4 min readNew DelhiJun 25, 2024 11:59 AM IST
First published on: Jun 25, 2024 at 08:30 AM IST
Jammu and Kashmir Director General of Police (DGP) R R Swain on Sunday said those found assisting militants in J&K should be tried by investigating agencies under the Enemy Agents Ordinance, 2005. The law is more stringent than the Unlawful Activities (Prevention) Act (UAPA) and has the punishment of either a life term or a death sentence.
“The fighters can’t be brought under the realm of investigation, they should be shot dead. Those who support them, if we are talking of investigation there, I’ve said somewhere that they will be treated as enemy agents,” DGP Swain said.
What is the Enemy Agents Ordinance?
The J&K Enemy Agents Ordinance was first issued in 1917 by the then Dogra Maharaja of J&K. It is referred to as an ‘ordinance’ since laws made during the Dogra rule were called ordinances.
According to the ordinance, “whosoever is an enemy agent or, with an intent to aid the enemy, conspires with any other person to any act which is designed or likely to give assistance to 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”.
After Partition in 1947, the ordinance was incorporated as a law in the erstwhile state and was also amended.
In 2019, when Article 370 of the Constitution was repealed, J&K’s legal framework also underwent several changes. The Jammu and Kashmir Reorganisation Act was passed, which listed out state laws that were to continue while several others were repealed and replaced with Indian laws.
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. Other laws including The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or Forest Act, and The Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 were extended to J&K as well.
How are trials conducted 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.
“In any proceedings before the Special Judge and in proceeding before a Judge reviewing under section 9 the proceedings of a Special Judge when the Special Judge or the reviewing Judge grants permission in this behalf, a person accused of an offence triable under this Ordinance may be defended by a pleader,’’ according to the ordinance.
There is no provision for appeal against the verdict, and the decision of the special judge can only be reviewed “by a person chosen by the Government from the judges of the High Court and the decision of that person shall be final”.
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,’’ according to the ordinance.
Has anyone been tried under this ordinance?
There are scores of Kashmiris who are or have been tried and sentenced under the Enemy Agents Ordinance. Jammu Kashmir Liberation Front founder Maqbool Bhat, who was hanged in Tihar Jail in 1984, was charged under the ordinance.
The J&K Enemy Agents Ordinance was first issued in 1917 by the then Dogra Maharaja of J&K. It is referred to as an ‘ordinance’ since laws made during the Dogra rule were called ordinances. 
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