The Supreme Court on Wednesday said that the West Bengal government’s suit challenging the Central Bureau of Investigation (CBI) unauthorisedly probing cases in the state despite its withdrawal of general consent to the probe agency on November 16, 2018, from undertaking a probe in the state is maintainable.

Rejecting the Central government’s preliminary objections on the maintainability of the West Bengal government’s original suit, a bench of Justice B R Gavai and Justice Sandeep Mehta said that the suit concerning the CBI’s probing of cases despite the state’s withdrawal of consent shall proceed in accordance with the law and on its own merits.

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The court said that the hearing of the suit will now take place on August 13 to frame the issues to be adjudicated. Solicitor General Tushar Mehta, who appeared for the Central government, said that the observations in the judgment would not impact the subsequent hearing. The court also said that both sides would be allowed to advance their arguments on all issues arising in the matter.

The court observed that the West Bengal’s suit raised a legal issue as to whether after the general consent is revoked by a state, the CBI could register and investigate cases in violation of Section 6 of the Delhi Special Police Establishment (DSPE) Act under which the Central Bureau of Investigation has been established.

The West Bengal government had contended that in a situation where the CBI undertakes investigations in the state without its statutorily mandated prior consent would derogate from the federal nature of the Centre-State relationship under the Indian Constitution.

While questioning the maintainability of the suit, the Central government contended that the West Bengal government had made the Central government a respondent in its suit instead of the CBI. The Centre argued that the CBI is an autonomous and independent investigating agency, and its identity and actions should not be mixed up with those of the Centre.

The court had reserved the order on May 8, limiting it to the question of law — whether the CBI and the Centre were synonymous or distinct entities.

While the West Bengal government asserted that the Central Bureau of Investigation cannot register cases and undertake any investigation in the state without its prior nod, since it withdrew its general consent on November 16, 2018, the Central government reiterated that the central investigating agency is independent and not under its direct control and supervision.

Solicitor General Tushar Mehta told the top court that the Central government’s role in the CBI was limited to matters such as transfer, posting, territorial jurisdiction (areas it can investigate), and the agency’s finances, including emoluments. As far as the registration of cases and their investigation was concerned, the agency was an autonomous and independent entity.

However, an attempt by the Solicitor General drawing a parallel between the independence enjoyed by the CBI with that of the independence of the judiciary was not accepted by the court. The court said any comparison of the independence of the CBI with that of the judiciary is an “incorrect analogy”.

Senior advocate Kapil Sibal, who appeared for the West Bengal government, told the court that after the state government withdrew its general consent to the CBI to probe cases in the state on November 16, 2018, the central agency could not have undertaken any investigation in the state without the prior consent of the state government.

“The West Bengal government withdrew its consent on November 16, 2018. Cases registered by the CBI, which are now under challenge, could not be investigated after the withdrawal of consent,” Sibal told the court, pointing out, “The constitutional question is whether, after the withdrawal of the consent, you (Central government) can allow your agency to enter my State without my consent.”

He told the court that when a question about the CBI is asked in Parliament, it is the DoPT under the Prime Minister who answers the questions.

Assailing the Centre’s stand that the CBI can register cases on its own, Sibal said, “That is the most dangerous proposition that the Centre has advanced before the court, which will be destructive of the federal nature of the Centre-State relationship.”

In its suit, the West Bengal government has challenged the registration of cases by the CBI without its consent. It has referred to the provisions of the Delhi Special Police Establishment Act 1946, stating that the CBI is mandated under the statute to obtain the state government’s consent before registering cases.