A Supreme Court bench comprising Justices R F Nariman and Ravindra Bhat on Monday issued notice to the Centre on a writ petition which challenged the constitutional validity of the National Investigation Agency (Amendment) Act 2019.
The Amendment Act expanding the power of the National Investigating Agency was passed by the Parliament during the 2019 monsoon session.
Senior Advocate Santhosh Paul, assisted by Advocate Jaimon Andrews, submitted that the Amendment affected the principles of co-operative federalism, and violated Article 14 of the Constitution due to manifest arbitrariness and inherent vagueness in the provisions.
The petition filed by Umar. M, Secretary of Kozhikode-based organization 'Solidarity Youth Movement', contended that the introduction of additional offences in the schedule of NIA Act, such as human trafficking, counterfeiting of currency notes etc., are "wholly unrelated to the fundamental object of the Act, i.e to counter terrorism".
"In doing so, NIA 2019 has further encroached upon the federal characteristic of the country, by usurping the power of the States to enact laws pertaining to public order and police as provided for under Entries 1 and 2 of List II of the Constitution of India.
It is also pertinent to note that while this is wholly in contravention of the principles of co-operative federalism enshrined in the Constitution of India, it has also been amended without any practical justifications of the inability or incompetence of the investigation agencies at the state level. In essence, the passage of this amendment has paved the way for concentration of police powers to a centralized agency which would carry out its functions at the behest of the Central Government", stated the petition.
It is also argued that the amendment undermines the principle of "prosecutorial supremacy in registration and investigation of offences". Section 6(8) added in the Act by the amendment confers power on the Central Government to direct the Agency to register and investigate an offence, where in its opinion a scheduled offence has taken place outside India to which the Act applies.
"Resultantly, the Agency would work as an organ at the behest and whims and fancies of the Central Government, which is empowered to selectively direct the Agency registration and investigation of cases, providing ample scope for misuse and arbitrary exercise of powers", the plea added.
The petition also stated that Section 1(2)(d) introduced by the Amendment, which provides for investigation and prosecution of scheduled offences outside India against Indian citizens or those affecting the interest of India, employs a vague phraseology of 'affecting the interest of India'.
"Legislations aimed at countering terrorism, often employ specific phrases such as 'national security', 'national integrity', 'sovereignty', so as erase any scope for arbitrary exercise of powers by the enforcement agencies. In the instant case, no attempt has been made to provide for a structured definition of the term, in the absence of which, the same would be open to enlarged interpretation, thus arbitrary and violative of the fundamental right guaranteed under Article 14 of the Constitution of India", the petition stated in this regard.
Last week, the State of Chhattisgarh had filed a suit under Article 131 challenging the NIA Act itself.