Plea assails constitutional validity of NIA Act

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 thepetitioner, a bench of Justice Tashi Rabstan issued notice to Union of Indiathrough its Secretary to Government, Ministry of Home Affairs, DirectorGeneral, National Investigation Agency (NIA), Investigating Officer concernedNational Investigation Agency Jammu & Kashmir State, Principal Secretary tothe government Home Department, J&K Government besides the Station HouseOfficer Kothi Bagh, Srinagar.    

   

Assistant Solicitor General Tahir Shamsi accepted notice onbehalf of Union Home Ministry, Director General NIA, and Investigating Officerconcerned National Investigation Agency Jammu & Kashmir State.  

Seeking reply to the petition within four weeks, the courtlisted 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 petitionagainst the NIA Act.

Haris was arrested on 24 November 2018 after police stationKothi Bagh registered case (FIR 93/2018) for the offences under Section 7/25Indian Arms Act and 18 Unlawful Activities (Prevention) Act. Haris was lodgedin District Jail, Jammu.

Subsequently, the central government through a suo motoorder issued on 12 December 2018 transferred the investigation of the case tothe NIA.

The petitioner pleads that the Union of India by virtue ofAct 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 anenactment which otherwise falls within the exclusive legislative domain ofstate of Jammu & Kashmir,” he pleads. 

The NIA Act, the petition says, essentially creates a policeagency at the national level with powers to investigate and prosecute offencesbefore Special Courts under the Act.

“In other words, the NIA Act manifestly encroaches upon theexclusive legislative domain of the Jammu and Kashmir State and is thus beyondthe legislative competence of the Parliament, hence liable to be declared ultravires,” reads the petition.  

Underlining that the NIA Act creates a special procedure forinvestigation and prosecution of the Scheduled offences, the petitioner pleadsthat the regulation or modulation of such a procedure has not been alienated tothe Union Parliament. “Thus the legislature of the state of Jammu & Kashmirhas been conferred exclusive authority for exercising legislative control overthe creation or calibration of a special procedure by way of an enactment,” thepetitioner pleads. 

Pointing out that the Central government cannot employ anyenabling legislative entry to dilute the exclusive legislative domain of Jammu& Kashmir, the petitioner pleads that any such measure, legislative orotherwise, must be deemed ultra vires to the Constitution of Jammu & Kashmiras well as Constitution of India.   

The petitioner submits that the powers exercised by DirectorGeneral NIA, Investigating Officer concerned NIA Jammu & Kashmir State byvirtue of being an agency are “sovereign functions of the state”. 

“These functions being integral to the sovereignty of thestate cannot be delegated to or exercised by a buffer body like that of anagency. Therefore, the delegated creation of an agency acting as a bulwark ofthe Central Government tends to alienate the sovereign function of the statewhich renders the constitution of the agency a nullity,” he said. 

 The petitionersubmits that the Central Government while exercising exceptional powers has suomoto transferred the investigation to Director General NIA and InvestigatingOfficer concerned NIA Jammu & Kashmir state, circumventing the reference bythe state government.

“Such an action being a resultant of a statutory power, indeparture of the routine procedure has to be exercised reasonably as it isintrinsic in any statutory function to do so and includes recording ofsufficient reasons by the authority upon which the power is conferred,” itadds. 

The petitioner pleads that the order assigning investigationto 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 sufficientreasons have not been recorded by the Central Government which led to thepassing of the order dated 12.12.2018 and is liable to be set aside. 

While the petitioner submits that the NIA Act enables theCentral Government to establish Special Courts for prosecution of the ScheduledOffences, he pleads that the authority for regulation of the Special Courts isalso vested with the Central Government.

“Any appointment to the posts of Presiding Officers/Judgesof these Special Courts is to be made by the Central Government on therecommendation of the Hon’ble High Court,” it said. 

It adds that the NIA Act for the purposes of the prerequisitequalifications for the Presiding Officer tends to transgress the limitationsprescribed by the Constitution of Jammu & Kashmir and such a breach rendersthe Act ultra vires. 

The Investigating Officer concerned NIA, J&K, afterbeing entrusted with the investigation of the case recorded the FirstInformation 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 isproduced for remand before the NIA Court, Jammu, even though there is adesignated Special NIA Court in Srinagar, the petition pleads.

However, subsequently separate Special NIA courts wereconstituted for Kashmir and Jammu.

The petitioner challenges the impugned action of therespondents on various grounds.

The petitioner also seeks quashing of the order dated12.12.2018 passed by Director General NIA.

He also seeks direction to continue with the investigationin FIR 93/2018 at Police Station, Kothi Bagh, Srinagar.

Leave a Reply

Your email address will not be published. Required fields are marked *

three + 10 =