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GS Paper: GS2

  • [op-ed of snap] The four phases of constitutional interpretation

    Context

    The ways in which the Constitution of India is interpreted has undergone changes through four phases.

    Constitution-An Ambitious political experiment

    • Indian Constitution was an ambitious political experiment for the following reasons-
      • Universal Adult Franchise: India began its journey with the universal adult franchise.
      • Federalism: Federalism in a region consisting of over 550 princely States.
      • The promise of Equality: The Constitution was a sort of social revolution in a deeply unequal society with the promise of equality.
      • Unique constitutional design: it was equally a unique achievement in terms of constitutional design.

    The first phase of interpretation-Focus on text

    • A textualist approach-focusing on the plain meaning of the words: In its early years, the Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution.
      • K. Gopalan v. State of Madras (1950) was one of the early decisions in which the Court was called upon to interpret the fundamental rights under Part III.
      • The leader of the Communist Party of India claimed that preventive detention legislation under which he was detained was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention).
      • Fundamental rights separate from each other: The Supreme Court decided in A. K. Gopalan case that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together.
    • Unlimited Amendment Power: In its early years, the Court read the Constitution literally, concluding that there were no limitations on the Parliament’s power to amend the Constitution.

    The second phase of interpretation-Focus on ‘basic structure’

    • Appeals to the structure and coherence: Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and coherence.
      • Limited Amendment Power-Kesavananda Bharati case: In the leading case of Kesavananda Bharati v. State of Kerala(1973), the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure”.
      • What is the “Basic Structure”: The basic structure is an open-ended list of features that lie within the exclusive control of the Court.
      • When Parliament attempted to overturn this decision by amending the Constitution yet again, the Court, relying on structuralist justifications, decisively rejected that attempt.
    • Key takeaways from Kesavananda Bharati case
      • Limited Amendment Power: In this case, the Court pronounced that Parliament’s power to amend the Constitution is not unlimited.
      • Fundamental rights as a cohesive bill of rights: In this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one.
      • Maneka Gandhi v. Union of India (1978):  Through decision, in this case, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.
      • Incremental interpretation of Right to Life: The right to life was incrementally interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid.
      • Courts playing role in governance: The incremental interpretation of Article 21 paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
    • What was common in the first two phases?
      • Interpretation done by Constitutional Benches: That significant decisions involving the interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.
      • Little scope for precedential confusion: There was limited scope for precedential confusion, since matters which had been decided by Constitution Benches and which demanded reconsideration were referred to larger Constitution Benches.

    Third Phase of interpretation-Eclecticism

    • Different opinions on the same issues: In the third phase the Supreme Court started to give different opinions on the same issues-i.e. it engaged in eclecticism.
      • Lesser reasoning: The Court often surrendered its responsibility of engaging in a thorough rights reasoning of the issues before it.
      • Two factors underpinned this institutional failure.
    • First-Change in the structure of the SC: The changing structure of the Court, which at its inception began with eight judges, grew to a sanctioned strength of 31; it is currently 34.
    • It began to sit in panels of two or three judges, effectively transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts.
    • Second-expansion of own role by the SC-The Court began deciding cases based on a certain conception of its own role -whether as a sentinel of democracy or protector of the market economy.
    • The focus of the judgement on the result rather than reason: This unique decision-making process sidelined reason-giving in preference to arriving at outcomes that match the Court’s perception.
    • Consequences of the eclecticism
      • Rise of doctrinal incoherence and inconsistency: The failure to give reasons contributed not only to methodological incoherence but also to serious doctrinal incoherence and inconsistency across the law.
      • Conflicting decisions and interpretations: This approach can be best described as panchayati eclecticism, with different Benches adopting inconsistent interpretive approaches based on their conception of the Court’s role, and arriving at conclusions that were often in tension with one another.
      • Decision detached from precedents and established methods: The imagery that panchayati eclecticism is meant to invoke is that of a group of wise men and women (applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine and established interpretive methods.

    Fourth phase- based on the purpose

    • Purpose of enactment of the Constitution as critical: In the fourth phase, the Court has acknowledged as critical to its interpretive exercise the purpose for which the Constitution has been enacted.
    • The realisation of revolutionary and transformative potential: The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.
      • Renaissance in decisions: With about a dozen significant Constitution Bench decisions from the Supreme Court since September 2018, there has been a renaissance in decision-making by Constitution Benches.
      • The most important decisions of this period include-
      • Court’s decisions striking down Section 377 and the criminal offence of adultery.
      • And including the office of the Chief Justice of India within the scope of the Right to Information Act.

