Govt Allows States To Put Enemy Properties To Public Use

The government has sold enemy properties worth Rs 1,874 crore in April, data released by the Department of Investment and Public Asset Management show. 

Earlier in March, the Centre had allowed state governments to put to public use some 'enemy' properties as it tries to sell over 9,400 such properties, worth over Rs 1 lakh crore, and Rs 3,000 crore worth of enemy shares. The guidelines for disposal of the Enemy Property Order, 2018, has been amended to facilitate "usages of enemy property by the state government exclusively for public use".

Heirs of those who departed from India after the wars of 1962 (with China) , 1965 and 1971 (both with Pakistan) cannot claim ownership over enemy properties after Indian Parliament amended a 1968 law, governing enemy properties in the country.

The Enemy Property (Amendment & Validation) Bill, 2016, was approved by Parliament after the Lok Sabha in March 2017 passed the Bill through a voice vote. 

The origin of the law

At the onset of the World War-II, the Defence of India Act, 1939, was enacted to lay the Defence of India Rules, 1939. Under the rules, the custodian of enemy property for India, Mumbai, an office created by the authorities, was made responsible for maintaining enemy properties till peace was restored. However, the office of the custodian of enemy property for India kept administering these properties even after the war ended in 1945.

After India's war with China in 1962, and its two wars with Pakistan in 1965 and 1971, the office took over enemy properties under the Defence of India Rules.

In 1968, the Indian government enacted the Enemy Property Act, which laid that all the enemy property will continue to be under the control of the custodian. The recently passed Bill amends certain provisions of this 50-year-old piece of legislation.

What changes now?

Here is what the amendments to the old law would amount to:

As the Bill comes into effect retrospectively (January 7, 2016, when the ordinance was first promulgated) , any enemy property transfers that took place before that time and are opposed to the provisions of the new law will become null and void. On the other hand, several provisions of the law will retrospectively come into effect from 1968, when the Enemy Property Act was enacted.

According to the old law, the definition of enemy included as countries, including their citizens, that committed external aggression against India. The new definition also covers legal heirs of enemies even if they are citizens of India or any other country and nationals of an enemy country, who changed their nationality.

Civil courts will not be authorised to hear cases against enemy properties. They will also have no legal right to interfere with matters of the custodian.

The Central government could have ordered the custodian for the transfer of an enemy property to the owner or any other person. Now, an enemy property could be returned to the owner only after the Centre gives it approval after declaring that the said property is not an enemy property.

The 1968 law prohibited the transfer of enemy property by an enemy if it was against public interest or if it was done to avoid transfer of property to the custodian. The new law prohibits all transfers by an enemy.

The amended law says that enemy properties will continue to vest with the custodian

Even after the death of enemies;

Even if the legal heir is an Indian; and

Even if the enemy changes his nationality.

No Indian laws governing succession rights will be applicable to enemy properties. Under the amended law, all rights, titles and interests in such properties will lie with the custodian.

Under the old law, the custodian could sell an enemy property only "in the interest of preserving the property" or "to secure maintenance of the enemy or his family in India". Now, the custodian can dispose of an enemy property after getting an approval from the Central government.

Earlier, the custodian was supposed to maintain the enemy and his family if they are in India from the income derived from the property.  The custodian will no longer be responsible for providing for the enemy and his family.

The many promulgations

The ordinance was promulgated and re-promulgated for a total of five times starting from January 7, 2016. The ordinance was re-promulgated on April 2 for the second time, on May 31 for the third time, on August 28 for the fourth time and on December 22 for the fifth time.

According to Article 123 of the Indian Constitution, an ordinance expires six weeks after the reassembly of Parliament if it is replaced by an Act or disapproved by both Houses. 

In 2010, the UPA government has also promulgated an ordinance to ensure enemy properties remained under the control of the custodian. However, that ordinance lapsed in September that year. The then government's efforts to pass a Bill in that regard also did not bear fruit.

Need to know

Flouting the provisions of the Tashkent Declaration, Pakistan was disposed of all enemy properties in 1971. India and Pakistan had signed the Declaration after the 1965 war and had decided to discuss the possibilities of returning of enemy properties in control of each side.

Reportedly, there are over 16,000 enemy properties across India states, worth lakhs of crores. The identification process is still on. This means the number of enemy properties may rise in future.