Explained: Functioning of NIA

Reading time: 6-8 minutes.

Last month, Maharashtra Home Minister Anil Deshmukh alleged that the actions of the Central Government directed the National Investigation Agency to investigate the offenses committed regarding Bhima Koregaon case was against the Constitution. He condemned the Central Government of not receiving the consent of the Maharashtra Government before transferring the investigation to the agency.

He stated that the case was closely tied to sensitive issues and the Maharashtra Government was probing the case to find the root of the matter. Suspicion was also stated by the minister as the investigation was in the process and there was no apparent reason the Central Government to act in such a way.

Significance of this development

When the investigation of the case is transferred to the National Investigation Agency, the State Government and police officers under the government cannot continue the investigation. Maharashtra Home Minister Anil Deshmukh had stated that the action of the Central Government is questionable as the right to investigate the issue was suddenly taken away from the Maharashtra Government.

The reaction of Maharashtra Government can be seen as questioning the possibility of the Central Government misusing the power the Centre has regarding the NIA system and need to justify for taking away the right to investigate the issue from the State Government.

What is NIA?

The National Investigation Agency is an agency established by the Government of India which came to existence on December 31st, 2008 when the National Investigation Agency Act, 2008 was enacted. It is headquartered in New Delhi, and its branches are located in Hyderabad, Lucknow, Kolkata, Mumbai, etc. It works as a central agency that enforces counter-terrorism laws and prosecutes offenses that fall under Scheduled Offences specified by the Act.

The agency aims to investigate and prosecute offenses which potentially affect security, sovereignty and integrity of India, and its foreign relations, smuggling of large quantities of counterfeit Indian currency, and atomic or nuclear facilities. NIA also takes responsibility for implementing international treaties or agreements made in the United Nations or other international organizations to facilitate international procedures.

The goals of NIA are to uphold the values inscribed in the Constitution and abide by the law while facilitating the process of investigation and prosecution for an effective and speedy trial. NIA seeks to keep a professional relationship with governments of States and Union and other law enforcement organizations to maximize the effectiveness of cooperation through assisting them with investigations in terror cases and working as a database of all terrorists related information. 

The powers and functions of NIA

National Investigation Agency is established to fight back terrors and investigate various offenses. For the agency to properly carry out its duties, it is necessary for the agency to be empowered to investigate and prosecute without unnecessary intervention of the third parties. National Investigation Agency Act, 2008 empowers the agency to investigate and prosecute. Chapter III of the NIA Act empowers the agency to investigate offences, when the agency is directed by the Central Government.

The State Government may also request Central Government to transfer the investigation to NIA. Once the investigation is transferred to the agency, the State Government and police officers under the government cannot proceed with the investigation and it is their duty to transfer all the relevant documents and data to the agency.

For the investigation of the case, officers of the agency will have same powers of the police officers with the investigation across India. The power of the agency will also have power to investigate matters outside India subject to international treaties and domestic laws of other countries. The agency can also into offenses that are potentially connected with the offences under the Scheduled Offence list.

As for the prosecution of NIA, the agency can prosecute scheduled offences committed through Special Courts of NIA. Special Courts, which are constituted along with the appointment of a judge by Central Government and State Government from the recommendation list provided by the Chief Justice of the High Court, have all powers of the court of sessions provided under the Code of Criminal Procedure, 1973.

When there are any questions regarding the jurisdiction of Special Courts, it can be referred to the Central Government and depending on the discretion of the Centre, Special Courts will have jurisdictions over such cases. Further, trials held in Special Courts will have precedence over any other trials held in courts that are not Special Court. Special Courts can also hold the trial for the offenses that are connected to the Scheduled Offences, which is provided under section 14 of the NIA Act. The trial will be carried out with the presence of a public prosecutor who will be appointed by the Central Government.

Allocations of cases to NIA

Cases are allocated to National Investigation Agency through the process of informing the higher administrative bodies until it reaches the Central Government. The local police station can inform the State Government about the case relating to Scheduled Offence which can be then forwarded to the Central Government. If the Central Government finds it to be Scheduled Offence within 15 days, the Central Government can allocate the case to NIA for investigation. Moreover, a case can be transferred from one Special Court to another.

The transfer of such cases can be done by both Supreme Court and High Court, with latter restricted to within that specific state. NIA Act has enabled the transfer of cases between Special Courts to ensure that the case is investigated and heard by the most appropriate Special Court. It has also ensured that trial of Special Courts take priority over trials in courts that are not Special Courts as cases Special Courts prosecute often are very important or serious incidents.

