Bhima-Koregaon case: Why India needs to introduce the concept of federal offences

On January 24, Maharashtra Home Minister Anil Deshmukh alleged that the Centre had transferred the investigation of the Bhima Koregaon case from the Pune police to the National Investigation Agency without the state government’s consent. This followed reports indicating that the Maharashtra government was considering establishing a Special Investigation Team to inquire into the case.

In 2018, ten human rights activists had been arrested in connection with the violence at Bhima Koregaon village near Pune in January that year, when the Bharatiya Janata Party was in power in the state. The police claimed that the arrested people had links with the banned Communist Party of India (Maoist), though a chargesheet has yet to be filed. The BJP lost power in Maharashtra in November.

Maharashtra’s Home Minister condemned the Centre’s decision to move the case to the National Investigation Agency, saying in a tweet that this had happened “without the consent of the state”.

This controversy comes in the wake of Chhattisgarh’s suit in the Supreme Court on January 16 challenging the constitutional validity of the National Investigation Agency. The larger context is also important here: in recent years, significant Centre-state tensions have arisen over the powers of central agencies such as the Central Bureau of Investigation and National Investigation vis-a-vis state police.

Background and procedure

The National Investigation Agency was set up under an act in 2008 that contains a list of scheduled offences that the unit has the power to investigate. The general procedure is that state governments have to forward all cases relating to scheduled offences to the Centre. The Centre then determines whether there is a scheduled offence involved and whether the National Investigation Agency should take charge. To arrive at this decision, the Centre must consider “the gravity of the offence and other relevant factors”. In addition, the Centre may, by itself, direct the agency to investigate any scheduled offence.

Effectively then, the Centre has full discretion to override investigations being carried out by the state police and hand them over to the National Investigation Agency. This can be contrasted with the legal scheme of the Central Bureau of Investigation. While the bureau is not restricted to a list of scheduled offences, it cannot carry out investigations in any state without the consent of the government concerned.

Constitutional and legal challenges

Terror cases – such as the Bhima Koregaon one – could involve several investigating agencies, given the number of entries in the Seventh Schedule of the Constitution that are potentially related to the crime. The Seventh Schedule defines and specifies the allocation of the powers and functions between the Union and states. Whether terrorism primarily falls in the Union list entry of defence of India or the state list entry of public order is a vexed issue.

For investigating terror offences, legislative competence has to be derived from either the Union list entry on the Central Bureau of Investigation, the state list entry on police, and/or the Concurrent list entry on criminal procedure. (The Concurrent list contains powers that could be considered by both Centre and state.)

In Chhattisgarh’s suit challenging the National Investigation Act, it contended that the act effectively creates a national police that encroaches upon the state’s power over this subject.

These arguments were also made in the case of Pragya Singh Thakur v State of Maharashtra before the Bombay High Court in 2014. Here, the court upheld the National Investigation Act on the grounds that it could be traced to the Union list entry on the Central Bureau of intelligence and Investigation, and the Concurrent list entries on criminal law and procedure.

It also reasoned that as long as Parliament has legislative competence over the scheduled offences under the National Investigation Agency Act, it also had the power to create a special investigation and prosecution machinery for such offences. Ultimately, the court took the view that the National Investigation Agency supplements the state police forces and does not usurp their powers. As later developments have shown, this case has not conclusively resolved the matter.

As an alternative to declaring the National Investigation Agency Act as unconstitutional, Chhattisgarh’s suit asked the court to at least direct the Centre to frame guidelines regarding the exercise of its powers to transfer cases to the agency. The lack of any clear guidance in the constitutional and legal framework governing terror investigations, coupled with vast discretion at the hands of the Centre, is at the root of persistent charges of abuse of power. It is also routinely criticised as being against the federal spirit.

A way forward

To address this, the first step should be to constitutionally introduce the concept of federal offences through an addition in the Union list of the Seventh Schedule. This would provide a sound basis for the National Investigation Agency Act to designate certain offences as federal offences, subject to certain specified criteria. The criteria may include offences that have significant international, national or inter-state implications and offences that affect the sovereignty, security and integrity of India.

In keeping with the present scheme, the state police and the National Investigation Agency should continue to have concurrent jurisdiction over such offences, with the agency having precedence. Even though the agency does not require the state government’s consent, a carefully drafted list of federal offences subject to reasonable criteria should reduce controversies regarding overlaps in Centre-state jurisdictions. Additionally, when the Centre directs the agency to investigate particular cases involving federal offences, the National Investigation Agency Act should require these orders to contain written reasons for the same.

Overall, these changes should go some way towards ensuring that interventions by the agency are principle-based and transparent, and less susceptible to being seen as purely political. I have written previously on how the concept of federal offences can also find application in the context of the Central Bureau of Investigation, since that area also involves questions of Centre-state jurisdiction over investigations.

An entry on federal offences in the Union List, along with statutorily defined criteria for designating federal offences and specific reasons in every case, represents a sound constitutional and legal framework. A firm legal basis and clear reasons behind particular transfers to the National Investigation Agency should reduce controversies such as the present one in the Bhima-Koregaon case.

Kevin James is a Research Fellow at Vidhi Centre for Legal Policy. Views expressed are personal.