LAW OF CRIMES ASSINGEMENT

CRITICAL ANALYSIS OF NIA ACT

DONE BY

1) AADHITYA NARAYANAN (L19BALB111)

2) MATHAN KUMAR RAMESH BABU (L19BALB019)

3) SHOUMIK CHOWDARY (L19BALB012)

4) ROGAN ROME(L19BALB004)

5) AAKASH SINGH (L19BALB086)

 INTRODUCTION

The National Investigation Agency (Amendment) Act, 2019 was introduced in Lok Sabha by the
Minister for Home Affairs, Mr. Amit Shah, on July 8, 2019. The Act amends the National
Investigation Agency (NIA) Act, 2008.  The Act provides for a national-level agency to
investigate and prosecute offences listed in a schedule (scheduled offences).  Further, the Act
allows for creation of Special Courts for the trial of scheduled offences.

The schedule to the Act specifies a list of offences which are to be investigated and prosecuted
by the NIA.  These include offences under Acts such as the Atomic Energy Act, 1962, and the
Unlawful Activities Prevention Act, 1967.  The Act seeks to allow the NIA to investigate the
following offences, in addition: (i) human trafficking, (ii) offences related to counterfeit currency
or bank notes, (iii) manufacture or sale of prohibited arms, (iv) cyber-terrorism, and (v) offences
under the Explosive Substances Act, 1908.1   

The Act provides for the creation of the NIA to investigate and prosecute offences specified in
the schedule.  The officers of the NIA have the same powers as other police officers in relation to
investigation of such offences, across India.  The Act states that in addition, officers of the NIA
will have the power to investigate scheduled offences committed outside India, subject to
international treaties and domestic laws of other countries.  The central government may direct
the NIA to investigate such cases, as if the offence has been committed in India.  The Special
Court in New Delhi will have jurisdiction over these cases. The amendment bill seeks to widen
the authority of the NIA in terms of the crimes that it can investigate irrespective of the place of
occurrence of the crime.
The Act allows the central government to constitute Special Courts for the trial of scheduled
offences.  The Act amends this to state that the central government may designate Sessions
Courts as Special Courts for the trial of scheduled offences.  The central government is required
to consult the Chief Justice of the High Court under which the Sessions Court is functioning,
before designating it as a Special Court.  When more than one Special Court has been designated
for any area, the senior-most judge will distribute cases among the courts.  Further, state
governments may also designate Sessions Courts as Special Courts for the trial of scheduled
offences.2
ADVANTAGES

• The Government widened the scope of offences that the NIA used to investigate under
the original act. Previously, the NIA used to investigate offences falling under the purview of
acts such as the Atomic Energy Act, 1962, and the Unlawful Activities (Prevention) Act, 1967
etc. However, the recent amendment broadened this scope and equipped the NIA to investigate
offences under the Explosive Substance Act, 1908, Section 370, 370 A, 489 A-E of the Indian
Penal Code, 1860, etc. The kind of offences under these sections is that of trafficking and
exploitation of a person, counterfeiting currency, cyber terrorism etc. Further, the usage of the

1
https://www.jagranjosh.com/general-knowledge/nia-amendment-bill-1564041643-1
2
https://www.moneycontrol.com/news/india/what-is-the-national-investigation-agency-bill-and-why-is-it-in-
contention-4212151.html
term “affecting the interest of India” under Section 2 (iii) of the act provides an absolute power
to the Central government for trying or investigating a person under this act.3

• The Act enlarges the jurisdiction of the NIA. Previously, the authority and power of NIA
officers were equivalent to that of any other police officer in India. However, these powers were
restricted across the territorial borders of India. Due to this, the NIA officers were not sanctioned
to investigate offences which were committed against the Indians outside the Indian territory.
But, an amendment in Section 3 of the NIA Act has put an end to this impasse as the amended
provision allows an NIA officer to investigate beyond the territories of India subject to any
international treaty or domestic law of that concerned country. Further, these offences taking
place outside the territories of India will be tried and investigated at the special court situated at
New Delhi.

• The Act permits the Central Government to designate one or more courts of the session as
Special Court for the purpose of constituting a trial against an accused under the NIA Act.
Earlier, the Central Government used to constitute a special court for the trial of scheduled
offences. In doing so, the Special Court was constituted in name of a judge as recommended by
the High Court of the concerned state to the Central Government. But, the actual inception of
such special courts became a far cry vis-a-vis the provisions inserted in the NIA Act. Instead,
most of these special courts set up under the NIA Act have been the designated courts. Due to
this, cases having significant importance used to get delayed for months. However, by virtue of
an amendment in Section 11 of the NIA Act, the government aims at ensuring the speedy trial
and avoid a case from being delayed further.4

DISADVANTAGES

 The definition of terrorism is an issue which has remained unsettled in the Indian legal
parlance. Therefore, the discretion here lies with the Central Government and the NIA to
term an act as an act of terrorism. On similar lines, the insertion of Section 1 (d) in the
NIA Act has amplified the Union Government’s power to categorize an offence as an act
of terrorism. Section 1 (d) of the amended Act uses the phrase “affecting the interest of
India”. This leaves an unclear impression as it opens a passage to severely misuse this
provision and categorize any act as an act of terrorism. Such lack of clarity in an act as
crucial as the NIA Act is not tenable. not every criminal offence in the above act is a
threat to national security and sovereignty and consequently, states have the competence
to deal with the same. Any elected party or the current ruling government might misuse

