Summary: This article traces the evolution of India’s enemy property regime from Partition-era custodianship to the 2017 Amendment’s permanent confiscation model. It argues that extending “enemy” status to Indian heirs violates constitutional principles of equality, citizenship, and property, transforming temporary wartime measures into enduring, lineage-based civil disabilities.
Introduction
The story of the Raja of Mahmudabad has become emblematic of the complex afterlife of property and citizenship in post-Partition India. Raja Mohammed Amir Khan, an Indian citizen and the son of the erstwhile Raja of Mahmudabad, sought the release of his late father’s properties that had been classified as ‘enemy properties’ and had been vested in the Custodian of Enemy Property (“COEP”) after his father’s migration to Pakistan. His claim was simple: that inheritance by birth and citizenship could not be extinguished by an ancestor’s political choices. In Union of India v. Raja Mohammed (2005) (“Raja Mohammed case”), the Supreme Court of India (“SCI”) agreed, holding that the vesting of property in the COEP was custodial, not proprietary, and that lawful Indian heirs could not be deprived of succession owing to their ancestor’s migration.
Yet, in 2017, the Parliament effectively reversed this position. Through a series of retrospective amendments to the Enemy Property Act, 1968 (“EPA, 1968”), it expanded the definition of an “enemy” to include even the legal heirs and successors of such persons, “whether or not citizens of India.” The amendment transformed what was once a temporary wartime custodianship into a perpetual disinheritance, severing rights not on grounds of conduct or allegiance, but on ancestry.
This article examines the constitutional validity of the Enemy Property (Amendment) Act, 2017 (“Amendment Act”). First, the article looks at the context & history of the EPA, 1968 and the framework set out by it. Second, it looks at how the Amendment Act altered this framework. Third, it argues that the scheme of the EPA, 1968, after the amendment, is unconstitutional, and manifestly arbitrary.
History & Context of Enemy Property Act, 1968
The years following India’s independence in 1947 witnessed one of the greatest human migrations in history: a movement of the masses, which was fraught with fear, confusion and loss. Religious identities of refugees hardened into strict categories: Hindu & Sikh refugees who departed Pakistan, occupied houses which had been left behind by departing Muslims, and those who crossed to Pakistan found their dwellings already claimed. The bureaucracy, faced with this humanitarian catastrophe, tried to make sense of this tragedy.
After the Joint Defence Council meeting in Lahore in August 1947, the need for a Custodian of Refugee Property (“CORP”) was recognized. The CORP was not an official tasked with confiscation, but the preservation of property. It was mutually agreed by the post-Partition states to maintain the abandoned assets of migrants until their rightful owners could return.
In practice, however, this agreement did not sustain. The Punjab Evacuee Property (Preservation) Ordinances of 1947 created a legal fiction of “evacuee property” which led to an emergent distinction between displaced persons (those who had arrived) and evacuees (those who had left). Similar Evacuee Property Ordinances in Pakistan empowered a Rehabilitation Commissioner to seize abandoned Hindu and Sikh properties, and to allot them to incoming Muslim refugees. The Karachi Agreement finally entrenched this, as even those intending to migrate could have their property seized in anticipation of departure.
The logic of custody that governed ‘evacuee property’ after Partition would later resurface, in altered form, within the ‘enemy property’ framework, where the figure of the displaced ‘evacuee’ gave way to the suspect ‘enemy’. The architecture of India’s modern ‘enemy property’ regime is deeply rooted in the anxieties of a nation going through security turmoil, and which had just suffered from two resource-draining wars. The wars of 1962, with China, and of 1965, with Pakistan, did more than to test India’s military preparedness: they birthed the legal imaginations of the ‘enemy.’
In the aftermath of these conflicts, the Parliament enacted the Defence of India Act, 1962, supplemented by the Defence of India Rules, 1962, which were designed to “provide for special measures to ensure the public safety and interest”, facilitate preventive detention and protect national assets during wartime. Within these Rules appeared, for the first time, a formal and legal definition of an enemy.
