National Investigation Act, 2008

Syllabus subtopic: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

Prelims and Mains focus: about the concerns raised against the NIA act; About Article 131; about NIA: vision and mission

News: A day after Kerala invoked Article 131 of the Constitution to challenge the Citizenship (Amendment) Act in the Supreme Court, the Congress government of Chhattisgarh too cited the same provision to move the top court, challenging the Constitutional validity of the National Investigation Act, 2008.

Background

• Incidentally, the Congress-led UPA was in power at the Centre when the law was enacted by Parliament.
• In January 2019, a month after the Congress came to power in the state after 15 years of BJP rule, it withdrew the general consent granted to the CBI for investigation in the state.

Why is the Chattisgarh govt. against the NIA Act?

• The decision to file the case was taken by the government after reviewing several cases in the state. There are a list of 59 cases that the NIA could have taken up. They also had Naxal involvement and many people died in them. Yet, there was selective picking of cases.
• The state government has already had its fair share of disagreements with the NIA. The agency had been investigating the Jhiram Ghati massacre in which several senior Congress leaders were killed by Naxals in an ambush. While NIA found no foul play, the state government formed an SIT and asked the NIA to share their investigation, which they haven’t yet.

What does the Chattisgarh govt.’s petition contend?

• The Chhattisgarh government’s petition, citing Article 131, contends that the NIA Act is ultra vires the Constitution and beyond the legislative competence of Parliament since the Act empowers the Centre to create an agency for “investigation” which, notwithstanding the NIA, is carried out by the State Police, a subject matter of the State under Entry 2, List II, Schedule 7.

• It said the NIA Act, in its present form, not only takes away the state’s power of conducting investigation through police but also confers unfettered discretionary and arbitrary powers on the Centre. There are no rules governing the exercise of power which, it said, gives ample discretion to the defendant to exercise its power at any juncture without providing any reason or justification for the same.

• It said 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.

• It said the scheme of NIA Act is such that once brought in motion, it completely takes away the power of a State to investigate the offences which have been categorised as scheduled offence under the NIA Act and which has been committed within the jurisdiction of the State.

• The petition said that its enactment by Parliament and creation of an “investigative” agency, namely the National Investigation Agency, for investigating the scheduled offences committed in any particular State, is clearly an act of colourable legislation. Incidentally, the Kerala petition against the validity of the CAA also calls it a colourable legislation.

• By way of the Act, Parliament has effectively created a ‘National Police’ which, in cases of investigation of scheduled offences, will have overriding control over the State Police and its investigation which is contrary to the scheme and intention of Distribution of Power as provided in Schedule 7 of the Constitution of India.

What does Article 131 of Constitution of India say?

Article 131 of the Constitution states “subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute

(1) between the Government of India and one or more States; or

(2) between the Government of India and any State or States on one side and one or more other States on the other; or

(3) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute”.

About National Investigation Agency (NIA)

• The National Investigation Agency (NIA) was set up in 2009 under the NIA Act, 2008.
• It was set up in the wake of the Mumbai terror attack.
• At present, NIA is functioning as the Central Counter Terrorism Law Enforcement Agency in India.

Vision

The National Investigation Agency aims to be a thoroughly professional investigative agency matching the best international standards. The NIA aims to set the standards of excellence in counter terrorism and other national security related investigations at the national level by developing into a highly trained, partnership oriented workforce. NIA aims at creating deterrence for existing and potential terrorist groups/individuals. It aims to develop as a storehouse of all terrorist related information.

Mission

• In-depth professional investigation of scheduled offences using the latest scientific methods of investigation and setting up such standards as to ensure that all cases entrusted to the NIA are detected.
• Ensuring effective and speedy trial.
• Developing into a thoroughly professional, result oriented organization, upholding the constitution of India and Laws of the Land giving prime importance to the protection of Human Rights and dignity of the individual.
• Developing a professional work force through regular training and exposure to the best practices and procedures.
• Displaying scientific temper and progressive spirit while discharging the duties assigned.
• Inducting modern methods and latest technology in every sphere of activities of the agency.
• Maintaining professional and cordial relations with the governments of States and Union Territories and other law enforcement agencies in compliance of the legal provisions of the NIA Act.
• Assist all States and other investigating agencies in investigation of terrorist cases.
• Build a data base on all terrorist related information and share the data base available with the States and other agencies.
• Study and analyse laws relating to terrorism in other countries and regularly evaluate the adequacy of existing laws in India and propose changes as and when necessary.
• To win the confidence of the citizens of India through selfless and fearless endeavours.