Issue

Context

Parliament passed the National Investigation Agency (Amendment) Bill, 2019 to give a big push to India’s national security. The main aim of this new bill is to give more power to the National Investigation Agency or NIA, India's premier anti-terrorism agency. The Bill amends the NIA Act 2008.

BACKGROUND

Over the past several years, India has been the victim of large scale 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 in various parts of the hinterland and major cities. 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.

Keeping all these in view, it was felt that there was a need for setting up of an Agency at the Central level for investigation of offences related to terrorism and certain other Acts, which have national ramifications. Finally in the wake of 2008 Mumbai terror attacks, the Government had enacted the National Investigation Agency Act on 31-12-08 and the National Investigation Agency (NIA) was established as a central agency to combat terror in India. It acts as the Central Counter Terrorism Law Enforcement Agency in India. The agency is empowered to deal with terror related crimes across states without special permission from the states.

JURISDICTION The Agency has been empowered to conduct investigation and prosecution of offences under the Acts specified in the Schedule of the NIA Act. A State Government may request the Central Government to hand over the investigation of a case to the NIA, provided the case has been registered for the offences as contained in the schedule to the NIA Act. Central Government can also order NIA to take over investigation of any scheduled offense anywhere in the India. Officers of the NIA who are drawn from the Indian Revenue Service, Indian Police Service, state police, Income Tax as well as officers from the Central Armed Police Forces, have all powers, privileges and liabilities which the police officers have in connection with investigation of any offense.

 

Analysis

NEED FOR AMENDMENT

India is currently facing rising number of serious issues which are still not addressed by any specific organization. NIA with its vast expertise is well equipped to address the following issues and thus its scope needs to be enhanced.

• Human trafficking - Human trafficking in India, although illegal under Indian law, remains a significant problem. The most current available data from the National Crime Records Bureau (NCRB) indicate that there were 8,132 reported cases of human trafficking across India in 2016. In the same year, 15,379 people were trafficked of whom 9,034 victims were below the age of 18.
• Drug abuse - A report by Ministry of Social Justice and Empowerment establishes that a substantial number of people use psychoactive substances in India, and substance use exists in all the population groups, but adult men bear the brunt of substance use disorders. According to it, about 14.6 % people are users of alcohol. About 2.8% of Indians report having used any cannabis product within past 12 months. Nationally, it is estimated that there are about 8.5 Lakh People Who Inject Drugs (PWID).
• Cybercrime – According to National Crime Records Bureau (NCRB), there were about 12,317 cybercrime cases in 2016. This is a 6% rise as compared to 2015.
• Fake currency menace - The number of fake notes of Rs 2,000 jumped to 17,929 in fiscal 2018 — a 2710 per cent increase from 638 pieces in 2016-17. Similarly, 9,892 pieces of counterfeit notes were detected in the new Rs 500 banknotes in 2017-18 — a 4178 per cent jump from 199 in the previous fiscal.

ISSUES WITH NIA ACT

• Constitutionality: NIA had assumed jurisdiction over a Scheduled Offence even suo moto whereas the areas of policing and public order lie within the exclusive legislative competence of the States. So the States have been extremely wary of accepting or cooperating with any agency that encroached on that power.
  • Lack of Infrastructural Support: The NIA has no officers specialising in cyber surveillance, explosives or tracing chemicals and has been forced to ask companies to decrypt computers recovered at crime scenes.
  • Failure to avoid politicisation: It has been repeatedly seen that the functioning of the investigation and prosecution agencies depend on political mandate. This raises serious doubts on the credibility on national institutions.
  • Institutionalised Delay: Act states that once the State government receives a report on a Scheduled Offence, it shall forward the report to the Central government as expeditiously as possible. It is unclear why the Act does not compel the State government to provide the report to Central government with a much shorter window of time.
  • Lack of Scope: The scope of what the NIA will investigate is paradoxically insufficient and potentially too broad. The NIA is not empowered to investigate a number of interstate and trans-national crimes that require a national response. For example, human trafficking, drug trafficking, cybercrime and organised crime are not included in the Schedule of Offences to the NIA Act.

Therefore, to address the shortcomings in the original National Investigation Agency Act 2008, recently Parliament amended the Act to give more teeth to National Investigation Agency.

AMENDMENTS

There are three major amendments to the original NIA Act of 2008:

• Scheduled offences:
  1. In addition to the offences under Acts such as the Unlawful Activities (Prevention) Act, 1967, Atomic Energy Act, 1962, Anti-Hijacking Act, 1982, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 etc.
  2. The Bill also seeks to allow the NIA to investigate the following offences, in addition: (i) human trafficking, (ii) offences related to counterfeit currency or bank notes, (iii) manufacture or sale of prohibited arms, (iv) cyber-terrorism, and (v) offences under the Explosive Substances Act, 1908.

• Jurisdiction of the NIA
  1. In addition to investigate and prosecute offences across India, officers of the NIA will have the power to investigate scheduled offences committed outside India, subject to international treaties and domestic laws of other countries.
  2. The central government may direct the NIA to investigate such cases, as if the offence has been committed in India. 
  3. The Special Court in New Delhi will have jurisdiction over these cases.
•  Special Courts:

1. 1. The original Act allows the central government to constitute Special Courts for the trial of scheduled offences.
   2. The Bill amends this to state that the central government may designate Sessions Courts as Special Courts for the trial of scheduled offences.
   3. Further, state governments may also designate Sessions Courts as Special Courts for the trial of scheduled offences.

These amendments are welcome as they give more powers to National Investigation Agency to expeditiously investigate and prosecute offences across national and transnational borders. However, there are still certain challenges that have arisen due to new amendments.

Challenges

• Wary of misuse – The amendments provide sweeping powers to the police officers which can be misused for political vendetta.
• Against federalism – Policing powers under Constitution remains with the State Government. Giving more powers to NIA officers and widening the scope of crimes interferes into the functioning of state police.
• Dismal prosecution rate and rising insurgency issues - There are concerns that owing to dismal prosecution rate here in the country so far and rising of insurgents group like United Liberation Front of Assam (ULFA) National Democratic Front of Boroland (NDFB), how reasonable effective it would be to provide more territorial powers.
• The issue of political interference in the investigation matters of NIA still remain unaddressed.

Way Forward

• NIA should cooperate with State governments, irrespective of their political affiliation, and win the long term confidence of ordinary people by providing expeditious justice.
• Independent professionals from outside must be hired to include in the decision making process of deciding whether the NIA should investigate a certain Scheduled offence to avoid maintain integrity and impartiality.
• To make NIA different and much more effective, its shortfalls must be debated openly and honestly. It should draw in a variety of voices, and incorporate checks and balances that will minimise the possibility of failure.
• It should be given necessary powers to prevent the enumerated offences rather than simply powers of investigation and enforcement. It should be allowed to share, collect, collate, analyse and disseminate the intelligence with other intelligence agencies to integrate and enhance India’s security system.

Conclusion

India's security perspectives would inevitably be governed by the interplay of its domestic imperatives, regional balance of forces and the global challenges which impinge on its role and capabilities. An overarching framework of India's national security has to take cognisance of military and non-military dimensions in terms of both external threats and internal challenges to its territorial integrity and national unity. Threats to a nation emanate as much from external aggression as from internal strife but at times internal factors can erode national security more critically than any external danger.

In this significance, a strong and independent National Investigation Agency can make Indians more secure by addressing the gaps in our current approach to preventing and investigating offences with a transnational character.

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