The debate around the NIA Act, 2008

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Recently on 15th Jan 2020, the State of Chhattisgarh moved to Supreme Court by filing a plaint against Union of India under Article 131 of Indian Constitution, related to Centre and State relations, challenging constitutionality of National Investigation Agency (NIA) Act, 2008.

NIA Act was drafted in 2008 and was enforced in December 2008. Mr. P. Chidambaram who was then the Home Minister was the draughtsman of the Act.  The present petition has arisen from two petitions already pending before High Court of Chhattisgarh which also dealt with the NIA, its existence and its constitutionality.

Last year in June 2019, the Parliament had passed an NIA Bill which has amended the Act with respect to its jurisdiction and offences. The Bill has widened the scope of applicability.

Salient features of the Act

The NIA Act is an Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for other connected matters.

Thus, it has brought under the agency’s ambit offences under the Atomic Energy Act, Unlawful Activities Prevention Act, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, SAARC Convention (Suppression of Terrorism) Act, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, Weapons of Mass Destruction and their delivery systems and several sections of the Indian Penal Code related to cyber terrorism, offences related to counterfeit currency or manufacturing or selling of prohibited arms and human trafficking.

The Amendment Act allows the empowered agency to investigate offences committed outside the territory of India, subject to international treaties and domestic laws of other countries. Also, the amended act has allowed the Central government to designate Sessions Courts as Special Courts for the trial of scheduled offences under this Act. However, the Central government is required to consult the Chief Justice of the High Court under which the Sessions Court is functioning.

Controversy around it

The controversies against the NIA Act had begun back in 2008. The Centre, with the aid of NIA Act, had expanded the horizons to investigate and policing the crimes. Common criticism amongst many were that the Act is in sheer violation of sovereignty of State Governments, as police is a subject which falls under jurisdiction of State Government but through NIA, the Centre has an edge over and above the State Government.

NIA has caused interference in the investigation procedure in many cases. In 2014, in the Jeeram case, NIA had completed investigation but had declined to share the details of the same with State Police. Therefore, a PIL was filed seeking NIA as an ultra vires Act. Then, in 2019, in murder case of BJP MLA Bhima Mandavi, the NIA has declined to acknowledge and consider the investigation by the state police.

The affected party had challenged the interference of NIA in the matter at hand. Under both the circumstances, the NIA Act has been upheld has constitutionally valid. The Chhattisgarh HC Division Bench provided that the provisions are present in the Act to protect the opaqueness of investigatation and it is mandatory to obey those legal obligations.

Even after passing of Amendment Bill in 2019, controversies with regard to possible misuse have stirred up. The NIA Act has expanded the jurisdiction of the Centre to investigating crimes Act and included that all the powers, duties, privileges and liabilities that state police officers have in connection with investigating the offences listed under the Act would become available to the NIA as well.

For instance, through NIA Amendment Act, the officers have power to seize the property in the terror cases with approval of the Director General of NIA, if the case is being investigated by the NIA. Earlier, for such a step, prior approval of Director General of Police (DGP) was required. The opposition has raised concerns with regard to the violation of the principle of federalism.

Arguments made by Chhattisgarh government in its plaint

The State of Chhattisgarh has argued in the plaint that the Act is beyond the “legislative competence of the Parliament” and is against the “federal spirit” of the constitution.

As per the plaint, “ A holistic appreciation of the fact that “Police” was placed under List-II as the subject matter of State, with power to investigate, and equally significant fact that no such entry of “Police” or even any incidental or ancillary entry was provided in List-I i.e., Centre List suggests that the framing of a legislation such as NIA Act by the Parliament, which creates an “investigation” agency having overriding powers over the “Police” of a State, was never the intention of the makers of the Constitution.” Hence the plaint clearly argues that giving police powers to the Centre is against the Constitution.

The plaint further argued that the NIA Act disrupts the relations between the Centre and the State as the power of the State to investigate the offences which have been categorised in the Scheduled Offences under the Act and which have been committed within the State’s jurisdiction has been taken away.

The Chhattisgarh government has contended that the Act in effect has created a “National Police” affecting the State’s rights. Thus, the State seeks a declaration of the NIA Act as unconstitutional. An alternative remedy sought by the State is to declare the Sections 6,7,8 and 10 of the Act as ultra vires. Another alternative prayer has been sought for framing appropriate guidelines for the exercise of powers under section 25(1) of the Act.

Conclusion

The NIA Act, is considered to be a special legislation which intends to curb serious threats of terrorism; it is believed that to deal with a harsh issue, there is a dire need of special legislation. With the amendments being made in UAPA and NIA, the present government is moving towards strengthening the present law in order to prevent terrorism, which has come to be questioned as a step against the spirit of federalism.

An important point here is that this Act, when originally passed in 2008 by the UPA led government itself, was widely criticised for being unconstitutional. Now the Chattisgarh government of Congress has challenged not only the BJP Amendment Act but also the original act as being ultra vires the Constitution of India.

As per the statement of the AICC General Secretary in-charge of Chhattisgarh, P L Punia, the Act after the Amendment has undergone a “drastic change” and is no more the same Act.

As a result, The Supreme Court has also filed a notice to the Central Government regarding the constitutional validity of the Act.

Authors: Garima Sharma from University of Petroleum and Energy Studies, Dehradun and Prachi Gupta from University Institute of Legal Studies, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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