NIA Act Under Challenge: Supreme Court Grants Centre 4 Weeks Time To File Counter Affidavit
The Supreme Court granted the Centre four weeks to file its counter affidavit in a petition challenging the constitutional validity of the National Investigation Agency Act, 2008
The Supreme Court on Tuesday granted the Union government four weeks to file its counter affidavit in a petition challenging the constitutional validity of the National Investigation Agency (NIA) Act, 2008.
The plea filed through AoR Vishnu P. contends that the NIA Act is arbitrary, suffers from lack of legislative competence, and violates the federal structure of the Constitution by encroaching upon the exclusive domain of states over “police” and “public order.”
During the hearing in April, Dave had argued that no central agency; except the Narcotics Control Bureau (NCB) as recognised in the Tofan Singh v. State of Tamil Nadu, has been vested with full police powers. However, under the NIA Act, officers of the NIA are conferred powers equivalent to those of police officers. He had specifically pointed to Sections 3 and 6(5) of the Act. While Section 3 provides for the constitution of the NIA, Section 6(5) empowers the Central government to direct the agency to take up investigation suo motu if it is of the opinion that a scheduled offence has been committed. According to the petitioner, this effectively ousts the jurisdiction of the state police.
Dave had submitted that “police” falls squarely within Entry 2 of the State List under the Seventh Schedule of the Constitution, and therefore Parliament lacks legislative competence to constitute a police force with overriding powers over state agencies. Drawing a comparison with the Prevention of Money Laundering Act, 2002, he argued that even the Enforcement Directorate does not function as a police force. “They could have constituted any force, but not a ‘police force’,” he contended, adding that the powers conferred under Section 3 of the NIA Act are “sweeping.”
The petition has been filed by a Kerala-based Advocate Mohammed Mubarak AI who was previously booked by the NIA in a case linked to alleged unlawful activities of the Popular Front of India. The case (RC-2/2022) was registered under various provisions of the Unlawful Activities (Prevention) Act, 1967, along with sections of the Indian Penal Code, 1860 and the Arms Act, following directions from the Ministry of Home Affairs.
The petitioner was arrested after raids conducted in Kerala and remained in custody for over a year before being granted bail by the High Court. The plea also refers to another case (Crime No. 318/2022) initially investigated by the Kerala Police concerning the alleged killing of a BJP activist. After the state police filed its final report, the Centre invoked Sections 6(5) and 8 of the NIA Act to transfer the investigation to the NIA.
Subsequently, the NIA registered RC-2/2022 and filed its own final report in 2023. The Kerala High Court also transferred the committal proceedings to a designated NIA Court.
The petitioner has challenged this transfer, arguing that the state police had found no scheduled offence warranting NIA intervention. It is contended that the NIA’s takeover rendered the state investigation “otiose” and undermined the federal balance. Among the grounds raised, the petitioner argues that provisions of the Act; particularly Sections 6 to 10, confer “unbridled powers” on the agency without adequate safeguards or guidelines, making them manifestly arbitrary and violative of Article 14 of the Constitution.