Thou Shalt Not Covet Thy Enemy’s Property

The Enemy Property Amendment Act is inconsistent with the principles India was constituted on. It should be declared unconstitutional.

The Parliament recently passed the Enemy Property (Amendment and Validation) Act, 2017. This Amendment brings about various changes to the principal Act passed in 1968, and in doing so, raises many questions about its validity.

The year 1968, cautious from the three wars it had just fought, India passed the Enemy Property Act to protect its assets from enemies across the border. Enemies, as per this law, meant countries who had committed an act of aggression against India, or the citizens of such countries. The Act authorised the Central government to appoint a Custodian of Enemy Properties to manage and be vested with enemy properties within its territory.

Valid as the Enemy Act’s intentions may have been, it left a lot of things ambiguous. While it said that the property in question would continue to vest in the government after an enemy citizen’s death, it left the question of the rights of the enemies’ successors and heirs in limbo. When this came up for scrutiny before the Supreme Court, it held that legal heirs of enemies were not foes themselves and had the right to demand their seized property back from the Custodian.

In this landmark case of Union of India v. Raja Mohammed Amir Mohammed Khan, the Supreme Court held that the government only had the right to manage the property under the Enemy Act. This judgment sparked much similar litigation – much to the government’s disdain. The government was ordered to forego property it had seized and, admittedly, used since four decades.

Almost as if to undo the impact of the 2005 judgment, the legislature amended all ambiguities in this recent Amendment. This Amendment proposes many controversial alterations to the Act, such as stripping certain Indian citizens of their citizenship and nullifying any decision that courts had taken on the rights of Indian people.

The Amendment is riddled with inconsistencies and onerous provisions. Here’s a look at the most important issues the Amendment raises.

Abrupt, arbitrary and untenable revocation of Indian citizenship

The Act presumes that all descendants of Pakistani or Chinese migrants (even lawful Indian citizens) are enemies.

It gives individuals no opportunity to disprove this presumption, effectively allowing the government to seize and sell their property based on this antagonistic belief. The only relief it provides is giving the individual an opportunity to request that the Custodian not be vested with his property. If this does not go well for her, the individual can appeal to the High Court.

Even so, she will be treated as an enemy and not an Indian citizen – meaning she will not be guaranteed the right to equality under Article 14, as it only protects citizens of India.

This presumption is far from being legally tenable. Under the Citizenship Act, it is possible to become an Indian citizen through birth, application to the government, naturalisation, or even if either parent is Indian. This allows Indian whose parents migrated to Pakistan or China, to be Indian citizens. The amendment effectively revokes their citizenship.

A startling aspect of the Amendment is that it applies even if inconsistent with any other Indian law regarding citizenship. This contradicts established principles that the Citizenship Act and the Constitution are the only exhaustive authorities to lay down conditions for granting citizenship.

The Parliament cannot introduce disqualifications for citizenship that are inconsistent with the authoritative laws in this regard.

If another law aims to bring about additional citizenship norms, it has to be in compliance with these legislations. If the disqualifications laid down under the Amendment Act are not in consonance with prevailing citizenship law, these sections run the risk of being struck down by courts.

Incorrect nullification of historical court rulings

One of the trickiest aspects of the Amendment is its attempt to retrospectively invalidate court decisions where enemy property was ordered to be returned to the successor. According to the Amendment, the Custodian has no obligation to heed a court order which mandates that he transfer an enemy property back to the heir even if the property was illegally vested in the Custodian. On the contrary, the amendment authorises the Custodian to recapture such property from its owners and dispose of it as the Custodian deems fit.

In other words, court decisions upholding the transfer of property back to their rightful owners since 1968 are now redundant.

Admittedly, it is lawful for the legislature to bring in a law that contradicts a previous court judgment, even makes such judgment inapplicable. A lawmaker can do this even if such Amendment attempts to alter the premise on which the prior judgment was passed. However, such amendments must always comply with the Rule of Law and the protections granted by the Constitution. One of the principles of the Rule of Law doctrine is found in Article 14 – which ensures that every citizen be treated equally before the law and be given equal protection of the law.

Branding certain citizens as enemies without attempting to reconcile such an Amendment with the Citizenship Act makes the Amendment vulnerable to be scrutinized for violating Article 14. It also runs the risk of being declared unconstitutional for creating unreasonable categorisations of people who were to be treated on equal footing. Declaring certain Indian citizens as enemies of the state and being denied the fundamental rights granted to citizens is a substantial legal issue.

If there was context to bringing such a classification, it could still stand judicial review. But the text of the Amendment and Arun Jaitley’s speech in Parliament in defence of the Bill do not offer much insight. The only connection appears to be the Supreme Court’s ruling in 2005 – holding that the heir of an enemy is not an enemy, and that the government did not have any business to deny transferring the property to the heir. If the legislature brought this amendment with the intention of reversing the judgment of the Supreme Court, then it is beyond the scope of legislative power. The Parliament does not have the power to abuse its lawmaking authority to retrospectively overturn an unfavourable decision.

Incriminating individuals for the acts of the state

Enemies are created by conduct, not by birth.  And in international relations, wars and allies are between states – and not individuals.

By antagonizing some lawful Indian citizens, innocent individuals are forced to bear the brunt of the state’s enmity. The Enemy Act was introduced in the face of a tangible threat to Indian assets by enemies from across the border. This context is absent today. In fact, a Bill to declare Pakistan a terrorist state has also failed, revealing that while India must be wary, it is not constrained to take drastic steps to protect itself.

Principle vs. Pragmatism

While the Amendment claims to be founded on the principle of national security, in hindsight, it is severely damaging to the persons vested with these properties today.

The ₹1 lakh crore windfall that the government is expected to receive from this Amendment must not be at the cost of breaking legal prerequisites. Like the Defence of India Act, the Enemy Property Act should have expired on a predetermined date. This would have prevented the government from introducing this inconsistent Amendment. Even if the Act was not time bound, efforts should have been made to reconcile the provisions of the Amendment with other prevailing law.

In the absence of provisions that reconcile this Amendment with the prevailing liberal principles India was constituted on, it should be scrutinized and struck down by courts.