The law does not prevent the Centre from transferring some cases against separatist leader Masarat Alam to the National Investigation Agency, as is being planned by the Union Home Affairs Ministry. The new Jammu and Kashmir government recently released the Muslim League leader from prison.
Of the 27 cases, eight are learnt to be offences under the Unlawful Activities (Prevention) Act or UAPA, 1967.
Under the National Investigation Agency Act, 2008, the Centre could suo motu transfer UAPA cases from the State government to the NIA.
An offence under the UAPA is a “scheduled offence” under the Act. This means the Centre has full discretionary powers to decide whether it warrants investigation and prosecution by the NIA.
Section 6 (5) of the Act says, “If the Central government is of the opinion that a scheduled offence has been committed which is required to be investigated under this Act, it may, suo motu , direct the Agency [NIA] to investigate the said offence.”
Once the NIA takes over, the State government is mandated to help. Section 9 says, “The State government shall extend all assistance and cooperation to the agency for investigation of the scheduled offences.” Again, the NIA is empowered to investigate “connected offences.”
UAPA was enacted to impose “reasonable restrictions” on the rights of freedom of speech and expression, peaceful assembly and forming of associations or unions in the “interests of the sovereignty and integrity of India.” “Besides, separatist activities come under the Concurrent List of the Constitution as matters affecting the security of the state,” Bhim Singh, J&K National Panthers Party leader and senior lawyer, said.
However, legal experts are critical of the NIA Act allowing the Centre virtual control over investigation and prosecution of the scheduled offences. This is when the NIA team would be chosen by the Centre, with the State government playing no part. Section 4 of the Act clearly says that the “superintendence” of the NIA vests with the Centre.
