What the New Enemy Property Bill says about Indian Citizenry

On 7 January 2016, the President of India, Pranab Mukherjee, promulgated an ordinance amending the Enemy Property Act of 1968. The Enemy Property Validation and Amendment Bill, 2016 is currently under consideration by parliament. The act was originally promulgated in 1968 after India’s 1965 war with Pakistan. Along with the Enemy Property Act, the bill amends the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It replaced the Enemy Property (Amendment and Validation) Ordinance, 2016, which was scheduled to lapse in April 2016. On 13 August, the president promulgated the ordinance for a fourth time.

During the wars of 1962—with China—and the 1965 and 1971 conflicts with Pakistan, the government designated certain properties belonging to citizens of these as “enemy properties.” When the war with China broke out in 1962, the government had issued an enemy property registration order. In 1968, the order was replaced by the enemy property act. According to the act, “enemy property” could include properties of persons who are believed to be a citizens of a state classified as an enemy state by to the Indian government. The government vested these properties in the Custodian of Enemy Property for India, an office instituted under it. The 1968 Act regulates these enemy properties, and lists the powers of the custodian. Apart from managing the property, the custodian can declare any property to be enemy property and seize it, and order the sale of the property. Lastly, in court cases filed by the individuals to reclaim the property, it is the custodian who opposes the property’s return. The current ordinance expands the definition of “enemies” to include the legal heirs of those declared enemies—even if the heirs are citizens of India, or of another country that is not an enemy.

But many of the people affected by this law are, in fact, victims—of fate, their destiny, Partition and now, government action. Is the law meant to provide justice or to identify enemies of the state? The spirit of this law is to take over the property of the alleged enemies of the state, but in reality, it is a means to brand certain individuals as “enemies,” and to use their claim to property as a proof of their “enemy” status.

The enemy property act has gained notoriety for properties still being under the control of the custodian even after the wars have ended. It also raises the questions of justice, as private property cannot be seized indefinitely—this is in conflict with the fundamental rights to property, and does not tackle the question of the fate of individuals who are Indian citizens, but yet were deemed as enemies because their forefathers took the citizenship of Pakistan.

Thousands have been affected by the legislation. For instance, in December 1957, Mohammad Amir Ahmed Khan, then the Raja of Mahmudabad—located in present-day Uttar Pradesh—emigrated to Pakistan and became a Pakistani citizen. His wife, Rani Kaniz Abid, and their son, Mohammad Amir Mohammad Khan, did not emigrate, and remained in India as Indian nationals. The family continued to be active in Uttar Pradesh politics. When the war broke out in 1965, the provisions of the order were extended to Pakistan, and the Mahmudabad property was taken over by the union government. In 2013, 2,111 properties had been identified as “enemy.” By 2015, their number rose to 14,759—showing that the number of properties being declared “enemy” continues to rise even though we are not at war with our neighbours.

There are many questions that the act, and now the ordinance, raise. First, how can the state extend its ambit to include Indian citizens? Second, do we understand Pakistan to be termed an enemy state by India, since migration to Pakistan or any association with Pakistan was the essential requirement under the Act? If yes, then what should be the nature of our engagement with an enemy state? How would the act affect Bangladesh, which was East Pakistan till 1971, and where migrations to and from India continue to this day, raising the question of property on daily basis? If passed, the current ordinance will deem thousands of Bangladeshi nationals the enemies of the Indian state. The bill applies retroactively, which means that all transfers of enemy property that have occurred since 1968 will be rendered void. It also prohibits authorities such as civil courts from hearing disputes on enemy property matters. But the most important question this ordinance and the bill raise has to do with the definition of an enemy of the state. The ordinance and the act, which were intended to bring a closure to and speed up the return and disposal of enemy property, now appear to have provisions. In fact, the new bill states that once vested with the custodian, the laws of succession no longer apply to these properties—they cannot be inherited. The act and ordinance allows the Indian state to decide the question of belonging and citizenship and interfere with the succession rights of its citizens. In the broadest sense, it adds permanency to the debate on citizenship, as it identifies the enemies of the state.

In the 2016 bill, an amendment related to the clause (b) of Section II of the 1968 act suggests that definition of “enemy subject” and “an enemy firm” be expanded. The amendment proposes to extend the ambits of these terms to include the enemy subject’s legal heirs and successors, as well as those subjects who have changed their nationality. By denying the courts the right to interfere, the state seems to be sending a strong message: that despite the years since Partition and 1965 and 1971 war with Pakistan, it is not ready to give up the legacy of the post-partition years. The ordinance and the bill appear to be acting as punitive measures. They also do not address the management and disposal of enemy property in Pakistan and the rights of non-Muslims who fled in 1947, 1965 and 1971.

