Digging deeper | Explained: What is the NIA (Amendment) Bill?

There was some tension in Parliament during the debate over the bill, with Amit Shah and AIMIM leader Asad Owaisi exchanging strong words. On this edition of Digging Deeper, we look at what this amendment is, and what the debate in Parliament was about.

What is the National Investigation Agency (Amendment) Bill, 2019?

As always, it’s good to begin with the backstory. The National Investigation Agency, which is at the heart of the matter we’re discussing today, was set up in 2009 following the 26/11 Mumbai terror attack which claimed 166 lives. The many individual heartrending tales, and the perception of complete breakdown of law enforcement, left a usually blase nation shellshocked, and the outrage meant the central government had to do something.

The National Investigative Agency Bill and Unlawful Activities (Prevention) Amendment Bill was passed just 35 days after the attacks. The NIA was set up in 2009 and, according to the agency’s Director General YC Modi, had a conviction rate of 95%, managing to convict 167 accused in the 185 cases registered between 2009 and mid-2018.

So what exactly does the NIA do? In officialese, the NIA “has concurrent jurisdiction which empowers the Central Agency to probe terror attacks in any part of the country, covering offences, including challenge to the country's sovereignty and integrity, bomb blasts, hijacking of aircraft and ships, attacks on nuclear installations.” In essence, these guys have a very difficult job - sussing out and foiling terrorists before any attack is executed on Indians and India’s interests abroad. A desi James Bond type thing...think Salman Khan in Ek Tha Tiger, but a lot less glamorous, a lot more shirt-wearing, and a lot more actual investigating.

[Sidenote: interesting factoid: turns out the now famous James Bond film theme...yeah, you know that one… that theme gets its memorable music from a song composed for an abandoned 1950s musical based on VS Naipaul’s novel, A House For Mr Biswas. The tune is called Good Sign, Bad Sign and consists of an Indian man singing about his magic sneeze, which, unfortunately, also killed his father. The melody is played on a sitar! Look it up on Youtube. Good Sign, Bad Sign. 

Sidenote sidenote: we have a new 007. Lashana Lynch. Black and female and amazing. Conservative whitebros are… not thrilled.]

But enough about fake spies. (Although did you see those pieces that described Ajit Doval as Indian James Bond? That was a fun visual.)

Let’s get back to real investigators. Because, you know, investigation is the agency’s middle name.

When the NIA get things right, we tend to see reports in the papers...”NIA arrests two men accused of making bombs,” that kind of thing. When they get it wrong, things like Pulwama happen. All guts, and little glory for those men and women, apparently. (Unless you’re Salman Khan, of course. In which case it is all glory and all guts, held and spilled.)

According to the NIA’s official website, its officers are drawn from the Indian Revenue Service, Indian Police Service, state police, Income Tax as well as officers from the Central Armed Police Forces. These officers have all the powers, privileges and liabilities police officers have in connection with investigation of any offense.

Another notable feature of the NIA: the Special Courts notified by the government for trying the cases registered at various police stations of NIA. Trials by these courts are held on day-to-day basis on all working days and have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and have to be concluded in preference to the trial of such other case. There were 38 special NIA Courts at last count and state governments have been empowered to appoint one or more such special courts in their states.

In October 2018, the NIA’s latest list of wanted fugitives was released. Though the agency claims to not assign any ranking to the fugitives on the list, the highest reward, at present, is being offered for info on one Mupalla Lakshman Rao aka Ganapathy, a man their website labels as belonging to “CPI(Maoists) and its formations”. That list has 258 names in total, and 15 of the accused on that list are women.

So that’s about the NIA.

What’s this new amendment then?  

Well, it does sound like the National Investigation Agency has a fair bit of power to track and arrest individuals and groups it deems a threat to India’s security. So why this amendment now?

The Bill seeking to further strengthen the NIA, by giving it powers to probe terror attacks targeting Indians and Indian interests on foreign soil, was introduced in Lok Sabha on Monday.

Kicking off discussions on the National Investigation Agency (Amendment) Bill, 2019, Union minister of state for home G Kishan Reddy said the legislation would allow the NIA to probe cyber crimes and cases of human trafficking. He added that the agency would be empowered to conduct investigation in any part of the world if any terror attack targeting Indians or Indian interests takes place.

Okay, let’s make this simpler - the amendment brings three main changes:

The first change is the type of offences that the NIA can investigate and prosecute. As stated earlier, the latest amendments will enable the agency to also investigate offences related to human trafficking, counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.

According to the Indian Express, the second change relates to NIA’s jurisdiction. Under the Act, NIA officers have the same power as other police officers and these extend across the country. The Bill amends this to give NIA officers the power to investigate offences committed outside India. Of course, NIA’s jurisdiction will be subject to international treaties and domestic laws of other countries. For instance, as former acting chief of NIA and director general of the Bureau of Police Research and Development, NR Wassan, told Hindustan Times, the NIA was “not empowered to register a case, investigate and prosecute” when the Indian Embassy in Afghanistan was attacked in October 2009 and Afghanistan was keen to help India. He is clear that “the ability to investigate cases on foreign soil is a much-needed enabling provision.”A serving police officer told the newspaper, on condition of anonymity, “The NIA has been investigating fake-currency cases, it has cross country ramifications and is often linked to terrorism, its inclusion of the scheduled offence helps administratively.”

