Unscrambling the NIA Amendment Act, 2019: A Tool Against Terrorism or a Political Facade?
In India, the government’s combative measures against terrorism have always been a head-on collision with the rights, security, and privacy of the citizens. While, on one hand, the government introduces the law to strengthen the national security, whereas, on the other, it risks the very security of citizens it seeks to protect. The recent amendments in the National Investigation Act, 2008 (NIA Act, 2008)[i] and Unlawful Activities (Prevention) Act, 1967 (UAPA Act)[ii] have created a pandemonium in the country due to the ramifications they bring along.[iii] Nevertheless, the central government seems persistent while introducing these amendments as they amplify the scope and applicability of these acts to strengthen national security.[iv] Keeping this in mind, the present article pursues the recent amendments brought in the NIA Act, 2008 and analyses what might be ensued from them. This article proceeds by first, introducing the NIA Act and how it fell short since its inception. Thereafter, in the second part of this article, the Central government’s outlook behind introducing the NIA Amendment Bill 2019 has been examined. In the next part of the article, careful scrutiny of the possible ramifications that this extra-ordinary law brings about has been made. Lastly, the article concludes by suggesting the recommendations to improve this act further.
The Nia Act, 2008 and its Shortcomings
The NIA Act was introduced in 2008 by the erstwhile ruling government as a response towards the large-scale terrorism sponsored from across the borders.[v] It was enacted in aftermath of the brutal attacks of 26/11 at Mumbai which sent the shockwaves throughout the entire nation.[vi] The objective behind the NIA Act was to constitute a national level investigative body to avert the happening of offences having national or cross-border repercussions in the first place[vii]. The act empowered the Central Government to direct the National Investigation Agency (NIA) to take over a case on a request made by the state government or in its own capacity.[viii] Here, the offence investigated must fall under the purview of Central Acts mentioned in the schedule attached with the NIA Act.[ix]
The NIA Act, 2008 was brought in to facilitate speedy trials and deliver quick judicial pronouncements by the establishment of the special courts.[x] However, as of November 2016, the NIA made a conviction in 11 cases out of the 93 cases it investigated and registered under the NIA Act, 2008 since its inception.[xi] Further, the NIA failed to produce any substantial evidence in cases like; bombings in Samjhauta Express[xii], Malegaon Blasts[xiii] and Ajmer Blasts[xiv]. The act lacked the provision for investigation of those scheduled offences which happened against the Indians outside the territory of India.[xv] Taking these issues into account, a need for amendment in the NIA Act was constantly felt by the Union Government. Finally, on July 7th, 2019, the Union Government introduced a bill to amend the NIA Act seeking to strengthen the national security of India.[xvi]
NIA Amendment Act, 2019: Advantages Sought by the Central Government
The bill introduced by the Union Government made three vital changes in the original act. These were:
The government widened the scope of offences that the NIA used to investigate under the original act. Previously, the NIA used to investigate offences falling under the purview of acts such as the Atomic Energy Act, 1962, and the Unlawful Activities (Prevention) Act, 1967 etc.[xvii] However, the recent amendment broadened this scope and equipped the NIA to investigate offences under the Explosive Substance Act, 1908, Section 370, 370 A, 489 A-E of the Indian Penal Code, 1860, etc.[xviii] The kind of offences under these sections is that of trafficking and exploitation of a person, counterfeiting currency, cyber terrorism etc. Further, the usage of the term “affecting the interest of India” under Section 2 (iii) of the bill provides an absolute power to the Central government for trying or investigating a person under this act.[xix]
Secondly, the bill enlarges the jurisdiction of the NIA. Previously, the authority and power of NIA officers were equivalent to that of any other police officer in India.[xx] However, these powers were restricted across the territorial borders of India.[xxi] Due to this, the NIA officers were not sanctioned to investigate offences which were committed against the Indians outside the Indian territory. But, an amendment in Section 3 of the NIA Act has put an end to this impasse as the amended provision allows an NIA officer to investigate beyond the territories of India subject to any international treaty or domestic law of that concerned country.[xxii] Further, these offences taking place outside the territories of India will be tried and investigated at the special court situated at New Delhi.[xxiii]
Thirdly, the bill permits the Central Government to designate one or more courts of the session as Special Court for the purpose of constituting a trial against an accused under the NIA Act.[xxiv] Earlier, the Central Government used to constitute a special court for the trial of scheduled offences.[xxv] In doing so, the Special Court was constituted in name of a particular judge as recommended by the High Court of the concerned state to the Central Government.[xxvi] But, the actual inception of such special courts became a far cry vis-a-vis the provisions inserted in the NIA Act.[xxvii] Instead, the majority of these special courts set up under the NIA Act have actually been the designated courts.[xxviii] Due to this, cases having significant importance used to get delayed for months. However, by virtue of an amendment in Section 11 of the NIA Act[xxix], the government aims at ensuring the speedy trial and avoid a case from being delayed further.
