Context;
Recently, Jammu and Kashmir’s Director General of Police (DGP) proposed using the Enemy Agents Ordinance of 2005.
- This ordinance includes penalties such as life imprisonment or the death penalty.
- The proposal aims to prosecute militant supporters under this ordinance instead of the Unlawful Activities Prevention Act (UAPA).
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- What is the Enemy Agent Ordinance?
- The Unlawful Activities (Prevention) Act (UAPA), 1967
- Issues with UAPA
What is the Enemy Agent Ordinance?
- Introduction and History:
- Introduced in 1917 by the Dogra Maharaja of Jammu and Kashmir (J&K).
- The term ‘ordinance’ reflects the legal terminology of the Dogra era.
- Re-enacted in 1948 by the Maharaja using his legislative powers under Section 5 of the Constitution Act of Kashmir, 1939.
- Incorporated into the Jammu and Kashmir Constitution of 1957, specifically under Section 157.
- Post-Abrogation of Article 370:
- Key security legislations such as the Enemy Agents Ordinance and Public Safety Act were retained.
- Certain laws like the Ranbir Penal Code were replaced by the Indian Penal Code.
Key Provisions of the Enemy Agent Ordinance:
- Definition of Enemy Agent:
- Targets agents or friends of the enemy rather than the enemy itself.
- Defines the enemy in the context of the 1947 tribal invasion of Kashmir.
- Anyone conspiring with another to aid the enemy is considered an enemy agent.
- Punishment:
- Enemy agents may face death, life imprisonment, or rigorous imprisonment up to 10 years, along with potential fines.
- Judicial Validation and Trial:
- In the Rehman Shagoo vs State of Jammu and Kashmir Case, 1959, the Supreme Court upheld the ordinance.
- Trials are conducted by a special government-appointed judge in consultation with the High Court.
- Accused individuals cannot engage a lawyer unless permitted by the court and there is no provision for appeal against the verdict.
The Unlawful Activities (Prevention) Act (UAPA), 1967
- The Unlawful Activities (Prevention) Act (UAPA) of 1967 is an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA (which lapsed in 1995) and the Prevention of Terrorism Act – POTA (which was repealed in 2004).
- Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.
- The National Integration Council appointed a Committee on National Integration and Regionalisation to look into, the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India.
- The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.
- However, the provisions of the UAPA Act contravenes the requirements of the International Covenant on Civil and Political Rights.
Unlawful Activities Prevention Amendment Bill, 2019
- The original Unlawful Activities Prevention Act, 1967, dealt with “unlawful” acts related to secession; anti-terror provisions were introduced in 2004.
- It provides special procedures to deal with terrorist activities, among other things.
Key Provisions of the Amendment
- The Bill amends the Unlawful Activities (Prevention) Act, 1967 (UAPA) and additionally empowers the government to designate individuals as terrorists on the same grounds.
- Under the Act, the central government may designate an organisation as a terrorist organisation if it:
- commits or participates in acts of terrorism
- prepares for terrorism
- promotes terrorism
- is otherwise involved in terrorism
- The word “terror” or “terrorist” is not defined.
- However, a “terrorist act” is defined as any act committed with the intent –
- to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India
- to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country
- The central government may designate an individual as a terrorist through a notification in the official gazette.
- The Bill empowers the officers of the National Investigation Agency (NIA), of the rank of Inspector or above, to investigate cases.
- Under the Act, an investigating officer can seize properties that may be connected with terrorism with prior approval of the Director General of Police.
Issues with UAPA
- UAPA gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities. Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the Constitution.
- UAPA empowers the ruling government, under the garb of curbing terrorism, to impose indirect restriction on right of dissent which is detrimental for a developing democratic society. The right of dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for mentioned in Article 19 (2).
- UAPA can also be thought of to go against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7th schedule of Indian Constitution.
-Source: The Hindu
