Enemy Agents Ordinance in J&K | connecting-the-dots

The law was made to tackle foreign fighters and invaders, especially from Pakistan, who come here and try to disturb and destabilise the government
Jammu & Kashmir Police have maintained that they will make a distinction between those who provide food and shelter out of fear, mostly at gunpoint, and those who harbour the terrorists, prepare hideouts for them and help them in other ways, either for money or because they believe in the idea of going against the nation.
citizens who inform the police immediately after the terrorists have left can get immunity or protection.

History

promulgated by the Dogra Maharaja in 1917
It is referred to as an ordinance since the laws made during the Maharaja’s rule were referred to as ordinances and did not require ratification from the legislature.
the ordinance was in 1948 re-enacted as a law by the Maharaja in exercise of his law-making powers conferred by Section 5 of the Constitution Act (1939)
After the repeal of the Constitution Act on 17 November, 1951, the ordinance remained unaffected on the strength of clause (b) of Section 6, General Clauses Act, 1977, that provided blanket protection to laws previously made under any enactment that was subsequently repealed.
Section 157 of Jammu and Kashmir constitution, all the laws in force in the state immediately before the commencement of the constitution would continue in force until altered, repealed or amended by a competent authority
the J&K Reorganisation Act , 2019, retained the ordinance along with Public Safety Act.
2020, an amendment was made, The term State was replaced by Union Territory and the J&K CrPC (Code of Criminal Procedure) was replaced by the central CrPC followed by the rest of India.

Provisions

Under this law, there is no appeal, the punishment is either life imprisonment or a death sentence.
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.
the accused also cannot engage a lawyer for defence unless permitted by the court.
no provision for appeal to higher courts against the verdict
If a person is sentenced to death or life imprisonment, or if the special judge certifies that a case involved “questions of special difficulty”, the verdict is to be reviewed “by a person chosen by the government from the judges of the high court”, the ordinance states. It adds that “the decision of that person shall be final”.
Under the ordinance, a special designated court has to conduct a trial. A special judge is appointed by the government in consultation with the high court

it does not punish the enemy but rather the “agent or friend of the enemy”, and uses the term “raider” to define an “enemy”.

This is in reference to the Kabaili raid, popularly known as the “tribal invasion” of Kashmir in October 1947.

Section 3

even failure to inform the nearest police station and the magistrate of presence and activities of foreign terrorists, not to speak of providing any kind of help, may constitute guilt

Judicial Overview

In 1948, it was challenged in the J&K High Court on the grounds that it should have lapsed without ratification, but the court ruled it would remain in force until repealed, since it has protection under clause (b) of Section 6 of the 1977 Act and under Section 157 of the 1957 J&K constitution
Rehman Shagoo and Ors vs State of Jammu and Kashmir, 1959 - SC upheld the validity of the ordinance. The judgment of the high court was upheld by the Supreme Court as well. Print