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Why the Enemy Property Ordinance had to be promulgated for fourth time

Prime Minister Narendra Modi invoked Rule 12 of the business and transactions rules to seek re-promulgation of the ordinance by the President prior to the clearance by the Cabinet.

Written by Anand Mishra |
September 12, 2016 3:20:19 am
modi, narendra Modi, PM Modi, prime minister Narendra Modi, india news Prime Minister Narendra Modi invoked Rule 12 of the business and transactions rules to seek re-promulgation of the ordinance by the President prior to the clearance by the Cabinet. PTI Photo

On August 31, the Union Cabinet cleared for the fourth time the promulgation of the Enemy Property Ordinance that seeks to bring amendments in the 48-year-old Enemy Property law to guard against claims of succession or transfer of properties left behind by people who migrated to Pakistan and China after wars with India.

Prime Minister Narendra Modi invoked Rule 12 of the business and transactions rules to seek re-promulgation of the ordinance by the President prior to the clearance by the Cabinet.

So why was it necessary to promulgate the Enemy Property Ordinance for the fourth time?

An Ordinance has a life span of six months, and has to be re-promulgated if it does not get the endorsement of Parliament within six weeks of the start of a session. The Enemy Property Ordinance was promulgated for the third time on May 31. However, a Bill could not be passed in the Monsoon session to replace the executive order with an Act. After the session came to an end on August 13, the Ordinance was to lapse on August 28. The same night, the President re-promulgated it on the advice of the government, which was given ex post-facto approval by the Cabinet on August 31. Had the Ordinance not been approved, the executive order would have become null and void from August 29.

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What is the Enemy Property issue all about?

In the wake of the 1962 war with China and the Indo-Pak wars of 1965 and 1971, there was a migration of people from India to Pakistan and China. Under the Defence of India Rules framed under the Defence of India Act, the government took over the properties and companies of such persons who had taken Pakistani and Chinese nationality. The Centre designated these properties as “enemy properties” and vested them in the ‘Custodian of Enemy Property for India’, an office instituted under the central government. The maximum number of such properties are in Uttar Pradesh.

And what does this Ordinance seek to do?

The Ordinance seeks to guard against claims of succession or transfer of properties, and declares the transfer of such property by Pakistani or Chinese nationals void. After the amendment, it will apply retrospectively to transfers that have occurred before or after 1968. Besides, it also seeks to prohibit civil courts and other authorities from entertaining disputes related to enemy property. The Act allowed transfer of Enemy Property from the ‘enemy’ to other persons. As per the amendments, 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 etc. The new Bill also ensures that the law of succession will not apply to Enemy Property.

Is there a political consensus on the Ordinance?

No. The government’s move to amend the Act of 1968 faced resistance during the Budget Session; the matter was referred to a 23-member Select Committee of Rajya Sabha in March this year. The Bill was passed by Lok Sabha on March 9. The government had then rejected demands from some opposition parties to send it to a Standing Committee of Parliament.

What is the current status on this matter?

The government listed the Enemy Property (Amendment and Validation) Bill, 2016 to amend two Acts — the Enemy Property Act, 1968, and the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, in the Monsoon Session but Opposition members insisted on a consensus first.

The government, which was keen to pass the GST Bill with a consensus, chose not to press for the contentious Bill in this session to avoid a confrontation with the Opposition. In the 245-member Rajya Sabha, the NDA lacks majority.

Has any other Ordinance been promulgated for the fourth time before this?

No, this is the first Ordinance to be promulgated for the fourth time. But at least 15 Ordinances have been promulgated twice or more. At least six Ordinances have been promulgated thrice by various governments, including UPA-II.

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