Critically Analyzing the legitimacy of powers of National Investigation Agency

Abstract

Terrorism refers to creating a general atmosphere of fear in a nation through the systematic use of violence to promote any particular political objective. It has been practiced by political organizations with both rightist and leftist objectives, by nationalistic and religious groups, by revolutionaries, and even by state institutions such as armies, intelligence services, and police. The basic characteristics of an act of terrorism require an action to be violent or threaten violence. 

The National Investigation Agency Act was passed in 2008 to establish a Central Counter-Terrorism Law Enforcement Agency. This agency deals with terrorism and related crimes across the country without any special authorization from the states. Various other laws have been passed since 1967 such as the Unlawful Activities Prevention Act mention year, The Criminal Law (Amendment) Act, 1972 etc. which acted as a watchdog and kept a check on terrorism. In the status quo with the development of weapons and technology, unlawful activities pose a threat to the nation. 

Although the NIA Act provides for a comparatively straightforward procedure for the investigation of terrorism and related activities, it is considered that it is not given the necessary powers to prevent the enumerated offences.  Hence India recently passed the National Investigation Agency Amendment Bill 2019 and Unlawful Activities (Prevention) Amendment Bill, 2019 with changes which cater to the needs of the present. The research paper mainly focuses on the changes made in UAPA Act and NIA Act and check whether the power provided to NIA and the central government is ultra vires or not, i.e. if the powers are arbitrary and beyond its legislative competence or within the powers provided to them.

Introduction

National Investigation agency bill was passed by Parliament in December 2008 to establish counter-terrorism agency to fight terrorism and related crimes which challenge the nation’s integrity and sovereignty.

 Major aim of NIA was to establish an agency matching international standards. It also aimed at creating deterrence for existing and potential terrorist groups/individuals. It also acts as a storehouse of all terrorist information. The national investigation agency (Amendment) Act 2019 was passed which proposed to increase the authority of the agency in terms of the crimes that it can take over irrespective of the place where the crime occurred. The bill also proposed to increase the scope of crimes that it can investigate which included human trafficking and counterfeit currency. 

The given act provides for the extension of the agency's jurisdiction outside India which is subject to treaties and laws related to foreign nations. The National Investigation Agency (Amendment) Act 2019 is directly under the Home Affairs Ministry and hence are answerable and accountable to the ministry itself. The agency’s headquarters are situated in Delhi and it has 8 branches/regional offices across India. It is headed by the Director General who is also an IPS officer. The agency also maintains a list of NIA’s most Wanted 

Are the powers provided to the National Investigation agency within their constitutional limits? This article focuses on the intricacy of this primary question and shall go about the legislation with respect to amendments made and their reasons.

Changes in The National Investigation Agency (Amendment) act 2019

One of the major issues with respect to the National Investigation Agency (Amendment) Act 2019 was infringing every state’s right. The maintenance of public order and police forces are included in the state list of the seventh schedule of the constitution whereas the Criminal law falls under the concurrent list and National security is a part of the Union list. The amendment proposed central govt to obtain power to investigate any crimes like human trafficking, offences under the Explosives Act, and certain offences under the Arms Act. But the important point to note is that not all crimes are put under the category of threat to national security and the state is originally supposed to have the authority and hence the centre is competent to deal with the same. Another important issue related to this act is that it is very vague and absurd.

For eg. Section 66F of the Information Technology Act deals with cyber-terrorism but our country does not have a Data Protection Act and there is no standard given definition of terrorism.The amendment to the National Investigation Agency Act also gives the agency authority to investigate crimes which are committed by persons which are against Indian citizens or affecting the interest of India. But the loophole here is that the phrase “affecting the interest of India” is not defined and hence becomes very subjective and can be misused by governments to restrict freedom of speech and expression. Also the law under which the agency receives power also does not consider “affecting the interest of India '' as an offence.

This absurdity and vagueness gives more power to the agency and ultimately to the union government. Another important power which the central government has is with respect to constituting special courts to conduct trials of special offences which are investigated by special courts. This gives the government the power to designate sessions courts as special courts with due consultation from the chief justice of the high court under which the session court comes. The act also authorizes the state government to designate these special courts. Presently there are 38 National Investigation Agency special courts across all the states of the nation and there 7 National Investigation Agency special courts across union territories. These cases can be used precedence in any other court as well.

Changes in other statutes to provide for National Investigation Agency

The government along with amending National Investigation Agency Act 2008 also changed legislations such Unlawful Activities (Prevention) Act, 1967 the same year so that all these work hand in hand. Amending schedule 4 of the Unlawful Activities (Prevention) Act 1967, they made it possible for the National Investigation Agency to declare an individual as terrorist if he/she has any sort of terror links. Earlier only organizations were designated as 'terrorist organizations but after the amending the Unlawful Activities (Prevention) Act, 1967 even individuals can be designated as terrorists.

Problems arising out of passing of National Investigation Agency Act  

Passing of the National Investigation Agency (Amendment) Act 2019 affected Jammu and Kashmir drastically. Lately the National Investigation Agency is actively raiding to check the source of terrorist funding. In all, the NIA is handling 32 ‘terror-related’ cases in the state of Jammu and Kashmir. This acted as a disincentive for the Jammu and Kashmir as they felt that people don't trust them enough. This had a very harmful consequence.

Another instance of the failure of the National Investigation Agency is when it repeatedly failed to prosecute the Abhinav Bharat bombings. The amendment affected the Explosive Substances Act.

Conclusion

The research paper focused on the powers of the National Investigation Agency and checked if the power provided to the agency is beyond the scope and if the central government is using this as a tool for its own benefit. On further study researchers can gather that the amendment made in National Investigation Agency act of 2008 and Unlawful Activities (Prevention) Act, 1967 gives a huge power in the hand of central government and conveniently tries to take issues which are originally and constitutionally under the state government's jurisdiction.

National Investigation agency's increased jurisdiction with respect to its scope of crimes it can investigate and also the access to investigate outside India. This increased jurisdiction resulted in the National Investigation agency taking over all kinds of crime like how it was seen in the case of Jammu and Kashmir.

This made local police feel that they are not trusted and that is why their cases are taken away by the agency. Another flaw in the act is that it is very absurd and vague, it does not define concepts properly and hence open a window for the government to draw their own interpretation and use it according to their own convenience. Hence it can be concluded that there are many loopholes in the National Investigation agency Amendment act and hence it is important for all to be aware about this.