Freeze, it’s the NIA

The idea of a federal agency to deal with grave offences which have inter-state and/or nation-wide ramifications was mooted in Parliament in 2001.

The idea of a federal agency to deal with grave offences which have inter-state and/or nation-wide ramifications was mooted in Parliament in 2001. Numerous terrorist attacks, three different committee reports and seven years later, Parliament has passed a Bill to constitute the National Investigation Agency (NIA). After the delay of all these years, Parliament somehow felt it necessary to pass the Bill in less than a day after it was introduced, leaving little time for effective scrutiny.

The National Investigation Agency would investigate and prosecute offences affecting the sovereignty, security and integrity of India. In addition to the National Investigation Agency Bill, Parliament also passed amendments to the Unlawful Activities (Prevention) Act (UAPA), to strengthen the investigation and prosecution mechanism for terrorism-related offences. The two Acts together bring back many provisions of POTA. It is surely an indication of the times we live in to see that these enactments were introduced in Parliament by the party which opposed the POTA Bill, leading to its defeat in the Rajya Sabha. There is at least one difference in the amended UAPA — unlike in POTA, confessions before a police officer would not be admissible as evidence. The UAPA is more stringent than POTA in at least one respect. While POTA required the courts to take certain evidence as “adverse inference” against the accused, UAPA directs the court to presume the accused guilty in these cases unless proved otherwise. Also, POTA provided for review committees to assess each case; this safeguard against misuse is missing in the new UAPA.

There are some other important features of the new laws. The NIA can investigate an offence in response to a request from a state government, or on a suo motu direction of the Central Government. Like in POTA, the NIA Bill also provides for quick trials by setting up special courts that would try these cases on a day-to-day basis. One standard provision present in many laws is missing: that of protecting officers acting in good faith, and penalising those who misuse the law. The new provisions added to the UAPA include punishments for recruiting persons for terrorist acts and for organising camps to impart training in terrorism. It enables the government to prevent the entry of any individual into the country or seize his funds if he is suspected to be engaged in terrorism. The NIA Act addresses the constitutional issue of centre-state powers. Under the Constitution, law and order is a state subject, and the Centre may act only on request from the state governments. This law includes a schedule of central acts covering offences against the state, terrorism, atomic energy, anti-hijacking, weapons of mass destruction etc., all of which are in the domain of the Centre, enabling the agency to act on these offences.

Many of these provisions are widely seen as steps in the right direction. However, these Acts focus on investigation and prosecution after acts of terror are committed. They do not address the issue of intelligence that could help pre-empt terrorist attacks. Press reports suggest that the Mumbai events were not prevented, partly due to a lack of coordination between various agencies. This lacuna will continue to persist. The government has not provided Parliament with the likely expenditure required to implement these laws. The financial memorandum of the NIA Bill states that: “it’s difficult to estimate the exact amount of expenditure required in setting up the agency”, and provides for a token amount.

One response of the government to the immense sense of disappointment among the public seems to be to bring in legislation for tougher anti-terror laws. Addressing the issue of terrorism requires the government to do more than passing these two laws. The essence of prevention is to engineer a high level of coordination among various existing agencies, and the ability to sift through the high volume of intelligence and prioritise what is imminent and actionable.

The months ahead will show us whether the passage of these laws by Parliament turns out to be an effort to assuage public anger or a focused effort to initiate and invest in the massive overhaul of our security apparatus and criminal justice system.

The writer works with PRS Legislative Research, New Delhi