Therefore, by bringing in these typical measures, the Union Government aims to firmly counter terrorism. The amended provisions expand the executive’s power to uproot the menace of terrorism against the citizens of India. Further, the new act aims at prosecuting the scheduled offences outside the territory of India. Therefore, the countries which aim at facilitating such investigation will now be aided by the amended act. Finally, by designating a sessions court as a special court for the purpose of trial of a scheduled offence under the NIA Act, the Union Government aims at swift disposal of a case without an official hurdle.
Possible Ramifications of the Amended Act
Whenever major security legislation is enacted or amended, it always creates a sense of fear amongst a fraction of citizens due to the portrayal of more stringent legal measures by the state. The NIA Act is not an exception to this phenomenon. Even after the enactment of this act in 2008, it was constantly challenged on its constitutional validity.[xxx] Recently, a petition was filed in Jammu and Kashmir High Court to decide the validity of the NIA Act in the state.[xxxi] These instances prove a sense of unacceptability when it comes to the NIA Act. Therefore, when the Union Government introduced an amendment to implement further stringent provisions, it met with a bitter reception. Following are the issues which invoke opposition towards the amended act: –
The definition of terrorism is an issue which has remained unsettled in the Indian legal parlance. Whereas the UAPA Act defines the term ‘terrorist act’ under Section 15, no concrete definition of the term ‘terrorism’ has been laid out in any central act of India.[xxxii] In fact, the term ‘terrorism’ is to be read in a construed manner along with the term ‘terrorist act’ in Section 2 (k) of the UAPA Act.[xxxiii] Therefore, the discretion here lies with the Central Government and the NIA to term a particular act as an act of terrorism. On similar lines, the insertion of Section 1 (d) in the NIA Act has amplified the Union Government’s power to categorise an offence as an act of terrorism. Section 1 (d) of the amended Act uses the phrase “affecting the interest of India”.[xxxiv] This leaves an unclear impression as it opens a passage to severely misuse this provision and categorise any act as an act of terrorism. Such lack of clarity in an act as crucial as the NIA Act is not tenable. In future, any other elected party or the current ruling government might misuse such provision for the purpose to fulfil its own political crusade.
As stated earlier, the bill seeks to designate the Sessions Court as a Special Court to probe trial of a scheduled offence under the NIA Act. This has been done to swiftly dispose of a case without any official hurdle owing to multiple reasons like delay in setting up of special courts, difficulty in the appointment of the judge heading the Special Court etc. However, the purpose of appointment of Special Court by the Central Government was inserted to make the act exclusive and expedite the trials. In other words, designating Sessions Court as a Special Court does not strengthen the NIA Act. Instead, the exclusivity of this act will get diluted as this special act should not run in similar lines as that of any other Central Act. Further, the Sessions Courts at various states are already clogged with loads of pending cases.[xxxv] Under these circumstances, designating sessions court as a special court will simply increase the burden and would lead to piling up of unsolved cases.
The amended act broadens the range of offences under the schedule which is attached along with the NIA act. Now, offences such as cyber terrorism under Section 66-F of the Information and Technology Act[xxxvi], trafficking of a person under the Indian Penal Code[xxxvii] can also be investigated by the NIA. However, in absence of a data protection act and terms like ‘terrorism’ and ‘cyber terrorism’ not being defined anywhere, the inclusion of Section 66-F under the NIA Act threatens the rights of citizens of India. Similarly, every act of human trafficking cannot be termed as an act of terrorism. For the sake of argument, it can be stated that the gravity of these offences is indeed a threat to national security. But, an absolute autonomy to designate and treat any individual as a terrorist is a testament of the state progressing towards an Orwellian regime.
The possible ramifications of this act draw attention towards the methods which might wane off the civil liberties of the citizens of India and defeat the very purpose for which the NIA Act was introduced. Such departure towards extreme measures might become a tool of tyranny for the incumbent or the future governments to come.
Conclusion and Reccomendations
The statistics quoted by the NDA government states that; as of July 2019, the NIA has investigated as many as 272 cases. Out of these 272 cases, the charge sheet has been filed in 199 cases and in 51 cases the courts have already delivered their judgments with a conviction rate of 90 per cent.[xxxviii] Evidently, these statistics show the efficiency of the current ruling government. However, the law against terrorism is still at its developing stage in India. Therefore, enactment or amendment of an anti-terror law must not be in contravention with the fundamental rights of the people. While the NIA Act seeks to probe into the cases affecting the national security and deliver justice to the innocent victims, it also poses a threat to those who might fell victim of the Central Government as it vests the government with a lot of sweeping powers. Perhaps, a better way forward is to improvise this act further with the following additions: –
To provide concrete and independent definitions of the terms like ‘terrorism’ and ‘cyber terrorism’.
To enact a specific legislative act for data protection of the citizens and thereafter, operate in consonance with it.
To restore the provision of Special Courts under Section 2 of the NIA Act and initiate a better course of action to expedite the setting up of such Special Courts.
To insert a proviso in Section 1 (d) of the amended NIA Act and define meaning and scope of the term “affecting the interest of India”.
To strengthen the diplomatic clout for investigating the scheduled offences outside the Indian territory.
[i] ‘Parliament approves bill to give NIA more teeth’, 17th Jul. 2019, available at http://ptinews.com/news/10713849_Parliament-passes-bill-to-give-NIA-more-teeth.
