Examining the legality of the NIA Act

A federal government is a system wherein powers are divided between the Centre and the State and both operate independently in their respective jurisdictions.[1] The Constituent Assembly adopted for a federal structure in order to reconcile national unity with regional autonomy. Till 1967, Center-State relations were smooth due to Congress rule in the Center and most states. However, in the 1967 general elections, Congress lost 45% seats weakening its position at the Center. It created a new era in Center-State relations and increased the discontent between the two. The opposition governments in States have since raised the issue of state autonomy and opposed the increasing centralisation and interventions of the central government, the most recent being the constitutionality of the National Investigation Agency (‘NIA’).

The NIA Act (‘Act’) was passed in 2008, in the wake of the 26/11 Mumbai terror attacks. The Act set up the NIA as the nation’s first apex agency to investigate and prosecute offences related to terrorism. A 2019 amendment expanded the ambit of the Act to offences such as human trafficking, manufacture and sale of prohibited arms, cyber-terrorism and others. Additionally, the Unlawful Activities Prevention Act was amended to bestow power to NIA officers to conduct raids and seize properties of suspected terrorists. The primary aim of the NIA was to assist State police in terror cases and maintain law and order. However, with the powers bestowed, NIA has hi-jacked the working of State police for certain crimes. This has led to the NIA violating the federal structure of the nation. For the same reason, the Chhattisgarh government has filed a petition arguing that NIA is constitutionally invalid and its enactment goes beyond the legislative competence of the Parliament.

The need for an apex level anti-terrorist organisation was felt for multiple reasons. Terrorist crimes have complex inter-state and international linkages. Hence, a national body that can coordinate and oversee criminal activities is essential. Besides, to prevent a terrorist activity from taking place, comprehensive intelligence gathering, and substantial information sharing between different states and the Center is necessary. The Bureau of Police Research and Development (BPRD) has asserted that with the ease of adoption to technology, terrorist nexus has outpaced the speed with which state police has been able to adapt themselves with new technologies of crime deterrence and prevention. BPRD and the Soli Sorabjee Committee have pointed towards the need for a central law enforcement agency to deal with inter-state linkages of terrorist syndicates. Therefore, NIA is the agency which serves this purpose.

However, it is contended that specific provisions of the Act are contrary to the constitutional setup of division of power and violate the federal structure of the nation. Section 3(1) of the Act establishes a police force to investigate offences. Section 6 gives NIA suo moto power to take up cases without any prior consent of the State in any part of India. Further, NIA has the power to investigate offences which come under Scheduled offences of the Act. Section 6(6) directs that if any direction is given under the sections mentioned above, then state police shall not proceed with the investigation and transmit the case to NIA. Alongside, Section 7 and 9 gives NIA the discretion to decide when to take assistance from state police and when to transfer the case to the State police. However, these provisions encroach upon the rights of the State.

India’s federal structure makes a neat demarcation between the power of the Centre and the States regarding security issues. Center is responsible for external threats,[2] but it is the State which is responsible for Public Order and Police.[3] However, NIA takes away the power of the State Police and creates a police force at Central level in order to regulate public order. This leads to encroachment on the States’ rights and creates ambiguity regarding legislative competence. This ambiguity is resolved using the doctrine of Pith and Substance. The doctrine provides that when a question arises of determining whether a particular law relates to a particular subject, the Court looks for the substance, i.e. the essential feature of the matter. Thus, if the substance falls within State List, then the encroachment by the Union law on the subject mentioned in the State List will make it invalid. In order to find out the pith and substance, it is necessary to examine the language and purpose of the legislation. As per the preface and Section 6(4) of the NIA Act, the Act is aimed to constitute an investigation agency to investigate and prosecute offences. However, as recognised in Ramesh Chandra, the power of investigation is vested with Police which falls under Entry 2 of State List. The case recognised that Police is strictly a State subject matter and the CBI derives power of investigation only because it originates from the Delhi Special Police Establishment Act (‘DSPE’), which is the police force to investigate offences in Delhi.[4] This would mean that investigation by NIA officers, which acts as a Center Police, would transgress on the powers of the State conferred under the under Entry 2 of State List in terms of Article 246 (3) of the Indian Constitution. Hence, using the doctrine of pith and substance, it is clear that the encroachment by Center is not incidental and creation of a police force at Center level is invalid.

