“There is a lack of independence in how these agencies function and whether they can carry out an investigation in a fair manner, without acting like a puppet of the government,” a lawyer says.

Representative image of NIA officials with the Indian Parliament in the background
news Cooperative Federalism Saturday, September 04, 2021 - 11:13

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It was February 2020. Sharad Pawar, the chief of the Nationalist Congress Party, one of the parties part of the Maharashtra Vikas Aghadi-ruled Maharashtra government, was unhappy with the Chief Minister and alliance partner Shiv Sena chief Uddhav Thackeray. After publicly condemning the Union government’s move to transfer the 2018 Elgar Parishad case in Pune’s Bhima Koregaon to the National Investigation Agency, the Maharashtra government said it did not have an objection to the NIA taking over from Pune police, which had been probing the case so far. “It was not right for the Centre to hand over the investigation into the case to the NIA,” Pawar had said then. “The Maharashtra government should not have supported the Centre's move.” 

Two years ago, this transfer would need a lot more procedures. The National Investigation Agency (NIA) was authorised only to probe a certain kind of cases, and that too, they could probe organisations that they felt were engaged in terrorist activities. But since 2019, India’s premier investigative agency is getting more powers to probe a wide range of criminal offences, much beyond the ambit of why the agency was set up in the first place.

Inception and amendment

In 2008, in the aftermath of the 26/11 Mumbai terror attacks, political parties in India came to a consensus — India needed a better investigative agency, more powerful, more thorough than the Central Bureau of Investigation, to probe such terror attacks. Through the then Home Minister P Chidambaram, the Union government led by UPA-I introduced an Act and thus was born the National Investigation Agency, a premier counter-terrorism task force, which would assist the state police in investigations. 

The National Investigation Agency (NIA) was formed under the NIA Act, which gives powers to the central agency to take suo motu cognizance of terror activities across the country. However, since then, the scope of the NIA Act has widened — specifically in 2019, when the Union government introduced the NIA (Amendment) Bill.

The NIA (Amendment) Bill of 2019 was passed by both Lok Sabha and Rajya Sabha. It widened the ambit of the NIA Act and also allowed the NIA to prosecute more kinds of offences, including those committed outside the country. In addition to terrorism cases, the NIA could now probe cases of human trafficking, offences related to counterfeit currency or bank notes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.

Independence and powers

Advocate Abishek Jeyaraj tells TNM that there are some fundamental problems with NIA, much like the other probe agencies at the Union government level. “One, there is a lack of independence in how these agencies function and whether they can carry out an investigation in a fair manner, without acting like a puppet of the government. The NIA is involved in cases like the Bhima Koregaon one and one wonders the fairness of the probe in these things and whether they are being misused,” Abishek says. 

Expansion of powers

Through the 2019 amendment, three major changes were brought about to the NIA Act. First was that the officers under the NIA can now probe accused persons — not just organisations — who commit an offence under the charges mentioned, or is “against the Indian citizens or affecting the interest of India.” The amendment also allows the NIA to probe accused persons outside of India (subject to international treaties and domestic laws), and NIA officials will have the same powers as other state police officers. The stringent and draconian Unlawful Activities Prevention Act (UAPA) was also added to the offenses that NIA can probe and the UAPA itself was amended, to allow the NIA to swoop down upon individuals — even if they have no criminal antecedents — and raid their properties and arrest them. Moreover, the Act allows Union government to set up special courts for trials of cases registered under the NIA Act. 

The danger of such an expansive law, Abishek says, is that there may be a lack of public confidence in the fact that the NIA has the power to probe a wide array of cases. “NIA's powers without checks and balances is a very, very dangerous thing. You can really use the NIA as a weapon against people who do not have any criminal antecedents, or to clamp down on dissent. And when we speak of dissent, this includes dissent by citizens and also political dissent. Where a regional party raises its voice, we see NIA being misused,” points out Abishek. 

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This, experts point out, has been happening often across the so-called central agencies. There have been multiple instances in the past few years where agencies liked the Income Tax Department, the CBI, the Enforcement Directorate, and more recently, the Narcotics Control Bureau, have been roped in to either probe sensational cases that have grabbed media attention, or to target political leaders, journalists, or activists who point out lapses in the Union government’s functionings. 

“The more powers you give to an agency without checks and balances, and if the powers are expanded too much, you become a Putin rogue state,” Abishek adds.

