The Consent of the State

General consent and special consent

The Act says "consent" and stops. It does not distinguish forms, and the distinction is administrative practice built on the word.

General consent is a consent given in advance, by a notification of the State Government, for the Establishment to exercise its powers in that State in respect of specified classes of offences and specified classes of persons, without a fresh consent for each case. It is what makes routine central investigation possible across the country.

Special consent is a consent given for a particular case, ordinarily on a request from the Central Government or on the State's own reference of a case to the agency.

A State that withdraws general consent has not withdrawn consent. It has withdrawn the standing permission and left the special route open, so the agency may still investigate in that State case by case, with the State's consent for each. An answer that says withdrawal "bars the agency from the State" is inaccurate.

What withdrawal does and does not do

It operates prospectively. A withdrawal takes effect from its date and does not disturb what has already been done. Cases registered while the general consent stood remain lawfully registered, and the investigation in them continues, because the exercise of powers in those cases was authorised when it occurred.

It bites on new cases. After the withdrawal, a fresh case in that State requires a special consent, or one of the routes chapter 830 sets out.

It does not touch Union territories or railway areas. Section 6 excludes both.

It does not affect an investigation already ordered by a court. That is the whole of chapter 830, and it is the most important qualification of all.

And it raises a question that has to be handled carefully in an answer: what of an offence committed in the State by a Central Government servant? The offence is committed in the State's territory, so section 6 applies on its terms. The character of the accused does not remove the territorial requirement. The routes that remain are a special consent, or a direction from a constitutional court.

The two arguments, and both belong in an answer

For the consent requirement. Police is a State subject and Entry 80 of List I carries the condition on its face. A central agency free to enter any State at will would make the police entry in the State List meaningless. Federalism is not decoration: the States are governments, not administrative units, and their control of policing within their territory is part of what makes them so. And there is a practical argument as well, that a central agency answerable to the Union Government and able to enter any State uninvited would be an instrument of one party against another.

Against it. Corruption and organised economic crime are not territorial. A State whose own Ministers are the subject of an allegation is the very authority whose consent is required, so the person complained against controls the gate. And the withdrawal of general consent is announced, in practice, in political circumstances that make its motive plain, which is not what a federal safeguard is for.

The honest position, and the one to write. The consent requirement is constitutionally grounded and is not an abuse; what is contested is the use made of it, on both sides. A State may use withdrawal to shield, and a Union Government may use the agency to harass, and section 6 is silent about motive. The corrective the law has actually supplied is not an amendment of section 6 but the jurisdiction of the constitutional courts, which chapter 830 explains.

A worked example

A State withdraws its general consent by a notification of 1 March.

A case registered by the Establishment in that State on 1 February. Lawfully registered under the general consent then in force. The withdrawal is prospective; the investigation continues.

A case the agency wishes to register on 1 April. Section 6 bars the exercise of powers in that State without consent. The agency must obtain a special consent from that State Government for that case.

The State refuses. Then the agency cannot act of its own motion. But section 6 restricts the Union and not the courts, and a High Court under article 226 or the Supreme Court under article 32 may direct the agency to investigate: chapter 830.

The offence was committed partly in that State and partly in a Union territory. Section 6 has no application to the Union territory, where section 2 governs; the exercise of powers in the State still requires consent.

The offence was committed in a railway area within that State. Section 6 excludes a railway area expressly, so no consent is needed there.

The accused is a Central Government servant posted in that State. Section 6 is territorial and applies. The character of the accused does not dispense with the consent.

What beginners get wrong

That withdrawal of general consent bars the agency from the State. It removes the standing permission. Special consent case by case remains available, and so do the court routes.

That withdrawal unsettles pending cases. It operates prospectively.

That section 6 is a political creation. Entry 80 of List I carries the consent condition in the Constitution itself.

That section 6 stops a court. It restricts the exercise of powers by members of the Establishment and, on the authority of the Constitution Bench, does not curtail article 226 or article 32.

