PANJAB UNIVERSITY,

CHANDIGARH

ORGANIZED CRIMES PROJECT ON:

CONSTITUTIONAL VALIDITY OF
NATIONAL INVESTIGATION
AGENCY

SUBMITTED TO: PROF. SHRUTI BEDI

SUBMITTED BY: VIKRANT
(ROLL NO.-147)

B.A.LL.B. (HONS)

SECTION- C

SEMESTER- 7 TH
 ACKNOWLEDGEMENT

This project became reality with the kind support and help of many individuals. I would like to
extend my sincere thanks to all of them.

Foremost, I want to offer this endeavour to our god almighty for the wisdom he bestowed
uponme, the strength, peace of my mind and good health in order to finish this research.

I would like to express my gratitude towards my family for encouragement which helped
me incompletion of this project.

I am highly indebted to my department, University Institute of Legal Studies, Panjab

University, Chandigarh for providing me with opportunity to undertake this project work.

I would like to express my special gratitude to my subject professor, Prof. Shruti Bedi,
for imparting knowledge and expertise in this study. His guidance was valuable for
me.

Further, I recognize the fact that material I used in this project is not entirely mine. I reserve a
special thanks to the sources I referred and collected material facts from there.

Vikrant(147/20)
 INTRODUCTION
Inspired from the Federal Bureau of Investigation (FBI) of the United States of America which
is the National Security Organization of USA, taking over both investigating and law
enforcement mechanism, the Indian government enacted the National Investigation Agency
Act, 2008 (hereinafter the Act). However, there are scanty of similarities between the NIA and
FBI in terms of funds allocated, manpower, and technologies. The National Investigation Act,
2008 was created through an Act of Parliament essentially to investigate and prosecute offences
listed in the schedule of this Act, in order to combat cross border terrorism. It claims to involve
engagement with diplomats of different countries and hence the information received is
generally highly confidential.
It is commonly believed that the Act, which is acting as the Central- Counter Terrorism Law
Enforcement Agency in India was enacted as an urgent repercussion to the 2008 Mumbai terror
attacks. Hitherto, the Prevention of Terrorism Act, 2002 was responsible to tackle terrorism in
India, however due to the alleged misuse of this Act, the United Progressive Alliance
government repealed it in 2004. In July 2019 Amit Shah bought the National Investigation
Agency (Amendment) Bill, 2019 in the Lok Sabha which amends the Act, 2008. However, this
new bill has welcomed criticism from experts from different genres on the basis of the
unfettered and arbitrary powers given to the Central Government.

Counter terrorism forces have usually gone through judicial scrutiny and similarly, the
constitutional validity of the NIA. 2008 was brought to judicial scrutiny in the 2008 Malegaon
bomb blast which held current Bhopal BJP MP Sadhvi Pragya Singh Thakur as one of the main
accused. Later on, by virtue of the Notification dated 01. 04. 2011 the Home Ministry
transferred the impugned the case from the Anti-Terrorist Squad, Maharashtra State, with
which the case was initially registered to NIA. In the case of Pragyasingh Chandrapalsingh
Thakur and Ors v. State of Maharashtra and Ors 1the accused petitioner Pragya Singh Thakur
questioned the constitutional validity of the NIA on various grounds.

HISTORY OF THE NATIONAL

INVESTIGATION AGENCY
The National Investigation Agency was constituted in the wake of the 26/11 Mumbai terror
attack in November 2008. This attack was carried out by 10 gunmen who belonged to the
terrorist group, Lashkar-e-Taiba, at various locations in Mumbai like hospitals, hotels,

1
Pragya Singh Chandrapal Singh Thakur Vs. State of Maharashtra Through Additional Chief Secretary & Ors,
2014(1) Bom.C.R.(Cri.) 135
Chhatrapati Shivaji railway station, theatres, etc. More than 150 people were killed and
hundreds of people were injured, including various police officers. It took four days to kill 9
of the 10 terrorists. One of the terrorists, Ajmal Kasab, was captured by the forces and hung to
death in 2012. This incident raised serious questions about the security of the country as it was
revealed after the incident that there were many loopholes in the security management which
led the terrorists to enter the country without facing any obstacles.

