Till of schedule offences. Ø Ensuring effective and

Till date, the agency was successful in
creating deterrence in the society by its professionalism and standards. The
vision of the agency is to combat terrorism and other national security related
investigation by a highly developed and trained workforce. The agency aims at
developing as a storehouse of all kind of terrorist related information.

The missions of agency are:

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Ø   
Professional
investigation of schedule offences.

Ø   
Ensuring
effective and speedy trial.

Ø   
Complying
with the Constitution and other related laws.

Ø   
To
develop a professional workforce

Ø   
To
display scientific temper and professional spirit.

Ø   
Inducting
modern methods and latest technology.

Ø   
To
coordinate with other agencies and government.

Ø   
To
assist others in a situation of terrorist activities.

Ø   
Maintaining
databases of all terror groups and activities.

Ø   
To
study and analyze laws related to terrorism and other terror activities.

Ø   
Further
to serve the citizen and gaining their confidence.1

 

SUMMARY
OF THE NATIONAL INVESTIGATION AGENCY ACT, 2008

The National Investigation Agency Act,
2008 was passed to protect the country from further terrifying terror attacks
like that of 26/11which proved massive intelligence failure. The intention of
the legislature was to establish intelligence agency and out of that, the NIA
was born. The NIA was form to monitor serious terrorism threats, to maintain
the security, sovereignty and integrity of the State, etc.

Wide responsibility has been showered
on the NIA by this Act and its Schedule. The Schedule contains other legislation
under which the NIA can investigate and prosecute. The Act further contains the
process of investigation, the role of public prosecutor and establishment of
Special Courts.

 

Observation
and comment:

v  Section
17, which deals with the protection of witness, is a decent step towards
protection of justice. Witness protection shall be given under every Criminal
Act otherwise justice will not prevail in a Country like India where corruption
is widespread.

v  No
such provision has been given as to how the NIA would coordinate with other
intelligence agencies and what are its powers in relation to that

v  According
to Section 3(2), NIA have only power to investigate the offences thus NIA
doesn’t have any proactive function.

v  The
powers of the Director-General have not been mentioned which should have been
provided for as he is the key person who is answerable in case of an
intelligence failure.

v  The
Central Government has been given a lot of power in the Act. The supervision
and administration of the agency solely lie in the hands of the Central
Government, which indicate wide interference and political pressure although
the power has been vested in the Director General.(Section 4)

v  Moreover,
the Central Government has the power to opine whether an offence is a Scheduled
offence or not and whether NIA can investigate or not, which shows that NIA is
not independent to take its own decisions. Section 6(3)

v
No time is mentioned as to how the
State Government must forward the report to NIA. The phrase “expeditiously as
possible” needs proper interpretation because the Act has been enacted to
prevent serious and grave situation such as terror attacks.

v
In case of instituting a suit, the
sanction of the Government is necessary, this might delay the matter in course.

 

The
NIA mainly functions under the following ACTS:

 

      
I.           
The
Atomic Energy Act, 1962

   
II.           
The
Unlawful Activities (Prevention) Act, 1967

 III.           
The
Anti-Hijacking Act, 1982

  IV.           
The
Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982

    
V.           
The
SAARC Convention (Suppression of Terrorism) Act, 1993.

  VI.           
The
Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002 (69 of 2002);

VII.           
The
Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful
Activities) Act, 2005 (21 of 2005);

VIII.           
Offences
under—

v  Chapter VI of the Indian Penal Code (45
of 1860) sections 121 to 130 (both inclusive);

v  Sections 489-A to 489-E (both
inclusive) of the Indian Penal Code.

 

THE MALEGAON BLAST
CASE: INSIGHT

The period between 2006 and 2008, India
has witnessed major blast which shook the nation to the core. Among all the
attacks, the major was Malegaon Blast of 2006 and 2008 where Muslim majority of
our country was targeted as it seems. In both the cases initially the investigation
was done by Anti Terrorism Squad, Maharashtra where the ATS has arrested nine
Muslim men of Student Islamic Movement of India (SIMI) in connection to 2006 blast. Later NIA took up the matter on April
6 2011 and arrested four persons who belong to the Hindu Right Wing, ABHINAV
BHARAT. In 2016, all the nine accused who were previously arrested were
discharged by Special NIA Court who was used just as mere scapegoats.

