On Thursday, 9th November, the Central government disputed the maintainability of the West Bengal government’s petition accusing the CBI of registering FIRs and launching investigations even when the state govt has withdrawn general consent for CBI probes in the state. The Centre told the Supreme Court that the state government cannot sue the Central government as the CBI is “independent” and that it does not control the probe agency.
It is notable that as per law before CBI starts probing a case in a state, the state govt must authorise the probe. However, most state governments issue general consent to the central probe agency, eliminating the need to obtain consent for each and every state. However, some states withdraw this general consent from time to time, often for political reasons.
A bench comprising Justices BR Gavai and Aravind Kumar began hearing the case on Thursday. The Court was hearing an original suit filed by the West Bengal government under Article 131 of the Constitution on the Supreme Court’s original jurisdiction over Centre-State disputes.
The petition cited the provisions of the 1946 Delhi Special Police Establishment Act and claimed that the CBI has been conducting investigations and filing FIRs without the State government’s approval, as required by the Act. The TMC government argued that since it has withdrawn general consent given to CBI, the FIRs lodged by the CBI cannot be proceeded with.
Appearing for the Centre, Solicitor General (SG) Tushar Mehta told the Supreme Court bench that the independent existence of CBI “is in fact a product of the judgments of the apex court wherein the CBI was vested with a separate legal and functional identity.” Mehta said that the CBI cannot be a party of such suits under Article 131 adding that the petition should be dismissed.
“There is no cause of action against Union. Under the Supreme Court Rules, it is grounds for dismissal. Order 26 Rule 6. CBI is not under the Centre. No suit against it under 131 is maintainable … You cannot re-litigate by changing nomenclature and suppressing facts for favourable interim orders,” Mehta said.
Tushar Mehta additionally argued that the CBI is not a branch of the central government, but the Union of India, through the Department of Personnel and Training, is the respondent in this case. “The DoPT has nothing to do with the CBI’s registration, investigation, or prosecution of cases…If the department cannot direct the registration of a case or setting aside of the registered offence, nor direct the manner of investigation, how will the cause of action arise against it?” Mehta asked.
Senior Advocate Kapil Sibal, who represented the West Bengal government, said the suit “has nothing to do with the CBI,” which he described as “just a repository of that power.”
Moreover, the Union of India raised a preliminary objection based on the pending status of collateral procedures stemming from the same cause of action. The Solicitor General exemplified this point by reference to an ongoing special leave case against a 2021 Calcutta High Court ruling ordering a CBI investigation into accusations of post-election violence.
“Can they maintain a proceeding under Article 131 when the same cause of action is pending in collateral proceedings, a fact that has been wilfully and deliberately suppressed? The suit is fraudulent and liable to be dismissed only on that ground. Even if the facts are different but the question of law is the same…the suit is liable to be dismissed on grounds of the principle of res sub judice.”
Appearing for the West Bengal government, senior advocate Kapil Sibbal challenged the Central government’s assertions. He claimed that the Solicitor General erred in using language like ‘fraudulent’ to describe the litigation.
He went on to say that the Union government supervises the CBI and that the major relief sought was that cases not be registered without the consent of the State government. The matter will now be heard on November 23.
