NIA Act Challenged by Chhattisgarh Government
The Chhattisgarh government recently filed a petition, citing Article 131 to challenge the Constitutional validity of the National Investigation Act, 2008. The petition contends that the NIA Act is ultra vires the Constitution and beyond the legislative competence of Parliament.
Chhattisgarh has referred to the Supreme Court judgment in State of Jharkhand vs State of Bihar and Another (2015) to justify the suit’s maintainability.
Arguments of the Petition
• NIA Act is beyond “legislative competence of the Parliament” and is against the “federal spirit” of the Constitution. Since police is a state subject, the Centre cannot be given police powers.
• The provisions of the Act go against state sovereignty because the provisions of the Act leave no room for coordination and pre-condition of consent, in any form whatsoever, by the Central government from the State government
• Framing of 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
• NIA Act, in its present form, takes away the state’s power of conducting an investigation through police and confers unfettered discretionary and arbitrary powers on the Centre.
• NIA Act's enactment by Parliament and creation of an “investigative” agency, namely the National Investigation Agency, for investigating the scheduled offences committed in any particular State, is clearly an act of colourable legislation.
National Investigation Agency(NIA)
The NIA is a ‘Central Counter Terrorism Law Enforcement Agency’formed by the Congress-led United Progressive Alliance government with the aim of investigating acts of terrorism.
It came into existence in the backdrop of the November 2008 terror attacks on Mumbai and was enacted through central legislation -NIA Act 2008
NIA is given powers to investigate terror-related cases across states without taking special permission from states.
The Agency has been empowered to conduct investigation and prosecution of offences under the Acts specified in the Schedule of the NIA Act.
Scheduled offences specify a list of offences under Acts such as the Atomic Energy Act, 1962, and the Unlawful Activities Prevention Act (UAPA), 1967, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, etc.
Officers of the NIA have all powers, privileges and liabilities which the police officers have in connection with the investigation of any offence.
The act allows the central government to constitute Special Courts for the trial of scheduled offences.
There were certain amendments which were made to the law through the NIA (Amendment) Act, 2019.
NIA now has received the powers to investigate terror crimes related to Indians and Indian interests abroad.
The Act seeks to allow the NIA to investigate additional offences, under human trafficking, offences related to counterfeit currency or banknotes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908
After the amendment, the central government may designate Sessions Courts as Special Courts for the trial of scheduled offences after consulting the Chief Justice of the High Court under which the Sessions Court is functioning.
Further, state governments may also designate Sessions Courts as Special Courts for the trial of scheduled offences.
The NIA Act shows government’s Zero tolerance towards Terrorism, but this legislation does not provide the scope for obtaining the consent of the state government before operating in its jurisdiction which violates the federal principle enshrined in the Constitution.
Hence, the plaint filed under Article 131 by the Chhattisgarh Government contends that the law violates provisions that set out a separation of powers between the state and the Centre.
Doctrine of Colourable Legislation
This doctrine is based on the principle that what cannot be done directly cannot be done indirectly.
In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional.
This doctrine is found on the wider doctrine of "fraud on the constitution".
A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.
K C Gajapati Narayan Deo vs State of Orissa, is a famous case that illustrates the applicability of this doctrine.
ª It deals with the original jurisdiction of the Supreme Court,
ª Original jurisdiction of a court refers to its power to hear a case first
ª Any dispute involving a question of law or fact on which existence of legal right depends comes under original jurisdiction of the SC. The disputes may be:
- between the government of India and one or more states;
- between the government of India and any state/states on one side and one or more states on the other;
- between two or more states
if the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute
ª Article 131 of the constitution is unique because of the fact that Supreme Court has the power to directly listen to matters between 2 states governments or between the Centre and the state