Those people found assisting militants in J&K should be tried by investigating agencies under the Enemy Agents Ordinance, 2005.
Background of the J&K Enemy Agents Ordinance
- Origin: It was first issued in 1917 by the then Dogra Maharaja of J&K and is referred to as an ‘ordinance’ since laws made during the Dogra rule were called ordinances.
- After Partition in 1947: Ordinance was incorporated as a law in the erstwhile state and was also amended.
- Enemy Agents Ordinance 2005: It was promulgated under Section 5 of the Jammu and Kashmir Constitution Act 1996.
- In 2019: When Article 370 of the Constitution was repealed, J&K’s legal framework also underwent several changes.
- J&K Reorganisation Act listed out state laws that were to continue while several others were repealed and replaced with Indian laws.
- For example, while the security laws such as Enemy Agents Ordinance and Public Safety Act remained, the Ranbir Penal Code was replaced with the Indian Penal Code.
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Salient Provisions of the J&K Enemy Agents Ordinance
- Trials under the ordinance: The trial under the Enemy Agents Ordinance is conducted by a special judge who is appointed by the “government in consultation with the High Court”.
- Under the ordinance, the accused cannot engage a lawyer to defend herself unless permitted by the court.
- Appeal against the verdict: There is no provision for appeal against the verdict.
- The decision of the special judge can only be reviewed by a person chosen (by the Govt) from the judges of the HC and the decision of that person shall be final.
- Bar on ordinance: The ordinance also bars any disclosure or publication of the case tried under it.
- Any person who, without the previous authorisation of the Government, discloses or publishes any information with respect to any proceedings or with respects to any person proceeded against under this Ordinance, shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both
Terms Defined in Enemy Agents Ordinance 2005
- “Enemy”: It 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
- “Enemy agent”: It 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.
- Penalty for aiding the enemy: According to the ordinance, anyone deemed an enemy agent or who conspires to assist the enemy, impede Indian military or air operations, endanger lives, or commit arson can be punished with death, life imprisonment, or rigorous imprisonment up to 10 years, along with a fine.
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Challenges Associated with Enemy Agents Ordinance
- Curtails Fundamental Rights: An individual may be identified as a terrorist without any judicial scrutiny and even before the commencement of a trial.
Constitution of India guarantees the following Fundamental Rights available to individuals upon being arrested
- Article 22:
- The person should be conveyed the grounds of arrest.
- Within 24 hours of the arrest, the person should be brought before a magistrate.
- Right to consult a lawyer.
- The right to a fair, just, and speedy trial is provided under Article 14 and 21 as laid down in the case of Huissainara Khatoon v. State of Bihar.
- Right to free legal aid is accorded under Article 39A.
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- This is violative of the right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.
- Impact on Civil Liberties: UAPA may infringe on civil liberties, including the right to a fair trial.
- For instance, in Romila Thapar v. Union of India case filed against the arrest of five activists after inter-caste violence in Bhima Koregaon, SC clarified that state cannot infringe upon an individual’s liberty based on speculation.
- Guilty Until Proven Innocent: A presumption of innocence of the accused until they are proven guilty at the end of the judicial process is the basis of most of the criminal justice systems.
- Enemy Agents Ordinance 2005 takes away this right from individuals because even in the absence of any trial or any judicial scrutiny, the law allows a person to be declared a terrorist.
- Admissibility of Confessions: The Act allows confessions made to police officers to be admissible in certain circumstances which might lead to coerced confessions and undermine the principles of fairness and due process.
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June 26, 2024
