Shoving NIA down states' throats

At the recent Chintan Shivir, a meeting of home ministers in Haryana, the Government of India made its plans conspicuous to make states conform to a uniform law and order policy by the establishment of state-wise National Investigation Agency (NIA) units. To quote the government, the “nature of crimes is changing” and the government wants to implement it under the “spirit of cooperative federalism”.

A layperson’s translation of this jargon-loaded nationalistic message is — Let us take over the cases in troublesome states, where we can add an arsenal of the NIA to the infamous ED/NCB-style investigation.

It is no secret that the Centre has sought recourse to the Enforcement Directorate and the Narcotics Control Bureau when states do not give them CBI clearance for people who the Centre feels should be prosecuted. This could very well be a political enemy or a person who is making the government accountable through social media. However, the Stalinist approach with which this is being shoved down the states’ throats is indeed a master move.

The NIA of 2008 was tasked with handling activities that were considered to be a threat to the unity of India. The schedule of offences that the NIA could investigate among others included number 2, the Unlawful Activities Prevention Act, and in number 8, a) Sections 121 to 130 (acts against the Sovereign) and b) Section 66F of the Information Technology Act (which deals with cyber acts against the state).

The NIA’s statute states its scope to be 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…” The mandate to the NIA was to try graver offences which harm the sovereignty of India.

However, what is unnerving about this is that the Centre finds it meritorious to have a unit in every state to monitor this activity when the NIA is supposed to be a national agency. Interestingly, each state has its own Crime Investigation Department (CID) and its own state laws to curb any crime that may take place. By contrast, the imposition of Section 144 is clearly the prerogative of the state based on its perception of threat. The CID is also vested with offences that fall under the purview of the NIA, namely the Anti-Terror Squad. The makers of the Constitution as well as the CrPC clearly placed the state on priority to handle the law and order situation within the state.

The imposition of NIA on each state is not only violative of the Constitution but also devalues the work that may have been done by states by way of information gathering and monitoring, which would now go to the NIA. This makes the CB-CID redundant in the state and gives sweeping powers to the NIA.

It is worth noting that the NIA Act was amended in 2019 with a particularly strange insertion in Section 1 which addresses the scope of the agency, and an addition was made in Section 1(d) which stipulates that it shall apply to persons who commit the offences as per the schedule beyond India, against the citizens of India or affecting the Interest of India. This enables the NIA to indiscriminately target not only citizens in India but also abroad. While this may be in the best interest of the nation, the misutilisation of such a provision makes the NIA the closest that it can get to sedition.

Thus far, the NIA has instituted 469 cases in its 14 years of existence. For 2018, this number stood at 39, in 2019 it was 26 and in 2020, there were 40 cases at a whopping 54% increase since the controversial amendment to Sec 1(d). It is to be noted that of all the 95 cases for the period 2018-2020, investigation has not concluded in even a single case or prosecution sought. This carries an uncanny similarity to the number of UAPA cases between 2018 and 2020, which stands at 4,690 of which 149 resulted in convictions (Question Hour in Parliament, August 2022).

With the mobilisation of NIA in every state, “legal profiling” may have been set in motion. However, it remains that NIA in states is more of a deterrent to making inciteful comments, which may very well be seen as against the ‘Interest of India’ from a political eye. The citizens are not so subtly warned that the minimum sentence in an NIA case is life imprisonment. This is not a reform of law and order, but a rewriting of the same.

(The writers are professors of International Law)