On November 5, Jharkhand—helmed by Congress, became the eighth state to revoke the general consent extended to the Central Bureau of Investigation (CBI) to probe cases within its jurisdiction. Jharkhand's move came a day after Left-ruled Kerala also revoked the privilege extended to the central probe agency.
This means, that the CBI will now need permission from these states if it wants to probe cases within the state.
"The Government of Jharkhand hereby withdraws the consent accorded to the members of the Delhi Special Police Establishment," the order issued by the state's joint secretary Anil Kumar Singh read. No reasons for taking this decision have been forthcoming.
Also Read: Is Maharashtra's Withdrawal Of Consent For CBI Probes Legal?
Maharashtra, West Bengal, Chhattisgarh, Tripura, Mizoram and Rajasthan have withdrawn general consent, alleging that the BJP-led government at the centre was misusing the agency to harass political opponents. In 2018, the Andhra Pradesh government had also withdrawn the general consent, but this was restored when in 2019 the Yuvajana Sramika Rythu Congress Party (YSRCP) was voted into power.
But, is the CBI a bonafide police force in accordance with the Delhi Special Police Establishment Act? Gauhati High Court in 2013 said no.
Is CBI on Borrowed Time?
Seven years ago, in 2013 the Gauhati High court had quashed a resolution that constituted the probe agency. This puts a question mark on the continued functioning of the probe agency that has handled several high-profile cases.
The high court verdict came on the heels of a plea filed by Navendra Kumar—an employee of the Mahanagar Telephone Nigam Limited (MTNL)—who had challenged the 2007 trial court decision dismissing his appeal seeking to quash the 1963 resolution that constituted the CBI and the criminal proceedings against him.
"…we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a 'police force' constituted under the DSPE Act, 1946," a division bench of the high court ruled. "We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted," it added.
The bench comprising Justices Iqbal Ansari and Indira Shah had further observed, "Article 21 is one of the most cherished provisions in our Constitution, which prohibits the State from depriving a person of his life and liberty except according to the procedure established by law.
"However, what happens if by the State's action, which has been neither sanctioned by a legislation nor has been taken in valid exercise of its executive powers, the ineffaceable mandate of Article 21 gets smudged," it had further observed.
What was the plea about?
In his plea, Kumar had contended that the CBI is a non-statutory body, since it was not constituted under any Statute, but came into existence via an Executive Order/Resolution. Kumar's counsel LS Choudhary argued that "in the absence of any law laying the birth of the CBI, the exercise of powers of police, by the said organisation, such as registration of First Information Reports, arrests of persons, 'investigation' of crimes, filing of charge sheets and prosecution of the offenders cannot be permitted…"
At best, the CBI could simply assist by making "enquiries" on the investigation being carried out by the local police.
Supreme Court to the Centre's rescue
Four days later on November 9, 2013, the Supreme Court stayed the high court order. The top court constituted a special hearing on a Saturday, at Chief Justice of India P Sathasivam's residence.
Since then, the matter has come up in the court several times. The appeal filed by the Department of Personnel and Training (DoPT) against the high court order was last heard on June 26, 2019.
In February 2016, Choudhary—Kumar's counsel—argued that since the issue raised "a very important question of law" it needed to be referred to the Constitution Bench. Justices AK Sikri and RK Agrawal (both have since retired) ruled that when the matter came up for final hearing before the Regular Bench, the plea could be raised at the time and the issue could be "suitably examined by the concerned Bench."