Is the Enemy Property Bill a masked attack on “citizens” of the country?

8 years ago

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The BJP-led NDA government is eager to pass a bill in the parliament that would potentially dispossess Indians who have blood-relatives in nations that are branded ‘enemies’ of the State.

The Centre has moved to pass the Enemy Property Bill (an extension of the controversial Enemy Property Act, 1968) in the parliament. Though the Lok Sabha passed the bill last week, it is being held at the Rajya Sabha, where the Rajya Sabha House Committee will scrutinize it.

If the said Bill becomes a law, citizens who have kin in countries that are construed as India’s ‘enemies’ would be categorized as enemies of the State.

The Enemy Property Act passed by the Indian parliament in 1968 constituted a legal framework that entitled the Custodian (the government) to seize the mobile and immobile possessions of an Indian national who fled to Pakistan during the Indo-Pakistan War in 1965.

Forty years after that Bill got the nod, the Supreme Court of India reaffirmed the right of Indian nationals to inherit the property of their ancestors who fled the country during the war.

In a desperate bid to ‘preserve’ the confiscated properties of the ‘enemy’ with the ‘Custodian’ against judicial contentions and later verdicts, the government now seeks to amend the Enemy Property Act, 1968 and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. It will replace the Enemy Property (Amendment and Validation) Ordinance, 2016. The proposed Bill also seeks to bar courts and other authorities to hold trials against the ‘Custodian’ covered under the Act.

“And so, the wounds of the wretched Partition and the interminable conflict it inaugurated are yet to be healed. The amendment passed last week by the Lok Sabha, if approved by the Rajya Sabha, would deprive Indian citizens their right to inherit properties and to seek justice through the judicial process.

“It would remove the recourse of Indians to courts of law and usurp the powers of the judiciary. Most importantly, the law would leave with consequences that are antithetical to the basics of Indian democracy and governance,” observed MP and former UN diplomat Shashi Tharoor in an essay in The Quint.

The amendments sought in the Bill seize the integrity of the Muslims in the country. The Bill may be considered a masked attack on the country’s Muslim population who could be labelled ‘enemies’ of the State for having blood relatives in Pakistan once the bill is passed. It is important to remember here that atrocities were committed under the veil of laws like Armed Forces Special Powers Act (AFSPA) and Unlawful Activities Prevention Act (UAPA); these laws could be misused if Rajya Sabha passes the Bill.

“This is, simply put, not only borderline unconstitutional—the Supreme Court should determine that—but also against the basic principles of natural justice that grant all citizens equality in the eyes of the law,” added Tharoor.

Amendments sought in the bill

Definition of Enemy

In the Act passed in 1968, ‘enemy’ is as a country (and its citizens) that carry out external aggression against India (Pakistan and China in that context). The Bill proposed by the central government seeks to expand this definition to include: (i) legal heirs of enemies even if they are citizens of India or of another country which is not an enemy, (ii) nationals of an enemy country who subsequently changed their nationality to that of another country, etc.

Vesting of property

The Bill seeks to amend the Act to clarify that even in the following cases, these properties will continue to vest with the Custodian: (i) the enemy’s death, (ii) if the legal heir is an Indian, (iii) enemy changes his nationality to that of another country. The Bill further provides that vesting of enemy property with the Custodian will mean that all rights, titles and interests in the property will vest with the Custodian. No laws and customs governing succession will be applicable to these properties.

Divestment

The 1968 Act provided that the central government may order for an enemy property to be divested from the Custodian and returned to the owner or other person. The Bill replaces this provision, and allows enemy property to be returned to the owner only if an aggrieved person applies to Custodian, and the property is found not to be an enemy property.

Power of sale:

The 1968 Act permitted sale of enemy property by the Custodian only if it was in the interest of preserving the property, or to secure maintenance of the enemy or his family in India. The Bill seeks to expand this power, and allow the Custodian to sell or dispose of enemy property. The Custodian may do this within a time period specified by the central government, irrespective of any court judgement to the contrary.

Transfers by enemies:

The 1968 Act prohibited transfer of enemy property by an enemy if: (i) it was against public interest, or (ii) to evade vesting of property in the Custodian. The Bill seeks to remove this provision, and prohibits all transfers by enemies. Further, it renders transfers that had taken place before or after the commencement of the 1968 Act as void.

Bar on jurisdiction:

The Bill seeks to bar civil courts and other authorities from entertaining cases against enemy properties, or against actions of the central government or the Custodian under the Act.

Powers of the Custodian:

The 1968 Act authorized the Custodian to take measures to preserve enemy property, and maintain the enemy and his family if they are in India, from the income derived from the property. The Bill seeks to remove the duty to maintain the enemy and his family. Further, for the aforementioned purposes, the Act permitted the Custodian to carry out some measures (including selling, mortgaging or leasing enemy property). The Bill seeks to add to the list of permissible measures: (i) fixing and collecting rent, license fee, etc. from enemy property, and (ii) evicting unauthorized occupants and removing unauthorized construction from such properties. The Public Premises Act, 1971, regulates removal of unauthorized occupants and construction from public premises. The Bill seeks to amend this Act to include enemy properties within the definition of public premises.

A section of this article is sourced from here