After the horrific incident of 26/11 Mumbai terror attack, it revealed the failure of intelligence and ability of the investigation agencies within our internal territory. This lead to the requirement of a pan India investigation agency, which will specifically deal with these kinds of cases with special capabilities and designated powers. To investigate, prosecution, speedy trial and convict the pan India evils in these type of cases, country needed a special agency, who will be designated with special authority to dispose of such cases in pan India.

The Parliament passed the National Investigation Agency Act, 2008 on 31st December, 2008. By this, it established a dedicated body to counter the terror related activities. The central government has the authority to establish a specialized agency known as the National Investigation Agency.[2] This agency is tasked with the investigation and prosecution of offences that are explicitly listed in the Schedule of the mentioned Act.[3]

In the case Prakash Singh vs. Union of India,[4] various entities, including the National Human Rights Commission, Soli Sorabjee Committee, Bureau of Police Research and Development, and the second Administrative Reforms Commission, submitted information to the Supreme Court. They all recommended the establishment of a national investigation agency.

The Supreme Court agreed, emphasizing the necessity for such an agency due to crimes in interstate and international dimensions. State law enforcement faces challenges in investigating and preventing these crimes because of jurisdiction limitations and the inability to coordinate nationally or internationally. Moreover, state authorities struggle to keep pace with the technological advancements adopted by cross-border terrorists.

The National Investigation Agency (NIA) stands as a comprehensive solution to combat pervasive threats across India. With a pan India mandate, it aims to eradicate the pan India evil of transnational crimes, ensuring a unified and robust response. NIA's role is pivotal in safeguarding the nation's security, integrity, and sovereignty.

The Pan-India Evil and Establishment of NIA

In recent years, India has faced significant challenges due to widespread terrorism and activities incidental to it from across its borders. The nation has witnessed numerous terrorist incidents, not only in regions affected by militancy, insurgency, and Left Wing Extremism but also through attacks like bombings in various hinterlands and major cities.

Many of these incidents have intricate connections with other states and international networks, potentially linked to activities such as arms and drug smuggling, circulation of counterfeit Indian currency, and infiltration from neighboring borders.[5]

Recognizing the complexity and interconnected nature of these incidents, there was a recognized need for a centralized agency dedicated to investigating offences related to terrorism and other acts with national implications. Various experts and committees, including the Administrative Reforms Commission, had recommended the establishment of such an agency.

After thorough consideration and examination of the issues involved, the government proposed the enactment of legislation to establish a National Investigation Agency (NIA) with a concurrent jurisdiction framework. This legislation would empower the agency to take up specific cases under particular Acts for investigation.

Consequently, on December 31, 2008, the NIA Act was enacted, giving rise to the National Investigation Agency. The NIA presently operates as the central counter-terrorism law enforcement agency in India. Its role is crucial in addressing and investigating offences related to terrorism and other acts with national implications, reflecting the government's commitment to enhancing the country's security and combating cross-border threats to secure the peace and harmony of the country.[6]

The NIA Act, 2008

The above mentioned Act contains a Preamble, five Chapters with twenty-six Sections and a Schedule at the end. The Preamble of the Act contains the actual need for the enactment of a special legislation as, "This legislation is designed to create a national-level investigation agency with the mandate to investigate and prosecute offences that impact the sovereignty, security, and integrity of India.

The agency's jurisdiction extends to matters involving the security of the State, friendly relations with foreign States, as well as offences under Acts enacted to implement international treaties, agreements, conventions, and resolutions of the United Nations, its agencies, and other international organizations. The Act also covers related matters and issues incidental to the aforementioned objectives."

"The Act extends to the whole of India and it applies to any citizen of India outside India, a person in the Government service wherever they may be, persons on ships and aircrafts registered in India and to persons who commit a Scheduled Offence beyond India against the Indian citizens or affecting the interest of India."[7] As usual Section 2 of the legislation provide some of the definitions. The second chapter discusses the constitution, superintendence and manner of constitution and conditions of service of members. The Central Government has vested the superintendence of the NIA.[8] The agency is empowered to investigate cross-state terrorism without explicit state permissions, provided there is a written proclamation from the Ministry of Home Affairs.

Investigation by the NIA

Upon receiving information and documenting as FIR concerning any of the Scheduled Offence, the police station's officer-in-charge is mandated to promptly transmit the report to the State Government. Subsequently, upon receiving this report, the State Government is obligated to expeditiously forward it to the Central Government. The Central Government within fifteen days decide the offence a Scheduled offence or not.

Also check the gravity of the offence whether it is a fit case to be investigated by the agency. If they satisfied then direct the NIA to investigate it as soon as possible.[9] Sub-section 5 of the Section 6 gives the Central Government suo motu power to transfer the cases to the agency. After taking the case by the agency the State investigation shall stop and they will transmit all the relevant findings to them.

