The 2019 Amendment to NIA: A Critical Analysis

INTRODUCTION:

IHCL hotels Taj Mahal Palace and Taj Lands End in Mumbai got threatening calls from Pakistan on 29 June 2020. The caller, who threatened to explode the two lodgings likewise as that of 26/11 assaults, recognized himself as an individual from the terrorist group Lashkar-e-Taiba (LeT). The Taj hotel was one of the foundations targeted by Pakistani terrorists during the 26/11 terror attack on Mumbai. In the wake of such dangers, it is important to analyze the legal framework of India to manage such circumstances. This article looks at the amendments made through the National Investigation Agency (Amendment) Bill, 2019, and examines its arrangements to reach a conclusion whether it is adequate to manage such circumstances.

After passing by both the Houses, Home Minister Mr Amit Shah added, till now India does not have the power to prosecute the person accused of perpetrating acts of terror against Indians abroad but now there will be such powers with the NIA for such problems.

WHAT IS NIA?

  • The National Investigation Agency (NIA) is a central agency established by the Indian Government to combat terror in India. It goes about as the Central Counter-Terrorism Law Enforcement Agency.
  • The agency is enabled to deal with terror-related crimes across states without special permission from the states since an enormous number of terrorist incidents are found to have complex inter-State and international linkages, and possible connection with organized crime, for example, the smuggling of arms and drugs, circulation of fake Indian currency, etc.
  • It was for these reasons that an agency at the Central level was created for investigation of offences related to terrorism and certain other acts post 2008 Mumbai terror attacks.
  • Crimes like terror offences, offences against atomic and nuclear facilities, and offences such as waging war against the country, amongst others, were included in this list of offences.

NEW PROVISIONS:

The current law permits the centre to constitute special courts for NIA’s trials and the bill empowers the central government to assign sessions courts as special courts for such trials. Sessions courts have the ability to impose the full range of penalties for criminal acts, including the death penalty. Under the act, for the offences under its domain, NIA officers have the same power as other police officers, and these stretch out the nation over. The bill amends this to give NIA officers the power to investigate offences committed outside India. Obviously, NIA’s jurisdiction will be subject to international treaties and domestic laws of different nations. If a Scheduled Offence has been committed at any place outside India to which this Act extends, it allows the Agency to register the case and take up the investigation as if such offence has been committed in India.

AMENDMENTS MADE TO THE BILL:

  • The Act provides for a national-level agency to investigate and prosecute for scheduled offences. Schedule offences mean the activities that have been deemed illegal by law.
  • Further, the Act allows for the creation of Special Courts for the trial of scheduled offences. Many new offences have been included in this amendment so that NIA can investigate that offence also which are:

(i) human trafficking{Section 370,[370A of Indian Penal Code(IPC),1860]},

(ii) offences related to counterfeit currency or bank notes(Section 489A to 489E of IPC,1860),

(iii) manufacture or sale of prohibited arms(Section 25(IAA) of Arms Act,1959),

(iv) cyber-crimes(Section 66F Information Technology Act,2000).

  • Many acts have also been included in this amendment so that NIA has the cognizance of investigating the offences under that act also which are:

(i) Atomic Energy Act,1962,

(ii) Unlawful Activities (Prevention) Act,1967,

(iii) Explosive Substances Act,1908,

(iv) Anti-Hijacking Act,1982,

(v) Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act,2002,

(vi) Explosive Substances Act,1908.

