The Centre has told the Supreme Court it is not understood why a state government would come in the way of an investigation, and have the inevitable effect of shielding those who are guilty in multi-state/pan-India offences. It further added that a state government cannot claim a right to issue omnibus, sweeping, and overarching directions to withdraw consent for a CBI probe into any matter.
The Centre's response came to an original suit filed by the West Bengal government against a CBI probe into many cases, which included cases related to post-poll violence and coal pilferage case allegedly involving Trinamool Congress MP Abhishek Banerjee, who is the nephew of party supremo and Chief Minister Mamata Banerjee.
In an affidavit, filed in the Supreme Court, the Department of Personnel and Training (DoPT) said: "The power to take a decision not to grant consent in any case to the Central agency and/or power to pass a sweeping order withdrawing consent in all cases is an ultra vires exercise of power and is non-est."
The affidavit emphasised the state government can exercise the power to grant/refuse consent only on a case-to-case basis and for the same, good, sufficient, and germane reasons have to be recorded.
"That the power of the state government to give consent for an investigation by the CBI, cannot and would not include a right of an omnibus power, to pass over-arching sweeping directions not to grant consent in any case and/or withdraw the consent already granted."
On Friday, a bench of Justices L. Nageswara Rao and B.R. Gavai, after taking the response on record, scheduled the matter for hearing on November 16.
The affidavit said: "A statutory power conferred upon the state government is always coupled with a responsibility to exercise that power on a case-to-case basis with an inbuilt condition of exercising the same in larger public interest and not to shield any accused or purely on political considerations."
The Centre emphasised that the principle of federalism with a unitary bias does not imply a complete embargo on the powers of the CBI in all possible factual circumstances.
On the aspect of offences committed in railways areas, which have pan-India ramifications, the affidavit said: "it is inconsequential whether the concerned state government has accorded its consent or not, as the Constitution and the DSPE Act unequivocally grants the power to investigate in such case to the CBI."
The Centre said the prayers in the suit are directed either towards restraining the Centre from investigating any case or towards quashing cases where it has allegedly registered FIRs. It further added that surprisingly the CBI has not made a party to the suit.
It said out of 12 cases listed by the West Bengal government in connection with the CBI probe, six cases were pending adjudication before the apex court separately.