This article is written by Divyanshi Singh, from Symbiosis Law School, Noida. This article discusses the Unlawful Activities (Prevention) Act and whether the NIA Act affects the federal system.
The National Investigation Agency (NIA) was established through the National Investigation Agency Act, 2008 as an aftermath of the 2008 terrorist attacks in Mumbai. The aim was to develop a national police force to investigate a selected class of criminal offences that constitute a direct threat to national safety. The erstwhile United Progressive Alliance Government launched the NIA to fight against terrorism.
UAPA or the Unlawful Activities (Prevention) Act, 1967 is one of the Acts introduced to the NIA Act schedule. The Agency has jurisdiction over all crimes covered by the statutes of India. Legal and political opinions disagree as to whether law permitting the Central Government to delegate an inquiry to any agency without the agreement of the State Government is permissible.
It is because public order and police are institutionally deemed to be the responsibility of the State government. Both governments have simultaneous authority in the realm of criminal legislation and criminal proceedings.
Investigations rerouted through NIA
The NIA Act gives the Central Government the right to take over an investigation under Section 6. It states that if a case of scheduled offences is lodged at a police station in India, the officer-in-charge of the station must submit the matter to the State Government. That state, in turn, will send it to the federal government as soon as possible, and the latter will determine whether the offence is a scheduled offence or not within 15 days of receiving it, based on information provided by the former or information obtained from other sources. It must also decide if the case is one that the Agency should investigate.
If the Central Government believes it should be investigated by the Agency, it must direct the Agency to conduct the investigation. Apart from that, if the Central Government believes a listed offence has been committed that requires investigation under the NIA Act, it may direct the Agency to investigate it suo motu.
After the Central Government has made its judgement, the State Government and the police officers investigating the crime must immediately forward all relevant documents and data to the Agency.
The officer-in-charge of the police station will be responsible for continuing the investigation until the Agency takes over. The Central Government may ask the NIA to register a case and conduct an investigation as if the offence had been committed in India for offences covered by the NIA Act. As a result, it is clear that State Governments have no influence on whether or not the NIA investigates the charges brought by the federal government.
The federal system and the separation of powers
The federal system of government was created to bring the country together as a political union made up of various independent, distinct, separate, and diverse political entities or administrative bodies.
The division of legislative powers between the Central Government and the states is the most essential, if not the most important, feature of every federal government. The three lists that make up the Constitution’s Seventh Schedule: the Union List, State List, and Concurrent List, reveal this crucial characteristic of the federal structure. Infringing on the jurisdiction assigned to one by the other would have a negative impact on the federal system’s smooth operation.
When it comes to investigating crimes committed in a state, the Supreme Court decided that given the many provisions in List I of the Constitution’s Seventh Schedule, there can be no dispute that the Central Government’s authority is limited in such circumstances.
Petitions challenging the UAPA’s constitutionality
In 2019, in order to declare it unlawful in that it breaches basic fundamental rights, Sajal Awasthi launched a Public Interest Litigation (PIL) against UAPA. He stated that implicitly restricting the right of dissent was in contradiction with Article 14 (the right to equality),19 of the Indian Constitution (the right to freedom of expression), and 21(the right to life). Moreover, it does not offer the so-called terrorist any chance to justify his case prior to his arrest.
The APCR (Association for Protection of Civil Rights) also submitted a petition stating that new Section 35 enables the center to identify a person as a terrorist and add his/her identity under Schedule 4 of the Act, whereas previously only terrorist organisations, groups may be notified. The amendment does not set forth the reasoning of a person being considered a terrorist; “conferring of such discretionary, unfettered and unbound power upon the Central Government is an antithesis to Article 14.”
Another instance of the draconian UAPA being used was when the Delhi Police arrested Umar Khalid (JNU student leader) and Meeran Haider and Safoora Zargar (two other Jamia Millia Islamia (JMI) University students) under UAPA. The JMI students were arrested for allegedly plotting to instigate community unrest over the CAA, which the police described as a “premeditated conspiracy.”
NIA Act’s constitutional validity
In Pragya Singh Thakur vs. State of Maharashtra (2011), the constitutional validity of the NIA Act was challenged before the Bombay High Court. The argument in the case was that because police are listed in the State List of the Constitution’s Seventh Schedule, the parliament lacks the authority to establish an agency for investigating crimes.
By taking note of the entries in Lists I and III and reading them together, the court dismissed the argument. It was decided that the NIA Act should be enacted by the parliament.
The court also stated that it has the authority to establish an agency to investigate the offences listed in it. The court also looked at Entry 8 of List I (Union List), which was titled “Central Bureau of Intelligence and Investigation.”
It was observed that if the parliament could establish such a Central Bureau of Investigation, then its powers could not be limited when it decides to enact legislation to establish a national investigating agency to investigate and prosecute offences affecting India’s sovereignty, security, and integrity, the security of states, and friendly relations with other countries.
