The story so far: The Supreme Court on July 10 upheld the maintainability of the West Bengal government’s suit accusing the Union government of “constitutional overreach” by employing the Central Bureau of Investigation (CBI) to register and investigate cases in the State despite its withdrawal of general consent on November 16, 2018.
A Bench comprising Justices B.R. Gavai and Sandeep Mehta rejected the Centre’s preliminary objections that it was wrongly made a defendant in the suit as it did not control the CBI, which was an “independent agency.” Perusing various provisions of the Delhi Special Police Establishment (DSPE) Act, 1946, under which the CBI functions, the Bench concluded “the very establishment, exercise of powers, extension of jurisdiction, the superintendence of the DSPE [Act], all vest with the Government of India.”
Accordingly, the Court ruled that the suit discloses a valid cause of action and must be heard on merits. It posted the matter for hearing next on August 13, for the framing of issues.
Revocation of general consent
Under Section 6 of the DSPE Act, the CBI is required to obtain consent from the concerned State government before initiating an investigation within its jurisdiction. This permission is crucial since “police” and “public order” are subjects that fall within the State List under the Seventh Schedule of the Constitution. However, no such prior consent is necessary in Union territories or railway areas.
General consent is typically given by States to facilitate the agency’s seamless investigation into corruption charges against Central government employees in their territories. However, since 2015, several States such as Chhattisgarh, Jharkhand, Kerala, Mizoram, Punjab, Rajasthan, Telangana, Meghalaya and West Bengal have revoked their general consent alleging that the Union government is misusing the federal agency to unfairly target the Opposition.
“In the absence of such an omnibus consent, the CBI will be unable to register any fresh cases in these States without the explicit permission of the respective State governments,” P.D.T. Achary, former Secretary General, Lok Sabha told The Hindu.
Original suit
In August 2021, the West Bengal government filed an original suit under Article 131 of the Constitution arguing that the actions of the Union government and the involvement of the CBI in the State infringed upon its sovereignty. The suit highlighted that despite the withdrawal of general consent for CBI investigations by the Trinamool Congress government on November 16, 2018, the agency proceeded to register 12 new cases. Deeming this to be a “constitutional overreach,” the State sought the annulment of these 12 cases and a restraint on the agency from lodging any further cases.
The framers of the Constitution envisioned such conflicts between the Centre and the States owing to the existing quasi-federal structure and dual polity. As a result, they conferred original and exclusive jurisdiction upon the Supreme Court to address such disputes, under Article 131. For a suit to be maintainable under this provision, two conditions have to be satisfied — it should relate to a dispute between the Government of India and one or more State Governments (or) between one or more State Governments, and it must involve a question of law or fact crucial to the determination of legal rights.
In State Of Karnataka v. Union Of India (1977), the Supreme Court observed that Article 131 is a feature of federalism and should be “widely and generously interpreted” to advance the intended remedy. Similarly, in State Of Rajasthan & Ors. v. Union Of India (1977), the top Court cautioned against taking a very “restrictive or a hyper-technical view of the State’s rights.”
Explained | State powers to challenge central laws
Arguments
Solicitor-General Tushar Mehta, appearing for the Union government, pressed the Court to dismiss West Bengal’s suit by raising preliminary objections to its maintainability. He pointed out that original suits under Article 131 of the Constitution exclusively involve the Union and States as parties. “It is the CBI which has registered the cases in question. But the CBI is not a defendant in this suit, and it cannot be made one, as the CBI is not a ‘State’ under Article 131,” Mr. Mehta contended.
He further argued that the CBI was an “independent agency” since it did not function under the direct control of the Union government. “The Union does not supervise the registration of offences or investigation or closure or filing of chargesheet or conviction or acquittal of cases by the CBI,” he reasoned. However, later in the proceedings, Mr. Mehta finally conceded that the central agency cannot initiate any investigation without the express authorisation of the Union government under Section 5 of the DSPE Act.
On the contrary, senior advocate Kapil Sibal highlighted that the case extended beyond the Centre’s control over the CBI to the fundamental question of whether the agency could disregard a specific notification issued by the West Bengal government in 2018, withdrawing its consent. Mr. Sibal asserted that once a State grants and then withdraws its consent, the CBI lacks jurisdiction to exercise its powers within that State.
The verdict
The Court observed that a bare perusal of the provisions of the DSPE Act reveals that right from the constitution of the CBI, the classes of offences which are to be investigated by it, to its administration and powers, it is the “Central government that it is vitally concerned with.”
“Under Section 4 of the DSPE Act, except the offences under the Prevention of Corruption Act, in which the superintendence will be with the Central Vigilance Commission, the superintendence of the DSPE in all other matters would vest with the Central government,” Justice Gavai, who authored the verdict, noted. The judge also reminded the Centre that Section 6 of the DSPE Act mandates the prior consent of the State government to a CBI probe within its jurisdiction.
While the Court recognised that the CBI would always be entitled to investigate offences independently, it underscored that this autonomy “would not water down” its administrative control and superintendence that vests with the Centre. It thus proceeded to conclude that the Solicitor General’s argument that the CBI is an “independent agency” holds no water.
The verdict, however, clarified that these observations were only made to meet the preliminary objections raised by the Union government and would not have any bearing on the merits of the suit.
Implications
According to Mr. Achary, if the CBI is permitted to initiate investigations in States that have revoked their general consent, it would be an affront to federalism. “This could strain Centre-State relations, particularly since the police is a State subject under the Constitution. Allowing the CBI to register cases would effectively confer upon it the same powers as the State police forces,” he adds.
While the Supreme Court has so far only addressed the preliminary objections to the maintainability of West Bengal’s suit, the constitutional expert pointed out that the final ruling on its merits will have a significant bearing on other similar pending cases.
Another Bench of the top Court is tackling a similar question of law related to the State of Tamil Nadu in the case of Ankit Tiwari, an Enforcement Directorate (ED) officer against whom the Tamil Nadu Directorate of Vigilance and Anti-Corruption had launched a criminal prosecution for bribery. A Bench of Justices Surya Kant and K.V. Viswanathan had recommended judicial oversight over the cross-fire of criminal cases filed between Central agencies like the ED and the police in Opposition-ruled States to protect innocents from vexatious prosecution.
