Chhattisgarh govt moves top court against NIA Act

PETITION Says in plea Act violative of the Constitution and goes against its federal spirit

NEW DELH: 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 terrorrelated offences.

The BJP government at the centre had amended the NIA Act in the 2019 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.

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.

“The question is that the central government has made a ‘police system’ through the NIA Act. Do we need an empowered agency for the offences committed in the local area (eight categories of crimes have been kept in it)? We believe that the central government cannot do this under the constitution, because the constitution says that police is a state subject,” said Satish Verma, advocate general Chhattisgarh.

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.

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.