Aashima Kakkar
India has been a victim of large-scale terrorism sponsored from across the borders for several years. Innumerable terrorist attacks have occurred, not only in areas afflicted by militancy and insurgency, but also in areas afflicted by Left Wing Extremism, in the form of terrorist attacks and bomb blasts, etc., in various parts of the hinterland and major cities, etc.
A large number of such incidents have been discovered to have complex inter-State and international connections, as well as possible links to other activities such as the smuggling of arms and drugs, the pushing in and circulation of fake Indian currency, infiltration from across borders, and so on.
With all of this in mind, it was decided that a central agency should be established to investigate terrorism-related offences as well as other acts with national implications. Several experts and committees, including the Administrative Reforms Commission, had recommended the creation of such an agency in their reports.
The government proposed enacting legislation to make provisions for the establishment of a National Investigation Agency in a concurrent jurisdiction framework, with provisions for taking up specific cases under specific Acts for investigation, after careful consideration and examination of the issues involved.
The National Investigation Agency (hereinafter as NIA) was established as a result of the NIA Act, which was enacted on December 31, 2008 in the aftermath of the Mumbai terrorist attack of 2008. NIA currently serves as India’s Central Counter-Terrorism Law Enforcement Agency that is authorized to investigate any terror related matter across the country without any special permission from all the states and has 649 employees that comes under the Ministry of Home affairs.
As of today, the NIA has registered and investigated 315 cases. Sixty cases were finally or partially decided in trial after charge sheets were submitted. Of these, 54 cases resulted in a conviction, giving NIA an impressive conviction rate of 90%.[1]
Need of NIA
The National Investigation Agency aspires to be a world-class investigative agency that meets the highest international standards. By developing into a highly trained, partnership-oriented workforce, the NIA aspires to set national standards of excellence in counterterrorism and other national security-related investigations. The National Intelligence Agency (NIA) aims to deter existing and potential terrorist groups and individuals. Its goal is to become a repository for all terrorist-related data.
The Agency works in the lines of the Federal Bureau of Investigation (FBI) in the United States and aspires to become that good in investigation that the country as well as the agency make the terrorists think about attacking the country twice.
Objective of the NIA
- To conduct in-depth professional investigations of scheduled offences using the most up-to-date scientific investigation methods.
- Ensuring effective and speedy trial to provide justice to all the victims of attacks.
- Maintaining India’s constitution and the laws of the land.
- The protection of human rights and the dignity of individuals is of paramount importance.
- Regular training and exposure to best practices and procedures help to develop a professional workforce.
- To win the confidence of all Indian citizens through selfless and fearless endeavors
- Study and analyze terrorism laws in other countries and evaluate the adequacy of existing laws in India on a regular basis, proposing changes as needed.
- Maintaining professional and cordial relationships with state and union territory governments, as well as other law enforcement agencies, in accordance with the NIA Act’s legal provisions.
- Assist all states and other investigating agencies with terrorist investigations.
- Create a database containing all terrorist-related data and make it available to the states and other agencies.
The NIA Act, 2008
The National Investigation Agency Act, 2008 was enacted with the goal of establishing a national investigation agency under Section 3 of the Act, to investigate and prosecute crimes and offenses affecting India’s sovereignty, security, and integrity, state security, and friendly relations. Acts enacted to implement international treaties, agreements, conventions, and resolutions of the United Nations, its agencies, and other international organizations, as well as matters connected with or incidental to them, and for matters connected with or incidental to them.[2]
Section 6 of the Act provides for the Investigation of scheduled offences stating:
- The officer-in-charge of the police station shall immediately forward the report to the State Government upon receiving information and recording it under section 154 of the Indian Penal Code relating to any Scheduled Offense.
- The State Government shall forward the report to the Central Government as soon as possible after receiving it.
- Within fifteen days of receiving a report from the State Government, the Central Government shall determine whether the offence is a Scheduled Offense or not, based on information provided by the State Government or obtained from other sources, and whether, in light of the gravity of the offence and other relevant factors, it is a fiduciary offence.
- If the Central Government determines that the offence is a Scheduled Offense and that it is a good case for the Agency to investigate, it shall direct the Agency to do so.
- Notwithstanding anything in this section, if the Central Government believes a Scheduled Offense has been committed that requires investigation under this Act, it may direct the Agency to investigate the offence on its own initiative.
- Where a direction under sub-section (4) or (5) has been given, the State Government and any State Government police officer investigating the offence shall not proceed with the investigation and shall immediately transmit all relevant documents and records to the Agency.