ISSUES IN THE PROPOSED AMENDMENTS:

  • However, the amendments are being claimed as an infringement upon the rights of states to lead investigations into a class of cases which may affect public order, by the Union government consequently going against the notion of federalism in light of the fact that, under schedule VIIof the Constitution, the maintenance of public order and police forces are matters which come under the state list.
  • Be that as it may, Criminal law frames some portion of the concurrent list and national security goes under the areas of the union list.
  • As per the ongoing alteration to the NIA Act, the Central government gets the authority to have the NIA taking over the investigation of crimes, which involve allegations of human trafficking, offences under the Explosives Act, and certain offences under the Arms Act.
    • However, 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.
  • The Amendment Bill puts Section 66F of the Information Technology Act into the Schedule listing offences.
    • Section 66F deals with cyber terrorism.
    • But India does not have a Data Protection Act and there is no definition of terrorism.
  • The revision to the NIA Act likewise gives the agency power to investigate crimes committed by persons who are against Indian residents or “affecting the interest of India”.
    • In any case, the expression “affecting the interest of India” is undefined and can be misused by governments to curb freedom of speech and expression.
    • Further, the laws, under which the NIA has the power to investigate, themselves do not mention “affecting the interest of India” as an offence.
    • This amounts to the creation of a substantively new and vague offence under the guise of giving more procedural powers to an agency under the control of the Union government.

CRITICISMS:

One of the major criticisms faced by the bill is that such amended provisions can be misused in the same way as that of POTA (Prevention of Terrorism Activities) Act, 2002 in which the provisions were grossly misused and in one such instance in Jharkhand more than 28 people amongst which there were children and women who had been picked up and charges against them were created of terrorism and only because of public hue and cry and large public protests the accused were released. The same analogy is being drawn by the opposition parties that this act will also be misused in the same way POTA was misused.

Another one of the major criticisms faced by the bill is with the provision of converting sessions court into special courts for NIA investigations because there is already a huge burden on the courts to resolve the cases and if the sessions courts will be converted into special courts then the burden will be increased on the courts which will add to the already stressed conditions and should the government widen the ambit of NIA when there are doubts in people’s mind about the objectivity and efficiency of the NIA because of the fact that many times the organization has failed to resolve the matters. In the case of Samjhauta Blast Case in which the judge said that the NIA could not even produce the CCTV footage of the Delhi Railway Station where the blast took place and such was the case in Malegaon Blast Case in which the accused was exonerated by the court due to lack of proper evidence. The opposition parties while voting for the bill was going on, some members wanted to vote against the bill but voted in favour as any other decision on their part would have given the BJP an excuse to brand them as “pro-terror”.

Among other issues, the NIA has been accused of targeting minorities, especially Muslim youth, in addition to infringing upon the rights of the police in states. Replying to issues raised by members of Parliament in Rajya Sabha on NIA (Amendment) Bill, 2019, Union Minister for Home Affairs, Shri Amit Shah said that it is the responsibility of the Parliament to build a strong image of NIA in front of the world. The efficiency of NIA should not be degraded on political considerations, he said.

CONCLUSION:

Overall the amendment is very helpful for the country as now the NIA has got its jurisdiction increased and has got the power to go on the foreign land and investigate the cases and protect the interests of the Indians living abroad and there can be the speedy resolution of cases as sessions courts can now be designated as special courts for investigating into matters of urgent importance and as if a Scheduled Offence has been committed at any place outside India to which this Act extends, it allows the NIA to register the case and take up the investigation as if such offence has been committed in India. The ruling government has assured the parliament that there will be no misuse of the provisions of the act to be amended as there were questions raised by some members on the objectivity and efficiency of the organization that is NIA. Going by the heading issues in the proposed amendments, it can be concluded that the NIA Amendment Bill, 2019 is neither sound on the standards of Indian federalism nor on the established principles of criminal law. The Lok Sabha also passed the Unlawful Activities (Prevention) Amendment Bill 2019, which however gives a major push to India’s internal security apparatus yet these changes combinedly may prompt the production of a police state. In this unique situation, these revisions must be altogether looked into.


ABOUT THE AUTHOR

Gangesh Aggarwal

GANGESH (2)

Gangesh Aggarwal is a second-year law student at Gujarat National Law University (GNLU). He has a keen interest in writing and is also a writer at The Economic Transcript. His academic interests lie in the intersection of law with human rights, gender, and policy.

Meghna Aggarwal

Meghna

Meghna Aggarwal is a fourth-year law student at Rajiv Gandhi National University of Law, Patiala, and has a keen interest in criminal law.

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