Denial Of Royal Inheritance To Saif Ali Khan — Arbitrary Or National Interest?

The Enemy Property Act, 1968, defines "enemy property" as any property situated in India which was owned by a person who migrated to a country with which India has a conflict or is at war with.

This even extends to the legal heirs of this property even if they are Indian citizens or are citizens of the non-enemy nations, after the amendment of 2017. The central government, in such a case, appoints a custodian, who is vested the rights of these "enemy properties".

The declaration of "enemy property" by the central government is intrinsically linked to the existence of war or conflict. Declaring a property as "enemy property" nearly 55 years after the 1962 war, through the 2017 amendment, sets a potentially dangerous precedent. It opens up the possibility for the state to retrospectively reclaim or restrict access to properties that have long been in possession of legal heirs or third parties, many of whom are Indian citizens with no connection to the "enemy" nation. Such retrospective application raises serious legal and constitutional questions, particularly around the right to property and due process.

Further, the vesting of the property to the custodian is done without any notice, hearing or opportunity to present the case by the lawful heirs of the property who are themselves not categorised as "enemies". This attempts to breach the principles of natural justice. The Enemy Property Act hammers the right of age-old peaceful possessors of a property by suddenly putting it under the definition of "enemy property".

A recent case which is facing the result of the 2017 amendment is of Saif Ali Khan's ancestral properties being termed as "enemy properties" because he is the heir of these properties belonging to his grand-mother Sajida Sultan whose sister Abida Sultan migrated to Pakistan in 1950. The decision of the Madhya Pradesh High Court came after 25 years of the order of the trial court recognising him and his family as the rightful heirs of the royal properties situated in Bhopal owing to the law which was meant to be a result of war, but which has been retrospectively applied 55-years after war.

Overturning of the previous judgement, which came many years ago, creates uncertainty and suggests arbitrariness of the law. The 2017 amendment attempts to punish lawful Indian citizens by denying them property on the basis of a distant relative's decision of moving to a "enemy" country. Additionally, the law is even silent on any compensation for the loss of property in this regard. The law absolutely provides no respite to the loyalty of the heirs who have been peaceful and lawful citizens of India throughout.

The law should be reviewed, reassessed and re-evaluated against the body of constitutional rights, natural justice and rule of law and shall be challenged for arbitrariness as it would have been acceptable if it punished based on the conduct of the present heirs of the property rather than punishing on the basis of the conduct of a distant ancestor, that too as old as 55 years ago. This retrospective application of provisions without any remedies suggests the extent of despotic character of the law.

This Saif Ali Khan case should trigger the debate around the amendment of the Enemy Property Act, 1958, which has the ability to become a medium for mass property confiscation by the central government, often targeting the citizens who have no direct connection with the "enemy". The law, through its amendment, shall focus on the conduct of the heirs, enlist remedies and provide an opportunity of being heard before transferring the property to the custodian.

Varun Singh is the founder of Foresight Law Offices.

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