Nupur J Sharma
The Congress and its allies have been opposing amendments proposed to the Enemy Property Act arguing that it hurts Indian citizens.
The opposition should ask themselves why they are willing to sacrifice national security at the altar of electoral politics.
It is said that laws are the cornerstone of a healthy democracy. But often, the very representatives of our democracy, who are entrusted with the responsibility of upholding the law in the interest of the nation, have not only abused the law but ignored essential steps towards the protection of its sovereignty. The Enemy Property Act, 1968, is one such piece of legislation that has been sidelined for decades because of petty electoral politics, until recently.
On 22 December 2016, the President of India re-promulgated the Enemy Property Act (Amendment and Validation) Ordinance for the fifth time. The Narendra Modi government has faced a united opposition against the amendments proposed as well as its decision to re-promulgate the ordinance. The bill passed in the Lok Sabha was repeatedly met with strong opposition in the Rajya Sabha, and if we take a cue from history and revisit the record of the Congress and its allies with regards to this act, it becomes obvious that this bill's passage will be a tall task. A public interest litigation (PIL) was also filed by a Congress Member of Parliament (MP) in Rajya Sabha, Hussain Dalwai, but the Supreme Court refused to entertain the PIL and observed that the matter of enemy property must be addressed by the state.
The Enemy Property Act, 1968, was enacted by the Government of India after the Chinese aggression of 1962 and India's war with Pakistan in 1965. It ensured that the government was the custodian of "enemy property". Per this law, the government had the right to acquire the property of those people who, after the respective wars, had migrated to China or Pakistan (later included Bangladesh).
The number of "enemy properties" had increased exponentially after the war with China and two successive wars with Pakistan. It is said that there are over 16,000 enemy properties, their worth ranging upward of Rs 1.1 lakh crore. But, due to the staggering mismanagement and sheer unwillingness of lawmakers to amend and enact the law to its full potential, the properties fell into the hands of dubious elements, and in some cases to the heirs of the very people who had abandoned India and taken up citizenship of enemy countries at the time of conflict.
Pakistan’s Ordinance No VII of 1947 prevented evacuees from selling or exchanging property. At the time, Pakistan had brazenly asked India to pass a similar law (when the Government of India protested). Pakistan then promulgated the Evacuee Property Ordinance (1949) in which case an individual, even if they were a citizen of Pakistan, who had a distant relative that had migrated to India, would have their property be tagged as "evacuee property".
Since then, China, Pakistan and Bangladesh have all managed to dispose the enemy property within their borders.
To understand the gravity of this act, let’s visit some noted cases that perhaps opened the floodgates.
In one such case, kin of Liaquat Ali Khan (first Pakistan prime minister) claimed his right over half of Muzaffarnagar city (currently under investigation). In another, a person claimed nearly one-third of Agra, including the Taj Mahal. But perhaps the most significant of such cases was that of the property of the Raja of Mahmudabad. He was an Indian citizen who had migrated to Pakistan soon after the partition and beceme a Pakistani citizen. He was the treasurer of the Muslim League, a close aid of Pakistan’s first governor-general Muhammad Ali Jinnah and also said to be a close to the Nehru family. The Supreme Court ruled in favour of his son, Mohammad Amir Mohammad Khan (elected to the state assembly in 1985 and 1989 on a Congress ticket before giving up active politics), and conceded enemy property worth over Rs 30,000 crore.
It is with the case of Raja Mahmudabad that the tale of Congress' treachery begins. The counsel representing the kin was the then minority affairs minister Salman Khurshid. After the case, the United Progressive Alliance government was forced to promulgate an ordinance that would essentially overturn the Supreme Court decision. Khurshid led a cross-party delegation and convinced the then prime minister Manmohan Singh to not only allow the ordinance to lapse but also to not table the bill (which was extremely diluted) in Parliament.
On 29 August 2010, Mohammed Adeeb, MP, wrote to the Union finance minister Pranab Mukherjee, and reminded him that around 41 MPs had met the prime minister on the day the Enemy Property Bill was set to be tabled. “He was very kind and had assured the MPs that the bill would not come through and indeed the bill was not tabled then. He had also assured us that the ordinance would be allowed to lapse.”
The ordinance lapsed on 6 September 2010. The Enemy Property (Amendment and Validation) Second Bill 2010 was tabled in the winter session of 2010, but the bill didn't even come up for discussion due to adjournment.
