First Published on: April 14, 2016
On January 7, 2016, the Modi Regime –NDA II – promulgated an Ordinance. The Enemy Property (Amendment and Validation) Ordinance. Within months, on March 10, 2016 the Home Minister, Rajnath Singh –who is increasingly been seen as the new hatchet man of this government –moved a Bill in the Lok Sabha. Typically, this Bill was steamrolled through, ignoring strongly voiced protests by the Opposition. The Bill to amend the Enemy Property Act and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, was passed by a voice vote even as the Opposition suggested that it would not stand the court’s scrutiny.
Source: Muslim Mirror; Cover Image: NDTV
In the Rajya Sabha, however, following the uproar across the board in the Opposition benches, the Enemy Property (Amendment and Validation) Bill, 2016 was referred to a Select Committee of the Rajya Sabha headed by Bhupender Yadav, M. P., Rajya Sabha. The Select Committee had originally solicited suggestions by April 12, 2016. Now this period has been extended.
Over the past few days, several persons have made detailed submissions before the Select Committee of the Rajya Sabha. The Select Committee has 23 members. Journalist and apologist for the Modi regime, MJ Akbar made submissions on behalf of the regime. Among many others, senior advocate of the Supreme Court, Chander Uday Singh made strong submissions against the Bill questioning not just its Constitutionality but arguing how it actually, blatantly transgressed India’s treaty obligations.
What is contained this intended Law?
This new version of the law, that is predicted to affect thousands of Indian citizens –Muslim and non-Muslim—essentially gives the sole right of disposal of property to the custodian, not legal heirs. Hence it concentrates, in a democracy unholy powers in the State.
The law, if stands the scrutiny of Courts at all, will also be applied retrospectively and debars courts from interfering in the decisions of the custodian of enemy properties, i.e., government, regarding the so-called “enemy” properties… In other words, it is a law that cannot be tested against the principles of natural justice, or violation of citizen’s rights in a Court. That makes it, in the words of critiques, “a jungle law.”
Unconstitutional
It has been argued that amendments will not in any way rectify the situation as the intent behind the proposed law, are patently male fide. If amendments were to be proposed then essentially they would be that the Enemy Property Act, 1968 should stand unchanged. The Ordinance, 2016 (now a Bill passed by the Lok Sabha) unlawfully and adversely affects the rights of lakhs of Indian citizens, both Muslims and non-Muslims, and contains provisions which are not only manifestly unconstitutional but are against the basic principles of natural justice.
The interpretation of the Enemy Property Act 1968 by the Supreme Court in 2005 (8 SCC 696) is consistent with earlier interpretations by various courts. Hence, the impression sought to be given, that something new was done by the Supreme Court in 2005, or that there has been some dramatic change in the judicial approach which necessitates a retrospective amendment, is completely misleading and incorrect. The amendments in the Ordinance cannot possibly stand the scrutiny of judicial review, particularly as they seeks to usurp rights vested prior to the 42nd/44th amendments to the Constitution and expropriate properties from Indian citizens from a time when there was a fundamental right to property.
Additionally, the Bill retrospectively nullifies all transfers and sales made between 1968 and 2015, irrespective of the fact that they were made in accordance with the laws at the relevant time. Furthermore, the Ordinance also amounts to a patently mala fide and colourable attempt to use the President’s legislative powers for the purposes of “declaring” that binding judgments of the High Courts and the Supreme Court shall retrospectively cease to apply and taking away the jurisdiction of any court to adjudicate on any matter.
Moreover, it is highly unclear what the urgency was to warrant the exercise of emergency legislative powers under Article 123 and indeed the pre-conditions for exercise of powers under this Article seem to be utterly lacking.
In essence, the government has essentially rewritten the law with retrospective effect through the said Ordinance and has now created an alarming situation in which Indian citizens are implicitly included under the definition of an “enemy”.
