Sunday, December 27, 2009

Experts Doubt Constitutional Validity Of National Investigation Agency Act 2008 Of India

Center-State relationships are very delicate and are governed by the provisions of Constitution of India. The Constitution has conferred a special status to States as they are not “Inferior” to the Center. They are governed by constitutional provisions similar to the Center, say experts.

Recently the Goa police did not send details of the Diwali-eve bomb blast investigations to the National Investigating Agency (NIA) set up in 2008 to investigate terror-related crimes in the country. The Goa police had bypassed the NIA and sent updates of the Oct 16 investigations to officials in the ministry of home affairs. Now the Kerala Home Minister Kodiyeri Balakrishnan has questioned the NIA reported decision to take over two terror cases in the State. Contending that such interference by the Central agencies would hurt the federal system of the country, Balakrishnan said the State government would examine the legal aspect of NIA’s decision. This has proved the apprehensions raised by experts like B.S. Dalal previously.

Law enforcement and intelligence agencies are virtually governed by no law in India. The government of India (GOI) never took pain to provide a viable and constitutionally sound legal framework for these institutions in India. The net result is that most of them are still governed by colonial and outdated laws. Surprisingly, this scenario has not been challenged in the Indian courts. But the situation may change very soon and the Centre-State Disputes regarding this aspect may be agitated before the courts in India.

The Constitution of India has mandated that law enforcement is a matter of “State List”. The Center cannot legislate on this crucial area. If the Center makes a law in this regard, the same would disturb the harmony between the Center and States relations. So does India has any constitutionally valid legal framework for law enforcement and/or intelligence agencies?

According to Praveen Dalal, the leading Techno-Legal Expert of India and Managing Partner of Perry4Law, “With the enactment of National Investigation Agency Act, 2008 some steps have been taken in this regard. However, the viability and constitutionality of this Act is yet to be checked. When the Center encroaches upon the powers of the States, constitutional crisis and disputes are bound to arise. Realising the seriousness of the issue, Perry4Law has provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” to the Government of India”.

The government of India has still to enact suitable laws in this crucial direction. In the absence of the same, there are great chances that instances of lack of mutual understanding and cooperation between NIA and State police force may increase.

In fact, to a great extent the State police may be well within its rights and power to ignore the mandates of the National Investigation Agency Act, 2008 due to constitutional issues. It would be prudent for the Central government to give a serious thought to this ignored aspect that may raise numerous “Constitutional Issues” in the future.