Partition of British India and the creation of Pakistan in 1947 have left behind many legacies. Even more than 60 years of that event there are many issues that remain unresolved. One such issue is the Enemy Property Act 1968.
Enemy property is a term coined by the Indian government in the wake of 1965 war with Pakistan to confiscate all those properties that were left behind by the Indian Muslims who migrated to Pakistan in 1947 or thereafter, thus denying the claims of the legal heirs to all such properties.
The government of India promulgated the Enemy Property Act in 1968 and created a separate department called “Custodian” to take control of more than 2000 properties scattered in the length and breadth of the country. The custodian was located in Bombay and Calcutta, where as majority of these properties existed in Uttar Pradesh and Bihar and other Muslim minority provinces from where migration to Pakistan took place.
In one stroke, the Enemy Property Act of 1968, made the legal heirs of such properties ‘Prince Paupers.’ They were left with two courses of action either to fight a legal battle or get out of such litigation. This created a way for fresh wave of Muslim migration from India, mostly to Europe and North in search of, Kapara and Makan (bread – cloth and shelter).
The Enemy Property Act of 1968 was a heaven sent opportunity for many. The encroached mostly Hindus swooped on such properties and occupied them paying pittance as rent to the “Custodian.” They started behaving like the proprietors and may never like to part off with the loot.
The Muslim heirs of such properties were at sixes and sevens. They now had to fight two legal battles, one with the ‘Custodian’ (government) to lay reclaim the property and second to evict the Hindu tents who had encroached and occupied their properties.
A long drawn legal battle was fought for almost four decades stretching from lower courts to the Supreme Court and in this, legal luminaries like Ramjethmalani, PC Chidambaram, Arun Jaitely appeared for the tents. Finally, in 2005, the Apex Court ruled in favor of the Muslim heirs of the property, granting them the legal rights to their ancestral property.
However, the NDA government under pressure from non Muslim quarters has intervened into this matter and wants to discard the Supreme Court’s orders. It wants to bring an ordinance bill into the Parliament to once gain control over such properties.
The NDA government had earlier tabled such ordinance bill in the lower house of Parliament but had to withdraw the same, in wake of the opposition from its own allies particularly by the RJD and Samajwdi party and also from the main opposition, the BJP.
Now the ordinance bill is amended and cleared by the Cabinet. It is ready to be reintroduced in the winter session of the Parliament but is unlikely to sail through due to its controversial nature.
It is likely that the ordinance bill will be referred to a Parliamentary standing committee of for a review and this means that the legal heirs of the Enemy property have to wait for some time more to get the custody of their ancestral property. Will they eventually get it or not get it is a matter of guess.
As we see this issue being shifted from the courts to the Parliament, it has opened up few fundamental questions that seek answers. The first pertains to India Pakistan relationship and the second relationship between the government and the Indian Muslims.
Let’s take up first question; are India and Pakistan still enemies? This has to be answered keeping in mind the sprit of Simla agreement 1972, Samjhauta Express was started in 1976 and Vajpaye visit to Lahore in 1998, rushing aids to flood victims to Pakistan in 2010. If the answer is candid NO, then the nomenclature “Enemy” to the property ordinance bill 2010, is a misnomer.
If the government is really committed to conduct the future dialogue with Pakistan in a friendly and positive framework, then it should consider dropping the tag “Enemy” with the property ordinance bill 2010. This would certainly be a confidence building measure in the future India- Pakistan dialogue.
The word is also offensive to hundreds of Indian Muslims beneficiaries who are being treated as offspring of “Enemy.” The definition of enemy excludes citizens of India and in this context the heir and successor cannot be termed as enemy and by virtue of this fact, the property of an Indian citizen can not be termed as enemy property.
In this context, it is interesting to note that while the enemy property belonging to Mohmmad Ali Jinnah in Mumbai is decided in favors of his legal heir Nusli Wadia, the same norm is not applied to the legal heirs of others of all such ancestral properties.
Does this mean, there is one set of norms for the descendants of the founder of Pakistan and else for other legal heirs of such property? If we stretch this argument further, does this mean there is a separate yardstick used for the Parsis of India and the Indian Muslims?
The ordinance bill 2010 gives a new meaning to the Enemy Property Act 1968. In one stroke, the entire legal battle that has been fought over this issue for decades has been brought to naught by the executive. It is a clear cut example of the executive action encroaching on the legislative power. The executive has annulled all the court orders and has assaulted the Indian judiciary but its surprising there is no murmur over this issue anywhere in the country.
The ordinance bill 2010 has a far reaching consequence on the Indian Muslims. It disallows legitimate legal process for rightful Indian heirs including the right to succession, adoption, hiba and other matters related to Muslim Personal Law and Indian Constitution.
This ordinance also creates a precedent that because of inexplicable reasons the rights of individuals and especially those of the minority community could be superseded without permitting them to have recourse of law. It denies legal access to several poor and hapless Muslims who cannot afford to engage a lawyer and who cannot produce the citizen document within 120 days
The gist of the matter is that the enemy property ordinance bill is brought in the Parliament due to pressure from the Hindu tents that have lost their case in the court of law. It reminds of Shah Bano case with a different plot.
Since the ordinance bill 2010 do not have political ramification as far as Muslim vote bank is concerned, the government has embarked on the policy to rob the ‘Peter to pay the Paul.’
However, such approach to governance reflects on the character of the Indian rulers, who tout to govern this country based on the principles of democracy, socialism and secularism, the three key words enshrined at the preamble of the constitution of India.
Syed Ali Mujtaba is a journalist based in Chennai. He can be contacted at firstname.lastname@example.org