 

This
period also witnessed many blasts like Ajmer Sherif Dargah blast, Samjhauta
Express blast and Mecca Masjid blast and in all these incidents the association
of Hindu Separatist Leader came into the picture. The Malegaon Blast in 2008
was being probed by the then ATS Chief Mr. Hemant Karkare who was later
suspiciously killed in 26/11 Mumbai terror attack. Mr. Karkare got many vital
leads of the involvement of Hindu organization like RSS, ABVP and Abhinav
Bharat or collectively “Saffron Terror”. The main role was played by Pragya
Singh who was the mastermind along with other associates like Swami
Aseemananda, Sameer Kulkarni and other. In a narco analysis they confessed
their involvement in all these blasts.

 

Later
NIA started probing all these blast and found loopholes in the investigation of
ATS. Although in 22nd March 2017, NIA Special Court awarded Life
Imprisonment to Devendra Gupta and Bhavesh Patel in Ajmer Dargah Blast. But
Sadhvi Pragya was granted bail in connection to Malegaon blast case.2

 

Constitutional
Validity of NIA:

In the case of Pragyashingh
Charpalsingh Thakur versus State of Maharashtra, Anti Terrorist Squad, Mumbai,
Union of India and National Investigation Agency AND Major Ramesh Upadhyaya Vs.
Union of India, Government of Maharashtra3, the
constitutional validity of NIA was questioned. It has been argued by Mr. Mahesh
Jethmalani that Section 6 of the NIA Act, give immense power to the Central
Government to transfer any matter any time to the NIA for investigation if it
falls under the category of Schedule Offences. Section 6 which is the heart of
the NIA Act is unconstitutional and abridges Article 14 and 21. He further
argued that only court has power to transfer the matter to any investigation
agency if it deems fit whereas this Section confers arbitrary power to the
central government to direct transfer of investigation.

Mr. Setalwad representing Union of
India contented that NIA is a federal agency having power to probe terrorism
and other crimes having national ramification such as hijacking, bomb blast,
attack on nuclear installation etc. The preamble of NIA Act specifically
provides that the agency have been constituted to investigate offences relating
to

ü  Sovereignty of India

ü  Security of India

ü  Security of State

ü  Friendly relation with other states

ü  To implement treaties and conventions

Furthermore, NIA ACT is not
constituting a police force and not to deal with police or public order which
are part of State List in VIIth Schedule of the Constitution rather it is
mainly to deal with matter of nation importance like that of Defence, Naval,
Airforce, Central Bureau of Intelligence And Investigation, etc.

Court therefore dismissed the petition
stating that there is enough room for NIA to take upo any matter any stage
because Rule of Rule must prevail over abuse of process of law. If the
sovereignty, integrity and security of State is threatened then by acts of
terrorism and insurgency, then Parliament and NIA can interfere to restore the
same. Thus there is a Rule of Law that binds NIA which cannot be overruled.

Comment:

The
preamble of the NIA has specifically states the role of NIA in case of national
importance. The elements which have been laid down in it can be connected to
reasonable restriction provided under Article 19 of the Indian Constitution.
Therefore it is not ultra vires to the Constitutional and one has to understand
the vital subjects which are being dealt by the NIA which is not only of
national importance but of international concern. 

SUCCESSFUL
CASES BY THE NIA:

KULLU HIMACHAL CASE

In this case police arrested a person
named Abid Khan guilty of propagating terrorist activities and planned to join
ISIS in Syria. The case was registered on 17th December 2016 of
Banjar Police Station, Himachal Pradesh. The person hails from Bangalore and
was arrested from Himachal Pradesh was found guilty under Section 419 IPC and
Section 18 and 20 of the Unlawful Activities (Prevention) Act (UAPA), 1967. He
was found to be a member of a newly-formed organization called
‘Junood-Ul-Khilafa-Fil-Hind’ which function under the ideology of ISIS. On
27.07.2017, the NIA Special Court in Himachal Pradesh sentenced the person to 5
years of rigorous imprisonment.

This
case can be added to the list of successful disposal of cases by NIA as it can
be observed that fast investigation had taken place which led to speedy trial
and prompt judgment.

TERRORIST ATTACK OF KUPWARA (J)
CASE

This is a case of infiltration from
Pakistan to attack Jammu and Kashmir and Delhi. The chargesheet was filed on 26th
July 2016 against one accused and the case is under further investigation.

