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

08 April 2017
While the opposition 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.

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.

Maansi Verma is a lawyer and policy enthusiast who works with Husain Dalwai, a member of parliament in the Rajya Sabha, as a legislative and policy researcher.

Keywords: war Parliament enemy property ordinance parliamentary procedure