This terror attack acted as a watershed moment in the Indian government’s preparedness
against terrorism. Hence, the then ruling party, the United Progressive Alliance, decided to
establish the National Investigation Agency. The National Investigation Agency Bill, 2008 was
introduced in December 2008 by then Home Minister P. Chidambaram. After that, it got the
President’s assent and came into existence on December 31st, 2008. As a counter-terrorism
body, the National Investigation Agency has investigated more than 2050 cases since its
inception, and it has a conviction rate of 91.3%.

NECESSITY OF A NATIONAL
INVESTIGATION AGENCY
With certain crimes often having an interstate or international dimension, it is incredibly
difficult for a law enforcement body to prevent or investigate such offences if it has limited
jurisdiction. A national body that can coordinate and oversee the investigation and enforcement
of criminal activities that have national or cross-border repercussions is essential. In addition,
in order to prevent such offences from occurring in the first place, substantial information
sharing and comprehensive intelligence gathering across many jurisdictions has to take place.
As pointed out in an earlier MHA proposal on this issue, with the creation of a central law
enforcement agency “the inter-State linkages of the conspiracies and activities of organized
crime syndicates and of terrorist groups can be better traced and their ramifications tackled in
their entirety for effectively neutralizing the threats that they pose to national security.” 2 State
law enforcement agencies, with their limited jurisdictions, cannot do this alone. In the absence
of a national mechanism, prevention and investigation of all-India crime will remain uncertain
and ad hoc. The creation of a national agency has been in the minds of many for a long time.
In Prakash Singh the Supreme Court received materials from the National Human Rights
Commission, the Soli Sorabjee Committee, the Bureau of Police Research & Development
(BPR&D) and the Second Administrative Reforms Commission on the need and scope of a
national investigation agency. For instance, the BPR&D stated: The rapidity and relative ease
of the adoption of new technologies and innovative methods of planning, coordinating and
execution of cross-border crimes by the organized crime-terrorist nexus has outpaced the speed
with which the Law Enforcement Agencies at the state level have been able to afford to
“modernize” themselves in terms of the resource base, expertise level, adoption and

2
Prakash Singh v. Union of India (2006)
assimilation of new technologies of crime detection and prevention, adequately trained
manpower to take on the new age tech-savvy terrorist organized crime nexus. Thus, it can be
safely asserted that we do have a pressing need to declare certain offences having inter-state
and international ramifications as “federal offences” to be investigated by a designated Federal
Agency having the required level of expertise. Although the Court reserved judgement on this
particular issue, the materials submitted generally agree that (a) a national investigation agency
is needed; and (b) that a national investigation agency should have suo moto 3 jurisdiction over
an offence that:

• Has international/interstate ramifications; or

• Relates to the security of the nation; or
• Relates to the activities of the Central government; or
• Relates to corruption in All India Services; or
• Relates to government currency and cross-border offences and have the potential to threaten
the security and integrity of the nation.

CONSTITUTION OF THE NATIONAL

INVESTIGATION AGENCY
The National Investigation Agency is constituted by an Act called ‘National Investigation Agency
Act, 2008’. This law extends to the whole of India and also applies to Indian citizens living outside
the country and to the people boarded on ships and aircraft registered in India. This legislation calls
for the constitution of the National Investigation Agency by the Central Government. The powers
of the agency are kept restricted to the offences under the Acts specified in the Schedule of this
Act. The agency has the power to search, seize, arrest, and prosecute the accused and others
involved in these offences.

NATIONAL INVESTIGATION AGENCY

(AMENDMENT) ACT, 2019
This Act was amended in 2019 with the aim of including more offences in the Schedule of the
Act and with the objective of making the investigation and prosecution carried out by the
agency faster and more efficient. It was passed in the Lok Sabha with a majority of 278 votes
in favour.

