Validity of NIA Act in JK: High Court seeks response from Centre

Srinagar: The Jammu & Kashmir High Court has directed the Union Home Ministry, the National Investigation Agency (NIA) and the J&K Government to submit its objections to a plea questioning the functioning of the NIA in the State.
Mushtaq Ahmad Khan, father of Haris Mushtaq Khan, 24, a resident of the Gopalpora village of Wathoora in Budgam, who was arrested by the NIA, has filed a writ petition questioning the NIA Act and its implementation in J&K.
Hearing the plea of Mr. Khan, Justice Tashi Rabstan, heading a Bench, issued notices to the Union of India through its Secretary to Government, Ministry of Home Affairs; Director General, NIA; Investigating Officer concerned NIA Jammu & Kashmir State; Principal Secretary to the government Home Department, J&K; and the Station House Officer of Kothi Bagh, Srinagar.
Mr. Khan’s son was arrested on November 24, 2018 and was lodged in the District Jail, Jammu, “even though the offence was alleged to have taken place at Srinagar”. “The NIA Act is ultra vires to the Constitution of Jammu & Kashmir as the Parliament of India lacked legislative competence of such an enactment, which otherwise falls within the exclusive legislative domain of the State of Jammu & Kashmir,” advocate Salih Pirzada pleaded before the Bench on Tuesday.
The advocate argued that the NIA Act “manifestly encroaches upon the exclusive legislative domain of the J&K and is thus beyond the legislative competence of the Parliament, hence liable to be declared ultra vires.” The plea also questioned the suo moto transfer of cases to the Director General, NIA.
The petition also highlighted that the legislature of the State of J&K was “conferred exclusive authority for exercising legislative control over the creation or calibration of a special procedure by way of an enactment”.
“The Central government cannot employ any enabling legislative entry to dilute the exclusive legislative domain of Jammu & Kashmir and be deemed ultra vires to the Constitution of Jammu & Kashmir as well as the Constitution of India,” Mr. Salih said.
It also questioned the suo moto transfer of cases to the Director General, NIA, and Investigating Officer concerned, NIA, J&K State, “circumventing the reference by the State government”.
‘Special procedure’
“It’s in departure of the routine procedure exercised. The NIA Act creates a special procedure for investigation and prosecution. The regulation or modulation of such a procedure has not been alienated to the Union Parliament and thus the Legislature of the State of J&K has been conferred exclusive authority for exercising legislative control over the creation or calibration of a special procedure by way of an enactment,” Mr. Salih added.
He said the usurpation of the legislative powers by the Central government is precluded by the Constitution of J&K and also by Article 246, as applicable to the State of J&K. “The Central government cannot employ any enabling legislative entry to dilute the exclusive legislative domain of the State of J&K,” the plea said.