Ali Khan Mahmudabad
Parliament recently passed The Enemy Property (Amendment and Validation) Bill, 2016 which says successors of those who migrated to Pakistan during Partition will have no claim over the properties left behind in India.
There are some who argue that it vilfies anyone who was unfortunate enough to have had an ancestor who migrated to Pakistan. That the sins of the father are being inflicted upon the son. Here is one such argument.
The immediate result of the partition of India in 1947 was the death of a million people and mass migration of more than 15 million people. But Partition did not finish there.
Families such as mine suffered internal partitions. My grandfather was a member of the Muslim League and moved to Pakistan in 1957. His wife, his son and his brother always remained Indians.
Indeed, his brother wrote a letter to Jinnah asking what provisions there would be for the protection of minorities and Shias in Pakistan. In a letter to his tutor J. A. Chapman, he wrote, “I have not yet gone to Pakistan and I have no intention of doing so.”
My grandmother did not even want to consider moving away and my father, who was all of 4 years old at partition, travelled on her Indian passport. Meanwhile, my grandfather was immediately disillusioned with Pakistan and moved away within two years, first to Iraq and then to England.
In the 1960s, at a conference convened by Lord Mountbatten, the last Viceroy of India, he acknowledged his mistake in agitating for a Muslim country in a paper entitled ‘Some Memories.’ Sadly, political ‘mistakes’ can have ramifications that are felt for generations.
In 1965, when Pakistan went to war with India, both the countries instituted a set of laws that later came to be known as the Enemy Property Act. This was nothing new. Earlier in the century, America, the United Kingdom, Germany and many other countries also had similar legislations.
Following international norms, the Indian act was also temporary in nature and temporarily vested the properties and belongings of a citizen of an enemy country in a Custodian appointed by the State for the purpose of management. However, when the war ended, the government continued to hold the properties.
In 1973, my grandfather died a broken man, twice exiled, as he himself put it. His son, my father, who had always been an Indian citizen, then began a legal battle that spanned almost 40 years and went all the way from the civil court to the Bombay High Court and finally the Supreme Court in 2005. He won at each stage.
The Supreme Court held that an Indian citizen could in no way be held to be an enemy and that once my grandfather passed away, my father inherited his ancestral properties which were only temporarily vested in the state. The tag of enemy which I had heard associated with my family as child, even before I knew what an enemy meant, was finally removed. Importantly, the judges observed that ‘to be just and act in a just manner is writ large in our constitution and the laws.’ After all it is justice that is the most sacred covenant between citizen and state.
The government appealed the decision of the Supreme Court but this was dismissed. However, even the verdict of the court of highest appeal did not satisfy them. Five years after my father won the case, UPA-II passed a retrospective ordinance that changed the very nature of the law in order to undo the Supreme Court’s judgment. They changed the temporary nature of the vesting in the custodian into a permanent vesting and once again took over various properties including religious trusts.
A contingent of armed policemen was sent to our home and they camped inside the entrance. This was despite the fact that our home is the centre of many religious activities throughout the year and much of it is a public, religious and charitable trust. The ordinance did not pass muster in Parliament and so another legal battle began.
We fought in the courts to get back the properties that had been taken under the now lapsed ordinance. In January 2016, the current government promulgated another ordinance even more vicious than the first. They re-promulgated it five times – a first in India’s history. The Supreme Court recently held that the re-promulgation of ordinances is a fraud on the Constitution. Our lives were once again put on hold as we watched the state bludgeon its way into getting what it wanted.
During the first legal round up to 2005, my grandmother, grand-uncle, grand-aunts and various other elders, all Indians, passed away before the blemish of ‘enemy’ was removed from our family’s name. In the second legal battle, post the 2010 ordinance, a number of uncles, aunts, cousins and other relatives who had momentarily rejoiced at the Supreme Court verdict also passed away with the stigma of being labelled an enemy.
In 2016, the lower house of parliament was able to pass a bill to make permanent the proposed changes in the ordinance using its brute majority. The proposed bill was then sent to the upper house where it did not have a majority and so the proceedings were sent before a committee. A number of people deposed in front of this committee including my father who asked the very fundamental question about how an Indian citizen’s rights could be retrospectively taken away.
The opposition added notes of dissent to the proposed bill as it sought to vilify anyone who was unfortunate enough to have had an ancestor migrate to Pakistan. The fact that they chose India as their homeland did not matter, for the government deemed, that the sins of the father should be inflicted upon the son.
Despite not having a majority in the Upper House, the bill was passed in the presence of 31 members of parliament on the 10th of March 2017. The opposition had been assured the matter would not be taken up that day. A few days later the lower house again ratified the bill. A number of speeches were made during the course of this that not only misrepresented facts but indeed sought to rewrite history.
It was made out as if the intention of the original act was a permanent vesting of the property in the government whereas as was stated earlier and as was held by the Supreme Court, the nature of the vesting was temporary. Indeed, the very designation of the ‘Custodian of Enemy Property’ for the officer who was responsible for managing these properties reflected the temporary and transient nature of the original act. Thus, far from being clarificatory changes, the bill completely rewrites the law retrospectively and even bars people from approaching the civil courts in matters related to enemy property.
Arguments were made that the changes are in the interest of national security. However, since only those Indians who chose to remain in their homeland will feel the consequences of the new law, it seems bizarre to invoke security. Indeed, there will be absolutely no ramifications for any Pakistani citizens or indeed their government.
The fact that Pakistan took over enemy property is often invoked to justify the changes in the law. However, just because there is no rule of law or indeed any effort to preserve the rights of citizens in Pakistan, irrespective of religion or ethnicity, it shouldn’t mean that we in India define natural justice by merely mimicking what they do.
One of the points that was repeated in both houses of parliament was that the Mahmudabad family collaborated with the British in suppressing the uprising of 1857. However, Muqeemuddaula Nawab Ali Khan together with various Hindu rulers was martyred fighting against the British. Another lie that was propagated in parliament was that my grandmother and father came back to India from Pakistan for the properties. However, they had never stopped being Indians in the first place. But then of course it is those with power who re-write history. In our post-truth world it seems the one perennial fact is that everything can be sacrificed at the altar of populism and political power.
Inqilaab-e Aasmaan se kyun na ho uljhan mujhe
Mein pukaaroon dost ko awaaz de dushman mujhe
(Why should I not worry at the churnings of the skies
I call out for a friend but it is an enemy who answers.)
(Ali Khan Mahmudabad is assistant professor at Ashoka University where he teaches political science and history. All views are the author’s