More than anything else, the Enemy Property Act is a face-off between the government and the courts, says Vaibhav Vats
HOW CAN an Indian citizen be an enemy? For more than four decades, Mohammed Amir Mohammed Khan has been fighting a legal and political battle, seeking an answer to this question. It all dates back to 1957. Khan’s father, MA Ahmad Khan, migrated to Pakistan. In 1968, the government passed the Enemy Property Act, seizing properties of those who had migrated. Khan and his mother, however, stayed back in India. “We have always been Indian citizens,” he says.
A 2005 Supreme Court (SC) judgement restored him as the legal heir to the confiscated properties. It seemed the end of a long battle.
On 2 July this year, the government’s decision to introduce an ordinance, overruling the SC judgement, meant that Khan was back to square one. “What was the national emergency to bring an ordinance after more than 40 years?” he asks. It may seem pompous for one man to claim that he is being targeted by a legislation. Not when you know that of the 2,100 ‘declared’ enemy properties, 1,100 belong to Khan, the ‘Raja’ of Mahmudabad.
Even more curious is the role of the man at the heart of promulgating this new ordinance — Home Minister P Chidambaram. In 1996, he was Commerce Minister when Khan approached him to review his case — the enemy property has since moved to the purview of the MHA. “We didn’t receive any response and decided to move the Bombay High Court,” he says. In April 2002, during an SC hearing, Chidambaram represented a rival client laying claim to the property whose documents were ultimately found to be forged. Eight years later, he has once again appeared on the horizon.
Khan alleges that a nexus between the State and big business is targeting him, but a more disturbing aspect is the attempt to overrule an SC judgement by taking the disputed properties outside the jurisdiction of courts. The ordinance, which was later converted into a Bill and eventually not tabled, asks every disputed party to prove its claims to the State. Besides Khan, hundreds of small properties in the old Muslim neighbourhoods of Delhi, Kolkata and Hyderabad stand affected. “They’re superseding the court,” says Sohail Yusuf, whose properties in Delhi’s Jama Masjid were appropriated in 2009 under the Act. “Yeh to badmashi hai.”
Of the 2,100 ‘declared’ enemy properties, 1,100 belong to MAM Khan, the ‘Raja’ of Mahmudabad
This form of retrospective legislation has had many precedents, most famously the Shah Bano case. “The government often doesn’t like a judgement, so it legislates itself out of it,” says Maja Daruwala, director, Commonwealth Human Rights Initiative. “In our Constitution, the court’s ruling is law, but Parliament is supreme.”
Strident protests from Opposition, especially the SP and RJD, have forced the government to back down. But the insidiousness with which the ordinance was tabled, along with the lack of clarity about the government’s motives, reinforce the impression that vested interests are at play. The fracas over the Nuclear Bill has barely receded, but the government seems to be falling into a habit of trying to tweak laws by stealth.