The withdrawal of ‘general consent’ by a State to the Central Bureau of Investigation (CBI) to exercise jurisdiction within its territory applies prospectively.
Hence, the notifications issued by the Andhra Pradesh and West Bengal governments, withdrawing consent, would not have a retrospective effect. That is, the States’ withdrawal of consent affects only prospectively.
The Supreme Court clarifies the position of law in Kazi Lhendup Dorji vs Central Bureau of Investigation , a reported decision of 1994. The court reasoned that the State government’s withdrawal should not be allowed to stall a pending case.
“The case should be allowed to reach its logical conclusion… notwithstanding the withdrawal of consent during pendency of investigation.” The Dorji principle was reiterated by the Delhi High Court in 2013.
The Dorji case dealt with a notification issued by the Sikkim government withdrawing consent to the CBI to investigate a corruption case against the then Chief Minister Nar Bahadur Bhandari.
No personal animus
Former Solicitor-General Mohan Parasaran interprets the Dorji decision, saying a consent once given cannot be later withdrawn by the State government. But Mr. Parasaran said the Dorji verdict may not apply in the current factual scenario.
“Mr. Chandrababu Naidu can argue that unlike Mr. Bhandari, whose pending CBI case provided him with a personal motive to withdraw consent, he [Mr. Naidu] does not have any CBI investigation against him. So, there is no personal motive. The factual scenario is entirely different,” Mr. Parasaran said.
Experts point out that if the States have the statutory power to give consent to the CBI under Section 6 of the Delhi Special Police Establishment (DSPE) Act, it is implicit that they can withdraw consent too.
In 1961, the Supreme Court in the Major E.G. Barsay judgment held that Section 6 was incorporated in the DSPE Act “only to maintain the federal structure of the nation”. The subject of “law and order” is the domain of the State government under Schedule 7 of the Constitution.
In Karnataka, the J.H. Patel government had withdrawn the consent on December 15, 1998, and it continued for several years. Also, in late 1970s, the Devaraj Urs government had recalled the general permission for CBI investigations.
However, the act of withdrawal of consent can be judicially reviewed, experts said. Besides, withdrawal of consent is no bar for a constitutional court to use its inherent and extraordinary powers to order a CBI investigation into individual cases for purpose of “delivery of complete justice”. “The withdrawal of general consent means CBI officers lose police powers under the Criminal Procedure Code in the State concerned and for registering a case,” said a CBI official. However, the CBI could continue to register new cases in other States, having links to the one in which the general consent has been rescinded.
