The National Investigation Act, 2008, (NIA Act) takes away the power of state governments to investigate certain offences and confers unfettered, discretionary powers on the central government to investigate such offences, the Chhattisgarh government on Wednesday submitted before the Supreme Court in a plea challenging the validity of the NIA Act, which was drafted by the Congress-led UPA regime after the 26/11 Mumbai terror attacks.
P Chidambaram, who was brought in as home minister after the 2008 terror attacks, had pushed for the creation of NIA, India's first federal counterterror probe agency with powers to supersede the state police in the investigation and trial of terror-related offences.
The BJP government at the centre had amended the NIA Act in the 2019 monsoon session of the Parliament to make it more robust by empowering NIA to investigate offences committed outside India against Indians or affecting Indian interests.
Chhattisgarh, in its petition filed on January 11 through advocate Sumeer Sodhi, submitted that the act empowers the central government to create an agency for investigation of offences which have been categorised as scheduled offences under NIA Act.
The petition was filed under Article 131 of the Constitution, which empowers the Supreme Court to decide disputes between the Centre and states. The state of Kerala invoked the same Article to challenge the Citizenship (Amendment) Act, 2019, or CAA, earlier this week.
It is the case of the state that NIA is nothing but a "national police" for conducting investigation even though the subject matter of framing legislation relating to "police" is clearly a state subject as per entry 2 of state list of the Constitution. Law-and-order and police, Chhattisgarh pointed out, are subject matters which fall within the domain of the state government as per the constitution and the parliament is not authorised to enact laws on subjects which are within the exclusive domain of the state.
"The NIA Act empowers the Central government to create an agency for "investigation", which otherwise is being carried out through Police, which is a subject matter of the State under Entry - 2, List - II, Schedule 7, and therefore Parliament lacks legislative competence to enact the legislation on matters contained in List-II", the petition stated.
Further, the state submitted that there are no rules governing the exercise of powers under the act by the central government which gives ample discretion to the centre to interfere at any juncture without providing any reason or justification for the same.
"The scheme of the NIA Act is such that once brought in motion, it completely takes away the power of plaintiff 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 stated.
Moreover, the NIA Act, Chhattisgarh argued, does not have any provision for coordination between the Centre and state or any precondition of consent to be taken by the central government from the state government before commencing an investigation under the act.
The state, therefore, submitted that the Act is violative of the Constitution and goes against the federal spirit envisaged by the Constitution.
When the law came up for parliamentary approval, there were a few dissenting voices during the discussion.
Sitaram Yechury of the Communist Party of India (Marxist) had asked the government to make it mandatory to associate the state government in the investigation and trial of offences. But there wasn't much discussion around this and law was passed within four days of its introduction.
Several months later, P Chidambaram, the architect of the NIA Act, told the then FBI Director Robert Mueller - according to a leaked US Embassy cable - that the NIA's powers could be challenged in the courts for contravention of constitutional provisions on Centre-state relations. Chidambaram, according to the US Embassy cable accessed via WikiLeaks, had explained to Muller that India did not have the concept of federal crime since law and order was the responsibility of state governments.
The amendments introduced to the NIA Act in 2019 increased the scope of the act by making it applicable to offences committed outside India against Indian citizens or affecting Indian interests. The central government can direct the NIA to investigate such cases, as if the offence has been committed in India and a special court in New Delhi will have jurisdiction over such cases.
Further, the amendment also expanded the list of offences which the NIA would be empowered to investigate. Offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism and offenses related to Explosive Substances Act, 1908 were added to the list.
When the amendments to the act had come up for discussion before the Parilament, Home Minister Amit Shah had assured that the law will not be misused but will only be employed to fight terrorism.