Time to repeal it altogether

The government of Andhra Pradesh recently withdrew the general consent under Section 6 of the Delhi Special Police Establishment Act, a consent which facilitated investigation by CBI of Government of India offices and officers located within the territorial limits of Andhra Pradesh state. By a well - orchestrated media blitzkrieg coinciding with the withdrawal order they were able to get a lot of public attention to the action of the government which otherwise would have gone unnoticed.

The general permission order that was given by the state government of Andhra Pradesh in August to the CBI to exercise the powers and jurisdiction under the Delhi Special Police Establishment Act in the state of Andhra Pradesh against officials of Central Government, Central Government Undertakings and other persons acting in conjunction with them stands withdrawn by the present order of the government issued on 8 November.

The August 2018 is preceded by similar orders from 1994 wherein the state government is extending this general permission to CBI to investigate the Government of India offices and undertakings in a routine manner.
In Telangana also, this general permission which continued from 1994 in the erstwhile united state was further continued through government order in 2016. The situation may not be different in other states since what is being given as a permission is not for investigation against the state government or state government offices but to facilitate the CBI to enquire into wrongdoings in the central government offices and the central government undertakings.

When the investigating agency is a central government agency and the departments that are going to be probed also belong to the central government then why did the law makers think it necessary that consent of the state government is required to go ahead with the investigation looks a little puzzling. But since Section 6 of the Act specifically mandates permission from the state governments even to investigate the central government offices or the central government undertakings the state government of Andhra Pradesh was well within its right technically in withdrawing the general permission order .

Maybe the answer could be found the manner in which the CBI came into existence. It was set up as a special police establishment to investigate cases of bribery and corruption at the time of the Second World War and after the World war, the agency is continuing under the Delhi Special Police Establishment Act. It derives its power to investigate in areas other than union territory through an extension of its powers and jurisdiction by the central government. As could be seen even its jurisdiction over the states is not specifically provided for in the Act but is derived under Section 5 through which the central government can extend its jurisdictions to the states. Under Section 6, the consent of the state government is also made essential for any such investigation.

This brings us to the question as to what are the implications of the withdrawal of the general permission order. Now CBI will have to approach state government for permission to investigate each individual case and the state government will have the option of examining each one on its merit and then take a call to give the necessary permission or not. If the investigating agency can establish criminal conspiracy beyond one state border involving more than one state where the series of incidents occurred it would be sufficient if they take the permission from one state only. This legal position was clarified in a recent judgement of the High Court of Delhi in WP 791/2018.

A ridiculous argument was put forward as part of this withdrawal of permission which got wide publicity stating that now the ACB of the state government will have powers to investigate central government offices. Even to investigate state government or the government officers CBI needs state government permission and unless a case is handed over to them specifically by the state government or by a court of law they will not have any jurisdiction to investigate issues concerning state government. When such is the established principle of investigation it is beyond once comprehension how this idea was floated that a state government agency will have jurisdiction over the central government. Neither the officers nor the activities of Central government come under the jurisdiction of state government.

Section 6 in the Delhi Special Police Establishment Act looks to be an anomaly which none till now has bothered to correct since no state made an issue of it. CBI has become the one and only premier investigating agency of the central government with reference to Central government offices and undertakings and it may be inconvenient for them to approach the state government for permission every time to investigate cases over Central Government employees and institutions over whom state has no jurisdiction but derives its power because of the existence of this Section 6. Now that some states are making an issue of it maybe it's time for the central government to come up with necessary amendment deleting this section all together.