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Tuesday, January 21, 2020

Explained: What is National Investigation Agency Act, and why is Chhattisgarh challenging it?

It was introduced by then home minister P Chidambaram in the wake of the 26/11 Mumbai terrorist attacks and was passed in Parliament with very little opposition.

By: Explained Desk | New Delhi | Updated: January 17, 2020 1:36:29 pm
Explained: What is the NIA Act, and why is Chhattisgarh challenging it? Chhattisgarh Chief Minister Bhupesh Baghel. (Express File Photo: Praveen Khanna)

The Congress-led Chhattisgarh government Wednesday moved the Supreme Court against the National Investigation Act, 2008 stating it is violative of the Constitution. In its civil suit, the government told the apex court the NIA should have no power over state policing matters.

This is the second instance this week when a state has sought to challenge a central legislation under Article 131 of the Constitution. On Tuesday, the Kerala government moved the Supreme Court against the Citizenship (Amendment) Act.

The law governs the functioning of India’s premier counter-terror agency. It was introduced by then home minister P Chidambaram in the wake of the 26/11 Mumbai terrorist attacks and was passed in Parliament with very little opposition.

Explained: What is the NIA 2008?

The Act makes the National Investigation Agency the only truly federal agency in the country, along the lines of the FBI in the United States, more powerful than the CBI. It gives the NIA powers to take suo motu cognisance of terror activities in any part of India and register a case, to enter any state without permission from the state government, and to investigate and arrest people.

In its petition, the Chhattisgarh government said the Act is “ultra vires the Constitution” and “beyond the legislative competence of the Parliament”. According to the state, the 2008 Act allows the Centre to create an agency for investigation, which is a function of the state police.

‘Police’ is an entry in the State List of the Constitution’s 7th Schedule.

The petition says the 2008 Act takes away the state’s power of conducting an investigation through the police, while conferring “unfettered, discretionary and arbitrary powers” on the Centre. “The provisions of the Act leave no room of coordination and pre-condition of consent, in any form whatsoever, by the Central government from the State government which clearly repudiates the idea of state sovereignty as envisaged under the Constitution of India,” the petition states.

The state has also objected to the provisions of Sections 6(4), 6(6), 7, 8 and 10 of the Act. “…matters arising within the territorial jurisdiction of any State which are generally investigated by Police… the meaning and purpose of Entry – II, List- II of Schedule 7 has been rendered otiose,” the plaint reads.

The provisions of Sections 6 called into question read:

“6. Investigation of Scheduled Offences.—

(4) Where the Central Government is of the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.

(6) Where any direction has been given under sub-section (4) or sub-section (5), the State Government and any police officer of the State Government investigating the offence shall not proceed with the investigation and shall forthwith transmit the relevant documents and records to the Agency.”

Section 7: “Power to transfer investigation to State Government.—While investigating any offence under this Act, the Agency, having regard to the gravity of the offence and other relevant factors, may—

(a) if it is expedient to do so, request the State Government to associate itself with the investigation; or

(b) with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.”

Section 8: “Power to investigate connected offences.—While investigating any Scheduled Offence, the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence.”

Section 10: “Power of State Government to investigate Scheduled Offences.—Save as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offence or other offences under any law for the time being in force.”

Changes made to the NIA’s powers last year

The 2019 NIA Amendment Act expanded the type of offences that the investigative body could investigate and prosecute. The agency can now investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.

The amendment also enables the central government to designate sessions courts as special courts for NIA trials.

The Unlawful Activities (Prevention) Amendment (UAPA), also passed in 2019, allows an NIA officer to conduct raids, and seize properties that are suspected to be linked to terrorist activities without taking prior permission of the Director General of Police of a state. The investigating officer only requires sanction from the Director General of NIA.

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