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June 26, 2024

Daily Legal Current – 26 June , 2024 : Enemy Agents Ordinance

Why in the news? Jammu and Kashmir DGP R.R. Swain has said that those helping terrorists in Jammu and Kashmir should be prosecuted by investigating agencies under the Enemy Agents Ordinance, which is much more stringent than the UAPA and provides for punishment of life imprisonment or death penalty.

• The Enemy Agents Ordinance, 2005 (1948) was promulgated under Section 5 of the Jammu and Kashmir Constitution Act, 1996.

• It describes “enemy” as “any person who, directly or indirectly, takes part in or aids any campaign conducted by external aggressors to overthrow the Government established by law in the Union Territory of Jammu and Kashmir”.

• According to it, “enemy agent” means a person who, not being a member of an enemy armed force, is employed by or works for or acts on instructions received from the enemy.

• Offences under the Ordinance are punishable with death or imprisonment for life or rigorous imprisonment for a term up to 10 years and also fine.

1. Prohibited activities:

Espionage: Activities involving the collection of secret or confidential information without permission, intended to transmit it to a foreign power.

Sabotage: Deliberate actions aimed at damaging or disrupting critical infrastructure, military assets or other vital facilities.

Subversive activities: Attempts to undermine the authority or stability of the State, including inciting violence, spreading propaganda and other actions that threaten national security.

2. Powers granted to authorities:

Arrest and detention: The Ordinance generally gives law enforcement and security agencies the power to arrest and detain suspected enemy agents without a warrant for a specified period.

Search and seizure: Authorities may have the power to search premises, seize documents and confiscate equipment used for enemy activities.

Surveillance: Enhanced powers to monitor suspected individuals or groups and intercept their communications.

3. Legal procedures:

Special courts: Cases involving enemy agents may be heard in special courts or tribunals, where procedures have been created for handling sensitive information.

Burden of proof: The ordinance may adjust the standard burden of proof, considering the nature of intelligence and security work, which often relies on classified information.

4. Penalties:

• The ordinance generally prescribes harsh penalties for those found guilty of being enemy agents, including long-term imprisonment, fines, and in some cases, the death penalty.

Objectives of the Enemy Agents Ordinance:

1. National security: To protect the country from espionage, sabotage and subversion by hostile entities.

2. Deterrence: To deter individuals and groups from engaging in activities that pose a threat to national security.

3. Speedy justice: To ensure prompt and effective legal action against those involved in enemy activities, thereby reducing long-term threats.

Historical and Contemporary Context:

• Historical Context: Many countries have enacted such ordinances during times of war or heightened international tensions. For example, during World War II, many countries introduced laws to combat espionage and subversion by enemy agents.

• Contemporary Context: In the modern era, such ordinances are often part of broader counter-terrorism and national security frameworks. They are designed to address threats not only from state actors but also from non-state actors such as terrorist organizations.

Examples and Applications:

1. India: During and after World War II, India under British rule had regulations addressing enemy agents to counter threats from the Axis powers and their supporters.

2. United States: The Espionage Act of 1917 and the subsequent National Security Act are examples of US laws aimed at combating espionage and subversive activities.

3. United Kingdom: The Official Secrets Act serves a similar purpose, protecting state secrets and combating espionage.

Criticisms and concerns:

1. Human rights: Such ordinances often raise concerns about civil liberties and human rights, particularly regarding detention without trial, surveillance, and the broad powers granted to authorities.

2. Abuse of power: There is a risk of misuse or abuse of these laws for political purposes or to suppress dissent.

3. Transparency and oversight: Ensuring adequate oversight and transparency in the implementation of these laws is crucial to prevent violations of due process.

The Enemy Agents Ordinance is an important tool for maintaining national security, especially in times of conflict or heightened threats from foreign adversaries. While it provides the necessary powers to combat espionage and subversion, it must be implemented with safeguards to protect civil liberties and prevent abuse. The balance between security and individual rights remains an important consideration in the application of such ordinances.

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