Inheritance of ‘Enemy’ Property by Indian Citizens Is Still a Bit of Unfinished Business of Partition

The long shadows of 1947 still reach this democratic and secular democracy.

As the country waves flags and celebrates the 75th anniversary of India’s independence, it is also time to take stock. What did India’s founders and citizens dream of, how has India fared, what have been our challenges and successes?

The Wire’s reporters and contributors bring stories of the period, of the traumas but also the hopes of Indians, as seen in personal accounts, in culture, in the economy and in the sciences. How did the modern state of India come about, what does the flag represent? How did literature and cinema tackle the trauma of Partition? 

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Partition of India changed the lives of people in myriad ways. Memories of glorious moments of nationalist fervour as indeed inhuman violence on a scale never seen before have remain etched in our collective psyche. The tryst with destiny midnight speech of Jawaharlal Nehru was a defining moment for independent India. We celebrated the fact that despite the horror of communal violence and mass displacement of populations, India retained its character of a plural society where people of various religions would live in harmony.

As we celebrate the 75th anniversary of Independence it is sad that some people voice the opinion that the Partition remained incomplete for that reason. The legislation on evacuee property was the inevitable consequence of migration caused by Partition but the jury is out on whether it came as a balm to the victims or added to their agony; did it mitigate the loss of Partition or merely towed the line that caused it?

Amongst the immediate challenges for the administration upon Partition was the management of people’s two-way movement between the newly drawn territories. Besides the urgent need to provide transportation by rail and road for several lakh of migrants there was the pressing need to provide security and rehabilitation at the destination, generally within Delhi and Punjab. The abandoned properties of Muslim migrants described as evacuees were available for occupation by Hindu migrants from Pakistan described as refugees.

To begin with people just helped themselves and resented the owners returning to reclaim their properties. Several States made laws relating to evacuee property. At the centre the custodian system was quickly introduced, first as an Ordinance and then replaced by legislation, the Administration of Evacuee Property Act 1950 that applied to the entire country with a few exceptions. The inherent intent of the legislation was to preserve or create wholesome relationships between citizens of the country amongst themselves and with the country despite their trauma. Yet in the application of the law it might just have worked to give the state sweeping power over people’s property. By 1961 property worth 10 crore was restored to the owners and presented to the world as India’s commitment to all citizens.

It is important to keep in mind that all persons did not just get up and leave for Pakistan upon the Partition. Some families chose to watch for some time whilst others split amongst some members leaving for Pakistan and others stayed on in India. The great uncertainty about the future encouraged individuals to swap properties in the two countries supported by the Nehru-Liaquat pact and a thriving business came up for such transactions for the mutually ‘Agreed Areas’ from where the largest migration had happened, till further legislation brought it to a stop legally although some underhand swaps continued.

Pushed by circumstances, in addition to evacuee defined in the Act as someone who migrated out of Indian territory to Pakistan, ‘intended evacuee’ definition was added for persons who were thought to be making arrangements for eventual migration. This was imposed on persons who had close family members already in Pakistan and sought to transfer resources etc to them. In some cases persons who went to Pakistan on legitimate business, returned to find that they had been declared evacuees and their property taken over by the custodian. The case of Chatriwala, a rich merchant of Delhi whose sons went to Pakistan and he visited them to settle them in business, led to him be declared an evacuee. The custodian’s decision in his favour raised an outcry of concern about the future of refugees.

Although the two governments were familiar with the British experience of the war period and post cessation years, the intent to hold property on behalf of the real owners as an interim arrangement till they returned and sought restoration, under prevailing attitudes impacted by the unfortunate events, rapidly became a powerful platform for relief and rehabilitation for in coming refugees. Those were obviously Sikh and Hindu whilst the departing evacuees were Muslim. When a growing number of Muslims began returning to India for a variety of reasons including disappointment with what they found in the new country, it became a matter of concern for fuelling communal tension.

They obviously expected to be put back in possession of the property they owned whilst the refugee allottees felt they were being deprived of a homestead the second time within months of their hurried departure from Pakistan. Inevitably, the unchecked two way flow across the border had to be restricted by the introduction of a permit for permanent residence or return.

Curiously at one point Pakistan had to reduce the number of entry points and restrict the number of entry licences issued to Muslims travelling from India. At the same time the Indian government continued to liberally issue licences to Sikhs and Hindus but introduced an unwritten rule to limit the number of licences to Indian-origin Muslims returning to India.

The intended evacuee provision caused endless misery to innocent Muslims and lent itself to bureaucratic misuse, even some inherent communal prejudice, and therefore the power to declare evacuee property was abrogated on May 7, 1954. All aspirants for restoration were given sixty days from the final order to apply to the custodian but even that caused a huge uproar amongst leaders of the refugee communities. Reports have it that the process of scrutiny was arduous and prolonged, often requiring clever manipulation by using Muslim law of succession. The successful persons who were  restored their property after much effort had to put up with the condition that a part occupied by refugees would not be disturbed. The pools of property available on the two sides of the border to rehabilitate refugees permanently seemed disproportionate as Pakistan was said to have 525 crore in the pool whilst the Indian custodian had merely 100 crore.

The prolonged negotiations between India and Pakistan to find mutual accommodation not having worked, the government of India proceeded to extinguish the title of evacuees without compensation. The Constitution of India made appropriate provision for this in Article 31. The minister of rehabilitation announced in the parliament that 6,500 restoration applications were received out of which only 3,000 were for urban properties and rest were for rural areas. By July 1956 the number of cases of evacuee property in court were reported to be as many as 25,000, with 4,000 specifically relating to Section 16 of the Act of 1950 concerned with restoration.

The inter-dominion conferences between India and Pakistan to find acceptable mutual resolution to the refugee-evacuee from 1947 to 1949 achieved little except for the temporary ‘Agreed Areas’. As a result it was decided to withdraw from the provinces their power to deal with the subject and bring it under central legislation. This tilted the scales towards refugees and the unspoken consequence of need to protect the pool of resources available for rehabilitation of refugees.

As the government sought to maintain a balanced position it had to face severe criticism from certain quarters about being soft on persons with ‘questionable loyalties’ causing divided families to cut off all contact with relatives who had migrated. Such contacts became more difficult with the intervening wars with Pakistan. The saga of Partition has thus become what Vazira Fazila Zamindar calls the ‘Long Partition’ and for those who suffered as a result lasting one. Vietnam and Germany seem to mock our inability to overcome the mistakes of past generations. In the current atmosphere one can only expect the trenches to get deeper.

It is interesting that the repeal of the Evacuee Property Act 1950 putting a closure to the troublesome chapter in our national life came only in 2005. Curiously in 2006 the same provisions were introduced for J&K but little data is available in public on action taken under the  J&K State (Administration of Evacuee Property) Act 2006

In more recent times the Enemy Property Act 1968 was introduced to take control of property belonging to Pakistani citizens. The case of Raja Mahmudabad became a cause celebre and after several rounds in various high courts is now pending in the Supreme Court. The bone of contention has been whether the ‘vesting’ of property with the custodian is permanent, divesting the owner of all rights or only till the status of enemy remains in operation or is the case, Indian citizens succeed the owner. The recent amendments made by the present government have sought to make vesting irreversible and enabling sale of property to third parties. Even as the evacuee property chapter fades into the past, this amended legislation revives the unpleasant dimensions of Partition and the shadows of 1947 reach out to mar the landscape of a modern, secular nation that cherishes equality and liberty for all.

©TheWire

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