How the Central Government Subverted Both Procedure and Good Faith In Passing the Enemy Property Amendment Bill

On 31 March 2017, Ghulam Nabi Azad, the leader of the opposition in the Rajya Sabha, stood up on the house floor to comment on the passage of the Enemy Property (Amendment and Validation) Bill, 2016. The Rajya Sabha had passed the bill into law a few days earlier, on 10 March. Azad alleged that the Bharatiya Janata Party had taken advantage of the low attendance in the house—only a handful of the opposition members were present in parliament that day, and the house was functioning just above quorum, which is 25 people—to ensure that the bill was passed. He further added that the Business Advisory Committee, which decides the business to be taken up by the house on that day, had unanimously earlier decided that the bill would be brought up only after a discussion had taken place among all political parties.

On this assurance, most of the opposition party MPs had left for the day. The government “did not inform us” that it would be bringing the bill up, Azad said. He added that the manner in which it did so was “against the spirit of the decision unanimously taken to which the government was party.” Mukhtar Abbas Naqvi, the vice president of the Bharatiya Janata Party and the minister of state for parliamentary affairs, responded: “If the opposition MPs do not stay then it is their responsibility.”

Though the points Azad raised received little attention during the remainder of the session, his assertion was not without merit. The shrewdness with which the present government pursued and passed the Enemy Property Amendment Bill not only sets dangerous precedents, but is also against the democratic ethos of the country. “Behind the back of the honourable members of parliament and the opposition parties, that bill was passed,” Azad said.

The Enemy Property (Amendment and Validation) Bill amended the Enemy Property Act of 1968. During the 1962 war with China and the 1968 and 1971 Indo-Pak wars, the Indian government took over properties that belonged to nationals of these countries who had migrated out of India, declaring them “enemy properties.” The 1968 act regulated the government’s management of these properties, the rights of any heirs who may have stayed back in India, and the sale of such properties. The result of the amendment to this act is simple: if you are an Indian citizen who lives on such a property, which you may have either inherited from an ancestor or purchased from a person who migrated to an “enemy” country during or before the wars, you will no longer retain any legal claim to it. It does not matter, it appears, that India is no longer at war with Pakistan, or that the heirs stayed back and are citizens of India. Nor does it matter that, in the past, when disputes arose between the citizens and the government over “enemy” properties, in case after case, the courts directed the government to return the property to the heirs and declared them rightful owners, on the argument that the government was meant to be responsible for the properties for a temporary period only, and only for its caretaking.

The process to enact this amendment into law began in January 2016, when the president of India first promulgated an ordinance amending the 1968 Act to permanently confiscate “enemy properties.” In 2016 alone, this ordinance was re-promulgated four more times by President Pranab Mukherjee—a record number for any president of the country.

On 9 March 2016, the amendment bill passed through the Lok Sabha amid resistance and apprehensions. Members such as Pinaki Mishra, of the Biju Janata Dal, and Shashi Tharoor, of the Congress expressed their concerns over the bill. Tharoor pointed out that the amendment appears to create two classes of Indian citizens. He said: “The Bill will ... adversely affect the rights of lakhs of Indian citizens and principally, let us call a spade a spade, of the Muslim community.” Asaduddin Owaisi, of the All India Majlis-e-Ittehaddul Muslimeen, added that the bill will also affect all the bona fide purchasers of such a property. “This government, with its brute majority, wants to show that they can trample upon the laws of Indian citizens,” he said.

The amendment bill faced its acid test in Rajya Sabha, where it was presented the next day on 10 March, and dispatched off five days later to a select committee—an ad hoc committee appointed by the house—headed by the BJP MP Bhupender Yadav. In the pursuit of impartiality, the house conventionally appoints an opposition MP to head a committee reviewing government bills—but this was not done. The committee comprised 23 members of parliament and its report upheld the bill almost in its entirety. Six of the 23 MPs submitted serious objections and dissented against the report. (Disclosure: I am currently working with the Rajya Sabha MP Husain Dalwai, of the Indian National Congress, as a researcher. Dalwai was a member of the committee, and one of the six MPs who dissented).

