UNDERSTANDING CAGE PARROT- THE CBI

INTRODUCTION

We have a home guard to protect our home, shield our home, and keep up internal
security. Likewise, we have got Police to shield our State and its folks. Police work
under the state government. In addition to the state Police, we have CBI investigate
high-profile cases that shocked the nation's conscience.

The Supreme Court on eighth Nov 2021 ascertained that it was "not a desirable
position" that enormous CBI cases have hit a roadblock due to the pendency of
requests for specific sanctions before the concerned state governments that have
withdrawn their general consent for the investigation by the CBI.

A bench comprising Justice Sanjay Kishan Kaul and MM Sundresh of the supreme
court in the case of ' Central Bureau Of Investigation & Anr. Versus Mohammad
Altaf Mohand & Anr. Expressed its concern over the fact that eight states, mostly
opposition ruled State withdrawn its general consent earlier granted to DSPE(CBI)
under section 6 of the Delhi Special Police Establishment(DSPE) Act 1946. CBI, in
an affidavit, stated that it sent over hundred and fifty requests to Governments of
Maharashtra, Punjab, Chhattisgarh, Rajasthan, Jharkhand, West Bengal, Kerala, and
Mizoram from June 2018 to June 2021 for grant of specific consent for investigation
of cases within the territory of those states. The requests are stated to have been
granted in less than 18% of cases.

ABOUT CBI

The Central Bureau Of Investigation (CBI) is one of India's premier investigating

agency. CBI operates under the Ministry Of Personnel, Public Grievances and
Pensions, Government of India. Initially, CBI was set up to investigate bribery and
governmental corruption cases. Later in 1965, the jurisdiction of CBI was distended to
investigate branches of central laws enforceable by the government of India,multi-
state organized crime, multi-agency or international cases, and crimes relating to
national security.[1] It investigates several high-profile cases around the country. The
agency has been known to investigate several economic crimes, cases of corruption,
and other cases. It drives power to investigate from the Delhi Special Police
Establishment Act,1946.

HISTORY OF CBI

During the wake of the second world war, it was realized by the then government of
India that bribery and corruption cases had increased. The police and enforcement
agencies were not in a position to tackle the cases. Consequently, by executive order
in 1941, the Government of India set up Special Police Enforcement (SPE) to
investigate the corruption and bribery in transactions with which the war and supply
department of the government of India was concerned. The Second World War was
over. However, a requirement for a central agency to investigate bribery and
corruption was felt even more after the end of the world war. Consequently, Delhi
Special Police Establishment Act,1946 came into existence.[2] Once promulgation of
the Act, the superintendence of Special Police Enforcement was transferred to the
Ministry of Home department.
As the government felt the growing need for a central police agency at the disposal
of the Central government, which could investigate not solely cases of bribery and
corruption but additionally a violation of specific fiscal laws, major frauds relating to
the government of India departments, crimes on high seas, etc. Therefore the
government of India set up the Central Bureau Of Investigation by a resolution dated
1st April 1963 with the following divisions:
 Investigation & Anti-Corruption Division (Delhi Special Police Establishment)
 Technical Division
 Crime Records and Statistics Division
 Research Division
 Legal and General Division
 Administration Division.

Later, according to the direction of the Supreme Court in Vineet Narayan and others
vs. Union of India, the existing legal division was reconstituted as the directorate of
prosecution in July 2001. As of date, CBI has the following divisions, namely:
 Anti Corruption Division
 Economic Offences Division
 Special Crimes Division
 Directorate of Prosecution
 Administration Division
 Policy and Coordination Division
 Central Forensic Science Laboratory.

CONSTITUTIONALITY OF CBI

One of the essential power of government is to make laws. The seventh schedule
of the Constitution provides three (3) lists, i.e., Union list, State list, and concurrent
list dividing power to make laws on different subjects. Police come under second lists,
i.e., State list. The essential function of the Police is investigating. In addition to
Police, there are other agencies also; at the center, we have CBI, the National
Investigative Agency (NIA), the Narcotic Control Bureau (NCB), etc. exercise the
power of investigation. As the CBI exercises investigative power, a crucial question
arises with federalism implication because 'police' is state subject under the seventh
schedule of the Constitution, and legislation on the subject of Police is the exclusive
jurisdiction of State. The main power of the Police is 'investigative power.' If the
center exercises such power by the central legislative or executive in CBI, NCB, or
NIA, it would be beyond its legislative competence[3]. The Guwahati High Court in
Narendra Kumar [Link] of India set aside and quashed the impugned Resolution
dated 01-04-1963, whereby CBI has been constituted, and it further held that Central
Bureau Of Investigation (CBI) is neither an organ nor a part of the DSPE, and
therefore the CBI can not be treated as ‘police force’ constituted under the DSPE
Act,1946.[4] However, the Supreme Court has stayed the operation of the judgment.

The question of legislative competency of the union to enact a law to establish a

police force with the power of investigation arise fundamentally. In this regard,
Narendra Kumar v. union of India, the Guwahati High court held that the Central
Bureau Of Investigation could not be traced to entry 8 of Union List of the Seventh
Schedule, which reads as " Central Bureau Of Intelligence and Investigation" of the
Constitution because here the word 'investigation' appearing in the entry "Central
Bureau Of Intelligence and investigation" has a narrow remit. And it is limited to
finding out what's happening in different states, not in the sense of investigation that
is mentioned in Section 2(h) of the code of criminal procedure 1973. The
interpretation of the word investigation will be better understood with the help of
Constitution Assembly Debates, Vol.9, 29th August 1949:

9.126.102

B.R. Ambedkar

: The point of the matter is, the word "investigation" here does not permit and will
not permit the making of an investigation into a crime because that' matter under the
Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a
State subject; it has no place in the Union List. The word "investigation," therefore, is
intended to cover general inquiry for the purpose of finding out what is going on. This
investigation is not an investigation preparatory to filing a charge against an
offender, which only a police officer under the Criminal Procedure Code can do.[5]

STRUCTURE OF C.B.I.