[ii] ‘Prez gives assent to amendments to UAPA; individuals can now be declared as terrorists’, 9th Aug. 2019, available at http://www.ptinews.com/news/10769498_Prez-gives-assent-to-amendments-to-UAPA–individuals-can-now-be-declared-as-terrorists.
[iii] ‘Amendment to the National Investigation Agency Act, 2008: An act of violation’, 16th Aug. 2019, available at https://frontline.thehindu.com/the-nation/article28758410.ece. See also ‘New Act UAPA: Absolute power to state’, 25th Oct. 2019, available at https://frontline.thehindu.com/cover-story/article29618049.ece.
[iv] ‘NIA Bill passes in Lok Sabha, Amit Shah says Modi govt. will never misuse law’, 15th Jul. 2019, available at https://www.indiatoday.in/india/story/nia-bill-passes-in-lok-sabha-amit-shah-1569438-2019-07-15.
[vi] ‘Revamping the National Security Laws of India: Need of the Hour’, p. 48, available at http://bvpnlcpune.org/Results%20PDF/REVAMPING%20THE%20NATIONAL%20SECURITY%20LAWS%20OF%20INDIA.pdf.
[vii] Anurag Deep and Fawaz Shaheen, National Investigation Agency Act 2008: Constitutionality, Desirability and Feasibility (23 ALJ 2015-16) pp. 176.
[viii] Section 6 (4) & Section 6 (5) of The National Investigative Agency Act, 2008 (Act 34 of 2008) (hereinafter “NIA”).
[ix] Ibid. at Section 2 (1) (f).
[x] Supra note 7 at 175.
[xii] ‘Samjhauta Blasts: Special court admonishes NIA methodology’, 29th Mar. 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/samjhauta-blasts-special-court-admonishes-nia-methodology/articleshow/68625322.cms?from=mdr.
[xiii] ‘2008 Malegaon blasts case: NIA fails to file charge sheet, accused get bail’, 6th Jun. 2012, available at https://timesofindia.indiatimes.com/city/mumbai/2008-Malegaon-blasts-case-NIA-fails-to-file-chargesheet-accused-gets-bail/articleshow/13857477.cms.
[xiv] ‘The ones that got away’, 9th Apr. 2017, available at https://www.indiatoday.in/magazine/up-front/story/20170417-sadhvi-pragya-ajmer-dargah-bombing-nia-cleared-986157-2017-04-09
[xv] Supra note 7 at 179.
[xvi] ‘Government introduces bill in Lok Sabha to amend NIA Act’, 8th Jul. 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/government-introduces-bill-in-lok-sabha-to-amend-nia-act/articleshow/70128598.cms.
[xvii] Supra note 7.
[xviii] Section 8, The National Investigation Agency (Amendment) Act, 2019 (Act 16 of 2019) (hereinafter “NIA 2019”).
[xix] Ibid at S. 2 (iii).
[xx] NIA, supra note 8, S. 3 (2) & 3 (3).
[xxii] NIA 2019, supra note 18, S. 4.
[xxiii] Ibid, S. 5.
[xxiv] Id, S. 6.
[xxv] Supra note 6 at 99.
[xxvii] ‘What is special about special courts’, 3rd Jan. 2017, available at https://www.thehindu.com/opinion/op-ed/What-is-special-about-special-courts/article16978952.ece.
[xxix] Supra note 24.
[xxx] Pragyasingh Chandrapalsingh Thakur vs. The National Investigation Agency, 2013 SCC Online Bom 1354: (2013) 6 AIR Bom R 1171.
[xxxi] ‘Jammu and Kashmir HC to decide validity of NIA Act in state: Parliament may have trespassed into residuary power of Assembly’, 25th Jul. 2019, available at https://vidhilegalpolicy.in/2019/07/25/jammu-and-kashmir-hc-to-decide-validity-of-nia-act-in-state-parliament-may-have-trespassed-into-residuary-power-of-assembly-firstpost/
[xxxii] Section 15, Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967) (hereinafter “UAPA”).
[xxxiii] Ibid, S. 2 (k).
[xxxiv] Supra note 19.
[xxxv] ‘Hidden factors that slow our courts and delay justice’, 29th Mar. 2019 , available at https://economictimes.indiatimes.com/news/politics-and-nation/hidden-factors-that-slow-our-courts-and-delay-justice/articleshow/57887726.cms.
[xxxvi] Section 66-F, The Information Technology Act, 2000 (Act 21 of 2000).
[xxxvii] Section 370 & 370-A, The Indian Penal Code, 1860 (Act 45 of 1860).
[xxxviii] ‘Amit Shah says ‘only goal to finish terrorism’ after Lok Sabha passes bill to allow NIA to probe terrorist acts against Indians’, 15th Jul. 2019, available at https://www.firstpost.com/india/amit-shah-says-only-goal-to-finish-terrorism-after-lok-sabha-passes-bill-to-allow-nia-to-probe-terrorist-acts-against-indians-6997001.html.
This blog is a part of the RSRR Blog Series on National Security Laws. By Sumukh Tiwari, 3rd year student of Rajiv Gandhi National University of Law, Punjab.