Srinagar: As the government amends the law governing the National Investigation Agency (NIA) to bring more crimes under its purview and even acts of terror originating overseas, its mission creep back home – in Jammu and Kashmir – has so far escaped scrutiny by the opposition and media alike.
For the past two years – and probably for the first time since the inception of militancy in the state in the early 1990s – a central probe agency has been conducting raids in connection with the “funding of militants and separatist groups” in different parts of the Valley. The raids are being conducted under the direct command of the Narendra Modi-led NDA government at the Centre. The agency has so far detained over a dozen Kashmiri separatist leaders, including a businessman.
The NIA started its operation in Kashmir after Naeem Khan, a senior Hurriyat Conference leader allegedly confessed – in a sting operation by the India Today news channel on May 21, 2017 – to receiving funds from Pakistan to create unrest in the Valley. Khan has since termed the video “doctored and fake”, a charge the channel denies.
On May 30, 2017, the agency also registered a case against the Pakistan-based Jamaat-ud-Dawah, Lashkar-e-Tayyaba and Hizb-ul-Mujahideen, and against the Duktaran-e-Millat of Aasiya Andrabi as well as other Hurriyat leaders in the Valley “for raising, receiving and collecting funds for funding separatist and “terrorist activities” in the state.
On July 24, 2017, the NIA arrested seven Kashmiri separatist leaders, including Naeem Khan, in relation to the “terror” funding case.
Besides Naeem, other arrestees include Hurriyat leader Syed Ali Shah Geelani’s son-in-law Altaf Ahmed Shah (also known as Altaf Fantoosh), Mehraj-Ud-Din Kalwal and Pir Saifulla, Tehreek-e-Hurriyat spokesman Ayaz Akbar, and Mirwaiz Umer Farooq’s close aide and spokesperson Shahid-ul-Islam. They were shifted to New Delhi and have been behind bars since then.
In the same year, the agency also arrested Kashmiri businessman Zahoor Ahmad Watali as one of the main suspects in the alleged “terror-funding” probe.
Last year, the NIA took custody of Asiya Andrabi, the chief of Duktaran-e-Milat, and Hurriyat leader Shabir Shah. In April 2019, the agency placed into custody Yasin Malik, the leader of the Jammu Kashmir Liberation Front (JKLF) and also Masarat Alam, chairman of the Jammu Kashmir Muslim League and a leader associated with Hurriyat (G).
In all, the NIA is handling 32 ‘terror-related’ cases in the state of Jammu and Kashmir, the Ministry of Home Affairs informed Parliament on June 11.
The agency continues to summon and detain many top and lower rung Hurriyat leaders in the alleged “hawala case”.
The agency has also summoned the editors-in-chief of two English dailies – Greater Kashmir and Kashmir Reader – and interrogated them for their involvement in the alleged “terror funding case”. The questions have also reportedly included some on editorial coverage too.
The NIA’s jurisdiction was extended to the state in 2008 and it has opened multiple offices for its operation. While the agency initially came to handle all cases specifically related to “terror funding”, it seems that it is now using the funding angle as a handle to other cases related to militancy, leaving the state police, which has borne the brunt of militancy for decades, in the lurch. The latter has now been left to handle cases related to traffic, domestic violence, and other such issues.
Since all militancy related cases used to be handled by the state police, the fact that they are being handed over to the NIA now has prompted speculation that there may be a trust issue as far as local police is concerned.
‘Misuse of institutions’ alleged
Some analysts here believe that the Modi-led NDA government in New Delhi has “misused institutions” including the NIA, to “stifle voices” in the Valley. This is seen by many as part and parcel of the BJP’s “muscular and militaristic Kashmir policy.”
Gowhar Geelani, Srinagar based journalist and political commentator and author of the recent book, Kashmir: Rage and Reason, says that by handing almost every case involving militant attacks, funding, substance abuse, etc. to the NIA, there seems to be doubts about the efficiency and the credibility of the J&K Police.
Jammu and Kashmir Peoples’ Movement (JKPM) founder and former bureaucrat, Shah Faesal, sees this as a very unfortunate development and “part of a “larger disempowerment process of Kashmir”. He says this is an attempt to further undermine state institutions.
“For a long time now, a perception is being created that everything is controlled in Kashmir from New Delhi. Not only our political, business, and economic interests but also our security interests are decided by New Delhi now, and nobody else in Kashmir can be trusted,” he said.
Faesal believes that the NIA’s main function will also be undermined if all the other cases are given to it.
Additional spokesperson of the People Democratic Party (PDP), Tahir Sayeed, says that if every case is referred to the NIA despite the Jammu and Kashmir Police being one of the most professional forces in the country, “then I think somewhere it reflects a lack of trust.”
He says after the CBI, the NIA has become another institution “used by the government to intimidate people.”
“If you are politically or ideologically opposed to Delhi’s ruling class, they will use these agencies as a weapon against you,” Tahir says.
While praising the honesty and dedication of the J&K police, he says “the JKP is one of the best police forces in the country, and nobody can question their professional integrity But by interfering in their professional work and handing over every case to the NIA, Delhi is not only demoralising the police but also trying to make their work doubtful in the minds of people everywhere.
