Tag: NIA Act

Explainer: Here’s How Handing Over UAPA Cases to NIA Affects the Federal System

The framers of the constitution had ensured that state governments have the first rights to investigate an offence within a state’s limits.

The controversy over the decision of the Central government to hand over the Bhima Koregaon case to the National Investigation Agency (NIA) is the newest of its kind.

The issue is whether our constitution provides unbridled power to the Central government to form a central police and thus reroute the investigation of offences occurring within the territory of a state government to said central police.

The NIA was constituted by the NIA Act, 2008 for the investigation and prosecution of offences affecting the national security, sovereignty and integrity of the nation.

The Agency became well-known for investigation of offences under the Unlawful Activities (Prevention) Act, 1967, known countrywide as the law to tackle terrorism.

UAPA is one of the Acts that were added to the schedule of the NIA Act. The Agency is given pan India jurisdiction to investigate offences covered in the Acts.

Opinions differ among the jurists and politicians over whether it is permissible to pass a legislation authorising the Central government the decision of entrusting the investigation of offences to any agency without the consent of the state government.

This is because, constitutionally, it is considered that public order and policing are matters of the state government. In the case of criminal law and criminal procedure, both the governments enjoy simultaneous powers.  

Investigations rerouted through NIA

Section 6 of the NIA Act empowers the Central government to usurp an investigation.

It stipulates that whenever a case of scheduled offences is registered at any police station in India, the officer-in-charge of the police station shall forward the report to the state government. That state, in turn, will forward it expeditiously to the Central government and within 15 days from the date of receipt of it, the latter shall determine, on the basis of information made available by the former or received from other sources, whether the offence is a scheduled offence or not. It also has to determine whether it is a case fit to be investigated by the Agency.

If the Central government is of the opinion that it is to be investigated by the Agency, it shall direct the Agency to conduct the investigation. This apart, in any case, if the Central government is of the opinion that a scheduled offence has been committed which is required to be investigated under the NIA Act, it may suo motu direct the Agency to investigate it.

Representative image. Photo: PTI

Once the Central government has taken the decision, the state government and its police officers investigating the offence shall then transmit relevant documents and records to the Agency without proceeding further.

Till the Agency takes up the investigation, it shall be the duty of the officer-in-charge of the police station to continue the investigation. Of offences to which the NIA Act extends and which are committed outside India, the Central government may direct the Agency to register the case and take up investigation in a manner as if such offence has been committed in India. 

From this, it is apparent that the state governments have no say if the Central government decides to get the cases investigated by the NIA.

How legal is this?

Federal system and the separation of powers

The federal system of governance has been evolved to bind the country into one political union of several autonomous, distinct, separate and disparate political entities or administrative units.

The distribution of legislative powers between the Centre and the states is the most important characteristic, rather the core, of any federal system. This essential feature of the federal system is discernible from the three lists: the Union List, State List and the Concurrent List that come under Seventh Schedule of the Constitution. It is needless to say that encroaching into the dominion allotted to one by the other would affect the smooth functioning of the federal system.   

Also read: Between the NIA Amendment and Now UAPA, the Squeeze on Human Rights is On     

When it came to investigation of offences committed in a state, it was held by the Supreme Court that keeping in view the various entries contained in List I of the Seventh Schedule of the Constitution, there cannot be any doubt whatsoever that in such cases, the jurisdiction of the Central government is excluded.  

NIA Act’s constitutional validity

The constitutional validity of the NIA Act has been challenged before the Bombay high court in Pragyasingh Thakur vs. State of Maharashtra, ATS, Mumbai, UoI and NIA. The case contended that the parliament lacks competency to constitute an agency for the investigation of offences as policing stands in the State List of the Seventh Schedule to the constitution.

The court rejected the contention by noting the entries in List-I and in List-III and by reading them together. It came to the conclusion that the parliament is competent to enact the NIA Act.

The court also said it is equally competent to create an agency for the investigation of the offences specified in it. Another aspect considered by the court was the Entry 8 of List I (Union List) entitled as “Central Bureau of Intelligence and Investigation”.

It was observed that if such a Central Bureau of Intelligence and Investigation could be set up by the parliament, then, the powers could not be restricted when it decides to enact a legislation so as to constitute an investigating agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of states, friendly relations with foreign states, etc.

In addition to this, the court said that even if it is assumed that the state has power to make a law in relation to police, still going by the wide wording of Entry-1 and Entry-2 of List-III, the Concurrent List, it is clear that the parliament is competent to enact the NIA Act, 2008. 

Allegations of political affability

To its shame, the NIA, though it is in its springtime still, has already invited allegations of political partiality.

The first shocking revelation was made by its own Special Public Prosecutor Rohini Salian. She had appeared in the 2008 Malegaon blast case involving Hindu extremists. On June 25, 2016, she said that the Agency told her to go soft in the case after the new government took over at the Centre.

