The Enemy Property Act, 1968, is not just a law about abandoned land and buildings—it is a story about war, migration, inheritance, and the extent of state authority. Enacted during a period of heightened conflict, the Act was intended to prevent assets left behind by nationals of enemy countries from being used against India. But over the years, it has grown into a powerful tool that locks families out of ancestral property, bars inheritance even to Indian citizens, and reshapes the very idea of ownership in a post-conflict society.
The term enemy property refers to assets left in India by those who moved to Pakistan or China during the partition and subsequent wars. These were individuals who either voluntarily chose to migrate or were compelled by circumstance. Once they acquired citizenship of an enemy country, their properties in India were seized under the Defence of India Rules and later transferred to the Custodian of Enemy Property for India. With the enactment of the Enemy Property Act in 1968, this arrangement was formalised into a permanent legal framework.
The Act vested the Custodian with the authority to manage, preserve, and even dispose of such properties. It barred courts from interfering and gave the central government sweeping powers to define who an enemy is and how enemy property should be handled. Initially, the law only covered those who had become citizens of an enemy country. But over time, disputes began to emerge. Legal heirs of these original owners—many of whom were Indian citizens and had never left the country—started claiming their right to inherit these properties. And for a time, they succeeded.
The courts, in several judgments, upheld the rights of such heirs. If the person claiming the property was an Indian citizen and the migration of the original owner had occurred decades ago, courts often ruled in favour of family members. The government, however, saw these judgments as weakening national control over enemy property and potentially creating loopholes for disguised ownership.
This led to a significant legislative response. In 2017, the Parliament passed the Enemy Property (Amendment and Validation) Act, which radically altered the legal position. It declared that all enemy property shall remain with the Custodian permanently, with no possibility of being inherited or transferred, even by Indian citizens. The amendment was made retrospective, wiping out the effect of past judicial rulings and extinguishing the rights of successors. The amended law also barred any civil court from entertaining enemy property disputes, closing legal doors for affected individuals.
The retrospective nature of this amendment has drawn sharp criticism. Not only does it affect settled cases, but it also deprives Indian citizens of property they might have had for generations. Article 300A of the Constitution guarantees that no person shall be deprived of property except by authority of law. Though the Enemy Property Act is a law, its retrospective operation raises questions about fairness, due process, and equality before law under Article 14. When courts are prevented from reviewing such actions, it undermines judicial protection for individuals.
The law also disrupts the basic principle of inheritance. Across personal laws in India—Hindu, Muslim, Christian—inheritance is a right that flows from kinship. The state has the authority to limit this right in the public interest, but when it does so indiscriminately and without recourse, it risks replacing justice with expediency.
There are also diplomatic dimensions. Pakistan, through its Evacuee Trust Property Board, controls Indian properties abandoned by those who moved from Pakistan to India during Partition. The Indian government’s firm grip on enemy property is often explained as a reciprocal act. Yet the domestic fallout cannot be ignored. Many of the affected families have lived in these properties for decades. Some have developed the land, paid taxes, maintained records, and had their rights recognised in local registries. For them, being labelled as connected to an enemy feels like collective punishment.
The scale of enemy property in India is significant. The Ministry of Home Affairs estimates over 9,400 such properties, with thousands of acres of land and prime urban real estate in Delhi, Mumbai, Lucknow, Bhopal and other cities. Several of these are occupied, leased, or under litigation. The government has announced plans to monetise or auction some of these assets. But the process is mired in challenges. Identifying clean title, removing encroachments, settling past dues, and navigating public protests makes enforcement a slow and often contentious process.
The law’s application has at times appeared selective. Critics point out that properties of certain communities have been targeted more aggressively. While the official reason is national security, the underlying narrative often intersects with political rhetoric and identity politics. In a democracy governed by the rule of law, the balance between state interest and individual rights cannot tilt too far in one direction.
A notable case that brought the debate into public focus involved actor Saif Ali Khan and his family. His father, Mansoor Ali Khan Pataudi, had laid claim to the vast estate of Ibrahim Palace in Bhopal, which had belonged to his grandfather, Nawab Hamidullah Khan. After the Nawab’s death in 1960, his daughter Abida Sultan migrated to Pakistan in 1950 and became a citizen there. The Indian government later declared her share of the estate as enemy property under the Act. The remaining heirs, including Mansoor Ali Khan, contested the decision, arguing that they were Indian citizens and had a right to inherit the property. However, after the 2017 amendment, such claims lost legal ground. The Custodian of Enemy Property took control of Abida Sultan’s share, and the dispute fell within the sweep of the retrospective law. Though the case was high-profile due to the celebrity connection, it highlighted how deeply the Act could affect even longstanding family inheritances.
In principle, a country has every right to secure itself against threats. Properties that could be used to finance terrorism or destabilise national interests must be regulated. But the burden of this security should not fall on citizens who have committed no wrong. The state must distinguish between genuine threats and innocent successors. Denying rights solely based on the migration of an ancestor decades ago serves neither justice nor national interest.
A possible way forward would be to revisit the 2017 amendment and introduce safeguards. Indian citizens, particularly those with long possession and documentary evidence, could be allowed to make claims subject to verification. A special tribunal or authority, with powers of review and appeal, could be set up to balance efficiency with fairness. Additionally, instead of outright confiscation, certain categories of enemy property could be managed through public-private partnerships or leased out, with the revenue shared or used for public welfare.
The Enemy Property Act began as a wartime measure. Today, in a peacetime constitutional democracy, it must evolve to reflect principles of fairness and rights. If the law continues to operate in absolute terms—barring all claims, shutting the courts, and reversing settled law—it risks becoming a symbol of overreach rather than protection. The challenge is to secure the nation without unsettling its citizens. That requires not just legal authority, but constitutional wisdom.
Contributed by Vaibhav Goyal (Intern)