A stranger in one’s own Land

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 | Updated: March 21, 2016 4:10 am
Enemy Property Act, Enemy Property Act, 1968, enemy property, indo pak war, india, pakistan, 1965 war, Supreme court of india, express opinion Illustration: C R Sasikumar

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

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    Lokesh Deep
    Mar 13, 2017 at 10:07 am
    Whatever may have been the reasons of Prof Ali Khan's parents decisions, the fact remains that any retrospective amendment, that too after decades, must be resorted to in rarest of rare cases. Closing loops in a law should not be such a drawn out process. And adequate compensation must be given to those who have won court cases based on earlier laws.
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      Sirius
      Mar 21, 2016 at 10:33 am
      Mr. Mahmudabad is being untruthful and illogical. Had the Raja of Mahmudabad transferred properties to his son before 1957, none of the issues mentioned would have arisen. He was a stani at the time of "Enemy Property Act" , whose properties in India were then taken over. After this , in no way can the property be restored to a stani or Indian, by inheritance or otherwise. The properties were themselves an illegal 'gift' by the British occupiers for 'services' rendered in 1st war of Independence (1857) , and therefore , an act of treason in Independent India. Lastly, the reason why Raja became stani Citizen and his wife and son remained Indians was a sophisticated way to save their properties in India. The Indian Parliament has every right to close any legal loops that people like Mahmudabad may exploit to defraud the Indian state. It must be said that the 'secular by definition' congressman , Salman Khurshid, was lawyer for Mahmudabad in SC during UPA-I ....
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        MyTake
        Mar 21, 2016 at 6:49 pm
        Talking about enemy properties and ownership re: same saga of parion and it's after effect, during last Khaleda Zia's regime there was a law for minorities to pay 1.5% (could be a different figure close to it) inheritance tax where as for Muslims they only required to pay some thing like 500 Taka to own it. Bangladesh is much ahead of this property usurping game (stan could as well be). Don't know if Bangladesh has removed this law or it is still active - there were talks in the past about doing away with this!
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          Sandeep
          Mar 21, 2016 at 9:30 am
          What a travesty of justice, hope some sane thinking people in this government wake up and do what is right ethically and prove that they are different from the powers that be for the last 60-65 years
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            K SHESHU
            Mar 21, 2016 at 1:07 pm
            Draconian laws like these must be repealed at the earliest as these laws are discriminatory and partisan in nature.
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            Afzal Ahmad
            Mar 21, 2016 at 8:07 pm
            They preferred to remain in their motherland India in-spite of every possible odd, extreme harment and brutal treatment but instead appreciating them we are doubting their sincerity and trying to further downgrade them. We are some how finding a crooked planning in living their motherland instead of going to stan. This not the story of only Mr. Ali but every Muslim of India and every time a Muslim speaks some thing which doesn't suit the present govt, the person is immediately asked to go to stan. To make themselves laughing stock, this is being said by those people whose contribution in Freedom Struggle of the country is not only nil but negative.
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            Anil Tandale
            Mar 21, 2016 at 2:55 am
            In 2010 a very secular government was in office in Delhi. The Courts have upheld the power to make retrospective laws. The Union government is following the footsteps of the earlier secular government only. The cessation of hostilities in JandK in 1947-48, or at Tashkent in 1966 or at Simla in 1972, even Kargil 1999, had not changed the inimical mindset of the esteemed western neighbour. Therefore all consequences follow inevitably. Let not the Government of India be blamed for the misconduct of the neighbour who always causes westerly disturbances.
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              Imran M.A.Imam
              Mar 27, 2016 at 3:04 pm
              The author, Ali Khan, was born in London, schooled in Winchester, spent undergraduate years at Amherst (USA) and Damascus (Syria), and did his Ph.D. in composite cult ure of Uttar Pradesh (ganga-jamni tehzeeb) at Cambridge(!). He has recently arrived in IndiaHis parents own two residential properties in UK and run Qilasaaz trading company from UK. lt;br/gt;His father was schooled in Lucknow but for secondary education joined Aldenham Public School and attended Pembroke College Cambridge, where read mathematics (not astrophysics - a subject he twice tried to Ph.D. in but failed). In his desire to get married, he spent years in stan, making several trips looking for suitable girls to marry.lt;br/gt;On what grounds does Ali Khan say that he feels like a stranger in India? Well, he was never there, so no wonder he is a stranger.lt;br/gt;His father used to support the caste system, and the policies of the BJP advocating return to raj / taluqdari system.; and on that front it backfired.
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