Rajya Sabha Was Right to Defer the Enemy Property Bill

The Amendment passed by Lok Sabha will remove the recourse to courts of law and usurp the powers of the judiciary.

On Tuesday, the Rajya Sabha decided not to pass the controversial Enemy Property Bill, which the BJP had pushed through the Lok Sabha over my objections, preferring to bring it to a select committee for closer scrutiny. The principled stubbornness of the Opposition has once again saved the nation from a bad law.

The Indo-Pakistani War of 1965 – and its thousands of casualties – left both sides with unhealable wounds. Three years after the War, the Indian and Pakistani governments each instituted legal provisions to account for “enemy” property – that is, land, firms, and other assets abandoned by nationals who had left one country for the other. The Enemy Property Act, passed by our parliament in 1968, created a legal framework for the Indian government to seize the assets of Indian nationals who fled to Pakistan in the wake of the 1965 War.

In 2005, forty years (and two more Indo-Pakistani wars) later, the Supreme Court affirmed the rights of legal heirs who are Indian citizens to re-acquire the property that belonged to their ancestors and their families. Yet, last week, the Lok Sabha passed an Amendment which denies these legal heirs – legal residents and citizens of India – the right to the seized property that belonged to their ancestors.

The Controversial Act

• Rajya Sabha has decided not to pass the Enemy Property Bill preferring to bring it to a select committee for closer scrutiny.
  
• The Amendment passed by the Lok Sabha would deprive Indian citizens of their right to inherit properties and to seek justice through the judicial process.
  
• The Enemy Property Act passed in 1968 allows for seizure of the assets of Indian nationals who fled to Pakistan in the wake of the 1965 War.
  
• The hasty approval of the Bill in the Lower House undermines the principle of a unified and integrated Indian citizenship.
  

Law Antithetical to Indian Democracy

And so the wounds of the wretched Partition and the interminable conflict it inaugurated have yet to be healed. The Amendment passed last week by the Lok Sabha, if approved by the Rajya Sabha, would deprive Indian citizens of 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 important, the law would leave us with consequences that are antithetical to the basics of Indian democracy and governance.

Foremost, the hasty approval of the Bill in the Lower House undermines the principle of a unified and integrated Indian citizenship. This law will explicitly create two kinds of Indian citizens, and, in doing so, bifurcate the very idea of what it means to be an Indian citizen. It says that those who are born in India, live in India and have Indian passports – but who happen to be legal heirs of people who have gone to another country – should suddenly cease to be treated as citizens with natural rights (such as the right to judicial processes). The primary risk is to the integrity of our notion of Indian citizenship. That is a very dangerous and slippery slope for us to tread.

My second concern is a concern of principle. Laws in our country should not be made for convenience or to deal with specific cases, as the proposed Enemy Property Act does. The law, by definition, has implications that go beyond the specific case the Government might intend to deal with. It has nationwide application. It has been suggested in the Lok Sabha that this law is intended to deal specifically with the properties of the Raja of Mahmudabad, which are now occupied and used by a large number of Indian voters in UP, whose interests would suffer if the Supreme Court decision were implemented.

A Pernicious Law

But once you legislate, you set a precedent, violate a principle and create the basis for further injustice in the unforeseeable future. Who knows how such a pernicious law might be misused tomorrow?

The Amendment thus undermines the legal apparatus that protects the rights of all Indians – not just those who have a claim to some property in the wake of the Indo-Pakistani Wars. The recent increase in the numbers of these cases is alarming. In Bhopal, 10,000 families have been affected by the Ordinance that preceded the Bill. In other parts of the country, lakhs are affected. In 2013, 2,011 enemy properties were listed. In 2014, 12,090 properties were listed and in 2015, 14,759 were listed.

The final concern – perhaps the most troubling – is that the amendment reflects a wider, if subtle, form of discrimination. The citizens affected by the amendment are, let us face it, predominantly minority citizens. While the Amendment itself may not specifically target Muslims, the inconvenient reality is that almost everyone affected is indeed Muslim. The Home Minister, replying to my criticism, pointed out that the law also applies to properties left behind by Chinese nationals after the 1962 war, but how many such properties are there now?

A Disguised Attack On Muslims?

Beyond simply targeting Indian Muslims whose relatives migrated to Pakistan, we are also labelling Indian citizens and residents as “enemies.” 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.

The Amendment will be seen as a disguised attack on 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, and contribute to the alienation of our largest minority community. Are a few votes in UP worth all that?

Some of my colleagues in the Lok Sabha pointed out that Pakistan had disposed of the property held there by Indian citizens. This is, indeed, true. But is that the standard by which we want Indian democracy to operate? Or is the BJP Government determined to continue its project of reducing the majesty of democratic India to a bigoted Hindu Pakistan?

The Enemy Property Bill does not allow India to hold itself to the standard its citizens deserve. The Rajya Sabha was right to put it aside. It deserves to be consigned to the dustbin of history.

(Former UN Under-Secretary-General, Shashi Tharoor is a Congress MP and author. The author gratefully acknowledges the assistance of Adam Joseph and Sonakshi Kapoor in the preparation of this article.)