Nine persons including Sadhvi Pargya Lt Col Purohit are still facing charges under the IPC and unlawful activities Act. Credit: PTI

Nine persons including Sadhvi Pargya Lt Col Purohit are still facing charges under the IPC and unlawful activities Act. Photo: PTI

In another case, in which persons having strong connection with RSS were the accused (Ajmir Dargah bomb blast case), when most of the key accused were acquitted, Scroll.in had reported that its public prosecutor in this case too had expressed disappointment with the lack of interest shown by the NIA during the trial.

In other cases like Samjhauta Express bomb blast case and Hyderabad Mecca Masjid blast Case also the conduct of NIA has been doubtful.

It is not out of place to note that several state investigating agencies and the CBI have investigated terror related cases in an intelligent manner. Though it was before the formation of NIA, the investigation of Bombay attack (Ajmal Kasab’s case) and the parliament attack cases were done by state investigating agencies. 

National security

All the offences coming under the schedule to the NIA Act are offences pertaining to national security.

The argument is perhaps that unless there is a centrally constituted agency for the investigation of such offences the real goal cannot be accomplished. The investigation of offences and prosecution of the accused in such cases serves to punish the guilty no matter who the agency investigating the case is.

It cannot be assumed that the police officers of the state are not adept in investigation. The primary presumption must be that the state governments will not have any interest against the larger interest of the nation.

Scope to question NIA’s constitutional validity

Even though the Bombay High Court held the NIA Act constitutionally valid, the court did not say in clear terms that the parliament alone has the power to constitute an agency for the investigation of the offences covered in the schedule to the NIA Act.

The court was of the opinion that both the state legislature and the parliament has the power to legislate, as this concerns criminal procedure.

As per the Code of Criminal Procedure, 1973, the power to investigate into an offence is vested with the station house officer to whom the information regarding the commission of a cognisable offence is reported. And, in either case, whether it is a cognisable or non-cognisable case, if the information is given to such officer, it is his duty to enter it into a register prescribed by the state government (Section 154 and 155 of the Code).

Thus it is clear that the power to investigate the offence stands in the realm of the state government, though the power to enact the law relating to criminal procedure comes under the Concurrent List. If at all the parliament enacts a procedural law, it can only vest the power to investigate crimes with the state government. 

The constituent assembly, in one of its meetings. Photo: Journal of Indian Law and Society/The Wire

The Bombay high court has emphasised on Entry 8 of Union List, titled “Central Bureau of Intelligence and Investigation”. The Constituent Assembly Debates would show that by making such an entry the framers of the constitution did not intend to give powers to the Central government for investigating crimes. On August 29, 1949, there was a heated discussion on this particular entry in the assembly. The original Entry was “Central Intelligence Bureau”. When it was proposed to make it as it stands now, there were objections. Dr. B.R. Ambedkar said on this proposal: 

“The idea is this that at the Union office there should be a sort of Bureau which will collect all information with regard to any kind of crime that is being committed by people throughout the territory of India and also make an investigation as to whether the information that has been supplied to them is correct or not and thereby be able to inform the Provincial Government as to what is going on in the different parts of’ India so that they might themselves be in a position to exercise their Police powers in a much better manner than they might be able to do otherwise and in the absence of such information.”

There were discussions. One of the members, inter alia, pointed out that the members have already conceded to the idea that the investigation of crime is a provincial subject and therefore, if the assembly now allow the Central government also to investigate, the result would be that for a single crime there must be two parallel investigations. The members demanded to delete the word ‘and investigation’ from the Entry. Then, summing up the discussion, Dr. B. R. Ambedkar said: 

The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that’ matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word “investigation” therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the, Criminal Procedure Code can do. 

From the above, two aspects are clear. The mandate of the constitution is not to give power of investigation of offence to the Centre. The framers might have considered that in a federal system, giving power of investigation into offences to the Centre may affect adversely the relation between the Central and the state governments. In this regard, it is worth noting that the investigations conducted by the CBI within the state territories are only with the consent of those governments as provided in section 6 of the Delhi Police Establishment Act, barring exceptions by the orders of the constitutional courts. 

Notably, the officers of the NIA are given power to investigate offences, and hence carry out police functions. In view of Entry No. 2 in List II, there is no scope for the establishment of police by the Centre, except as provided in Entry No. 2A of List I. 

NIA Act in states

The state governments should be at liberty to amend the NIA Act to water it down so that the Centre’s consent is taken before switching the investigation of offences over to the NIA.

Naturally, if such an amendment creates any conundrum that goes against the original enactment made by the parliament, it may necessitate the assent of the President, as envisaged in Article 254 (2).

State legislatures enjoy such a power, I believe. Unless the state governments get a right of audience over the issue, in the long run, the federal system of governance of our nation will be badly affected.

