Bihar govt. restricts CBI power; State nod mandatory to probe against its employees
The Bihar Home Department issued a notification dated September 3, 2026, restructuring the consent framework under which the Central Bureau of Investigation (CBI) can act within the state.
The notification clarifies that the CBI does not require Bihar's permission to investigate offences involving Central government employees — general consent continues for them.
However, for offences involving public servants appointed in connection with the affairs of the Government of Bihar, or employees of Bihar-owned corporations, companies, banks, or state-funded institutions, prior case-by-case consent of the state government is now mandatory.
The change replaces a standing, blanket authorisation for such cases with a discretionary review process, while leaving CBI's jurisdiction over central employees and private individuals unaffected.
Section 6, Delhi Special Police Establishment Act, 1946
The CBI is not established by its own standalone statute; it derives its investigative powers from the Delhi Special Police Establishment (DSPE) Act, 1946, originally enacted to police wartime supply-department corruption. Section 6 of this Act requires the CBI to obtain a state government's consent before exercising powers and jurisdiction within that state's territory, because "police" and "public order" fall under Entry 1 and Entry 2 of the State List (Seventh Schedule).
Key Details
- "General consent" is a standing, one-time authorisation letting CBI register and investigate any case within a state without repeated permission; "case-specific consent" requires fresh state approval for every individual case.
- The DSPE Act's territorial jurisdiction originally covered only Delhi; Section 5 allows the Central Government to extend this to other areas, but only subject to the state's Section 6 consent.
- Union Territories and central government establishments do not require this state consent, which is why CBI's power over Central employees remains automatic even where general consent for state employees is withdrawn or restricted.
Bihar's notification is a textbook illustration of Section 6's two-track design — the Centre's own personnel fall outside the state-consent requirement altogether, while state government personnel and state-linked entities are squarely within it, giving Bihar the discretion to now screen such cases individually.
Withdrawal/Restriction of General Consent as a Federalism Tool
Roughly ten states — including Punjab, Jharkhand, Kerala, Rajasthan, Chhattisgarh, West Bengal, Mizoram, Telangana, Meghalaya, and Tamil Nadu — have at some point withdrawn general consent to the CBI, citing concerns about the agency's use against state functionaries without adequate local oversight. Bihar's move is a narrower variant: rather than a full withdrawal, it draws a line specifically at the state's own employees and institutions.
Key Details
- Consent withdrawal or restriction does not affect CBI cases already registered before the change, nor cases where the trail of an FIR registered in another state extends into the restricting state.
- It also does not bar a constitutional court from directing a CBI probe without state consent, since courts exercise a separate constitutional power.
- Parliamentary committees have periodically recommended a fresh central law to reduce reliance on this colonial-era consent mechanism, but no replacement statute has been enacted.
By keeping consent open for Central employees but restricting it for state employees, Bihar's approach sits between full general consent and full withdrawal — a calibrated federalism response rather than an outright rejection of the CBI's mandate.
Judicial Override of the Section 6 Consent Requirement
In State of West Bengal v. Committee for Protection of Democratic Rights (2010), a Constitution Bench of the Supreme Court held that a High Court, exercising its writ jurisdiction under Article 226, may direct the CBI to investigate an offence within a state even without that state's consent, and that such a direction does not violate the federal structure or the separation of powers.
Key Details
- The case arose from a Calcutta High Court order directing a CBI probe into a 2001 custodial-violence incident in West Bengal, which the state challenged as inconsistent with the DSPE Act's consent requirement.
- The Supreme Court held Article 226 (and, by extension, Article 32 for the Supreme Court itself) to be part of the basic structure, meaning ordinary legislation like the DSPE Act cannot curtail a constitutional court's power to order a CBI investigation.
- This judicial pathway remains available regardless of any state-level consent notification, including Bihar's newly restructured framework.
Even with Bihar's tightened case-by-case consent for its own employees, a constitutional court retains an independent, unaffected route to direct a CBI investigation if satisfied that a fair probe demands it.
- Notification date: September 3, 2026, issued by the Bihar Home Department.
- Governing law: Delhi Special Police Establishment Act, 1946, Section 6 (state consent requirement) and Section 5 (extension of jurisdiction).
- CBI's institutional status: an attached office under the Department of Personnel and Training, Government of India — not a statutory body under its own dedicated Act.
- States that have withdrawn general consent to CBI (recent record): approximately ten, including Punjab, Jharkhand, Kerala, Rajasthan, Chhattisgarh, West Bengal, Mizoram, Telangana, Meghalaya, Tamil Nadu.
- Landmark case: State of West Bengal v. Committee for Protection of Democratic Rights (2010) — Supreme Court Constitution Bench ruling that High Courts/Supreme Court can order CBI probes without state consent under Articles 226/32.
- Seventh Schedule basis: "Police" (State List, Entry 1) and "Public Order" (State List, Entry 2) are why state consent is constitutionally required for CBI's ordinary operation within a state.