Maadhyam is an initiative to capture inputs from stakeholders and convey them to policy makers with the aim of making policy formulation a participatory exercise. This will be done through a digital platform which will enable free flow of communication and information between different policy stakeholders.
Stakeholders are invited to share their inputs about select policy issues and those inputs will be circulated among Members of Parliament hoping that it will aid in their legislative duties.
Maadhyam is founded by Maansi Verma, a law graduate from Campus Law Centre, University of Delhi, a Young India Fellow and a LAMP Fellow. She currently works as a Legislative and Policy Analyst.
Introduction to the Bill
In the year 2016 alone, the government has failed to get this curiously named Bill passed in 3 consecutive parliament sessions and as a result has had to come out with an Ordinance every time. Currently the fourth Ordinance is in operation and it will also lapse if the Bill doesn’t clear the Rajya Sabha hurdle this time as well.
As per Constitution, law making through an Ordinance is reserved for urgent matters when Parliament is not in session and the need to come out with a law is imminent. But this is a tool often used by governments to bring into existence controversial pieces of legislation on which they are otherwise bound to face resistance. And the same is true for this Bill also which carries its fair share of controversy.
Who is an Enemy anyway?
Which is the first nation that comes to our mind when we hear the word ‘Enemy’? And so, no prices for guessing that this Bill has reference to Pakistan. The reference goes like this –
All the residents of Pakistan at the time when India and Pakistan were at war in 1965 were deemed as enemies because Pakistan was an enemy nation then. These residents also included those who migrated to Pakistan from India during the war. They left behind families and properties. These properties were called ‘Enemy Property’ and a government appointed Custodian was made responsible to manage the properties. This was done to ensure that these properties were not used against the interest of the nation.
Then the war came to an end. Pakistan was no longer an enemy and its residents were no longer enemies. But the government continued to hold on to their properties in India as enemy properties.
So, what’s the catch here?
The original Act of 1968 provided that a citizen of India will not be deemed as enemy and his/her property will not be deemed an enemy property. This meant that though my ancestors chose to migrate to Pakistan during the war, I chose to stay back in India and so I will not be deemed an enemy because I am a legitimate citizen of India. Further, as long as the property belonged to my ancestors, it will be enemy property but if it passed on to me on their death, then it will no longer be an enemy property, as it now belonged to a legitimate citizen of India.
Moreover, it is anybody’s guess that those who migrated to Pakistan during the war majorly belonged to a particular religious community. So, the families they left behind were also of that community and now the legitimate owners of those deemed enemy properties are overwhelmingly of one religious community - most of them are Muslims.
But the government which held on to these properties did not wish to return them even when the enemy property status came to an end. This prompted the legitimate owners to sue the government and case after case, various high courts as well as the Supreme Court criticized the government for holding on to the properties and violating the rights of the owners. The government was directed in many of these cases to return the properties.
Why is the government reluctant to return the properties?
The Supreme Court in a landmark judgment of 2005 observed that many of these properties were now being used by government officers either for official or residential purposes. It would be a great inconvenience if now they were asked to return these properties.
How is the law being amended now?
The government is now saying that exclusion of legal heirs and successors from the definition of enemy in 1968 was an error. And it is because of that government is being mired in all the law suits and is being made to return the properties. So it is bringing an amendment to include legal heirs and successors even if they are Indian citizens. And this change is being brought retrospectively, i.e. from 1968 onward as if the law always included legal heirs and successors.
This means that all judgments of courts will be overturned and any sale or purchase of these properties, since 1968, will be nullified. Through other amendments, the government wants that once it has taken over the property, it will never have to return them except where the government itself decides that it was not an enemy property.
Further, the 1968 Act provided that if and when such properties are taken over, the Custodian would provide for maintenance of those who were dependent on the properties. Now, this provision will be removed, in effect saying that those who were dependent on those properties will not only be devoid of any compensation but they will also not get any maintenance. This is even worse than land acquisition.
The government’s intent behind such a move is not clear, but as per government’s own estimate, there are a total of 9280 such properties all across India, with total area - 517603971.62 Sq.Ft. and total valuation of approx Rs.1 Lakh Crores.
Will the Bill get passed this time?
Despite widespread opposition, the Bill had a smooth sailing in Lok Sabha where the ruling party is in majority. In Rajya Sabha, the Bill first got referred to a Select Committee, where again, in spite of a large number of MPs dissenting, a favourable report was submitted. Since then, the Bill has faced hostility and opposition from all major political parties for its obvious fallacies and unconstitutional provisions.
The Supreme Court is also seized of the matter where all the four ordinances have been challenged.
Should the Bill get passed this time?
What do you think? Does passing such a Bill make sense? Does it serve any purpose? Is it violative of rights of legitimate citizens of this country and punishes them for what their ancestors did?
Please go through the text of the Bill here.