Politics of the 'Enemy Property' Act
Zahid Khan
Can property inherited by Indian citizens from their ancestors or relatives who migrated to Pakistan at the time of Partition be designated as 'Enemy Property'? The Supreme Court said in 2005 that the "Answer is (an) emphatic No." The erstwhile Raja of Mahmudabad had opted to go to Pakistan at the time of Partition; his son Mohammad Amir Mohammad Khan who remained in India waged a 32-year legal battle to claim the properties worth crores of rupees inherited from his father, which the Government had confiscated under the Enemy Property Act 1968. This Act, enacted in the aftermath of the 1965 war, affects not just the property of the "Raja" Mahmudabad, but the 2,168 properties of ordinary Muslims in many states, inherited from those who renounced their Indian citizenship and migrated to Pakistan at the time of Partition. In 2005, the Supreme Court restored this property to Amir Mohammad Khan and settled the question by emphatically stating that the Enemy Property Act 1968 could not be said to apply to properties of Indian citizens: "The definition of enemy (under the Act – ed/-)... excludes citizens of India as an enemy.... Under the circumstances, the respondent, who was born in India and his Indian citizenship not being in question cannot by any stretch of imagination be held to be enemy or enemy subject ... Similarly...the property belonging to an Indian could not be termed an enemy property.”
Naturally, after this landmark verdict in the Mahmudabad case, others began seeking restoration of similar properties. Alarmingly, the UPA Government recently made a move to undermine and overrule the 2005 Supreme Court verdict, through an ordinance promulgated on July 2 2010 which stated that even courts were not entitled to alter the status of any property that was once declared 'enemy property’. Note that in Indian democracy, an ordinance is an executive tool to be used only in urgent situations when Parliament is not in session. Why, in this case, did the UPA Government suddenly resort to an ordinance when the monsoon session of Parliament was upcoming, and that too, not to address any urgent matter but in fact to overturn a matter settled decisively several years ago by the apex court?
In August, the Government then tabled the Enemy Property (Amendment and Validation) Bill 2010 in Parliament to block all legal Indian heirs from going to court to reclaim properties that once belonged to those who left for Pakistan during Partition. However, in the wake of objections by Muslim MPs, the Government was forced to amend the Bill, permitting Indian-born legal heirs to claim such properties, on condition that they establish their status to the satisfaction of the government. Even the amended Bill, however, amounts to a restriction of the rights of Indian citizens – most of them Muslims. In the first place, the Bill stipulates that lower courts cannot be approached, and also that the Bill will have retrospective effect, which means that those who have won legal battles in Court would have to approach Court all over again. In particular, these changes will affect the rights of poor Muslims, who will be forced to bear the expense of legal battles in higher Courts, and, even if they have won such battles in the past, repeat the harassment, humiliation and expense of having to 'prove' their Indian citizenship yet again. Following fresh protests against the Bill, the Government eventually deferred the Bill to the next session of Parliament.
Predictably, the UPA Government's move to open the "Enemy Property" issue (long-settled by the apex Court) put wind in the sails of the BJP, which is demanding that the Bill remain on the lines of the July 2 ordnance, barring Indian Muslims from claiming inheriting any properties left behind by those who migrated to Pakistan after Partition. A law that identifies Pakistan as an ‘enemy nation’ in perpetuity and stigmatises Indian Muslims’ property as ‘enemy property,’ allowing endless scope for harassment of Muslims to prove their citizenship and patriotism – what better fodder could the BJP ask for? And it has been provided to them on a platter by the Congress!
It is worth recalling that international conventions do not allow for any country to be designated an ‘enemy’ country in peacetime, and regulations pertaining to ‘enemy property’ pertain only to times of actual war.
This is not the first time in independent India that Muslims have paid for opting to remain in the land of their birth. Soon after independence, the Evacuee Property Law which was in force from 1947-1956, was used to deprive Muslims of their businesses, shops, houses, land, inheritance and assets on a large scale, and sowed the seeds of alienation of Indian Muslims. With the deferment of the Enemy Property (Amendment and Validation) Bill 2010, Indian Muslims have now got a temporary reprieve. If this Bill is eventually passed, it is bound to deepen the alienation of Muslims. BJP’s very politics rests on communalism and deliberate alienation of minorities – but this time the ‘Enemy Property’ issue has exposed the hollowness of Congress’ claims of being a defender of ‘secularism’ and minorities’ rights and dignity.