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Current Heritage & Conservation Debates in India


Introduction


The current heritage and conservation debates in India surround ownership of the property, the quality of work undertaken to restore these marvels of History and the idea of public duty as opposed to adoption of these historical monuments by private companies to preserve these structures that have Historical and Cultural significance. The question that arises is who has the duty to preserve these structures and whether the current holders of the property are being able to carry out the same.



Idea of Cultural Heritage Preservation


To understand if the public owes a duty to preserve this monument, one must look at the historic development of ‘cultural heritage preservation’. This would entail an inquiry into History on the French Revolution and its aftermath in the late 18th century and Gregoire’s ideas about preserving cultural heritage. It was during this time that the French populace was dissatisfied and discontent with the lavish and extravagant lifestyle of members of the Royal family, Clergy, Nobility and Bourgeois. This anger with the unfair distribution of wealth and the stark difference in lifestyle between the peasantry and upper classes soon manifested itself in the destruction and obliteration of the symbols of the Monarchy, namely the statues, buildings and other works of art symbolizing either feudalism or Catholicism. Henri Gregoire states that there is a need to preserve and protect since it is in line with the spirit of liberty as it shows tolerance to the values that existed and were espoused by prior regimes.[1]



‘Enemy Property’ and the Enemy Property (Amendment and Validation) Act, 2016


If one had to take an instance of a current monument or heritage property that has been debated for long, one could easily list out the property owned by the heir of the erstwhile Raja of Mahmudabad.[2] This property has been the subject of dispute for several years in the courts while the heir’s right to the ancestral property never remained permanent with the numerous spontaneous legislations and court decisions were passed.[3] While the rights to the property were debated, the property has undergone a gradual deterioration in its structure and has begun to lose the beauty and charm that was once attached to it.


Presently, the ownership rights to the Mahmudabad Estate has been transferred to the Government of India. What is ironical is while ownership rights have been legally transferred to the Government otherwise deemed as the ‘custodian’ of the property, nothing has been done to preserve or maintain and restore the structure. The taking away of rights of the Khan family in Mahmudabad and other such heirs of erstwhile rulers of Princely states in India was done by passing the ‘Enemy Property (Amendment and Validation) Act, 2016.[4] The Act was introduced in 1939 as the Defence of India Rules under the British. After decolonization, the Office continued to maintain and administer the enemy properties that were seized during colonial times due to issues of national security in the times of war with China and Pakistan.[5] Later it was enacted as the Enemy Properties Act in 1968 after Pakistan violated the Tashkent Declaration[6] of 1966 and sold off the enemy properties under their control and administration. This Act stipulated that all the enemy property would continue to be under the control of the custodian.


It was in 2005 that the Supreme Court of India ruled[7] that the Custodian of Enemy Property in India (CEPI) was administering the property as a trustee while the enemy continued to be its actual owner. It was clear that upon death of the enemy, the property would revert and be inherited by the enemy’s legal heirs.[8] Later in 2010, an Ordinance was issued to expand the powers of the Custodian with respect to enemy property. This ordinance was re-promulgated about 5 times until 2016, seeking to vest enemy property in the Custodian permanently in cases of the enemy’s death or a change in his nationality.[9]


The present Act of 2016 has some salient features which bring about significant changes for the legal heirs of those who were once considered as ‘enemies’ under the former Act.[10] The current definition of ‘enemy’ includes countries and their nationals that committed acts of aggression against India. This is inclusive of the legal heirs of the nationals of other countries even if they choose to be citizens of India or any other country and nationals of an enemy country, who changed their nationality.[11] Thus the Act today bars heirs and descendants of those who departed from India after the wars fought with China and Pakistan from 1965 claiming ownership over enemy properties. Moreover the 2016 Amendment Act also comes into effect retrospectively. It overturns the law that was passed when the Ordinance was passed. This means that all the sales, transactions, which were entered into by the owners of these properties stands void and illegal in the eyes of the law. The law also prevents civil courts from adjudicating upon the matter, limiting the cases to High Courts and the Supreme Court of India.[12] Further, no succession laws are to be applicable to the legal heirs of the enemy and the ownership rights to the same is to lie vested with the custodian. No disposal of the property can take place without approval of the Central government and neither is the Custodian bound to maintain the families out of the property.


It is important to point out with regard to the public duty, the Government has not incurred expenses in restoration or maintenance activities of these properties which they require. With respect to the enemy properties as well as for instance the Red Fort there are debates as to the quality of work undertaken to restore and preserve these structures, considering how sensitive these operations are.[13] It is seen that with respect to the enemy properties, nothing has been done to restore the structures by the government. With respect to historical monuments, the government has initiated the ‘adopt a monument’ scheme for private companies to take over the maintenance of these structures.[14] According to a recent report, the Government has permitted local (state) governments to use enemy properties within their territory, exclusively for public use[15].



Conclusion


The approach of the Government to its own cultural heritage reveals its incompetency and incapacity to take care and restore its monuments. This lackadaisical approach of the Government of India in taking care of its cultural heritage is telling of its management and handling of enemy properties as well. It could be safe to question the ability of the government to maintain these heritage and enemy properties while it tries to hand over its duties to private companies. It thus becomes important to challenge its role as the custodian of these enemy properties and its ability in fulfilling its duties.




