On Wednesday, the state government of Chhattisgarh instituted a suit in the Supreme Court against the Centre, challenging the National Investigation Agency Act.

The plaint was moved under Article 131 of the Constitution, which gives the Supreme Court exclusive jurisdiction to hear cases between states and the Centre.

Chhattisgarh is currently ruled by the Congress. It was under the party’s leadership during the United Progressive Alliance-I government in 2008 that the National Investigation Agency was created.

So why has the same party challenged the law that it in 2008 declared in Parliament was a necessity? This article will explain the contents of Chhattisgarh’s plaint and the context that led to the creation of the National Investigation Agency.

What is the NIA?

The National Investigation Agency is a government agency formed by the Congress-led United Progressive Alliance government with the aim of investigating acts of terrorism. It came into existence in backdrop of the November 2008 terror attacks on Mumbai. The law encompassed a wide breadth of cases. In its title, the object of the law is defined as follows:

“An Act to constitute an investigation agency at the national level to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto.” 

Thus, it brought under the agency’s ambit offenses under Atomic Energy Act, Unlawful Activities Prevention Act, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, SAARC Convention (Suppression of Terrorism) Act, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act and several sections under the Indian Penal Code.

What was the controversy around the NIA Act in 2008?

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.

The UPA government knew about the possible challenges to the law’s constitutionality, but decided to go ahead with it. In a meeting with former United States Federal Bureau Investigation chief Robert Mueller in March 2009, P Chidambaram, who as home minister at the time, admitted that he was going “perilously close to crossing constitutional limits” in empowering the NIA. The US official had communicated these comments to his government, which was revealed by Wikileaks in 2011.

How does the NIA Act affect state powers?

Since police is in the state list, the state police is 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.

Under the law, the NIA could take over cases if they fall under the offences mentioned in the Schedule of the Act. There was no need for the Centre to seek the permission of the state governments as the law empowers the Centre to investigate the scheduled offences suo motu.

What changes has the BJP-led government made to the NIA Act?

Last year, the Bharatiya Janata Party-led government amended the NIA Act to expand its scope. Offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism and offences under the Explosive Substances Act were added to the list.

Secondly, through an amendment to Section 3 of the act, all the powers, duties, privileges and liabilities that state police officers have in connection with the investigation of offences listed under the act became available to the NIA as well. This means the agency can make arrests directly in the states without having to go through the state agencies.

How has Chhattisgarh challenged this law?

On January 15, the state of Chhattisgarh, now ruled by the Congress, moved a plaint challenging the NIA Act in the Supreme Court.

In its plaint, 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.

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.

Chhattisgarh’s plaint challenges the entire NIA Act and not just the amendments moved by the BJP-led government last year.