The jurisdiction of the Central Bureau of Investigation (CBI) regarding lodging an FIR and conducting probe within a particular State is being questioned by various States. However, the power of the States to withhold consent to the CBI is not absolute. Explain with special reference to the federal character of India.

Introduction

The CBI functions under the Delhi Special Police Establishment (DSPE) Act, 1946. Since 'police' is a State subject (Entry 2, List II), Section 6 of the Act requires a State's consent before the CBI can lodge an FIR or investigate within its territory. Consent may be general or case-specific, and around ten States — including West Bengal, Kerala, Punjab and Jharkhand — have withdrawn general consent, signalling federal friction.

Why the power to withhold consent is not absolute

• Constitutional courts: a five-judge bench in State of West Bengal v. Committee for Protection of Democratic Rights (2010) held that High Courts under Article 226 and the Supreme Court under Article 32 can order a CBI probe without State consent, since the protection of fundamental rights cannot be fettered by statute.
• Prospective effect: withdrawal does not touch investigations already registered (Kazi Lhendup Dorji, 1994).
• No automatic vitiation: in Fertico Marketing (2020), the Supreme Court held that want of consent does not vitiate an investigation unless the accused shows prejudice or miscarriage of justice.
• Central employees: the Calcutta High Court (Vinay Mishra, 2021) permitted the CBI to proceed against central government employees posted in a non-consenting State.
• Court-monitored investigations under the Vineet Narain (1997) framework continue regardless of consent.

The federal character

The consent requirement embodies the constitutional division of police powers, and apprehensions of misuse — the Supreme Court itself once called the CBI a 'caged parrot' — explain State caution. Equally, blanket withdrawal risks shielding corruption. West Bengal's original suit under Article 131 challenging CBI case registrations, held maintainable in 2024, will clarify this balance.

Way forward

A dedicated CBI statute defining jurisdiction, ensuring functional autonomy and mandating consultation with States — as the Parliamentary Standing Committee has recommended — would reconcile federal comity with effective anti-corruption investigation.