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| @ | March 24,2019

IN January 2019, the 19-bigha property owned by Afghan royals in the heart of Doon city, was declared as ‘enemy property.’ A board was put at the site saying, “This land is mixed enemy property. Any kind of usurping/intervention in this property is punishable by law.” What is noteworthy is that the term “mixed enemy” finds no mention in the original Enemy Property Act, the Amendment bill, or the Defence of India Act and Rules. The Pataudi family’s royal properties in Bhopal also have come under a cloud following the recent amendments in the Enemy Property Act, 1968.

 

Background of the Act

 

After wars with China and Pakistan, the Indian government designated certain properties belonging to citizens of these nations as “enemy properties.” When the war with China broke out in 1962, the government issued an Enemy Property Registration Order. The order was replaced by the Enemy Property Act in 1968. In 2010, the UPA government promulgated an ordinance, rewriting the 1968 Act retrospectively. The NDA promulgated the ordinance four more times before the amendment was finally passed in 2017.

 

 

On March 14, 2017, Lok Sabha passed the Enemy Property (Amendment and Validation) Bill, 2016, (referred to as ‘the Act’) which retrospectively wrote the powers vested with the office of the Custodian as well as expanded the definition of “enemy” under the Act. 

The original Act expressly mentioned under Section 2(b) that ‘enemy’does not include a citizen of India”. However, the latest Act under Sec 2(1) (III) states, “…the expression ‘does not include citizen of India’ shall exclude…those citizens of India, who are or have been legal heir and successor of an ‘enemy’.”

 

A new category of Indian citizens

 

This zeroes down to having a new category of Indian citizens – people who are Indians by birth, live here, hold Indian passports, participate in Indian democratic processes but are enemies when it comes to the actions of their forefathers.

 

 

In 2005, the Supreme Court in Union of India & Anr v. Raja Mohammed Amir Mohammad Khan had said, “After the death of his father, respondent who is a citizen of India inherited the property being the sole heir and successor of his father. Can he be termed as enemy or enemy subject… can the property of an Indian citizen be termed as enemy property… Answer is emphatic ‘No’.” The Act is thereby a clear negation of this judgment.

 

Citizenship and Article 14

 

Article 14 encompasses within itself numerous principles. It includes the rule of law, both equality before law and equal protection of laws, reasonable classification, etc. The scope of equality was further widened by the Apex Court in E.P. Royappa v. State of Tamil Nadu, where arbitrary actions by the state were held to be contrary to Article 14, thereby making the actions of the government more accountable. However, this cardinal principle has been grossly neglected by parliament.

 

 

Firstly, the Act bifurcates Indian citizens in two sets, thereby inflicting considerable injury to the principle of equality which asks for a reasonable classification. By no means can any Indian citizen be an ‘enemy’.  However, Section 2 and Explanation 1 of section 2 of the amendment has a contrary effect. Their ancestors, who left the country can be termed so, but not a citizen of India who has lived in India all their life.  It deprives a certain section of legal heirs and Indian citizens from inheriting the properties which is theirs by the general law of the land. Different laws on the same subject cannot be applied on Indian citizens.

 

Retrospectivity and Article 14

 

Secondly, the Apex court in Bishamber Dayal Chandra v. State of Uttar Pradesh said though the right to property is not a fundamental right it is a constitutional right. The Act being retrospective, arbitrarily takes away vested rights in not one but lakhs of people, as the amendment voids the legal sales undertaken of the enemy properties since 1968 by the virtue of section 6(2). This means that a person who may have bought an enemy property in good faith when such sale and purchase was legal, now stands to lose the property. Hence, it fails to meet the standards of Article 14.

 

 

It has been repeatedly observed by the Apex Court that retrospective amendment that take away a vested right is arbitrary and unreasonable. In State of Gujarat v. Raman Lal Keshav Lal Soni the court said, “A legislature cannot legislate today with reference to a situation that obtained 20 years ago and ignore the march of events and the constitutional rights accrued in the course of the 20 years. That would be most arbitrary, unreasonable and a negation of history… Today’s equal cannot be made unequal by saying that they were unequal 20 years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way.”

 

No judicial recourse

 

Thirdly, the Act not only gives the executive unbridled and arbitrary powers under sections 7, 8A, 10A, thereby deepening the violation of Article 14, but also considerably narrows the judicial recourse for the citizens. There is no mention of any tribunal for the redressal of grievances under this Act.

This Act tramples upon the celebrated principle of rule of law, which has been read down in Article 14 and has also been held as part of the basic structure of the Indian Constitution in the case of Indira Gandhi v. Raj Narain.

Montesquieu said, “… there is no liberty, if the power of judgment be not separated from the legislative and executive powers…Were it joined with the executive power, the judge might behave with the violence of an oppressor. Miserable indeed would be the case, where the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, of enacting laws, that of executing the public resolutions and that of judging the crimes or differences of individuals.”  A society governed by the rule of law always demands the separation of the judiciary from the executive. Article 50 of the Indian constitution states, The State shall take steps to separate the judiciary from the executive in the public services of the State.” In Kesavananda Bharti the court held separation of power as part of the basic structure.

 

 

The impugned amendment not only provides the custodian with excessive judicial powers but also restricts the recourse to judiciary under Section 18B. It bars the judiciary from entertaining “any action taken by the Central Govt. or the Custodian…” So, the amendment basically says that the executive will decide whether the property is an enemy property or not, usurping the powers of the judiciary by saying they cannot rule on these matters. The government has turned a blind eye to the letter and spirit of Article 50 of the constitution.

 

The Government’s View: “We should not enrich the enemy”

 

The government’s view was made clear in the exchanges that took place in parliament at the time of introducing the law. Finance Minister, Arun Jaitley claimed that the main aim of the Act is, “Enemy must not hold the property in my territory. We should not enrich the enemy. If this principle is accepted, then a person who is a citizen of Pakistan has only to send one person of his family to India to acquire Indian citizenship and claim the properties lost. Also, the government’s view is based on the fact that The Tashkent Declaration, 1966, included a clause, which said that India and Pakistan would discuss the return of the property and assets taken over by either side in connection with the conflict. However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself. Therefore, there is no legal or moral foundation for the government to do otherwise.

 

 

The Act, no doubt, brings an equaliser which may satisfy a section of the population provoked and pumped up against Pakistan, but while wresting all arbitrary and unbridled powers in the custodian, it deepens the risk of violation of Article 14 and doubles the misery by considerably narrowing down the judicial recourse for the citizens.

Labelling a property as “mixed enemy property” which finds no mention or definition in any of the legislations should not be left unacknowledged. Tagging a property as ‘enemy property’ is a fraud on the people of this country.

Infringement of rights of its subjects irrespective of the size of population tantamount to failure of democracy and justice.

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