Source: The Indian Express 

Introduction 

Jammu and Kashmir's Director General of Police has called for a more severe approach to counterinsurgency in the region. He proposed that individuals assisting militants should be tried under the Enemy Agents Ordinance of 2005, a law significantly more stringent than the commonly used Unlawful Activities (Prevention) Act (UAPA).  

This ordinance allows for life imprisonment or the death penalty for those convicted. Director General of Police made a clear distinction in his statement, asserting that active militants should be "shot dead" rather than brought to trial, while those supporting them would be treated as enemy agents. This stance signals a potential shift towards harsher measures in dealing with militancy and its supporters in Jammu and Kashmir. 

What is Enemy Agents Ordinance,2005? 

About: 

• Originally issued in 1917 by the Dogra Maharaja of J&K, the ordinance remains in effect today. 
• It prescribes severe penalties for aiding enemies or impeding Indian military operations, including death, life imprisonment, or up to 10 years' rigorous imprisonment with fines. 
• The law defines "enemy agents" broadly, encompassing those who assist enemies or engage in activities harmful to Indian forces. 
•  It has been retained through significant political changes, including the partition of India and the reorganization of Jammu and Kashmir. 
• The ordinance is considered more stringent than other anti-terrorism laws like the UAPA. 

History of the J&K Enemy Agents Ordinance: 

• Enacted in 1917 during the Dogra rule, it was first called an "ordinance" as per the naming convention of laws. 
• Following India's partition in 1947, the ordinance was incorporated into the legal framework of the newly formed state of Jammu and Kashmir. 
• The law underwent amendments over time to adapt to changing political and security situations in the region. 
• In 2019, when Article 370 of Indian Constitution was abrogated, the ordinance survived the extensive legal reorganization that followed. 
• While many state-specific laws were replaced with Indian national laws, the J&K Enemy Agents Ordinance was retained along with other security-related legislation like the Public Safety Act. 

Overview of the Enemy Agents Ordinance, 2005 

• Definitions:  
  • Section 2 of the act deals with definitions. 
  • “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 established by law in the State. 
  • “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. 
• Punishment: 
  • Section 3 of the act deals with Penalty for aiding the enemy.  
  • It states that 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. 
  • It also explain that a person shall also be guilty of an offence under this section if he, being aware that arms and explosives or any equipment capable of being used for espoinage or sabotage have been dumped or left behind by a raider or an enemy agent, wilfully omits to report to the nearest Magistrate or police Officer of the arms, ammunition or equipment so dumped or left behind. 
• Offences triable under this Ordinance 
  • Section 4 of the act deals with offences triable under this Ordinance 
  • It states that where a person is charged before a Special Judge with an offence punishable under section 3, he may be charged with and tried at the same trial for any other offence with which he might under the Code of Criminal Procedure, 1989, be charged at one trial and the procedure of this Ordinance shall apply to the trial of any such other offence. 
• Appeal and Review:  
  • The ordinance restricts appeals against the verdict. Review of decisions is limited to a designated individual chosen by the government from the High Court judges, whose decision is final. 

What are the Trial Procedures under the Ordinance? 

• Appointment of Special Judge: 
  • The government, in consultation with the High Court, appoints a special judge to conduct the trial. 
• Initiation of Proceedings: 
  • The accused is brought before the special judge to face charges under the ordinance. 
• Legal Representation: 
  • By default, the accused is not allowed to engage a lawyer. 
  • The court may grant permission for legal representation at its discretion. 
• Trial Process: 
  • The special judge conducts the trial according to the ordinance's provisions. 
  • Details of the proceedings are kept confidential. 
• Verdict and Sentencing: 
  • The special judge delivers the verdict and determines the sentence if found guilty. 
  • Penalties can include death, life imprisonment, or up to 10 years' imprisonment with fines. 
• Review Process: 
  • There is no provision for appeal against the verdict. 
  • The government may select a High Court judge to review the special judge's decision. 
  • The reviewing judge's decision is final and binding. 
• Confidentiality: 
  • Unauthorized disclosure or publication of any information about the proceedings or the accused is prohibited. 
  • Violation of this confidentiality can result in up to two years' imprisonment, a fine, or both. 

Conclusion  

The J&K Enemy Agents Ordinance of 2005 represents a stringent legal tool in the region's counterinsurgency efforts, with roots dating back to 1917. Its recent invocation by the Director General of Police signals a potential hardening of approach towards militancy and its supporters. The ordinance's severe penalties, restricted legal representation, and lack of appeal provisions raise significant concerns about due process and human rights.