The Enemy Property Amendment, 2017

Picture Courtesy: http://images.indianexpress.com/2016/03/raja-property1.jpg

This article was written by Tanmayi Sharma, a student of Jindal Global Law School.

On 14^th March 2017, the Indian Parliament finally passed the Enemy Property (Amendment and Validation) Act [“the Amendment”],[1] which amended the Enemy Property Act, 1968 [ “the Act”].[2] Parliament had previously failed to pass the controversial Bill, which had been re-promulgated five times by President Pranab Mukherjee despite fierce opposition.[3] By means of this article, I seek to examine the amendment to the Enemy Property Act, 1968, and ascertain whether it has more adverse effects than benefits.

The Enemy Property Act was enacted following the Indo-China and Indo-Pakistan conflicts of 1962 and 1965 respectively, as well as Pakistan’s violation of the Tashkent Declaration of 1966.[4] The Act stated that all property that belonged to Chinese or Pakistani Nationals who migrated from India would be considered ‘enemy property’, and would vest with the ‘Custodian of Enemy Property’, a department of the government.[5] The amendments to the Act included in the Bill are in response to Union of India v. Raja M.A.M Khan,[6] where the Supreme Court held that property which devolves in succession to an Indian citizen, would no longer be considered ‘enemy property’. Given that this Amendment explicitly prohibits the laws of succession from applying to enemy property, it is evident that it was passed to circumvent the will of the Court. [7]

There are several problems with the Amendment, beginning with the definition of ‘enemy’. The Amendment has widened the ambit of the term “enemy” to include any heirs or legal representatives of the ‘enemy’ nationals. The consequence of such widening is that effectively, the child pays for the sins of the parent, as heirs are branded ‘enemies’ and are denied their right to inherit property from the ‘enemy’. I argue that the Amendment is antithetical to the spirit of the Indian Constitution. This is because as result of the Amendment, Indian citizens might be discriminated against, simply because they were born to persons who belonged to a nation that India had been at war with, at some point in the past. While the original act recognised that enmity was not a permanent condition, the Amendment seems to perpetuate xenophobia in order to retain the property of these “enemies”.

The Amendment also serves as a bar to judicial remedy, as it prohibits Civil Courts from hearing any disputes regarding enemy property.[8] By extinguishing the right of Judicial Review, the Act ensures that there will be no Judicial interference. This abrogates the natural justice principle of audi alteram partum, that is, the right to be heard.[9] Further, the Amendment does not provide any alternative judicial remedy, thereby making it inconsistent with the golden triangle of reasonableness under Articles 14, 19 and 21 of the Indian Constitution.[10]

Article 14 of the Indian Constitution guarantees equality before the law, and freedom from arbitrariness and unreasonable classification.[11] By discriminating against Indian citizens based on the nationality of their parents, the Act violates Article 14. The Amendment makes any transfer of property from the enemy to any other person void, applying retrospectively to all property transfers that have occurred before or after 1968.[12] This is unjust not only towards individuals who inherited the property, but also towards any party that may have contracted with the so-called ‘enemy’. It may be argued that such a provision, in addition to being discriminatory, is arbitrary and hence, violates Article 14 of the Indian Constitution. However, a counter to this argument could be that all the legal heirs or successors of the enemy are treated as a single class. It can be argued that the amendment bears a reasonable nexus with the object sought to be achieved, which is to continue vesting the enemy property in the Custodian of Enemy Property; the department that manages Enemy Property.

The Amendment does not target a large number of people or a recognized minority. It is only a small section of people who will be deprived of their right to property and will have no recourse to a court of Law. However, while majoritarian rule is common in a democracy, that the rights of a miniscule minority are still matters of paramount importance. The Amendment is in violation of the principles of the Constitution and Natural Justice.

There is also an indication that properties may have been mislabelled as “Enemy” Properties.  The number of properties identified as ‘enemy property’ has sharply risen from the initially reported 2,100, to 16,000.[13] This rise casts serious doubts about the identification process, while the denial of recourse to courts raises questions about the actions of the Government and the potential for abuse of this legislation. While the number of people affected still remains a small amount compared to the population of India, the steady increase in the labelling of property as ‘enemy’, as the identification process continues hints at a dangerous trend.

Despite the injustice meted out due to the Amendment, it does seem to have some economic benefits. The Act states that “enemy property” would include both movable and immovable property. The Amendment now empowers the Custodian to sell such property, as a result of which, the Indian government stands to gain over one lakh crore rupees.[14] This influx of capital could go a long way towards improving Welfare schemes.