    Conclusion

    With the interpretation process entering in the fourth phase-realising the purpose of enactment of the Constitution- Indian judiciary is on the right track, however, facets of phase 3 continue to linger on it. The Supreme Court must avoid getting in phase three mode to in order to realise the purpose it was entrusted with.

     

     

     

     

  • Oslo Peace Accord

     

    Palestinian officials threatened to withdraw from key provisions of the Oslo Accords, which define relations with Israel, if U.S. President Donald Trump announces his Middle East peace plan next week.

    The Oslo Peace Accord

    • The Oslo Accords were a landmark moment in the pursuit of peace in the Middle East.
    • Actually a set of two separate agreements signed by the government of Israel and the leadership of the Palestine Liberation Organization (PLO)—the militant organization established in 1964 to create a Palestinian state.
    • The negotiations between Israel and the PLO that ultimately led to the Oslo Accords began, in secret, in Oslo, Norway, in 1993.
    • The Oslo Accords were ratified in Washington, D.C., in 1993 (Oslo I) and in Taba, Egypt, in 1995 (Oslo II).
    • Sometimes called Oslo II, the interim agreement set out the scope of Palestinian autonomy in the West Bank and Gaza.
    • The interim pact was only supposed to last five years while a permanent agreement was finalised but it has tacitly been rolled over for more than two decades.

    A final nail in the coffin

    • World powers have long agreed that Jerusalem’s fate should be settled through negotiations between Israel and the Palestinians.
    • The Palestinians see east Jerusalem as the capital of their future state and believe Trump’s plan buries the two-state solution that has been for decades the cornerstone of international Middle East diplomacy.

  • Sagarmatha Sambaad

     

    Nepal has invited the PMs of India and Pakistan along with several other heads of government and heads of state for the Sagarmatha Sambaad.

    Sagarmatha Sambaad

    • Sagarmatha Sambaad is a multi-stakeholder, permanent global dialogue forum initiated by the Government of Nepal.
    • It is scheduled to be held biennially in Nepal.
    • The Sambaad (dialogue) is named after the world’s tallest mountain Sagarmatha (Mount Everest).
    • The Everest is also a symbol of friendship and is meant to promote the notions of common good and collective well-being of humanity.
    • The first episode of the Sambaad is scheduled to be held from 2 to 4 April 2020 by the Ministry of Foreign Affairs (Nepal).
    • The theme of the first Sambaad is “Climate Change, Mountains and the Future of Humanity.”

    Significance

    • This is the first ever multi-stakeholder dialogue and a biggest diplomatic initiative in Nepal’s recent history.
    • India and Pakistan have been caught up in a cycle of hostility, which had prevented Islamabad from hosting the SAARC Summit in 2016.
    • The Kathmandu event aims to draw all the SAARC leaders and provide an opportunity to break the ice.
    • India had accused Pakistan of cross border terrorism while boycotting the Islamabad summit leading to its cancellation.

  • [op-ed snap] It’s not yet Howdy, Modi!

    Context

    Persistent in their efforts to remake their countries and their engagement with the world, Mr Modi and Mr Trump are shaking up the bilateral ties between the two countries, and the resultant flux could outlive their tenures.

    The emergence of both the leaders on similar promises

    • Improvements over the legacy of their predecessors: Both leaders continuously reiterate that their predecessors were incapable of protecting national interest.
      • The compulsion to reframe the national interest: Such premises commits them both to reframe the national interest, and both have articulated it with clarity and force.
      • For instance, Mr Modi, in Houston in September 2019 and Mr Trump in Davos this week, went great lengths to lay out figures that presented their respective regimes as the most effective guardians.
    • Both have cultural and economic agenda: Both dispensations believe that “the people” had been given a raw deal by earlier regimes.
      • Both have a cultural and economic agenda.
      • National awakening: They are now leading a national reawakening, and working hard for the hard-working people.
      • Both believe that cultural nationalism is a force for the good.
      • Securing borders and entry barriers: Both believe that national borders need to be strengthened by stricter monitoring and setting new bars for entry.
      • Renegotiating the treaties: Both leaders try to renegotiate the contract between the union and the States, and between citizens and the state within their respective countries.
      • The supremacy of executive: They assert the supremacy of the executive over the legislature and the judiciary.
      • Shared values: The notion of shared values of India and the U.S. has acquired a whole new meaning under Mr Trump and Mr Modi.

