On 24th January 2020, in a sudden move, the Central Government instructed the National Investigation Agency (NIA) to take over investigation into the Bhima Koregaon case from the Maharashtra police. The decision to do so was taken without even informing the Maharashtra government, let alone consulting it.
The move has led to a contradiction between the Centre and the state. On learning about this decision on 25th January, the Maharashtra government expressed its strong disagreement with the move. Home Minister of Maharashtra Anil Deshmukh angrily pointed out that it is wrong for the Centre to go ahead and take over a state-led investigation without keeping them (the state government) in the loop, leave alone taking their permission. NCP President Sharad Pawar has also stated that the state has all the right to probe this matter. In fact he alleged that the BJP government was trying to hide the facts of the case, which the coalition government in the state had decided to investigate in depth.
The Bhima Koregaon case
The Bhima Koregaon case refers to the case lodged by the Pune police against 23 rights activists in 2018, under the Unlawful Activities Prevention Act (UAPA). Nine of them are languishing in jail for over a year, including five since June 2018. The Pune Police had put grave charges against all of them, including that of sedition and waging war against the state. The Pune Police has accused all of them of being members of a banned organization, the CPI (Maoist). They have been branded “urban naxals”. Furthermore, the police have alleged that they have discovered an e-mail in a computer belonging to one of the arrested people, which talked about assassinating Prime Minister Narendra Modi in a manner similar to the assassination of Rajiv Gandhi.
More than 19 months after the first arrests, the police have yet to file a charge sheet against the accused. This is typical of cases of arrest under the UAPA. This law allows the state to keep people incarcerated in prison for indefinite periods, by laying false charges against them of being terrorists, of conspiring to overthrow the state, etc.
Now, the NIA has appealed in the Sessions Court in Pune to take over the case files from the Pune Police.
Why the sudden decision of the Central Government to take over the case?
The BJP government at the center has for the past five years been systematically targeting rights activists and all political activists who oppose the course of the present government, branding them as “urban naxals” who are out to “break India into pieces”. The Central government has carried out vicious propaganda against the 9 activists who are in jail in the Bhima Koregaon case as well as the others accused in the same case.
As long as the BJP was running the government in Maharashtra, the Narendra Modi government at the center was able to closely coordinate with the Maharashtra Government to use the case for its political ends. However, with the formation of the Uddhav Thackeray led coalition government of Shiv Sena, NCP and Congress at the end of November, things have taken a different turn.
On 21st December, NCP President Sharad Pawar demanded that the State government set up a Special Investigation Team (SIT) to probe into action taken by the Pune police in the Bhima Koregaon case. “It is wrong to imprison the activists on the charge of sedition. Voicing extreme views is allowed in a democracy. The action of the Pune Police is wrong and vengeful. It is a misuse of power by the police commissioner and some of the officers. They had attacked the basic freedom of people and one cannot be a mute spectator to all this,” Sharad Pawar said. (Economic Times, 22nd December 2019) He further added: “Facts should be verified. The role of the previous government and the investigation team was doubtful. The police officers concerned should be suspended and their action should be probed.”
On 22nd January, Maharashtra home minister Anil Deshmukh and deputy chief minister Ajit Pawar are reported to have met the Pune police and the state intelligence officials for a review meeting on the case. Soon after the meeting, Deshmukh announced that by the next week, his department would take a decision on whether a Special Investigation Team (SIT) needs to be constituted to look into the investigation. Fearing that the game plan of the Central Government in instituting cases against rights activists under the dreaded UAPA could get exposed, the Union Home Ministry moved fast to take over the investigation from the hands of the Maharashtra Government to the Central government.
The takeover of the investigation against the rights activists accused in the Bhima Koregaon case by the Central government at this time, shows that the Central government is determined to continue on the course of branding all those who question its policies or course, all those who dissent, as “traitors”, “anti-nationals”, “enemies of national unity”, who are out to “break up the country”.
National Investigation Agency
The National Investigation Agency (NIA) came into being in December 2008 as an act of parliament during the first term of the Manmohan Singh Government. The NIA was created in the immediate aftermath of the November 26, 2008 terrorist attacks in Mumbai. Simultaneously, amendments to the Unlawful Activities Prevention Act (UAPA) were passed to make it even more stringent.
The NIA reports directly to the Union Home Ministry. NIA can take up for investigation all cases that relate to the UAPA, hijacking, bomb blasts, attacks on nuclear installations, weapons of mass destruction, use of the seas for terrorist attacks, sedition, waging war against the state and any act that threatens the sovereignty of the country.
On 15TH July 2019, the Lok Sabha passed a Bill seeking to amend the Act to facilitate speedy investigation and prosecution of Scheduled Offences, including those committed outside India against Indian citizens or those affecting the interests of India, and to insert certain new offences in the Schedule to the Act “as Scheduled Offences which adversely affect the national security”.
The NIA Act allows the Central government to supersede the state government in the investigation and trial of offences related to all the above. The NIA with exclusive staff under the Central government enjoying the powers and privileges of police officers under a State government, in the investigation of certain offences undermines the Federal principle. However, the courts have taken the view that terrorism has national ramification; the offences enumerated in the enactments specified in the schedule of the NIA Act, it was suggested, have nationwide repercussions. Besides, the NIA Act amendment does not envisage displacing State governments during an investigation as the NIA may, if it is expedient to do so, request the State government concerned to associate with it in the investigation or even transfer the case to State government.
Earlier on 15th January 2020, the Chhattisgarh Government filed a case in the Supreme Court questioning the Constitutional Validity of the NIA Act. It is the first state government to do so.
According to a news report (The Hindu, March 19, 2011) Union Home Minister P Chidambaram, who piloted the NIA Act through parliament in December 2008, admitted to FBI Director Robert Mueller that the National Investigation Agency’s powers could be challenged in the courts as violating constitutional provisions on Centre-State relations. According to Chidambaram, the concept of a “federal crime” does not exist in India and “law and order” is supposed to be a State subject.
In July 2019, the Narendra Modi Government amended the NIA and the UAPA. The UAPA was amended to allow individuals to be designated as terrorists. The NIA was amended to allow, among other things, (1) its deployment outside India wherever there is a perceived threat to India or “Indian interests”, (2) investigation into offences related to human trafficking, counterfeit currency, manufacture and sale of prohibited arms, cyber terrorism and offences under the Explosives Substances Act, 1908.