Some key changes after the amendment are as follows:

3
Suo moto is defined as “on its own motion”
1. It widens the scope of the law as it allows the National Investigation Agency to probe
into cases of human trafficking, offences related to counterfeit notes, smuggling of illegal arms,
cyber-terrorism and offences under the Explosives Substances Act, 1908.
2. It allowed the Centre to designate sessions courts as Special courts for the trial of
scheduled offences after consultation with the Chief Justice of High Court.
3. It allowed the state governments to designate Sessions courts as Special courts.
4. It empowered the agency to investigate and prosecute offences related to the Schedule
committed outside India in line with the international treaties and conventions and the laws of
the other countries.

Section 6 of the NIA Act empowers the Central Government to usurp the investigation. It
stipulates that whenever a case of scheduled offences is registered at any police station in
India, the officer-in- charge of the police station shall forward the report to the State Govern-
ment, which, in turn shall be forwarded expeditiously to the Central Government and within
fifteen days from the date of receipt of it, the latter shall determine, on the basis of information
made available by the former or received from other sources, whether the offence is a sched-
uled offence or not and also whether, having regard to the gravity of the offence and other
relevant factors, it is a fit case to be investigated by the Agency. If the Central Government is
of the opinion that it is to be investigated by the Agency, it shall direct the Agency to conduct
the investigation. This apart, in any case, if the Central Government is of the opinion that a
scheduled offence has been committed which is required to be investigated under the NIA Act, it
may suo motu direct the Agency to investigate it. Once the Central Government has taken the
decision entrusting the investigation to NIA, the State Government and its police officer in-
vestigating the offence shall forthwith transmit the relevant documents and records to the
Agency sans proceeding further. Till the Agency takes up the investigation, it shall be the
duty of the officer-in-charge of the police station to continue the investigation. Of offences to
which the NIA Act extends committed outside India, the Central Government may direct the
Agency to register the case and take up investigation as if such offence has been committed
in India.
The provision of law being the above, it is apparent that the State Governments have no say
if the Central Government decides to get the cases investigated by the NIA. The legal sanctity
of giving such a power by a statute is being examined here.
 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.

ISSUES RAISED BY THE CREATION OF

THE NATIONAL INVESTIGATION
AGENCY
The sudden creation of the National Investigation Agency came in immediate reaction to public clamour
after the events in Mumbai, the latest in a string of horrific terrorist attacks. But the complex topic of
creating a national policing agency has not been the subject of any recent government public white
paper. No comprehensive analysis of the issues was done, no review of existing legislation and
capabilities has been conducted, and an invitation was not extended to the States or civil society to
suggest possible alternatives. The haste in which this Act has been conceived has left unresolved many
issues about the NIA’s constitutional validity, functioning, and scope.

CONSTITUTIONALITY CHALLENGE OF
NATIONAL INVESTIGATION AGENCY
ACT, 2008
In 2012 a Criminal Writ Petition was filed before the Hon’ble Bombay High Court in which
the constitutionality of the National Investigation Agency Act 2008 came in question 4. The

4
Criminal Writ Petition No.4049 of 2012.
Division bench in Pragya Singh Chandra Pal Singh Thakur v. National Investigation
Agency 5decided the constitutionality of the National Investigation Agency Act on October
11th, 2013.
It was stated that the Parliament does not encompass the competence to enact such an Act,
because police is a subject matter of the state as per the VIIth schedule, list two, entry two
andthe NIA Act makes a police force at the national level and totally encroaches upon such
power of the state. The NIA Act was passed without any dissent in Parliament due to the
attacks of 2008.The law is well settled that the transfer of cases for certain offences from one
agency toanother is by powers of the Hon’ble High Court under Article 226 and 227 or by
the inherent power of the Hon’ble Supreme Court, the section 6 of the NIA is ambiguous and
abrogates the power of the courts to transfer cases.

