‘Naya Kashmir’ Bows Down To Maharaja’s Old Law

Take, for example, perspectives on laws and troop deployments, which have shifted significantly in just a few months.

Recently, Union Home Minister Amit Shah sparked debate in Jammu and Kashmir (J&K) by suggesting that the central government was planning to revoke the Armed Forces Special Powers Act (AFSPA), a move met with both hope and scepticism by the region’s political parties.

But there was an unstated postscript to Shah’s announcement. The J&K government is now mulling the use of an old, archaic law called the Enemy Agents Ordinance (EAO) to deal with those aiding foreign militants. The law mandates either life imprisonment or death as punishment.

The EAO dates back to 1947 and was promulgated by the last autocratic Dogra Maharaja of Kashmir, Hari Singh, following a tribal invasion at the time.

Its preamble reflects the contingencies of that era: “Whereas an emergency has arisen as a result of wanton attack by outside raiders and enemies of the State, which makes it necessary to provide for the trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy.”

Under Section 3 of the EAO, the penalty for aiding the enemy is either life imprisonment or death, or rigorous imprisonment for a term that may extend to 10 years. The section mandates severe penalties, including death or lifelong imprisonment, for those acting as enemy agents or aiding enemy military operations, impeding Indian forces, endangering lives or committing incendiarism.

Under Section 17, disclosing information about proceedings or individuals under the EAO can result in up to two years of imprisonment or a fine, or both. Lawyers point out that prior government permission is required for publishing such content.

On June 24, the police announced that they would deal with those aiding militants under the stricter EAO. “Under the EAO, the punishment is either life imprisonment or death; there are no other options,” Director General of Police J&K, R. R. Swain said at a media briefing.

Between June 9 and 12, four militancy-related incidents in the Reasi, Doda and Kathua districts of hilly Jammu claimed the lives of ten people, including seven pilgrims returning from the Shiv Khori temple and a Central Reserve Police Force (CRPF) jawan and left many others injured.

“We are actively considering that such terror attacks be investigated by professional agencies like the National Investigation Agency (NIA) and the State Investigating Agency (SIA). Those involved in aiding and abetting these attacks will be treated as enemy agents under the EAO,” the DG said.

On the J&K Department of Law, Justice, and Parliamentary Affairs website, the EAO is listed in the section for state/UT acts at serial number 23. Section 1 of the law states that it extends to the whole of the [Union Territory of Jammu and Kashmir] and applies also to subjects and servants of the [Union Territory of Jammu and Kashmir] outside the [Union Territory of Jammu and Kashmir] wherever they may be.

According to Section 4, “offences triable under this Ordinance,” the law states that any offence punishable under Section 3 committed at any time after October 22, 1947, whether committed before or after the commencement of this Ordinance, shall be triable under the provisions of this Ordinance.

Section 5 of the EAO empowers the government to appoint a special judge, in consultation with the High Court, to try matters under the EAO.

The law was adopted by J&K State in 1947. On August 5, 2019, after the abrogation, over 800 Central and J&K laws were adapted and extended to J&K. Despite the government stating that the abrogation of Article 370 ensured the “removal of unjust laws,” the Centre chose to retain laws like the Public Safety Act (PSA) and the EAO.

According to a senior police official, recent militant attacks necessitated invoking the EAO. While the Advocate General of J&K, D C Raina, refused to comment on the Ordinance, calling it a sensitive issue, a senior police official said laws like the PSA and the EAO were retained after the abrogation of Article 370 because they are “good laws”.

Former District and Sessions Judge Subash Gupta (retired), who frequently lectures police personnel on legal matters, says the EAO in its current form is unlikely to withstand legal scrutiny. To understand why, Gupta says, there is a need for a closer examination of Section 2 of the Ordinance.

Section 2(a) of the EAO defines an “enemy” as anyone assisting in subverting the J&K government. Section 2(b) defines an “enemy agent” as someone employed by, working for, or acting on instructions from the enemy.

“This language refers to raiders and their supporters from the campaign launched in 1947,” Gupta says. “Even Pakistani armed forces are exempted from the definition of ‘enemy’ in the Ordinance, making the law redundant.” He says the EAO is applicable only in the Union Territory of J&K, excluding Ladakh.

Riyaz Khawar, an advocate with the J&K High Court, says two persons booked under the EAO were banned Jammu Kashmir Liberation Front (JKLF) founder Maqbool Butt and Hashim Qureshi.

