News Delhi: Tamil Nadu has joined the list of opposition-ruled states that have withdrawn their “general consent” given to the Central Bureau of Investigation to probe cases within the state.
The decision comes amid increasing allegations from states, accusing the Narendra Modi government of using central agencies as a means to target leaders of opposition parties.
Tamil Nadu excise minister V Senthil Balaji was recently arrested by the Enforcement Directorate in a 2015 money laundering case. At the time, Balaji served as the minister for transport in then-AIADMK government.
It appears that Tamil Nadu is concerned about potential “arbitrary actions” by the central agency in the future. In Balaji’s case, there was a possibility of ED referring the matter to the CBI for further probe. This means that during its investigation, ED could tell CBI to register a fresh case after its findings.
Now, the CBI won’t be able to register any case, carry out raids, or probe central government employees in Tamil Nadu without taking due sanctions from the state government.
Although the decision will limit CBI’s investigating powers, it won’t keep central agencies completely at bay for several reasons.
First, the withdrawal of consent applies only to future cases and not to those registered earlier. Therefore, ongoing investigations can continue even without the state’s consent.
Second, in politically charged cases, if the Supreme Court or the High Court orders the CBI to investigate, the state’s consent is not required. So, withdrawal of general consent holds no meaning in such situations.
Third, the withdrawal of general consent applies only to the CBI; other agencies like the National Investigation Agency (NIA) or the Enforcement Directorate (ED) will continue to probe any case anywhere in the country. This is because both NIA and ED are governed by different Acts. The ED only needs a predicate offence in a case to start an investigation. For instance, in Tamil Nadu, the agency built its case on the corruption case registered by the local police in 2015.
States such as West Bengal, Rajasthan, Kerala, Mizoram, Punjab, Jharkhand, Chhattisgarh, Meghalaya, and Telangana have already withdrawn their general consent to the CBI. However, it is important to understand what “general consent” means, its implications when withdrawn, and the repercussions it entails. And that is why it is ThePrint’s Newsmaker of the Week.
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What is a ‘general consent’?
The CBI was constituted under the Delhi Special Police Establishment Act 1946. The agency’s jurisdiction is only within the Union Territories, not the states.
Section 5 of DSPE Act extends the powers and jurisdiction of special police establishments, including CBI, to other areas. Section 6, however, says that these powers cannot be exercised in the jurisdiction of another state without its consent.
Most states have accorded a “general consent” to the central government for seamless investigation of cases of corruption, without prior approval from them. Even the Supreme Court in an observation has said that a nod from the state is necessary for a probe by CBI.
Although the trend of withdrawing consent started with Andhra Pradesh, Mizoram was the first to do it in 2015 when the Congress was in power. In 2018, the N Chandrababu Naidu-led Andhra Pradesh government accused the BJP at the Centre of misusing agencies to arm-twist and threaten TDP ministers for demanding special status for Andhra Pradesh. Naidu’s government withdrew the general consent, although it was restored in 2019 by the new YSRCP government led by YS Jagan Mohan Reddy.
In March this year, 14 opposition parties, including the Congress, also approached the Supreme Court over “arbitrary use” of the CBI and ED against their leaders. The parties claimed that 95 per cent of the cases filed by CBI and ED were against leaders of opposition parties.
The Supreme Court rejected the petition saying that “politicians cannot be placed on a pedestal higher than the citizens and can’t seek special treatment under law and immunity from arrest.”
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A powerful CBI vs a ‘caged parrot’
The withdrawal of state consent is clearly driven by political motivations. However, it hampers criminal investigations because crimes nowadays transcend state boundaries
According to a CBI officer, the withdrawal of general consent certainly limits the CBI’s authority within states, as consent has to be sought on a case-to-case basis.
“It makes things inconvenient for the CBI. It restricts the agency from registering cases, working on leads, carrying out raids, and affects the output. If the agency has any lead and has to register a case, a consent has to be sought. Sometimes the state responds, most times they do not,” the officer said. “These (withdrawal) decisions are political in nature, but not in the larger interest of the country and its people,” the officer added.
According to data available with the CBI, the agency has over 100 complaints of fraud — including those of bank fraud and corruption — across several states. But cases have not been registered because states haven’t given their consent to start a probe.
“We have received over 100 complaints of suspected high-value fraud from different parts of the country. But we cannot investigate because we do not have the consent from the state government. We keep reminding them but there is no response,” the officer said.
Others, however, say that withdrawing general consent is required in the current scenario where the CBI is being “blatantly misused by the BJP government”.
Advocate Sunil Fernandes told ThePrint that in a federal setup, the state ideally should not withdraw this consent. Like other countries, India too should have a strong federal agency but that is only in an “ideal world”, he said.
“Unfortunately, since 2014, the CBI abuse has reached an unprecedented level. One has to view the withdrawal of consent in that light,” he said. “Also, law and order is a state subject. It is the primary responsibility of the state. Just by withdrawing this consent, their obligation towards maintaining law and order does not go,” he added.
With the surge in number of cyber fraud cases and economic offences that require intricate investigations spanning across states, it is imperative that a specialised central agency like CBI remains empowered in larger public interest, but without being a “caged parrot.”
Views are personal.
(Edited by Prashant)