Saif Ali Khan's case: understanding the Enemy Property Act, a law born out of war and the legacy of Partition
Interestingly, this lawsuit is one among the growing number of cases where claimants are seeking ownership of enemy properties. But what is the Enemy Property Act, when was it enacted, and where does it originate from?
The Enemy Property Act was passed by the Parliament in 1968. In Siyasi Muslims: A Story of Political Islams in India (2019), author Hilal Ahmed argues that the act 'empowered the government,' to regulate the appropriation of property in India owned by those who have taken up Pakistani nationality. Authors Onkareshwar Pandey and Manmohan Sharma, in The Issue of Enemy Property and India's National Interest (2011), explain that the act bestowed the Indian government with the sole right to acquire the properties of those who adopted the nationality of Pakistan or China following the wars between India and Pakistan in 1965 and 1971, and the Sino-Indian War in 1962.
Initially called evacuee property, these properties were placed under the watchful eye of custodians when their original owners left for Pakistan. Following the India-Pakistan war of 1965, both countries agreed, in the Tashkent Declaration of 1966, to discuss the return of property seized by the other side. 'All that occurred instead was a change in nomenclature, as evacuee property came to be redesignated as enemy property,' says political scientist Niraja Gopal Jayal in Citizenship And Its Discontents: An Indian History (2013).
While Pakistan sold off its enemy properties owned by Indians who migrated during 1965–1976, the custodian of enemy property in India continues to hold such assets, estimated to be worth thousands of crores. As of today, there are approximately 2,000 enemy properties spread across the states of West Bengal, Bihar, Uttar Pradesh, Delhi, Andhra Pradesh, and Gujarat.
In The Long Partition and the Making of Modern South Asia: Refugees, Boundaries, Histories (2007), author Vazira Fazila-Yacoobali Zamindar draws attention to the post Custodian of Enemy Property that was established in Britain during the years of the Second World War (1939-1945). 'It was a part of the 'trading with the enemy' legislation which allowed the British government to take over the properties of 'belligerent enemies' in Britain, which included citizens of Germany, Hungary, Romania, and Bulgaria, as well as 'technical enemies,' which included citizens of Czechoslovakia and Poland,' she notes. According to Zamindar, properties of 220,000 people were seized through the legislation.
The first 'high-profile' case, concerning the Enemy Property Act, was that of Mohammed Amir Mohammed (M A M) 'Suleiman' Khan, the Raja of Mahmudabad in Uttar Pradesh in 2005. After a battle that lasted 32 years, the Supreme Court awarded Khan the right to take over his late father's extensive properties. Khan's father had migrated to Pakistan in 1957, leaving properties that, according to Jayal, account for almost half of all enemy properties in the country (1,100 of 2,100).
M A M Khan was twice elected to the Uttar Pradesh Legislative Assembly, and used his loyalty as an Indian citizen to his favour. Jayal notes that Khan, in a public response, said: 'I petitioned everyone, saying my mother and I are Indians, not enemies. I wanted the stigma of 'enemy of state' on my family to be removed and I am happy that I have won this battle.'
In the aftermath of the Supreme Court judgment in the Mahmudabad case, Indian courts were flooded by many such claimants of enemy properties. One such case, cited by Pandey and Sharma, was filed in the Allahabad High Court where a person claimed nearly one-third of Agra, including the Taj Mahal. Interestingly, the claimant also furnished documents proving his lineage.
This led the Indian government to propose an amendment to the Enemy Property Act of 1968, 'to prevent the indiscriminate purchase and sale of 'enemy property,' to debar courts from passing more such orders giving away enemy property worth huge sums of money,' notes Jayal.
Although the Bill was withdrawn, the government, on July 2, 2010, promulgated the Enemy Property (Amendment and Validation) Ordinance. According to scholars, the ordinance sought to undo the effect of the many claims on enemy properties by vesting all rights in the custodian and the central government. Muslim members of the Parliament, however, protested and urged the prime minister to reconsider this, keeping in mind the rights of minorities since most of those claiming the enemy property were Muslims. The Raja of Mahmudabad, as cited by Jayal, asked: 'Are they being punished for choosing to stay back in India even though the SC has upheld their rights as Indian citizens?'
Prime minister Manmohan Singh acceded to the request on August 4, 2010, withdrawing the existing law. Finally, the Union Cabinet approved the proposal of the Ministry of Home Affairs to introduce the Enemy Property (Amendment and Validation) Second Bill, 2010.
The Bill was to cover '80 properties seized under the Defence of India Rules of 1962 after their Chinese-origin owners migrated or were deported, and 2,168 highly prized properties declared 'enemy property' through the 1968 law after their owners migrated to Pakistan following the 1965 war,' state Pandey and Sharma.
While Saif Ali Khan's case has thrust the 1968 act back into the limelight, what remains, according to Jayal, is the fact 'of its being strongly inflected by religious identity and a presumptive association with a hostile neighbour, Pakistan.'
The legacy of the Partition of British-India endures in the disputed status of over 2,000 properties, scattered across India.
Nikita writes for the Research Section of IndianExpress.com, focusing on the intersections between colonial history and contemporary issues, especially in gender, culture, and sport.
For suggestions, feedback, or an insider's guide to exploring Calcutta, feel free to reach out to her at nikita.mohta@indianexpress.com. ... Read More
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