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print versionThe Indian Express March 21, 2016
The new enemy property ordinance is more draconian than the one in 2010. It retrospectively rewrites the 1968 act and forecloses judicial recourse for countless Indians
Written by Ali Khan Mahmudabad
Mauj-e khoon sar say guzar hi kyun na jaaey / Aastaan-e yaar say uth jaaein kya (Even if I drown in waves of blood/ How can I abandon the home of my beloved) The bloody events of Partition overshadowed Independence. Far from being an event in the distant past, Partition is a process that continues to unfold. Drawing a line across a map did not take into account the myriad ways in which Partition could actually never end. The messy and complicated migration of people would prevent this, and indeed, ultimately questions were bound to arise about how language, culture, history and indeed families, the carriers of human experiences, can be partitioned.
My family underwent an internal partition like many other families. Ten years after 1947, my grandfather became a Pakistani citizen. My grandmother and father remained Indian citizens. Following the Indo-Pak war in 1965, a legal category called “Enemy Property†came into force.
Under the Enemy Property Act, 1968, properties of citizens belonging to the “enemy†country were taken over by the governments of both India and Pakistan and temporarily vested in a custodian. By this time my grandfather was a Pakistani citizen, still holding property in India. This too was declared enemy property. In September 1965, my grandmother and other family members were summarily thrown out of their own home.
Hostilities ceased, peace treaties were signed, but the enemy property law continued to exist. The intention of the original act was to maintain and preserve the properties during the war. The 1968 act upholds the title of the original owner. This was subsequently confirmed by many courts of law. My grandfather died in London in 1973 and my father, his only son, claimed his inheritance as an Indian citizen. The next 30 years of his life were spent battling for his rights as an Indian citizen.
A legal odyssey began in the civil court of Lucknow, passed through the High Court of Bombay and ended in the Supreme Court (SC). Each court reinforced earlier orders and categorically upheld an Indian citizen’s right to inherit his father’s properties. Finally, in 2005, the SC restored the properties to my father and held that a citizen’s rights could not be usurped in this manner and deemed the government’s possession of the properties illegal since 1973. Importantly, the government had even appealed the SC judgment in 2005 but its appeal was rejected. Citizenship has always had a fraught relationship with property ownership but the battle was equally about a principle, about removing the blemish of “enemy†with all its alienating implications.
Five years after losing the case in the SC, the government suddenly brought in an ordinance in 2010, seeking to retrospectively change the original act of 1968.
The 2010 ordinance lapsed and the original act remained unchanged, along with all the judgments that were based on it. However, properties that had been restored following the SC order were summarily retaken as enemy property in August 2010. Thus, a new legal journey began.
Once more, the stigma of “enemy†reared its head. We went from court to court seeking justice. More than five years passed, when suddenly on the very day (January 7, 2016) that our matter was listed for final hearing in the SC, we learnt that yet another ordinance had been promulgated.
The new ordinance/ bill is more draconian than the one in 2010. It retrospectively rewrites the act of 1968 and renders all judgments made on the basis of the original act null and void. It seeks to undo decades of legal proceedings with little care for all the effort that countless Indians had spent on getting justice. Essentially, it closes the door to judicial recourse and transforms a “custodian†to “owner†as it mandates the government to sell all these properties. However, the most insidious aspect of the ordinance is that the very meaning of “enemy†has been redefined.
The definition of “enemy†now includes Indian citizens who happen to be the legal heirs of people who went to Pakistan. Faced with a choice during Partition, millions of Muslims opted to remain in India. Sadly, the new amendments make some Indian citizens’ identities wholly contingent on whether a relative went to Pakistan. My father, an astrophysicist by training and twice an MLA in Uttar Pradesh, has spent most of his adult life battling for his rights. He is fortunate to have been able to do sobut for lakhs of Indian citizens, the door to the judiciary is shut through the new ordinance.
Indeed, the reason for the promulgation of the ordinance has been that the custodian finds it difficult to do his job because of an increase in the number of legal cases related to “enemy property†. As is inevitable, over the years, various vested interests have taken advantage of “enemy property†and, indeed, one effect of the new bill is to metaphorically “put a lid†on all matters related to it, so that retrospectively since 1968, “enemy property†will no longer be subject to
judicial scrutiny.
The custodian continues to designate new enemy properties today despite the fact that hostilities ceased decades ago. In 2013, there were about 2,100 properties and in 2015, over 15,000 enemy properties. Many properties are not owned by Muslims but by people from other communities who have bought them over the course of the last 40 years. The ramifications of the bill will also undo their ownership.
Ironically, while this has been happening, I have been teaching undergraduates about the history of nationalism. The day the Enemy Property (Amendment and Validation) Bill, 2016 was being passed in the Lok Sabha, we were discussing the idea of “strangers†as a political category. Although my father is an Indian citizen and, therefore, cannot be deemed a foreigner, the 2016 bill sees him, and many thousands like him, as strangers in their own country.
The writer, 33, is assistant professor at Ashoka University and columnist for the Urdu daily ‘Inquilab’. His family is affected by the enemy property ordinance and the case is sub-judice in the Supreme Court. Views are personal
