Partition's ghosts

Enemy property: Why India is still struggling with a political legacy of Partition

The history behind the ordinance that bans transfer of property of those who once left for Pakistan.

Nearly 70 years after Partition, and 50 years after the 1965 war with Pakistan, the government of India last week issued an ordinance that revives a debate around a legacy of those two seismic events, “enemy property”.

The ordinance specifically affects the fortunes of the Mahmudabad estate by, in effect, nullifying a 2005 Supreme Court decision that had allowed the family’s heirs to regain control over what was once classified as enemy property. That, however, is the specifics. More than that, the ordinance speaks of the continuing struggle with the political legacy of Partition.

The erstwhile Raja of Mahmudabad had vast properties across Uttar Pradesh, including in Lucknow’s Hazratganj, and present-day Uttarakhand. His very public role in the Pakistan Movement in the 1930s and ’40s was an influencing factor in the shaping of the politics and optics around the original enemy property legislation and the discussion about it today. After partition, the Raja left for Iraq, where he lived for some years, before settling permanently in London. His wife and son, however, remained in India as Indian nationals and the family continued to be active in Uttar Pradesh politics.

In 1968, three years after the war with Pakistan, the government of India enacted legislation establishing the office of the Custodian of Enemy Property. According to this, properties thought to be owned by individuals who had left for Pakistan were taken over as Enemy Property. Subsequently, when the properties of the erstwhile Raja of Mahmudabad were declared enemy property, his family went to court and contested the takeover all the way to the Supreme Court, which finally ruled in their favour in 2005.

The verdict, inadvertently, opened a Pandora’s Box, and cases began accumulating in courts where real or purported relatives of those who had left for Pakistan produced deeds of gift claiming they were the rightful owners of properties. Legislation was attempted to restore order by establishing which cases could be reopened and defining the rights of the Custodian (that is, the government) and the claimants. However, the United Progressive Alliance government’s efforts in this direction failed because of internal differences within the Congress party. The current government has managed to push this ordinance through and, as a result, the Mahmudabad estate finds itself back in the now decidedly incongruous category of enemy property.

Flood of migrants

The term Enemy Property was coined in the United Kingdom in the context of German commercial holdings within the country during the First World War. Rather than have the British sterling funnelled into Germany during the war, it was decided that earnings from enemy-controlled entities should flow to a custodian and their assets frozen. Similar measures were used elsewhere during the Second World War – notably in the United States against Japanese properties. In many of these cases, the funds were eventually returned.

In South Asia, the legal concept acquired entirely different applications. The idea initially gained currency in the years after the Second World War and it was adopted into legislative practice in the aftermath of Partition. The Evacuee Property legislations – a critical predecessor of the current Enemy Property laws – were first enacted in 1947, as two new nation states tried to find resources for the rehabilitation and relief for the millions of migrants who had streamed in.

In that ferment, it was decided to use the property left behind by those departing across the border. The office of the Custodian of Evacuee Property appropriated land and buildings worth crores of rupees and, in decisions that were notoriously controversial, attempted to use the properties to house refugees. Across South Asia, refugees found to their dismay that they were dealing with the increasingly capricious demands of an office named the Custodian of Evacuee Property.

While grim and exacting, Evacuee Property laws nonetheless worked within a logic of bilateral cooperation. Both India and Pakistan, in the aftermath of the enormous transfers of populations, had to be seen to be doing – however grudgingly – what they could to help. Offices such as the “moveable property wing” or the “evacuee property claims”, set up as wings to the High Commissions of both countries, gamely set about trying to sort out the paperwork of the overwhelming numbers of claims for compensation or reclamation.

The Evacuee Property legislations, theoretically at least, allowed a migrant’s family to reclaim in the country they settled in the value of its forsaken property. The threat of a flood of dispossessed migrants coming in from across the border in search of already scarce resources for rehabilitation formed the basis of an unlikely partnership between India and Pakistan, since neither government could afford to unilaterally introduce stringency in Evacuee Property legislation without a degree of calibration with each other.

Furthermore, neither government was entirely comfortable with the idea of forcibly claiming someone else’s property. For instance, in 1953, a senior official in the Ministry of External Affairs, Badr-uddin Tyabji, pointed out that quashing the titles of Muslim evacuees who owned land in India, so that refugees from West Pakistan could be rehabilitated, was short-sighted. One problem, he argued, was that it would leave India vulnerable to action from the government of Pakistan in the International Court of Justice. More pragmatically, he argued, such an action would “necessarily equate the claims of India and Pakistan to property left behind by their citizens, even though India’s claims to property in Pakistan is larger”.

Today, the problem is a peculiarly Indian one. In Pakistan, the seized enemy properties were sold off by the government soon after they were acquired.

Rights of citizens

In many ways, the post-1965 transition from evacuee to enemy property legislations represented the hardening of both governments’ attitudes towards the irreversible consequences of Partition. A letter from the Indian Commerce Ministry to state governments in 1969 baldly told state officials that “any cash balances, provident fund balances, gratuity and unpaid wages held by any person/ firm in India on behalf of all Pakistani nationals vest in the Custodian of Enemy Property for India”.

Both governments formally – and unapologetically – said that monies, resources and, most importantly, the proceeds from the sale of land could not be sent across the border. This was no longer an exercise which could be camouflaged as a massive rehabilitation project. Rather than being directed at large numbers of nameless, poor and powerless owners of small pieces of land, the legislation was often targeted at extremely valuable pieces of property, and contested the most prominently by wealthy descendants of old families.

Notwithstanding the finality of Partition, its aftereffects plague the internal and external politics of South Asia. Property remains one of these aftereffects. Whether it is the case of Jinnah House in Mumbai or funds transferred to London on behalf of the Nizam of Hyderabad after Operation Polo and bitterly litigated by India and Pakistan since, or the case of the properties of the Raja of Mahmudabad, the legal contestations over rights of citizens, the state and of migrants continue to this day.

While legislation about evacuee property has accompanied the nation state since its inception, the changing nature of its application is indicative of the current persona of the nation. Decades after Partition, the current enemy property ordinance poses the question of whether the Indian state should be seen as churlishly attempting to settle old scores by tightening its grip on property obtained by questionable means, or, with the wisdom and graciousness of age, seek closure to a painful chapter.

Pallavi Raghavan is a Fellow at the Centre for Policy Research. She is working on a book on the history of India-Pakistan relations.

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