Jammu & Kashmir: Tracing the historical evolution of the Enemy Agents Ordinance, 1948
Primary criticism against the act is that existing legislations are equipped to handle relevant issues
Recently the Director General of Police (DGP) Jammu and Kashmir, stated that the Enemy Agents Ordinance should be adopted to try those spreading terror in Jammu and Kashmir with the help of their “agents”. Calling the act much harsher than UAPA, he is quoted to have said, “There are two angles to it – one is, all I have to prove is that there was a foreigner, and the person has assisted him."
What is this Ordinance?
Several accounts trace the origin of the Enemy Agents Ordinance to 1917 when it was said to have been promulgated by the Dogra Maharaja. However, the text of the 1917 ordinance is not available online. The present Ordinance being referred to by the DGP was promulgated in 1948.
Jammu and Kashmir had acceded to India on October 26, 1947, and had been facing several attacks. Thus, the erstwhile ruler of the region promulgated the ordinance by exercising his powers under the Jammu and Kashmir Constitution Act, 1939. The preamble of the Ordinance notes that in light of an emergency in the state due to ‘wanton attacks by outside raiders and enemies of state’ a need was felt to promulgate a law for the trial and punishment of such enemy agents.
Thus, from its inception, the Ordinance was carved as an exception from the general laws. Being an exception, it curtailed several rights of the accused. Under the ordinance, all trials are to be conducted by a special judge, who is appointed by the Government of Jammu and Kashmir in consultation with the High Court of the State. The Special Judge enjoys immense power under the Ordinance.
Whether the accused can engage a lawyer or not or if proceedings need to be held on camera, all such decisions can be taken unilaterally by the Special Judge. Section 13 of the Ordinance allows the Special Judge to hold proceedings in the absence of the accused if the accused has ‘by his voluntary act rendered himself incapable of appearing before the Court, or resists his production before it or behaves before it in a persistently disorderly manner’.
If the Court rules that the accused has become capable of appearing or undertakes to behave in an orderly manner the Special Judge may choose to allow his presence. Thus, the entire trial can be conducted in the absence of the accused under the ordinance and the same will not only be legal but cannot be challenged as the Ordinance bars any judicial review.
At the end of the trial if found guilty a person can be sentenced to a minimum of 10 years to a maximum of life imprisonment or even death. The Ordinance allows for review only on two conditions: if the sentence awarded is of life or death or if the Special Judge feels that an important question of law has arisen. Even in such cases, the review shall lie before a person chosen by the Government from the Judges of the High Court.
The Constitutionality of the Ordinance was challenged in 1958 before the Constitutional Bench of the Supreme Court in Rehman Shagoo and Others v. State of Jammu and Kashmir.
The challenge was primarily on the ground of the legislative competence of the Ruler of Jammu and Kashmir to promulgate the Ordinance, and it being in violation of Article 14 among other grounds. The Supreme Court rejected the challenge and upheld the validity of the Ordinance. The Court ruled that the Ordinance in substance dealt with public order, criminal law and procedure and not defence, which was within the exclusive domain of the Central Government.
Thus, the ruler of the State was within his legislative competence to promulgate it. With regard to the challenge on grounds of equality under Article 14, the Supreme Court noted that there was a clear classification which had a rational nexus to the object sought to be achieved.
The ordinance was aimed to hold trials for enemy agents which was a new class unto itself. It also rejected the contention that the emergency situation which had necessitated the passage of the law had ended.
It noted that the Ordinance being a permanent legislation could be repealed only by a competent authority.
While the issue of the Ordinance not providing a pleader was raised, the Court noted that in the case before it the accused had engaged a lawyer and thus, chose not to interfere on that ground.
It is important to note that when Article 370 was repealed in 2019 several State laws such as the Ranbir Penal Code and the Land Estate Abolition Act 1950 were dissolved but the Enemy Agent Ordinance was saved.
Interestingly in 1943, during WWII, Viceroy and Governor General Linlithgow promulgated an almost identical Ordinance for the trial of enemy agents.
PN Sapru in his critique of the Ordinance in the thirteenth session of the Council of States held between 15th February to 3rd April 1943 stated, “There is no popular Government to control it (the police) and the tendency is to support the police because this is a time of difficulty and we must not do anything which will undermine their morale. Therefore, that sort of feeling makes them feel that they can do things in any way they like…I am saying all this to show that there is a great need for judicial safeguards in India.”
His main criticism was that the existing legislations were well equipped to handle the issues and a restrictive Ordinance which did not afford basic safeguards like the right to a counsel of choice and judicial review was not needed. Ironically, this Ordinance was repealed in 1948 the same year the Ruler of Jammu and Kashmir promulgated the Enemy Agent Ordinance.
81 years later, the critique of PN Sapru still stands.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.