If the Scheduled Offence has been committed any place outside India, then the Central Government shall direct the agency to investigate the offence. According to the gravity of the offence and other relevant factors the agency may collaborate with the State Government or transfer the case for investigation and trial to the State Authority with the previous approval of the Central Government.[10]

Section 8 empowers the agency to investigate the offences which are connected to the Schedule Offences. The State Government shall investigate the Schedule Offences unless and until it transfers to the agency. Upon the case's transfer, the State Government is obligated to provide full assistance and cooperation to the Agency for the ongoing investigation.[11]

Special Courts for the Trial

Chapter Four of the Act dealt with Special Court of NIA. Section 11 of the National Investigation Act, 2008 gives power to the Central Government that it shall designate one or more Court of Session as Special Court for the trail of the Scheduled Offences in consultation with the Chief Justice of the High Court. Same as Section 22 empowers the State Government to designate one or more Courts of Session as Special Courts for trying offences under specified enactments listed in the Schedule.

The Agency's investigations into any Scheduled Offence mandate exclusive trial by the Special Court within the geographical jurisdiction where the offence occurred.[12] While adjudicating any offence, Special Court has the authority to concurrently try any other offence for which the accused may be charged, provided that the offence is connected with the Schedule Offences.[13]

Section 16 of the Act discusses the procedures for trials and powers of the Special Courts. If a Special Court deems an offence beyond its jurisdiction, it transfers the case to a Court with proper jurisdiction under the Code of Criminal Procedure, 1973 and the receiving Court may proceed with the trial as if it initially took cognizance.[14]

An appeal shall lie on the High Court within thirty days from the date of the judgement, sentence or order of the Special Court. The High Court shall try its best to dispose of the appeal with in three months from the date of admission of the appeal.[15]

Additional Crucial Provisions

The Central Government appoints a Public Prosecutor and may appoint Additional Public Prosecutors as needed. In specific cases, a Special Public Prosecutor can also be appointed. To qualify, a person must have at least seven years of legal practice as an Advocate or have held a post requiring specialized legal knowledge for seven years under the Union or a State.[16]

Section 17 of the Act provides the protection of witnesses. Section 18 protects the members of the agency from prosecution without previous permission of the Central Government. The Sections says "Legal proceedings, including prosecutions or suits, against any member of the Agency or any person acting on their behalf for actions taken under the powers conferred by this Act, cannot be initiated in any Court of law without prior sanction from the Central Government."

The Schedule

• The Explosive Substances Act, 1908.
• The Atomic Energy Act, 1962.
• The Unlawful Activities (Prevention) Act, 1967.
• The Anti-Hijacking Act, 2016.
• The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982.
• The SAARC Convention (Suppression of Terrorism) Act, 1993.
• The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002.
• The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005.
• Offences under:
  1. Chapter VI of the Indian Penal Code (45 of 1860) [Sections 121 to 130]
  2. Sections 370 and 370A of Chapter XVI of the Indian Penal Code, 1860.
  3. Sections 489-A to 489-E (both inclusive) of the Indian Penal Code, 1860
  4. Sub-section (1AA) of section 25 of Chapter V of the Arms Act, 1959.
  5. Section 66F of Chapter XI of the Information Technology Act, 2000.

The mission of the agency is clearly illuminated in their dedicated website.[17]

Some of those missions are as mentioned below:

• Professional Investigation- Conduct thorough investigations of scheduled offences using the latest scientific methods to ensure the detection of all cases entrusted to the NIA.
• Efficient Trial Processes- Ensure effective and speedy trials for cases under investigation.
• Professionalism and Constitution Adherence- Develop into a highly professional and result-oriented organization, upholding the constitution and laws of India while prioritizing the protection of human rights and individual dignity.
• Workforce Development- Develop a professional workforce through regular training and exposure to best practices and procedures.
• Scientific and Progressive Approach- Display a scientific temper and progressive spirit while fulfilling assigned duties.
• Incorporate Modern Methods and Technology- Integrate modern methods and the latest technology in all aspects of agency activities.
• Collaboration and Relations- Maintain professional and cordial relations with the governments of States, Union Territories, and other law enforcement agencies in accordance with the legal provisions of the NIA Act.
• Assistance to States and Agencies- Assist all states and other investigating agencies in the investigation of terrorist cases.
• Database Management- Build a comprehensive database on all terrorist-related information and share it with states and other relevant agencies.
• Analysis of Anti-Terrorism Laws- Study and analyse anti-terrorism laws in other countries, regularly evaluating the adequacy of existing laws in India, and proposing changes when necessary.
• Public Confidence Building- Win the confidence of Indian citizens through selfless and fearless endeavours.

