News Excerpt

The Chhattisgarh government recently filed a petition, citing Article 131 to challenge the Constitutional validity of the National Investigation Act, 2008. The petition contends that the NIA Act is ultra vires the Constitution and beyond the legislative competence of Parliament.

Doctrine of Colourable Legislation This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. This doctrine is found on the wider doctrine of “fraud on the constitution”. A thing is Colourable when it seems to be one thing in the appearance but another thing underneath. K C Gajapati Narayan Deo vs State of Orissa, is a famous case that illustrates the applicability of this doctrine.

Pre-Connect

• Chhattisgarh has referred to the Supreme Court judgment in State of Jharkhand vs State of Bihar and Another (2015) to justify the suit’s maintainability.

Arguments of the Petition

• NIA Act is beyond “legislative competence of the Parliament” and is against the “federal spirit” of the Constitution. Since police is a state subject, the Centre cannot be given police powers.
• The provisions of the Act go against state sovereignty because the provisions of the Act leave no room for coordination and pre-condition of consent, in any form whatsoever, by the Central government from the State government
• Framing of legislation such as NIA Act by the Parliament, which creates an “investigation” agency having overriding powers over the “Police” of a State, was never the intention of the makers of the Constitution
• NIA Act, in its present form, takes away the state’s power of conducting an investigation through police and confers unfettered discretionary and arbitrary powers on the Centre.
• NIA Act’s enactment by Parliament and creation of an “investigative” agency, namely the National Investigation Agency, for investigating the scheduled offences committed in any particular State, is clearly an act of colourable legislation.

Analytica

National Investigation Agency (NIA)

• The NIA is a ‘Central Counter Terrorism Law Enforcement Agency’formed by the Congress-led United Progressive Alliance government with the aim of investigating acts of terrorism.
• It came into existence in the backdrop of the November 2008 terror attacks on Mumbai and was enacted through central legislation –NIA Act 2008
• NIA is given powers to investigate terror-related cases across states without taking special permission from states.
• The Agency has been empowered to conduct investigation and prosecution of offences under the Acts specified in the Schedule of the NIA Act.
• Scheduled offences specify a list of offences under Acts such as the Atomic Energy Act, 1962, and the Unlawful Activities Prevention Act (UAPA), 1967, Anti-Hijacking Act, Suppression of Unlawful Acts against Safety of Civil Aviation Act, etc.
• Officers of the NIA have all powers, privileges and liabilities which the police officers have in connection with the investigation of any offence.

The act allows the central government to constitute Special Courts for the trial of scheduled offences.

• There were certain amendments which were made to the law through the NIA (Amendment) Act, 2019.
• NIA now has received the powers to investigate terror crimes related to Indians and Indian interests abroad.
• The Act seeks to allow the NIA to investigate additional offences, under human trafficking, offences related to counterfeit currency or banknotes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908
• After the amendment, the central government may designate Sessions Courts as Special Courts for the trial of scheduled offences after consulting the Chief Justice of the High C
  

  Article 131 It deals with the original jurisdiction of the Supreme Court Original jurisdiction of a court refers to its power to hear a case first Any dispute involving a question of law or fact on which existence of legal right depends comes under original jurisdiction of the SC. The disputes may be: between the government of India and one or more states; between the government of India and any state/states on one side and one or more states on the other; between two or more states , if the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. Article 131 of the constitution is unique because of the fact that Supreme Court has the power to directly listen to matters between 2 states governments or between the Centre and the state

  ourt under which the Sessions Court is functioni

• Further, state governments may also designate Sessions Courts as Special Courts for the trial of scheduled offences.

Arguments Against the Judgement

• ContaiRahamania Madrasah Committee filed a petition against the judgement mentioning that the judgment by the Bench was contrary to the Court’s stand expressed in Constitution Bench decisions like the M.A Pai case of 2002.
• M.A Pai case of 2002 mentions that minorities have a fundamental right under Article 30 of the Constitution to administer their institutions and appoint teachers.
• The 2002 case also said that regulatory measures of control should be very minimal” and “matters of day-to-day management like appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency”.
• Contai said the Bench had even contradicted a recent Court judgement in Chandana Das (Malakar) versus State of West Bengal which upheld the rights of the minority communities to establish and run their own institutions without government interference in day-to-day affairs of management like the appointment of teachers.
• The petition also argued that the judgment segregated a particular community from the privilege of protection under Article 30. It asked what exactly was the “national interest” in regulating the day-to-day functioning of minority educational institutions.

Conclusion

• The NIA Act shows government’s Zero tolerance towards Terrorism, but this legislation does not provide the scope for obtaining the consent of the state government before operating in its jurisdiction which violates the federal principle enshrined in the Constitution.
• Hence, the plaint filed under Article 131 by the Chhattisgarh Government contends that the law violates provisions that set out a separation of powers between the state and the Centre.

PEPPER IT WITH

TMA Pai Foundation Case 2002, Article 29,