Relevant landmark cases

The case of State of Maharashtra vs Ravi Dhiren and Ors. is one of the important cases heard by Special Court. The case was prosecuted against the group of criminals who tried to transport large quantity of counterfeit Indian currency. The court stated that such acts threaten the unity, integrity security and sovereignty of the country and thus needs to be halted, which is specifically the reason for the existence of NIA.

The Special Court refers specifically to the evidence provided by NIA to convict the criminals. The evidence produced by NIA is documents and data collected from letters or testimonies or organizations such as banks. This case proves that NIA plays a vital role in trials held by Special Courts as the court refers to the evidence collected by the agency. It is the case that proved the function of NIA and the reason for its existence.

Conclusion

National Investigation Agency is an independent institution that combats terrors and other crimes which endangers security, integrity, and sovereignty of the country. Although there is dependency on the Central Government as the Centre has the discretion to transfer the case to the agency, NIA Act allows effective and speedy trial through enabling transfer of cases to ensure the issue is dealt by the most appropriate Special Court while enabling reasonable intervention of Supreme Court and High Court for the matter of equity.

Author: Byeongwoo Park from National Law School of India University, Bangalore.

Editor: Tamanna Gupta from RGNUL, Patiala

Maharashtra Government formation: Anti-Defection angle

Reading time: 6-8 minutes.

The Maharashtra State Government Formation was nothing short of a rippling controversy. As our country witnesses an arc which can arguably be categorised as one of the most interesting times for our democracy, Maharashtra State politics and the Hon’ble Governor’s office got the taste of one of the most adverse situations Indian democracy has ever dared produce.

As the situation finally is hoped to be rested at Shri. Uddhav Thakeray holding office, with the position of the Hon’ble Chief Minister of Maharashtra, by virtue of his party, Shiv Sena, forming a post-poll alliance with the Indian National Congress along with the National Congress Party, forming an alliance by the name of “Maha Vikas Aghadi” (literally translating to Mega Development Frontrunners); the political scenario in Maharashtra can be said to be at a cool down stage and administration can finally continue by virtue of the status quo administration due process- or can it?

Procedure for the formation of Government:

The Maharashtrian State follows a Legislative Assembly based procedure when it comes to Government formation. For an absolute majority to be formed, a party is supposed to garner a grand total of 144 seats out of the 228 seats in the Legislative Assembly.

These seats can be procured by virtue of post-poll alliances, pre-poll alliances or by sheer single party majority. When the party/alliance gets the requisite seats for formation of government, it provides the letters of support to their respective Governor, who then invites the aforementioned party/alliance to form a Government with their respective candidates as Chief Minister.

After the government is formed, the Vidhan Sabha conducts a floor test which is supervised by the pro-tem (temporary)/permanent speaker and hence, a government is formed in the state of Maharashtra.

Background of this Issue:

This issue can be best explained through the chain of events demarcated by virtue of the time at which they took place.

21.10.2019: Elections to the Fourteenth Maharashtra Legislative Assembly were carried out.

24.10.2019: The Bhartiya Janata Party emerged as the Single Largest Party with 105 seats followed by the Shiv Sena emerging as the second largest party with 56 seats. The NCP emerged as the third largest party with 54 seats and the INC secured 44 seats.

09.11.2019: The Hon’ble Governor invited the BJP to indicate willingness to form the Government while giving it 48 hours to prove that it has the requisite majority.

10.11.2019: The BJP expressed its inability and declined to form the Government. Thereafter, the Hon’ble Governor, on the very same day, asked the Shiv Sena, to convey its willingness and ability to form the Government by granting it 24 hours to demonstrate its majority.

22.11.2019: The Maha Vikas Aghadi was announced at a press conference and it was further announced that it was unanimously agreed that Shri Uddhav Thackeray was to be named as Chief Minister.

23.11.2019: The Raj Bhavan, in a makeshift and hurriedly convened swearing-in ceremony, administered oath to Shri Devendra Fadnavis of the BJP as Chief Minister of the State and further to Shri Ajit Pawar of the NCP as Deputy Chief Minister.

26.11.2019: The Supreme Court announced their verdict and ordered for a floor test a very next day, on which followed the immediate resignation of Shri. Ajit Pawar, and Shri. Devendra Fadnavis.

3.12.2019: Uddhav Thakeray takes oath as CM of Maharashtra with the support of the Maha Vikas Aghadi.

Anti-Defection law:

This switching of party done by the MLAs of NCP including the Legislative Unit leader, Shri. Ajit Pawar begs the question, can this constitute Defection under the Anti – Defection law which was inserted into the Indian Constitution in 1985?

