Proposal to Use Enemy Agents Ordinance in Jammu and Kashmir

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Context;

Recently, Jammu and Kashmir’s Director General of Police (DGP) proposed using the Enemy Agents Ordinance of 2005.

This ordinance includes penalties such as life imprisonment or the death penalty.
The proposal aims to prosecute militant supporters under this ordinance instead of the Unlawful Activities Prevention Act (UAPA).

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

Introduction and History:
- Introduced in 1917 by the Dogra Maharaja of Jammu and Kashmir (J&K).
- The term ‘ordinance’ reflects the legal terminology of the Dogra era.
- Re-enacted in 1948 by the Maharaja using his legislative powers under Section 5 of the Constitution Act of Kashmir, 1939.
- Incorporated into the Jammu and Kashmir Constitution of 1957, specifically under Section 157.
Post-Abrogation of Article 370:
- Key security legislations such as the Enemy Agents Ordinance and Public Safety Act were retained.
- Certain laws like the Ranbir Penal Code were replaced by the Indian Penal Code.

Definition of Enemy Agent:
- Targets agents or friends of the enemy rather than the enemy itself.
- Defines the enemy in the context of the 1947 tribal invasion of Kashmir.
- Anyone conspiring with another to aid the enemy is considered an enemy agent.
Punishment:
- Enemy agents may face death, life imprisonment, or rigorous imprisonment up to 10 years, along with potential fines.
Judicial Validation and Trial:
- In the Rehman Shagoo vs State of Jammu and Kashmir Case, 1959, the Supreme Court upheld the ordinance.
- Trials are conducted by a special government-appointed judge in consultation with the High Court.
- Accused individuals cannot engage a lawyer unless permitted by the court and there is no provision for appeal against the verdict.

The Unlawful Activities (Prevention) Act (UAPA) of 1967 is an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (which lapsed in 1995) and the Prevention of Terrorism Act – POTA (which was repealed in 2004).
Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.
The National Integration Council appointed a Committee on National Integration and Regionalisation to look into, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India.
The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.
However, the provisions of the UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights.

The original Unlawful Activities Prevention Act, 1967, dealt with “unlawful” acts related to secession; anti-terror provisions were introduced in 2004.
It provides special procedures to deal with terrorist activities, among other things.

The Bill amends the Unlawful Activities (Prevention) Act, 1967 (UAPA) and additionally empowers the government to designate individuals as terrorists on the same grounds.
Under the Act, the central government may designate an organisation as a terrorist organisation if it:
- commits or participates in acts of terrorism
- prepares for terrorism
- promotes terrorism
- is otherwise involved in terrorism
The word “terror” or “terrorist” is not defined.
However, a “terrorist act” is defined as any act committed with the intent –
- to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India
- to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
The central government may designate an individual as a terrorist through a notification in the official gazette.
The Bill empowers the officers of the National Investigation Agency (NIA), of the rank of Inspector or above, to investigate cases.
Under the Act, an investigating officer can seize properties that may be connected with terrorism with prior approval of the Director General of Police.

UAPA gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities. Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the Constitution.
UAPA empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for a developing democratic society. The right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2).
UAPA can also be thought of to go against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7th schedule of Indian Constitution.

-Source: The Hindu