In the name of the father

first_imgIs Mohammad Amir Mohammad Khan of Mahmudabad, a former lawmaker who chose to remain an Indian citizen even when his father emigrated to Pakistan in 1957, an ‘enemy’ of the state? Should former Indian cricket captain, the late Mansur Ali Khan Pataudi, his wife Sharmila Tagore and their children Saif,,Is Mohammad Amir Mohammad Khan of Mahmudabad, a former lawmaker who chose to remain an Indian citizen even when his father emigrated to Pakistan in 1957, an ‘enemy’ of the state? Should former Indian cricket captain, the late Mansur Ali Khan Pataudi, his wife Sharmila Tagore and their children Saif, Saba and Soha be considered ‘enemies’? It may sound bizarre, but if a new Bill tabled by the NDA government becomes an Act, these are just some of the issues it will throw up at a time when the country is engaged in a furious debate over nationalism, sedition and the rights accorded to minorities in secular India.For, nearly 70 years after Partition and more than 50 years after the 1965 war with Pakistan, the government is trying to rewrite a law that seeks to tackle two sticky subjects at the same time-‘enemy’ and ‘property’. An Ordinance, promulgated on January 7, and converted into the Enemy Property (Amendment & Validation) Bill 2016, which was passed by the Lok Sabha on March 9 despite issues raised by some leaders from the Congress, BJD, TMC, TRS, AIMIM and RSP, aims to take over any property that was owned by a person who emigrated to Pakistan-even if their legal heirs are Indians. The Bill, which amends the original Enemy Property Act, 1968, with retrospective effect, will seemingly nullify a 2005 Supreme Court judgement which had specified that the takeover of such properties must not violate the rights of Indian citizens. On March 15, the Rajya Sabha asked for the Bill to be examined by a select committee.advertisementSome experts believe that the Bill goes against the constitutional guarantee of equality by differentiating between two kinds of Indians-ones whose forefathers moved to Pakistan and ones whose did not. “This will adversely affect the rights of lakhs of Indian citizens and, principally, let us call a spade a spade, of the Muslim community,” Congress MP Shashi Tharoor said in the Lok Sabha. “It is essentially properties of those who went to Pakistan, and that tends to be from only one community, and this is, to my mind, not only borderline and unconstitutional-the court should determine that-but also against the basic principles of natural justice.” The UPA government had promulgated a similar ordinance in 2010 but had allowed it to lapse when its leaders, particularly former prime minister Manmohan Singh, realised the issues it threw up.Click here to EnlargeAt last count, the “enemy properties” marked out by the government stood at 15,143 across 19 states (see map)-from palaces and havelis to private houses, commercial buildings and farmlands-rising dramatically from just over 2,111 in 2011. Of these, the process of taking over 9,400 properties, estimated to be worth Rs 1 lakh crore, and vest them with the Custodian of Enemy Properties of India has already been completed. The Bill also declares null and void any sale or transfer of an ‘enemy property’ by its legal heirs since 1968, thereby impacting hundreds of thousands of people-many of whom are not even aware that the property they own today once belonged to an ‘enemy’. These properties can be taken over by the Indian government and sold to a third party, according to the new provisions, without any recourse in law against such action.The government’s argument is that maintaining these properties and dealing with issues such as litigation and encroachment is cumbersome. The government also suggests that since this property is not being used, it might as well sell it and transfer the money to the Consolidated Fund of India, especially since Pakistan has already sold the properties Indian citizens owned in that country.Though Pakistan had indeed disposed of properties owned by Indians in 1971, the Bill is being described by some experts as an “act of vengeance” that is against the idea of India. “What happened in another country should be of no consequence to us. We are governed by our laws. Shouldn’t the fact that citizens chose to remain in India even if their parents or ancestors migrated to Pakistan count for something? Instead of punishing the ‘enemy’, aren’t you punishing one of your own?” asks advocate Niraj Gupta, an expert on ‘enemy property’ matters. In other words, even if emigration is considered a crime by some overzealously patriotic logic, should a son be punished