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Updated: March 19, 2011 05:44 IST

NIA pushing constitutional limits, Chidambaram told FBI

Nirupama Subramanian
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Union Home Minister P. Chidambaram at the Parliament House on Friday. According to a U.S. Embassy cable, Mr. Chidambaram expressed serious doubts about the NIA’s validity, two months after it was set up. Photo: Rajeev Bhatt
Union Home Minister P. Chidambaram at the Parliament House on Friday. According to a U.S. Embassy cable, Mr. Chidambaram expressed serious doubts about the NIA’s validity, two months after it was set up. Photo: Rajeev Bhatt

Its powers ‘perilously close’ to violating provisions on Centre-State relations

Two months after the National Investigation Agency (NIA) was set up by an Act of Parliament, Union Home Minister P. Chidambaram confided to a top-ranking U.S. official that its powers could be challenged in the courts as violating constitutional provisions on Centre-State relations.

A U.S. Embassy cable (195165: secret, March 4, 2009) accessed by The Hindu through WikiLeaks quotes Mr. Chidambaram telling the Federal Bureau of Investigation (FBI) Director Robert Mueller at a meeting in New Delhi on March 3, 2009 that the NIA was a “new weapon in hand to combat terrorism,” but he appeared unsure of its constitutionality.

The NIA came into existence after Parliament passed the National Investigation Agency Bill within a month of the November 2008 Mumbai terror attacks. As a federal agency, the NIA can supersede the State police in the investigation and trial of offences under Acts specified in its Schedule.

The offences relate to terrorist acts such as hijacking, bomb blasts, attacks on nuclear installations and any others deemed as challenging the country's sovereignty and integrity.

The Bill was hurriedly passed by Parliament along with another new counter-terrorism legislation, the Unlawful Activities (Prevention) Amendment Bill, 2008.

There were few dissenting voices when the NIA Bill was debated. Speaking in the Rajya Sabha, Sitaram Yechury of the Communist Party of India (Marxist) suggested an amendment to make mandatory the association of the State government in the investigation and trial of offences.

But there was not adequate deliberation and Parliament cleared it within four days of its introduction, egged on by Mr. Chidambaram who told the Rajya Sabha: “People are looking at us. As I speak today, people are watching us. People will watch us on television tomorrow. People are asking, ‘Is this the Parliament of India the sentinel on TV? Is the Parliament of India an appropriate sentinel to guard our liberty?”

By the time of his meeting with the FBI Director a little more than two months later, the Home Minister, a senior counsel, seems to have had serious doubts about the constitutional validity of the NIA.

“[Mr. Chidambaram] conceded that he was coming ‘perilously close to crossing constitutional limits' in empowering the NIA. He explained the concept of a ‘federal' crime does not exist in India, with law and order the responsibility of the state governments,” Charge d'Affaires Steven White cabled about the meeting.

State government’s permission required

Explaining that federal law enforcement agencies had to seek the permission of State governments to become involved in an investigation, he “opined that the NIA law would be challenged in court because it ascribes certain investigating powers to the NIA which may be seen to conflict with responsibility that is exclusively with the states.”

Mr. Mueller said it was easier in the U.S. as the Constitution empowers the FBI when crimes “cross states borders,” but noted that it too faced jurisdictional problems from local, State and federal agencies.

One of the NIA's early successes was the arrest of Jewel Garlosa, the leader of the Black Widow militant group in Assam, in June 2009. Among the cases being investigated by the NIA are the David Headley case and the Samjhauta Express firebombing.

The Centre is also mulling whether to hand over to the NIA certain terror cases linked to Hindutva groups, such as the Malegaon case and the Mecca Masjid case that are being investigated by the CBI.

The NIA may also take over investigations into the Ajmer Sharif blasts, and the murder of Sunil Joshi, an RSS worker who was a suspect in the Samjhauta case, being investigated by the relevant State government.

