The Constitutional Validity of the National Investigation Agency

Inspired from the Federal Bureau of Investigation (FBI) of the United States of America
which is the National Security Organization of USA, taking over both investigating and law
enforcement mechanism, the Indian government enacted the National Investigation Agency
Act, 2008 (hereinafter the Act)1. However, there are scanty of similarities between the NIA
and FBI in terms of funds allocated, manpower, and technologies. The National Investigation
Act, 2008 was created through an Act of Parliament essentially to investigate and prosecute
offences listed in the schedule of this Act, in order to combat cross border terrorism. It claims
to involve engagement with diplomats of different countries and hence the information
received is generally highly confidential.

It is commonly believed that the Act, which is acting as the Central- Counter Terrorism Law
Enforcement Agency in India was enacted as an urgent repercussion to the 2008 Mumbai
terror attacks. Hitherto, the Prevention of Terrorism Act, 2002 was responsible to tackle
terrorism in India, however due to the alleged misuse of this Act, the United Progressive
Alliance government repealed it in 2004. In July 2019 Amit Shah bought the National
Investigation Agency (Amendment) Bill, 2019 in the Lok Sabha which amends the Act,
20082. However, this new bill has welcomed criticism from experts from different genres on
the basis of the unfettered and arbitrary powers given to the Central Government. This part
will be discussed in detail subsequently.

Counter terrorism forces have usually gone through judicial scrutiny and similarly, the
constitutional validity of the NIA, 2008 was brought to judicial scrutiny in the 2008
Malegaon bomb blast which held current Bhopal BJP MP Sadhvi Pragya Singh Thakur as
one of the main accused. Later on, by virtue of the Notification dated 01. 04. 2011 the Home
Ministry transferred the impugned the case from the Anti-Terrorist Squad, Maharashtra State,
with which the case was initially registered to NIA. In the case of Pragyasingh
Chandrapalsingh Thakur and Ors v. State of Maharashtra and Ors 3 the accused petitioner
Pragya Singh Thakur questioned the constitutional validity of the NIA on various grounds.

The NIA Act, 2008 and the Judgement of the Bombay High Court

1
The National Investigation Agency Act, 2008, No. 34, Acts of Parliament, 2008 (India).
2
The National Investigation Agency (Amendment) Act,2019, No. 16, Acts of Parliament, 2019 (India).
3
Pragyasingh ChandrapalSingh Thakur Vs. State of Maharashtra through Additional Chief Secretary & Ors,
2014 (1) Bom.C.R.(Cri.) 135
The NIA Act was introduced in the Lok Sabha as an Act of the Parliament by virtue of Act
No.6 of 2009. It empowers the officials of the Agency to probe and prosecute the offences
mentioned specifically in the schedule to the Act which includes offences under the Atomic
Energy Act, 1962, The Unlawful Activities (Prevention) Act, 1967, as amended in 2008 and
others and not otherwise, by special courts constituted by the Central government.

The objective laid down in the Act intends to engage the municipal investigation mechanism
to involve with the international counter- terrorism agencies in order to secure the
sovereignty and security of the country as well as to implement international treaties,
agreements, conventions, and resolutions of the United Nations and its agencies.

The functions of the officers as given in the Act is analogous to that of Police officers
although the Central Government acts as the superintending body in case of the NIA,
however, there is no explanation of the word ‘superintendence’ or the extent to which the
Central Government can exercise such superintendence. The procedure of investigation as
provided under Section 6 includes a FIR to be filed on receipt of information of schedule
offence under Section 154 of Code of Criminal Procedure, 1970. Such report is then sent to
the State Government by the officer-in-charge of the Police Station which is further sent to
the Central Government. The final decision is to be taken by the Central Government whether
the offence comes under schedule offence or not within a period of 15 days depending on the
report provided by the State Government or by any other source and only after this, the
investigation can be commenced by the NIA. The methodology to be adopted by the Central
Government before coming into such conclusion that whether there has been a commission of
a schedule offence is unambiguous and unclear. It uses terms like ‘gravity of the offence’
and ‘other relevant factors’ have to be considered without defining them which further
leaves room for the arbitrary exercise of power by the Central Government. In the case of
Pragyasingh Thakur, the constitutional validity of Section 6 was questioned however, the
bench upheld the constitutionality of the provision.

The National Investigation Agency (Amendment) Act, 2019 while amending Section 6
extended its jurisdiction to probe schedule offences committed outside India with regard to
international treaties and municipal laws of other nations. Further, the scope of the schedule
offence was extended to include human trafficking, offences related to counterfeit currency
or banknotes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the
Explosive Substances Act, 1908.
In the case of Pragyasingh Thakur the division bench of Bombay High Court dealt with the
legislative competence of the Central Government to enact the NIA Act.

In order to understand the necessity of the NIA Act, the Bombay High Court took recourse to
the principle which enables the Court to examine the Statement of Objects and Reasons, for
legislation for the ‘limited purpose’ of analysing the situation prevailing at the relevant time
which mandated the enactment of the Act and the extent of the remedy and punishment it can
offer4. After looking into the Statement of Objects and Reasons the Court came into the
conclusion, which is also a replica of the Objectives as provided in the official website of the
NIA5, that the Parliament was required to interfere and create a central agency in light of the
terrorist attacks, bomb blasts and due to the presence of Left Wing Extremism and sponsored
cross border terror. However, instead of enacting newer statutes the government must focus
in interagency cooperation and utilising and strengthening the existing force and resources.