The National Investigation Agency faces several challenges in carrying out its mandate effectively:

• Complex Jurisdictional Issues- The NIA deals with offences that have interstate and international dimensions, leading to complex jurisdictional challenges. Coordinating investigations across different states and navigating international legal frameworks can be intricate.
   
• Coordination with State Agencies- Collaboration with State law enforcement agencies is crucial, but it can be challenging due to varying levels of infrastructure, resources, and expertise. Ensuring seamless coordination and information sharing poses a constant challenge.
   
• International Cooperation- Coordinating with foreign law enforcement agencies and navigating diplomatic channels for extradition or information sharing can be complex. Overcoming legal and cultural differences adds an additional layer of challenge.
   
• Technological Advancements- Rapid technological changes pose a challenge to the NIA, as many crimes, especially those with cross-border links, involve sophisticated use of technology. Staying abreast of technological advancements and cyber threats is essential.
   
• Resource Constraints- Adequate funding, personnel, and technological resources are essential for the NIA to function effectively. Resource constraints can impact the agency's ability to handle a diverse range of cases simultaneously.
   
• Public Perception and Legal Scrutiny with Protection of Human Rights- The NIA operates in a sensitive space involving national security. Public perception and legal scrutiny are high, and any misstep in high-profile cases can lead to scrutiny and criticism. Balancing the need for thorough investigations with the protection of human rights is a constant challenge. Ensuring fair and transparent proceedings while dealing with sensitive cases is crucial.
   
• Adapting to Changing Threats- NIA faces an ongoing challenge in keeping its personnel well-trained and skilled to address evolving crime trends and investigative methods. Ensuring investigators maintain a high level of expertise is crucial. As national security threats change over time, the NIA must continuously update its strategies, training, and technologies to effectively counter emerging challenges, particularly in areas such as terrorism and organized crime.
   
• Political influence- After the amendment in 2019, some of the matters which are under concurrent list and state list, are now under the purview of the NIA. That leads threat to our federalism, one of the basic structure of our Constitution.[18] Some of the cases are now alleged to be investigated by the agency due to political pressure.

These multifaceted challenges require a holistic and adaptive approach by the NIA. By addressing these challenges requires continuous efforts in terms of legal frameworks, political will, technological capabilities, international cooperation, continuous trainings and resource allocation to enable the NIA to fulfill its crucial role in safeguarding national security and integrity.

Conclusion
The National Investigation Agency (NIA) Act of 2008, along with its rules, reflects the government's commitment to combat terrorism in line with international conventions. The conviction rates of the agency are better than the other investigation agencies. The NIA aims to enhance national security by investigating and prosecuting transnational offences.

However, to meet FBI standards of USA, it requires government support and independence in handling cases. While the existing NIA Act has effective provisions, there are shortcomings, especially when dealing with cases previously investigated by State Police. Strained Central-State relations can hinder cooperation, impacting justice delivery.

To prevent delay of investigations and miscarriages of justice, the NIA should function independently without political pressure. Some of the high profile and complicated cases like Union of India v. K.A. Najeeb, National Investigation Agency v. Zahoor Ahmad Shah Watali, Gautam Navlakha v. National Investigation Agency, etc. are dealt by this agency very efficiently and professionally. The NIA's performance is crucial to avoid any further incidents like 26/11 attacks.

The National Investigation Agency (NIA) aims to elevate itself into a profoundly proficient investigative body, adhering to global benchmarks. It endeavours to achieve eminence in nationwide counter-terrorism and national security probes, cultivating a skilled and cooperative personnel. The agency's objectives encompass deterring existing and potential terrorist groups while evolving into a comprehensive repository for all information related to terrorism.

End-Notes:

• Srinibas Praharaj, LL.M. Batch of 2023-2024, School of Security and Law Enforcement, Rashtriya Raksha University.
• National Investigation Agency Act 2008, s 3
• National Investigation Agency Act 2008, s 2(1)(f)
• AIR 2006 8 SCC 1.
• National Investigation Agency, https://www.nia.gov.in/about-us.htm last accessed 4th December, 2023.
• Ibid.
• National Investigation Agency Act 2008, s 1
• National Investigation Agency Act 2008, s 4
• National Investigation Agency Act 2008, s 6
• National Investigation Agency Act 2008, s 7
• National Investigation Agency Act 2008, s 9
• National Investigation Agency Act 2008, s 13
• National Investigation Agency Act 2008, s 14
• National Investigation Agency Act 2008, s 20
• National Investigation Agency Act 2008, s 21
• National Investigation Agency Act 2008, s 15
• National Investigation Agency, https://www.nia.gov.in/vision-mission.htm last accessed 4th December, 2023
• SR Bommai v. Union of India, (1994) 3 SCC