However, in any such situation, the costs need to be balanced against the gain. The promise of helping some cannot justify the abrogation of the rights of others. In addition, the cynical eye would be wary of this money lining the pockets of the corrupt, before it is ever used towards something useful. The economic benefit to the state also raises suspicions about the ever-increasing number of properties labelled as ‘enemy property’, and the reason for this increase.

The opposition have labelled the Amendment as “anti-minority”.[15] While the Act looks at enemy property without the prism of religion or caste, it cannot be denied that there is some merit to the argument. This is because, in reality, the Act affects the rights of those citizens that overwhelmingly belong the Muslim community, owing to the fact that the number of Pakistani properties at stake far outweighs the number of Chinese properties. Other forms of discrimination exist in India. For a long time, communities from Mizoram, Arunachal Pradesh, Manipur and Meghalaya have often been targeted for their ethnicity. They have been plagued by violence, bigotry, oppression, and discrimination. Their loyalties and nationalities have continually been questioned because of the way they look, and this Amendment might lead to more animosity and discrimination. There exists a huge potential for abuse, as well as chances of violence being perpetrated against those people that the State chooses to brand as the ‘enemy’, simply in order to gain their property.

The rights relating to property have always been a breeding ground for disputes between the Legislature and the Judiciary. The situation regarding the Enemy Property Amendment is reminiscent of the two-decade long tussle between the Parliament and the Courts regarding Article 31 and the right to property.[16] The Ordinances, proposed bills and amendments have sought to bury the decision of the court in Raja MAM Khan. While the Bill adversely affects the rights of Indian citizens, and essentially punishes them for their parentage, it does not have any effect on the ‘enemy’ Government. The purpose of the original act has been reduced to the hoarding of property by the Indian Government for purposes that would only indicate profit. The justification of “enemy” property seems anachronistic. While the Amendment has its advantages, it is in immediate need of reform.

[1] The Enemy Property Act, (1968).

[2] The Enemy Property (Amendment and Validation) Act, (2017).

[3] The Wire. (2016). Why the Enemy Property Ordinance Needed Parliament’s Reconsideration. [online] Available at: https://thewire.in/89572/pranab-mukherjee-enemy-property-ordinance/ [Accessed 5 Apr. 2017].

[4] Press Information Bureau, Government of India, Ministry of Home Affairs, (2016). Enemy Property Ordinance, 2016 Promulgated. [online] Available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=134302 [Accessed 6 Apr. 2017].

[5] The Enemy Property Act, (1968), § 1(a), (b), (c) .

[6] Union of India (UOI) & Anr. v. Raja Mohammed Amir Mohammad Khan, AIR 2005 SC 4383.

[7] The Enemy Property (Amendment and Validation) Act, (2017) § 2, 3.

[8] The Enemy Property (Amendment and Validation) Act, (2017) §10 – ‘Amendment of Section 11’.

[9] Maneka Gandhi v. Union of India, 1978 AIR 597.

[10] I.R. Coelho v. State Of Tamil Nadu, AIR 2007 SC 861.

[11] E.P. Royappa v. State of Tamil Nadu, 1974 AIR 555

[12] Chowdhury, S. (2016). No court appeal, no succession law: How Bill keeps enemy property with Custodian. [online] The Indian Express. Available at: http://indianexpress.com/article/explained/no-court-appeal-no-succession-law-how-bill-keeps-enemy-property-with-custodian/ [Accessed 6 Apr. 2017].

[13] The Wire. (2016). Why the Enemy Property Ordinance Needed Parliament’s Reconsideration. [online] Available at: https://thewire.in/89572/pranab-mukherjee-enemy-property-ordinance/ [Accessed 5 Apr. 2017].

[14] Somvanshi, K. (2017). Enemy Property Bill to bring windfall of Rs 1 lakh crore for government. [online] The Economic Times. Available at: http://economictimes.indiatimes.com/news/economy/finance/enemy-property-bill-to-bring-windfall-of-rs-1-lakh-crore-for-government/articleshow/57678900.cms [Accessed 6 Apr. 2017].

[15] Chowdhury, S. (2016). No court appeal, no succession law: How Bill keeps enemy property with Custodian. [online] The Indian Express. Available at: http://indianexpress.com/article/explained/no-court-appeal-no-succession-law-how-bill-keeps-enemy-property-with-custodian/ [Accessed 6 Apr. 2017].

[16] See His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225 and the Constitution (Fourty-fourth Amendment) Act, (1978).