Court seeks centre, state’s response within 4 weeks
Srinagar: The J&K High Court on Tuesday issued notice to the central and state governments seeking their response to a petition challenging the jurisdiction of National Investigation Agency (NIA) in the State of Jammu & Kashmir.
The petition, moved by counsel Salih Pirzada on behalf of petitioner Haris Mushtaq Khan, called into question the NIA Act 2008 by arguing that the Act was ultra vires (passed without any legal power) as the Parliament of India lacked legislative competence for such an enactment, which falls within the exclusive legislative domain of State of J&K.
“The NIA Act essentially creates a police agency at the national level with powers to investigate and prosecute offences before special courts under the Act. In other words, the NIA Act manifestly encroaches upon the exclusive legislative domain of the J&K State and is thus beyond the legislative competence of the Parliament, hence liable to be declared ultra vires,” the petition stated.
Counsel Pirzada pointed out that the powers exercised by NIA as an agency infringed on the sovereign powers of the State.
“These functions being integral to the sovereignty of the State cannot be delegated to or exercised by a buffer body like that of an agency. Therefore, the delegated creation of an agency as a bulwark of the Central Government tends to alienate the Sovereign Function of the State which renders the constitution of the agency a nullity,” the counsel submitted.
Justice Tashi Rabstan after hearing the counsel issued notice and called for response within four weeks from the National Investigation Agency through the Director General, Ministry of Home Affairs, New Delhi, and from the State of J&K through Commissioner Secretary, Civil Secretariat, Jammu/ Srinagar.
The petition arose out of the fact that the petitioner, Haris Mushtaq Khan of Wathoora Budgam, was arrested over FIR 93/2018 P/S Kothi Bagh, on November 24, 2018, for offences under Section 7/25 Indian Arms Act and 18 Unlawful Activities (Prevention) Act and subsequently was lodged at Kot Balwal Jail, Jammu.
The Central Government in an order dated December 12, 2018, transferred the case investigation to NIA and accordingly the investigation agency recorded an FIR on December 13, 2018.
The petitioner questioned that though the alleged offence took place in Srinagar, his production for remand was before an NIA court in Jammu and not before the Srinagar NIA Court which was constituted on March 1, 2019.
The petitioner argued that this was a violation of Articles 14, 19 and 21 of the Constitution and sought intervention of the court to address the wrong.
The petition sought from the court that the NIA Act 2008 and any enabling legislative Act may be declared ultra vires of the Constitution.
The petitioner also prayed that the Order dated 12.12.2018 passed by the Central Government be quashed (Overturned), further pleading that the FIR registered by NIA dated 13.12.2018 be quashed.
“Also, NIA may be restrained from investigating the impugned FIR,” the petitioner submitted before the state High Court.