The government has indicated that the people aiding and abetting the militants will be tried under the harsher Enemy Agents Act, report Babra Wani
“Jammu-Kashmir ke dushmano ko sabak sikhane me koi kor kasar baaki nahi chodenge. (No stone will be left unturned in teaching a lesson to the enemies of Jammu and Kashmir)” was the exact sentence that Prime Minister Narendra Modi said on his visit to Kashmir in connection with the surge in militant attacks. In his speech to the Empowering Youth, Transforming J&K, the Prime Minister talked about the security situation.
Invoking Old Law
Soon after his return, the Enemy Agents Ordinance (EAO) was in the news. Speaking to reporters at the inauguration of the Cyber Police Station at Bagh-e-Bahu, Director General of Police (DGP) RR Swain said that the police have proposed to revive the Enemy Agents Act.
“I have spoken to a senior Law officer of the Police Department on whether the Enemy Agents Ordinance Act can be invoked especially against those who aid and abet Pakistani terrorists,” Swain said. “They will be treated as Enemy Agents. The Enemy Agents Act carries life imprisonment or the death penalty and has no other punishment. This Act, introduced to counter Pakistani raiders or invaders in 1948, is much harsher than UAPA.”
Explaining further, the chief added that the EAO was implemented against foreign elements involved in disturbing or destabilising the peace of the society or those who are involved in terror-related activities. “The fighters (terrorists), however, don’t fall in the category of investigations. They have to face kinetic action but those who support the foreign terrorists have to be treated as Enemy Agents.”
DGP asserted that local militants will not be dealt with, under the domain of the new act, and special courts will be established to deal with people arrested under the Enemy Agents Ordinance.
“They (the Pakistan and terrorists) tried it in 1995 also but finally we prevailed. This time also, there will be a decisive battle and we will win it in 2-3 months. We will try to neutralise the terrorists,” Swain said, asserting that the war against militants will be won by police assisted by Central Armed Police Forces (CAPFs) and residents. “I have always said that there will be trials with some losses, but the enemy will eventually be vanquished.”
Property Attachments
For the last few years now, the Jammu and Kashmir administration has been declaring fugitives as proclaimed offenders and attaching their properties as well. It bars the owners from selling these immovable assets. Now, the invocation of EAO will add to the punishments.
“Such forces should be dealt with seriously and those people who support them should be treated as enemy agents as well,” Swain said. “It is mentioned in the act terrorist associates who support the terror activities will be brought under the Act by the investigation agencies.”
The Enemy Agents Ordinance
The EAO /Act, 2005 (1948) was promulgated under Section 5 of the Jammu and Kashmir Constitution Act, 1996, which describes the “enemy” as, “anybody, directly or indirectly, participating or assisting in the campaign undertaken by raiders from outside in subverting the Government established by law in Jammu and Kashmir.” It defines an enemy agent as somebody who is employed or who works for the enemy in exchange for money, but not necessarily a member of the enemy armed force.
The ordinance reads, “In this Ordinance, unless there is anything repugnant in the subject or context,–– (a) “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 Union territory of Jammu and Kashmir] established by law in the (Union territory of Jammu and Kashmir) ; (b) “enemy agent” means a person, not operating as a member of enemy armed force, who is employed by, or works for, or acts on instructions received from, the enemy.”
The crimes, which fall under the domain of the act can receive a death sentence or life imprisonment and a fine. So according to the Ordinance, “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.”
Pertinently, the act was first introduced in 1917 by the then Dogra Maharaja of Jammu and Kashmir. The term Ordinance has been used because the laws made during the Dogra Rule were called ordinances. Post-partition, the Ordinance was changed into a law and some amendments were made too.
The Enemy Agent Ordinance was later safeguarded by inclusion in the Jammu and Kashmir Constitution of 1957, specifically Section 157. Interestingly, a special judge appointed by the government after consulting with the High Court, conducts the trial under the Ordinance. An accused cannot employ a lawyer for his or her defence until permitted by the court. A person who publishes the proceedings without prior authorisation can be prosecuted as well. It also prohibits the appeal against a verdict. Earlier, Maqbool Bhat and Hashim Qureshi were charged under the Ordinance.
