Chattisgarh HC Issues Notice On Plea Challenging Constitutionality Of NIA Act [Read Petition]

The NIA Act was enacted by the Parliament to empower the Central Government to take over investigations and prosecute for offences which affect the sovereignty, security and integrity of India, security of States and friendly relations with foreign States.

Background

The petitioner Jhumar Qyami is the brother of a constable of the Chhattisgarh Police who was killed when a bomb attack was made on the convoy of MLA Bhima Mandav. The investigation relating to the incident was being carried out by the Chhattisgarh Police after an FIR was filed in this behalf. However, the investigation was taken over by the National Investigation Agency (NIA) pursuant to the order of central government, and as alleged by the Petitioner, without providing any justification for such take over.

Grounds

It is the Petitioner's case that a central investigation agency, such as NIA, is unaware of the ground circumstances of the state, as opposed to the state's Police agency which is well-versed with the situation of the state and competent to conduct an investigation efficiently. He has based his arguments on the following legal position:

1. The process of investigation is the exclusive domain of 'Police' in as much as Police Act, 1861 is concerned. Further, Section 2(h) of CrPC defines investigation as "…all the proceedings under this Code for the collection of evidence conducted by a police officer …" and thus the NIA Act, in essence, contravenes the provisions of CrPC.
2. Entry- 2 List- II of Schedule- 7 of the Constitution of India empowers the state to legislate on the subject matter of Police and thus NIA Act is ultra vires in as much as it transgresses the Police's power of investigating and creates an agency for investigation at the behest of the Central Government. It is emphasized that the framers of the Constitution did not intend the Central Government to indulge in investigation as no entry even remotely related to investigation was envisaged in the Union List.
3. The NIA Act cannot be justified on the touchstone of Entry- 8 List- I of Schedule- 7 of the Constitution which provides for establishment of a Central Bureau of Intelligence and Investigation. It was underlined that Dr. B. R. Ambedkar had clarified at the time of incorporating this provision that "…the word "investigation" here does not permit and will not permit the making of an investigation into crime because that' matter under the Criminal Procedure Code is left exclusively to a police officer. Police is exclusively a State subject; it has no place in the Union List. The word "investigation" therefore is intended to cover general enquiry for the purpose of finding out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do". The NIA Act has thus been passed by the Central government in overreaching its powers under List- 1 and it renders the Entry- 2 of List- II of Schedule- 7 and the Police Act, 1861, a nullity.
4. The NIA Act repudiates the idea of state sovereignty as it provides uncanny powers to the central government and contains no provision for consent or coordination of the state. It also undermines the federal structure of the country, a basic feature of the Constitution, as per Keshavanada Bharti v. Sate of Kerala, (1973) 4 SCC 225, as it breaches the independent sphere of investigation of the state.
5. The Apex Court had held in S. R. Bommai v. Union of India, (1994) 3 SCC 1, that States were supreme in their allotted spheres and the Centre could not tamper the same.
6. Reliance was also placed on Collector of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316, wherein it was held that a legislation which was otherwise invalid could not be saved merely because it was being administered reasonably.
7. The Police Act, 1861 confers ample power on the State Police to investigate terrorism crimes and the constitution of NIA for such purposes is misplaced.

The Petitioner also sought in the alternative to declare Sections 6-10 of the Act as ultra vires since they are contrary to the scheme of Constitution of distribution of powers and confer unjustified powers on the Central government. He also prayed the court to set aside the central government order which took over the state investigation in the said bomb explosion case.

The Petitioner was represented by Senior Advocate Vivek Tankha and Advocate Sudeep Agrawal. The Chattisgarh government was represented by Advocate General Satish Verma assisted by  Sumeer Sodhi, standing counsel for the state.

The matter will be next considered on September 24, 2019.

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