Justice (retd) Syed Manzoor Gillani*
Recently, I saw a statement from Jammu and Kashmir’s Director General of Police (DGP), R.R. Swain, who announced that “those found assisting militants in J&K shall be tried under the Enemy Agents Ordinance 2005 (Samvat), which dates back to 1917 and is more stringent than the Unlawful Activities (Prevention) Act (UAPA) currently in force.”
This statement followed a series of brutal attacks on army personnel in Jammu province, which resulted in the deaths and injuries of several officers and jawans. Historically, this region remained relatively calm and peaceful throughout the peak of militancy in Kashmir.
The Enemy Agents Ordinance, originally protected under Section 5 of the Jammu and Kashmir Constitution Act, Samvat 1996 (1939 AD), was replaced by the Jammu and Kashmir Constitution in 1957.
However, this ordinance was retained following the abrogation of Article 370 on August 5, 2019. The Reorganisation Act passed on the same date, bifurcated the state into two union territories, extended 106 central laws to these UTs, and repealed 153 state laws while modifying or repealing over 400 state and central laws with respect to the new administrative structure.
The swift overhaul of more than 175 years of state laws on August 5, 2019, indicates a deeply calculated move. Amendments to the Enemy Agents Ordinance continued until 2020.
According to Section 1(a) of the ordinance, an “enemy” includes anyone participating or assisting in the campaign to undermine the Union Territory of Jammu and Kashmir. The term “raiders from outside,” a reference to the 1947 invasions, remains ironically relevant despite the ordinance’s updates.
Section 1(b) defines an “enemy agent” as someone who, not part of enemy armed forces, works for or acts on instructions from the enemy. Penalties under Section 3 of the ordinance include death, rigorous life imprisonment, or ten years of rigorous imprisonment, along with potential fines. This law is shockingly harsh and stands in stark contrast to democratic principles and universal human rights standards.
Under the ordinance, the government appoints a special judge for trials, after consultation with the High Court, who is not part of the regular judiciary. Cases are tried by this special judge, who can be reassigned by the government.
No appeal is allowed against convictions; however, a review is permitted under Section 9, conducted by a government-chosen judge, whose decision is final. Defendants may be represented by a pleader before the special court and reviewing judge, but this is not a guaranteed right. Evidence rules are also adjusted to align with the amended laws.
A similar law, the Rawalpindi Conspiracy Special Act of 1954, was enacted in Pakistan to try military officers for conspiracy. A tribunal judge remarked on its inhumanity, a sentiment that could apply to the Enemy Agents Ordinance as well.
It is troubling to see modern India revert to laws from a bygone era, designed by a despotic regime, to suppress its citizens. In democracies, laws should protect and expand rights, not suppress them. Federations like the USA, South Africa, Germany, Spain, Canada, Russia, the UK, and even Pakistan with its 18th Amendment, accommodate diverse local aspirations through asymmetric constitutional arrangements.
Prime Minister Narendra Modi and BJP leaders claimed that Articles 370 and 35A were impediments to Kashmir’s prosperity, economic development, and peace while fostering “dynastic politics” and “terrorism.” This rhetoric had a profound impact in Hindu-majority areas, pushing for a significant reduction in Kashmir’s political and administrative autonomy. The results, however, have only fostered distrust among Kashmiris.
Recent militant attacks in Jammu have exposed the failure of the Union Government to restore peace, reestablish statehood, or hold elections. The BJP’s decision to forgo candidates in Kashmir’s parliamentary constituencies reveals a lack of viable solutions.
Kashmir’s unique status was disrupted with the abrogation of Articles 370 and 35A, replacing its limited autonomy with an outdated, despotic law.
The Modi government’s efforts to revive this archaic ordinance, undermining democratic processes and downgrading the state to union territories, are perplexing. Despite deploying extensive military and paramilitary forces and suppressing dissent, militancy has surged, particularly in Jammu province.
My Experience
It intrigued me to reflect on the good old days when I was practising law in Indian-administered Kashmir (IAK) and encountered cases under the Egress and Internal Movement (Control) Ordinance, 2005 (1948 A.D.) (Ordinance No. V Samvat of 2005).
I handled several cases under this law, as members of divided villages and families occasionally crossed the Ceasefire Line (CFL), which was not as strictly enforced as it is now.
During my time as a judge in Pakistan-administered Kashmir, I came across similar cases, though under different jurisdictions, concerning the rights of state subjects.
In IAK, when borders were more porous, separated families crossed the CFL for various reasons. The administration charged them under sections 2/3 of the Egress and Internal Movement (Control) Ordinance, 2005 (1948 A.D.) (Ordinance No. V Samvat of 2005). Several families were charged for crossing the CFL and returning without proper permits.
As defence counsel, I argued that the part of the state under Pakistani control should be considered part of the state, so it did not constitute leaving or entering the state without permission. As state subjects, individuals should be able to travel from one area of the state to another without permission.
Only leaving or entering the borders of Jammu and Kashmir without permission constitutes an offence. This argument caused a stir in the administration, particularly among security agencies. My second argument was that my clients were apprehended from their homes within the limits of police station Karnah, not from the CFL or elsewhere. The Chief Judicial Magistrate acquitted them without addressing the other point.
As a judge in the AJK High Court, I encountered cases where IAK residents, visiting AJK on Pakistani visas but with Indian passports, were ordered deported by the Pakistani Home Ministry for entering AJK without a visa.
These deportation orders were declared ultra vires because state subjects do not need permission to enter any part of Kashmir under Pakistani control and that an Indian passport does not negate their status as state subjects.
A constitutional question arose in several writ petitions filed by displaced people from IAK, settled in AJK after the 1989 turmoil, who were refused state subject certificates and identity cards. These certificates are essential for obtaining Pakistani passports, admissions to colleges and universities, and jobs.
Their writ petitions were granted, as it was determined that anyone who proves their identity according to the principles of the State Subject Rules of 1927 is entitled to a state subject certificate and the associated rights.
This created a further stir due to the influx of displaced persons from IAK. I am pleased to see them thriving and contributing to social life.
I am also gratified to have experienced the judicial processes of both countries closely, which has enabled me to make better judgments for distressed individuals.
I hope sanity prevails all around.
*The author is the former Acting Chief Justice of the Supreme Court of Pakistan Administered Jammu and Kashmir.
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