Cong-led Chhattisgarh govt moves SC seeking to declare NIA Act unconstitutional, arbitrary

The Congress-led Chhattisgarh government moved the Supreme Court on Wednesday seeking the UPA-1 era National Investigation Agency (NIA) Act be declared unconstitutional and arbitrary on the ground that it affects the state's sovereignty and confers unbridled power on the Centre.

The then Manmohan Singh government had come out with the law in the aftermath of the November 26, 2008, Mumbai attack, when senior Congress leader P Chidambaram was the union home minister.

The legislation provides NIA concurrent jurisdiction to probe terror attacks in any part of the country without any specific permission from states and in the last one decade it has been involved in the investigation of all such cases.

The Chhattisgarh government has filed the original suit under Article 131 of the Constitution which empowers a state to move the Supreme Court directly in matters of dispute with the Centre or any other state. It is the first state to challenge the Act.

The move comes a day after the Kerala government challenged the Citizenship Amendment Act under the same Article 131.

The filing of petition assumes importance as the Bhupesh Baghel led Congress government in the state has challenged the law on the ground that it was for the police to investigate scheduled offences in the state.

It also assumes significance as the state government is challenging the law passed by Parliament when Congress led the central government.

"The plaintiff (state) respectfully submits that the NIA Act is ultra vires to the Constitution and is beyond legislative competence of Parliament since the Act empowers the defendant (Centre) to create an agency for investigation, which, not withstanding the NIA, is carried out by state police, which is a subject matter of the state under entry-2, List-II, Schedule 7, of the Constitution," the plea said.

The suit, filed through standing counsel of the state Sumeer Sodhi and settled by senior advocate Vivek Tankhs, said the NIA Act in its present form not only takes away the power of conducting investigation by the plaintiff (state) through police but also confers "unfettered, discretionary and arbitrary powers" on the defendant (Centre).

"Moreover, there are no rules governing the exercise of powers which gives ample discretion to the defendant to exercise its power at any juncture without providing any reason or justification for the same," the plea said.

The state government said the provision of the Act leaves no room for coordination and pre-condition of consent in any form by the central government from the state government which clearly is against the idea of state sovereignty as envisaged under the Constitution.

"The plaintiff submits that the scheme of NIA Act is such that once brought in motion, it completely takes away the power of plaintiff to investigate the offences which have been categorised as scheduled offence under the NIA Act and which has been committed within the jurisdiction of the State," the plea said.

It said the Act, in its essence and spirit, is not only ultra vires to the Constitution but is also against the "federal spirit as envisaged under our Constitutional scheme wherein both Centre and State are considered to be independent in their respective jurisdiction".

It said that Police is a subject matter of List-II of the State list of the Constitution and not List-I, which deals with the subject matters of Centre.

"A holistic appreciation of the fact that "Police" was placed under List- II as the subject matter of State, with power to investigate, and equally significant fact that no such entry of "Police" or even any incidental or ancillary entry was provided in List-1 i.e., Centre List suggests that the framing of a legislation such as NIA Act by the Parliament, which creates an investigation agency having overriding powers over the Police of a State, was never the intention of the makers of the Constitution," it said.

Parliament has acted beyond its legislative competence in framing and enacting the NIA Act and hence, the NIA Act is ultra vires to the Constitution of India, it said.

"Moreover, the NIA Act, in its present form and content, not only confers unbridled, uncontrolled and uncanalised power on the Central Government to act arbitrarily and whimsically against the spirit of federal structure and sovereignty of State, but also tramples the purpose and significance of Entry- II, List - II of Schedule 7 of the Constitution," it added.