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| @ | July 19,2019

[dropcap]T[/dropcap]HE National Investigation Agency (Amendment) Bill, 2019 introduced in the Lok Sabha by Union Home Minister Amit Shah on July 8 was passed with near unanimity in both houses on July 17, 2019. The amended legislation, which aims to primarily empower the anti-terror agency to investigate scheduled offences such as human trafficking; circulation of fake currency; manufacture and sale of prohibited arms; and cyber-terrorism, was passed with a whopping majority of 278 votes in favour and six against in the Lok Sabha. It was also passed in the Rajya Sabha after those opposed to it staged a walkout.

While the bill had an uncontested passage in the upper house, the discussions in the lower house ranged from the nature of the amendment and how it would be violative of fundamental rights to whether it would be efficacious enough considering how much-unchecked power it gives to the government authorities.

Calling the bill “piecemeal” legislation, Congress MP Shashi Tharoor said the bill was not based on logic. N K Premcharan of the Revolutionary Socialist Party (RSP) warned that the fundamental rights of an individual could not be ignored in the name of tackling and fighting terror. Tharoor also criticised the bill for seeking to give the Central Government the power to designate sessions courts as Special Courts, thereby increasing the burden on them.

After doubts regarding the misuse of the bill were raised in both the houses, Union Minister Amit Shah said: “I assure the House that the bill will not be misused under any circumstances. If the country does not vouch for the efficiency of the NIA, how will it hold any standing globally? Both Houses need to prove to the world and the terrorists that we are united in this fight. The only goal of the Government is to finish off terrorism.”

Amendments proposed by Congress leader T Subbarami Reddy were rejected even as members of the Left parties walked out after their recommendation that the Bill be sent to a select committee was turned down. Talking about the nature of the Amendment, AIMIM chief Asaduddin Owaisi said that extending the jurisdiction of the NIA to foreign countries was futile as India would not have territorial jurisdiction over crimes committed in other countries. Further, he said, India lacked the diplomatic clout to carry out these investigations in other countries.

 

The NIA Act and the Amendment Bill, 2019

 

The NIA was set up in 2009, in the wake of terror attacks across Bombay in November 2008, which claimed 166 lives. It was set up to investigate and prosecute offences affecting the sovereignty, security and integrity of India, the security of the state, friendly relations with foreign states and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations. It empowers the Central Government to set up special courts for the trials of scheduled offences listed under the Act.

The NIA (Amendment) Bill, 2019 introduces provisions to insert sub-section (d) in Section 1(2) of the Act so as to apply the provisions of the Act to persons who commit scheduled offences beyond Indian borders, against Indian citizens or affecting the interests of the Indian state.

An amendment to section 6 empowers the Central Government to direct the NIA to register a case with respect to a scheduled offence committed outside India as if it had taken place in India. Further sections 11 and 22 of the Act are amended to provide that the Central Government and the state governments may designate one or more courts of session as special courts for conducting the trial of offences under the Act.

Section 2(1)(f) provides for the Schedule which enlists the scheduled offences. The amendment adds a range of offences under the schedule, by including a few more Acts and provisions, acting in derogation of which will constitute a scheduled offence.

The offences that have been added include:

The Bill adds the following offences to the Schedule:

  1. Human trafficking (Sections 370 and 370A of Chapter XVI of the Indian Penal Code (45 of 1860)
  2. Offences related to counterfeit currency (Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860);
  3. Manufacture or sale of prohibited arms (Sub-section (1AA) of section 25 of Chapter V of the Arms Act, 1959 (54 of 1959);
  4. Cybercrimes (Section 66F of Chapter XI of the Information Technology Act, 2000 (21 of 2000);
  5. Explosives Substances Act, 1908

The government has claimed that the provision to designate individuals as terrorists under the UAPA Amendment bill, 2019 have been introduced because the NIA finds it difficult to deal with individuals under the present legal regime – a claim refuted by the opposition.

Any broadened investigating power taken by the government should be counter-enacted with a set of check and balance provisions to ensure that the powers in place are not misused, the opposition has asserted.

The legislation has no provisions for sunset clauses, any sort of review mechanisms and there have been a plethora of instances when misuse has been alleged. If not used effectively and with the proper safeguards in place, there are concerns about institutional and systemic discrimination that have and could take place in the future. Rashtriya Janata Dal’s (RJD) Manoj Jha has warned India could turn into a “police state” given the absolute majority that the government enjoys.

Read the full Bill here:

Shardul Gopujkaris a fourth-year student at the Maharashtra National Law University, Mumbai. His areas of interest include Human Rights, Criminal Law and Conflict Studies.

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