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.