To answer that question, we must consider what constitutes as defection in general. The legislative intent of the Anti – Defection law was brought into place to curb voluntary giving up the membership of a party or disobeying the directives of the party leadership on a vote.

The Anti – Defection Law was inserted though the Tenth Schedule of the Indian Constitution for the purpose of disqualifying MLAs which acted unethically and against their Party’s principles.

The Law relating to this principle and issue at hand:

Even though the nature of the Anti-Defection law may seem as extremely straight forward, the law does come with a number of exceptions. For example, it does not disallow merger of parties provided that such merger has been authorized by the 2/3rds of the MLAs of the Party.

Hence, while relating it to this issue it is important for us to note that a possible defection case, if filed, would largely depend upon the number of MLAs that authorized such a move by Shri. Ajit Pawar. However, since the data on that is unclear, no conclusive statement can be made.

Moreover, it is also interesting to note the interpretations laid down by the Supreme Court in the cases of Ravi S. Naik vs Union of India (1994 AIR 1558) and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras (1996 AIR 1060).  

In these cases, it was held by the Hon’ble Court that the phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation. The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.

However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

A possible argument could be made that the actions done by Shri. Ajit Pawar could be in contravention with the constitutional principles laid down by the cases of Ravi S. Naik vs Union of India and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras.

Application of Anti – Defection Law “What experts think”:

Ajit Kumar Sinha (Senior Advocate) – “If it is more than a split and is by two-third or more, then it will be difficult to apply anti-defection law,” he said adding, “Disqualification does not apply in case of merger if it is by two-third or more.”

Vikas Singh (Senior Advocate) –  “Supposing in this case, the faction which claims to be real NCP, (objects to the former union), then a question may arise and the Election Commission will have to take a call which is the main NCP for the purpose of anti-defection law. This will also be a long-drawn process. Main NCP will be the one which has the majority of MLAs. Anti-defection law will apply. It does not matter whether MLAs have taken oath or not. This is all posturing up.”

Rakesh Dubey (Senior Lawyer and Constitutional Expert) –  “The anti-defection law has no impact at time of formation of the government. The government is always formed before the oath of MLAs and MPS. Later, somebody will have to move an application before the assembly speaker alleging defection, if any.”

Conclusion: A probable way forward

This case cannot be studied without drawing its obvious parallels to the B.S Yeddyurappa case of Karnataka (also known as the Dr. G. Parmeswara case). The most probable conclusion would be that, similar to that case, the defection petitions filed in the court, if filed, would not be fruitful.

The main thing to take into consideration here is that the MLAs under the Maha Vikas Aghadi have been procured through intense negotiations and deliberations and it could be possible, just like it happened in the Yeddyurappa case, that BJP would file for a No-Confidence motion in the house and win their Government back. Other than that, looks like the State of Maharashtra is all set for full term governance by the Maha Vikas Aghadi.

Author: Adhit Kulkarni from DES Law College, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

What’s really in the stable? Maharashtra’s coalition politics in the Indian democracy

Reading time: 6-8 minutes.

Elections are any country’s largest democratic exercise. The recent Maharashtra State Assembly elections and the formation of the State Government proved eventful for voters and contesting parties alike.

The Bhartiya Janata Party (BJP) and the Shiv Sena had concluded the State Assembly elections together as the National Democratic Alliance (NDA), which won a large majority of 161 out of the 288 seats. Yet, 20 days later, we find political vacuum.

The Shiv Sena was a natural ally of the BJP, given their mutual faith in Hindutva and its ideals. Conflict in this alliance was unlikely, especially post-election. However, the uncanny silence in the Assembly after the electoral verdict casts a shadow of doubt in the minds of the populace.

Negotiations between the parties had failed since the regional party coveted a rotational post of Chief Minister and an equal share in the final government, which has not gone down well with the BJP. As a result, on November 10th, the BJP announced its inability to form the Government. Shiv Sena’s Uddhav Thackeray decided to withdraw from the NDA, and form the government by itself on 11th November 2019.

Maharashtra government in process:

The dissolution of the NDA negatively impacted both constituent parties, neither having enough seats on their own to satisfy the required majority number of 145. What ensued was petty mudslinging among the two parties, frantic speculation of horse-trading and an overall political upheaval in the State. To bring some order in the chaos, the President’s rule was imposed in the State on 12th November 2019, as provided by Article 356(1) of the Indian Constitution.

