News Delhi: Tamil Nadu has joined the list of opposition-ruled states that have withdrawn their “general consent” given to the Central Bureau of Investigation to investigate cases within the state.
The decision comes amid mounting 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 that time, Balaji was the Transport Minister in the then AIADMK government.
Tamil Nadu appears to be worried about possible “arbitrary actions” by the central agency in future. In Balaji’s case, the ED was likely to hand over the case to the CBI for further investigation. This means that in the course of its investigation, the ED can ask the CBI to register a fresh case after its findings.
Now, the CBI will not be able to register a case, conduct raids, or investigate central government employees in Tamil Nadu without proper approval from the state government.
While the decision will limit the investigative powers of the CBI, it will not completely keep the central agencies at bay for several reasons.
First, withdrawal of consent is applicable only to future cases and not to previously registered cases. Therefore, ongoing investigations can continue even without the consent of the state.
Second, in politically charged cases, if the Supreme Court or High Court orders the CBI to investigate, the state’s consent is not required. Hence there is no point in withdrawing the general consent in such situations.
Third, the withdrawal of general consent is applicable only to the CBI; Other agencies like the National Investigation Agency (NIA) or the Enforcement Directorate (ED) will continue to investigate any case anywhere in the country. This is because both NIA and ED are governed by different Acts. Only in one case a predicate offense is required for the ED to initiate the investigation. For example, in Tamil Nadu, the agency built its case on a corruption case registered by the local police in 2015.
States like West Bengal, Rajasthan, Kerala, Mizoram, Punjab, Jharkhand, Chhattisgarh, Meghalaya and Telangana have already withdrawn their general consent to CBI. However, it is important to understand what “general consent” means, the implications of when it is withdrawn, and the consequences. And that’s 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 jurisdiction of the agency is only within the Union Territories and not the States.
Section 5 of the DSPE Act extends the powers and jurisdiction of the Special Police Establishments to other areas, including the CBI. However, section 6 says that these powers cannot be exercised in the jurisdiction of another state without its consent.
Most of the states have provided “general consent” to the central government for unhindered investigation of corruption cases without their prior permission. Even the Supreme Court has said in a comment that the permission of the state is necessary for the investigation by the CBI.
Although the practice of withdrawing consent began with Andhra Pradesh, Mizoram was the first state to do so in 2015 when the Congress was in power. In 2018, the Andhra Pradesh government led by N Chandrababu Naidu accused the BJP at the Center of misusing agencies to coerce and intimidate TDP ministers over their demand for special status for Andhra Pradesh. Naidu’s government Has taken back general consensus, although it was reinstated in 2019 by the new YSRCP government led by YS Jagan Mohan Reddy.
In March this year, 14 opposition parties, including the Congress, had also approached the Supreme Court over the “arbitrary use” of the CBI and ED against their leaders. The parties claimed that 95 per cent of the cases registered by the CBI and ED were against leaders of opposition parties.
The Supreme Court dismissed the petition saying that “Politicians cannot be held higher than citizens and cannot seek special treatment and immunity from arrest under law.”
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A Mighty CBI Vs ‘The Caged Parrot’
The withdrawal of the State’s consent is clearly motivated by political motivations. However, this hinders criminal investigation as crimes nowadays cross state boundaries.
According to a CBI official, withholding general consent certainly limits the CBI’s authority within states, as consent is sought on a case-by-case basis.
“It makes things inconvenient for the CBI. This prevents the agency from registering cases, working on leads, conducting raids and affects the output. If the agency has a lead and wants to register a case, then consent has to be taken. Sometimes the state responds, most times they don’t,” the official said. “These (withdrawal) decisions are political in nature, but not in the larger interest of the country and its people,” the official said.
As per the data available with CBI, the agency There are more than 100 complaints of fraud – including bank fraud and corruption – in several states. But the cases have not been registered as the states have not given their consent to start the investigation.
“We have received over 100 complaints of suspected high value fraud from different parts of the country. But we cannot probe as we do not have the consent of the state government. We remind them time and again but there is no response.
However, others say that withdrawing the consensus is necessary in the current scenario where the CBI is being “openly misused by the BJP government”.
Advocate Sunil Fernandes told ThePrint that in a federal structure, the state ideally should not have withdrawn this consent. He said that like other countries, India too should have a strong federal agency, but this is only in an “ideal world”.
“Unfortunately, since 2014, the misuse of the CBI has reached an unprecedented level. Withdrawal of consent has to be seen in that light. “Also, law and order is a state subject. It is the primary responsibility of the state. Mere withdrawal of this consent does not absolve them of their obligation to maintain law and order.
With the increase in the number of cyber fraud cases and economic crimes requiring complex investigations spread across states, it is imperative that a specialized central agency like the CBI remains empowered in the larger public interest, but without being a “caged parrot”.
Thoughts are personal.
(Edited by Prashant)