Abdul Khader Kunju S is assistant public prosecutor, Alappuzha, and former public prosecutor to the NIA.

‘Centre’s Decision to Hand Bhima Koregaon to NIA Unconstitutional’: Maha Home Minister

The case was taken over by the NIA while the state government was in the process of forming a special investigation team to take another look at the Pune police’s investigation.

Mumbai: Crushing any hope that the Maharashtra state government may release the rights activists and lawyers implicated in the 2018 Bhima Koregaon case, the Ministry of Home Affairs on Friday abruptly decided to hand the investigations over to the National Investigation Agency (NIA). The NIA Act allows the department to take over any investigations related to “scheduled offences” and the state has little role to play, leave alone decline permission.

On January 22, Maharashtra home minister Anil Deshmukh and deputy chief minister Ajit Pawar met the Pune police and the state intelligence officials for a review meeting on the case. Soon after the meeting, Deshmukh announced that by the next week, his department would take a decision on whether a Special Investigation Team (SIT) needs to be constituted to look into the investigation.

But even before the state could act upon its announcement, the Union home ministry decided to take the case away from the Maharashtra police. Nine activists and lawyers have been languishing in jail since June 2018 over allegations of being active members of the “urban Naxal” movement.

The Pune police had claimed that the accused had conspired and instigated the gathering at Bhima Koregaon, 30 kilometres off Pune city, which had led to violence. Several others, including professor Anand Teltumbde, right activist Gautam Navalakha, cultural activists from Kabir Kala Manch have been named in the earlier FIR and are yet to be arrested.

Those arrested include Sudhir Dhawale, a writer and Mumbai-based Dalit rights activist, Surendra Gadling, a UAPA expert and lawyer from Nagpur, Mahesh Raut, a young activist on displacement issues from Gadchiroli, Shoma Sen, a university professor and head of the English literature department at Nagpur University, Rona Wilson, a Delhi-based prisoners’ rights activist, advocate Arun Ferreira, advocate Sudha Bharadwaj, writer Varavara Rao and Vernon Gonsalves. While the first five were arrested on June 6, others’ arrests followed.

Top row (from left): Sudhir Dhawale, Surendra Gadling, Mahesh Raut; Middle row: Shoma Sen, Vernon Gonsalves, Varavara Row; Bottom row: Sudha Bharadwaj, Arun Ferreira and Rona Wilson

According to the Pune police’s investigation, led by ACP Shivaji Pawar, the accused hatched a conspiracy to assassinate prime minister Narendra Modi in a “Rajiv Gandhi style execution”. This, the police had claimed on the basis of one letter allegedly found on the computer of one of the arrested persons.

Also Read: The People’s Fighters: Meet the Five Arrested in the Bhima Koregaon Case

In November, soon after the tri-party government comprising the Shiv Sena, Nationalist Congress Party (NCP) and the Congress took over, they have on several occasions hinted at the possibility of revisiting the investigation into the case. During the winter assembly session, NCP leader and state cabinet minister for housing Jitendra Awhad had accused the former BJP government, led by Devendra Fadnavis, of wrongly targeting rights activists and falsely branding them as “urban Naxals”. Within weeks, NCP chief Sharad Pawar too spoke in favour of those arrested and demanded a fresh probe.

Early this month, Pawar sent two separate letters to the home department seeking the formation of an SIT. The Centre, however, decided to strike back before the state could react.

The NIA, unlike other investigative agencies, doesn’t need sanction from the state government. While the Act allows the involvement of the state government in the investigation, this decision is entirely dependent on the centre.

“Centre’s decision is unconstitutional”

As soon as news about the probe being handed over to the NIA broke, several NCP and Congress leaders in Maharashtra called the decision “unconstitutional”. State home minister Anil Deshmukh who was on his way to Gondia stopped by to call an urgent press briefing, where he said that the Centre has acted in an arbitrary manner.

“Right when the state government decided to go to the root of the matter, the Centre decided to step in,” he said. “It is wrong for the Centre to go ahead and take over a state-led investigation without keeping them (the state government) in the loop, leave alone taking their permission,” he further added.


Awhad claimed that the Centre’s decision is a direct attack on the Constitution. “It is a direct attack on the constitution, the federal structure and the autonomy of the state,” he said.

Speaking to media in Mumbai on Saturday, NCP chief Sharad Pawar said, “The state has all the right to probe this matter. What was the reason to transfer the case in haste? They were afraid that the truth will come out.”

NCP spokesperson Mahesh Tapase asked, “What is the BJP afraid of? Why have they suddenly lost faith in the Maharashtra Police?”

Revenue minister and senior Congress leader Balasaheb Thorat tweeted that the state government was not consulted before the decision. “Without consulting the Maharashtra government, the decision of the Central Government, abruptly handing over the Bhima Koregaon case to the NIA is unconstitutional and against the federal structure of the Union of India. We strongly condemn it,” he said.

