Legislative Business: Consideration and Passing of the Enemy Property (Amendment and Validation) Bill, 2016
March  9,  2016

Speech by Dr. Shashi Tharoor, MP, Thiruvananthapuram

Thank you, Mr. Chairman. I think, we are, perhaps in the debate, overlooking that the Chair has actually combined both the Items 19 and 20.

So, first on Item 19, I should mention my strong support for the Resolution of disapproval moved by my friend, Mr. N.K. Premachandran with the support of the Trinamool Congress, who appears to be absent from here, despite their somewhat more unusual statement here.

Mr. Sultan Ahmad has gone along with it. That seems to be a slight inconsistency to which I will come in a minute but the fact is that on this issue, the worry is that the Ordinance clearly amounted to mala fide and really it is a disgraceful attempt to use the President’s legislative powers for the purposes of declaring essentially the judgments of Supreme Court and High Courts as retrospectively ceasing to apply and taking away the jurisdiction of any court to actually adjudicate in the matter. As Shri Premachandran pointed out, it is far from clear that the urgency. I withdraw mala fide but it certainly is a matter of deep concern.

Let me not waste the limited time available to me, Mr. Chairperson, on words. The concern is very important. The urgency that is required to warrant the exercise of emergency powers under Article 123 of our Constitution is simply not demonstrated to be present in this case and the pre-conditions for the exercise of powers under this article seems to be lacking and for this reason, I do support the Resolution disapproving the Ordinance.

But coming now to Item No. 20, we have heard a lot of debate already and I do not want to repeat the arguments that have already been made. But I want to express to you, Hon. Chairperson, and through you, to my very respected friend, the Home Minister: My concern is a concern of principle. I believe that laws in our country should not be made for convenience or to deal with specific cases. A law has widespread application, application throughout the country, and the law by definition has implications that go beyond the specific case the Government might intend to deal with. It is an extremely alarming situation in our Parliament today that we are contemplating passing a Bill by which some citizens and residents of India are being called an enemy. The Bill, which, of course, replaces the Ordinance, will, it seems to me, adversely affect the rights of lakhs of Indian citizens and principally, let us call a spade a spade, of the Muslim community. After all there are not too many Chinese properties at stake. 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 unconstitutional – the court should determine that – but also against the basic principles of natural justice.

In Bhopal, I have read that 10,000 families have been affected by the Ordinance. In other parts of the country, lakhs are affected. In 2013, 2,011 enemy properties were listed. In 2014, 12,090 properties were listed and in 2015, 14, 759 were listed. So, a large number of people are affected by what appears to me to be a rather hastily undertaken action by the Government.

The worry for me is that this law will explicitly create two kinds of Indian citizens. This is why, my colleagues, who have spoken here, including my friend Mr. Pinaki Mishra, have suggested that the amendments cannot stand up to the scrutiny of judicial review because they seek to usurp the rights that have been vested in Indian citizens by the 42nd and 44th Amendments of the Constitution and, of course, they expropriate properties from Indian citizens.

If you look at the judgment of the Supreme Court of 2005, it very clearly affirms the rights of legal heirs who are Indian citizens, to acquire the property that belonged to their ancestors, to their families. And now we are trying to deprive Indian citizens of their right to inherit properties and to seek justice through the judicial process. We are removing the recourse of Indians to courts of law. We are usurping in effect the powers of the judiciary by saying they cannot rule on this.

We are bifurcating the very idea of Indian citizenship because we are saying that those who are born in India, live in India and have Indian passports, but are legal heirs of people who have gone to another country, they should suddenly cease to be treated with all the rights of Indians. To my mind, that is a very dangerous and slippery slope for us to tread. Who knows how it not might be used in future against others? To deprive legal heirs and Indian citizens from inheriting their properties is to deprive them of their legal and Constitutional rights as Indians and these are, let us face it, minority citizens. There is, perhaps, an additional sense of vulnerability involved in that and on top of that, you are going retrospective. This is the Government that has denounced the retrospective taxation law and now it wants to pass a law that retrospectively nullifies all transfers and sales made between 1968 and 2015, even irrespective of the fact the laws that prevailed at that time.

And, on top of that, of course, we should remember, as one of the speakers has already pointed out, the famous biblical injunction, not to visit upon the sons the sins of their fathers. Here we are saying that if your father made a mistake, you, an Indian citizen, have no right to disown that mistake.

Now, I have looked at a comparison of the Enemy Property Act of 1971 and the Enemy Property Bill that is being brought by this Government, and I must say what is worrying is, it is including legal heirs as enemies even if they are citizens of India (or of another country which is not an enemy, but that is academic). Frankly, that will become an issue, if China is to be mentioned…..I yield to him. Yes, you go ahead.



Of course, you have mentioned about the Bill. I am telling you one thing. Does using the citizenship of a country amount to sin? I do not think so. Then again the point is classifying any country. Today you can classify one country as an enemy country. Tomorrow it may not be. Yesterday, it would not have been. How do you classify this? This is a very dangerous situation.



Well, let me come to the point Shri Veerappa Moily has just made because I also want to stress that, in fact, international conventions do not provide for any country to be designated an enemy in peacetime and regulations pertaining to enemy property in all jurisdictions only pertain to property in times of war. So, this is already a slippery issue. It has been mentioned by someone that Pakistan disposed of the property held there by Indian citizens. It is true. But is that the standard by which we should judge India? Do we want ourselves to maintain the highest international standards? Or, would it not be ironic for a BJP Government to reduce India to the level of Pakistan? I do not think this is a good argument at all.

Now the UPA Government has also been mentioned. Yes, we tabled an Enemy Property (Amendment) Bill in 2010. It did not actually go as far as the Bill does. It permits Indian born legal heirs to claim such properties on condition that they establish their status to the satisfaction of the Government, whereas the NDA’s Bill bars all laws and customs governing succession to property from being applicable to so called enemy property, and, of course, it even removes something our Bill had, the duty of the custodian to maintain the enemy or his family in India if he wished to remain in India.

Now in the UPA version, the courts have the power to adjudicate on the question of whether a property is an enemy property or not. Now what has happened is, the BJP, the NDA version says, no, the Executive will decide if a property is an enemy property. The Judiciary will have no say in the matter. The Government in effect is promoting arbitrariness and interfering with the function of the Judiciary. So, my very grave concern about all of this boils down to the legal principle that we are doing great damage to the legal structure of our country. We are raising serious questions about the value of our citizenship. If somehow there are two categories of Indian citizen and one category does not have the rights of other category; that is a very dangerous practice. And, politically, let us face it. It is also dangerous for our country if that second category does not have the same rights. Essentially, 99.9 per cent of them belong to one religious faith. They are basically our Muslim brothers and sisters. And their alienation will be deepened if this Bill is passed in the present form. Let us be honest. We have to face the reality of what this is all about.

So, to conclude, Mr. Chairman, I just want to stress that the provisions of the Bill seeks to discriminate against some Indian citizens. I believe they will be found by the courts to be ultra vires articles 14 and 21 because they are expropriating and confiscating properties of Indian citizens and because they are doing so, they will indeed create problems for the Government and for India. I beg the respected Home Minister, let us not, as a Government, take unlawful punitive action against a section of our own citizens. Let us not trample on the rights of our own people. Let us now refer this Bill to the Standing Committee in order to ensure that it is not, if we pass it today in this form, challenged inevitably in the courts of law. Thank you Mr. Chairman.

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