Bibliography:


  1. Kazmin, Amy (9 June 2017) ‘India, Pakistan and one man’s Battle to Recover His Ancestral Home, Financial Times.

  2. Singh, K. (4 May 2018) ‘Dalmia-Red Fort debate: These are the questions we really should be asking about the deal’, Scroll.

  3. Chaturvedi Anviti & Chakshu Roy (17 March 2017), ‘ Enemy property: what it is, how the new law changes its status’, Articles by PRS Team, Indian Express.

  4. Parliament Of India, Rajya Sabha, Report Of The Select Committee On The Enemy Property (Amendment And Validation) Bill, 2016 (Presented to the Rajya Sabha On 6th May, 2016) Rajya Sabha Secretariat, New Delhi May,2016.

  5. The Enemy Property (Amendment and Validation) Act, 2016.

  6. Parliament Of India, Rajya Sabha, Report Of The Select Committee On The Enemy Property (Amendment And Validation) Bill, 2016 (Presented to the Rajya Sabha On 6th May, 2016) Rajya Sabha Secretariat, New Delhi May,2016.

  7. Mishra Sunita (1 May 2019), ‘Govt Allows States To Put Enemy Properties To Public Use’ Available at: https://www.proptiger.com/guide/post/all-you-need-to-know-about-new-enemy-property-law.

  8. Press Information Bureau, Government of India, Ministry of Home Affairs (8 January 2016) Enemy Property Ordinance, 2016 Promulgated.

  9. Borkar S, (13 April 2019) ‘Highlights and Analysis of the Enemy Property (Amendment and Validation) Bill, 2016’ Available at: https://www.iiprd.com/highlights-and-analysis-of-the-enemy-property-amendment-and-validation-bill-2016/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

  10. Union of India vs. Raja MAM Khan, 2005 (8) SCC 696.

  11. Ramnani, Vandana (12 November 2018) What are the Enemy Properties and why the Govt. wants to sell them? Moneycontrol News



[1] Sax, J. L. “Heritage Preservation as a Public Duty: The Abbé Grégoire and the Origins of an Idea.” Michigan Law Review 88, no. 5 (1990): 1142-169.

[2] Kazmin, Amy (9 June 2017) ‘India, Pakistan and one man’s Battle to Recover His Ancestral Home, Financial Times.

[3] Chaturvedi Anviti & Chakshu Roy (17 March 2017), ‘ Enemy property: what it is, how the new law changes its status’, Articles by PRS Team, Available at: http://indianexpress.com/article/explained/enemy-property-what-it-is-how-the-new-law-changes-its-status-4572372/.

[4] The Enemy Property (Amendment and Validation) Act, 2016.

[5] Mishra Sunita (1 May 2019), ‘Govt Allows States To Put Enemy Properties To Public Use’ Available at: https://www.proptiger.com/guide/post/all-you-need-to-know-about-new-enemy-property-law

[6] Press Information Bureau, Government of India, Ministry of Home Affairs (8 January 2016) Enemy Property Ordinance, 2016 Promulgated, Available at: https://pib.gov.in/newsite/PrintRelease.aspx?relid=134302.

[7] Union of India vs. Raja MAM Khan, 2005 (8) SCC 696.

[8] Chaturvedi Anviti & Chakshu Roy (17 March 2017), ‘ Enemy property: what it is, how the new law changes its status’, Articles by PRS Team, Available at: http://indianexpress.com/article/explained/enemy-property-what-it-is-how-the-new-law-changes-its-status-4572372/.

[9] Chaturvedi Anviti & Chakshu Roy (17 March 2017), ‘ Enemy property: what it is, how the new law changes its status’, Articles by PRS Team, Available at: http://indianexpress.com/article/explained/enemy-property-what-it-is-how-the-new-law-changes-its-status-4572372/.

[10] Parliament Of India, Rajya Sabha, Report Of The Select Committee On The Enemy Property (Amendment And Validation) Bill, 2016 (Presented to the Rajya Sabha On 6th May, 2016) Rajya Sabha Secretariat, New Delhi May,2016, Available at: http://www.prsindia.org/uploads/media/Enemy%20Property/SCR%20Enemy%20Property%20Bill.pdf.

[11]Mishra Sunita (1 May 2019), ‘Govt Allows States To Put Enemy Properties To Public Use’, Available at: https://www.proptiger.com/guide/post/all-you-need-to-know-about-new-enemy-property-law.

[12] Borkar S, (13 April 2019) ‘Highlights and Analysis of the Enemy Property (Amendment and Validation) Bill, 2016’ Available at: https://www.iiprd.com/highlights-and-analysis-of-the-enemy-property-amendment-and-validation-bill-2016/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original.

[13] Singh, K. (4 May 2018) ‘Dalmia-Red Fort debate: These are the questions we really should be asking about the deal’, Scroll.

[14] Singh, K. (4 May 2018) ‘Dalmia-Red Fort debate: These are the questions we really should be asking about the deal’, Scroll.

[15] Ramnani, Vandana (12 November 2018) What are the Enemy Properties and why the Govt. wants to sell them? Moneycontrol News


Author Details:Tasha.B.Joseph is a student atO.P Jindal Global University, Sonipat.




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