- For the avoidance of doubt, it is hereby declared that the officer-in-charge of the police station will be responsible for continuing the investigation until the Agency takes up the case.
Recently in 2020, this section was challenged by the Chhattisgarh Government stating that this section along with Section 7, 8, 10, take away the powers of the Police in any state and gives arbitrary power to the Agency.[3]
Section 7 states the power to transfer investigation to State Government while investigating any offence under this Act can:
- if it is expedient to do so, request the State Government to associate itself with the investigation
- transfer the case to the State Government for investigation and trial of the offence with the prior approval of the Central Government.
Section 8 establishes the authority to investigate related offences stating that while investigating a Scheduled Offence, the Agency may also look into any other crime the accused is accused of committing if the crime is linked to the Scheduled Offence.
Section 10 states that except as otherwise provided in this Act, nothing contained in this Act shall affect the powers of the State Government to investigate and prosecute any Scheduled Offense or other offences under any law currently in force.
The NIA (Amendment) Bill, 2019
Mr. Amit Shah, Minister of Home Affairs, introduced the National Investigation Agency (Amendment) Bill, 2019 in the Lok Sabha on July 8, 2019. The National Investigation Agency (NIA) Act, 2008 is amended by this bill. The Act establishes a national-level agency charged with investigating and prosecuting offences listed in a schedule (scheduled offences). In addition, the Act allows for the establishment of Special Courts to hear scheduled offences.[4]
Changes in Scheduled offences
The NIA Act’s schedule lists a number of offences that the NIA is responsible for investigating and prosecuting. Offenses under the Atomic Energy Act of 1962 and the Unlawful Activities Prevention Act of 1967 are examples. In addition, the bill would allow the NIA to investigate the following crimes:
- human trafficking
- counterfeit currency or bank notes
- manufacture or sale of prohibited weapons
- cyber-terrorism
- offences under the Explosive Substances Act, 1908.
Changes in Jurisdiction
The NIA Act, 2008 establishes the National Investigation Agency (NIA) to investigate and prosecute the offences listed in the schedule. Officers of the National Investigation Agency (NIA) have the same investigative powers as other police officers in India. According to the Bill, NIA officers will also be able to investigate scheduled crimes committed outside of India, subject to international treaties and domestic laws of other countries. The NIA may be directed by the central government to investigate such cases as if they were committed in India. These cases will be decided by the Special Court in New Delhi.
Changes in Special courts
The Act empowers the central government to establish Special Courts to hear scheduled offences. The Bill clarifies that the central government has the authority to designate Sessions Courts as Special Courts for the trial of scheduled offences. Before designating the Sessions Court as a Special Court, the central government must consult with the Chief Justice of the High Court under which it operates. When more than one Special Court has been established for a given area, the cases will be distributed among the courts by the senior-most judge. State governments can also designate Sessions Courts as Special Courts to try scheduled offences.
Banned organizations
The NIA has banned many terrorist organizations in the country some of them being:
- Khalistan Commando Force
- Lashkar-E-Taiba/Pasban-E-Ahle Hadis
- Jaish-E-Mohammed/Tahrik-E-Furqan
- Harkat-Ul-Mujahideen or Harkat-Ul-Ansar or Harkat-Ul-Jehad-E-Islami or Ansar-Ul-Ummah (AUU)
- Hizb-Ul-Mujahideen/ Hizb-Ul-Mujahideen Pir Panjal Regiment
- National Democratic Front of Bodoland (NDFB) in Assam
- People’s Liberation Army (PLA)
- Al-Qaida/Al-Qaida in Indian Sub-continent (AQIS) and all its manifestations.
- Tamil Nadu Liberation Army (TNLA)
- Organisations listed in the Schedule to the U.N. Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007 made under section 2 of the United Nations (Security Council) Act, 1947 and amended from time to time.
- Islamic State/Islamic State of Iraq and Levant/Islamic State of Iraq and Syria/Daish/Islamic State in Khorasan Province (ISKP)/ISIS Wilayat Khorasan/Islamic State of Iraq and the Sham-Khorasan (ISIS-K) and all its manifestations.[5]
Case Law
In People’s Union for Civil Liberties v. Union of India[6] the Supreme Court upheld POTA’s constitutional validity, finding that it did not violate Article 19(1)(a) and 19(1)(c) of the Indian Constitution. The Supreme Court upheld the terrorist’s death sentence in Kasab vs. State of Maharashtra[7], stating that the death penalty remains on the statute book as a punishment for certain offences, including waging war and murder.
