Lok Sabha passes Bill to amend Enemy Property Act

New Delhi:The Lok Sabha on Wednesday passed a Bill to amend a 48-year-old law to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars.

The Enemy Property (Amendment and Validation) Bill, 2016, which amends the Enemy Property Act, 1968, was passed by voice vote amid the government's assertion that the measure should not be seen from the prism of religion or caste. A demand by the Opposition for sending it to the Standing Committee of Parliament was also turned down.

Replying to a debate on the bill, Home Minister Rajnath Singh, "It does not pertain to Pakistan alone, but also to those Chinese who left India after the 1962 Sino-India War.

Even their property comes under the ambit of this Bill." In the wake of the Indo-Pak war of 1965 and 1971, there was migration of people from India to Pakistan and under the Defence of India Rules framed under the Defence of India Act, the Government of India took over the properties and companies of such persons who had taken Pakistani nationality.

These enemy properties were vested by the Central Government in the Custodian of Enemy Property for India.

The amendments include that once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy, enemy subject or enemy firm has ceased to be an enemy due to reasons such as death, etc.

The new bill also ensures that the law of succession does not apply to enemy property; that there cannot be transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm and that the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

The amendments are aimed at plugging the loopholes in the Act to ensure that the enemy properties that have been vested in the Custodian remain so and they do not revert back to the enemy subject or enemy firm.

The Enemy Property Act was enacted in the year 1968 by the Government of India, which provided for the continuous vesting of enemy property in the Custodian.

The Central Government through the Custodian of Enemy Property for India is in possession of enemy properties spread across many states in the country. In addition, there are also movable properties categorized as enemy properties.
After the 1965 war, India and Pakistan signed the Tashkent Declaration on January 1, 1966 which included a clause which said that the two countries 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 that country in the year 1971 itself, which left no scope for talks on this issue.

Seeking to allay fears that the Bill could be struck down by the judicary, the Home Minister said legal opinion has been sought from the Attorney General as well as the Law Ministry.

He said the previous UPA government had brought similar amendments in the Act in 2010 through an Ordinance.

With the amendments, the property vested in the hands of the Custodian would continue to remain in his hands and under no circumstances the Inheritance Law will be not be applied to that property, Rajnath Singh said.

During the debate, Opposition parties slammed the government for taking the Ordinance route earlier to amend the Act saying there was no urgency or exigency for bringing in Ordinance. They said the Ordinance route is not a sign of "good governance".

Opposing the measure, Shashi Tharoor (Cong) said it was a "dangerous" step that would "create problems" as he pressed for referring it to the Standing Committee.

"We are contemplating to pass the bill where certain people (will be) called as enemy...It will affect interest of lakhs of people," the former minister said, adding the government should not take any step in haste.

"It will create two types of Indians..We are bifurcating the very idea of Indian citizenship," he said, adding it would affect the interest of minority people particularly muslims.

On the provision of retrospective, Tharoor said this government opposed the restrospective taxation.

The UPA's bill on the issue did not go to this level and this bill is saying that the judiciary would not have any say. "My grave concern boils on to the legal principle," he added.

"We are raising serious questions on citizenship...It is dangerous..It will create poblems. Let us not take unlawful punitive actions and refer it to the Standing Committee. If passed, it will be challenged in courts ," he said.

He supported the resolution disapproving of the Ordinance, saying "my concern is a concern of principle" as laws should not be made to deal with certain or specific cause. (Reopen PAR33)

The resolution disapproving of the Ordinance was moved by N K Premachandran (RSP), P Karunakaran (CPM), Adhir Ranjan Chowdhury (Congress) and Sultan Ahmed (TMC).

"Ordinance route for legislation is not good for a healthy democracy. Continuous promulgation of Ordinance is not a sign of food governance which the NDA government had originally promised.

"Ordinance can be brought in only in case of exigency and emergency. But in Enemy Property bill there was no such urgency," Premachandran said.

He demanded that the bill be sent to Standing Committee of Parliament for scrutiny of definition of "enemy and enermy property" as well as the proposed law of succession.

"All these years since 2010 the governments have been sleeping and suddenly they bring in Ordinance taking away the right of Parliament to look into the fresh Bill. I disapprove the Ordinance route, even as I support the Bill," Premachandran said.

Sushmita Dev (Cong) sought to know from the Home Minister as to "what was the urgency of the government to bring in an Ordinance on January 7 when Parliament was not in session".

In 2010 the then UPA Government too had promulgated an Ordinance to amend the Enemy Property Act, 1968, but it did not turn into a legislation.

Yogi Adityanath (BJP) accused Congress of playing votebank politics and not enacting the Enemy Property Ordinance of 2010.

"The Congress under pressure from certain section of society did not pursue the Bill and did a 'U' turn. The UPA government stood up in favour of Jinnah (Mohammed Ali Jinnah) who was responsible for division of the country," he said.

Adityanath said only Indian government should have right on the properties left behind by Chinese and Pakistanis after 1962 and 1965 wars.

"The way the Jinnah's family is staging a claim over Jinnah House in Mumbai, it is in the interest of our nation that we pass the Enemy Property Bill," he said, while appealing to opposition to rise above politics and supportit.

Jinnah House is the residence of Mohammad Ali Jinnah, the founder of Pakistan. "I am surprised to see that some people are playing with national integrity for votebank politics. We saw similar situation in Ishrat Jahan case," Adityanath added.

A new section has been inserted in the 2016 Ordinance to say that "the Custodian, may, after making such inquiry as he deems necessary, by order, declare that the property of the enemy or the enemy subject or the enemy firm described in the order, vests in him under this Act and issue a certificate to this effect and such certificate shall be the evidence of the facts stated therein".

Supporting the bill, Saugata Roy (TMC) said it is a harmless thing in the interest of the country. "I did not find any amendment required," he said.

Pinaki Misra (BJD), however, said the bill "must" be referred to the Standing Committee.

He said the bill takes away the jurisdictions of civil courts on this issue and once passed, it would become a "non-sensical law" and invite public interest litigations.

Citing the example of the National Judicial Appointments Commission (NJAC) Act, he said the Supreme Court asked not to take inflexible state but the present government did not relent and "see the result. That bill was struck down".

"Parliament must be cautious in passing any (such bill)... On day one, it will be challenged by way of writ jurisdiction," he added.

Konda Vishweshwar Reddy (TRS) said: "The intention is good but I see lot of flaws in this bill". "The first is the definition of the word enemy," he said adding in the bill the legal heirs are treated as enemies.

Citing example of famous bollywood movie 'Deewar', he said a son cannot be labelled as 'enemy' if his father was an 'enemy'.

"How can we say that enemy's son is also an enemy? The word enemy should be removed and some other word should be used. We need to redarft this...We need to differentiate between self gain property and ancestral property," he said.

"It should be limited to the property gained by an enemy and not the ancestral property. The bill should be referred to the Standing Committee," he added.