    Politics and governance

    • Hopes of status-quo in bilateral relations shattered: It was hoped that the stronger U.S.-India ties- that have autonomous drivers of convergence-would not be impacted by the nationalist politics of these two leaders.
      • But both leaders have been remarkably true to their politics in their governance.
      • Current tumult in the India-US ties: Shared values notwithstanding, national interests as perceived by these leaders have several points of divergence and therein lies in the current tumult in India-U.S. ties.
      • Opposition to the “world order”: Mr Trump has been outspokenly confrontational with the “world order” that he says has worked against American interests.
      • Dismantling the treaties: America under Mr Trump has wrecked treaties such as the Paris climate agreement and institutions such as the World Trade Organization and the United Nations, disrupting the “rule-based order”.
      • India’s relations with Bangladesh: India’s spirited outreach in the neighbourhood is still playing out. India’s historically warm ties with Bangladesh have been frayed after CAA.
    • India’s ambitions on the global level
    • The seat at the UNSC: India under continues to push for more space for itself in global affairs by seeking a permanent seat in the UN Security Council and membership.
    • NSG membership: India is also pushing for the membership of the Nuclear Suppliers Group.
    • The US actions at global levels
      • Expansion of the principle of the pre-emptive strike: America expanded the principle of pre-emptive strike to include the assassination of a senior official of Iran.
      • Renegotiating the treaties: After dismantling the North American Free Trade Agreement, Mr Trump forced Mexico and Canada to accede to his demands in a new trade deal.
    • The India-US relations and impact of U.S. relations with other countries
      • Impact on India-US ties: India’s ties with the U.S. are impacted by America’s ties with India’s adversaries and neighbours, China and Pakistan.
      • Hopes of alignment in the Indo-US ties: Mr Trump’s bluster against both had lit hope that there would finally be a near-complete alignment between India and the U.S. on strategy.
      • US-Iran conflict: Despite Mr Trump’s avowed opposition to America’s endless wars in West Asia, the US is going against Iran headlong, which is not in India’s interest.
      • Relations with Gulf Countries: Trump and Mr Modi share a strong bonding with the Gulf Cooperation Council kings, but their courses in the region are diverging.
      • US-Pakistan coming closer once again: The American President’s impatience to get out of Afghanistan has already pushed his administration closer to Pakistan, which is now further necessitated by his adventurist Iran policy.
      • The US disregard for China’s expansionist policies: Mr Trump has been singularly focused on one question-trade. He cares little about China’s expansionism and at any rate that is not a factor in his ties with other Asian countries.

    India-US ties- Points of fission

    • On the trade front: Mr Trump has bracketed India and China as two countries that have duped his predecessors to gain undue advantage. Which is far from seeing India as deserving special concessions to counterbalance China as old wisdom demanded.
      • Ending GSP: The US ended India’s status under the World Trade Organization’s Generalized System of Preferences and took other punitive measures.
      • India trying to decrease the trade surplus: By increasing hydrocarbon imports from the U.S., the government is trying to reduce India’s trade surplus.
    • Restrictions on H1-B visa: The US has tightened the restrictions on the H1-B visa which is used by the Indian companies.
    • Decreasing bipartisan support in the US: The mobilisation of Indian diaspora in America by the government has resulted in the inevitable blowback.
      • Diaspora divided and bipartisan support waning: The diaspora has been divided, and the bipartisan support for India is now squandered. Progressive sections on the Democratic side and religious libertarians and evangelicals on the Trump side are both concerned over India’s actions back home.

    Conclusion

    Partnership with America is critical to India. India must take the steps to align the interest but whenever it diverges India must take measures to minimise its impact on India while furthering its interests.

  • ICDS Programme

     

    Centre seeks to revamp the ICDS scheme in urban areas. For this NITI Aayog will develop draft policy, which will be circulated to the Ministries for consultations.

