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    NIA Act unconstitutional, repeal it: Congress-ruled Chhattisgarh to SC

    Synopsis

    The law was passed in 2008 and was enforced on December 31, 2008. The petition by senior advocate Vivek Tankha urged the court to strike it down as unconstitutional and ultra vires the Constitution on the grounds that it was violative of the spirit of federalism.

    SC_PTIPTI
    New Delhi: Congress-ruled Chhattisgarh on Wednesday raised in the Supreme Court a federal dispute it has with the central government over a law that was brought in during the UPA’s tenure to create the National Investigation Agency (NIA).

    The law was passed in 2008 and was enforced on December 31, 2008. The petition by senior advocate Vivek Tankha urged the court to strike it down as unconstitutional and ultra vires the Constitution on the grounds that it was violative of the spirit of federalism. The state claimed that the Act was beyond the legislative competence of Parliament since the Act empowers the Union to create an agency for “investigation”, a task which is under the state police as it is part of the state list.

    The Act, in its present form, not only takes away a state’s power to conduct investigation through its own police but also confers unfettered discretionary and arbitrary powers on the Union. Moreover, there are no rules governing the exercise of power which gives the Union discretion to exercise its power at any juncture without providing any reason for it, it said.

    NIA

    The provisions of the law leave no room for coordination and pre-condition of consent in any form for the Centre to take from a state. This repudiates the idea of state sovereignty envisaged in the Constitution, the state claimed. Once the scheme under the NIA is brought into motion, it takes away the state’s power to investigate offences categorised as scheduled offences under the Act though they were within a state’s jurisdiction.

    The NIA Act was not only ultra vires the Constitution but was also against the federal spirit as envisaged under our Constitution wherein both the Centre and state are considered independent in their respective jurisdictions. Police had the power to investigate offences within the state’s territory. The fact that the central list did not have any ancillary entries indicated that the constitution makers never envisaged any investigating agency such as NIA with over-riding powers of the state police. “… The Parliament has acted beyond its legislative competence in framing and enacting the NIA Act…” the petition said.

    “Moreover… in its present form and content, (it) not only confers unbridled, uncontrolled and uncanalised power on the Central government to act arbitrarily and whimsically against the spirit of federal structure and sovereignty of state, but also...”


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