The
chargesheet of this case reflects how the LASHKAR-E-TAIBA or LeT was planning
to wage war against the Government of India by infiltration and gave high
intensity training to its members. All the accused persons were the citizens of
Pakistan and were well equipped with high class weapons and GPS devices.

FICN CASE, RAJKOT, GUJARAT

This is a case of printing of fake
currency notes in huge quantities. The chargesheet was filed on 03rd
June 2017 against all the accused persons. The complaint was registered on 24th
February 2017 after the accused tried to dupe the complainant by extracting 50
lakh rupees from him. The incident occurred during the time of demonetization
when majority of the people were in short of cash and the conspirators took
advantage of the situation.

This
case throws light on how people were fooled during emergency situation. But the
NIA was prompt in its action and chargesheet was filed in such a short span of
time.

BOMB
PLANTED IN PRESSURE COOKER CASE

In this case the NIA had filed the
final charge sheet on 24th July 2017 against all the nine accused
persons who have planted an IED Bomb in pressure cooker at Railway Track
Ghorasan, Motihari, Bihari in the night of 30th September 2016.

Again in this case there was an
involvement of a Pakistani citizen as well as a Nepalese citizen. It simply
reveals that another massive mass destruction has been resisted by promptness
of a few citizens of our country. The chargesheet reflects that there is an
ongoing conspiracy to carry out a series of terror attacks in India. The
coordination between the accused persons and the persons behind them are
extremely strong but nevertheless NIA had successfully nabbed the accused and
stopped a major attack from being happening in the nation.

 

Apprehension
of 12 Iranians on boat with highly suspected items:

 

In
this case the final report has been filed by NIA on 31st July 2015
which states that only one accused has been charged namely, Abdol Majid Balouch, under secrion 7 r/w
14 of the Maritime Zones of India (Regulation of Fishing by Foreign Vessels)
Act, 1981. The name of the boat was “FV BAKOORI” which has been found by Indian
Coast Guard from the Exclusive Economic Zone of India off Kerala Coast without
any license or permit and with an intention to commit criminal offence. The
preliminary investigation was dome by Mr. Stanley who arrested all the 12
accused out of which 11 accused has not been made liable since they were just
crew members. The judgment was pronounced by NIA Special Court, Ernakulum,
Kerala on 4th April 2016 which held the accused guilty.4

This is another example of efficient
work of the Investigation Agency which led to quick conviction of the accused.

 

RECENT IMPORTANT CASES UNDER PROBE BY
NIA:

 

HURRIYAT
LEADER CASE:

 

Apart
from the few above mentioned cases the NIA is investigating many high profile
cases which has recently been flashed by the media like terror funding of
Hurriyat Leaders by Lashkar-e-TAiba and Pakistan. It has been claimed by NIA
officials that the money received by the Hurriyat Leaders has been used to
carry out different violent activities in Kashmir since last year like stone
pelting and torching of schools and government buildings.5

 

ZAKIR
NAIK CASE:

Famous Islamic preacher Zakir Naik, who
was in a lot of controversy after a Bangladeshi terrorist took his name that
he, got influenced from his contentions. Presently the NIA is probing the
matter and recently issued notice to him to appear in Court as a case has been
filed against him under Unlawful Activities (Prevention) Act.

Therefore,
it can be analyzed that the NIA is proactive as compared to the other agencies
and local police departments which fails to even submit the charge sheet. NIA
proactively take up the matter with the power given in the NIA Act but the
interference of Central Government must be reduced in order to make it more
effective and efficient.

 

 

 

 

 

 

 

 

 

 

 

STATUS
OF CASES:

In present time the NIA is dealing with
a total no. of 163 cases, having 6 police stations across India. Out of which
most of the data involves ISIS or ISIL. The analysis of the cases has been
given through the following diagram:

 

As can be drawn from the chart that
most of the cases are under investigation around 43% and chargesheet has been
filed in around 34% cases (approx.) and cases are in the trail stage. In around
6 cases judgment has been delivered which shows although there are Special
Courts for NIA but speedy trial is not happening. There are 37 Special Courts
for NIA in various States and Union Territories. The number of courts must be
increased for speedy disposal of cases as the terrorist activities and
infiltration is rapidly outnumbering in India. The judiciary must take steps to
increase the number of courts and judges as well as providing best public
prosecutors to NIA cases so that the accused can get stringiest of punishments
and to cover up the lacuna that causing acquittal of accused. Proper training
must be imparted not only to NIA officials but also to judges who are dealing
with special cases.