In Kartar Singh v. State of Punjab[8], a Constitutional court reaffirmed that “no civilised democratic country has accepted a confession made by an accused before a police officer as voluntary and above suspicion, thus admissible in evidence.” Indeed, police brutality and coerced confessions infringe on the accused’s civil liberties. The lack of evidence plagues investigating agencies, which frequently resort to using force, an illegal tactic, to bolster their cases.
In State (NCT of Delhi) v. Navjot Sandhu @ Afsal Guru[9] also called the parliament attack case where Jaish-e-Mohammad, a banned terrorist organization by NIA attacked the parliament by sending 5 heavily armed personnel in the premises of Parliament House complex for a deadly attack. A special court charged all of the defendants with violating the Indian Penal Code, the Prevention of Terrorism Act of 2002, and the Explosive Substances Act. The trial lasted six months, with the prosecution calling 80 witnesses and the defence calling ten. The issues involved were:
- The voluntariness and veracity of an accused’s confession to the police.
- Whether or not the electronic records produced by the prosecution were reliable.
- During the time of Afsal Guru’s hanging, there was a lot of controversy.
Mohd. Afzal’s appeal was dismissed by the Supreme Court, and his death sentence was upheld. Shaukat’s appeal was partially granted, and the Supreme Court found him guilty under Section 123 of the IPC and sentenced him to ten years in prison and a fine of Rs. 25,000. The state’s appeals against S.A.R Gelani and Afsan Guru’s acquittals were dismissed, and the court decided on the admissibility of secondary evidence pertaining to electronic evidence. Following the President’s rejection of Mohd. Afsal Guru’s mercy petition, he was hanged on February 9, 2013. Operation Three Star was the name given to the assassination of Mohd. Afsal Guru.
In Mohd. Arif @Ashfaq vs. State of NCT of Delhi[10] on the evening of December 22, 2000, around 9 p.m., some intruders opened fire indiscriminately, killing three army Jawans from the 7th Rajputana Rifles. No intruders were killed, and the intruders were able to escape by scaling the Red Fort’s backside boundary wall. This attack shook the entire country, and in particular, the city of Delhi. A bag and a clip with a phone number were discovered by the investigating officer. This phone number was registered in the name of Mohd. Arif, who admitted to being involved in the attack. According to the investigation, the accused appellant was a Pakistani national who was a member of the terrorist group Lashkar-e-Taiba. The prosecution called 235 witnesses and displayed a large number of documents. Rehmana Yusuf Farukhi, his wife, was also charged in this case. She testified in her own defence and examined her own mother, claiming that they were unaware that the accused was a militant and that the money in Rehmana Yusuf Farukhi’s bank account was her own and not given by the accused.
The Supreme Court upheld an amendment to Order XL Rule 3 of the Supreme Court Rules that eliminated open court oral hearings of review petitions. The Court has made it clear that the law established in this judgement, the right to a limited oral hearing in a review petition where a death sentence is imposed, will apply only to pending review petitions and future petitions. It will be used in cases where a review petition has already been dismissed but the death sentence has yet to be carried out. In such cases, the Petitioners may request a reopening of their review petition; however, reopening such matters would be inappropriate.
Conclusion
The National Investigating Agency is the one and only specialized agency that deals with terrorism in India and provides sufficient scientific research and expert opinions on attacks. If the power of this Agency is taken away, as requested by the Chhattisgarh government, the country will suffer as no specialized agency will be available to seek justice of behalf of the country as well as use new scientific developments in forensic science. Thus, NIA is a very important agency that is very much needed especially with the rapid increase of terrorism in the country.
- National Investigation Agency Website ↑
- The objective of the NIA Act, 2008 ↑
- Explained: What is NIA Act and why is Chhattisgarh Challenging it? THE INDIAN EXPRESS on January 17, 2020 ↑
- The NIA (Amendment) Bill, 2019 PRS LEGISLATIVE RESEARCH ↑
- Terrorist organisations listed in the first schedule of the unlawful activities (prevention) act, 1967. (last updated on 30-12-2019) ↑
- People’s Union for Civil Liberties v. Union of India WP(C) 389/2002 ↑
- Kasab vs. State of Maharashtra Criminal Appeal no. 1899-1900/2011 ↑
- Kartar Singh v. State of Punjab 1961 AIR 1787 ↑
- State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 Sc 3820 ↑
- Mohd. Arif @Ashfaq vs. State of NCT of Delhi Criminal Appeal nos. 98-99/2009 ↑