Dispossession and Disinheritance: Unpacking the Complexities of the Enemy Property Act in India

Abstract

The Enemy Property Act of 1968 and its subsequent amendments, particularly the 2016 ordinance, have raised profound questions about the fundamental rights of Indian citizens, the state's power to define and control private property, and the enduring legacy of Partition. This research paper critically examines the constitutional and legal implications of this contentious legislation, which has enabled the Indian government to seize and control properties belonging to individuals with familial or historical connections to Pakistan, branding them as "enemies" of the state. The retrospective application of the 2016 amendments, coupled with the broadened definition of "enemy" to include legal heirs and individuals who have changed their nationality, has cast a wide net over properties and individuals, effectively stripping them of their rightful possessions. The paper explores how the Act violates the principles of equality and equal protection outlined in Article 14 of the Indian Constitution by arbitrarily categorizing Indian citizens as "enemies" solely based on their ancestral ties. Furthermore, the retrospective deprivation of vested rights and the undermining of the rule of law through the curtailment of judicial oversight are highlighted as grave constitutional concerns. The Act vests the executive with unbridled powers to determine the status of enemy properties while barring civil courts and other authorities from entertaining cases against such actions, effectively usurping the powers of the judiciary and eroding the separation of powers. The paper situates the Act within the broader context of post-Partition politics and the evolving notions of national security and citizenship, analyzing its impact on the lives of affected individuals and families, and its implications for India's international obligations and adherence to principles of international justice.