This delay was probably for the best since this bill, if passed, contained certain dubious clauses that would result in properties worth thousands of crores being seized by the Government of India to be returned to the claimants. The amendment marked 2 July 2010 as the cutoff date, which would mean that any property returned to a lawful heir before said date would stay with that person.
Notably, perhaps the biggest beneficiary of this amendment would be the kin of Mahmudabad, represented by Khurshid. One of the amendments also stated that enemy property could only be divested to the owner or his lawful heir. The greatest treachery of it all was how the 120-day period to prove Indian citizenship, provided in the ordinance, was conspicuously missing in the bill tabled during the winter session, thereby leaving India perennially vulnerable to anti-national elements staking claim to Indian property, which should rightfully belong to the state.
While doing the research for this article, this writer was faced with many questions regarding not only the significance of this act but also the dangerous premise the Congress functioned on and its implications for the country. The basis on which Khurshid, and subsequently prime minister Singh, railroaded the amendments to this act was that it was "anti-Muslim" and would offend the sensibilities of Indian Muslims. This writer can recall that the Indian Muslims who Congress spoke about proudly proclaim that they had rejected Jinnah’s two-nation theory – they rejected the premise that religion should be the basis for nationality. Why then would the Congress assume that Indian Muslims would be offended if the government acted against Pakistani nationals – who chose to endorse the two-nation theory – holding property in India, the nation they rejected?
It is essential to note that enemy properties are those which were (and should be) seized by the government when the owner displayed disloyalty at a time of national crisis, helped aggressor nations and/or opted for the nationality of such aggressors. By its very definition, it is evident that the law was meant to protect the sovereignty of the nation regardless of the religion of the "enemy".
In this context, this writer would like to clarify the reasoning with a hypothesis. Say, for instance, a terrorist in India, in collaboration with the Inter-Services Intelligence or any organisation that works against India's sovereignty, amasses wealth by indulging in anti-India activity. He then escapes to Pakistan and undertakes Pakistani citizenship. Should he or his kin have a claim to the wealth amassed by compromising India's security or national integrity? Laws are meant to act as a deterrent. If a separatist, terrorist or any person compromising national security, and having fled to an enemy nation, was assured legally that his fortunes from such activity would continue to vest with his kin, thereby securing their future, would the law of the land have served its basic purpose of acting as a deterrent in every capacity? In fact, the absence of this law would almost mean that the state is rewarding treason. Why our political class was determined to avoid this vital act betrays an absence of logic.
The Modi government has, thankfully, taken the important step towards correcting this situation.
1. The definition of ‘enemy’ (that was left unchanged in the 2010 ordinance) has been amended to include:
(i) Legal heirs of enemies even if they are citizens of India or of another country which is not an enemy;
(ii) Enemies and enemy firms which have changed their nationality; and
(iii) Enemy firms which have partners who are citizens of India or another country which is not an enemy.
This amendment has come under severe criticism by the perfumed elite. The reasoning offered is that this change ends up treating Indian citizens as enemies. This sadly betrays a lack of a basic sense of the law and is perhaps an expression of a motivated opinion.
If one reads the amendment closely, it is evident that no Indian citizen can be declared an enemy by the state for the purpose of this law. The law is only meant to ensure that the persons or entities already declared enemies due to their treachery at the time of national crisis pay their due to the state. The Report of Select Committee on the Enemy Property (Amendment and Validation) Bill, 2016, clearly states that the only purpose of including the kin of the enemy (even if an Indian citizen) in the definition of "enemy" is to "...clarify that the law of succession shall not apply to the legal heir or the successor of the enemy".
The subsequent criticism (however misplaced) is that denying Indian citizens their right to their family property is unfair to the citizen. What these critics are failing to account for is that this law was and is in force to ensure that the men and women who have committed treason and moved to enemy nations are not allowed to stake a claim to property (movable and immovable) left behind within the borders of our country. That it inconveniences their kin or any related persons is inconsequential and not to be considered by the law of the land. There cannot be Pakistani, Chinese or Bangladeshi nationals staking a claim to property in India and putting, consequently, our sovereignty under threat. In no law can the punishment to an accused be pardoned simply to indemnify persons related to the accused. Punitive measures against the guilty is a basic tenet of any law, and that tenet cannot be altered to cater to the superior sense of appeasement that some people might feel compelled to uphold. The punitive measures in this case is against the persons who chose to abandon India and take up the citizenship of enemy nations responsible for external aggression against the country and its citizens. Those measures cannot be left out simply because they might not sit well with the relatives of the accused.