A comparison between the Original Act, the 2010 Ordinance and the 2016 Ordinance makes it evident that nothing in the current Bill should be retained. It reveals the various sections of the Original Act that have been completely rewritten as a result of which the intention of the Original act has been radically transformed albeit in a sinister manner. The measures in the new Ordinance and indeed current events reflect a dangerous and sinister plan to systematically suppress the freedoms enshrined in our Constitution and to render some Indian citizens as being less Indian or second-class nationals. The only conclusion therefore is that this Ordinance must either be withdrawn or rejected.
A Quick Comparison Between the Enemy Property Act, 1968 and the Enemy Property (Amendment and Validation) Bill No. 53 of 2016
Salient features of the Enemy Property Act, 1968
I. Under the provisions of the Act, the vesting is temporary (Refer to Sections 5, 6, 8 and 18 of the Act, 1968), which has been the admitted stand of the Central Government thus far before all Courts;
II. The Act honoured the rights of Indian citizens, legal heirs as well as transferees; (Refer to Sections 2 (b), 2(c), 6, 8 and 18 of the Act, 1968);
III. The Act did not take away powers of Courts to deal with the issues relating to enemy property as there was no bar to jurisdiction of Courts;
IV. Under the provision of the Act, 1968, the Custodian had no power to sell the enemy property except under special circumstances namely there was no money with him to pay taxes and/or he had no money for preserving the properties and/or for the maintenance of that individual (enemy) or his family in India; (Refer Sections 8 (1)of the Act, 1968);
V. The role of the Custodian was to preserve, manage and control the properties on behalf of the enemy; (Refer to Sections 8, 10 and 15 of the Act, 1968);
VI. Section 18 of the Act, 1968, refers to “Divesting of Enemy Property vesting in the Custodian”, which only further confirms the temporary nature of vesting. (Refer to Section 18 of the Act, 1968)
The Enemy Property Act, 1968, is a very balanced piece of legislation as it recognises that:
i. Enmity is not permanent;
ii. The right to property was a fundamental right in 1968 (which continued until 1979);
iii. Indian citizens should not be deprived of their rights including inheritance;
iv. Succession, which is automatic, cannot be stopped by bringing in any legislation, which is settled law in India and across the Globe;
iii. The principle of Natural Justice must be upheld;
iv. The Courts have power to adjudicate on matters related to enemy property.
WHEREAS, the Enemy Property (Amendment and Validation) Bill, 2016 has the following salient features:
I. The Bill includes Indian citizens under the definition of an “enemy” (refer to amended/inserted Sections 2 in the Bill, 2016);
II. The Bill bifurcated Indian Citizens into two categories – those who are the legal heirs of people who migrated stand to have no rights of succession and inheritance; (Refer to amended/inserted Sections 2, 2(b) (III) in the Bill, 2016);
III. The Bill stopped the succession of legal heirs in accordance with law; (Refer to amended/inserted Sections 5B, 22, 22A in the Bill, 2016);
IV. The Bill nullifies all judgments by any court; (Refer to amended/inserted Sections 8A, 10A, 18, 18B, 22A in the Bill, 2016);
V. The Bill also retrospectively nullifies every and any transfer made in accordance with law thereby depriving lakhs of bona fide transferees permanently and without any opportunity of hearing which is a breach of the principle of Natural Justice; (Refer to amended/inserted Sections 6, 8A, 10A, 22A in the Bill, 2016);
VI. The jurisdiction of the Civil Court is completely barred and without creating any forum competent to adjudicate the rights of the claimants; (Refer to amended/inserted Sections 18B, 22A in the Bill, 2016);
VII. The sole purpose of the Bill appears to be to grab the properties and sell them thereby aiming to deprive legal heirs/transferees permanently from exercising their rights;
(Refer to amended/inserted Sections 8A, 10A, 18, 22A in Bill, 2016);
VIII. The Bill retrospectively rewrites the original Act, for instance, the properties which were vested temporarily for the purposes of preservation, management and control are now sought to be vested permanently and with retrospectively effect in the Custodian with all rights, titles and interests. (Refer to amended/inserted Sections 2, 5, 18 in the Bill, 2016);
Bill Evokes Sharp Responses Against the Government
This move by the government has been widely and sharply criticised.