 

 

 

 

COMPARISON
WITH OTHER AGENCIES:

A.    
Central
Bureau of Investigation and NIA:

Central Bureau of Investigation or CBI
is a premier investigation wing of police which primarily does criminal
investigation whereas NIA is a newly formed intelligence department after the
attack of 26/11 for combating terrorism and other scheduled offences laid down
in the National Investigating Agency Act, 2008. Although both the intelligence
departments are not immune from Central Government interference but NIA doesn’t
need special permission from the State Government for investigation of
terrorism activities unlike CBI.

 

CBI is well equipped with a Central
Forensic laboratory and has a separate CBI Academy for imparting modern
training techniques whereas NIA doesn’t have such a separate institution for
training which is very much required because NIA deals with global problems
like terrorism and fake currency circulation which require modern technology
and smart intelligence to track.6

 

Conviction Rate:

The conviction rate of CBI7
is much lower than NIA8.

According
to newspaper reports the conviction rate of CBI is much lower to around 63% of
CBI than that of NIA whose rate is around 93% which is quite impressive because
CBI is getting much more facilities than NIA which is the youngest among all
the intelligence agencies. Thus the contribution of NIA is much more than that
of CBI which is functioning for only 8 years.

 

B.    
ANTI-TERRORISM
SQUAD or ATS versus NIA:

Both ATS and NIA are formed to combat
terrorism or related activities but ATS has proved to be more powerful and
efficient in investigating cases and causing conviction of the accused. NIA is
an independent organization unlike ATS which mainly functions under the
supervision of Intelligence Bureau. The 26/11 Mumbai Attack proved the drastic
intelligence failures which led to the death of many people.

NIA is a young agency as compared to
ATS which was formed in 1990 and happened to stop many terrorist attacks in the
country but it conducts many encounters and shootouts. In a recent case of
encounter, Saifullah9,
was killed by ATS team and Uttar Pradesh Police, who is suspected as an ISIS
terrorist. The NIA was given the authority to investigate the encounter.10

The controversial Malegaon Blast case,
which was probed by the estranged ATS Chief Hemant Karkare, was later handed
over to the NIA and the entire story was turned and the NIA’s contention was
absolutely reversed to that of ATS. In this case all the accused persons have
been acquitted which indicates the partial attitude of NIA towards RSS and
Abhinav Bharat. The facts have been presented in court from different angle
from that of ATS. The conviction rate of ATS is quite low as compared to NIA.

 

PROBLEMS
FACED BY NIA

Although the National Investigating
Agency is a federal organization and has power to take up any matter of
terrorism and other related activities, it faces a lot of pressure from the
Centre as well as the State Government. In addition to that they face multiple
problems which are discussed in detail, as follows:

       
i.           
CENTRE-STATE
CONFLICT

Since “police” and “public” order both
come under the STATE LIST in 7th Schedule of the Indian
Constitution, the State Government create issues in the name of Central
Government interference. The State police department doesn’t cooperate in
hiding the loopholes in their investigation which lead to conflicting
investigation report and miscarriage of justice. In Section 9 of the NIA Act,
2008 it is given that the State Government to provide assistance to NIA and in
Section 6(2), the State Government has been directed to forward a report
containing information regarding any offence “as expeditiously as possible” but
the interpretation of the phrase has not been provided which has already been
mentioned which scrutinizing the ACT. This might lead to delay in investigation
resulting in acquittal.    

 

     
ii.           
PROBLEM
OF COORDINATION WITH THE STATE POLICE

The NIA faces problem while
coordinating with the concerned State Police Department or the Anti Terrorist
Squad leading to ego clashes and lack of information to tackle the issue
because combating terrorism cannot solely be handled by NIA as it requires
cooperation of the other agencies and organizations. They face problem since the
State officials are poorly trained and ill-equipped. For instance in the case
of Yasin Bhatkal who was arrested by the West Bengal police in forged currency
case was later released because the police was unaware of the fact that he was
on the NIA’s most wanted list.