for the sins of his father?Does choice matter?To better understand the issue, let us consider the live example of the Mahmudabad properties in Uttar Pradesh-located mainly in Lucknow, Sitapur and Nainital.In December 1957, Mohammad Amir Ahmed Khan, then the Raja of Mahmudabad, emigrated to Pakistan and became a Pakistani citizen. His wife, Rani Kaniz Abid, and their son, Mohammad Amir Mohammad Khan, however, chose not to emigrate. This was five years before the concept of ‘enemy property’ was introduced during the war with China in 1962, when the properties held by Chinese citizens in India were vested with a custodian on a temporary basis in order to ensure that they could not be used against the Indian State. When the 1965 war broke out, the provisions of the three-year-old order were extended to Pakistan, and as a result, the Mahmudabad property was taken over by the Union government.advertisementThe Raja died in 1973 in London. His son, who was then pursuing a doctorate in astrophysics at Cambridge, returned to India and made a petition that his father’s property be released to him by the government since he was the legal heir and an Indian citizen.Flagstaff house, the Nawab of Pataudi’s property in Bhopal. Photo: Pankaj TiwariOver the next 24 years, Mohammad Amir Mohammad Khan, who served two terms as a Congress MLA in 1985 and 1989, petitioned the government several times for his property to be released to him. He eventually filed a writ petition in the Bombay High Court in 1997 because the office of the Custodian of Enemy Property of India is located in Mumbai. Amir Mohammad Khan won the case in 2001, and after the then NDA government challenged the high court order, won again in the Supreme Court in 2005. The apex court, in its judgement, said that the Union government had been in illegal possession of his properties since 1973. These properties-most notable among them the Mahmudabad Fort on the outskirts of Lucknow, Butler Palace in Lucknow, the District Magistrate and Superintendent of Police’s official residences in Sitapur, and Hotel Metropole in Nainital-were released to him. Some other properties in Lucknow’s central Hazratganj, however, were released symbolically but not really handed over because of issues raised related to tenancy.This arrangement, however, was disturbed all of a sudden in 2010, when the UPA government promulgated an Ordinance rewriting the original 1968 Enemy Property Act retrospectively. The Custodian’s agents started seizing the Mahmudabad property once again, and did not return it to the family even after the Ordinance was allowed to lapse.Amir Mohammad Khan approached the courts again, first the Delhi High Court, then the Uttarakhand High Court, until the case was transferred to the Supreme Court. On January 7, 2016, the same day that the Supreme Court had fixed a hearing, the Enemy Property (Amendment and Validation) Ordinance was promulgated by the NDA government to change the law retrospectively.Sharmila Tagore at Flagstaff house. Photo: Pankaj Tiwari”What pains me is not that my property is at stake but the larger message this sends. Am I to be damned because I am the son of someone who at one stage in his life supported Pakistan but then changed radically? Am I to be damned because I am a Muslim, or because I was born into an erstwhile feudal family?” the 72-year-old Mohammad Amir Mohammad Khan asks. “While I am the above by accident of birth, I am by unwavering choice an Indian citizen, equal therefore in the eyes of the law and of our Constitution as any other Indian. The new Bill will affect lakhs of Indians, open the doors to unbridled corruption, and make a mockery of all judicial institutions, including the Supreme Court.”The Mahmudabad property is just one of several such cases. In fact, the government’s intentions had become clear more than a year before the new Ordinance was promulgated. In December 2014, for example, the Custodian served a notice on Saif Ali Khan under Section 11 of the 1968 Act, asking why the properties of the former Bhopal state, which he had inherited, should not be deemed as ‘enemy property’. Then, in February 2015, the Custodian went ahead and declared it as ‘enemy property’ on the grounds that the erstwhile Nawab of Bhopal Hamidullah Khan’s eldest daughter Abida Sultan-the mother of reputed diplomat and cricket administrator Shahryar Khan-had emigrated to Pakistan in 1950. This was done even though Abida Sultan had relinquished her rights to succession and to the property, which passed on to her sister Sajida Sultan, who was Mansur Ali Khan Pataudi’s mother, as the sole heir. This transfer of