3
https://www.businesstoday.in/current/economy-politics/lok-sabha-passes-nia-amendment-bill-to-give-more-power-
to-anti-terror-agency-here-all-you-need-to-know/story/364609.html
4
http://rsrr.in/2020/01/15/unscrambling-the-nia-amendment-act-2019-a-tool-against-terrorism-or-a-political-facade/
 such provision for the purpose to fulfil its own political crusade and not every criminal
offence in the above act is a threat to national security and sovereignty and consequently,
states have the competence to deal with the same.5

 As stated earlier, the act seeks to designate the Sessions Court as a Special Court to probe
trial of a scheduled offence under the NIA Act. This has been done to swiftly dispose of a
case without any official hurdle owing to multiple reasons like delay in setting up of
special courts, difficulty in the appointment of the judge heading the Special Court etc.
However, the purpose of appointment of Special Court by the Central Government was
inserted to make the act exclusive and expedite the trials. Further, the Sessions Courts at
various states are already clogged with loads of pending cases. Under these
circumstances, designating sessions court as a special court will simply increase the
burden and would lead to piling up of unsolved cases.

 The Amended act broadens the range of offences under the schedule which is attached
along with the NIA act. Now, offences such as cyber terrorism under Section 66-F of the
Information and Technology Act trafficking of a person under the Indian Penal Code can
also be investigated by the NIA. However, in absence of a data protection act and terms
like ‘terrorism’ and ‘cyber terrorism’ not being defined anywhere, the inclusion of
Section 66-F under the NIA Act threatens the rights of citizens of India.6

 Since police is in the state list, the state police are already vested with powers to
investigate offences mentioned in the Act. However, by passing the NIA Act, the Centre
expanded its jurisdiction to investigating crimes even though the concept of a federal
crime does not exist in India. The primary criticism against the law even in 2008 was that
it violated the sovereignty of the state governments in the subject of policing. In the
Constitution, the police are in the list of subjects over which states have jurisdiction.7

SUGGESTIONS

The statistics quoted by the NDA government states that; as of July 2019, the NIA has
investigated as many as 272 cases. Out of these 272 cases, the charge sheet has been filed in 199
cases and in 51 cases the courts have already delivered their judgments with a conviction rate of
90 per cent. Evidently, these statistics show the efficiency of the current ruling government.

5
https://www.youthkiawaaz.com/2019/12/why-the-uapa-and-nia-amendment-bill-is-roughshod/
6
https://www.nia.gov.in/
7
https://www.scconline.com/blog/post/2019/07/18/national-investigation-agency-amendment-act-2019-
unanimously-passed-by-rajya-sabha/
While the NIA Act seeks to probe into the cases affecting the national security and deliver justice
to the innocent victims, it also poses a threat to those who might fell victim of the Central
Government as it vests the government with a lot of sweeping powers. Perhaps, a better way
forward is to improvise this act further with the following additions8: –

 To provide concrete and independent definitions of the terms like ‘terrorism’ and ‘cyber
terrorism’.
 To enact a specific legislative act for data protection of the citizens and thereafter,
operate in consonance with it.
 To restore the provision of Special Courts under Section 2 of the NIA Act and initiate a
better course of action to expedite the setting up of such Special Courts.
 To insert a proviso in Section 1 (d) of the amended NIA Act and define meaning and
scope of the term “affecting the interest of India”.
 To strengthen the diplomatic clout for investigating the scheduled offences outside the
Indian territory.9

RECENT UPDATES

The NIA act was challenged by the Chhattisgarh government saying it was unconstitutional and
violated the co-operative federalism, which is the fundamental pillar of governmental
functioning has been diluted by this amendment and there is no check on the exercise of powers
being carried out by the Agency and beyond legislative competence of Parliament since the Act
empowers the defendant (Centre) to create an agency for investigation, which, notwithstanding
the NIA, is carried out by state police, which is a subject matter of the state under entry 2, List 2,
Schedule 7, of the Constitution. The state argued that police was under the state list and
Parliament was not competent to pass a law like the NIA Act. The state government said the NIA
Act took away the state’s powers to investigate crimes. There are no rules governing the exercise
of Centre’s powers under the Act, making the law arbitrary.10 As the law does not provide scope
for obtaining consent of the state government before operating in its jurisdiction, it violates the
federal principle enshrined in the Constitution. It was also challenged by an organization called
the 'Solidarity Youth Movement' who said it gave "unfettered discretionary powers" to the
Centre. The National Investigation Agency of India (NIA) has filed a case to investigate the
deadly attack on Sikh in Kabul city, it has been reported. In a bid to launch its first investigation
regarding a terror attack on foreign soil, the NIA registered its case under criminal conspiracy
and terror charges against a group of terrorists attacked the Sikh temple in Kabul city last week
killing at least 27 people including an Indian national and wounding many others.11

CONCLUSION
8
https://www.thehindu.com/news/national/supreme-court-seeks-centres-response-on-plea-challenging-nia-
act/article30606236.ece
9
https://www.indiatoday.in/india/story/nia-act-supreme-court-congress-1637038-2020-01-15
10
https://scroll.in/article/950225/explainer-why-chhattisgarh-has-challenged-the-legality-of-the-national-
investigation-agency-act
11
http://idrw.org/indias-nia-to-launch-its-first-investigation-in-a-foreign-soil-after-kabul-attack/
Therefore, the NIA Amendment Act, 2019 is neither sound on the principles of Indian federalism
nor on the established principles of criminal law which though gives a big push to India’s
internal security machinery, these amendments combinedly may lead to the creation of a police
state. As a result, these amendments must be thoroughly reviewed.

BIBLOGRAPHY
 Web Sites

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attack/

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bill-and-why-is-it-in-contention-4212151.html
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terrorism-or-a-political-facade/

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know/story/364609.html

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