and threaten his ministers for demanding special status for Andhra Pradesh.
Naidu’s move seems to have been prompted by opposition leader Y.S. Jaganmohan Reddy’s letter to President Ram Nath Kovind, seeking a probe by a central agency into the attack on him at the Visakhapatnam airport, allegedly by a TDP follower on 25 October.
The issue has acquired political colour. Soon after Friday’s announcement, West Bengal chief minister Mamata Banerjee extended her support to Naidu, saying that the BJP is “misusing its central agencies”.
What the notification says
The state has cited “a lack of confidence” in the CBI, which has recently witnessed a bitter turf war between two of its top officers.
This means that the CBI will not be able to carry out any raids, probe central government employees in the state or go ahead with investigations in cases lodged in Andhra Pradesh without informing the state and taking due sanctions. However, this order is prospective (applicable to future cases), not retrospective in nature.
Also, the state will no longer rely on the agency to take up unresolved cases and further investigation will now be carried out by the state Anti-Corruption Bureau (ACB).
“In exercise of the powers conferred by section 6 of the Delhi Special Police Establishment Act 1946 (Central Act no.25 of 1946) Government hereby withdraw the general consent accorded…to all the members of Delhi Special Police Establishment to exercise the powers and jurisdiction under the said Act in the State of Andhra Pradesh,” the notification said.
The CBI was constituted under the Delhi Special Police Establishment Act of 1946.
Most states have accorded a “general consent” to the central government for investigation of cases of corruption, without any prior approval from them, which now stands withdrawn in the case of Andhra Pradesh.
According to government officials, revoking the consent may lead to state police probes against central government officials in Andhra Pradesh in corruption cases.
What CBI says
However, sources in the CBI said that they have not received any formal communication in the matter and DoPT (Department of Personnel and Training) would take a call on it.
“Banishing CBI from the state will definitely affect the ongoing investigations there,” an officer said.
“We haven’t received Andhra Pradesh government’s order revoking ‘general consent’ to the CBI for probing officials of central government in the territory of Andhra Pradesh. Once we receive it, we will examine it and take steps accordingly,” CBI spokesperson Abhishek Dayal said.
Is the notification legally valid?
Senior advocate Sidharth Luthra said that the CBI’s jurisdiction is only within the Union Territories and not the states. It is the state’s prerogative to give consent, partial consent or no consent. “It is perfectly alright for a state to withdraw the consent,” he said.
Even Section 6 of the Delhi Special Police Establishment Act stipulates that the CBI must seek permission from the state government before investigating a case. Raiding any premises without the sanction would be deemed illegal.
Former Delhi Police commissioner Neeraj Kumar, who also served in the CBI for nine years, said that the notification will definitely affect the ongoing investigations in the state. “The ongoing investigations will suffer since the CBI will not be allowed to enter the state. However, this move seems to be of political nature,” Kumar said.
“Amid the ongoing tussle between number 1 and number 2 of CBI, the CBI has definitely suffered a loss of face, but this move does not seem to be related to this spat,” he added.
Section 5 of the DSPE Act extends the powers and jurisdiction of special police establishment, including CBI, to other areas.
Section 6, however, says that Section 5 shall not be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in a state without the consent of the government of that state.
The Delhi High Court had earlier ruled that CBI need not seek the state’s consent, except when the case is registered in that state. The order came after the CBI had last month challenged if there was a need for prior sanction from the Chhattisgarh government to investigate an offence in the state.
It was argued that provisions of the DSPE Act is to facilitate the CBI in carrying out its investigations and would be counter-intuitive if it has to seek a sanction from the state in each case.
The CBI has also said in the past that Section 6 of the Delhi Special Police Establishment (DSPE) Act, 1946, does not talk about the nature of consent and, therefore, it needs a clarification on the issue as it would affect its power to investigate cases.
In 2003, then chief minister of Sikkim Nar Bahadur Bhandari reportedly withdrew the general consent given to CBI to investigate a case of disproportionate assets lodged against him. The high court at that time said that consent cannot be revoked retrospectively and eventually he was convicted under the Prevention of Corruption Act in 2011.
In December 2011, the Sikkim government turned down CBI’s request to prosecute its chief minister Pawan Kumar Chamling.
In 2016, the Delhi HC held that the CBI’s investigation against former Himachal Pradesh chief minister Virbhadra Singh in a disproportionate assets case was inadmissible since the agency did not have any sanction from the state government. Only evidence arising from the agency’s investigation in Delhi was taken into account.