New Delhi, Nilim Dutta: Was the CBI’s raid on Arvind Kejriwal’s Office legal? The reply is not clear either for Delhi Government or Union Government because Delhi is neither union territory not full grown state.
Here are some significant points.
The CBI draws its legal authority from the Delhi Special Police Establishment (DSPE) Act 1946. The laws under which CBI can investigate Crime are notified by the Central Government under section 3 of the DSPE Act.
As per section 2 of the DSPE Act, CBI can suo-moto take up investigation of offenses notified in section 3 only in the Union Territories. Taking up investigation by CBI in the boundaries of a State requires prior consent of that State as per Section 6 of the DSPE Act. The Central Government can authorize CBI to investigate such a crime in a State but only with the consent of the concerned State Government. The Supreme Court and High Courts, however, can order CBI to investigate such a crime anywhere in the country without the consent of the State.
Since Delhi is a ‘state’ and NOT a ‘union territory’, usually, it would need ‘prior permission’ or ‘consent’ from the Delhi State Government for the CBI to be able to investigate a crime within its territory.
The GOI has claimed that the CBI ‘raid’ wasn’t on the Delhi CM or his office but only against Rajendra Kumar, IAS, who is Principal Secretary to the CM and his office is just next to that of the CM in the Delhi Secretariat.
Can the CBI act against a public servant working for a state government without consent or prior permission from the concerned state government?
Apparently, it can.
Most of the States in India, have apparently given, what is called as the ‘general consent’ to the Central Government for investigation of complaints of corruption against the public servants under the control of the Central Government working in the States. This means that CBI will not require prior consent in each such case and it can go ahead with the investigation of such complaints as and when received without referring them to the State for consent. Such consent will however require if CBI intends to take up investigation on a complaint against the public servants under the control of the State Government.
This can be read as: “Most of the State Governments have authorized CBI to undertake investigation against employees of the Central Government, Public Sector Undertakings and Corporations under the Control of Government of India and Banks in their States.”
So, the raid on Principal Secretary, Delhi Government, on charges of corruption would not be ‘illegal’. THAT, however, doesn’t mean that the intent is NOT questionable. Also, it is perhaps unprecedented that they had ‘sealed’ the office or a part of the CM’s Office. THAT would be of very very questionable legality.
In no other state, where the police is under the state government, would the CBI dare to do any of this without a court order or direction. what is the Delhi State attorney general doing – why did they allow the CBI into the offices. The Public attorney should have been called and a legal stand shd have been slapped on the CBI. AK himself has tweeted that CBI is going through his official files, hard disks, diaries, notes and computers. This doesn’t sound legal when there is no charge against him.