The High Court on Tuesday asked the Union Home Ministry, the National Investigation Agency and the Jammu and Kashmir government to respond to a plea seeking to declare National Investigation Act 2008 ultra vires the constitution of J&K.
After hearing advocate Salih Pirzada on behalf of the petitioner, a bench of Justice Tashi Rabstan issued notice to Union of India through its Secretary to Government, Ministry of Home Affairs, Director General, National Investigation Agency (NIA), Investigating Officer concerned National Investigation Agency Jammu & Kashmir State, Principal Secretary to the government Home Department, J&K Government besides the Station House Officer Kothi Bagh, Srinagar.
Assistant Solicitor General Tahir Shamsi accepted notice on behalf of Union Home Ministry, Director General NIA, and Investigating Officer concerned National Investigation Agency Jammu & Kashmir State.
Seeking reply to the petition within four weeks, the court listed the case for further consideration on 20 August.
Twenty-four-old Haris Mushtaq Khan of Gopalpora, Wathoora, Budgam, through his father Mushtaq Ahmad Khan, has filed the writ petition against the NIA Act.
Haris was arrested on 24 November 2018 after police station Kothi Bagh registered case (FIR 93/2018) for the offences under Section 7/25 Indian Arms Act and 18 Unlawful Activities (Prevention) Act. Haris was lodged in District Jail, Jammu.
Subsequently, the central government through a suo moto order issued on 12 December 2018 transferred the investigation of the case to the NIA.
The petitioner pleads that the Union of India by virtue of Act No. 6 of 2009, promulgated the National Investigation Agency Act, 2008, after Parliament passed it.
“The NIA Act is ultra vires the Constitution of Jammu & Kashmir as the Parliament of India lacked legislative competence of such an enactment which otherwise falls within the exclusive legislative domain of state of Jammu & Kashmir,” he pleads.
The NIA Act, the petition says, essentially creates a police agency at the national level with powers to investigate and prosecute offences before Special Courts under the Act.
“In other words, the NIA Act manifestly encroaches upon the exclusive legislative domain of the Jammu and Kashmir State and is thus beyond the legislative competence of the Parliament, hence liable to be declared ultra vires,” reads the petition.
Underlining that the NIA Act creates a special procedure for investigation and prosecution of the Scheduled offences, the petitioner pleads that the regulation or modulation of such a procedure has not been alienated to the Union Parliament. “Thus the legislature of the state of Jammu & Kashmir has been conferred exclusive authority for exercising legislative control over the creation or calibration of a special procedure by way of an enactment,” the petitioner pleads.
Pointing out that the Central government cannot employ any enabling legislative entry to dilute the exclusive legislative domain of Jammu & Kashmir, the petitioner pleads that any such measure, legislative or otherwise, must be deemed ultra vires to the Constitution of Jammu & Kashmir as well as Constitution of India.
The petitioner submits that the powers exercised by Director General NIA, Investigating Officer concerned NIA Jammu & Kashmir State by virtue of being an agency are “sovereign functions of the state”.
“These functions being integral to the sovereignty of the state cannot be delegated to or exercised by a buffer body like that of an agency. Therefore, the delegated creation of an agency acting as a bulwark of the Central Government tends to alienate the sovereign function of the state which renders the constitution of the agency a nullity,” he said.
The petitioner submits that the Central Government while exercising exceptional powers has suo moto transferred the investigation to Director General NIA and Investigating Officer concerned NIA Jammu & Kashmir state, circumventing the reference by the state government.
“Such an action being a resultant of a statutory power, in departure of the routine procedure has to be exercised reasonably as it is intrinsic in any statutory function to do so and includes recording of sufficient reasons by the authority upon which the power is conferred,” it adds.
The petitioner pleads that the order assigning investigation to Director General NIA, Investigating Officer concerned NIA Jammu & Kashmir state must be in conformity with the principles of fairness.
In the instant case, the petitioner said, the sufficient reasons have not been recorded by the Central Government which led to the passing of the order dated 12.12.2018 and is liable to be set aside.
While the petitioner submits that the NIA Act enables the Central Government to establish Special Courts for prosecution of the Scheduled Offences, he pleads that the authority for regulation of the Special Courts is also vested with the Central Government.
“Any appointment to the posts of Presiding Officers/Judges of these Special Courts is to be made by the Central Government on the recommendation of the Hon’ble High Court,” it said.
It adds that the NIA Act for the purposes of the prerequisite qualifications for the Presiding Officer tends to transgress the limitations prescribed by the Constitution of Jammu & Kashmir and such a breach renders the Act ultra vires.
The Investigating Officer concerned NIA, J&K, after being entrusted with the investigation of the case recorded the First Information Report on 13.12.2018.
The petitioner is presently lodged in District Jail, Jammu, even though the offence is alleged to have taken place at Srinagar, and is produced for remand before the NIA Court, Jammu, even though there is a designated Special NIA Court in Srinagar, the petition pleads.
However, subsequently separate Special NIA courts were constituted for Kashmir and Jammu.
The petitioner challenges the impugned action of the respondents on various grounds.
The petitioner also seeks quashing of the order dated 12.12.2018 passed by Director General NIA.
He also seeks direction to continue with the investigation in FIR 93/2018 at Police Station, Kothi Bagh, Srinagar.