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| NIA Must Get Support of Existing Agencies | | |
Sankar Sen
In a rare show of unanimity of parties after the Mumbai outrage, Parliament has passed two important bills ~ the National Investigating Agency (NIA) Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008. The statement of objects and reasons of the NIA bills reads: “Over the past several years India has been the victim of large-scale terrorism sponsored from across the border. There have been innumerable instances of terrorism across the borders and a large number of incidents have complex, inter-state and international linkages. Keeping all these factors in view it has been felt that there is need for setting up of an agency at the Central level for investigation of offences related to terrorism and certain other acts which have national ramifications”.
The creation of such a national agency has been under discussion for a fairly long time. It was recommended by several expert committees.
Central law
The Malimath committee, that examined the need for reforms in the criminals justice system, strongly favoured a central law for the setting up of a federal agency with all-India character. It would deal with crimes that affect national security and seek to destabilise the country politically and economically. It was also clarified that the creation of a federal agency should not preclude state agencies from taking cognizance of such crimes. The report states: “The state agencies and the central agency can have concurrent jurisdiction. However, if the federal agency takes up the case for investigation, the state agencies’ role in the investigation of the case, would automatically abate. The state agencies could also refer complicated cases to the federal agency”.
The NIA will be entrusted with the investigation and prosecution of offences falling under the Anti-Hijacking Act 1982, the Safety of Civil Aviation Act, the Atomic Energy Act 1962, the Unlawful Activities (Prevention) Act 1967, the Weapons of Mass Destruction and their Delivery System Act 2005, SAARC Convention on Suppression of Terrorism Act and Offences Against the State Act mentioned in Chapter VI of the Indian Penal Code.
The NIA Act will be applicable to the whole of India, citizens of India outside India and persons in shops and aircraft registered in India. Its officers will have all the power, privileges and liabilities that police officers have in connection with investigation of any offence.
Whenever the Centre establishes that a particular case relates to terror, it shall direct the NIA to investigate. However, the provisions of the Act with regard to investigation shall not affect the power of state governments to investigate and prosecute any terror crime or any other offences. The Act also provides that the Centre shall constitute special courts for trial of terror-related offences.
In the USA the Federal Bureau of Investigation (FBI) is entrusted with the investigation and prosecution of offences that affect the security of the country. The list of federal crimes includes such offences as money-laundering, inter-state drug trafficking, terrorism, trafficking in human beings and so on.
It is an encouraging sign that the Government of India has taken the initiative to create a federal investigating agency. Though the concept is excellent, the fact of the matter is that the new agency will take time to develop and become really effective and functional. The selection of officers, setting up of offices and sorting out of administrative tangles will take time.
It has been set up at an explosive juncture. More terrorists attacks appear to be inevitable. The US think-tank, Rand Corporation, in its report has warned India of more 26/11 type attacks. The report states that India is likely to remain a target of Pakistan-based terrorists because of its inability to compel Pakistan to dismantle its terror infrastructure.
It would have been better and more prudent if the government had enlarged the mandate of the CBI through legislation and provided it with greater wherewithal to take up this responsibility.
The Malimath Committee had recommended that the CBI should be entrusted with the responsibility of investigating federal crimes. In the case of Prakash Singh vs. Government of India, the Supreme Court received material from the National Human Rights Commission, the Bureau of Police Research and Development and the second Administrative Reforms Commission, stressing the need for an investigating agency at the national level. The NHRC stated that the CBI should be entrusted with the responsibility of investigating federal crimes. The government, however, did not heed expert opinion on the issue.
Section 3 (2) of the Act provides that the NIA has the power to investigate throughout India any offences noted in the attached schedule. However, NIA has no role in the prevention of the enumerated offences. Intelligence is a key factor in counter-terrorist operations. The NIA should have a strong intelligence wing to gather, process and coordinate the flow of information. The FBI, for example, was drastically restructured after 9/11 so that it could collaborate with other intelligence agencies. The NIA Act is silent on intelligence sharing and its relationship with other agencies that primarily gather intelligence.
Indeed, this deficiency might affect the NIA’s ability to investigate and prevent scheduled offences. The Mumbai tragedy exposed the deplorable lack of coordination between the multiple security agencies. As a security expert aptly put it, “Every individual and agency has all the material to defend himself/itself, but collectively little to defend the nation.”
Unification
In the USA, the Department of Homeland Security was created to combat terror and the various security outfits were amalgamated into four divisions ~ border and transportation security, emergency preparedness and response, chemical, biological and nuclear counter-measures. The emphasis was on unification.
Unfortunately in India, we are treading the path of diversification. The NIA as an investigation agency will succeed only when it gets the support of other existing agencies such as the Intelligence Bureau, the CBI, and the Enforcement Directorate.
Some chief ministers have expressed the fear that the NIA may be used by the Centre to subserve its political ends. Section 4(1) of the Act states that “superintendence” of the agency shall rest with the central government without actually defining and making clear what the expression really means.
The failure to define the term in the Police Act has enabled the political bosses to interfere unabashedly in the day-to-day functioning of the police and thereby erode its autonomy. The decision whether an offence warrants NIA involvement should rest with the Director-General, NIA, and not the political executives. This will lessen the scope for illegitimate political interference.
The writer is Senior Fellow, Institute of Social Sciences, former Director-General, National Human Rights Commission, and former Director, National Police Academy
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