succession was officially recognised by the President of India in 1961.advertisementSaif has secured a stay from court against the Custodian’s attempts to take over the Bhopal property. “There is no question of our property being considered enemy property, even after the new Bill,” Saif’s lawyer Rajesh Pancholi says. “When the President of India has accepted the succession of Sajida Sultan, how can the Custodian issue a notice or an order that contravenes that? What has been done will not stand scrutiny.” But there are some fears that the retrospective powers of the new Bill may end up complicating the matter further.In Bhopal, another group of over 5,000 families that may be affected by the Bill has formed an organisation called the Ghar Bachao Sangharsh Samiti. They are being represented by lawyer Jagdish Chhawni, who says the land in question is in excess of 10,000 acres. Some of his clients had bought the properties at some point over the last five decades, but may now be in danger of losing them because the new Bill deems all past transactions of ‘enemy property’ as null and void.So consider this: even if you purchased a property after examining the seller’s proof of ownership, and by studying the chain of sale deeds over the decades, you could have no way of telling if it is considered ‘enemy property’ by the government. If it was held at any point by a person who was or became a Pakistani citizen, it could be taken away from you. “In 50 years, hundreds of transactions have taken place. You want to nullify all these transactions and you give them no recourse in law. Can this Parliament ever enact this kind of a nonsensical law?” BJD MP Pinaki Mishra asked in the Lok Sabha. “This is an invitation for a writ petition to be filed immediately under Article 226 of the Constitution, and it is going to be stayed on day one.”Some other notable properties already in dispute include land in Shahberi village in Gautam Buddha Nagar, which was sold in 1968 but has been taken over by the Custodian, and a property in the Ranga Reddy district of Hyderabad that has been taken over by the Custodian in its entirety even though only one of its four original owners had emigrated to Pakistan.Permanent enemies?When Union home minister Rajnath Singh introduced the Bill in Parliament, he tried to play down allegations that it was anti-minority by pointing out that the Bill will also apply to properties owned by Chinese citizens.But this brings up another question that is equally troublesome. Unless you are a Capulet or a Montague from the bloody streets of Shakespeare’s Verona, is there really any such thing as a permanent enemy? In today’s political structure of nation-states, there are partners and rivals, allies and hostiles, but these descriptors keep changing over time. Britain and Germany were enemies during the world wars, but they are partners on several fronts now. The relationship between India and Pakistan, more complicated given our birth as twin republics in 1947 and because of continuing cross-border terrorism, is not all that different. Our prime ministers engage with each other intermittently in a bid to restore trade, sporting and government ties, and the advertised long-term goal on either side of the border is to work towards harmony in the neighbourhood.The permanent nature of this Bill, however, assumes that the two countries were always, and will always, remain enemies. And what if India was to go to war with a third country, or was pushed into a situation where it is forced to consider another nation as an enemy? Will properties of Indians who may have emigrated to that country also be taken away then?The ruling BJP went even further in the Lok Sabha, where its Rajasthan MP P.P. Chaudhary said that the Bill should include properties of those convicted in sedition cases. “To my mind, even a person who has been convicted of sedition charges should be treated as an ‘enemy’ and his property should be dealt with under the provisions of this Act,” he declared, asking for “suitable amendments” to be included in the Bill.Should the Enemy Property Bill, then, be a tool in the hands of governments so that they can act against anyone who they perceive is indulging in anti-national activities? And should the family members and descendants of these so-called anti-nationals also bear the brunt? These are questions that will need to be answered, either by Parliament or by the courts, before the Bill can come into effect. Who is an ‘enemy’ and who isn’t is just the tip of the iceberg.Follow the writer on Twitter @_kunal_pradhanlast_img

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