No lawyer unless permitted, no appeal — what’s Enemy Agents Ordinance J&K cops want to use more often

New Delhi: It is in the wake of the Reasi bus attack in Jammu in which nine people were killed and 41 injured that the Jammu & Kashmir Police are exploring use of the Enemy Agents Ordinance. This has become relevant considering the threat from Pakistan and the involvement of local people in supporting foreign terrorists, sources in the force told ThePrint.

Although the law has been in place for more than a century, sources said it has been used only “occasionally”.

In the past couple of years, according to the police sources, this ordinance was invoked in February 2022 alongside the Unlawful Activities Prevention Act (UAPA) in a case of drug smuggling from across the border. Then in May 2022, in a separate case of espionage, the ordinance was invoked again.

Jammu and Kashmir Director General of Police R.R. Swain said that it is in the wake of foreign terrorists spreading terrorism in J&K with help from their “agents” — local residents giving them logistical assistance — that this law is being explored.

“The law was made to tackle foreign fighters and invaders, especially from Pakistan, who come here and try to disturb and destabilise the government. In the aftermath of the current situation, we are exploring its use, which will prove as a major deterrence as it is very stringent,” he told ThePrint. “Under this law, there is no appeal, the punishment is either life imprisonment or a death sentence.”

He added that if one reads the explanation for Section 3 of the law, even failure to inform the nearest police station and the magistrate of presence and activities of foreign terrorists, not to speak of providing any kind of help, may constitute guilt. The Jammu & Kashmir Police have maintained that they will make a distinction between those who provide food and shelter out of fear, mostly at gunpoint, and those who harbour the terrorists, prepare hideouts for them and help them in other ways, either for money or because they believe in the idea of going against the nation. Swain said that citizens who inform the police immediately after the terrorists have left can get immunity or protection. All others would be liable to be treated as enemy agents. “Admission of contact with, and help extended to, terrorists after the police find out from other sources shall have no concession, as the provisions of this law can be invoked to book them as enemy agents,” he said.

The ordinance says, “Whoever is an enemy agent or, with intent to aid the enemy, does, or attempts or conspires with any other person to do any act which is designed or likely to give assistance to the military or air operations of the enemy or to impede the military or air operations of Indian forces or to endanger life or is guilty of incendiarism shall be punishable with death or rigorous imprisonment for life or with rigorous imprisonment for a

term which may extend to 10 years and shall also be liable to fine.”

Under the ordinance, the accused also cannot engage a lawyer for defence unless permitted by the court.There is no provision for appeal to higher courts against the verdict. If a person is sentenced to death or life imprisonment, or if the special judge certifies that a case involved “questions of special difficulty”, the verdict is to be reviewed “by a person chosen by the government from the judges of the high court”, the ordinance states. It adds that “the decision of that person shall be final”.

All about the ordinance

Originally promulgated by the Dogra Maharaja (considered a sovereign power), the Enemy Agents Ordinance was first issued in 1917. It is referred to as an ordinance since the laws made during the Maharaja’s rule were referred to as ordinances and did not require ratification from the legislature.

After Independence and the Partition of India, the ordinance was in 1948 re-enacted as a law by the Maharaja in exercise of his law-making powers conferred by Section 5 of the Constitution Act (1939), which gave the then ruler of Jammu and Kashmir powers to make laws, issue proclamations and promulgate ordinances. All such actions taken by the Maharaja pursuant to powers conferred under Section 5 are considered duly enacted and promulgated laws.

After the repeal of the Constitution Act on 17 November, 1951, the ordinance remained unaffected on the strength of clause (b) of Section 6, General Clauses Act, 1977, that provided blanket protection to laws previously made under any enactment that was subsequently repealed.

Further, the constitution of the state of Jammu and Kashmir that came into effect in 1957 also gave protection to laws and enactments previously enacted.

Section 157 of Jammu and Kashmir constitution spoke of “repeal and saving of laws and rules” and said that all the laws in force in the state immediately before the commencement of the constitution would continue in force until altered, repealed or amended by a competent authority.

“So the constitutional protection to the laws enacted prior to 1957, including the Enemy Agents Ordinance, would remain in effect unless repealed,” Jahingeer Dar, government advocate, told ThePrint.

“The ordinance was well protected under Section 5 of the Constitution Act earlier, and after 1951, under clause (b) of Section 6 of the General Clauses Act, and subsequently by virtue of Section 157 in the constitution of J&K in 1957,” he said.

“Under the ordinance, a special designated court has to conduct a trial. A special judge is appointed by the government in consultation with the high court,” he said.

Dar added that since 1948, the government of the erstwhile state has on numerous occasions constituted designated special courts to prosecute offenders under the provisions of the ordinance.

It was during the 2019 constitutional rearrangement vis-à-vis J&K, when Article 370 was abrogated, that the J&K Reorganisation Act was passed. Under this, several laws were repealed and replaced with central laws, but many including the Enemy Agents Ordinance and Public Safety Act were retained.

“In 2020, this was also amended and two things were changed. The term State was replaced by Union Territory and the J&K CrPC (Code of Criminal Procedure) was replaced by the central CrPC followed by the rest of India,” Dar said.

He added that the ordinance was a legal rarity and “more special among special laws” as it does not punish the enemy but rather the “agent or friend of the enemy”, and uses the term “raider” to define an “enemy”. This is in reference to the Kabaili raid, popularly known as the “tribal invasion” of Kashmir in October 1947.

Under the ordinance, “Enemy means and includes any person, directly or indirectly, participating or assisting in the campaign recently undertaken by ‘raiders’ from outside in subverting the [Government of the Union Territory of Jammu and Kashmir] established by law”.

Dar further said that the definition of “enemy agent”, according to Section 2 (b) of the ordinance, includes a person, not operating as a member of an enemy armed force, who is employed by, or works for, or acts on instructions received from, the enemy.

“It is pertinent to outline that the method and manner in which the tribal invasion was carried out keeping in view the objectives sought to be achieved as such, if juxtaposed with what is happening now and what has happened in the past three decades, this ordinance gains more significance in tackling security challenges,” he told ThePrint.

‘Judicial scrutiny’

According to Dar, the law has undergone judicial scrutiny by the high court as well as the Supreme Court and was upheld.

He referred to the 1959 judgment of the Supreme Court delivered in the case of Rehman Shagoo and Ors vs State of Jammu and Kashmir in which the court had upheld the validity of the ordinance even after repeal of the Constitution Act under which the ordinance was originally promulgated.

In 1948, it was challenged in the J&K High Court on the grounds that it should have lapsed without ratification, but the court ruled it would remain in force until repealed, since it has protection under clause (b) of Section 6 of the 1977 Act and under Section 157 of the 1957 J&K constitution. The judgment of the high court was upheld by the Supreme Court as well.

Challenges with the law 

Although under the Enemy Agents Ordinance a special designated court has to conduct a trial and a special judge is appointed for this, one challenge is that the J&K High Court has not designated a special judge for the trial of those accused under the law.

“There have been periodic appointments of judges to hear these cases, but at the moment there is no one. The cases under this ordinance hit a wall since the court has not designated a judge for their hearing,” a legal expert said.

(Edited by Nida Fatima Siddiqui)