Saturday 19 March 2011

Is National Investigation Agency Act, 2008 Constitutional?

Centre State relationships are very complicated and difficult to maintain. This is more so when law and enforcement issues are involved. With the enactment of National Investigation Agency Act, 2008 (NIA 2008), many constitutional issues were also raised by constitutional experts in this regard.

Although the government of India in general and Home Minister P. Chidambaram in particular did not react to these comments yet the recent revelations by WikiLeaks has shown that even P .Chidambaram was apprehensive of the constitutionality of NIA 2008.

Not very late the Goa police was chided for not sending details of the Diwali-eve bomb blast investigations to the National Investigating Agency (NIA) set up in 2008 to investigate terror-related crimes in the country.

Law enforcement and intelligence agencies are virtually governed by no law in India. The government of India (GOI) never took pain to provide a viable and constitutionally sound legal framework for these institutions in India. Most of them are still governed by colonial and outdated laws. Surprisingly, this scenario has not been challenged in the Indian courts. It is in 2010 that the Central Bureau of Investigation Act, 2010 (still a Bill) has been suggested by CBI and CBI has been working so far with practically no law.

The Constitution of India has mandated that law enforcement is a matter of “State List”. The Center cannot legislate on this crucial area. If the Center makes a law in this regard, the same would disturb the harmony between the Center and States relations. So does India has any constitutionally valid legal framework for law enforcement and/or intelligence agencies?

According to Praveen Dalal, the leading Techno-Legal Expert of India and Managing Partner of Perry4Law, “With the enactment of National Investigation Agency Act, 2008 some steps have been taken in this regard. However, the Viability and Constitutionality of this Act is yet to be checked, informs Dalal. This viewpoint of Praveen Dalal has now also been approved by Home Minister Mr. P. Chidambaram through WikiLeaks revelations.

When the Center encroaches upon the powers of the States, constitutional crisis and disputes are bound to arise. Realising the seriousness of the issue, Perry4Law has provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” to the Government of India in 2009.

The government of India has still to enact suitable laws in this crucial direction. In the absence of the same, there are great chances that instances of lack of mutual understanding and cooperation between NIA and State police force may increase. In fact, to a great extent the State police may be well within its rights and power to ignore the mandates of the NIA 2008 due to constitutional issues.