Is Maharashtra's Withdrawal Of Consent For CBI Probes Legal?

In a major confrontation with the Centre, the Uddhav Thackeray led-government in Maharashtra withdrew its general consent extended to the Central Bureau of Investigation (CBI) to probe cases within the state's jurisdiction.

"In exercise of the powers conferred by Section 6 of the Delhi Special Police Establishment Act, 1946, the Government of Maharashtra hereby withdraws the consent accorded to the members of the Delhi Special Police Establishment…," the notification issued by Home Minister Anil Deshmukh read.

While this will not affect ongoing cases in the state, the CBI will need the state government's permission to investigate new cases. Speaking at a press conference, Deshmukh revealed that there was a "growing murmur among the common public about the political use of the premier central agency of late".

"The Honourable Supreme Court too had in the past termed CBI a 'caged parrot'. We have seen how a few sensitive cases registered in Maharashtra were handed over to the central agencies. We anticipated a similar attempt in the TRP scam and hence the order has been issued. Mumbai police is investigating the TRP case very efficiently and have made a few arrests too. After the CBI registered an FIR in the TRP scam in Uttar Pradesh, there was a possibility of our probe being handed over to the Central agency," Deshmukh said.

CBI: Jurisdiction and Role

According to the official website, the origin of the CBI is traced back to the Special Police Establishment (SPE) set up by the then Indian government in 1941. At the time, the SPE was required to investigate cases pertaining to bribery and corruption in transactions with the War & Supply Department Of India during World War II (WWII). At the end of the war, the government felt a need for an agency that would probe cases of bribery and corruption by Central Government employees.

The CBI was thus created under the aegis of the Delhi Special Police Establishment Act, 1946. The CBI is led by the Home Ministry at the Centre.

According to the act, the CBI can take over the investigation of a criminal case registered by the State Police only after the state makes a request and the Centre agrees to the same. The State and the Centre issue notifications under the relevant provisions of the DSPE Act accordingly. The Supreme Court or High Courts direct the CBI to take up such investigations.

According to section 2, DSPE Act the CBI can suo motu take up investigation of notified offences only in the Union Territories. A CBI investigation within state boundaries must have prior consent. The Centre can authorize the CBI to investigate crimes in a State, but only with the consent of the concerned State Government. The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the State.

However, earlier this year, the Supreme Court on April 28, 2020, clarified that prior consent of the State cannot come in the way or constrict the CBI's jurisdiction to investigate the role of public servants in offences specified under Section 3 of the DSPE Act committed within the Union Territories.

Maharashtra v/s CBI

Fault lines became pronounced when the state government and the CBI got into a turf war in the investigation pertaining to the death of Bollywood actor Sushant Singh Rajput. Even as Mumbai police was probing the alleged suicide, Rajput's father filed an FIR in Patna, following which the Bihar government promptly sought a CBI probe in the matter. Bollywood actor Rhea Chakraborty had appealed against the transfer of the investigation, however, the top court on August 19 directed Mumbai Police to hand over all the material evidence collected so far and assist the central agency in their probe.

Last month in September, in an affidavit filed in the Supreme Court, Maharashtra opposed a plea seeking a CBI probe in the Palghar Lynching case where three Mumbai residents—suspected of being thieves—were lynched by the locals there. The pleas seeking a transfer of the probe to the central agency was an attempt to derive "political capital" the state had said.

Maharashtra joins the other three non-BJP ruled states—Rajasthan, Chhattisgarh and West Bengal—that have withdrawn the general consent allowing CBI to investigate cases within state jurisdiction.

In 2018, the Andhra Pradesh government led by Chandrababu Naidu had withdrawn the general consent accorded to CBI. Naidu, who was the Chief Minister at the time, had accused the Centre of misusing the CBI to target its opponents.

However, the general consent was restored a year later in 2019, when YS Jaganmohan Reddy was voted into power.