Some Kashmir-based lawyers allege that the Center is using the NIA to break the “will” of the people.
“It’s very difficult for a detainee to be in a New Delhi jail for various reasons like inclement weather, family members having to travel a lot, draining all their resources, and engaging a good lawyer is difficult,” says top lawyer, Shafqat Hussain, of the Jammu and Kashmir high court.
Shafqat, who deals mostly with cases related to conflict, says the safety of the detainees in other states is also an issue, as many detainees have been attacked previously.
Challenging the jurisdiction
The anti-terror agency was set up after the 2008 Mumbai attacks specifically for probing terror cases and its jurisdiction to the state of Jammu and Kashmir was extended through the Union list.
The Jammu and Kashmir Bar Association was reportedly exploring legal options to test whether the NIA Act can extend its operations to the state, which enjoys a special position in the Union of India. However, it finally took no action.
On June 10, an advocate of the Jammu and Kashmir High Court, Salih Peerzada, whose client was first arrested by the J&K Police in connection with an attack carried out on a police party, challenged the NIA’s jurisdiction.
He filed a petition on behalf of Haris Mushtaq Khan who was arrested after an attack that took place near the Tourist Reception Centre in Srinagar by militants on November 24, 2018. The police arrested four people in connection with the case, which was subsequently transferred to the NIA for further investigation. Advocate Salih challenged the NIA’s jurisdiction on the grounds that the NIA Act “is ultra vires the Constitution as parliament of India lacks legislative competence of such an enactment which otherwise falls within the exclusive legislative domain of the state of J&K.”
The NIA Act essentially creates a police agency at the national level with powers to investigate and prosecute offences before special courts under the Act,” he says.
According to him, “the NIA Act manifestly encroaches upon the exclusive legislative domain of the J&K state and is thus beyond the legislative competence of the Parliament.”
“The NIA Act creates a special procedure for investigation and prosecution of the scheduled offenses. The regulation or modulation of such a procedure has not been allotted 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. 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. Thus, the Central government cannot employ any enabling legislative entry to dilute the exclusive legislative domain of the state of J&K,” he says.
“Any such measure, legislative or otherwise must be deemed ultra vires to the Constitution of J&K as well as the Constitution of India,” he adds.
“The powers exercised by the NIA by virtue of it being a Central agency are sovereign functions of the State. These functions being integral to the sovereignty of the State cannot be delegated to or exercised by a buffer body like that of another agency,” he says.
“Therefore the delegated creation of an agency acting as a bulwark of the Central government tends to alienate the sovereign function of the state which renders the constitution of the agency a nullity,” he says.
The Central government while exercising exceptional powers has suo motu transferred the investigation to NIA “while circumventing the reference by the state government”.
“Such an action being a resultant of a statutory power, in the departure of the routine procedure, has to be exercised reasonably as it is intrinsic in any statutory function to do so and includes recording of sufficient reasons by the authority upon which the power is conferred,” he says.
“Therefore the order assigning the investigation to (NIA) must be in conformity with the principles of fairness,” he adds.
‘No trust deficit between J&K Police and Centre’
A police officer of DSP rank who asked not to be named, admits that the Jammu and Kashmir Police has failed to crack the “hawala racket” in Kashmir for the past two decades.
“We were so busy with militancy that somehow we failed to crack the hawala money trail. So New Delhi might have been thinking along those lines,” he said.
Commenting on the issue, ADGP Security, Home Guards Law & Order, Muneer Ahmad Khan, does not see it as a trust deficit. He says that the Jammu and Kashmir Police investigates thousands of cases in the state, but “when it comes to cases that are interlinked with other states or you have outside connections in the case, they must be transferred to the central probing agency.”
“So that is why these type of cases are usually taken over by the NIA. They have to look at the links outside the state and then they move on them. There is no trust deficit between New Delhi and the Jammu and Kashmir Police,” Khan says.
A retired police officer, Javid Ahmad Makhdoomi, says “it is possible that there is a lack of trust or what I may call it mistrust. I also see it as a lack of competence which Delhi must be thinking about the Jammu and Kashmir Police … They may be considering to keep important things with them, and for that they must have told NIA to take over.”
Makhdoomi, who has served as an inspector general of police in the state, says that during his tenure there was no trust deficit either in the state or at the Centre.
“All the important cases were solved by the state police. I failed to understand what was its (NIA’s) need in the state,” he says, adding that “we have a specialised agency that can crack any case.”
Another top retired police official, who served as DIG in Kashmir when the insurgency first broke out, is of the view that solving militancy related cases without guidance by the local police will be very difficult, by any central agency.
“If you take out the J&K Police from anti-militancy actions, it might be very difficult for other agencies to fight them. The state police are very important for them (New Delhi), but unfortunately the Kashmir police is after money, and the department is full of corruption, which is why they lose the ability to investigate,” said the former police officer, asking not to be named.
“Because of corruption, you aren’t motivated to investigate a case. Instead, you either fabricate a case against somebody, or you spoil a proven case and a person doesn’t get justice,” he adds.