The Chhattisgarh government is the first state government to challenge the Act. The state of Chhattisgarh has filed a suit against the Central government in the Supreme Court, challenging the constitutional validity of the National Investigation Act, 2008.
- Chhattisgarh has argued that the NIA Act is beyond “legislative competence of the Parliament” and is against the “federal spirit” of the Constitution. Since police is a state subject, the Centre cannot be given police powers, the plaint says.
- “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.”
- The provisions of the Act go against state sovereignty, Chhattisgarh has argued. It is “also contrary to the constitutional scheme of distribution of power, as enumerated under Schedule 7, since the matters arising within the territorial jurisdiction of any State which is generally investigated by Police, has been taken away and the meaning and purpose of Entry – II, List- II of Schedule 7 has been rendered otiose”.
- The state has asked the Supreme Court to either declare the Act unconstitutional, or say that Sections 6, 7, 8 and 10 of the Act are ultra vires.
- The Bhupesh Baghel government said ‘police’ is a State power. Crimes that happen within the jurisdiction of a State come within the investigative jurisdiction of the State Police.
- The Centre, through the NIA, cannot usurp the role of the State Police force investigation that happens within a State.
- The Parliament enacted the NIA Act by acting beyond its legislative competence.
- “The NIA Act, in its present form, not only takes away the power of conducting investigation by the plaintiff through Police but also confers unfettered discretionary and arbitrary powers on the defendant. Moreover, there are no rules governing the exercise of power which gives ample discretion to the defendant to exercise its power at any juncture without providing any reason or justification for the same,” Chhattisgarh has challenged the constitutionality of the 2008 Act.
- The provisions of the Act do not require the Centre to take prior consent from the State before taking over an investigation of a case in that State.
- “This clearly repudiates the idea of State sovereignty as envisaged under the Constitution. The plaintiff (State of Chhattisgarh) 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 offenses which have been categorized as scheduled offense under the NIA Act and which has been committed within the jurisdiction of the State,” the suit contended.
- “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 NIA Act, 2008, was enacted with a view to constituting the NIA to investigate and prosecute people for offenses affecting the sovereignty, security, and integrity of India, security of state, friendly relations with foreign states and offenses under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organizations.
- Chhattisgarh has referred to the Supreme Court judgment in State of Jharkhand vs State of Bihar and Another (2015) to justify the suit’s maintainability.
The Congress-led Chhattisgarh government on Wednesday moved the Supreme Court seeking to declare the National Investigation Agency Act, 2008 as unconstitutional. In the plea, the state government said, “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, notwithstanding the NIA, is carried out by state police, which is a subject matter of the state under entry 2, List 2, Schedule 7, of the Constitution.”