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National Investigation Agency: Jurisdiction, Criticisms & Recent Amendments

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  • Context (Mint): Recently, the National Investigation Agency (NIA) raided 22 locations in J&K, Delhi, UP, Maha, and Assam in a probe related to Jaish-e-Mohammad activities.

About National Investigation Agency (NIA)

National Investigation Agency (NIA)

  • The NIA is a specialised counter-terrorism law enforcement agency headquartered in New Delhi, empowered to investigate terror-related crimes across states without special permission from the states.
  • NIA is headed by a director general, who is an IPS officer and has the rank of Director General of Police.
  • It was created after the 2008 Mumbai terror attacks with the enactment of the National Investigation Agency Act 2008 by the parliament.

Constitution of National Investigation Agency

  • As per the Police Act. 1861, the Central govt may constitute a special agency called the National Investigation Agency for investigating & prosecuting offences under the Acts specified in Schedule.
  • NIA officers have the same powers, duties, privileges, and liabilities as police officers throughout India when investigating scheduled offences and arresting suspects, subject to any Central Government orders.
  • NIA Sub-Inspectors and above can act as police station officers anywhere in India, subject to Central Government orders, while performing their duties.

Which offenses are under NIA regulation?

  • Terrorism: The NIA can investigate and prosecute terror attacks in any part of India.
  • Threats to sovereignty: It investigates offences that challenge India’s sovereignty, integrity, and security.
  • Nuclear and atomic offences: The NIA investigates offences related to nuclear weapons, atomic energy, and nuclear installations.
  • Hijacking: The NIA investigates offences related to hijacking aircraft and ships.
  • Smuggling: The NIA investigates the smuggling of high-quality counterfeit Indian currency.
  • Unlawful activities: The NIA investigates offences related to unlawful activities, such as those under the Unlawful Activities (Prevention) Act of 1967.
  • Explosive substances: The NIA investigates offences related to explosive substances.
  • Offenses under the Indian Penal Code: The NIA investigates offences under Chapter VI of the Indian Penal Code, sections 121 to 130, and sections 489-A to 489-E.
  • The “SAARC Convention (Suppression of Terrorism) Act, 1993: Applies to the entire territory of India and can also be applied to offences committed by Indian citizens outside India in certain situations.
  • The Weapons of Mass Destruction and their Delivery Systems: It extends to the whole of India including its Exclusive Economic Zone. The provisions of this Act shall also apply to citizens outside India, companies, bodies, corporations, aircraft, ships, etc.

Investigation of Scheduled Offences

  • Local police stations must immediately forward reports of scheduled offences (received and recorded under Code section 154) to the State Government.
  • On receipt of the report under subsection (1), the State Government shall forward the report to the Central Government as expeditiously as possible.
  • The Central Government decides within 15 days if a reported offence is scheduled offence, based on information from the State Government and other sources.
  • Where the Central Government has the opinion that the offence is a Scheduled Offence and it is a fit case to be investigated by the Agency, it shall direct the Agency to investigate the said offence.
  • If the Central govt directs an investigation under subsections (4) or (5), the State govt & its police officers must cease their investigation and immediately transfer all related documents and records to the NIA.
  • The State Government shall extend all assistance and co-operation to the Agency to investigate the Scheduled Offences.
  • Unless specified otherwise in this Act, the State Government retains its power to investigate and prosecute scheduled offences and other offences under existing laws.

Jurisdiction

  • India: The NIA can investigate offences mentioned above in any part of India.
  • Outside India: The NIA can investigate scheduled offences outside India if the central government directs it. The Special Court in New Delhi has jurisdiction over these cases.
  • State government requests: State govt can request an investigation by the NIA, but the central govt must approve it.
  • Concurrent jurisdiction: As per the legislation, NIA has concurrent jurisdiction, which empowers the Central Agency to probe terror attacks in any part of the country.
  • Power to transfer investigation to State Government: With the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence.

Special Court

  • The Central Government shall, by notification in the Official Gazette, for the trial of Scheduled Offences, constitute one or more Special Courts for such area or areas.
  • A Special Court shall be presided over by a judge appointed by the Central Government on the recommendation of the Chief Justice of the High Court (HC).
  • The Agency may apply to the Chief Justice of the HC to appoint a Judge to preside over the Special Court.
  • On receipt of an application under sub-section (4), the Chief Justice shall, as soon as possible and not later than seven days, recommend a judge’s name for being appointed to preside over the Special Court.
  • The Central Government may, if required, appoint an additional judge or judges to the Special Court on the recommendation of the Chief Justice of the High Court.
  • A person shall not be qualified for appointment as a judge or an additional judge of a Special Court unless s/he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State.
  • The Central Government may by order direct that he shall continue as judge until a specified date or until completion of the trial of the case or cases before him as may be specified in that order.
  • The judge of a Special Court can distribute the workload among all judges (including themselves and any additional judges) through written orders, also addressing urgent matters in case of absence.
  • A Special Court can hold proceedings outside its usual location if it deems it necessary, either on its own initiative or at the Public Prosecutor’s request.

Jurisdiction of Special Courts

  • Every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.
  • The SC can transfer cases between Special Courts across states, while the HC can transfer cases between Special Courts within their state.
  • The SC or HC can transfer cases based on applications from the Central Government or interested parties; these applications must be by motion and supported by an affidavit unless the applicant is the Attorney-General for India.
  • A Special Court can initiate proceedings without a prior commitment for trial based on a complaint or police report detailing the offence.

Appeal

  • An appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court.
  • A bench shall hear every appeal under sub-section (1) of two Judges of the High Court and shall, as far as possible, be disposed of within three months from the date of admission of the appeal.
  • Every appeal under this section shall be preferred within thirty days from the date of the judgment.

Power of State Government to constitute Special Courts

  • The State Government may constitute one or more Special Courts for trialling offences under any or all the enactments specified in the Schedule.
  • Until a Special Court is established, the Court of Session in the relevant division will handle cases under this Act, possessing all powers and following the procedures outlined.

What are the Recent Amendments (2019) in the NIA Act?

  • Expansion: Significantly expanded the agency’s jurisdiction to investigate offences outside India.
  • Additional Cases: The amendment has allowed the NIA to investigate, in addition, cases related to human trafficking, counterfeit currency, manufacture/sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.
  • Director General: It empowers the Director General (DG) of the NIA to seize/attach properties related to the proceeds of terrorism in cases being investigated by the NIA.
  • Special Court: The 2019 amendment allowed the central government to designate Sessions Courts as Special Courts for trial of scheduled offences under the Act.
  • Power of State Government: State governments may also designate Sessions Courts as Special Courts for the trial of scheduled offences.

Criticisms and Challenges of NIA

  • Concerns about human rights: There have been concerns raised about potential human rights violations during investigations, particularly regarding the use of coercive interrogation techniques.
  • Overreach: Some argue that the NIA’s powers are too broad, leading to potential misuse and infringement of civil liberties.
  • Resource Constraints: Like many agencies, the NIA faces challenges related to resource allocation, including funding, personnel, and technological capabilities.
  • Issues of federalism: It was contended that the centre enjoys more power under the said Act, which is why there is potential for the centre to interfere in the functions of states politically.
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