The NIA stated that the Agency does not encroach on police powers instead they are in place
to make the law enforcement improved and better, the Union is responsible for the national
safety and integrity of the nation and the NIA helps in tackling cross-border crimes with inter-
state and international origins. Mr Setalvad, the Additional Solicitor General for India appear-
ingon behalf of National investigation Authority stated that the Union government is respon-
sible for the sovereignty, security and integrity of the nation and the NIA helps in investigation
of all suchoffences that affect the foreign relations, international treaties, conventions etc. The
NIA investigates scheduled offences that have Pan-India repercussions since the State police
machinery cannot investigate such matters with given jurisdiction and resources, the claim of
encroachment of power of state list is erroneous. Also, the National Investigation Agency falls
under entry 1, 10, 14 of the union list and entry 8 of the same list can be referred.

The court was of the view that if entry 8 of the List I can enable the Parliament to set up a Cen-
tral Bureau of Investigation, then it does not restrict to enact a National level Investigation
Agency to investigate and prosecute offences affecting national sovereignty and security and
it is not similar to setting up a police force. The Court held “it is by now well settled those
various entries in three lists are not powers of legislation but fields of legislation.” The legisla-
tive power is given by Article 2466 of the Constitution and the language of the entries must be
read in the widest of amplitude. The parliament has the power to enact laws in relation to
police force of the union territories, then the parliament cannot be said to be incompetent to
make laws in respect to NIA that also when the NIA can investigate only matters scheduled
in the NIA Act. The entries in the list are worded widely enough and to hold that Parliament
is incompetent to enact NIA Act is unduly restricting the power of the Parliament. After the
application of Pith and Substance Doctrine to find the true nature of law, the NIA does not
create a new offence and is responsibleto prosecute offences made by Parliament referable to
entries of List I. Hence the NIA falls under Entry II of List III that is the criminal procedure
after Doctrine of Pith and Substance is applied. When the Parliament can create offences by
virtue of the List then the Parliament is duly competent to make an agency to investigate and
prosecute such offences.

5
Pragya Singh Chandra Pal Singh Thakur v. National Investigation Agency, 2013 SCC Online Bom 1354.
6
The Constitution Of India
The Division Bench of the Hon’ble High Court of Bombay upheld the constitutionality of Na-
tional Investigation Agency Act, 2008 and held that by virtue of entries given in List I & List
III the Parliament is competent to create such an investigative Agency. It is also well settled
that the Parliament can enact a statute on basis of several Entries of the Lists.
In December 2019, the state of Chhattisgarh filed a plaint under Article 1317 of the Constitu-
tion claiming that the Parliament lacks the competence of enacting the National Investigation
AgencyAct, 2008. The powers are given to the defendants i.e., the NIA is arbitrary and un-
controlled.
“The NIA Act leaves no room for coordination or obtain consent from the State government
before the Central agency takes over the investigation, the plaintiff further highlights. Such
a scheme of things, "clearly repudiates the idea of state sovereignty as envisaged under
the Constitution of India".8
The plaintiff stated that the NIA is ultra vires as well as against the Federal spirit where
both state and Centre are independent and respect each other’s jurisdiction as per the
constitution.

The plaintiff has prayed before the Hon’ble Supreme Court to declare the National Investigation
Agency Act, 2008 unconstitutional or declare the Sections 6, 7, 8 & 10 of the National
Investigation Agency Act, 2008 as ultra vires to the Constitution of India.

NATIONAL INVESTIGATION AGENCY

ACT, 2008 AND STATE CONSENT
Section 6 of the NIA Act empowers the Union Government to ask the Agency to investigate
scheduled offences if the Government seems fit. This means that the Union Government
doesn’trequire for permission or consent from any State before the NIA starts investigation
in the territory of the state, and therefore the Union can ask the NIA to investigate matters
that are even remotely related to the scheduled offences. The NIA need not even consult with
the State Government unlike the Narcotic Drugs and Psychotropic Substances Act, 1985
where Section 53 provides for “after consultation with the state governments” 9 or the Delhi
Special Police Establishment Act, 1946 i.e., Central Bureau of Investigation (CBI) where
section 6 clearly demands the consent of the State Government for any investigation.
Assuming the competence of the Parliament in enacting such an Act, the Section 6 and 8 of
the NIA Act leaves a colossal space for the Central Government to act arbitrarily in the terri-
tory of any State that destroys the very essence of Federalism and Democracy. The Hon’ble