Under the 1962 Rules, the term “enemy” extended far beyond the battlefield. It included, any person or country engaged in external aggression against India, citizens of such a country, nations aiding or abetting the aggressor, and persons belonging to those assisting nations.
Under this Act, property belonging to ‘enemy subjects’ was vested in the COEP, a legal heir of the Partition-era authority. Initially, this vesting was fiduciary, meant to preserve rather than expropriate. This temporary nature of the vesting was explicitly recognized by Courts, in cases like the Raja Mohammed case, and Sudhendu Nath Banerjee v. Bhupati Charan Chakraborty.
Amendments & Ordinances
Yet, over the decades, the balance shifted. The number of enemy properties, initially around 389 in 1980, expanded dramatically in later years, crossing 15,000 by 2016. This proliferation was largely the consequence of the Enemy Property (Amendment and Validation) Ordinance of 2010, which fundamentally altered the legal landscape. For the first time, it declared that enemy property would continue to vest in the COEP even after the enemy’s death, regardless of whether the legal heir was an Indian citizen. The Ordinance invalidated transfers made through oral wills or gifts, concealment of nationality, or without requisite permission from the Reserve Bank or the COEP.
The implications were profound. What began as a temporary wartime measure to safeguard property gradually evolved into a permanent regime of confiscation. The COEP, once a trustee, was transformed into an instrument of absolute vesting, with civil courts limited to determining the status of a property, not the justice of its confiscation.
In 2016, this trend continued, as the then President of India repromulgated an ordinance four times, to amend the EPA, 1968. This culminated in the enactment of the Amendment Act, of 2017 which had ramifications far beyond the original Act intended.
The most striking feature of the Amendment was its retrospective operation: not only does it apply from January 7, 2016, the date of the Ordinance, but several of its provisions are deemed to operate from the date of the original 1968 Act. This means that any divestment or transfer of property made before 2016, if inconsistent with the new provisions under EPA 1968, is declared void ab initio. Thus, the retrospective clause invalidated transactions that were lawful for decades, unsettling settled ownerships and defeating vested rights recognised by prior judicial orders.
The Amendment expanded the definition of an ‘enemy’ to include the legal heirs and successors of nationals of ‘enemy countries’. It further provided that changes in nationality or death of the original ‘enemy’ would not alter the vesting of property with the Custodian. In effect, the property remains perpetually ‘enemy property,’ insulated from inheritance laws, succession rights, or any private claims. By doing so, the Amendment severed the link between citizenship and property rights, treating Indian-born heirs as legal extensions of an ‘enemy’ lineage.
The Amendment Act also authorised the COEP to sell, lease, or otherwise alienate enemy properties within timelines prescribed the Central Government, irrespective of any ongoing litigation or court orders to the contrary (Section 10A of the amended EPA, 1968). Under the guidelines for the Disposal of Enemy Property Order, 2018, enemy properties are already being sold through e-auctions. All transfers by alleged enemies, whether before or after the commencement of the Act, were declared void. The Amendment also barred civil courts from hearing disputes concerning enemy properties, placing the Custodian’s actions beyond judicial scrutiny (Section 18A of the amended Act).
Constitutional Infirmities
The very premise of the Amendment Act, 2017 rests on the idea that the status of an ‘enemy’ subject can be inherited, even by those who have never owed any allegiance to a foreign power. This creates a status of perpetual disqualification for Indian citizens from inheriting property that is legitimately theirs, because their ancestor migrated to an ‘enemy’ State. This classification is not based on conduct of the legatees themselves but based on lineage. It collapses the distinction between a citizen and a foreign adversary.
For a law to pass the twin tests under Article 14 of the Indian Constitution, it must constitute a reasonable classification, which bears a rational nexus with the object of the law. But in this case, it may be argued, by that State that there are indeed two clearly identifiable groups: citizens descended from persons designated as “enemies” and all other Indian citizens. Indian constitutional law has long drawn a sharp distinction between enemy aliens and citizens. Article 22(3)(a) explicitly withholds procedural safeguards from “enemy aliens,” signifying that the Government may legitimately impose exceptional burdens on persons who owe no allegiance to India.
