ENEMY AGENTS ORDINANCE
It is time to wake up and get the EAO amended or repealed, suggests Senior J&K High Court Advocate Syed Riyaz Khawar.
In 1947, India was partitioned and the independent state of Jammu & Kashmir acceded to India through a conditional instrument of accession executed by Maharaja Hari Singh and the then Governor General of India, Lord Mountbatten. Meanwhile the tribesmen of Poonch and Muzaffarabad waged a war against the forces of Maharaja and the Indian forces in October 1947.
In 1947, India was partitioned and the independent state of Jammu & Kashmir acceded to India through a conditional instrument of accession executed by Maharaja Hari Singh and the then Governor General of India, Lord Mountbatten. Meanwhile the tribesmen of Poonch and Muzaffarabad waged a war against the forces of Maharaja and the Indian forces in October 1947.
In this backdrop many draconian laws were enacted by the then Maharaja of Jammu & Kashmir to curb the freedom sentiment and one of the infamous ordinances was promulgated which came to be known as the "Enemy Agents Ordinance”, 2005 which reads as under:- Preamble; Where as 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 trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy. And where as the present law on the subject (Ordinance XIX of 2004 (Bik)) requires to be amended in certain respects and it is proposed to issue the ordinance with necessary amendments in consolidated form; Now therefore in exercise of the powers reserved under section 5 of the Jammu & Kashmir Constitution Act, 1996 (Bik)., his Highness is pleased to make and issue the following Ordinance.
Under Section 2 of the Ordinance, enemy ‘has been defined as any person directly or indirectly participating or assisting in the campaign recently undertaken by raiders from outside in subverting the Government, established by law in the state and enemy agent under definition means a person not operating as a member of enemy armed forces, who is employed by or works for, or acts on instructions received from the enemy.’ That as per section 5 of EAO Government has a power to appoint a special judge in consultation with the High Court to try the matters under enemy agents ordinance net and as per section 7, special judge can take cognizance of an offence without accused being committed to his court for trial.
As per Section 9, if a person is convicted and sentenced to death or imprisonment for life, he may file a review petition before reviewing judge who would be nominated by the government from the judges of the High Court and as per section 11 of EAO the accused has no right to get defended by a lawyer unless permitted by the special judge or the reviewing judge. And as per Section 17 of EAO any person if discloses or publishes any information with respect to any proceedings or with respect to person proceeded against, the said person shall be punished with imprisonment that can extend to two years or with fine or with both.
That the said ordinance is unique in nature and is not even prevalent in the fascist states and is against international legal jurisprudence, international conventions and covenants, against the doctrine of common sense and the constitution of India and the state constitution. The whole ordinance is in violation of article 14 and article 21 of constitution of India and the doctrine of fairness and transparency.
The Hon’ble Supreme Court of India (Constitution Bench) discussed the said ordinance in the case titled Rehman Shagoo and other appellants versus state of Jammu & Kashmir and held it not discriminatory and in violation of article 14 of the constitution of India. Basically that time the ordinance was challenged on following five points:
1) The ordinance was unconstitutional being violative of Article 14
2) The Maharaja had surrendered the power regarding defence, communication and external affairs to the government of India by virtue of instrument of accession and the ordinance came under the head “Defence” as such he could not legislate the matters pertaining to defence.
3) Section 5 of the constituent art was repealed by an amending act XVII of 2005 (Bik) passed en November 17, 1951 and before the ordinance came to an end on the day section 5 was repealed.
4) The ordinance has in any east lapsed as the conditions under which it was exacted, had become obsolete and did not exist any more.
5) The ordinance was void as it was inconsistent with the article 352 of the Constitution of India.
The ordinance was not challenged on any other count and even if it’s constitutional validity in toto was upheld, our legislative assembly should have repealed such a draconian ordinance.
The Section 3 of the ordinance provides death sentence for endangering life meaning thereby on small suspicion a person can be hanged.It is ironic that against the sentence awarded by the special judge there lies no appeal to any court on the merits of the case but only a review is provided and the review petition can be filed only before a judge who is chosen by the Government from amongst the High Court judges and this power of nominating the judge is so arbitrary, illogical, unreasonable and as such prosecutor assumes the role of a judge. In the fascist rule of Hitler and Mussolini the worst criminals had a right to appeal and our democracy does not give a right to appeal to a state subject of Jammu & Kashmir state under Enemy Agents Ordinance. As per Section 10, if special judge under the said ordinance likes to hold the camera trial he can do so at his sweet will which is totally against the doctrine of fairness and transparency and it is against the judicial concept of “Justice should not only be done but appear to have been done”. The special feature of the ordinance is that no accused has a right to engage a lawyer unless permitted by the court while as under international law and under Indian Constitution every accused has a right to be represented by an advocate of his choice and if the accused is poor, the Government is bound to provide him with the services of a lawyer.
Moreover under Section 17 of the ordinance no person or the media can publish any proceedings with respect to any person proceeded against under this ordinance and if he does so, he can be sentenced to two years imprisonment or fine or both.
Right from 1947, thousands of Kashmiris have been charged under the said draconian law. Muhammad Maqbool Bhat and his associates were also charged under the said ordinance and was sentenced to death under Enemy Agents Ordinance read with section 302 of RPC. Late Sheikh Abdul Aziz was also proceeded against under EAO and Hashim Qureshi and others are facing the trial under EAO for hijacking the Ganga plane.
The rights embodied in universal declaration of human rights have been set forth in two covenants:
a) International covenant on civil and political rights
b) The international covenant on economic, social and cultural rights which were adopted by general assembly on December 16, 1966. The two covenants entered into force in 1976.
The covenant on civil and political rights protects the right to life, prohibits torture or cruel, inhuman or degrading treatment or punishment, prohibits slavery, slave trade and forced labour, prohibits arbitrary arrest or detention, provides that all persons deprived of their liberty shall be treated with humanity and that no one shall be imprisoned merely for inability to fulfill a contractual obligation, provides for equality before court and tribunals and for guarantee in civil and criminal proceedings, prohibits retroactive criminal legislation, stipulates the right of everyone to recognition everywhere as a person before law. The covenant also states the right of freedom of thought conscience and religion and right of freedom of opinion and expression. The Indian and the State constitution also guarantee freedom of thought conscience, expression and guarantees that no one can be condemned unheard.
Much water has flown through the legal ocean since 1960 when the Hon'ble Supreme court upheld the constitutional validity of the EAO on the basis of few points raised against EAO before the Supreme Court and the law has undergone tremendous and positive changes by way of judicial pronouncements but due to legislative inertia and bureaucratic arrogance, the Enemy Agents ordinance is still intact in the state of Jammu & Kashmir.
Would some conscientious and conscious person wakes up and have the EAO repealed or amended?
(Syed Riyaz Khawar is advocate High Court of Jammu and Kashmir Feedback at: syedriazkhawar@yahoo.in)