7
The Constitution Of India
8
Meera Emmanuel, Breaking: State of Chhattisgarh files plaint challenging constitutionality of NIA
9
U/S 53, Narcotic Drugs and Psychotropic Substances Act, 1985, No. 61 of 1985, INDIA CODE (1985).
Supreme Court has held that Federalism is the part of the basic structure of the Indian Con-
stitution.10 Further the Suo Moto cognisance power given to the Union government allows
the centre to initiate proceedings against anyone in the State is arbitrary. 11This may allow
the central Government to act malefice against anyone whose offence may actually be a part
of the Indian Penal Code and not a scheduled offence under the NIA Act and responsibility of
the State Police Officials. Taking reference to the Unlawful Activities (Prevention) Act, 1967,
the act after the 2019 amendment provides that an individual involved in any unlawful activity
can be declared as a terrorist. This creates a possibility that where an offence committed by a
person falls underthe Penal Code, the Centre may act upon it and through the garb of NIA
and the UA(P)A and the person is prosecuted. This snatches away the police power, which is
arbitrary, and also destructs the meaning of Federalism.

The NIA Act provides that the Agency will investigate scheduled offences under the said Act
but,if there are any connected offences with the scheduled offence then the Agency can inves-
tigate the other offences as well. Therefore, the NIA can take over the charge from the Police
officer under Section 6 of the NIA Act and then investigate offences outside the Act under
section 7 of the said Act. Meaning that the NIA can overtake the investigating power from the
Police and act as the police without the consent from the State despite the fact that both Public
order and Police both are exclusive entries in the State list.

CONCLUSION
Ostensibly, the ultimate objective of the NIA is to make Indians more secure by addressing the
gaps in our current approach to preventing and investigating offences with a transnational
character. However, the NIA can only work if it has the cooperation of State governments,
irrespective of their political affiliation, and has the long term confidence of ordinary people.
Unfortunately, there are serious questions about the constitutional validity of the NIA. In
addition, the NIA has to overcome the fact that it was created in haste, it repeats the systemic
shortcomings of other police agencies in India, it is potentially open to political interference
and it arguably should have jurisdiction over additional offences that have a trans-national
character. The only way to potentially make the NIA different and much more effective is to
debate its shortfalls openly and honestly, draw in a variety of voices, and incorporate checks
and balances that will minimise the possibility of failure. Sections 23 and 24 of the NIA Act,
which empower the Central government to remove difficulties and make rules, provide the
opportunity to make considerable improvements to the NIA such as clarifying what “other
relevant factors” can be considered in directing the Agency to investigate a Scheduled Offence.
By mustering the requisite political will at both Centre and State levels, perhaps the NIA can
become an exemplar for overall changes in future policing.

10
S. R. Bommai and Ors. v. Union of India and Ors, (1994) 3 SCC 1.
11
U/S 6(5), National Investigation Agency Act, 2019
 BIBLIOBRAPHY
 The National Investigation Agency Act, 2008

 S. Abdul Khader Kanju, Commentaries on The National Investigation Agency Act

(Asia Law House ,Mumbai, 6th edn., 2022)

 Rajiv Raheja, Manual of national security laws in India (Capital law house, Kolkata,
3rd Edition, 2009)

WEBLIOGRAPHY
 https://byjus.com/free-ias-prep/national-investigation-agency-nia/

 https://prsindia.org/billtrack/the-national-investigation-agency-amendment-bill-2019

 https://images.assettype.com/barandbench/2020-01/a986997f-b4b1-4d2d-b32a-
4686b367cd3b/Final_Draft_NIA_Original_Suit.pdf

 https://en.wikipedia.org/wiki/National_Investigation_Agency

 https://www.drishtiias.com/important-institutions/drishti-specials-important-
institutions-national-institutions/national-investigation-agency