The Enemy Property Bill: Against Natural Justice?

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A revised bill brings back the spectre of the 1962 and 1965 wars with China and Pakistan to relatives of Pakistanis in India.

In 1962 and 1965, India fought a war each with China and Pakistan. One of the issues these wars raised was the question of ‘enemy’ property – that which belonged to Indian citizens who left to Pakistan and China during the wars. An Act was passed in 1968 to transfer all such properties to a Custodian department set up by the Indian government.

More than 50 years since the wars, a new bill has amended the Act to include properties that belong to heirs and successors of these ‘enemies’. Following a speech on its urgency by Finance Minister Arun Jaitley, the Bill was passed in the Rajya Sabha amidst a walkout by the Opposition. This cleared the way for its passing in the Lok Sabha on Tuesday, March 14.

What makes one an enemy of the state? The Enemy Property Act of 1968 took its cues from the Defence of India Act of 1962, set up during the war with China, which states that an enemy is:

“Any person or country committing external aggression against India; any person belonging to a country committing such aggression; such other country as may be declared by the Central Government to be assisting the country committing such aggression; any person belonging to such other country.”

Under these definitions, the enemy country is usually considered to be either Pakistan or China – but if one is to consider countries that assisted them, the United States, France and Russia could theoretically be included as well.

The act was a wartime measure, and also enabled the state to appropriate vehicles or properties belonging to citizens of India. It was repealed after the conflict – but bits of its wording remain in the 1968 Bill, carried forward in the 2017 amendment.

Legal journey

The application of the law has been in a state of flux over the years. A much-cited litmus test for it has been the property of the Raja of Mahmudabad – a Muslim League leader who left India during independence, leaving behind a sizable estate. Declared enemy property in 1962, it was contested by his son and heir – who had remained in India – with a Supreme Court decision in 2005 declaring the property theirs.

But Ordinances don’t require parliamentary or courtly consent, and a slew of them has kept the estate within appropriated enemy territory. The Enemy Property (Amendment and Validation) Ordinance has been promulgated five times – the highest by a single President.

The UPA government had attempted to pass its own amendment in 2010 – but was defeated in parliament. The older bill did not aim to include successors, and focussed instead of keeping was already appropriated.

Arun Jaitley’s speech in parliament stressed the need for the bill. “Families like mine which have migrated from Pakistan in1947, is there a reciprocal obligation in Pakistan for this to happen? Obvious answer is no. All property was left behind by those who are now Indian citizens…Any country with which India has gone to war, its citizens cannot have property in India. That’s the principle.”

Speaking on the Bill in March, 2016, M.P. Shashi Tharoor said it contravened international regulations. “Regulations pertaining to enemy property in all jurisdictions only pertain to properties in times of war.”

He added that the bill would particularly target Muslims in India.

“Principally let us call a spade a spade, [it is] of the Muslim community, after all there are not too many Chinese properties at stake, it is essentially properties of those who went to Pakistan and that tend to be from only one community… and this is to my mind not only borderline unconstitutional …but also against the basic principle of natural justice.”

What makes the new bill different is it denies any legal recourse for those whose properties have been seized. It’s passage in the Rajya Sabha was also well-timed – many members of the Opposition were not present, allowing the BJP a rare opportunity to pass a Bill in the only House that could otherwise have stopped it.

Current dimensions

Today, it’s estimated that up to 16,000 such properties exist in India – with a value running into thousands of crores. Most of these pertain to properties of Pakistani-descendants – all of whom are Muslim. Some, like the estate of Mahmudabad, include high-value hotels and palaces in Lucknow and parts of Uttarakhand.

The Bill is a retrospective legislation – the addition of family members to its ambit was done such that it “shall be substituted and shall always be deemed to have been substituted.” A change of wording that affects all concerned property transactions between 1947 and today.

In a curious quirk, India’s first prime minister Jawaharlal Nehru had excluded the house of Pakistan’s founder, Muhammad Ali Jinnah, from coming under enemy property. Located in Mumbai, it remains unoccupied.

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