Enemy protection ordinance: issues and analysis

Note4Students

Enemy property amendment bill caused large uproar in the parliament. Opposition called it as a anti minority bill. It also budded as undermining fundamental right guaranteed under article 14. So it is important to understand the details of enemy property act.

Introduction

Parliament passed The Enemy Property (Amendment and Validation) Bill, 2016, incorporating comprehensive amendments to the law relating to confiscation of enemy property in India.

What is Enemy Property Act?

  1. When wars broke out between India and China in 1962, and India and Pakistan in 1965 and 1971, the central government took over properties of citizens of China and Pakistan in India under the Defence of India Acts.
  2. These Acts defined an ‘enemy’ as a country that committed an act of aggression against India, and its citizens. The properties of enemies in India were classified as enemy property. The properties included land, buildings, shares held in companies, gold and jewellery of the citizens of enemy countries. The responsibility of the administration of enemy properties was handed over to the Custodian of Enemy Property, an office under the central government.
  3. The Defence of India Acts were temporary laws that ceased to operate after the wars ended. To administer the enemy property seized during the wars, the government enacted the Enemy Property Act in 1968.
  4. This law laid down the powers of the Custodian of Enemy Property for management and preservation of the enemy properties.
  5. The Enemy Property Act gave enemy citizens certain rights with respect to their properties vested in the Custodian. But the ambiguity in their rights and the powers of the Custodian to administer these properties resulted in disputes being raised before the courts. Some of these disputes related to Indian citizens challenging whether they could inherit enemy properties belonging to their ancestors who were nationals of enemy countries.

Recent Developments:

  1. In 2010, the government issued an Ordinance to expand the powers of the Custodian regarding enemy property. It sought to permanently vest enemy property in the Custodian even in case of the enemy’s death or a change in his nationality. However, the Ordinance lapsed.
  2. The issue of enemy property attracted legislative interest again in 2016 when five more Ordinances were issued on the subject. These Ordinances went a step further and vested ownership rights over enemy property in the Custodian. This effectively negated the Supreme Court decision of 2005, and made the central government the owner of enemy property.

ANALYSIS

IMPORTANANT SECTIONS OF BILL

  1. The definition of “enemy” and “enemy subject” shall include the legal heir and successor of an enemy, whether a citizen of India or a citizen of a country which is not an enemy, and also include the succeeding firm of an enemy firm in the definition of “enemy firm” irrespective of the nationality of its members or partners.
  2. The enemy property shall continue to vest in the Custodian even if the enemy or enemy subject or enemy firm ceases to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir or successor is a citizen of India or a citizen of a country which is not an enemy.
  3. The enemy property shall continue to vest in the Custodian with all rights, title and interest in the property, and the Custodian shall preserve the same until it is disposed of by the Custodian, with the prior approval of the Central Government, in accordance with the provisions of the Act.
  4. The law of succession or any custom or usage governing succession shall not apply in relation to enemy property.
  5. No enemy or enemy subject or enemy firm shall have any right, and shall never be deemed to have any right to transfer any property vested in the Custodian, and any transfer of such property shall be void.
  6. The amendments through the Ordinance 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;
  7. 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.
  8. The Custodian, with prior approval of the Central Government, may dispose of enemy properties vested in him in accordance with the provisions of the Act, and for this purpose, the Government may issue such directions to the Custodian that shall be binding upon him.
  9. The Central Government may transfer property vested in the Custodian which was not actually enemy property to the person who was aggrieved by the vesting order issued by the Custodian.
  10. No civil court or other authority shall entertain any suit or proceeding in respect of any enemy property or any action taken by the Government or the Custodian.

Issues Involved

  1. The new law creates a situation where an Indian citizen who has legally bought and developed an enemy property after 1968, will be divested of his rights in the property.
  2. This situation could be challenged in court as a violation of Article 14 , which guarantees the right to equality and protects people from arbitrary actions of the government.
  3. Further, following the passage of the Bill, judicial recourse on enemy property disputes will only be available before High Courts and the Supreme Court, limiting the options available to people whose property rights have been affected.
  4. The thrust of the amendments is to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars.
  5. The amendments deny legal heirs any right over enemy property. The main aim is to negate the effect of a court judgment in this regard. The Act gives the sole right of disposal of enemy property to the Custodian.
  6. 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.,
  7. 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 the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

Conclusion

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 do not revert to the enemy subject or firm.

Q.What are the prime concerns regarding enemy property act?

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