 

   
iii.           
NOT
WELL-EQUIPPED

The NIA is poorly equipped to tackle
emergency situation like a terrorist attack, for instance- when there was a
blast in West Bengal in the year 2014 there was no public vehicle to carry the
officials to the crime scene and they had to avail taxi services which show the
lack of infrastructure provided by the Government.11

 

   
iv.           
PROPER
TRAINING

The NIA operates PAN India which puts a
lot of pressure on them and requires skill and training in cyber surveillance,
equipment and communication skills and other expertise. The government must
increase the budget from the current $16 million. NIA requires more specialized
staff and a centre of excellence to train them.

 

     
v.           
THREAT
OF SECURITY

Recently in 2016, an NIA official named
TANZIL AHMED was shot dead in a planned attack by unidentified motorcycle-borne
assailants in front of his wife and children in Bijnore, western Uttar Pradesh,
on 3rd April 2016. He had died on the spot, while his wife Farzana
was taken to a hospital in Noida, where she is in a critical condition12.
His daughter (14) and son (12) are unharmed. This incident shows that how the
officials are vulnerable to get attacked by anyone at anytime. Government must
provide proper security to important officials who are playing critical role in
high profile cases.

 

   
vi.           
BUDGETARY
PROBLEMS

The NIA was created after the 26/11
attack and is seen as the Federal Bureau of Investigation of India. But India
has a population of 4 times than that of America and NIA is being allotted only
0.5% of the funding of its American counterpart. 13

 

 

  vii.           
COORDINATION
WITH OTHER AGENCIES

This major issue faced by NIA is the
need to work hand in hand with other intelligence agencies. They face pressure
from Intelligence Bureau which acts as the head of all agencies in India as a
result of which they lose their independence and transparency.

 

 

CONCLUSION

The National Investigation Agency or
the NIA is proved to be better than other intelligence agencies both in terms
of professionalism and humanitarian aspects but it lacks certain other
important aspects because of the fault of others. This agency is basically
formed to counter terrorism like the FBI in America but to compete with those
standards they require assistance from Government stakeholders and be given
full independence in handling cases. It face hurdles when they are imparted
with any case from a State where the police department concerned have already
carried on investigation which could be faulty and lack of any specific
strategy. Where there is strain relationship between Central and State Government,
national agency like NIA fails to get proper assistance from the State Police
which ultimately lead to miscarriage of justice.

From the Malegaon Blast case it does
seems like that NIA is falling under the influence of high profile people who
are the real threats to the country than Al-Qaeda or Lashkar-e-Taiba, who hide
behind these groups and serve their purpose. This case is a setback for NIA
since there is a sharp contradiction in the contention of ATS and NIA and they
failed to gather evidence. Nonetheless, the NIA must be able to function
independently without any political pressure, which must be ensured by the
Government as it is a federal agency and government keeps on changing. The
expectation from NIA is quite high as India doesn’t want to witness another a
26/11 which was a major and deliberate intelligence failure.

 

 

1http://www.nia.gov.in/index.htm

2 Conversation with former
Inspector S. M. Mushrif

3 MANU/MH/1680/2013

 

4 http://www.nia.gov.in/writereaddata/Portal/CasesPdfDoc/Judgement_Iran_Boat_Case_Annexure_-_U-1.pdf

5 http://www.hindustantimes.com/india-news/nia-launches-probe-against-hurriyat-leaders-for-receiving-money-from-pakistan

6http://cbi.nic.in/aboutus/aboutus.php

7http://www.newindianexpress.com/cities/kochi/2017/feb/12/68–conviction-rate-for-cbi-1569707.html

8http://theindianawaaz.com/nia-has-achieved-conviction-rate-of-93-rajnath/

9 http://indiatoday.intoday.in/story/lucknow-encounter-slain-terrorist-saifullah-neighbours-shocked-thakurganj/1/900173.html

10 http://www.hindustantimes.com/india-news/lucknow-encounter-likely-to-be-given-to-nia-for-probe/story-42TPk7TRuVndxSMi6vSeJP.html

11 http://www.dnaindia.com/india/report-national-investigation-agency-poorly-equipped-shortfalls-hamper-india-s-fight-against-terrorists-2032784

12 http://www.thehindu.com/news/national/NIA-officer-shot-dead-in-Uttar-Pradesh/article14217573.ece

13 http://www.dnaindia.com/india/report-national-investigation-agency-poorly-equipped-shortfalls-hamper-india-s-fight-against-terrorists