What is ‘general consent’ for CBI, restored by Eknath Shinde’s Maharashtra government?

Why is the consent of states needed?

CBI is governed by The Delhi Special Police Establishment (DSPE) Act, 1946, and it must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.

Section 6 of The DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) says: “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.”

The CBI’s position is in this respect different from that of the National Investigation Agency (NIA), which is governed by The NIA Act, 2008, and has jurisdiction all over the country.

What is the general consent for CBI?

The consent of the state government to CBI can be either case-specific or “general”.

General consent is normally given by states to help the CBI in the seamless investigation of cases of corruption against central government employees in their states. This is essentially consent by default, which means CBI may begin investigations taking consent as having been already given.

In the absence of general consent, CBI would have to apply to the state government for its consent in every individual case, and before taking even small actions.

Withdrawal of consent

Traditionally, almost all states have given CBI general consent. However, since 2015, several states have begun to act differently.

On March 4 this year, Meghalaya became the ninth state to have withdrawn consent to the CBI — after Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chhattisgarh, Kerala, and Mizoram. Out of these states, Maharashtra has now reversed its decision and restored general consent.

All these states except Mizoram and Meghalaya are ruled by the anti-BJP opposition. Maharashtra has restored consent after the BJP returned to power in the state in alliance with the Shinde faction of the Shiv Sena.

How the states acted

The first state to withdraw consent was Mizoram in 2015. The state was ruled by the Congress at the time, and Lal Thanhawla was Chief Minister. In 2018, the Mizo National Front (MNF) under Zoramthanga came to power; however, even though the MNF is an NDA ally, consent to the CBI was not restored.

In November 2018, the West Bengal government led by Mamata Banerjee withdrew the general consent that had been accorded to the CBI by the previous Left Front government back in 1989. West Bengal announced its decision within hours of Andhra Pradesh, then ruled by N Chandrababu Naidu’s TDP, taking a similar decision.

“What Chandrababu Naidu has done is absolutely right. The BJP is using the CBI and other agencies to pursue its own political interests and vendetta,” Banerjee said.

After Naidu’s government was replaced by that of Y S Jagan Mohan Reddy in 2019, Andhra Pradesh restored consent.

The Congress government of Chief Minister Bhupesh Baghel in Chhattisgarh withdrew consent in January 2019. Punjab, Maharashtra (under Chief Minister Thackeray), Rajasthan, Kerala, and Jharkhand followed in 2020.

At the time of withdrawing consent, all states alleged that the central government was using the CBI to unfairly target the opposition.