Gujarat High Court Restrains Govt From Notifying 'Disturbed Area' For 'Improper Clustering' Under Amended Disturbed Areas Act [Watch Hearing]

Senior Advocate Manisha Lavkumar, Learned Government Pleader upon instructions has informed that as of date the notification under Section 3(1)(ii) and (iii) of the amending Act 2020 has still not been issued and is at the stage of assent of the Governor. Till the next date fixed, the Respondent-state is restrained from issuing any notification under the above provision," the Bench ordered.

The Petitioner- organization, represented by Advocate Muhammad Isa M. Hakim, has stated that the impugned Act fosters an illegitimate object and should be declared ultra vires Article 14, 15, 19 and 21 of the Constitution for vagueness, manifest arbitrariness and excessive delegation.

Background

The 1991 Act was brought to make the provisions of a similar Act, enacted in 1986 to address the panic sales resulting in mass inter-area migration of communities that in the aftermath of the 1985 riots in Ahmedabad, permanent.

Thus, whereas the prohibitions on transfer of immovable properties in the 'disturbed areas' of Gujarat affected by riots, etc. was declared to be void for a specific temporary period under the 1986 Act, the Act of 1991 made those provisions permanent.

The 2020 amendment however brought certain 'drastic changes', which the Petitioner has challenged on the below mentioned grounds:

Violates constitutional morality and basic features of the Constitution

Section 3(1)(ii) of Disturbed Areas Act (as amended in 2020) gives the State Government power to declare an area to be a disturbed area on the grounds of (i) improper clustering of persons; (ii) polarization, and/or (iii) maintenance of demographic equilibrium; and even the mere likelihood of any of the same.

Further, under Section 5, the Collector has the power to reject an application for permission to transfer an immovable property in a Disturbed Area.

The Petitioner has submitted that above provisions clearly reflect that the through the impugned Act ipso facto permits the State to segregate persons on ground of religion.

"The impugned Act envisions two kinds of clustering of persons: proper and improper. The clustering of persons with common identity alone is considered proper, whereas the opposite is considered improper. Thus, the resultant effect of the Act is that any area with a population of different communities would ipso facto be identified as disturbed and any transaction between parties belonging to different communities would not be permitted. Therefore, the impugned Act effectively creates and effectuates enclaves or ghettos belonging to different communities and prohibits any transfer of property that would disturb the said segregation," the plea points out.

Taking objection to such a setting, the Petitioner organization has stated that the concept of proper clustering of persons as defined under the impugned Act is extremely broad based.

"According to the definition, the clustering can be based on norms, religion, values or identity. This shows that the definition can include within its fold religion, ethnicity, language, caste, creed, eating habits, cultural practices, sexual orientation, and a host of other parameters. Therefore, the impugned Act is a frontal attack to the diversity, the composite culture and the multiculturism of the country," the plea states.

It adds,

"The concept of "proper clustering of one community" and its usage in Sections 3, 5, and 16A of the impugned Act leads to and effectuates segregation of citizens on grounds such a religion, race or any other uncommon aspect of identity, thereby perpetuating creation of ghettos or enclaves in the State. By effectuating identity-based segregation in the State, the Impugned Act and its pivotal provisions violate the Constitutional value of 'Fraternity' being the basic feature of the Constitution."

Reliance is placed on Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 where the Supreme Court had observed,

"Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections."

Violates Article 14, 15 of the Constitution as it is enacted for an illegitimate object and is manifestly arbitrary

At the outset, the Petitioner organization has submitted that the Impugned Act violates Article 14 of the Constitution in as much as the very objective of the Impugned Act is discriminatory and unlawful.

In this context, the plea refers to the Statement of Object and Reason of the impugned Act which states the objective to be of enlarging instances of declaration of any area to be a disturbed area on basis of the traits of residents of a particular geographic area having common norms, religion, value or identity and sharing a sense of place in the said area.

"By classifying clustering of persons as proper and improper, and empowering the State to declare an area as disturbed area on basis of factor of polarization or likelihood thereof, improper clustering or likelihood thereof, or propensity to disturbance of public order, the Impugned Act seeks to achieve and effectuates segregation on basis of intrinsic and core traits of residents of a particular geographic area such as norms, religion, values, race etc. On the contrary, the origin of the Act of 1986 was to put a temporary check on distress and panic sales happening in the aftermath of the 1985 communal riots in Ahmedabad," the Petitioner submitted.

The impugned Act is also alleged to grossly violate the prohibition of discrimination on the ground of religion, race, caste or place of birth under Article 15 of the Constitution.

"From the object and scheme of the impugned Act, it is clear that the notification and declaration of the disturbed areas is invariably based upon religion and is also attached to the race, caste and to the place of birth of the people residing in those areas," states the plea.

