The trigger for filing the suit to take on the Centre under a federal structure appeared to be the NIA’s decision to take over certain Naxal-related criminal cases.
The Bhupesh Baghel government’s Article 131 petition, settled by senior advocate Vivek Tankha, said, “NIA Act, in its present form, not only takes away the power of conducting investigation by the state through its police but also confers unfettered discretionary and arbitrary powers on the Union government. There are no rules governing the exercise of power (by the Union home ministry) which gives ample discretion to the Centre to exercise its power at any juncture without providing any reason or justification for the same.”
The NIA Act was passed by Parliament on December 31, 2008, in the immediate aftermath of the 26/11 terror attacks on Mumbai in order to break the silos in which intelligence and law-enforcement agencies worked and to facilitate a seamless response to crimes against the country.
Then Union home minister P Chidambaram had introduced the NIA Bill in Lok Sabha in December 2008. In the statement of object and reasons for introducing the bill to create NIA, Chidambaram had told Parliament, “Over the past several years, India has been the victim of largescale terrorism sponsored from across the borders. There have been innumerable incidents of terrorist attacks, not only in the militancy and insurgency affected areas and areas affected by Left wing extremism, but also in the form of terrorist attacks and bomb blasts etc in various parts of the hinterland and major cities.”
He had further said, “A large number of such incidents are found to have complex inter-state and international linkages, and possible connection with other activities like the smuggling of arms and drugs, pushing in and circulation of fake Indian currency, infiltration from across the borders etc. Keeping all these in view, it has for long been felt that there is need for setting up an agency at the central level for investigation of offences related to terrorism and certain other acts, which have national ramifications.”
The trigger for Chhattisgarh filing the suit seeking declaration that NIA Act was unconstitutional was the NIA’s request seeking transfer to itself several Naxal-related violent incidents. The state police appears to have completed investigations into them and did not want the NIA to take over the probe.
Citing that investigation into any crime by the central agency CBI required consent of the state government, Chhattisgarh said, “Provisions of the NIA Act leave no room for coordination and pre-condition of consent, in any form whatsoever, to be sought by the Centre from the state government, which clearly repudiates the idea of state sovereignty as envisaged under the Constitution.
“The provisions of NIA Act are such that once brought into motion, it completely takes away the power of the state government to investigate the offences which have been categorised as scheduled offences under the NIA Act and which have been committed within the jurisdiction of the state. NIA Act is not only unconstitutional but is also against the federal spirit envisaged under our constitutional scheme wherein both Centre and state are considered to be independent in their respective jurisdictions.”