    Integrated Child Development Services (ICDS)

    • The ICDS is a government programme in India which provides food, preschool education, primary healthcare, immunization, health check-up and referral services to children under 6 years of age and their mothers.
    • The scheme was launched in 1975, discontinued in 1978 by the government of Morarji Desai, and then relaunched by the Tenth Five Year Plan.
    • Tenth FYP also linked ICDS to Anganwadi centres established mainly in rural areas and staffed with frontline workers.
    • The ICDS provide for anganwadis or day-care centres which deliver a package of six services including:
    1. Immunization
    2. Supplementary nutrition
    3. Health checkup
    4. Referral services
    5. Pre-school education(Non-Formal)
    6. Nutrition and Health information

    Implementation

    • For nutritional purposes ICDS provides 500 kilocalories (with 12-15 grams of protein) every day to every child below 6 years of age.
    • For adolescent girls it is up to 500 kilo calories with up to 25 grams of protein every day.
    • The services of Immunisation, Health Check-up and Referral Services delivered through Public Health Infrastructure under the Ministry of Health and Family Welfare.

    Revamp for Urban Areas

    • Health and ICDS models that work in rural areas may not work in urban areas because of higher population density, transportation challenges and migration.
    • Children in urban areas were overweight and obese as indicated by subscapular skinfold thickness (SSFT) for their age.
    • The first-ever pan-India survey on the nutrition status of children, highlighted that malnutrition among children in urban India.
    • It found a higher prevalence of obesity because of relative prosperity and lifestyle patterns, along with iron and Vitamin D deficiency.
    • According to government data from 2018, of the 14 lakh anganwadis across the country there are only 1.38 lakh anganwadis in urban areas.

  • De-criminalization of Politics

     

    The Supreme Court has agreed to examine a proposition made by the Election Commission (EC) to ask political parties to not give a ticket to those with criminal antecedents.

    Cleansing of Political Parties

    • The judgment had urged Parliament to bring a “strong law” to cleanse political parties of leaders facing trial for serious crimes.
    • The ruling concluded that rapid criminalisation of politics cannot be arrested by merely disqualifying tainted legislators but should begin by “cleansing” the political parties.
    • The court had suggested that Parliament frame a law that makes it obligatory for political parties to remove leaders charged with “heinous and grievous” crimes like rape, murder and kidnapping, only to a name a few, and refuse ticket to offenders in both parliamentary and Assembly polls.
    • It had also issued guidelines, including that both the candidate and the political party should declare the criminal antecedents of the former in widely-circulated newspapers.

    Why such move?

    • 46% of Members of Parliament have criminal records.
    • A move to steer politics away from the denizens of the criminal world would definitely serve national and public interest.
    • The EC had tried several measures to curb criminalisation of politics but failed.

  • [op-ed snap] As India prepares to honour Bolsonaro

    Context

    India has invited the Brazilian President to be a guest of honour for Republic Day 2020. It is also a good opportunity for focusing on intra-BRICS partnership and trade.

    Future of the BRICS

    • To move towards multi-polarity: This was set up as a move towards greater multi-polarity; hence the spread across three continents and both hemispheres.
      • Infirmities in the group: The BRICS combination accounts for about one-third of global output, but a glance at the GDP t and growth rates will show the infirmities of the group.
      • Differences in GDP: In terms of GDP, China occupies the second position; India the fifth; Brazil the ninth; Russia the 11th; and South Africa the 35th.
      • Differences in growth rate: In terms of growth rates, China grew at 6%; India at 4.5%, Russia 1.7%, Brazil 1.2% and South Africa 0.1%.
      • Both politically and economically, Brazil and South Africa have been the laggards in recent years. But there are certain similarities as well.
    • Similarities in the group: Each country has different economic and political leverage and its own burden of domestic and external issues.
      • Decision-making structure: They all share the benefits of autonomous decision making.
      • Non-affiliation: The members of the group have non-affiliation with any binding alliances.
      • Informal structure: The group’s informal structure is an advantage for coordination among the most influential non-Western countries.
    • Challenges to the survival of the group: The BRICS group can survive only if its members maximise their congruencies to the extent possible. Following are the challenges to the existence of the group-
      • The growing intensity of Sino-Russian ties.
      • The pro-American leanings in Brazil.
      • The socio-economic difficulties of South Africa after nine years under the controversial Jacob Zuma.
      • India’s many difficulties with China, including its abstention from the Regional Comprehensive Economic Partnership.

    Achievement of the grouping

    • New Development Bank: The main achievement of BRICS is the New Development Bank, with each country contributing equally to its equity.
      • The bank has so far financed over 40 projects at a cost of $12 billion.
      • The BRICS countries are also developing a joint payments mechanism to reduce foreign trade settlements in U.S. dollars.
    • BASICS: An offshoot of the group, dealing with climate change, is BASIC (BRICS without Russia).
      • BASICS met at the Spain conference last month and reiterated its support to the Paris Agreement.
    • India’s lead role: India is taking the lead role in-
      • Digital health, Digital forensics
      • Film technology.
      • Traditional medicine.
      • Sustainable water management,
      • Internships and fellowships.