The parallels between the enemy property act and the evacuee property act are worth considering. The Evacuee Property Act was passed in 1950. It said that a person whose place of residence was (any state in India), who departed on account of communal disturbances in 1947, may be declared to be an evacuee. It also included a person whom the state government or an authorised officer on behalf of the state government had declared to be an evacuee. The Evacuee Property Act barred the individual from selling or managing the property once it was declared to be evacuee—even though they might not have left for Pakistan. At the behest of the central government, the government in many states introduced a new category—“intending evacuee.” This classification was even more arbitrary. North India—especially Uttar Pradesh, Punjab, and Delhi—witnessed riots in this period, and attacks on Muslims were rampant. In many states, evacuees were defined as people who had left their usual place of habitation. When the evacuee act was extended to these places, in many cases, property of people who had left briefly or were hiding was seized. Only in some cases was the property returned. This issue with this act was also that, if an officer believed that a person had the intention of leaving for Pakistan, their property could be seized. The officer alone was the judge of whether a person wanted to leave or not, regardless of what the person wanted. However, parts of this act were repealed between 1953 and 1955 when it was understood that the migration issue was settled.

The enemy property act, on the other hand, was passed in an entirely different circumstance after the 1965 war. A person became an enemy of the state, according to the act, if the state believed that they sympathised with Pakistan, or if their father or mother left for Pakistan, which was considered a proof of where their loyalty lay. It sent a much stronger message—the wording of the act makes clear that a person has no chance of getting their property back.

A series of court judgments have raised concerns regarding the terms “evacuee” or “enemy.” In Allahuddin and others vs the Union of India, a 2009 case in the Allahabad High Court, the issue in question was that in 1957, the then-custodian of evacuee property declared the property of one Swaleha Begum, the mother of Allahuddin, as “evacuee property.” In 1984, the then-custodian of enemy property declared this same property “enemy.” In its judgment, the court strongly criticised this order of the custodian of enemy property, which unilaterally declared a property “enemy” 23 years after it was recognised as “evacuee.” Moreover, the court argued that the investing of the property with the custodian did not divest the owner of the rights, title and interest in it. This was also reflected in the High Court judgment on Sudhendu Nath Banerjee vs Bhupati Charan Chakravarthy, a 1976 case. In it, the court stated that “the enemy-owner of the property is not divested of all his interest and title to the property, but the Custodian for a limited purpose gets the property vested in him particularly relating to possession, management and control of the property.” Placing these acts outside the purview of the judiciary was a clever move, for the state has no desire to engage with the perpetual enemies of the Indian state.

In the eyes of the state, a person once declared the enemy of the state by the actions of their relatives or a distant family member continues to be an enemy. Through the act, the state seems to be stigmatising any association with a Pakistani national in the name of national interest. Take the case of India Tourism Development Corporation vs Anil Kumar Khanna in 2015. The petitioners alleged that the property Jiwan Roop Mansion, in Connaught Circus in Delhi, was let out to the Pakistan International Airways Corporation and after the 1965 war it was taken over by the custodian because it was deemed to be enemy property despite the owners being residents of India.

The problem with the law stemmed from the ambiguity regarding what the definition and scope of enemy property would be—whether, for instance, it would include a lease, and what the rights of its owners would be. With numerous claims filed by Muslims a few years after the act was passed and was implemented across the country (for example, the Raja of Mahmudabad petitioned the custodian to return his property in 1973), and the stigma of association with Pakistan, the issue assumed political relevance, especially in the context of post-Partition electoral politics where Muslims were an important minority. Nehru and his party were conscious about this, and this is one of the reasons that the evacuee property and later enemy property laws were passed. Attachment of properties—the practice of transferring a debtor’s property to the creditor—did not cease after Partition. Rather, it continued in tides in the 1960s and 1970s. In 1947, if a Muslim person from Saharanpur district in UP fled to Shamli district, 70 kilometres away, it was assumed they had left for Pakistan, even though the districts were in the same state. Like enemy property, the category of an intending evacuee was a means by which the state accorded permanency to the question of nationality and loyalty to the motherland.

The current law ignores the tenets of international justice established by the Brussels Declaration, which categorically states that private property cannot be confiscated. In a series of judgments passed by courts in India, such as in the 1975 Hamida Begum vs MK Rangchari, Custodian and others case, the court recognised that right of the custodian as the protector of the property and not as its owner, and ordered the custodian to follow the law while taking control over a property. The court specifically reprimanded the custodian for allowing the sale of the property belonging to Hamida Begum, and clearly stated that, during wartime, the government took over property of a enemy subject to preserve it, and not to take control and sell it as it pleased. This injustice ensures that heirs of alleged enemy subjects continue to bear the burden and stigma of their family’s association with Pakistan—something that thousands of Muslims experience on a daily basis. This is a stereotype that feeds into a certain narrative—that Muslims have no territorial loyalties but their loyalty is with a Muslim brotherhood. This idea discounts the numerous cultural, social and economic differences among Muslims in India.

The 2016 Bill, if passed, will affect thousands of Indian citizens, who will be recognised as permanent enemies of the state and hence, denied their rights. This law, being retrospective in nature, will seek to undo the years of work that has been done in the management of enemy properties.

An earlier version of this article incorrectly stated that President Pranab Mukherjee had assented to an amendment to the Enemy Property Act, 1968. This has been corrected to state that the president promulgated an ordinance amending the Enemy Property Act, 1968.