Balancing the Contours of Federalism with Terrorism

Shubhangi Agarwal and Harsh Singh

The Parliament passed the Unlawful Activities (Prevention) Amendment Act, 2019 (“UAPA”) and the National Investigation Agency (Amendment) Act, 2019 (“NIA”) amidst a lot of controversies last year in July. The amendment acts raised serious questions of human rights violation and erosion of federal character. In lieu of the same, the State of Chhattisgarh recently filed a suit against the Central Government in the Supreme Court challenging the constitutional validity of NIA. The suit was filed invoking the original jurisdiction of the apex court under Art. 131 of the Constitution of India. In this article, we will discuss some of the contentious provisions of the UAPA and NIA, issues of federalism that they invoke and the justification of the plea made by the State of Chhattisgarh.

Salient features of the Amendments made to UAPA and NIA

  1. The latest amendment in S. 25 of the UAPA allows NIA to go into any state to search and seize the properties of any individual considered to be ‘proceeds of terrorism’, without any permission of the state police. Earlier, prior written permission of the Director-General of Police (DGP) of the state was required to be taken to continue such probe.
  2. The scope of NIA has been increased. The NIA is now empowered to investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism and offences under the Explosive Substance Act, 1908.[i] Earlier the schedule of offences to be dealt with by NIA contained only UAPA and Atomic Energy Act, 1962.
  3. The amendment in S. 35 of the UAPA allows the central government to brand individuals as terrorists without following due process of law. Earlier, ‘terrorist organization’ can be proscribed as such by the government, and only after a person was convicted of a ‘terrorist act’, can he be declared a terrorist.

Issues of Federalism

Legislative power in India is divided between centre and states by way of three Lists: Union List, Concurrent List and State List.[ii] This ensures that there is no centralization of powers and liberty is given to states to enact policies best suited for their region. The legislative competence of the central government to enact national laws related to terrorism has already been put to test in the cases of Kartar Singh v State of Punjab[iii] and PUCL v Union of India[iv]  where constitutional validity to enact TADA and POTA were checked. Court held that terrorism is a transnational and not a state-specific problem, affecting the security and sovereignty of the nation. It further ruled that ‘public order’ give in Entry 1 of the State List is confined to disorders of lesser gravity having an impact only in the state.[v] Therefore, it is well within the ambit of the centre to enact pan India laws related to terrorism. The constitutional validity of the National Investigation Agency Act, 2008 was also challenged before the Bombay High Court in the case Pragyasingh Chandrapalsingh Thakur v State of Maharashtra, NIA.[vi] The Bombay High Court made a harmonious construction between Entry 8 of List I pertaining to CBI and Entries 1 and 2 of List III pertaining to criminal law and criminal procedure to come to the conclusion that NIA is constitutional. The court held that if an investigating agency like CBI can be made by the Parliament, another agency at the national level to look into offences against the sovereignty, security and integrity of India can also be founded.

At this juncture, it is crucial to make reference to the case of Naga People’s Movement of Human Rights v Union of India,[vii] wherein the court struck a balance between the powers of Union and the State and held that even after deployment of armed forces in the state under AFSPA, the civil power of the state will continue to function. The armed forces cannot supplant or substitute the State’s civil power. There should be cooperation between armed forces and civil administration so that the situation threatening public order can be effectively dealt with.[viii] Therefore, amendments made to NIA and UAPA should also endeavour to strike a harmony between the power of the Union and the State to preserve the federal nature of Indian democracy.

The Challenge to NIA by the State of Chhattisgarh – Justified?

In the case of Pragyasingh Chandrapalsingh Thakur v State of Maharashtra, UOI, NIA, the Bombay High Court also discussed in detail the constituent assembly debates pertaining to the investigation made by police. Reference was made to Dr B.R. Ambedkar’s remarks where he pointed out that the word ‘investigation’ does not permit the making of an investigation into a crime by the CBI because that matter under criminal procedure code is left exclusively to a police officer. Police is a state subject and have no place in the Union List. Therefore, the word investigation covers only a general inquiry for the purpose of finding out what is going on and then report to the Centre.[ix]

The latest amendments in the UAPA and NIA go against the intention of the drafters of the constitution. It is imperative for the smooth functioning of the democracy that centre and state should not encroach into the domain of each other. The policing powers of the state have been curtailed by the new amendments as the power of the police to investigate[x] and attach properties in scheduled offences have been delegated to NIA. The states have been stripped off of any right if centre decides to transfer the investigation to NIA.

Moreover, by increasing the scope of NIA, the central government has further shrunken the role of state police. Cyber terrorism and counterfeit currency, are not intermittent offences and NIA can take suo moto cognizance of these offences without prior approval of the state government. If some evidence highlighting the inefficiency of the state police in dealing with these offences would have been shown, transfer of more categories of cases to NIA would have been justified. In the absence of any such proof, the amendment only impinges on the federal character of the country.

Therefore, even if the government at the centre has the legislative competence to enact laws like NIA and UAPA, the recent amendments do not align with the federal scheme of the nation. The plea made by the State of Chhattisgarh before the Supreme Court to declare NIA as ultra vires to the Constitution is not without justifications. There should be provisions in NIA allowing for co-ordinated approach between centre and state for carrying out an investigation of such scheduled offences. This would also help in achieving the goals of cooperative federalism. Supreme Court, while adjudicating on this matter, should restore provisions of prior consent to be taken from the state government before NIA enters the state for investigation. This is also an opportunity for the Apex Court to lay down proper guidelines on centre-state relations that policymakers should keep in mind while drafting terrorism laws.

[i] National Investigation Agency Act 2008, schedule of offences.

[ii] Indian Constitution, Schedule 7.

[iii] Kartar Singh v State of Punjab, (1994) 3 SCC 569.

[iv] PUCL v Union of India, AIR 2004 SC 456.

[v] Kartar Singh v State of Punjab, (1994) 3 SCC 569, ¶ 68.

[vi] Pragyasingh Chandrapalsingh Thakur v State of Maharashtra, 2014 (1) Bom CR (Cri) 135.

[vii] Naga People’s Movement of Human Rights v Union of India, (1998) 2 SCC 109.

[viii] Ibid, ¶ 28.

[ix], accessed on 30/03/2020.

[x] The Code of Criminal Procedure 1973, § 2(h).

The authors are students at RMLNLU, Lucknow

Image: India Today


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