    Brazil-India relation

    • Visa waiver for Indians: Brazil declared the decision to waive visa requirements for Indian citizens.
    • Potential for investments: There is potential for Brazilian investments in the sectors of space and defence, agricultural equipment, animal husbandry, post-harvest technologies, and bio-fuels.
    • Low two-way trade: The total two-way trade is at a paltry $8 billion, and the prospect of closer economic ties, however desirable, would require considerable optimism.

    Conclusion

    Both India and Brazil need to further deepen the ties and increase cooperation in various areas of cooperation. BRICS, despite the various challenges, need to focus on congruencies between them and work towards greater cooperation.

    .

     

  • Corruption Perception Index 2019

    The Corruption Perception report for 2019 has been released. It has revealed that a majority of countries are showing little to no improvement in tackling corruption.

    About CPI

    • The CPI is annually released by Transparency International.
    • It draws on 13 surveys and expert assessments to measure public sector corruption in 180 countries and territories, giving each a score from zero (highly corrupt) to 100 (very clean).

    India’s performance

    • India’s ranking in the CPI-2019 has slipped from 78 to 80 compared to the previous year.
    • Its score of 41 out of 100 remains the same.
    • CPI highlighted that unfair and opaque political financing, undue influence in decision-making and lobbying by powerful corporate interest groups, has resulted in stagnation or decline in the control of corruption.

    Global corruption

    • In the Asia Pacific region, the average score is 45, after many consecutive years of an average score of 44, which “illustrates general stagnation” across the region.
    • China has improved its position from 87 to 80 with a score of 41 out of 100, a two-point jump.
    • Despite the presence of high performers like New Zealand (87), Singapore (85), Australia (77), Hong Kong (76) and Japan (73), the Asia Pacific region hasn’t witnessed substantial progress in anti-corruption.
    • In addition, low performers like Afghanistan (16), North Korea (17) and Cambodia (20) continue to highlight serious challenges in the region.
    • The top ranked countries are New Zealand and Denmark, with scores of 87 each, followed by Finland (86), Singapore (85), Sweden (85) and Switzerland (85).

  • ICJ ruling on Rohingyas

     

    • The International Court of Justice (ICJ) ruled that Myanmar must take effective measures to protect its Rohingya Muslims, including protecting evidence relating to allegations of genocide.
    • It is important to note that these directions are “provisional measures” until the ICJ can finally decide if Myanmar has been committing genocide against the Rohingya. The final verdict could take years.

    What is the case against Myanmar?

    • Last year, the Republic of the Gambia moved the ICJ against Myanmar over alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
    • The Gambia urged the ICJ to direct Myanmar to stop the genocide, ensure that persons committing genocide are punished, and allow the “safe and dignified return of forcibly displaced Rohingya”.
    • The Gambia and Myanmar are parties to the Genocide Convention that allows a party to move the ICJ for violations.
    • Disputes between the Contracting Parties are settled according to Article 9 of the Genocide Convention.

    How did Myanmar respond?

    • Myanmar asked the ICJ to remove the case from its list, citing lack of jurisdiction of the court.
    • Myanmar alleged that the proceedings before the court were instituted by the Gambia, not on its own behalf, but rather as a “proxy” and “on behalf of” the Organisation of Islamic Cooperation (OIC).
    • Gambia is a member of the OIC, which includes 53 Muslim-majority nations.
    • Myanmar cited the Gambia’s reliance on OIC documents to allege genocide and said the Gambia did not point to specific violations of the Genocide Convention.
    • The court refused to accept Myanmar’s argument and said the fact that the Gambia “may have sought and obtained the support of other States or international organizations in its endeavour” does not take away from its right to bring a case against Myanmar.

    Does the ICJ ruling indict Myanmar?

    • Although a ruling against Myanmar dents its image internationally, the order of provisional measures does not translate into a finding against Myanmar.
    • While granting provisional measures, the court is not required to ascertain whether Myanmar violated the Genocide Convention.
    • The court found that it is sufficient at this stage “to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfillment of the Genocide Convention”.
    • Myanmar leader Aung San Suu Kyi’s personal appearance before the ICJ to lead the defence of the military, however, shows the great stakes her country had in the case.

