Lawyers who have appeared in cases related to the issue have posed as disinterested political legislators arguing the issue while some political groups have tried to give the matter a communal colour. Lost somewhere in this entire debate is the matter of public interest. The union cabinet has now decided, not with any unanimity, against promulgation of a new ordinance that would have replaced the one issued in July, which vested such properties, with the government. Because of considerable opposition, a bill tore place the July ordinance could not be introduced in Parliament during the recently concluded budget session. A new version, The Enemy Property (Amendment and Validation) Bill, 2010 will now be introduced in the winter session and will presumably be sent to a parliamentary committee for deliberation. The July ordinance was promulgated to ward off litigation on the issue of “enemy properties” – defined as properties left behind by those who migrated to Pakistan and gave up their Indian citizenship. These properties were entrusted to a custodian after the Enemy Property Act was enacted in 1968. The government’s legislative proposal had suggested amendments to the 1968 Act, stating that the property will continue to be vested with the custodian irrespective of whether the heir of the original owner is an Indian citizen or not. There are 2,168 such properties and the issue was precipitated because of a Supreme Court judgment in 2005 in a case featuring Mohammad Amir Ahmad Khan of Uttar Pradesh. The judgment called for transfer of property to heirs of the deceased migrants, provided the heirs were Indian citizens. The plaintiff, coming from a royal lineage and himself a wealthy man, claimed nearly half of the identified “enemy properties” under litigation and the Supreme Court’s ruling gave him possession of his father’s holdings. The tabling of a bill to replace the July ordinance and the debates in Parliament then took a communal turn. The Samajwadi Party,the Rashtriya Janata Dal and Muslim Members of Parliament from the Congress Party opposed the bill, arguing that it would affect the hereditary rights of many heirs, most of whom are from the minority community. When the government relented and suggested amendments which stipulated that the heirs could claim the property provided they could establish their right, the Bharatiya Janata Party then came up with its opposition to any amendment, again presumably because the ones who would gain the most would be Muslims.
The issue has also been muddled with various conflicts of interest as well. Union Home Minister P Chidambaram had himself been a counsel in a case in 2002 against Amir Ahmad Khan. He now claims in a letter to the Hindustan Times that he has no recollection of the case or the parties in the dispute and that the case was not a memorable one. While Minority Affairs Minister Salman Khursheed has represented Amir Ahmad Khan in court, advocate and MP Ram Jethmalani – who signed a joint memorandum addressed to the prime minister along with BJP senior leaders arguing against any change to the proposed bill – was a counsel for tenants on properties claimed by him.
The government’s decision to legislate the bill through the parliamentary route is welcome, as it would generate further debate. But that will only be fruitful if the debate goes beyond communal lines or is extricated from the special interests involved in the matter. Among the properties claimed by Amir Ahmad Khan, for example, are large tracts of agricultural and urban land, apart from buildings and what are now official bungalows. A slew of other writ petitions have also been filed in high courts claiming ownership to various public structures based on lineage.
Amir Ahmad Khan has laid claim to more than 1,100 of the 2,168 cases that are now under dispute. It is somewhat strange that political parties, MPs, ministers and Parliament should be so exercised about what essentially relates to the claims of one individual of “royal” descent. If the government had the public interest in mind, then the issue should have also been addressed by factoring in the various ceiling and land reform acts passed by the state governments. Merely reducing the question of ownership of the various properties to a property dispute that could be resolved by the issue of an ordinance/enactment of a law does not uphold the public interest.
From 50 Years Ago Vol XIi, No 37, September 10, 1960 our delhi letter The Assam Debate – A Post-mortem Prime Minister Nehru proved once again that his flight into philosophy can be a cover for inaction or inappropriate action. The threat to India’s integrity posed by the holocaust in Assam demanded prompt action to bring the culprits to book and inspire the confidence of their victims. Continuing to default in this respect, the Prime Minister thought that a discourse on the ‘fundamentals’ of the conflict would do just as well. No one contested his thesis that India’s social (as distinct from philosophic) traditions being narrow, group conflicts are erupting under democratic government. Questions are, however, being asked: Are the minorities in the different States advised to wait patiently till the social traditions change, in some unspecified future? Is that not the way to tear the Constitution to pieces and break up the unity of India?…