A bench of Justices R F Nariman and S Ravindra Bhat issued notice to the Centre and sought a response within four weeks.
Solidarity Youth Movement filed a petition through advocate Jaimon Andrews claiming that the amendment has given unfettered discretionary power to the Centre, and as a result it has diluted the nature and operation of the Act, enacted to prosecute offences affecting national security, by incorporating legislations having no direct connection to terrorism.
The petition said, “In addition to its unconstitutional concentration of powers, no objective and third-party empirical data has been provided as to the inability or the incompetence of the state investigation agencies to carry out investigations and prosecution.”
The petition contends that the amendments also include offences unrelated to terrorism such as trafficking of minors for sexual exploitation, which falls under the ambit of state government investigating agencies.
“The amendment has incorporated offences pertaining to trafficking of persons and minors for sexual exploitation or forced labour, possession, usage, making, delivery of counterfeited currency notes, which are wholly unrelated to countering terrorism,” said the petition citing the amendments dilutes co-operative federalism.
Earlier this month, the Congress-led Chhattisgarh government had also moved the top court seeking the UPA-1 era NIA Act be declared unconstitutional.
It was the first state government to challenge the Act, a day after the Kerala government challenged the Citizenship Amendment Act passed by the Parliament, under Article 131 of the Constitution.
The state government has filed an original suit under Article 131 of the Constitution.
This article allows the state to move directly to the Supreme Court where a dispute arises between the state government and the Centre.
“The plaintiff (state) respectfully submits that the NIA Act is ultra vires to the Constitution and is beyond legislative competence of Parliament since the Act empowers the defendant (Centre) to create an agency for investigation, which, not withstanding the NIA, is carried out by state police, which is a subject matter of the state under entry 2, List 2, Schedule 7, of the Constitution”, said the state government the suit.
The government contended that the NIA Act, in its present form, not only takes away the power of conducting investigation by the state through police but also confers unfettered discretionary and arbitrary powers on the Centre.