Meanwhile, in the case of Pragyasingh Thakur, the Bombay High Court, while expounding upon the legality of CBI, upheld the validity of NIA and traced the origin of the Act to Entry 8 of Union List (CBI).[5] Hence, it was held that NIA had the same power to investigate as Police as defined under Section 2(h) of the Code of Criminal Procedure (CrPC). However, the Guwahati High Court while declaring CBI as unconstitutional held that the meaning of investigation under Entry 8 has a narrow remit. It does not mean investigation as contemplated under CrPC.[6] Investigation under Entry 8 would mean the making of an enquiry for the mere purpose of collecting intelligence to help states. Constituent Assembly Debates also support the same.[7] Consequently, according to the Gauhati High Court, Entry 8 does not empower the CBI to investigate crimes as provided under the CrPC. Extending the same reasoning to the activities of NIA would mean that it is not competent to investigate offences, and this makes it liable to be stuck down.

Furthermore, the Act does not accommodate the pre-condition of the consent of States. Entry 80 of Union list provides for the extension of powers and jurisdiction of a police force belonging to a State to any area outside that State. However, it cannot be done without the consent of the State government in which such area is situated.[8] Central Bureau of Investigation (CBI) also recognises the pre-condition of general consent. However, as per Section 6 of the NIA Act, NIA does not need the consent of the state government before investigating in their territory. Similarly, there are no rules to govern the powers which give ample discretion to NIA to exercise its power at any juncture without providing any justification or receiving prior consent for the same. This directly encroaches upon State’s right and power and gives unfettered, discretionary and arbitrary powers to Center. It makes NIA even more powerful than CBI and goes against federal structure and state sovereignty.

It is evident that any attempt by Centre to curb the powers of State even for national security is going to be counterproductive. However, it cannot be denied that State Police by itself cannot curb inter-state crimes like terrorism. A Niti Aayog paper suggested moving Police as well as public order to the Concurrent List to tackle increasing inter-state crime and terrorism under a unified framework. Alternatively, NIA is a federal investigating agency. However, India has no concept of federal crimes and does not explicitly state which offences would fall under the category of federal crimes. There exists a need to amend the Constitution to include federal crimes in Schedule VII. These will provide constitutional backing to inter-state organisations and national agencies with the help of State police can work together. National security is a sensitive issue, and appropriate steps need to be taken to protect the same.

[1] Mahendra Pal Singh, The Federal Scheme in The Oxford Handbook of Indian Constituion 451 (2016).

[2] The Constitution of India, 1950, Schedule VII, List-I, Entry 15.

[3] The Constitution of India, 1950, Schedule VII, List-II, Entry 1, 2.

[4] Ramesh Chandra Singh v. Central Bureau Of Investigation, CRR 910 of 2019, ¶¶26-29.

[5] Pragyasingh Chandrapal Thakur v. State of Maharashtra, (2013) 6 AIR Bom R 1171, ¶36.

[6] Navendra Kumar v. Union of India, 2018 SCC OnLine Gau 1351.

[7] Constituent Assembly Debates, 29th August, 1949 speech by Naziruddin Ahmad, Vol. IX, p.126 ¶78.

[8] Delhi Special Police Establishment Act, 1946, §§5,6.

Varun Garg
Varun Garg is a second-year student pursuing BA LLB (Hons.) at the WB National University of Juridical Sciences (WBNUJS), Kolkata. His areas of interest include Constitutional Law, Public International Law and Trade Law. He also enjoys taking part in Moot Court competitions and playing sports, particularly cricket.
 
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