Delineation of states’ powers to probe offences

Over the past few years, state governments in India, particularly non-BJP ones, have raised objections that their right to self-govern is being infringed upon, especially in matters of health, finance, and law and order. The opposition has been up in arms since 2019, when the amendment was brought in, saying that the NIA now infringes into the rights and functions of the state police. In 2019, shortly after the amendment was passed, the Congress-led Chhattisgarh government expressed extreme displeasure with the original Act itself. It approached the Supreme Court with a plea asking for it to be struck down. Chhattisgarh claimed that the NIA Act in itself was violative of the Constitution. In its civil suit, the government told the Supreme Court that the NIA should not have powers over state policing matters. Chhattisgarh’s petition also mentioned that the Act conferred “unfettered, discretionary and arbitrary powers” on the Union Government. 

Former CBI Joint Director VV Lakshminarayana however feels that the Union government does not infringe upon the rights of the state, as each of the agencies have their own legal positioning. “If you see the legal position, for the CBI to function in a particular state, the consent of the state is required. Many states have not given their consent and this is part of the right of the state. As far as the NIA Act is concerned, the states have no right to stall the NIA proceedings. The statute itself was made with the consent of the states. The NIA Act clearly mentions the type of cases that fall under their ambit. In both the CBI and the NIA, the federal structure is maintained and there is no turf war between the Union government and the state.” 

While the CBI and the NIA are both central probe agencies, one main difference between the two is that the CBI needs consent from states to begin an investigation within their borders, whereas the NIA can enter any state without permission from the state government and has the right to investigate and arrest people from across the country. Last year, around eight states withdrew general consent to the CBI, which meant the agency needed prior permission from the state government to probe any case that falls under the jurisdiction of the state. 

Technically, Constitution expert Subash Kashyap explains that Article 256 and 257 of the Indian Constitution empower the government of India to issue directions to states, and states are obligated to follow them and comply with the laws the Union introduces. Article 365 of the Constitution says if directions are not carried out, it would mean the state is not working in accordance with the Constitution and certain consequences will follow, like the Union government can impose President’s Rule under Article 356. In addition to these, Article 355 has empowered the Union government to maintain internal peace in all these states and protect states against “external aggression and internal disturbance.” So technically, the Union government is empowered to take action and the states must follow. If the Union government decides that a particular case has to be transferred to the NIA, there’s not much states can do, other than perhaps challenge the move in courts.

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But it is not that simple, says advocate Abishek. “See, if something has to be probed in a fair manner, then one should also like to do it in a way that respects the states' rights. Law and order is on the State List. There is a judgment by the Supreme Court on when a state refused to give consent to the CBI to conduct a probe, the Supreme Court said that it can intervene and adjudicate any dispute that occurs. However, what happens often is that states do not end up going to court and they can't do so for all disputes. It is perhaps time to revisit what are the boundaries under which states should use these agencies, but at the same time do it in a manner that respects states’ rights,” he says. 

Noel Swaranjit Sen, former Director-General of Police of undivided Andhra Pradesh tells TNM that in 2008, two years after he retired, he was part of a high-powered committee set up in 2008 to oversee security as well as state and Union government relations. The original NIA Act was referred to this committee for scrutiny before it was introduced. 

He says the glory days of all the Union investigation agencies was when there was no political interference whatsoever. “NIA was meant for anti-terror. That is what it was designed for. Today, it is all a matter of convenience. If there is a particular issue against the Centre, if it suits the state, they will keep quiet, otherwise they will raise a hue and cry about the same,” added the former top cop. 

Highlighting what Abishek pointed about independence, Sen says that NIA has often bowed down to political pressure, and has not remained the independent agency it was created to be. Not just NIA, he says, other central agencies have also gone down a similar path.

“The top bosses of all the central agencies used to be persons who have got experience of the organisation and who have a very clear and good record of service without any political leanings,” he says. “Today, all these organisations have been sold out by the political bosses from the government in power. This is a big shame in a democracy like ours,” he says.

“Over time, there has been a change. We are never going to arrive at the absolute truth. People were posted to head organisations based on merits and suitability, that is not the case now. This leads to a peculiar situation where even the best organisations of the government cannot be relied upon for their investigation. Unfortunately, even the judiciary is totally in the pockets of the political bosses. How can one expect justice in democracy?” Sen adds.

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