Explained | What is general consent to the CBI and which states have withdrawn it?

On Sunday, Telangana became the latest Indian state to withdraw general consent to the Central Bureau of Investigation (CBI), a move that comes amid Opposition complaints about the misuse of central agencies by the Modi government to stifle political dissent.

In the recent past, other states too have withdrawn general consent to the CBI, namely, Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala and Mizoram. However, Maharashtra reversed the decision after the fall of the erstwhile Maha Vikas Aghadi government.

Regardless, withdrawal of general consent to the CBI appears to be becoming a potent political tool. Given this fact, we explain what that means and what its implications are.

The DSPE Act and state government consent

The CBI is governed by The Delhi Special Police Establishment (DSPE) Act of 1946, which requires the investigative agency to obtain the consent of state governments before it can investigate a crime in a particular state.

The part of the act that governs consent—Section 6, titled ‘Consent of State Government to exercise of powers and jurisdiction’—clearly states: “Nothing contained in section 5 [titled ‘Extension of powers and jurisdiction of special police establishment to other areas’] shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State.”

In other words, sans a state government’s consent, the CBI cannot exercise its power within that state's borders, something that makes the investigative agency different from the National Investigation Agency (NIA) that has jurisdiction all over India.

What is general consent?

Consent given by a state government to the CBI can come in two forms, either case-specific, or 'general'.

General consent, as the name indicates, allows the CBI to operate seamlessly within states.

In contrast, if the CBI does not have the general consent of a state government, it is required to apply for consent on a case-by-case basis and cannot act before the consent is given.

Withdrawal of general consent also means that the CBI will not be able to register any fresh case involving central government officials or private persons in a particular state without prior permission of that state government.

That being said, the CBI can continue to investigate cases in a state registered prior to the withdrawal of general consent.

What is the current situation?

Almost all Indian states, barring a few exceptions, had given general consent to the CBI, but this began to change 2014 onwards, after the Modi government came to power.

The first state to withdraw general consent to the CBI was Mizoram in 2015, then ruled by the Congress. It has not yet been restored, despite power changing hands.

Subsequently, in November 2018, Trinamool Congress-ruled West Bengal also withdrew general consent to the CBI, hours after N Chandrababu Naidu’s Telugu Desam Party, in power in Andhra Pradesh at the time, announced a similar decision.

After the Y S Jagan Mohan Reddy government came to power in Andhra in 2019, the decision was reversed, but the strategy to rile the Centre by withdrawing general consent to the CBI continued to take hold across India.

While Chhattisgarh withdrew consent in 2019, Punjab, Maharashtra, Rajasthan, Kerala, and Jharkhand followed in 2020, with all of them citing the misuse of the central agency as the reason for withdrawal.

Is there any leeway to this withdrawal?

While the withdrawal of general consent to the CBI essentially renders the agency powerless within a state, a recent Calcutta High Court order, however, has given the agency some wiggle room.

In July, the High Court, in a case of illegal coal mining and cattle smuggling being investigated by the CBI, ruled that the central agency cannot be stopped from investigating a central government employee in another state.

In its order, the High Court observed that corruption cases across the country must be treated equally, and that central government employees could not be exempt from investigation on the grounds that their offices were located in states that had withdrawn general consent. The judgment also said that withdrawal of general consent and its ramifications would be applicable in cases where exclusively state government employees were involved.

This order, however, has been challenged in the Supreme Court, where the matter is still pending.

Hence, as it stands, the CBI can use the Calcutta High Court order to its advantage to carry on certain investigations until the order—if the order—is struck down by the Supreme Court.