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Making enemies retrospectively

Yogesh Pratap Singh and Sanjeeb Panigrahi | New Delhi |

Vivekananda was asked by a young lady in London, “What have you Indians done? You have never even conquered a single nation.” That may be true from the point of view of the Englishman, the brave, the heroic, because for them conquest is the greatest glory that one can have over another. “If I ask myself what has been the cause of India’s greatness, I answer, because we have never conquered. That is our glory.” Vivekananda replied.

While conquerors habitually decimate their enemies, India seemed exceedingly driven to offer an olive branch to its enemies. This has been an integral part of our tradition which was endorsed by the Father of the Nation when he wrote, “Repression has never worked. I challenge anybody to point me to a single episode in either ancient or modern history, which proves that repression has even once achieved the end to which it has been directed. The English failed in America,….it failed in South Africa after the Boer War, It failed in Ireland yesterday… will fail in India tomorrow. If repression succeeds in anything, it is in advertising the cause of the enemy.”

The recent Enemy Property (Amendment and Validation) Ordinance if it succeeds will certainly create a hostile environment in the country.

The Genealogy of Enemy Property Law Government estimates there are about 16,000 properties (movable and immovable) of migrants who left for Pakistan. There are some 149 immovable properties of Chinese nationals spread across Karnataka, West Bengal, Assam, Rajasthan, Meghalaya, Tamil Nadu, and Delhi etc. There is no authentic valuation of such properties but a conservative estimate could place the figure at about Rs 1.7 lakh crore.

The outbreak of World War II in 1939 resulted in the Defence of India Act, 1939  and the Defence of India Rules, 1939 made thereunder. The office of the custodian of enemy property for India, Mumbai, was constituted to prevent paying money to the enemy and to administer enemy properties in India till peace was restored. Properties left by enemy subjects were vested in the custodian and continued to remain vested in it even after the war ended.

During the wars of 1962 – with China – and of 1965 and 1971 – with Pakistan – the government designated certain properties belonging to citizens of these two countries as “enemy properties.” After the 1965 war, India and Pakistan signed the Tashkent Declaration on 10 January 1966. The Declaration included a clause, which stated that the two countries would discuss the return of property and assets taken over by either side in connection with the conflict.
As a result the Government notified an Enemy Property Registration Order that was later replaced by the Enemy Property Act 1968. “Enemy property” under this law included properties of persons who were believed to be citizens of a country classified as an enemy country by the Government of India. These properties are vested in the “Custodian of Enemy Property”, an office constituted under the Act.

Besides managing the property, the custodian can declare any property to be enemy property and seize it, and order the sale of the property. The Custodian can also oppose court cases filed by an aggrieved individual whose property is divested. The 1968 Act prohibited transfer of enemy property by an enemy if it was against public interest or to evade vesting of property in the Custodian.

The Raison D’être

The principle behind the enemy property law, both the 1968 Act and the present Act, is that citizens of any country with which India has gone to war cannot be allowed to hold property in India. The 1968 Act provided that the Central government may order for an enemy property to be divested from the Custodian and returned to the owner or other 

The said Act also permitted the sale of enemy property by the Custodian only if it was in the interest of preserving the property, or to secure maintenance of the enemy or his family in India. Defying the Tashkent Agreement the Government of Pakistan disposed of all such properties in its country in 1971. Pakistan’s unilateral action perhaps became the rationale of the present Act.

The New Regime

The amendment aimed at capping the ambiguities in the 1968 Act is to ensure that enemy properties that have been vested in the Custodian remain so and do not revert to the enemy subject. Notwithstanding any court judgement now the magnified power of the Custodian under the new regime extends to sale or disposal of enemy property within a time period specified by the Central government.

The Act seeks to include the vesting of enemy properties in cases like the enemy’s death and if the legal heir is an Indian and the enemy changes his nationality to that of another country. It expands the definition of “enemy” to include legal heirs of enemies even if they are citizens of India or of another country which is not an enemy and nationals of an enemy country who subsequently changed their nationality to that of another country. It further provides that vesting of enemy property with the Custodian shall mean that all rights, titles and interests in the property will vest with the Custodian. No laws governing succession will be applicable to these enemy properties.

However, the amended Act prohibits all transfers by enemies and renders the transfers that had taken place before or after the commencement of the 1968 Act, as void. The Amended Act ousted the jurisdiction of civil courts and other authorities from entertaining cases against enemy properties, or against actions of the Central government or the Custodian under the Act.

The amended Act eliminates the duty to maintain the enemy and his family and allows the Custodian to carry out some measures (including selling, mortgaging or leasing enemy property). This incorporates few permissible actions such as fixing and collecting rent, license fee, etc. from enemy property, and evicting unauthorised occupants and removing unauthorised construction from such properties. Although the Public Premises Act, 1971 regulates elimination of unlawful occupants and construction from public premises but the amended Act is to include enemy properties within the definition of public premises.

Judicial Treatment

Mohammad Ali Jinnah, the founder of Pakistan kept fighting till his death to get back his bungalow “Jinnah House” in Mumbai. His daughter Deena Vaidya, too, failed to secure the ownership. However, Mohammad Amir Mohammad Khan alias Sulaiman Khan, the son of the late Raja of Mehmoodabad, a close comrade of Jinnah and the Muslim League won the claims of his father’s property in the Supreme Court after a 32-year long legal battle. However, the fruits of this victory are now eclipsed by the new Ordinance promulgated by the President of India.

The apex Court in Union of India & Another vs. Raja Mohammed Amir Mohammad Khan, on 21 October 21 2005, while rendering the verdict in favour of Raja Mehmood Khan, opened space for further claims as genuine or ostensible relatives of persons who had migrated to Pakistan and produced deeds of gift claiming rightful owners of enemy properties. In a bid to obviate the Supreme Court ruling the Government of India brought series of ordinances and finally the present amendment Act.  
New Law Sans Conscience

The new law if it stays alive would adversely affect the rights of a major chunk of citizens and especially the Muslims by making them enemies with retrospective effect. It would also undermine the decisions of Indian courts that have established the Custodian as the guardian of the property and not the owner. Attempt to make retrospective accomplishment would turn upside down the rights and obligations already vested in citizens.

Notwithstanding the constant and unequivocal admonition administered by the Supreme Court including in the latest Krishan Kumar v. State of Bihar (2017) that once again re-affirmed that re-promulgation is a colorable exercise of power and amounts to a fraud on the Constitution, the executive wing of the State continues to be in denial. Hence, another basic feature of the Constitution – democracy – stands dishonored. What is at stake here is not government, or governance, but the very essence of constitutional trinity of our national philosophy — liberty, equality and tolerance to meet India’s international commitments to the United Nations. 
The writers are, respectively, Associate Professor of Law at NLU Odisha and an Advocate, Supreme Court of India. 
The views expressed are personal.