The State may also seek to argue that the chimera of ‘national security’ – which is a judicially recognised sovereign interest, may constitute the rational nexus. Given the Court’s deferential posture in zones touching sovereignty, citizenship, or external security, there is a real risk that the Amendment may pass a conventional review of Article 14.
A strong constitutional counter to these arguments begins with recognising that the State’s classification itself is conceptually flawed. Even if the State insists that descendants of “enemies” and all other citizens form intelligible groups, the question is whether this distinction is constitutionally meaningful. Indian constitutional law has never accepted the idea that an Indian citizen can be treated as an “enemy” merely because their ancestor once migrated to, or was designated as owing allegiance to, an adversarial State. Article 22(3)(a) withholds safeguards from enemy aliens, not from citizens who have been Indian all their lives. To collapse this difference is to erase one of the Constitution’s most basic commitments: that citizenship, once conferred, is a full and equal status not susceptible to inherited taint.
Further, the perpetual and absolute deprivation of Indian citizens’ proprietary rights, does not bear a rational nexus with the objective of the law, i.e., purportedly, to preserve ‘national security’. If the State cannot show how the ordinary property rights of ordinary citizens, many of whom have lived in India for generations, threaten national security, the classification becomes constitutionally infirm.
In any case, the SCI in Shayara Bano v. Union of India (2017) clarified that according to the doctrine of manifest arbitrariness, a law violates Article 14 if it is irrational, capricious or without any determining principle. The 2017 Amendment exemplifies this, as it allocates guilt through inheritance, even to Indian citizens. This strikes at the very core of the Indian constitutional project, which is based on the repudiation of inherited stigma. If ancestry can justify the deprivation of property, what stops its extension to other constitutional rights? Once the State accepts inherited disqualification as a valid ground of law, the line between a citizen and a suspect begins to blur. The amendment reflects a narrow constitutional imagination, which abandons the civic-republican conception of rights to an exclusionary vision of belonging.
Further, by deeming all transfers of enemy property since 1968 to be void ab initio, the Amendment extinguishes vested rights, including those that have been recognized by final judicial orders. This violates Article 300A of the Indian Constitution which enshrines the right to property as a legal right, ensuring that no person shall be deprived of property, save by authority of law. The authority of ‘law’ here is not absolute, as the requirement here is not merely of a legal fiat, but also substantive due process, as exemplified by the jurisprudence on the right to property, which says that any deprivation of property must be “just, fair, and reasonable.” Therefore, the permanent vesting of property in the COEP, excluding the right of Indian citizens, without compensation or right to be heard, violates the right to property.
Indeed, even after the 2017 Amendment Act, the SCI in Lucknow Nagar Nigam v. Kohli Brothers Colour Lab, noted the difference between a statute like the Land Acquisition Act, 1894, where land vests “absolutely in the Government free from all encumbrances”, and the EPA, 1968 where the COEP relies on the concept of ‘trust ownership’ as a “trustee acts as a nominal owner of the property so administered by him, vis-à-vis third parties.” This illustrates that the 2017 Amendment Act, which seeks to vest property permanently in the COEP and give him powers to dispose it off, sits uneasily with the Parent Act’s jurisprudential foundations. The resulting ambiguity needs to be clarified by the judiciary, and the legislature, not by expanding State power but by reaffirming the rights of Indian citizens.
Conclusion
This article has argued that the 2017 Amendment Act to the EPA, 1968 is constitutionally invalid, insofar as it seeks to disinherit legitimate legal heirs, based on their ancestry to citizens of enemy states. The Act’s manifestly arbitrary classification, retrospective application, along with the extinguishment of proprietary rights, violate Articles 14 and 300A of the Indian Constitution. The EPA, 1968 calls for a constitutional reckoning, with the unfinished anxieties of Partition, that shadow our present.
Bio: Dhruv Singhal is a penultimate-year law student at National Law University, Jodhpur.
Ed Note: This piece was edited by Hamza Khan and published by Tamanna Yadav from the student editorial board.