National interest and security of India must reign supreme and it should be achieved by all legal means. Law is subservient to the nation and the society. Right action of the govt.should be supported.

from:  d.j.sharma
Posted on: Jul 9, 2011 at 10:44 IST

While I understand concerns regarding the secrets of one's own government to another power and especially a power like the United States which may leverage this information to its own gains, I see absolutely nothing wrong with Mr.Chidambaram voicing his concerns as one a professional whose charge includes the nation's security to another professional internal security expert like an FBI chief. I am sure he was interested in FBI's own experience in dealing with laws that were deemed controversial or in contest with the existing civil liberty laws of the United States. Let us not be too touchy about every conversation between our politicians and legitimate interlocutors.

from:  Siva
Posted on: Mar 20, 2011 at 05:35 IST

I really don't understand how a politician or a diplomat, though it is off the record, can share secrets related to his Motherland with other nationals. The Prime Minister may rub the dust off, saying no money was distributed during the trust vote, but he completely failed to convince the people of the country. Kudos to 'The Hindu' for its pain-staking efforts in bringing the sensational truth out. Chidambaram's arrogance has cost the country's safety a lot, with a steep increase in the Maosit activities. It's high time now for the UPA government to come out clean with every possible explanation.

from:  Saritha Chilakamarri
Posted on: Mar 19, 2011 at 18:35 IST

Hi guys! Be fair to him. Even if this is true, such things this happen in any country. Sometimes a legislation is required. But you push it ahead, as a human being, with some doubts. I do not see anything wrong in it. In our day to day activities itself, sometimes we doubt ourselves. He is a performer and his pluses are more than his minuses. Period.

from:  Anandh
Posted on: Mar 19, 2011 at 15:05 IST

Constitution can be adequately amended to tackle terrorism. The centre-state issues are irrelevant, when the question is of National security. PC should not be that naive.

from:  Dr. Kartikay Pandey
Posted on: Mar 19, 2011 at 14:50 IST

If PC feels that NIA is pushing constitutional limits, then the right changes need to be made to the Constitution. Pushing the NIA back is a retrograde step and will only serve to empower the States again who have done pitifully little in combating terror of any nature (sure, there are a few exceptions too).

from:  Pratish Menon
Posted on: Mar 19, 2011 at 14:31 IST

This wikileaks is creating problems and destroying the cool relation between the union and states.

from:  Jayanta
Posted on: Mar 19, 2011 at 12:38 IST

What NIA has achieved after its inception? Anything significant it accomplished? I am not questioning its existence. By limiting its powers even more, it could be ended up like 'just another' investigating govt agency that takes ages to resolve cases with too many jurisdictional limitations.

from:  Sunny
Posted on: Mar 19, 2011 at 12:03 IST

Mr. Chidambaram's reported admission that he was coming 'perilously close to crossing constitutional limits' in empowering the NIA ought to be a matter of concern to the people of this country. The Home Minister is certain to question the veracity of the WikiLeaks quotes in this regard and say that he never made any such admission to anybody. However the reputation of the government and its leaders is so low at present that nobody will believe him.

from:  K.Vijayakumar
Posted on: Mar 19, 2011 at 09:58 IST

Why does everyone need to interfere in such matters? I understand that WikiLeaks is doing their job. However we as educated citizens should also understand that the Government is trying to solve issues by setting up agencies and at times results are not as planned. The NIA powers may conflict with the constitution. Can't we amend such acts which are or may cause the central Govt to loose control or limit itself from proper functioning? Instead of criticizing the Govt for their attempt, I say attempt and not a resolution, to make things right. Let's support the people whom we have chosen till the next elections. Please note that we have some well educated and highly capable people managing the system. I plead to the nation to support the Govt and to help them find a solution to the problems on which the foundation has already been laid.

from:  Hiren
Posted on: Mar 19, 2011 at 09:46 IST

The seriousness of the Congress about any hyped counter terror measure is highly suspect! The party is more concerned to use the federal institutions to clip the feathers of the opposition ruled states and weaken the opposition in general, than launch any counter terror measure seriously! Their concern over 'Hindu terror' (bit exaggerated fears for political reasons) more than the Islamic or Maoist challenges is not unknown! The Centre's refusal to approve the anti terror law of Gujarat on Pak border while exactly similar law of Maharashtra ruled by Congress was approved earlier shows the double standards! The washing off of inter state Maoist /naxal terror to state's responsibility and the hesitation to dispose the clemency petition of Afzal Guru sentenced to death by HC for planning the parliamentary blast, are examples of the lax security concerns of the rulers at the centre. The enactment of NIA may be mainly to strip the states of their powers only! It is disappointing that the opposition except Yechury didn't discuss the bill in parliament and not even cared to examine the constitutionality of the proposed Act! Indians are not safe under present politicians!

from:  Badri Poondi
Posted on: Mar 19, 2011 at 09:08 IST

Why do our ministers and political leaders talk to the Americans about our problems, concerns, policies, actions etc. Do American leaders and senior government officials share theirs with our officials? NO.

from:  Shila Verma
Posted on: Mar 19, 2011 at 06:18 IST
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