2. The definition of enemy property (that was left unchanged in the 2010 ordinance) has been amended to include:
Property held by an enemy before his death even if he dies outside India; clarifies that property of an enemy will continue to be considered enemy property even after his death, or winding up of business, or change of nationality, etc.; also, enemy property includes all rights, titles and benefits arising out of the property
3. The Enemy Property Act, 1968, has been amended to include a provision which states that laws and customs governing succession to property will not apply to enemy properties.
4. The original Enemy Property Act states that the custodian may take measures to preserve enemy property and may maintain enemies or their families in India from the income derived from the property. The new amendment removes the duty to maintain the enemy or his family in India.
5. Perhaps one of the most significant amendments to the act is,
"The Custodian has the power to dispose or sell enemy properties; it may do so within a time period specified by the central government irrespective of any court judgments to the contrary; in this regard, the Custodian may take the help of police; the sale proceeds will be deposited in the Consolidated Fund of India.”
The original Enemy Property Act, 1968, said that the custodian has the power to sell enemy property only if it is required in the interest of:
(i) Preserving the property, or
(ii) Maintaining the enemy or his family
The tectonic shift from divesting the property apologetically to benefit either the preservation of the property or for maintenance of the enemy's kin, to asserting India's rightful ownership of such property is significant.
6. The 1968 Act stated that the central government could order the enemy property to be divested and returned to the owner and also make rules regarding how the property should be returned. The current amendment states that the property can only be returned if the property is ascertained to not be enemy property at all or the aggrieved party is the government itself. It also removed the right of the government to arbitrarily make rules towards the return of enemy property.
7. Another significant amendment is that the government has prohibited all transfers of enemy property by the designated enemy.
Some of the amendments made by the Modi government are the same as those included in the 2010 ordinance promulgated by the UPA government (that was eventually allowed to lapse), while others, which were excluded by the ordinance, are more stringent.
However, the Modi government still certainly deserves criticism in one aspect of the bill. While they have ensured that property of those who have essentially committed treason come back to the state, they have made no provision to declare such persons as enemies who, while holding an Indian passport, collude with enemy nations and aid them in their external aggression against India. Kashmiri separatists and Hurriyat leaders make for apt examples. One wonders what stops the government from inserting a provision that gives it the right to not only declare such persons as enemies of the state but also declare their properties as "enemy property". After all, the very definition of "enemy" in this regard includes people who commit "external aggression against India" (The Defence of India Act, 1971, Section 2a).
It is a travesty of justice that such traitors are allowed to amass wealth by means of aiding aggression against India and that they hold an Indian passport indemnifies these elements from the provisions of this act. The government should have sent out a tough message to these persons who live in the lap of luxury, which has been bought by trading the spilt blood of our men and women and compromising repeatedly the nation that allows them and their kin to build their mansions over the dead bodies of citizens. In this regard, the Modi government has missed the mark and squandered a historic opportunity.
In any case, the amendments have been opposed tooth and nail by four political parties that sit in the opposition today, namely the Congress, Janata Dal (United), Communist Party of India and Samajwadi Party, on the same premise of "hurting Indian citizens". Perhaps the opposition would do well to ask themselves why they are willing to sacrifice national security at the altar of electoral politics. Why do they degrade Indian Muslims by assuming the community would be sympathetic towards their crusade against national interest? Why do they insist that the people offended by the government protecting the nation’s integrity should wield any influence on policy and legislative decisions?
However, the greatest disservice done by our political class is to read and translate every issue as a communal one. Laws are passed with a view to protect the country and its citizens – without religion as a consideration. This law would have been no different if Nepal or some such country had committed external aggression against India and her citizens.
Mark Twain once said, "I am quite sure that often, very often, in matters concerning religion and politics a man's reasoning powers are not above the monkey's". I hope the politicians who are using religion as a tool of mindless opposition realise that they have vowed to uphold the nation’s integrity. Unfortunately, they are a part of the problem and not the solution.
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