In the case of Navendra Kumar v. Union of India6, with due reference to the Constituent
Assembly debates 7 it was explained that the word ‘investigation’ contained in Entry 8 of List
1 has a general understanding like what’s happening in different states unlike the meaning of
investigation as provided in Section 2 (h) of Code of Criminal Procedure, 1973. However, the
Bombay High Court contradictorily, interpreted the word ‘investigation’ as mentioned in
Entry 8 of List 1 for Central Bureau of Investigation (hereinafter CBI) and thus observed that
if the parliament is competent to enact CBI, then the parliament has the power to enact NIA.

The basic contention regarding the constitutional validity of NIA Act is that entry ‘Police’
comes under State List and hence the Parliament acted ultra vires in enacting the NIA Act.
Contradictorily, the Court opined that since the Parliament was not ‘wholly’ incompetent to
enact the Police Act, 1949 which was initially enacted for few Union Territories then the
Parliament is not incompetent to enforce a law establishing a police force for the whole
country.

Further, the Court opined that the doctrine of Pith and Substance is applicable as the NIA
comes under the ambit of Entry 2 of List III i.e., Criminal Procedure including all matters
included in the Code of Criminal Procedure at the commencement of the Constitution. The
Ministry of Home Affairs in 1983 constituted a Commission namely the Sarkaria

4
Subhash Ramkumar Bind Alias Vakil And Another v/s. State of Maharashtra (2003) Cri. L.J. 443.
5
https://www.nia.gov.in/about-us.htm
6
Navendra Kumar v. Union of India, W.A. No.119 of 2008 in W.P.(C) No. 6877 of 2005.
7
https://indconlawphil.wordpress.com/2018/12/24/guest-post-the-unconstitutionality-of-the-cbi/.
Commission8 in order to examine the centre- state relations. Chapter 2 of the Report is
dedicated to Legislative Relations which provides that a to ascertain the true nature and
character of a legislation it must be examined as a whole for the purpose of determining
whether it falls in List I or List II. In case it comes out that in pith and substance it falls under
one of these Lists, but in regard to incidental or ancillary matters it encroaches on an Entry in
the other List, the conflict would stand resolved in favour of the former List. It further adds
that if any conflict between the two Lists can not be settled harmoniously, then Parliament
( List I) will have an overriding affect over the State Legislature with respect to the
repugnancy in List II9.

The three lists in the seventh schedule is do not indicate the power of the legislations but the
fields of legislation. In examining Entry 2, List II titled Police, the Court comprehended that
it includes Railway Police and Village Police which come under the ambit of Entry 2A of
Union List. However, it excludes Entry 1 and 2 of Concurrent List which are fundamental to
Police. The interpretation of Entry 1 and 2 of List III is wide enough to indicate that the
Parliament is competent to establish the NIA Act, 2008.

The Court further added that the Parliament draws power to enact the NIA from Entry 93 of
Union list on the ground that if the Parliament was competent to create offences under the
Acts in the Schedule of the NIA as Acts of Parliament, then it can derive power to create the
Agency for probe and prosecution of these offences.

The Court relied upon the ratio provided by the Apex Court in Naga People’s Movement of
Human Rights v. Union of India10 . It provided that the although the parliament cannot
legislate on the subject matters which fall in the State List, however, it is empowered to
legislate on subject matters which exclusively falls in the State List in the form of powers of
the parliament to legislate on matters given in the Union List or residuary powers under
Article 248 read with Entry 97 of the Union List11 .

The Parliament has power to make laws in respect to any matter for any part of the territory
of India not included in a State notwithstanding that such matter is a matter enumerated in
8
http://interstatecouncil.nic.in/sarkaria-commission/
9
Chapter 2, Legislative Relations, page 9
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/CHAPTERII.pdf
10
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 43.
11
Shodhganga, Chapter 4, ‘EFFICACY OFANTI-TERRORISM LAWS IN INDIA - JUDICIAL RESPONSE
Pg 110-111.
the State List. Further, Article 249 of the Constitution of India also puts in the forefront a
matter in the State List which is in the national interest and confers the power on the
Parliament to legislate with respect thereto. Further, the constitutional theme going from
Article 250 to Article 253 also enables us to hold that the Parliament has the power to make
any law for the whole or any part of the territory of India for implementing any treaty,
agreement or convention with any other country or countries or any decision made at any
international conference, association or other bodies.

Prima facie, it appears the ‘Police’ is exclusively a state subject and hence the Parliament
encroached on the powers of the State government, however, the observation made by the
Bombay High Court bench effectively elaborates the constitutional validity of NIA on many
points. Although, the contradiction presented in Navendra Kumar and Pragyasingh Thankur
regarding the interpretation of the word ‘investigation’ do raise serious question and to
effectively find a conclusion from the two cases, a larger bench has to be referred.

As stated in the Sarkaria Commission, the Centre can interfere with the State machinery
when the impugned subject has ramifications beyond the boundaries of the State, but this
should be strictly followed and thereby the schedule must be created. On matters like
terrorism, which just don’t affect the entire nation but have transnational sponsorship, a
strong Central hold becomes expedient as in the case of other intelligence agencies. However,
the Central Government must be held accountable for investigation and transferring cases to
the NIA and the reasons must be recorded in writing so that if required, it can be
challenged in the court of law. Just on the pretext of confidentiality we cannot compromise
on justice and fair trial.