Furthermore, the court stated that even if the state has the right to make a law relating to police, the broad wording of Entry-1 and Entry-2 of List-III, the Concurrent List, clearly shows that the parliament has the authority to implement the NIA Act, 2008.
The UAPA and Human Rights guarantees
The Executive Director of Amnesty International responded to the news that the Jammu and Kashmir police had invoked UAPA against journalist Masrat Zahra under Section 13 for ‘uploading anti-national posts on Facebook with criminal intentions to induce the youth and glorifying anti-national activities’ and Peerzada Ashiq for stories on ‘diversion of COVID testing kits’ by saying that it “signals the authority”. This intimidation of journalists jeopardises efforts to combat the COVID-19 outbreak. The police verified the journalists’ charges, stating that Masrat Zahra’s post may “provoke the public to break law and order” and Peerzada Ashiq’s tale “could cause fear or alarm in the minds of the public.” He also said that UAPA was used to “target journalists and human rights defenders who criticise government policies.”
The Jammu and Kashmir police had also used Section 13 of the UAPA against persons who were using VPNs to avoid the government’s longest-ever internet ban, which was enforced when it repealed Article 370 of the Indian Constitution, which divided the state into two centrally governed UTs. The government stated that it was done “to curb the misuse of the sites by miscreants for propagating false information/rumours.” If a person is charged under this Section, there must be a serious threat to India’s security, and any remark on social media should not be considered one “which causes or is intended to cause disaffection against India.”
Reasons for the problematic nature of UAPA
As a form of ‘security legislation,’ UAPA authorises the government to arrest citizens who may commit the crimes listed in it. For a variety of reasons, this legislation is problematic.
- To begin, it prohibits disagreement. It criminalises even the most innocuous beliefs and political protests that produce “disaffection” with the state. It is a violation of citizens’ right to express themselves, as well as the collective right of groups and unions to broadcast their opinions, and UAPA primarily targets this right.
- Secondly, it can simply be utilised to circumvent basic rights and procedures. Those apprehended under UAPA, for example, can be imprisoned for up to 180 days without being charged. As a result, it is a direct violation of Article 21 of the Constitution.
- Thirdly, it grants the government vast discretionary powers and enables the establishment of “special courts with the ability to use secret witnesses and to hold closed-door hearings.”
- It is being used to repress dissent through intimidation and harassment, endangering public discussion and press freedom and criminalising the exercise of civil liberties.
- The UAPA authorises the parliament to limit individuals’ rights and freedoms in order to maintain India’s “sovereignty and integrity.” The government said that the amendment was introduced because it is individuals who perform terrorist acts and having just the authority to designate organisations as terrorist organisations would be useless because those persons might continue their operations under a different name. However, the question remains whether the parliament can ever categorise an individual as a terrorist simply because it feels he is implicated in terrorism without conducting any sort of investigation or trial.
Allegations of political affability
The NIA has already been accused of political prejudice, despite the fact that it is still in its early stages. Rohini Salian, the Special Public Prosecutor, was the first to make a surprising announcement. She has testified against Hindu radicals in the 2008 Malegaon bombing case. She claimed that once the new administration assumed power at the Centre, the Agency directed her to go light on the case on June 25, 2016.
In another case involving individuals with substantial ties to the RSS (the Ajmir Dargah bombing case), the majority of the key defendants were acquitted. It was alleged that the public prosecutor, in this case, was also dissatisfied with the NIA’s lack of attention during the trial.
In other cases, including the bombing of the Samjhauta Express and the bombing of the Mecca Masjid in Hyderabad, the NIA’s actions have been questioned. It’s worth noting that various state investigators and the CBI have conducted thorough investigations into terror-related crimes. The investigation of the Bombay assault (Ajmal Kasab’s case) and the parliament attack cases were done by state investigative agencies before the foundation of the NIA.
To crush opposition, the government has often invoked severe laws such as sedition and criminal defamation. These rules are ambiguous and unduly broad, and they have been used as political tools against critics, indicating a shift toward “thought-crimes.” In order to achieve the aim of this Act, the legislature has degraded human rights. The Amendment also runs counter to the mandates of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The preceding arguments have demonstrated how the amendment jeopardises its citizens’ fundamental rights and threatens the very existence of opposition.
When such heinous legislation breaches and deprives citizens of their rights, it is the Supreme Court’s responsibility to intervene and restore faith in democracy. This Amendment demonstrates the goal with which laws were enacted during the colonial administration in order to stifle various liberation movements under the guise of maintaining public order. The Act primarily criminalises activities based on ‘ideology’ and ‘association.’ As can be observed, the aforementioned are symptoms of a shift from democracy to dictatorship.
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