Chandrababu Naidu bans CBI from entering Andhra Pradesh: State consent for agency probe remains tricky subject
Chandrababu Naidu's move, while not unprecedented, comes at a time when the CBI is wound up in litigations of its own, with its credibility on the line.
Andhra Pradesh chief minister N Chandrababu Naidu has decided to withdraw 'General Consent' to the Central Bureau of Investigation (CBI) to enter the state. Naidu's move, while not unprecedented, comes at a time when the central investigating agency is wound up in litigations of its own, with its credibility on the line. The agency's number one and number two officials, who were embroiled in a bitter feud and are currently being probed for corruption.
The timing of Andhra government's order is such that it might instantly tie up to the Opposition's claim that CBI is a 'caged parrot' being used to settle scores with former allies and opposition leaders. And Naidu's decision, although unclear, seems to be a byproduct of this anxiety around the CBI's inner feud.
West Bengal chief minister Mamata Banerjee, backed Naidu on this move, which further cemented the link between the so called loss in CBI's credibility and the non-BJP state governments' anxiety around the agency's intentions in probing state administration and senior functionaries.
However, a less visible aspect of this is another litigation, which seeks to decide the consent aspect of the Act that establishes CBI and details out its power and jurisdiction.
Is state's consent necessary for CBI probe?
The answer is, yes.
Law and order being a state subject, CBI does not have the power to investigate a case within the jurisdiction of a state government. However, as per the Delhi Special Police Establishment (DSPE) Act, the CBI may probe a case registered under a state's jurisdiction with the prior consent of the respective state government. Such consent can be given by a state government either generally for a category of cases or specially in a particular offence. But so far, most states have granted 'General Consent' to the CBI to investigate suo moto corruption offences against central government servants within their respective state areas. Some states even let the CBI probe any and all cases under the Prevention of Corruption Act, 1988.
Former Himachal Pradesh chief minister Virbhadra Singh is tied up in a legal battle with the CBI on this very aspect. The Himachal Pradesh High Court had granted Singh interim protection from arrest, interrogation or filing a charges by CBI on account that the disproportionate asset case against him was under state jurisdiction, hence the central agency could not have proceeded without his nod. "CBI or the central government cannot arrogate to itself the power that whatever happens in a state, it will investigate. That will destroy the federal structure of government," Singh's lawyers had argued. The CBI, however, has challenged this argument saying the order was seriously hampering its investigation.
Can the state withdraw its consent?
According to the law laid down by three judges of the Supreme Court in Kazi Lhendup Dorji versus CBI (1994) (Supp ) SCC 116), general consent issued by a state under Section 6 of the Delhi Special Police Establishment Act, 1946 can be withdrawn, with prospective effect.
A Sikkim High Court order further seals the fate of the matter by ruling that even the Parliament cannot unilaterally extend CBI's jurisdiction, without the concerned state's jurisdiction.
"Under the legislative scheme, Parliament has no competence to extend power and jurisdiction of DSPE to any other state without consent of the concerned state.”, the high court said.
CBI says its seeking legal opinion: Does it have a legal remedy available?
The Supreme Court's ruling in the Kazi Lhendup Dorji versus CBI (1994) case means that any offences that are already being investigated by the CBI under Andhra Pradesh's general consent operational till today will continue to be within CBI's powers, lawyer Malvika Prasad explains.
Although there are no hard and fast regulations supporting this, but a state government's move to withdraw consent in order to block an ongoing CBI investigation is generally frowned upon in the law. Since the exact scope of Naidu's order, whether or not it extends to any ongoing investigation remains unclear, it is not prudent to speculate whether or not the central agency can actually move court against the Andhra Pradesh government's order.
Moreover, another factor relevant in analysing whether the state of Andhra Pradesh's revocation of consent is valid in law is the designation of the official being investigated, Prasad further adds. The nature of consent depending on the designation of the official is an open question of law currently being heard by the Supreme Court in CBI versus Virbhadra Singh case.
More to Naidu's order than CBI vs CBI feud
The law, open to Supreme Court interpretation, as of now says that the CBI can probe employees of the central government of the level of joint secretary and above. It may also probe such officers as are appointed by the Centre in corporations established by or under any central Act, government companies, societies and local authorities owned or controlled by that government.
Now, by withdrawing his consent, Naidu essentially ruled out any fresh future investigations against its officials, ministers, and bureaucrats of the state. This brings to mind the political ramifications of Telegu Desam Party's fall out with the NDA. Ironically, the timing of the move also coincides with political realignment of the TDP, which has of late amplified its attempts to join the anti-BJP front. Until only few months back, TDP was in bed with the BJP. Now as TDP moves closer to the 'united' Opposition front, it may as well want to strip BJP of the chance to hit back at it using old secrets of the good old days.
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