Kunal Prashan in India Today wrote:
“Is Mohammad Amir Mohammad Khan of Mahmudabad, a former lawmaker who chose to remain an Indian citizen even when his father emigrated to Pakistan in 1957, an 'enemy' of the state? Should former Indian cricket captain, the late Mansur Ali Khan Pataudi, his wife Sharmila Tagore and their children Saif, Saba and Soha be considered 'enemies'? It may sound bizarre, but if a new Bill tabled by the NDA government becomes an Act, these are just some of the issues it will throw up at a time when the country is engaged in a furious debate over nationalism, sedition and the rights accorded to minorities in secular India.
For, nearly 70 years after Partition and more than 50 years after the 1965 war with Pakistan, the government is trying to rewrite a law that seeks to tackle two sticky subjects at the same time-'enemy' and 'property'. An Ordinance, promulgated on January 7, and converted into the Enemy Property (Amendment & Validation) Bill 2016, which was passed by the Lok Sabha on March 9 despite issues raised by some leaders from the Congress, BJD, TMC, TRS, AIMIM and RSP, aims to take over any property that was owned by a person who emigrated to Pakistan-even if their legal heirs are Indians.
The Bill, which amends the original Enemy Property Act, 1968, with retrospective effect, will seemingly nullify a 2005 Supreme Court judgement which had specified that the takeover of such properties must not violate the rights of Indian citizens. On March 15, the Rajya Sabha asked for the Bill to be examined by a select committee.”
Reports indicate that, in Bhopal alone, more than 10,000 families are or would be adversely affected by the Bill, if it becomes a law. In other parts of the country thousands more, if not more, are also adversely affected. This number continues to increase as more properties are arbitrarily declared or are in the process of being declared “enemy property”. The statistics reveal that in 2013 there were 2,111 enemy properties, in 2014 there were 12,090 enemy properties and in 2015, there were 14,759 enemy properties.
The Indian Express quoted the reactions of Members of Parliament to the attitude of the government in hastily passing the Bill in the Lok Sabha
BJD’s Pinaki Mishra
“We keep debating in this House that the courts are exceeding their jurisdiction. But if we bring these kinds of legislation to the House, can we blame the courts for intervening? I say this with the greatest respect that whoever has drafted this Bill has sent out a standing invitation to the courts to interfere… and to stay the operation of this Bill…You cannot take away the jurisdiction of civil courts entirely. In 50 years, hundreds of transactions have taken place. You want to nullify all these transactions and you give them no recourse in law. Can this Parliament ever enact this kind of a nonsensical law? This is an invitation for a writ petition to be filed immediately under Article 226 of the Constitution and it is going to be stayed on day one.” Mishra raised objection to Section 18B of the Bill that says that no civil court or other authority shall entertain any suit or other proceeding in respect of any enemy property.
INC’s Shashi Tharoor
“The Bill will, it seems to me, adversely affect the rights of lakhs of Indian citizens and principally — let us call a spade a spade — of the Muslim community. After all, there are not too many Chinese properties at stake. It is essentially properties of those who went to Pakistan, and that tends to be from only one community, and this is, to my mind, not only borderline and unconstitutional — the court should determine that — but also against the basic principles of natural justice….The UPA Bill permits India-born legal heirs to claim such properties on condition that they establish their status to the satisfaction of the government whereas the NDA’s Bill bars all laws and customs governing succession to property from being applicable to so-called enemy property. In the UPA version, the courts have the power to adjudicate on the question of whether a property is an enemy property or not… the NDA, version says, no, the Executive will decide if a property is enemy property. The judiciary will have no say in the matter. The government, in effect, is promoting arbitrariness and interfering with the function of the judiciary.”
AIMIM’s Asaduddin Owaisi
“The Bill is ‘anti-minority’. You are creating two kinds of Indian citizens. This piece of legislation clearly says that anyone who belongs to the minority community will not have recourse to law. This is the message that you are sending if this august House passes this law, whereas the Constitution guarantees me right to equality before law. Your legislation is anti-minority.”