Ordinance to amend Enemy Property Act

Why in news?

President Pranab Mukherjee on Sunday night re-promulgated an Ordinance to amend the Enemy Property Act (Eviction of Unauthorised Occupants) of 1971 pending ratification by the RajyaSabha. The original Ordinance was promulgated on January 7 this year. It was passed by the LokSabha in January and was subsequently referred to a Select Committee of the RajyaSabha. The third Ordinance incorporating the amendments suggested by the Select Committee was promulgated by Mr. Mukherjee on May 31. Since its validity was to expire on August 28, the President on the recommendation promulgated the fourth Ordinance on the subject.

Ordinance:

• Article 123 of the Constitution enables the President of India to promulgate an ordinance if neither house of Parliament is in session nor “circumstances exist, which render it necessary for him to take immediate action”.
• Every ordinance has to be laid before Parliament and ceases to exist six weeks from the end of the next sitting of Parliament. Article 213 gives the same power to the Governor of a State.
• Ordinance-making power is not a new feature added to the Indian Constitution. Articles 42 and 43 of the Government of India Act, 1935, gave the same power to the Governor-General.

Misuse of ordinance

• A minority government that doesn’t have the necessary numbers to make laws often uses ordinances to bypass the regular law-making process.
• The misuse of ordinances is one of India’s most enduring Nehru-Gandhi legacies. Since 1950, 651 ordinances have been promulgated till 2010.
• The ordinance making power of the executive need to be suitably restrained to create a balance of power between the executive and the legislature in India and to plug in the misuse of it.

Enemy Property Act

The Central Government through the Custodian of Enemy Property for India is in possession of enemy properties spread across many states in the country. The amendments through the Ordinance include that once an enemy property is vested in the Custodian, it shall continue to be vested in him as enemy property irrespective of whether the enemy,

• Enemy subject or enemy firm has ceased to be an enemy due to reasons such as death.
• That law of succession does not apply to enemy property.
• That there cannot be a transfer of any property vested in the Custodian by an enemy or enemy subject or enemy firm.
• That the Custodian shall preserve the enemy property till it is disposed of in accordance with the provisions of the Act.

Features

• The Act allows the transfer of enemy property from the enemy to other persons. The Bill declares all such transfers as void.
• This may be arbitrary and in violation of Article 14 of the Constitution.
• The Bill prohibits civil courts from entertaining any disputes with regard to enemy property.
• It does not provide any alternative judicial remedy (eg. Tribunals).
• Therefore, it limits judicial recourse or access to courts available to aggrieved persons.

Background

• In the wake of the Indo-Pak war of 1965 and 1971, there was the migration of people from India to Pakistan.
• Under the Defence of India Rules framed under the Defence of India Act, the Government of India took over the properties and companies of such persons who attained Pakistani nationality.
• These enemy properties were vested by the Central Government in the Custodian of Enemy Property for India.
• After the 1965 war, India and Pakistan signed the Tashkent Declaration 1966.
• The Declaration inter alia included a clause, which said that the two countries would discuss the return of the property and assets taken over by either side in connection with the conflict.
• However, the Government of Pakistan disposed of all such properties in their country in the year 1971 itself.