Excessive delegation/ Gives unbridled discretion to State

It is averred that the under impugned Act, the State Government is empowered to make the declaration of disturbed area which need not be by taking into consideration about incidents of breakdown in public order proximate to the time of making such declaration, and the Act gives unguided and unbridled discretion to the State Government to make such declaration in respect of incidents of mob violence/riots resulting into breakdown of public order at any point of time in the past even though the incident might have become totally stale and normalcy returned in such areas.

Discriminatory towards Minorities

It is also stated that the effect of the provisions of the impugned Act is discriminatory and disproportionate on people in minority, particularly religious minorities.

"Although the provisions of the Impugned Act are apparently neutral, it puts persons in minority, especially religious minority to a particular disadvantage compared to others. The effect of the provisions will be that persons of religious minorities such as Muslims would not be permitted to purchase property in nonMuslim dominated areas and would not be permitted to sell property to a non-Muslim in a Muslim minority dominated area, thereby perpetuating discrimination and ghettoes," the plea states.

Suffers from vagueness

The Petitioner has submitted that Section 3(1)(ii) and (iii) empowers the State Government to declare an area as a disturbed area on grounds of polarization or likelihood thereof, or improper clustering or likelihood thereof, or on account of polarization or improper clustering that area is prone to disturbance to public order.

However,

"The assessment of polarization or likelihood thereof or improper clustering or likelihood thereof is incapable of objectively determinable parameters nor are any such parameters laid down in the impugned Act and the matter is left to purely subjective satisfaction of the State. The term polarization is neither defined in the Impugned Act, nor is it capable of objective empirical assessment."

Moreover,

"Section 3(1)(i) is vague and uncertain and does not furnish any guidelines to the State Government for declaring a particular area as disturbed area. The State Government is empowered to make a declaration of disturbed area on the basis of a subjective satisfaction having regard to the intensity and duration of riot or mob violence and such other factors in the area of the State. These words are too wide and give absolute discretion to the State Government to pick and choose the areas."

Inter alia, it is alleged that "proper clustering of persons of one community" defined in Section 2(d) is based on factors such as norms, religion, values, or identity or sharing a sense of place. Except religion, all other terms are undefined and vague.

Violates Article 19(1)(e) r/w Article 19(5) and Article 21 as it imposes unreasonable and disproportionate restrictions on the freedom to reside anywhere inside the territory of India

The Petitioner has submitted that the impugned Act is an unreasonable and disproportionate restriction on the freedom to freely move throughout the territory of India and to reside and settle anywhere throughout the territory of India as contained under Article 19(1)(d) and (e) of the Constitution.

In this context, it is submitted that out of all fundamental freedoms under Article 19, the freedom under 19(1)(d) to move freely throughout the territory of India and 19(1)(e) o reside and settle in any part of the territory of India— are least restrictive as per Article 19(5).

"The right under Article 19(1)(e) can be reasonably restricted by making a law only "in the interests of the general public". It is relevant to note that the said right cannot be restricted for making a law on grounds of public order, which is the subject matter under which the impugned Act has been legislated," the plea states.

It is pointed out that even otherwise, the maintenance of public tranquility, public order and law and order is the duty of the State and the failure of the State on that count must not result into deprivation of the fundamental rights of the citizens.

The Petitioner also submitted that the right to freely move and reside throughout the territory of India is also held to be an intrinsic part of the right to privacy. Therefore, by taking away the fundamental choice of a person to reside anywhere in the territory of India the impugned Act also violates the right to privacy which is a part of Article 21 of the Constitution.

Violates the right of enjoyment of property under Article 26 and 300A of the Constitution

It is submitted that wide and uncontrolled and unguided discretion to the State Government to pick and choose the different areas in the State and issue a notification declaring it to be a disturbed area has drastic consequences on the citizens' fundamental right to reside in any territory in India as well as the right to property under 300A of the Constitution of India.

It is further stated that by imposing unreasonable restrictions on the right to own, acquire and dispose of property, the impugned Act violates the fundamental right of religious denominations to own, acquire and administer property under Article 26(1)(c) and (d) of the Constitution.

Violates India's International commitments and obligations in the global human rights regime

The plea states that the impugned Act also falls foul of India's international obligations under the global human rights regime.

The Petitioner has particularly referred to Article 3 of the International Covenant on Elimination of Racial Discrimination, 1969 (ICERD) which prohibits racial segregation and apartheid.

Further, attention is drawn towards Article 5(d)(i) and 5(e)(ii) that cast an obligation on the State parties to ensure the right to freedom of movement and residence within the border of the State and the right to housing respectively.