The third change relates to the special trials courts for the offences that come under NIA’s purview. The existing Act allows the Centre to constitute special courts for NIA’s trials. Now, the Centre can also designate a sessions court as a special court for the trial of NIA investigated offences.

Overall, even as investigators and experts approved giving more muscle to the NIA, some cautioned that the addition of offences such as human trafficking to the federal agency’s charter might prove counterproductive. Former additional director of NIA Prakash Mishra said human trafficking is not always related to terrorism but did add that the problem is reaching alarming proportions. Avinash Mohanani, who spent years in the Intelligence Bureau tracking terror and later headed Sikkim Police, explained, “Adding human trafficking could dilute the charter of the NIA.” Senior police officer Prakash Singh disagreed with Mohanani. He said, “Human trafficking has interstate ramifications.”

Wassan said approvingly, “This was desperately needed.” One of the latest examples, he pointed out, was of the Easter bombings in Sri Lanka, where 11 Indians were killed. NIA did not investigate the case and had the role of assisting Sri Lankan officials.

Ruckus in the lower house

As the 2019 amendment bill was introduced in the Lok Sabha, there was a war of words between union home minister Amit Shah and MP of the AIMIM party Asaduddin Owaisi, who has emerged as a strong opposition voice since Rahul Gandhi’s declaration that he would resign as president of the Congress party.

The argument between the two began when opposition members, including Owaisi, started heckling BJP MP Satyapal Singh. Owaisi objected to the claim by Singh that a state leader had rebuked the then Hyderabad Police Commissioner to change the course of probe in a particular case, hinting at the Mecca Masjid blast. Singh said he knew it because he was then posted as Police Commissioner of Mumbai.

Owaisi objected strongly to this and demanded all records related to the case be placed before the House. He also mentioned the acquittals of nine men, who were from the Muslim community, in the Malegaon blasts case 10 years after they were accused. Amit Shah then said that the treasury bench had not disturbed members of the opposition party when they spoke and hence they should also be not disturbed. Shah insisted strongly that members of the opposition must have patience to listen to others in the house as well.

What followed next was a comedy of assumptions. Shah seemed to have pointed at Owaisi, which provoked the MP from Hyderabad, and he demanded that the Home Minister not point fingers at him as he cannot be frightened. Shah hit back, saying he was not trying to frighten him, and rather just stating that opposition leaders should have patience to listen to the counter-view.  He also took a jibe, remarking, “When you have fear in mind what can I do.”

Shah dialed up the rhetoric, saying all political parties should support the bill to send out a message that Parliament was unanimous in the fight against terrorism. He said, “We urge all political parties to speak in one voice in favour of the Bill...We should send a strong message. I assure the House that the Union government under Prime Minister Narendra Modi will not misuse the bill against any community on the basis of religion.”

Some opposition representatives expressed misgivings that they had about the amendments. Congress MP Manish Tewari claimed that providing the NIA with sweeping powers was not desirable when agencies were being “misused by the Centre for political vendetta”. Another Congress leader, Shashi Tharoor, claimed the courts were already clogged with huge backlog and that the government was adding more cases through the amendment in the NIA Act. Tharoor also alleged that the Bill was "not based on logic" and was a "piecemeal" legislation.

Shah replied that the anti-terror law will not see the religion of people involved in terror activities and the changes in the law will effectively handle terror cases. Citing the example of Tamil separatists facing the law as well, Shah sought to reassure the Lok Sabha by saying, “Terrorism is terrorism, it's neither RIGHT nor LEFT. Perpetrators of terrorist acts need to be punished and will get punished.”

The Bill was subsequently passed by a division vote in which 278 MPs voted in favour and only 6 members voted against it. Even that vote had some comedic moments. The division voting, was asked for by Asaduddin Owaisi, and the home minister, not one to let go of a moment for rhetorical flourish, said division voting must be allowed as it would be clear who all voted “in favour of terrorism and who opposed it.” The speaker Om Birla said he would allow it. However, Congress leader of the Lok Sabha, Adhir Ranjan Chowdhury, and DMK leader TR Balu said there was no need for a division vote as it was a UPA Bill and they were not going to oppose it. Further, as a Hindustan Times report noted, during the previous UPA Cabinet the then home minister, P Chidambaram, had sought to expand the NIA’s powers.

In any case, the Speaker ruled that since he had already allowed it, division voting would take place.

With the Lok Sabha passing it 278 to 6, the Bill now heads to the Rajya Sabha, where the ruling BJP is outnumbered and is expected to have a much tougher time of it.