Our Pakistan Fetish

In the aftermath of the Indo-Pak War in 1965 when tempers were high, the government of India, much like the government of Pakistan across the border, passed the Enemy Property Act authorising the confiscation of properties which were owned by ‘enemies’. The primary impact of this act was on property owners in India who migrated to Pakistan, either immediately after Partition, or thereafter. War and its attendant ill-will towards the enemy, meant that the newly created office of Custodian of Enemy Properties seized, with remarkable alacrity, over 2000 properties across the country, many of them wrongly. Lengthy litigations ensued which finally culminated in a 2005 order of the Supreme Court which declared Mohammed Amir Mohammed Khan, the heir of the late Raja of Mahmudabad, the rightful owner of the properties, wrongly classified as ‘enemy property’ by the Custodian. In the process, the Court declared that no property inherited by an Indian national (as MAM Khan was) could continue to be classified as enemy property and further that the Custodian, and by implication, the state, was not the owner of the property but its manager. As a result, several property owners, wrongfully deprived by the Custodian, felt that just deserts were at hand.

But the government had other ideas. In a curious set of incidents which were set in motion by an ordinance which sought to overrule the Supreme Court decision, to a Bill introduced in Parliament in the Budget Session earlier in the week that attempts to respect the Supreme Court decision per se albeit taking away the ground beneath its feet, the government has shown an uncharacteristic zeal in ensuring that property owners across the country, who would be rightful beneficiaries of the Supreme Court order, remain deprived of what is rightfully theirs. It has done this, ostensibly to alleviate the difficulties faced by the Custodian in sustaining his actions under the Enemy Property Act. Though that’s precisely what the implication of the Supreme Court order was—that the Custodian should face difficulties, permanent roadblocks preferably, when it sought to seize and manage properties which were owned by Indian nationals. So why is the Home Ministry keeping up its belligerence in overturning the judicial verdict, and that too with such abstruse reasons? Surely 2000 properties scattered across the country wouldn’t exactly rank as top priority for a Home Minister faced with cross-border terror threats, home grown Naxal lawlessness, Telengana and Gorkhaland statehood demands, investigations into corruption in government, the Supreme Court striking down the CVC appointment… I could go on for a while. But it’s sufficient to realise that there is clearly more to this issue than what meets the eye.

The political charge which accompanies the vexed issue of enemy properties can perhaps be best explained by its moniker. ‘Enemy property’ the term itself, throws up a heady concoction of fervent nationalism, an immediate identification of the other, a not-too-subtle dash of Pakistan, and provides a readily available medium to assert this nationalistic fervour—by seizing properties belonging to so-called ‘enemies’. Add to this the fact of most of the owners of the properties being Muslim, and most of the tenants, purely probabilistically Hindu (I don’t have figures here but approximating from India’s overall demography), and one has a fresh whiff of communal conflagration. A conflagration not in the least helped by the BJP claiming most outcomes which benefit Muslims as ‘minority appeasement’ and the Congress, torn between its hardline Home Minister and several Muslim MPs, doing what it has done best in the UPA-2 government—dithering.

The result of this dithering and the inevitable attempt at a compromise formula is the Enemy Property (Amendment and Validation) Second Bill 2010. By this Bill, the government, while allowing MAM Khan to claim his properties after ‘satisfying the Central government’ that he is a citizen of India by birth (either one is a citizen or he is not, where is the question of subjective satisfaction in this matter?) and the lawful heir of the properties (both of which the Supreme Court has already certified in its judgment), has made it clear that any future divestment of property held by a Custodian, irrespective of its legality, will be only by an order of the central government. No court can in the future, like the Supreme Court did in 2005, order such divestment. At one go, the government has ensured that the court’s wings to perform its job, i.e. uphold the rule of law, in this case, by adjudicating on the rightness or wrongness of ownership of particular properties, have been clipped, while its own discretion to determine on a case-by-case basis which properties can be divested to their rightful owners, or otherwise (to real estate sharks, mall developers and the land mafia) remains unfettered.

The government’s attempt at saving the immediate relief provided by the Supreme Court decision to MAM Khan notwithstanding, its belligerence in legislating on an issue which seemingly does not merit further statutory intervention is a sad reflection on governance in India today.  Not only is it a clear attempt at undermining the rule of law by refusing to allow claimants to property from approaching the Court to reclaim their due, but at the same time it is also symptomatic of a political class which thrives on the politics of hate, of confrontation with Pakistan and skewed definitions of nationalism. Despite decades having passed since the war of 1965 and a decade since the last war at Kargil, the government, by this Bill in 2010 is still seeking revenge for these wars on Indian nationals who migrated to Pakistan during the exigencies of Partition and their present-day Indian heirs. Nothing could be pettier than penalising one’s own citizens for their parents having taken the decision to move to Pakistan. And celebrating the move as an assertion of one’s national identity. Hopefully the government will realise in good time that the Indian Muslims who own these properties are Indians too, as much Indian as the ministers in the government seeking to take away their properties are. And it can start manifesting this realisation by not passing this Bill and consigning the antiquated shibboleth of ‘enemy property’ to the history books, which is where it rightfully belongs today.