Ranbir Singh Pathania
N N Vohra speaks as good a Governor of this State as much a strategic security analyst at 7th Foundation Day of National Investigation Agency while he prepares the pitch for inclusion of RPC in the schedule of NIA Act.
A leading news-daily from Kashmir carries a lead story accusing the Governor of stirring up a hornet’s nest. It is followed by calibrated outbursts of venom and fire from the separatist camps as well as mainstream parties and leaders too – ‘The autonomy of the State is under threat” “Article 370 bars application of any law in the State of Jammu and Kashmir without its ratification from State Assembly”.
Is the security and integrity of our country too trivial a issue to be played politics over? When shall the leaders of this State stop waging battles over eggs and potatoes and creating issues just out of thin air in order to revive their sagging fortunes? Security of State means security of its citizens. And who would like to be less secure – particularly, in the wake of conditions prevailing in the State as well as country too.
Pathankot attack is a wake-up call. It calls for synergized and specialized efforts against terrorism. The answer is a more strengthened – technically as well as morally – National Investigating Agency. And in J & K, where terrorism is being fanned out from across the border, it is the need of the hour to include RPC in the schedule of NIA Act so that fight against terror, particularly in this troubled State, is carried out on a broader level.
Till now only eight laws have been brought within the ambit and scope of NIA Act:
1. The Atomic Energy Act, 1962 (33 of 1962);
2. The Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
3. The Anti-Hijacking Act, 1982 (65 of 1982);
4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 (66 of 1982);
5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);
6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);
7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);
8. Offences under—
a. Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)];
b. Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860).
National Investigation Agency (NIA) is a Central Counter Terrorism Law Enforcement Agency established by the best and brilliant minds of India on the pattern of U.S.’s Federal Bureau of Investigation to combat terror in India. NIA was created after the 2008 Mumbai terror attacks by an Act of Parliament on 31st December, 2008, as need for a central agency to combat terrorism was realized.
It is supposed to be and rather designed as a thoroughly professional, investigative agency matching the best international standards. It aims to set the standards of excellence in counter terrorism and other national security related investigations at the national level by developing into a highly trained, partnership-oriented workforce. It also aims at creating deterrence for existing and potential terrorist groups/individuals. It also aims to develop as a storehouse of all terrorist related information. NIA plays the role of the national counter terrorism law enforcement handle.
Jurisdiction: – The Agency has been empowered to conduct investigation and prosecution of offences under the Acts specified in the Schedule of the NIA Act throughout the country. As per section 6 of the Act, either the State Government can request the Central Government to hand over the investigation of a case to the NIA or the Central Government can also suo moto order NIA to take over investigation of any scheduled offence anywhere in the India.
As per section 3 (2) of the Act, “officers of the Agency shall have throughout India in relation to the investigation of Scheduled Offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers have in connection with the investigation of offences committed therein.”
And as per section 3 (2), “Any officer of the Agency of, or above, the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise throughout India, any of the powers of the officer-in-charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an officer-in-charge of a police station discharging the functions of such an officer within the limits of his station.”
Special NIA Courts
The NIA Act envisions setting up of Special Courts for trial of the cases registered at various police stations of NIA under Section 11 and 22 of the NIA Act 2008. These are presided over by a judge appointed by the Central Government on the recommendation of the Chief Justice of the High Court. Supreme Court of India can transfer the cases from one special court to any other special court within or outside the state in the interests of justice and in light of the prevailing circumstances in any particular state. The NIA Special Courts are empowered with all powers of the court of sessions under Code of Criminal Procedure, 1973 for trial of any offense.
Trials in these special courts are held on day-to-day basis on all working days and have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and have to be concluded in preference to the trial of such other case. An appeal from any judgement, sentence or order, not being an interlocutory order, of a Special Court lies to a division bench of two Judges of the High Court – both on facts and on law. At present there are 38 Special NIA Courts. State Governments have also been empowered to appoint one or more such special courts in their states.
Success saga of NIA
In year 2012, NIA with the assistance of internbational agencies has successfully arrested dreaded terrorists, Abu Jundal alias Abu Hamza, (Pakistani national), Fasih Mohammad and Yaseen Bhatkal (Indian Mujahideen).
In the year 2013, NIA was successful in arresting two senior members of Indian Mujahideen, namely Ahmed Siddibappa Zaraar @ Yasin Bhatkal and Asadullah Akhtar @ Haddi, from Indo Nepal border in Bihar.
It has identified two Naxalite commanders in Bastar who were part of the ambush that killed almost the entire Congress’ Chhattisgarh top brass. It has arrested 20 persons in the case so far and 27 accused have been charged so far for their role in the conspiracy, including 5 Bangladeshi Nationals. NIA is actively seeking and receiving cooperation from Bangladesh Government and law enforcement agencies in the ongoing investigations.
One of the NIA’s early successes was the arrest of Jewel Garlosa, the leader of the Black Widow militant group in Assam, in June 2009. Among the cases being investigated by the NIA are the David Headley case and the Samjhauta Express firebombing. In J & K also, accidental blast at Udhampur and a few other case are under active investigation of NIA.
State cooperation: – It is mandatory for the State Governments to extend all assistance and co-operation to the Agency for investigation of the Scheduled Offences. The NIA may also ask the State Government to associate itself with the investigation. And, after investigating the matter, if the Agency finds that the matter is not so important, it may, with the previous approval of the Central Government, transfer the case to the State Government for investigation and trial of the offence. In the words of the then Home Minister, P. Chidambaram, the government has “struck a balance between the rights of the State and duties of the Central Government to investigate the more important cases.” Since the body was established in a concurrent jurisdiction framework, there is no question of violation of federal spirit. And fact too remains that although the Centre has suo moto power to take up any case that falls within the stipulated eight laws, in practice, it has mostly ventured into cases only on the invitation of the States.
Although Govt. of Tamil Nadu had expressed its reservations over taking over of investigations in Chennai serial blasts by NIA. Its constitutional validity was also challenged in Courts. But national mood and sentiment on national security is quite clear and categoric.
It is in the same vein and background that I seek a self-imposed moratorium to be mandatorily observed by all political as well as non-political groups – there shall be no politics and rather no two opinions on issues concerning security, sovereignty and integrity of the country. Irrespective of our political affiliations, ideologies, thoughts and political compulsions too, we need to be on the right side on one pedestal while confronted with such sensitive issues.
(The columnist is member of J & K Legislative Assembly and practices law in the J & K High Court. Can be readily reached at rspathaniamla@gmail.com.)
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