Butt was hanged in Delhi’s Tihar Jail on February 11, 1984, for ambushing Indian security forces in 1966, killing CID inspector Amar Chand. Convicted under Section 302 of J&K’s Ranbir Penal Code and the EAO, he escaped to Pakistan in 1966, where he was accused of masterminding a plane hijacking in 1971. He was arrested on his return to India in 1976. In 1984, the Jammu and Kashmir Liberation Front kidnapped Indian diplomat Ravindra Mhatre, demanding Butt’s release. When demands were unmet, they killed Mhatre, leading to Butt’s hanging.

On January 30, 1971, Qureshi hijacked an Indian Airlines flight to Lahore. Released after nine years in Pakistan for espionage, he returned to India in 2000, facing trial under the EAO. Despite claiming double jeopardy under Article 20(2), charges were framed against him under the EAO and Ranbir Penal Code.

Judge Gupta argues that these cases are exceptions. “The law was not designed to be extended from 1947 to the present day,” he says. “I am not saying don’t use it, but amend it to reflect current times,” Gupta says.

Advocate Sheikh Shakeel notes that the EAO has been used over the years and is being considered against those supporting militancy after the recent Jammu attacks. However, he believes the law will face court scrutiny due to its strong provisions.

While the EAO has existed for a long time but has never stoked a public debate in J&K despite its strong provisions, in 2015, the J&K assembly rejected a legislator’s proposal to repeal this law. Haq Khan, a Peoples Democratic Party (PDP) minister, justified the law’s retention, stating, “The law was enacted in 1948 to address external intrusions, and we continue to face similar situations in various forms... The necessity of the law persists,” Khan informed the House.

Aditya Gupta, a lawyer and vice president of the youth Peoples Democratic Party (JKPDP), says that rather than using such laws, trust needs to be built with the denizens of the region and a better intelligence network on the ground needs to be established.

“A more effective and credible approach would involve a renewed focus on intelligence policies and their thorough implementation,” he adds. Strengthening intelligence, improving agency coordination and adopting a strategic counter-terrorism approach could yield sustainable results, Gupta says, adding that building trust with the local population through development, dialogue, and respect for human rights would help create a more stable and peaceful environment in the region.

Unlike the AFSPA and the Public Safety Act, regional parties have remained silent about the EAO, even as J&K recorded and unprecedented voter turnout last month. The Election Commission of India (ECI) was surprised by the high voter turnout, and on May 27, the ECI described it as “a massive stride for India’s electoral polity”, saying the region achieved its highest voter turnout in 35 years.

Chief Election Commissioner Rajiv Kumar described the poll percentage in J&K as “a testament to the robust democratic spirit and civic engagement of the people in the region.” Elated over the “peaceful conduct of the elections in J&K,” he called the “active participation of the people of J&K a huge positive for the upcoming assembly elections.”

As parties anticipated state assembly poll dates after an eight-year delay, militant attacks in Jammu led the government to invoke the EAO, akin to the Unlawful Activities (Prevention) Act (UAPA).

According to a former police official, the EAO is seldom used except in a few cases. He argues that this Ordinance from the Maharaja era contradicts the current government’s stance on “colonial-era laws”.

He says that under laws like the Public Safety Act and the EAO, a person can be detained for years without the prosecution having to produce any evidence. “Here, the process becomes a punishment,” he adds.

For the past four years, the BJP has celebrated the abrogation of Article 370 on August 5, 2019, as a “historic decision” that brought peace and development to J&K. However, a retired officer points out the contradiction in the BJP’s stance: they discard old colonial laws from July 1 but consider using a Maharaja-era law to maintain peace in J&K. “Have we not moved beyond 1947?” he asks.

Senior lawyer and BJP spokesperson Sunil Sethi argues that the EAO, adopted in 1948, remains relevant due to ongoing Pakistan-sponsored militancy in J&K. He states the definitions of “enemy” and “enemy agents” still apply today, and notes the law wasn’t extended to Ladakh because Union legislation applies there directly.

Section 3 of the EAO, the BJP spokesperson says, has been used mostly in militancy-related cases.

“There is no need to amend the definition of ‘enemy,’” Sethi said. “I have personally argued before the Court. The Court opined that those coming from across (the border) are enemies and those helping them are agents and they fall under this definition.”

Naseer Ganai in Srinagar

(This appeared in the print as '‘Naya Kashmir’ Bows Down To Maharaja’s Old Law')