The Central Bureau Of Investigation is headed by a director, an IPS officer with a

rank of DGP. The term of a director is of two years. But recently, the union
government moved an ordinance that allowed the tenure of the CBI director to be
extended by up to five years.

WHO APPOINTS THE DIRECTOR OF CBI?

The director is appointed by a committee consisting of :

(1) Prime Minister as Chairperson

(2) Leader of Opposition

(3) Chief Justice of India or a Supreme Court Judge suggested by the Chief Justice.

STATE POLICE VERSUS CBI

State police and Central Bureau Of Investigation are fundamentally different from
each other, while state Police are regulated by the Police act 1861 and the Delhi
Special Police Enforcement (DSPE), respectively. The Police, which is coming under
entry 2 of the state list of Seventh Schedule, so is particularly inclined toward coping
with matters like maintenance of law and order, investigation of crimes, etc. In that
particular state jurisdiction.
Whereas the Central Bureau Of Investigation( CBI) has been established to
investigate bribery and corruption cases. The CBI generally investigates cases of
national importance. As the Police come under the state government, sometimes
matters handover to CBI to reduce the influence of the executive in that particular
case.

CBI AND CONSENT OF STATES

As of now, we have seen eight states have withdrawn their general consent for the
investigation by the CBI. What is the meaning of withdrawal of general consent? To
answer this question, there are two types of consent for a probe by the CBI. The
primary one is General Consent, and the other one is Specific consent.

WHAT IS GENERAL CONSENT?

Agencies like NIA are ruled by NIA Act 2008 and have jurisdiction all over the
country. However, the Central Bureau Of Investigation (CBI), which is ruled by the
Delhi Special Police Enforcement Act, 1946, do not have jurisdiction of investigation
all over the country, and if any state withdraws its general consent, which is
traditionally given must mandatorily obtain the consent of the state government
concerned before the beginning of the investigation of a crime in a particular state.
The states often give a general consent to assist the CBI in investigating corruption
cases against Central Government employees in their states.
Here section 5 and 6 of the DSPE is significant. Section 5 talks regarding
‘Extension of powers and jurisdiction of special Police establishment to other areas
and section 6 reads as ' Consent of State Government to exercise of powers and
jurisdiction" says " Nothing contained in section 5 shall be deemed to enable any
member of 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."

WHAT IS THE MEANING OF THE WITHDRAWAL OF

GENERAL CONSENT?
The withdrawal of the general consent implies that the CBI will not be able to register
any fresh case involving central government officials or private individuals in the
State without the consent of the state government[6]. It suggests CBI officials will
lose all powers of a police officer as soon as they enter the jurisdiction of the State,
which has withdrawn its general consent unless the state government has allowed
them.
However, in Vinay Mishra vs. The CBI, The Calcutta High Court ruled in July this
year that.
 "that every government employee against whom there is a reasonable suspicion of
commission of a crime exist, or there are allegations of an offense under the PC
(Prevent of Corruption ) Act has to be treated equally and similarly under Law."

It further held that.

“ that the CBI's power to investigate and prosecute its own officials cannot be in any
way interfered by the State even if the offenses were committed within the territory of
the State.[7]
The Court also held that withdrawal of general consent would apply in cases where
state government employees were solely involved.
Significantly, the CBI could use the Calcutta High Court order to register a fresh
case in any state.

CBI - A CAGE PARROT

In May 2013, a bench of the Supreme Court, while hearing a coal scam case, said that
the probe agency had become a "CAGE PARROT" speaking in the voice of its
political masters.
Again Madras High Court, on August 2021, called CBI a "Cage Parrot" and asked
the center to consider enacting a law giving statutory status to the Central Bureau Of
Investigation (CBI) to ensure its autonomy without government administrative
control.

SUGGESTIVE REFORMS IN CBI

 Ensure that a separate law has been passed, and the primary purpose of this law
would be to resolve concerns regarding the CBI’s legal status.
 The law should specify the CBI's organizational structure, its functions, the type
of offenses it can investigate, the nature of its superintendence and oversight.
 There must be harmonized relationship between CBI and state police.
 CBI reform must also deal with the problems surrounding state consent. Through
a constitutional amendment, federal offenses should be included in the union list
of the Seventh Schedule of the Constitution.

CONCLUSION

There is no doubt that India's premier anti-corruption investigative agency faces a

severe crisis. Structural reform is the need of the hour. Back in 1978, the LP Singh
committee recommended the enactment of 'comprehensive central legislation to
remove the deficiency of not having a central investigative agency with the self-
sufficient statutory charter of duties and functions. The Second Administrative
Reforms Commission (2007) also proposes that “ a new law should be enacted to
govern the working of the CBI.
 Central Bureau Of Investigation is one the most controversial investigative agency
of the country, established to investigate corruption in the public sector. Many people,
including opposition politicians, accuse CBI of biases. As a premier investigative
agency, CBI must work to restore its faith in the country's people and work
impartially without fear or favor. The Supreme Court has been trying over the years to
insulate the CBI from political pressure; the judicial intervention would hopefully set
the CBI house in order.

REFERENCES
1. [Link]
2. 2.[Link]
3. 3. [Link]
4. 4. [Link]
5. 5.[Link]
6. 6. [Link]
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7. 7. [Link]