    Effects of non-compliance for Myanmar

    • For its part, Myanmar has denied that its military or paramilitary has participated in genocide of Rohingya and it is unlikely to alter its position.
    • Provisional measures are essentially a restraining order against a state when a case is pending and can be seen as, at most, a censure.
    • Provisional orders cannot be challenged and are binding upon the state.
    • However, limitations in enforcing decisions of the ICJ are widely acknowledged by law experts.

    What are these limitations?

    • As per Article 94 of the Charter of the United Nations, all member states are required to comply with decisions of the ICJ.
    • However, any action by a state can be secured only through consent of the state in international law.
    • When a state fails to comply, the Security Council has the power to impose sanctions against it and ensure compliance when international security and peace are at stake.
    • So far, the Security Council has never taken a coercive measure against any country to get an ICJ ruling implemented.
    • Even with the stepping in of the Security Council, there are several hurdles in enforcement of ICJ decisions.
    • Any one of the five permanent members of the Security Council with veto powers can block the enforcement of an ICJ decision against itself or its ally.

  • Enemy Property in India

    • A Group of Ministers (GoM) headed by Union Home Minister will monitor the disposal of over 9,400 enemy properties, which the government estimates is worth about Rs 1 lakh crore.
    • Two committees headed by senior officials will be set up for the disposal of immovable enemy properties vested in the Custodian of Enemy Property for India under The Enemy Property Act.

    What is “Enemy Property”?

    • In the wake of the India-Pakistan wars of 1965 and 1971, there was migration of people from India to Pakistan.
    • Under the Defence of India Rules framed under The Defence of India Act, 1962, the Government of India took over the properties and companies of those who took Pakistani nationality.
    • These “enemy properties” were vested by the central government in the Custodian of Enemy Property for India.
    • The same was done for property left behind by those who went to China after the 1962 Sino-Indian war.
    • The Tashkent Declaration of January 10, 1966 included a clause that said India and Pakistan would discuss the return of the property and assets taken over by either side in connection with the conflict.
    • However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself.

    How did India deal with enemy property?

    • The Enemy Property Act, enacted in 1968, provided for the continuous vesting of enemy property in the Custodian of Enemy Property for India.
    • The central government, through the Custodian, is in possession of enemy properties spread across many states in the country.
    • Some movable properties too, are categorised as enemy properties.
    • In 2017, Parliament passed The Enemy Property (Amendment and Validation) Bill, 2016, which amended The Enemy Property Act, 1968, and The Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

    Who is an Enemy?

    • The amended Act expanded the definition of the term “enemy subject”, and “enemy firm” to 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 the succeeding firm of an enemy firm, irrespective of the nationality of its members or partners.
    • The amended law provided that 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.
    • 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 the government may issue directions to the Custodian for this purpose.

    Why were these amendments brought?

    • The thrust of the amendments was to guard against claims of succession or transfer of properties left by people who migrated to Pakistan and China after the wars.
    • The amendments denied legal heirs any right over enemy property. The main aim was to negate the effect of a court judgment in this regard.

    What did these court orders say?

    • One major judgment was passed in the case of the estate of the erstwhile Raja of Mahmudabad, who owned several large properties in Hazratganj, Sitapur and Nainital.
    • Following Partition, the Raja left for Iraq and stayed there for some years before settling in London.
    • After The Enemy Property Act was enacted in the year 1968, the Raja’s estate was declared enemy property. When the Raja died, his son who stayed in India staked claim to the properties.
    • After a legal battle that lasted over 30 years, an apex court Bench on October 21, 2005, ruled in favour of the son.
    • The verdict opened the floodgates for further pleas in courts across the country in which genuine or purported relatives of persons who had migrated to Pakistan produced deeds of gift claiming they were the rightful owners of enemy properties.
    • On July 2, 2010, the then UPA government promulgated an Ordinance that restrained courts from ordering the government to divest enemy properties from the Custodian.
    • The 2005 SC order was thus rendered ineffective, and the Custodian again took over the Raja’s properties.

    Enactment of the Amended Law

    • A Bill was introduced in Lok Sabha on July 22, 2010, and subsequently, a revised Bill was tabled on November 15, 2010. This Bill was thereafter referred to the Standing Committee.
    • However, the said Bill could not be passed during the term of the 15th Lok Sabha, and it lapsed.
    • On January 7, 2016, the President of India promulgated The Enemy Property (Amendment and Validation) Ordinance, 2016, which was replaced by the Bill that became law in 2017.