25 November, 2020

Yes, They Can

States have the right to refuse entry to the CBI

Photograph by Jitender Gupta
Yes, They Can

Maharashtra government’s decision to withdraw “general consent” to a CBI investigation on October 21, with the state’s home minister accusing the central agency of being politicised, was not the first such instance. Karnataka CMs Devraj Urs and J.H. Patel had withdrawn consent in 1978 and 1998, respectively. The largest number of such withdrawals of consent has been under the NDA since 2014: Andhra Pradesh and West Bengal in 2018, Chhattisgarh in 2019 and Rajasthan in 2020. Now Kerala is also considering it. Is this legal? Yes.

First, some history. The philoso­phy of the Indian Police was radically altered by the 1860 Police Commission after the 1857 uprising, leading to the 1861 Indian Police Act. It abolished the hated military police in some states and introduced a civil police system, legally supervised by civil magistrates. Police administration was, however, under the State Inspector General. District jurisdiction was the basis on which police powers were conferred. The commission did not want any central investigative police department. Recommendation No. 8 was to absorb William Sleeman’s centralised “Thughee” and “Dacoitee” department, the only central police at that time, into the state police. The commission did not want even separate “detective departments”.

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The 1902-03 Police Commission made some changes due to an alarming rise in crime. It introduced a Criminal Investigation Department (CID) at the state level to aid the police with scientific methods like fingerprint analysis. At the central level, an Imperial CID (ICID) was formed to “collect, collate and distribute” criminal intelligence. This included a Central Finger Print Bureau. The commission did not envisage any direct role to the ICID in investigation. It was only a clearing house of information and assistance manned by officers deputed from the states.

The independence movement and political assassinations like that of Viceroy Lord Mayo in 1872 by a Wahabi prisoner in the Andamans made the British consider establishing a political intelligence wing embedded in the ICID. In 1887, Viceroy Dufferin obtained secret approval of Secretary of State Viscount Cross to start an intelligence wing at the central level, later known as the Central CID. It started functioning in 1904 under Harold A. Stuart, ICS, and eventually became the Intelligence Bureau (IB).

The ­CBI can ­regain its ­reputation if it ­eschews ­theatrics like ‘made-for-TV’ ­arrests of former senior ministers.

The legal backing was provided through the Government of India Act, 1919, placing “police including railway police” with the states in Part II (provincial subjects). The mention of “central police ­organisation” vide 31 of the Central list referred to the central armed police “Cachar Levy” (Assam Rifles), raised in 1835. It was not for any criminal investigation. The same arrangement was followed in Seventh Schedule (List II, Provincial) of the Government of India Act, 1935, wherein public order and police, including village and railway police, were placed with the states under a “federation”. The same Seventh Schedule was copied in our Constitution too.

However, corruption in the War Supply Department necessitated an ordinance of September 11, 1943, to set up a Special Police Establishment (SPE) at the Centre. In 1946, the SPE Act was passed, extending its jurisdiction to all central government organs, public sector and centrally administered territories. T.G. Sanjeevi, then IM director, held additional charge of SPE from April 1947. In 1963, it was renamed as the Central Bureau of Investigation. No separate legislation was passed. Section 6 of the SPE Act mentions that a state’s consent has to be obtained before any investigation there.

The CBI’s credibility was affected due to its partisan use during the Emergency. Later there were complaints regarding the selection of its leadership, needing Supreme Court intervention. Its track record, like in the Dabholkar murder case, has been uninspiring. Severe court strictures like calling it “caged parrot” also eroded public confidence. The worst moment was the war between its top officers and the midnight coup on October 24, 2018, to unseat a director.

The agency can regain its reputation and respect in the eyes of the states if it stops using theatrics like the “made-for-television” arrest of a former senior minister on August 21, 2019, or if it strictly follows the law like the FBI, which refused President Donald Trump’s politically oriented interferences. Till then the states should not be blamed if they block the CBI’s entry using their legal weapon to safeguard India’s federal character enshrined in the Constitution.

(Views are personal.)

Former special secretary, Cabinet Secretariat.

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