National Investigation Agency: A Good Start but not a Panacea

On January 1, 2009 the National Investigative Agency Bill became a law. It provides for setting up a special agency at the national level “to investigate and prosecute offences affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations and for matters connected therewith or incidental thereto”. Under this law, the National Investigative Agency will be constituted ‘in a concurrent jurisdiction framework’ to investigate scheduled offences.

According to this law, investigation of Scheduled offences is contingent upon the State government perceiving that such a crime has been committed and sending a report to the Centre in this regard. Upon receipt of such a report, the Centre will decide within fifteen days whether the said offence is scheduled or not. In special circumstances, if the Centre is of the view that a Scheduled Offence has been committed, then it may suo moto direct the NIA to investigate such an offence. Prosecution of Scheduled Offences would be conducted by constituting one or more Special Courts, which will be presided over by a judge appointed by the Central government on the recommendation of the Chief Justice of the High Court.

Though the Mumbai terror attacks acted as a catalyst for the establishment of the NIA, the need for such an agency was proposed as early as 1986-89, when a draft Bill for a separate law for the Central Bureau of Investigation (CBI) enabling it to investigate ‘federal crimes’ was prepared. In subsequent years many committees had also advocated the setting up of a central nodal agency to investigate and prosecute certain offences with inter-State and international ramifications. Chief among these were the Padmanabhaiah Committee on Police Reforms in 2000 and the Justice V. S. Malimath Committee on Reforms in the Criminal Justice System in 2003.

In June 2007, the Second Administrative Reforms Commission (ARC) in its Fifth Report on Public Order also recommended the setting up of a federal agency to deal with offences that often impinge upon national security. Similarly, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 24th Report tabled in the Rajya Sabha in May 2008, proposed the “setting up of National-level Agency or reconstituting the CBI and developing it on the lines of the American agency, the Federal Bureau of Investigation (FBI), which handles all terror-related and nationally important cases.” In its eighth report on ‘Combating Terrorism’ released in September 2008, the second ARC reiterated its earlier recommendation to establish a specialised wing of the CBI to deal with major offences such as terrorism.

There are many reasons for setting up an NIA. Firstly, as the Mumbai attacks demonstrated, terrorist attacks have increased in their scale, intensity, geographical spread and trans-national links. Secondly, the state police with its restricted territorial jurisdiction and limited resources and expertise are inadequate to deal with terrorist offences. However, there is opposition to the idea of a NIA, particularly from states who fear that a central agency would infringe upon their jurisdiction. But the fact is that terrorist attacks are not directed at a particular State government. Their target is the idea of India, including its unity and integrity. Therefore, a federal agency that has the authority to look into terrorist cases throughout the country and one that is endowed with greater resources and greater expertise would be better positioned to handle terrorism-related cases.

As far as the functioning of the NIA is concerned, there were two opposing views. Most of the Commissions like the Second ARC, the Padmanabhaiah Committee, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, etc., had advocated the establishment of a specialised wing in the CBI to deal with federal crimes. According to the Second ARC, this could be achieved by enacting a law using the ‘residuary powers’ and Entry 8, List 1 to define the constitution of the CBI and also by incorporating the changes made in the Delhi Special Police Establishment Act in 2003 in the new law. Also, under the new law the state police and the CBI would be given concurrent jurisdiction over investigation of all federal crimes. However, once cases are transferred to the CBI by an empowered committee as recommended in the ARC Report on ‘Ethics in Governance’, the state police would be required only to provide assistance to the CBI, if needed.

The contrary view was that the CBI does not have the wherewithal to deal with terror crimes. Also, many states do not view the CBI as an autonomous agency and therefore fear that it will be used by the Centre to harass them. So, instead of the CBI, the NIA should have a new identity, independent of any existing organisation. It is the second view which the government has taken into account in constituting the NIA as a special agency headed by a Director General appointed on behalf of the Central government. State governments are obliged to extend all assistance and co-operation to this Agency for investigation of Scheduled Offences.

The establishment of NIA is no doubt a positive step in fighting terrorism-related crimes, but it is unlikely to be a panacea to prevent terrorist attacks. For, it will be an agency that investigates and prosecutes only after terrorist attacks take place. Though the NIA no doubt would contribute to a better understanding of how the attacks were planned and carried out, the linkages between terrorist cells within the country as well as outside, the modus operandi of terrorist cells and groups, etc., it is unlikely to prevent terrorist attacks. What will be needed is greater co-ordination between various agencies engaged in intelligence collection, collation and analysis. This can be achieved either through a more effective functioning of the Joint Intelligence Council (JIC) or alternatively by reorganising the entire Indian intelligence set up along the lines that the United States has done in the wake of the September 11 terror attacks.