In cases of such Presidential rule, the Centre takes administrative control of the State, and all executive decisions are taken by the Centrally appointed governor. The Chief Minister is dethroned and the State Assembly is dissolved. After Maharashtra’s political breakdown, the central government appointed Bharat Singh Koshiyari as the Governor.

The presidential rule can be imposed in a State for 6 months, during which parties can attempt to form a government with the required majority. Before taking over the administration of the State completely, the Governor first aids such formation of the State government.

Koshiyari, in this case, first approached the party with the largest seats, i.e. the BJP-Shiv Sena coalition, asking them to resolve their differences and form the government. When the two parties refused to cave in, the Governor moved on to other parties and independent candidates, stating the possibility of government formation and advising in favour of an alliance for the same. But the attempts of the Governor were in vain, as no party or coalition had come forward to stake claim for government formation.

The legality of Aaya Ram Gaya Ram:

The recent events in the Maharashtra government formation showed a recurrence of the infamous ‘Aaya Ram Gaya Ram’ phenomenon, popularised in 1967 by Gaya Lal of the Haryana State Assembly, who switched parties thrice in one day. This phenomenon seems to have surfaced again; elected Members of the Legislative Assembly (MLA) switch parties at the drop of a hat, citing ideological contradictions.

In reality, the corrupt practice of horse-trading involves buying and selling MLAs for money, the value of the MLA depending on his/her popularity, i.e. the number of votes.

By way of a Constitutional Amendment in 1985, the law of anti-defection was introduced as the Tenth Schedule in the Indian Constitution. This law allowed the disqualification of legislators on the ground of defection. A legislator is deemed to have defected when he either voluntary gives up his membership of that party or he disobeys the directive of the party leader.

The phrase ‘voluntarily gives up his membership’ was interpreted by the Supreme Court as having a wider scope than mere resignation. In the 1996 case of G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly and the 2007 case of Rajendra Singh Rana v. Swami Prasad Maurya and ors., this phrase was interpreted to mean that members who have publicly denounced their own party or expressed support for another party.

The phenomenon of horse-trading involves the purchase and sale of MLAs, much like the trade of the equine asset itself. The member with the greatest number of votes is valued at the highest price, the one with the next highest vote count the next highest price, and so on. Thus, elected members of one political party are bought by another, and the MLA becomes a member of the new political party and embodies that party’s ideological manifesto.

The political immorality of horse-trading is that members are elected for the party that they were in support of, and seldom for their own qualities. The practice has been invalidated by the anti-defection law, yet it is prevalent.

The trade-off between democracy and horse-trading:

Regardless of the illegality of horse-trading, it has been accepted as a common practice in politics, a necessary condition for State governance. Allegations of political immorality finds consonance with former US President Theodore Roosevelt’s infamous quote, “In politics, we have to do great many things that we ought not to do.”

This quote essentially acts as a get-out-of-jail-free card to politicians engaging in horse-trading. However, horse-trading is not merely something that governments ‘ought not to do’. It should be absolutely restricted, as it essentially involves placing a price tag on people’s votes, thereby devaluing democracy.

Speaking on the rampant horse-trading that took place after the failed Karnataka State Assembly elections in 2018, the Indian National Congress (INC) general secretary Priyanka Gandhi Vadra quoted;

“…the citizens of our country will have to endure their (BJP’s) unbridled corruption, the systematic dismantling of institutions that protect the people’s interests and the weakening of a democracy that took decades of toil and sacrifice to build.”

Voters placed the mandate for forming the government on the NDA alliance, and not the BJP nor the Shiv Sena independently. The majority achieved by way of horse-trading misses the point of such majority- that they were not elected by the people.

This is because the people place more faith in the propaganda of a political party than an individual candidate. If the candidate were to profess his faith to one party’s ideology and switch to a completely different one after election, any election in the first place would be pointless.

The objective of an election in a democratic country such as ours is to ensure that the elected persons are in fact representatives of the people. The phenomenon of horse-trading misses the point of elections and democracy entirely.

Demolish the Stable?

What is the solution? A fresh election should be conducted, in light of the recent fallout of the NDA. People should be given the opportunity to cast vote in light of this new information, since they had cast their vote for a BJP-Sena alliance governing the State, and not a haphazard mix of scattered Sena MLAs with the Congress and NCP.

A fresh election would nullify the defect caused by the dissolution of the NDA and the subsequent horse-trading, thereby securing the norms and values of democracy and political representation.

–This article is brought to you in collaboration with Anna J. Kallivayalil from National Law University, Delhi.