I spoke to close to a dozen people who gave their inputs to the committee, including senior lawyers and those who would be affected by the amendment. Many of them told me in confidence that they were critical of the bill in their submissions. Yet, most of their comments were not included in the report. A plausible—and grossly disappointing—conclusion that one can draw is that in its report, the committee selectively pruned the critical comments received on the bill. If the responsibility of a select-committee review is to act as a check on the government, they failed in this regard when the report was tabled in parliament, on 6 May 2016.

The tabling of the report reinvigorated the stand of the government. In the monsoon session, although the bill was listed several times, the government did not push for it to be discussed. It would be a safe guess to say that with bills such as the Goods and Services Tax Bill (GST) in the offing, the ruling party did not want to antagonise the opposition. The issue of demonetisation dominated the next session in the winter, leaving little room for anything else. The ordinance continued to be repromulgated—the fifth ordinance was issued in the last week of December 2016.

In January 2017, Dalwai challenged this ordinance before the Supreme Court, in the form of a public-interest litigation, or PIL. He argued in the PIL that in the case of Krishna Kumar Singh vs State of Bihar, the judgment, pronounced by a seven-judge Constitution Bench of the Supreme Court earlier that month on 2 January, held that re-promulgation of ordinances is a “fraud on the Constitution” and subverts democratic legislative processes. The court did not hear the matter as the bill was with the Rajya Sabha, and Dalwai subsequently withdrew the petition.

This brings us to 10 March 2017. The date was likely strategically chosen—the results of the fiercely contested Uttar Pradesh assembly election were due the next day, and interest in house proceedings was understandably low. It was also a Friday: the Private Member’s Business day, when members of the house who are not ministers in the government present bills to the house. In parliamentary parlance, Fridays are also expected to be slow—most MPs are absent, and many leave to spend the weekend in their constituencies. It was also four days before the ongoing ordinance was due to expire.

The drama unfolded within the hour before the house was adjourned. At about 4 pm, discussion on private members’ matters came to an end. (Interestingly, one of the private-member bills discussed that day asked for Pakistan to be termed a “terror-sponsoring” nation, but it was withdrawn that day after many MPs said it would not be diplomatically feasible to do so.) The chair then moved on to the Enemy Property Amendment Bill, which was listed in the matters before the house. The few opposition MPs in the house, such as Jairam Ramesh of the Congress and Sukhendu Shekhar Roy of the Trinamool Congress, resisted the government’s move to push for the bill. They pleaded that a proper discussion on the bill be held the following week, with a fuller house. Finance Minister Arun Jaitley reminded the house that the fifth Ordinance was due to expire on 14 March, and that the bill must be decided “either way” before that. “Either way” implied that the bill could also be defeated—but the government’s use of this argument suggested that it was confident the outcome would be in its favour. The chair decided to take up the bill.

In the minutes that followed, the Congress, despite having significant strength in the Rajya Sabha, failed to live up to what is expected of the main opposition party. Appearing disconnected and disorganised, the party failed to put together a last-minute attack. Azad, the leader of the opposition who was not in the house at that time, remained elusive to the MPs as they made frantic calls to his office. In a final act of defiance, the few opposition MPs present in the house meekly staged a walk-out in the hopes of preventing quorum—a move that proved counter-productive. The BJP’s floor management was exemplary: the ruling party speedily marshaled the necessary numbers. Many senior ministers were in attendance—including Home Minister Rajnath Singh, whose ministry helmed the bill; Naqvi; Jaitley, and the human-resources development minister Prakash Javadekar. After Jaitley gave his justification for the bill, it was put to a voice vote—though it may as well not have been. There was negligible, if any, opposition present in the house—the votes were “ayes” all the way.

The amendment will affect the residents of properties across several states including Uttar Pradesh, Maharashtra and West Bengal, with a collective worth of Rs 1 lakh crore. It will also disproportionally affect India’s Muslim population—many of those affected are descendants of those who left before or during the wars with Pakistan. At best, it is unconstitutional. It discriminates among citizens on the basis of descent, which could constitute a violation of Article 14 of the Constitution, wherein all citizens are guaranteed equal treatment under the law. At worst, it is an attempt by this government to maintain its image of alienating minorities—to ensure that its voter base is secure, and that it continues to grow.