Nihalsing Rathod, defence lawyer in the case, said that the Pune police have held the nine arrested activists for over 18 months. “The chargesheet relies heavily on digital evidence, which has not been made available to them till date. The defence lawyers and the media, in their independent investigations, have clearly established a pattern of lies weaved to keep the arrested activists in custody,” he said.

When the new state government was showing signs of having another look at at the case, the BJP is attempting to suppress the truth and “directly meddle into the state’s investigation”, he said. Rathod called the move “a direct attack on the Constitution and the federal structure”.

Multiple Discrepancies

There have been several apparent inconsistencies and discrepancies in the Pune police’s investigation. The Wire on December 21, had published a detailed report on several anomalies in the evidence that the Pune police have relied upon. There are several obvious instances of digital tampering in the purported evidence gathered from the computers and hard disks of two of the prime accused, Gadling and Wilson.

Also Read: Bhima Koregaon: Amid Demands For Fresh Probe, A Hard Look at the Case’s Discrepancies

The National Investigation Act was brought in by the Congress-led UPA government in 2008, after the 26/11 Mumbai terror attack. Though the agency was set up to look into terror cases, it has been accused of being misused by the Central government for political gains.

On January 15, the state of Chhattisgarh filed a suit in the Supreme Court challenging the constitutional validity of the NIA Act.

Chhattisgarh Believes the NIA Act Is Unconstitutional. Here’s Why

The petition says that the Act is overreaching because it empowers the Centre to create an agency for ‘investigation’, which is a subject matter of the state.

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.

Chhattisgarh Files Suit Against Centre in Supreme Court Challenging NIA Act

Chhattisgarh has a Congress government at the moment – and it was the Congress-led UPA that had passed this Act after the 26/11 Mumbai attacks. 

New Delhi: The state of Chhattisgarh has filed a suit against the Central government in the Supreme Court, challenging the constitutional validity of the National Investigation Act, 2008. Chhattisgarh has a Congress government at the moment – and it was the Congress-led UPA that had passed this Act after the 26/11 Mumbai attacks.

This is the second time in two days that a state has filed a suit against a Central law. On Tuesday, Kerala challenged the validity of the Citizenship (Amendment) Act, 2019 in the Supreme Court.

Like Kerala, Chhattisgarh has filed its suit under Article 131 of the constitution. Article 131 gives the Supreme Court jurisdiction in disputes between one or more states and the Central government. Also similar to Kerala, Chhattisgarh has referred to the Supreme Court judgment in State of Jharkhand vs State of Bihar and Another (2015) to justify the suit’s maintainability.

Also read: Between the NIA Amendment and Now UAPA, the Squeeze on Human Rights is On

According to LiveLaw, Chhattisgarh has argued that the NIA Act is beyond “legislative competence of the Parliament” and is against the “federal spirit” of the Constitution. Since police is a state subject, the Centre cannot be given police powers, the plaint says.

Chhattisgarh has said:

“A holistic appreciation of the fact that “Police” was placed under List- II as the subject matter of State, with power to investigate, and equally significant fact that no such entry of “Police” or even any incidental or ancillary entry was provided in List 1 i.e., Centre List suggests that the framing of a legislation such as NIA Act by the 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.”

The provisions of the Act go against state sovereignty, Chhattisgarh has argued. It is “also contrary to the constitutional scheme of distribution of power, as enumerated under Schedule 7, since the matters arising within the territorial jurisdiction of any State which are generally investigated by Police, has been taken away and the meaning and purpose of Entry – II, List- II of Schedule 7 has been rendered otiose”.

The state has asked the Supreme Court to either declare the Act unconstitutional, or say that Sections 6, 7, 8 and 10 of the Act are ultra vires.

Wikileaks revelations

The 2008 legislation was pushed through by then home minister P. Chidambaram, and created the country’s first Central counter-terror probe agency. The NIA has powers to supersede state police during the investigation and trial of terror-related offences. The law was passed within four days of being introduced in parliament, and critics then, including CPI(M) chief Sitaram Yechury, had argued that states needed to be involved in the investigation and trial of terror offences.

Also read: With NIA Taking Control of Cases in Kashmir, Local Police Senses Lack of Trust

The Central government knew that the law may be challenged in the courts. A Wikileaks cable revealed that Chidambaram told US Federal Bureau of Investigation director Robert Mueller on March 3, 2009 (months after the Act was passed) that the Centre was coming “perilously close to crossing constitutional limits” in empowering the NIA.

Chidambaram also called the NIA a new weapon to combat terrorism. “[Chidambaram] opined that the NIA law would be challenged in court because it ascribes certain investigating powers to the NIA which may be seen to conflict with responsibility that is exclusively with the states,” the leaked note says.