The Congress-led Chhattisgarh government has moved the Supreme Court against the Union of India challenging the constitutionality of the National Investigation Agency (NIA) Act, 2008.

NIA, India’s first federal counter-terror probe agency with wide superseding powers in terror-related offences, was drafted by the previous Congress-led UPA government after the 26/11 Mumbai Terror attacks and pushed by then Home Minister P Chidambaram.

The Congress has approached the court under the original and exclusive jurisdiction of the Supreme Court to resolve disputes between the Union government and the state government as provided under Article 131 of the Constitution of India. Chhatisgarh is the second time to file a suit against a central law after Kerala approached the top court under the same Article yesterday, challenging the constitutional validity of the controversial Citizenship Amendment Act.

The petition is filed by standing counsel of the state government Sumeer Sodhi. The petition contends that NIA Act, in its essence and spirit, is not only ultra vires to the Constitution of India, but is also against the federal spirit as envisaged under our Constitutional scheme where both Centre and State are considered to be independent in their respective jurisdiction.

The Agency empowers the Central government with unfettered powers to conduct investigation and prosecute under the Act. The NIA is more powerful than the Central Bureau of Investigation as it gives the power to supersede state government agencies and enter any state without obtaining prior permission from the government, to investigate and arrest the people.

Chhattisgarh government in the petition said:

“A holistic appreciation of the fact that “Police” was placed under List- II as the subject matter of State, with power to investigate, and equally significant fact that no such entry of “Police” or even any incidental or ancillary entry was provided in List 1 i.e., Centre List suggests that the framing of a legislation such as NIA Act by the Parliament, which creates an “investigation” agency having overriding powers over the “Police” of a State, was never the intention of the makers of the Constitution.”

“The provisions of the Act go against state sovereignty, Chhattisgarh has argued. It is “also contrary to the constitutional scheme of distribution of power, as enumerated under Schedule 7, since the matters arising within the territorial jurisdiction of any State which are generally investigated by Police, has been taken away and the meaning and purpose of Entry – II, List- II of Schedule 7 has been rendered otiose”.

The state government wants the apex court to declare that the National Investigation Agency Act as unconstitutional and ultra vires to the Constitution of India.

Sitaram Yechury of the Communist Party of India (Marxist), then Rajya Sabha MP had requested the central government to make provisions to involve the state government in the investigation and trial of offences. However, without much discussion, the law was passed within four days of its introduction.

National Investigation Agency Court in Delhi has taken cognizance on the chargesheet filed by NIA against Yasin Malik and four others in the matter of terror funding. All accused in the matter are serving judicial custody in Tihar Jail. CBI has filed second chargesheet in this matter on which the court has taken up the cognizance.

The agency has charged the accused to have received funding from Pakistan in carrying out the activities of stone pelting in the year 2010 and 2016.

The NIA had registered the case in May 2017 against various separatist leaders who were acting in connivance with terrorist organization like Hizbul Mujahideen, Dukhtara-e-Millat, and Lashkar-e-Taiba for collecting funds through illegal means for funding terrorist and stone pelting in Jammu and Kashmir.

The Court further asked the investigative agency to provide the copy of the chargesheet to all the accused and further called up the matter to be taken up next on 7.11.2019. The court has also extended the judicial custody of each accused till 7th November 2019.

— India Legal Bureau