The Indian government has some new ideas on how to define an “enemy” in 2016. (Photo Courtesy: Durham Pro Bono Blog)
| 5 min read

How the Govt Is Abusing a Wartime Law to Grab ‘Enemy’ Property

When we waged war with China in 1962 and Pakistan in 1965 and 1971, there were several cases of Indians giving up their nationality and migrating to these countries. The Indian government seized their assets, declaring them ‘Enemy’ Property, handing them over to a specially created office of the ‘Custodian of Enemy Property for India’.

This was formalised as the Enemy Property Act in 1968. But today, it has become a well-oiled scam and a thinly-veiled attack on thousands of Indian Muslims and their right to inherit property.
Snapshot
Click here to collapse
  • In 1980, the government was in possession of 389 ‘Enemy’ Properties.
  • The Enemy Act provided for such properties to pass to their proven Indian heirs. The government also had to share the revenue from these properties with these heirs.
  • This changed after a draconian ordinance was passed in 2010, that allowed the UPA government to seize and usurp ‘Enemy’ Property.
  • By 2011, the number of ‘Enemy’ Properties seized in India jumped to 2,111.
  • The NDA government also exploited this. In 2014, the number of such properties was 12,090 and by 2016, over 15,000.
We’re not at war with any country. So why has the number of seizures of ‘Enemy’ Properties sky-rocketed? (Infographic: The Quint/Pallavi Prasad)
We’re not at war with any country. So why has the number of seizures of ‘Enemy’ Properties sky-rocketed? (Infographic: The Quint/Pallavi Prasad)

The Quint accessed the state-wise numbers for 2016, which further puts this land-grabbing scheme into perspective: In UP, the number of ‘Enemy’ Properties went up from 622 in 2011 to 8,270 in 2016. In Bengal, from 232 to 4,473 over the same period.

When a law is silently used to oppress minority communities to reap profits. (Infographic: The Quint/Pallavi Prasad)
When a law is silently used to oppress minority communities to reap profits. (Infographic: The Quint/Pallavi Prasad)

Then vs Now: The Ugly Amendments

Under the original Act, if my father had migrated to Pakistan leaving behind his land in Punjab, and I stayed back, the government would return the seized land to me as its legal Indian heir.

“Property” includes land, houses, cinema halls, buildings, agricultural land, shares, debentures, lockers, and bank accounts.

So how exactly have successive governments used the ‘ordinance route’ to subvert the Enemy Property Act since 2010? And how have they gone from being custodians of ‘Enemy’ Property, to virtual owners?

Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)
Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)

Article 14 of the Constitution says all Indian citizens are equal before the law. But this ordinance violates this fundamental right, because even if a person is the rightful Indian heir, he has no claim over what the government has deemed ‘Enemy’ Property.

How can some Indian citizens inherit property and not others? Is it fair to discriminate against people who had relatives who chose to migrate – for whatever reasons – during a war, decades ago?

Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)
Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)

There are also no provisions to allow for the ‘Enemy’ Property to be reclaimed from the government. Seizure and return of property is at the discretion of the government. In fact, the new ordinance says the government is not even required to pay the original owner/heir(s) compensation or maintenance, as was written in the ‘68 Act.

Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)
Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)

There’s more. The ordinance encroaches upon not only on an individual’s right to justice, it also encroaches upon the powers of our courts. Only the Central Government can decide what to do with an ‘Enemy’ Property. No civil court or other authority can.

Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)
Details of the ordinance and the Enemy Property Act (Amendment & Validation) 2016. (Infographic: The Quint/Pallavi Prasad)

In fact, the ordinance suggests changes to the ‘68 Act retrospectively. Which means all court judgements and sale or purchase of ‘Enemy’ Properties before 7 January 2016 (when the NDA govt first passed this ordinance) will be void if it becomes law.

Govt In A Suspicious Hurry

An ordinance is meant to be an emergency tool used to pass a crucial law when Parliament is not in session. Why was the NDA government in such a rush to legislate over a war-related act during peacetime?

After introducing the ordinance in January 2016, the government introduced the Enemy Property Bill (Amendment & Validation) in Parliament in March 2016. It was passed in the Lok Sabha, but is stuck in the Upper House, where several MPs have called it undemocratic and despotic. Meanwhile, the ordinance has been in effect as a temporary law for almost the entire year now. 
Since January 2016, the ordinance has been re-promulgated four times and challenged in the SC each time. 

What Does the Government Get? Easy Money!

How much money the government will make if ‘Enemy’ Properties are sold. (Infographic: The Quint/Pallavi Prasad)
How much money the government will make if ‘Enemy’ Properties are sold. (Infographic: The Quint/Pallavi Prasad)
Revenue earned from ‘Enemy’ Properties. This includes shares, income on investments made in government securities and treasury bills. (Infographic: The Quint/Pallavi Prasad)
Revenue earned from ‘Enemy’ Properties. This includes shares, income on investments made in government securities and treasury bills. (Infographic: The Quint/Pallavi Prasad)
In 2005, the Supreme Court also observed that several ‘Enemy’ Properties were being used by government officials for residential and official purposes; it would be “greatly inconvenient” for the government to return them to their rightful owners now. 

Who Is Bearing The Brunt?

To be blunt, mostly Muslims.

It’s not rocket science. Two of the three wars India fought were with Pakistan. It is anyone’s guess which religion a majority of “enemies” belong to. Handing the government all discretion in identifying, seizing, and disposing of ‘Enemy’ Property as this Bill envisages, will further alienate an already vulnerable minority community.

The Amendment will be seen as a disguised attack on the Indian Muslim community, an example of and precursor to other forms of legalised discrimination. It will simply add fodder to the speeches of politicians who allege that India treats its Muslims unfairly [...] Are a few votes in UP worth all that?
Shashi Tharoor, Member of Parliament, Congress

The babus in the government and their political patrons are killing two birds with one stone: fanning the flames of communal hatred, and making crores in easy money every year.