That consent is needed everywhere in a State. Not in a railway area, and not in a Union territory.

Quick revision

s.6: nothing in s.5 enables a member to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of that State Government.

Constitutional basis: List II Entry 1 public order and Entry 2 police; List I Entry 2A deployment of Union armed forces in aid of the civil power; List I Entry 80, extension of a police force's powers beyond its State, but not without the consent of the State in which the area is situated.

General consent: given in advance by notification for classes of offences and persons. Special consent: case by case. The Act says only "consent"; the distinction is practice.

Withdrawal: prospective; pending cases unaffected; special consent still available; Union territories and railway areas untouched; and no effect on an investigation directed by a constitutional court.

The debate: police is a State subject and the person complained against may control the gate; s.6 is silent about motive on both sides, and the corrective supplied has been judicial, not legislative.

Test yourself

1. State and explain section 6 of the Delhi Special Police Establishment Act 1946. It provides that nothing contained in section 5 shall be deemed to enable any member of the Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area, without the consent of the Government of that State. What it restricts is the exercise of powers on the ground rather than the making of the order under section 5. A Union territory is excluded because section 2 already provides for it, and a railway area is excluded because railways are a Union subject. The provision therefore makes the territorial reach of India's central investigating agency conditional on the assent of each State in which it wishes to work.

2. What is the constitutional basis of the consent requirement? Public order and police are State subjects under Entries 1 and 2 of List II of the Seventh Schedule. The Union's related entries are narrower: Entry 2A of List I covers the deployment of any armed force of the Union in a State in aid of the civil power, and Entry 80 of List I covers the extension of the powers and jurisdiction of members of a police force belonging to a State to an area outside that State, but expressly not so as to enable the police of one State to exercise powers in an area outside it without the consent of the Government of the State in which the area is situated. The consent condition is therefore written into the Constitution itself, and section 6 reproduces it in the statute. It is not a concession Parliament chose to make but the shape of the federal division of police power.

3. Distinguish general consent from special consent, and explain the effect of withdrawing general consent. General consent is given in advance by a State Government's notification, permitting the Establishment to exercise its powers in that State for specified classes of offences and persons without a fresh consent in each case, and it is what makes routine central investigation possible across the country. Special consent is given for a particular case. The Act itself speaks only of consent, and the distinction is one of administrative practice. Withdrawal of general consent operates prospectively: cases already registered while it stood remain validly registered and their investigation continues, while a new case in that State requires a special consent. Withdrawal is therefore not a bar on the agency but the removal of a standing permission, and it leaves both the special consent route and the jurisdiction of the constitutional courts untouched.

4. Is the consent requirement justified? Discuss. The argument for it is that police is a State subject, that Entry 80 of List I carries the consent condition on its face, that a central agency able to enter any State uninvited would empty the State List entry of content, and that such an agency, answerable to the Union Government, could be used against States governed by other parties. The argument against it is that corruption and organised economic crime are not territorial, and that where the allegation concerns a State's own Ministers the person complained against effectively controls the gate. The fair conclusion is that the requirement itself is constitutionally grounded and that what is contested is the use made of it, since section 6 is silent as to motive on both sides. The corrective that the law has in fact provided is not an amendment of section 6 but the jurisdiction of the High Courts and the Supreme Court, which the restriction does not touch.

5. A State has withdrawn general consent. A serious offence is then committed there. What are the options? Four. First, the Central Government may seek and the State may grant a special consent for that case, which section 6 continues to permit. Second, if the offence was committed in a railway area or in a Union territory, section 6 does not apply at all. Third, the State itself may refer the case to the agency, which is a consent in substance. Fourth, and most importantly, a High Court in exercise of its jurisdiction under article 226, or the Supreme Court under article 32, may direct the agency to investigate, and by the Constitution Bench decision in State of West Bengal v. Committee for Protection of Democratic Rights the restriction in section 6 binds the Union and does not curtail that power.