Topic : The terrorist tag: on the latest Amendments to the NIA
Topic in Syllabus: General Studies Paper 2: Indian Governance
Lok Sabha passed the National Investigation Agency (Amendment) Bill, 2019 after a heated debate in the House. While the government assured that the Bill seeks to take tougher action against terrorism,The idea of designating an individual as a terrorist, as the latest amendments to the Unlawful Activities (Prevention) Act propose to do, may appear innocuous. However, designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.
The NIA was set up in 2009 in the wake of the Mumbai terror attack that had claimed 166 lives.
What is the National Investigation Agency?
- The National Investigation Agency (NIA) is a central agency established by the Indian Government to combat terror in India. It acts as the Central Counter-Terrorism Law Enforcement Agency.
- The agency is empowered to deal with terror-related crimes across states without special permission from the states.
- Since a large number of terrorist incidents are found to have complex inter-State and international linkages, and possible connection with organised crime, for example, the smuggling of arms and drugs, circulation of fake Indian currency etc.
- It was for these reasons that an agency at the Central level was created for investigation of offences related to terrorism and certain other Actpost 2008 Mumbai terror attacks
- Crimes like Terror offences, offences against atomic and nuclear facilities, and offences such as waging war against the country, amongst others, were included in this list of offences
Changes introduced in the NIA (Amendment) Bill?
There are three major amendments to the National Investigation Agency (NIA) Act of 2008.
- Type of offences that the NIA can investigate and prosecute.
- Under the existing Act, the NIA can investigate offences under Acts such as the Atomic Energy Act, 1962, and the Unlawful Activities Prevention Act, 1967.
- The latest amendments will enable the NIA to additionally investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act.
- The second change pertains to NIA’s jurisdiction.
- Under the existing Act, for the offences under its purview, NIA officers have the same power as other police officers and these extend across the country.
- The Bill amends this to give NIA officers the power to investigate offences committed outside India. Of course, NIA’s jurisdiction will be subject to international treaties and domestic laws of other countries.
- special trials courts for the offences that come under NIA’s purview or the so-called “scheduled offences”.
- The existing Act allows the Centre to constitute special courts for NIA’s trials.
- But the Bill enables the Central government to designate sessions courts as special courts for such trials.
Issues regarding amendment
- Designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.
- The practice of designating individuals under anti-terrorism laws, prevalent in several countries, is seen as being necessary because banned groups tend to change their names and continue to operate.
- However, there is no set procedure for designating an individual a terrorist.
- Human rights’ violations
- A wrongful designation will cause irreparable damage to a person’s reputation, career and livelihood.
- Union Home Minister’s warning that his government would not spare terrorists or their sympathisers, and his reference to ‘urban Maoists’, are portentous about the possibility of misuse.
- It has been argued by some members in Parliament that the Bill contains anti-federal features.
- Against Federalism
- The provision to empower the head of the National Investigation Agency to approve the forfeiture of property of those involved in terrorism cases obviously overrides a function of the State government.
- At present, the approval has to be given by the State police head.
- Also, there will be a section allowing NIA Inspectors to investigate terrorism cases, as against a Deputy Superintendent of Police or an Assistant Commissioner.
- This significantly enhances the scope for misuse.
- The likely adverse consequences of a terrorist tag may be worse for individuals than for organisations.
- Further, individuals may be subjected to arrest and detention; even after obtaining bail from the courts, they may have their travel and movements restricted, besides carrying the taint.
- This makes it vital that individuals have a faster means of redress than groups.
- Unfortunately, there is no change in the process of getting an entity removed from the list.
- Just as any organisation getting the tag, individuals, too, will have to apply to the Centre to get their names removed.
- Parliament must consider whether an individual can be called a ‘terrorist’ prior to conviction in a court of law.
- The absence of a judicial determination may render the provision vulnerable to invalidation.
- There ought to be a distinction between an individual and an organisation, as the former enjoys the right to life and liberty.
- The 2004 amendments to the Unlawful Activities (Prevention) Act, 1967, made it a comprehensive anti-terror law that provided for punishing acts of terrorism, as well as for designating groups as ‘terrorist organisations’.
- Parliament further amended it in 2008 and 2013 to strengthen the legal framework to combat terror.
- While none will question the need for stringent laws that show ‘zero tolerance’ towards terrorism, the government should be mindful of its obligations to preserve fundamental rights while enacting legislation on the subject.
The NIA Amendment Bill, 2019 is neither sound on the principles of Indian federalism nor on the established principles of criminal law. Comment