Tamil Nadu withdraws general consent for CBI: What does this mean?

The southern state of Tamil Nadu saw a flurry of activity on Wednesday – first, its Electricity Minister V Senthil Balaji was arrested by officials from the Enforcement Directorate and then Chief Minister MK Stalin withdrew general consent to the Central Bureau of Investigation (CBI) to carry out probe in the state.

“The Tamil Nadu government has today issued orders withdrawing the general consent given to certain types of cases in 1989 and 1992 under the aforesaid rule. Accordingly, the CBI has to henceforth get the Tamil Nadu government’s prior approval for conducting investigation in the state,” said an official release from the state government.

The move comes as the DMK criticised the BJP government at the Centre of “misusing” central agencies to “silence” Opposition leaders.

The Dravida Munnetra Kazagham (DMK)-led government’s move makes Tamil Nadu the third southern state and the tenth overall to withdraw general consent accorded to the central agency. But what does this actually mean? Why does the agency need permission from a state to probe cases?

What is general consent for CBI?

Consent to the CBI is given by states to allow the agency to carry out seamless investigation of cases of corruption against central government employees in their state. This is essentially consent by default, which means CBI may begin investigations taking consent as having been already given.

Consent given to the CBI can come in two forms – either case specific or general. In the first form, the CBI has to apply for consent on a cases-by-case basis and can’t act before the consent is given.

Withdrawal of general consent also means that the CBI will not be able to register any fresh case involving central government officials or private persons in a particular state without prior permission of that state government.

Until 2015, almost all states had given general consent to the CBI. However, that changed when Mizoram in 2015 withdrew general consent to the central agency under the Congress government. It is yet to be restored even though governments have changed in the northeastern state.

Why is consent needed?

Many may wonder that if it is a central agency why it needs the state’s permission. This is because the CBI is governed by the Delhi Special Police Establishment Act (DPSEA). Under this law, the CBI is a special wing of the Delhi Police and hence, its original jurisdiction is restricted to the Capital.

Therefore, the CBI must mandatorily obtain the consent of the state government concerned before beginning to investigate a crime in a state.

In fact, Section 6 of the DSPE Act (“Consent of State Government to exercise of powers and jurisdiction”) reads, “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.”

In this context, the CBI is different from the National Investigation Agency, which has jurisdiction all over the country.

While the CBI can’t function without consent from the state, a recent Calcutta High Court order has granted the agency some leeway. Recently the court in a case of illegal coal mining and cattle smuggling had ruled that the central agency cannot be stopped from investigating a central government employee in another state.

The court observed that corruption cases across the country must be treated equally, and that central government employees could not be exempt from investigation on the grounds that their offices were located in states that had withdrawn general consent. The judgment also said that withdrawal of general consent and its ramifications would be applicable in cases where exclusively state government employees were involved. This order, however, has now been challenged in the Supreme Court; the matter is pending as of now.

Which states have withdrawn general consent?

Tamil Nadu, under MK Stalin, is the latest state to withdraw general consent to the CBI. However, the first to do so was Mizoram in 2015. Interestingly, even though the state is presently run by the Mizo National Front (MNF) headed by Zoramthanga, and is essentially an ally of the BJP, it hasn’t restored general consent for the CBI.

Three years later, in 2018, the Mamata Banerjee-led Trinamool Congress also withdrew general consent to the CBI just hours after N Chandrababu Naidu’s Telugu Desam Party in Andhra Pradesh at the time, announced 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 had said at the time.

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

Chattisgarh’s Bhupesh Baghel withdrew consent to the CBI in 2019 and that was followed by Punjab, Maharashtra – under Uddhav Thackeray, Rajasthan, Kerala and Jharkhand in 2020. Maharashtra has now restored general consent to the CBI.

In 2022, the Telangana government too withdrew general consent given to the CBI. The northeastern state of Meghalaya also did the same with Chief Minister Conrad Sangma saying that “it’s a normal thing where the state’s aspect is there”. “Anyone who has to come in here, has to take consent from the state,” he had then said.

According to a report published by The Outlook, Union minister of state for personnel minister Jitendra Singh said in Rajya Sabha this March that nine states had withdrawn general consent to the CBI. The states were – Chhattisgarh, Jharkhand, Kerala, Meghalaya, Mizoram, Punjab, Rajasthan, Telangana and West Bengal.

Does withdrawal of general consent stop all probes?

NO. While removing general consent makes investigations difficult, the CBI can continue to probe old cases. Moreover, the central agency can continue to investigate cases that were given to it by a court order.

And when general consent is withdrawn, the CBI can challenge the decision in a court. It can also approach a local court for a search warrant and conduct investigation. There is a provision in the CrPC that allows search and investigation in a state by outside agency but it has to happen through a local court.

With inputs from agencies

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