Two petitions pending in the Bilaspur high court have prompted the state of Chhattisgarh to approach the Supreme Court under Article 131 to declare that the NIA Act 2008 ultra vires the constitution. Peculiarly, the NIA Act was enacted by the UPA government and is now being challenged by the Congress.
The NIA has refused to accept the investigation by the state police in the murder of BJP MLA Bhima Mandavi, which has apprehended the accused and filed a chargesheet.
The NIA has also completed its investigation in the Jeeram case, where several senior Congress leaders including V.C. Shukla, Nand Kumar Patel and Mahendra Karma had been killed, but has refused to share the details with the state government despite repeated requests.
In the first instance, an affected party has challenged the existence and interference of NIA in the matter and in the second case, a PIL has been filed seeking the declaration of NIA Act as ultra vires the constitution on similar grounds of policing being a state subject.
Now comes the challenge by the state under Article 131 in the apex court.
The petition says that the Act “is beyond the legislative competence of Parliament since it empowers the Centre to create an agency for ‘investigation’, which, notwithstanding the NIA, is carried out by the state police, which is a subject matter of the state under Entry 2, List II, Schedule 7”. List II is the list of state subjects.
Also read: What Is Article 131, Under Which Kerala Has Challenged CAA?
Further, “no such entry of ‘police’ or even any incidental or ancillary entry was provided in List I ( Central List) which suggests that the framing of a legislation such as NIA Act by 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”.
Also, the NIA Act “confers unfettered discretionary and arbitrary powers on the defendant” to act “without providing any reason or justification” because it has no rules governing the Centre’s exercise of that power.
Vivek Tankha who has filed the petition on behalf of the state government said:
“The petition is a natural corollary or outcome of the petitions pending in the Bilaspur HC. The state is supporting the petitions but a wider issue could only be addressed by the Supreme Court.”
It must be noted here that the NIA has stated in the high court that it is well within its rights to refuse to share the details of its investigations and also investigate any case that it wants anywhere in the country.
Congress general secretary and state in-charge P.L. Punia has said that the amendment enacted last year by the NDA government has made the Act autocratic and completely out of the original shape that it was envisaged for. The amendment has left no room for coordination or for the Centre to seek prior consent from the state, which violates the constitutional idea of the states’ sovereignty. Even the Delhi Police Act, under which the CBI operates, makes it mandatory for the Centre to seek prior consent from the state government. The Bhupesh Baghel government has already withdrawn blanket permission for the CBI to operate in the state.
Chhattisgarh has thus become the second state this week after Kerala to use Article 131 pertaining to central-state relations to challenge a legislation by the Centre. While the CAA may still technically be within the Union list, on NIA and policing, the state of Chhattisgarh is likely to be on surer grounds.