Rajasthan Revokes Consent for CBI to Operate: What Does This Mean?

Why does the CBI need consent of the state govt to operate? And how will this decision affect their investigations?

Rajasthan CM Ashok Gehlot has withdrawn the general consent provided to the CBI to operate in the state.

(Photo: Erum Gour/The Quint)

On Monday, 21 July, the Rajasthan Governor passed a notification revoking any ‘general consent’ provided by the Government of Rajasthan to the Central Bureau of Investigation to operate in the state.

The notification from the Rajasthan Home Department claimed that the Government of Rajasthan had actually refused to grant ‘general consent’ to the CBI to operate in the state in a letter dated 26 June 1990.

In any event, from the date of the new notification onwards, if the CBI wants to investigate any case arising out of Rajasthan, they will have to take prior consent of the Rajasthan Government on a case-to-case basis. The notification also clarifies that it does not affect any cases where the Government of Rajasthan had previously provided specific consent to investigate a particular case.

But why is the consent of a state government needed for the CBI to operate there? Can they really deny the CBI the right to investigate a case? And will this new notification really prevent the CBI from investigating cases connected with Rajasthan – including the allegations that the phones of Sachin Pilot camp MLAs have been tapped?

WHY DOES THE CBI NEED CONSENT OF A STATE GOVERNMENT TO OPERATE?

The key thing to remember when it comes to this is that police and public order are issues that fall within the purview of state governments, not the Centre, according to the Constitution. The Centre only controls the police in Union territories (and Delhi) and in connection with the Railways – otherwise investigation of cases is generally supposed to rest with state governments.

The obvious exceptions to this are central investigative agencies like the National Investigation Agency (NIA), and, you might think, the CBI.

However, while the CBI is considered a central investigative agency, it was not constituted by an Act of Parliament like the NIA. Instead, the CBI was founded under a Delhi government law called the Delhi Special Police Establishment Act 1946 (DSPE Act).

This means, unlike the NIA, which can take up a case dealing with its scheduled offences (basically terror cases) anywhere in the country without the consent of the state government in question, the CBI can’t just operate wherever it wants, even in cases dealing with its core competencies, like anti-corruption, or foreign exchange violations.

Section 6 of the DSPE Act says that the CBI cannot

“exercise powers and jurisdiction in any area in a State, not being a Union Territory or railway area, without consent of the Government of that State.”

To prevent this from becoming a logistical nightmare, most states issue a ‘general consent’ to the CBI to investigate cases assigned to them – Rajasthan had done so as far back as 1956.

Even before Rajasthan changed its mind, however, some states had begun to withdraw their general consent, including Andhra Pradesh, West Bengal and Chhattisgarh (though AP later granted it again).

IF RAJASTHAN REVOKED GENERAL CONSENT IN 1990, WHY DID IT DO THIS AGAIN NOW?

Rajasthan initially gave general consent in 1956, and then extended it in 1989. However, soon after this, the Rajasthan government at the time decided it did not want there to be blanket consent for the CBI to investigate all possible offences (particularly corruption cases).

This led to its letter dated 26 June 1990, allegedly revoking general consent. In 2006, however, the Supreme Court of India held that this revocation had not been done in the proper manner. According to the apex court, for such a revocation to count as an official action, it needs to comply with the requirements of Article 166 of the Constitution – that is, it has to executed in the name of the governor of the state.

However, the letter revoking general consent (the court dates it at 26 June 1999, not 1990, though this may be a typographical error), did not fulfil this requirement. As a result, the Supreme Court held that the Rajasthan government had not revoked its general consent for the CBI to investigate cases and operate in Rajasthan.

The new notification appears to be an attempt to rectify the old error, and remove all possible confusion, thereby providing the Rajasthan government with grounds to deny the CBI the ability to investigate cases within its jurisdiction unless the government agrees.

In particular, it is speculated that they are trying to stop the CBI from getting involved in the ongoing political crisis in the state, preventing an investigation into alleged illegal phone-tapping by the Rajasthan Police. The Ashok Gehlot government claims to have obtained audio tapes that show the BJP is trying to bribe their MLAs to bring down the Congress government, but the BJP now wants a CBI probe into the claims of phone-tapping.

SO DOES THIS MEAN THE CBI CAN’T OPERATE IN RAJASTHAN ANYMORE?

Even if the notification by the Gehlot government is construed as they want it, this doesn’t mean the CBI is barred from operating in Rajasthan. It is just that if it wants to investigate a case arising out of Rajasthan, it will need to obtain the consent of the Rajasthan government before doing so.

The notification should not technically affect any of the cases it has already been investigating in the state, such as the Vishnudutt Vishnoi suicide case. While the notification only says those cases where specific individual consent was granted are still valid, following the Supreme Court’s 2006 judgment, any cases being investigated on the basis of the old ‘general consent’ till 21 July will also be unaffected.

There is also a workaround for the CBI to investigate cases where the Rajasthan government does not provide consent. In 2018, the Delhi High Court passed an important judgment in which it said that:

• If the CBI was investigating an offence which arose outside a state which had not granted consent to the CBI to operate;
• It could conduct its investigation on issues arising further to that offence, without taking the other state government’s permission.

So if the CBI were to claim that the offence they were investigating originated outside Rajasthan, then any follow-up aspects of the investigation could be conducted in Rajasthan even if the Ashok Gehlot government says no. In the phone-tapping case, since it involves a Union minister, for instance, they could try to register the case in Delhi, and then say they need to investigate further in Rajasthan.

Whether this would succeed is a different matter, as the Rajasthan government could try to argue that the alleged offence still arose in Rajasthan, which would mean the courts would likely be pulled into any such attempt to use this workaround.

Finally, the CBI can, of course, investigate – without any dispute whatsoever – any case it has been assigned by a high court or the Supreme Court of India. If these superior courts order the CBI to investigate a case in Rajasthan, the Rajasthan government will have no scope to stop them from doing so.