On August 13, the National Investigation Agency moved captured terrorist Mohammad Naveed alias Usman to Delhi from Jammu & Kashmir. The NIA had registered an FIR and taken over the investigation soon after Naveed was caught — moving in even as the J&K Police were in the process of interrogating the Pakistani militant who had, along with a colleague, attacked a BSF convoy on the Jammu-Srinagar highway on August 5.
Does the NIA have jurisdiction to take suo motu cognizance of a terror-related case inside J&K? Or was it, as some in the state have argued, “yet another move by the Centre to breach the special status of J&K”?
J&K is different from other states in that laws enacted by Parliament, except those pertaining to defence, external affairs and communications, do not automatically become applicable to it. To get around J&K’s special status, the Centre introduced a mechanism in 1954, under which central laws can be extended to the state by a Presidential order, but which needs the concurrence of the state government to become applicable in the state.
The NIA Act is in the ambit of law and order, which is solely a state subject. J&K has its own penal code, the Ranbir Penal Code, and in September 2014, the NIA had sought “jurisdiction over terror-related cases in J&K that were registered under RPC” from the central government, because the IPC is not applicable to the state.
The agency had then asked the Centre to expand the list of scheduled offences to bring sections of the RPC that deal with usual anti-terror provisions like waging war against the country in its ambit, so that the NIA could take over the investigation into those cases.
Once the Udhampur attack took place, however, and a terrorist was caught alive, the NIA seems to have decided to jump in anyway.
The other view, which is also the official position of the PDP-BJP government, is that the NIA was constituted “to investigate and prosecute offences affecting the sovereignty, security and integrity of India” and “friendly relations with foreign states”, and can, therefore, operate in J&K as well.
Mohammad Ashraf Mir, the J&K law secretary, said, “The Centre doesn’t need concurrence from the state government for the applicability of this (NIA) Act. Under the Act, all scheduled offences come under the purview of NIA. In our Ranbir Penal Code, the Unlawful Activities (Prevention) Act is a scheduled offence and thus comes under the NIA Act.”
Voices within the state government that question the NIA’s jurisdiction, however, suggest that the words “including J&K” are always mentioned in a central Act whenever the government plans to extend it to the state. “It is the norm,” a J&K government official said. Officials also cite the examples of central laws TADA and POTA, which were made applicable to J&K only after the state government had given its consent.
The Udhampur case isn’t the first for NIA in J&K. The previous Omar Abdullah government had given its consent to the transfer of the investigation of a militancy-related case to the NIA. This time, however, no formal consent was sought or given.
Under the NIA Act, 2008, the agency can take over a case in two ways. Once a scheduled offence is committed, the officer in-charge of the police station “shall forward the report to the state government”, which “shall forward it to the Central government”, which will determine whether the offence is a “fit case for investigation by the Agency”.
However, the central government may determine a case is fit for investigation the NIA if it receives “information from other sources”. The Act also allows the NIA to take suo motu cognizance of a case “if the Central Government is of the opinion that a Scheduled Offence has been committed which is required to be investigated under this Act”.
The Act prohibits the state police from continuing investigations once the NIA has taken over the case, and it must “transmit the relevant documents and records to the Agency”. The NIA chief has powers “exercisable by a Director-General of Police in respect of the police force in a State”, and officials of the agency have unbridled powers to arrest and detain suspects in the state.
There is a political reason why the central government did not seek the consent of the state government before letting the NIA take over the Udhampur case.
In J&K, the NIA’s entry is widely seen as an attempt by the BJP-led Centre to undermine the special status of the state, and to make Article 370 irrelevant. While an investigation by the NIA suits the BJP, the PDP cannot afford to be seen as being party to this decision. The Mufti Mohammad Sayeed government is already facing flak for making U-turns, allegedly under BJP pressure, on several sensitive issues, such as upholding the sanctity of J&K separate flag, the withdrawal of Armed Forces Special Powers Act, and the release of political prisoners. An organisation linked to the RSS has challenged the state’s Permanent Resident law in the Supreme Court.
The J&K Police believes the NIA’s entry in the Udhampur case sets a precedent that will “substantially curtail” its role in “anti-militancy operations”, and might be seen as an adverse comment on its capabilities.
“This was not the first time that a Pakistani militant was arrested in J&K. A big deal was made of it because of the larger political climate,” a senior J&K Police officer said. “Now that the state and central governments have decided to let the NIA in, things will be different. Most cases with us are militancy-related, which means NIA can pick and choose whatever they want. Why would our officers want to investigate a case knowing that it can be taken over by the NIA?”
The likely cherrypicking by the central agency is in fact a widespread concern in J&K. A senior police officer in the state wondered why the NIA did not take over the 2004 mosque attack in Jammu even after its own investigation found fresh evidence.
“There are frequent reports that the NIA is going slow on a particular set of cases,” the officer said, adding that that had “substantially harmed” the agency’s reputation for being impartial. NIA involvement in militancy-related cases in J&K, according to the officer, “will always be read in a particular way in the state, not only by the common people but much of the J&K police as well”.