Who's the enemy?

What might be the worst thing a government could do? I dare say there must be several contenders but among the most likely has to be a deliberate attempt to undermine the constitutional rights of the citizenry. Karan Thapar writes.

What might be the worst thing a government could do? I dare say there must be several contenders but among the most likely has to be a deliberate attempt to undermine the constitutional rights of the citizenry. And if in the process the government also ends up defying the Supreme Court and, worse, appearing to target one section of the population then, quite frankly, this act must seem to be the worst possible.

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Now you might think this combination of factors is far-fetched and unlikely. After all, we live in a democracy, abide by the rule of law and are committed to fairness and equity. This sort of thing simply can't happen.

Well it did and although, for now, it's been undone, it might still happen again. I refer to the government's Enemy Property ordinance, which has just lapsed, and the proposed Enemy Property Bill, waiting in Parliament to be passed.

But let's step back to understand what's happened and what's proposed. In 1968, after the Indo-Pak War of 1965, Parliament passed The Enemy Property Act sequestrating the property of any Indian who had become Pakistani and placing it in the charge of a custodian. The key question that arose is what would happen to that property when the owner died? Would his legal heirs inherit?

The government said no. Even though the property was in custody it deemed the custodian to be the new owner. In 2005, in a case brought by the Raja of Mehmoodabad, the Supreme Court disagreed. The custodian was not the owner, it ruled. The 'enemy' retained his ownership even if he had lost custody. On his death his heirs, if Indian citizens, were the inheritors.

This ruling gave the Raja possession of his father's properties but hundreds of others benefitted as well. However, the ruling also permitted some people with 'disputed' claims to acquire property. In addition, by permitting the 'enemy' to sell, it also created claimants who were not Indian citizens.

Five years later, claiming this created a messy situation and a potential security concern, the government passed an ordinance to nullify the 2005 Supreme Court judgement. Passed this July, it specifically expunged the right of Indian heirs to inherit enemy property. In a stroke the Raja lost what the Supreme Court gave him.

The ordinance, of course, had far wider and considerably more worrying implications. It was deliberately designed to defy the Supreme Court. It's outcome was tantamount to undermining the constitutional rights of a certain category of Indian citizens to inherit parental property. And it largely, if not predominantly, applied only to the muslim community.

Mercifully that ordinance has lapsed because Parliament did not legislate a bill to replace it. But the government hasn't given up. Although its under pressure to accept the right of Indian citizens to inherit 'enemy' property it's not clear it will.

While this issue hangs fire what's perplexing is P Chidambaram's role. In 2002, as a lawyer, he fought on behalf of a rival claimant to the Mehmoodabad property and lost. Eight years later, as home minister, his ordinance nullified the Supreme Court's judgement. Should he not have recused himself from handling this issue?

Sadly this is not the only crossed wire. As a lawyer Chidambaram presumably accepted that 'enemy' property can be inherited by an Indian citizen. As home minister his ordinance expunged that right. Isn't this a sad and sorry situation? Doesn't the government emerge poorly? And hasn't Chidambaram behaved peculiarly?

The views expressed by the author are personal