COMBATING TERROR THROUGH THE NATIONAL INVESTIGATION AGENCY
Of all the measures taken by the UPA government to deal with terrorist incidents, the establishment of a National Investigation Agency has received the widest attention. While some claim it to be an important step in the right direction, others think it is too little done too late and somewhat unsatisfactorily.
The idea of setting up such an agency is not new. Numerous expert bodies, like the National Human Rights Commission, Soli Sorabjee Committee, Padmanabahiah Committee, Justice Malimath Committee and Parliamentary Sanding Committee of the MHA have recommended its establishment.
Way back in 2001, the ruling BJP government at the centre had prepared a proposal to establish a Central Law Enforcement Agency to investigate certain crimes having interstate or international ramifications, like terrorist incidents, arms and drug trafficking, hijacking, money laundering, counterfeiting of currency, espionage and crimes targeting national infrastructure. The proposal fell through because some of the chief ministers were not willing to accept it. They felt it was an unwarranted and avoidable intrusion into their jurisdiction.
The recent Mumbai incidents led to the revival of the demand to treat certain types of crime as a national problem and controlling them as a federal responsibility. The rationale for the demand is convincing. Criminals now a days often cross interstate as well as international boundaries, using highly sophisticated methods, equipment and tactics to commit such crimes. The state police forces’ capability to prevent, investigate and deal with such crimes or to apprehend such criminals is limited by their reach, training and resources. The record of the state police forces in dealing with even ordinary crimes and law and order disturbances has been rather poor. They cannot be expected to either prevent major incidents of terrorist crimes or investigate them successfully. Terror requires fighting on many fronts and a well-established national agency can coordinate the preventive and investigative efforts with other departments much more speedily and efficiently than the state police forces can do on their own.
Public debate on the subject has revolved around two main issues. One is the Parliament’s competence to enact this law. Many arguments are given to support the competence. According to Soli Sorabjee Committee, offences aimed at destabilising the country cannot be construed as falling within “public order.” Terrorist activities blur the line of distinction between external aggression and internal disturbance. Measures taken to curb such activities are for defense of India and therefore covered in terms of Entry 1 of the Union List of the Seventh Schedule of the Constitution. The other contention is that residuary powers conferred by Article 248 read with Entry 97 of the Constitution authorise the Parliament to legislate on the subject. In addition, Entry 8 of the Union List covers “Central Bureau of Intelligence and Investigation.”
The other issue relates to the substance of the National Investigating Agency Bill, 2008 and its enforcement. The legislation shows all the signs of being drafted in unseemly haste.
The charter of this legislation is narrow and limited. As per the Preamble and Section 3(1) of the Act, the Agency has been established only to investigate and prosecute the scheduled offences. The Act is conspicuously silent about other functions, like preventing and controlling security related crimes, identifying and assessing the nature and scope of terrorist threats to the country, collecting and analysing intelligence etc.
Section 4(1) of the Act vests the superintendence of the Agency in the central government. The word ‘Superintendence’ has not been defined. There is no provision in the legislation to ensure the Agency will be autonomous in its functioning and not be misused. The record of the other central agency i.e. the CBI does not inspire confidence. There is enough evidence to show that the ruling party at the center has often misused it to either favour ones own or to harass opponents. An Agency of this type cannot function effectively without full support and cooperation of the state governments. Whether this Agency will get cooperation from the states ruled by opposition parties is yet to be settled.
Administration of the Agency vests in an officer of the rank of DGP, but the Act does not prescribe a procedure that ensures the selection of the best from the police forces in the country. The absence of such a provision is striking, because selection of the heads of police forces in the country, both at the centre and states, has often been guided by considerations other than merit.
Section 6 of the Bill requires the state government to inform the central government about the commission of a scheduled offence. It is for the central government to decide, firstly, whether it is a scheduled offence and, secondly, whether it is a fit case to be taken up for investigation by the Agency. Section 6 debars the state government to proceed with the investigation once the Agency has been asked to do so. Since the Centre has been given the overriding discretion to pick and chose what cases to investigate and prosecute, it creates an unwholesome concentration of power at the central level. The center may relegate the less glamorous investigations and prosecutions to the states. The idea in some cases may be to show that a particular state is not capable of dealing with important matters affecting national security.
As per the Statement of Objects and Reasons of the Act, the national investigating agency is being established in a “concurrent jurisdiction framework” However, investigation, as defined in Section 2 (h) of the Cr P C, is mainly police work and ‘Police’ is an item confined to the State List in the Constitution. That is why Section 6 of the Delhi Special Police Act that governs the functioning of the CBI prohibits its jurisdiction in a state without the consent of its government. The center is therefore walking on a very tight rope by setting up this police agency the way it has been done.
(Original version of the article published in the Indian Express dated January 2, 2009)