Recently the Director General of Police (DGP) Jammu and Kashmir, stated that the Enemy Agents Ordinance should be adopted to try those spreading terror in Jammu and Kashmir with the help of their “agents”. Calling the act much harsher than UAPA, he is quoted to have said, “There are two angles to it – one is, all I have to prove is that there was a foreigner, and the person has assisted him."
What is this Ordinance?
Several accounts trace the origin of the Enemy Agents Ordinance to 1917 when it was said to have been promulgated by the Dogra Maharaja. However, the text of the 1917 ordinance is not available online. The present Ordinance being referred to by the DGP was promulgated in 1948.
Jammu and Kashmir had acceded to India on October 26, 1947, and had been facing several attacks. Thus, the erstwhile ruler of the region promulgated the ordinance by exercising his powers under the Jammu and Kashmir Constitution Act, 1939. The preamble of the Ordinance notes that in light of an emergency in the state due to ‘wanton attacks by outside raiders and enemies of state’ a need was felt to promulgate a law for the trial and punishment of such enemy agents.
Thus, from its inception, the Ordinance was carved as an exception from the general laws. Being an exception, it curtailed several rights of the accused. Under the ordinance, all trials are to be conducted by a special judge, who is appointed by the Government of Jammu and Kashmir in consultation with the High Court of the State. The Special Judge enjoys immense power under the Ordinance.
Whether the accused can engage a lawyer or not or if proceedings need to be held on camera, all such decisions can be taken unilaterally by the Special Judge. Section 13 of the Ordinance allows the Special Judge to hold proceedings in the absence of the accused if the accused has ‘by his voluntary act rendered himself incapable of appearing before the Court, or resists his production before it or behaves before it in a persistently disorderly manner’.
If the Court rules that the accused has become capable of appearing or undertakes to behave in an orderly manner the Special Judge may choose to allow his presence. Thus, the entire trial can be conducted in the absence of the accused under the ordinance and the same will not only be legal but cannot be challenged as the Ordinance bars any judicial review.
At the end of the trial if found guilty a person can be sentenced to a minimum of 10 years to a maximum of life imprisonment or even death. The Ordinance allows for review only on two conditions: if the sentence awarded is of life or death or if the Special Judge feels that an important question of law has arisen. Even in such cases, the review shall lie before a person chosen by the Government from the Judges of the High Court.
The Constitutionality of the Ordinance was challenged in 1958 before the Constitutional Bench of the Supreme Court in Rehman Shagoo and Others v. State of Jammu and Kashmir.
The challenge was primarily on the ground of the legislative competence of the Ruler of Jammu and Kashmir to promulgate the Ordinance, and it being in violation of Article 14 among other grounds. The Supreme Court rejected the challenge and upheld the validity of the Ordinance. The Court ruled that the Ordinance in substance dealt with public order, criminal law and procedure and not defence, which was within the exclusive domain of the Central Government.
Thus, the ruler of the State was within his legislative competence to promulgate it. With regard to the challenge on grounds of equality under Article 14, the Supreme Court noted that there was a clear classification which had a rational nexus to the object sought to be achieved.
The ordinance was aimed to hold trials for enemy agents which was a new class unto itself. It also rejected the contention that the emergency situation which had necessitated the passage of the law had ended.
It noted that the Ordinance being a permanent legislation could be repealed only by a competent authority.
While the issue of the Ordinance not providing a pleader was raised, the Court noted that in the case before it the accused had engaged a lawyer and thus, chose not to interfere on that ground.
It is important to note that when Article 370 was repealed in 2019 several State laws such as the Ranbir Penal Code and the Land Estate Abolition Act 1950 were dissolved but the Enemy Agent Ordinance was saved.
Interestingly in 1943, during WWII, Viceroy and Governor General Linlithgow promulgated an almost identical Ordinance for the trial of enemy agents.
PN Sapru in his critique of the Ordinance in the thirteenth session of the Council of States held between 15th February to 3rd April 1943 stated, “There is no popular Government to control it (the police) and the tendency is to support the police because this is a time of difficulty and we must not do anything which will undermine their morale. Therefore, that sort of feeling makes them feel that they can do things in any way they like…I am saying all this to show that there is a great need for judicial safeguards in India.”
His main criticism was that the existing legislations were well equipped to handle the issues and a restrictive Ordinance which did not afford basic safeguards like the right to a counsel of choice and judicial review was not needed. Ironically, this Ordinance was repealed in 1948 the same year the Ruler of Jammu and Kashmir promulgated the Enemy Agent Ordinance.
81 years later, the critique of PN Sapru still stands.
Parijata Bharadwaj, a lawyer and researcher based in New Delhi, co-founded the Jagdalpur Legal Aid Group that offered legal services to adivasis in Chhattisgarh. The views expressed are personal.