The Disturbed Areas Amendment Act is an act of legalising segregation of different communities into enclaves and ghettos based on identity, norms, values, religion etc. It grants legal imprimatur to the existing reality of Gujarat being the most polarized and religiously segregated state of the country.
By Muhammad Tahir M. Hakim*
AHMEDABAD—As the bogey of “Love Jihad” gathers steam across the country, a similar conspiracy theory of the so called “Land Jihad” has already established a foothold in Gujarat.
In July 2019, amidst vehement opposition, the Gujarat State Assembly passed amendments which completely overhauled ‘The Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in the Disturbed Areas Act, 1991’ (locally and popularly known as the “Disturbed Areas Act”).
The Amendment Bill was then sent to the Ministry Home Affairs and after remaining pending for 15 months, it received Presidential Assent on 12th October 2020.
Simply put, the Disturbed Areas Amendment Act is an act of legalising segregation of different communities into enclaves and ghettos based on identity, norms, values, religion etc. It grants legal imprimatur to the existing reality of Gujarat being the most polarized and religiously segregated state of the country. In order to fully understand the impact of this amendment, some background is necessary.
The Disturbed Areas Act was first passed in the year 1986 for a temporary duration, and then again passed in 1991, which is in application till date, but now stands substantially amended.
The original objective of the Act was to prevent distress sales. In the aftermath of the 1985 communal riots in Ahmedabad, it was observed that persons belonging to communities who were in numerical minority in areas where they resided, were selling their properties at throw away prices and then shifting to localities with higher population of their own community. To prevent such segregation, the Disturbed Areas Act was enacted. To tackle this problem, the Act established a two-layered mechanism:
(i) Power to declare an area to be a disturbed area: The State Government had the power to declare any area to be a disturbed area having regard to the intensity and duration of riot or mob violence which had resulted in the disturbance of public order.
(ii) District Collector to undertake inquiry of all sales or transfers in areas declared to be disturbed areas: Parties who wished to transfer property falling in a disturbed area would have to mandatorily take prior permission of the District Collector. The Collector was to inquire two things to ensure that the transfer was not in distress:
(i) Whether the sale was out of free consent, and
(ii) Whether the consideration for the sale was at fair and market value.
Despite being in operation for almost 30 years now, the stated objective was never realised. On the contrary, the opposite has been achieved with the benevolent help of self-styled organisations ostensibly protecting “Hindu interests”, and in tandem with the State Government. It is common knowledge that in most of the Hindu/Jain dominated areas of Gujarat, properties are generally not sold or rented to Muslims. But even where a non-Muslim voluntarily desires to sell his property to a Muslim, the Disturbed Areas Act comes into play.
Briefly, the modus operandi is as follows. Firstly, the State Government, without any regard to the statutorily laid down parameters, notifies all such areas which have a sizeable Muslim population to be disturbed areas. That would make all the sales or transfers in that area subject to the prior permission of the District Collector. At the stage of the inquiry, the Collector, again going beyond the mandated scope of inquiry, would inquire into communal issues such as the effect of the particular sale/transfer on “the demographic balance between Hindus and Muslims” or the impact of the sale “on the law and order situation in the disturbed area”. Added to this mix, are neighbours and communal organisations, who would also jump in to object the transfer on allegations of so-called ‘Land Jihad’. In this manner, over time, the Disturbed Areas Act has become a major bureaucratic roadblock in what are simple sale transactions between private parties. Fearing the major “Disturbed Area Permission” hurdle and the huge scope of corruption it brings in, Muslims of Gujarat are virtually precluded from buying and investing in properties in better parts of the cities and thereby forced into ghettos.
In this way, the Disturbed Areas Act has had a major role in this ‘enclavisation’ of Gujarat. It is a documented fact that despite the Act, after every incidence of a riot, the last of which took place in 2002, Muslims from “cosmopolitan” areas sold their properties, and shifted to areas where there was a sizeable population of Muslims.
The reverse of such migration has also happened, for instance, Hindus staying in older parts of Ahmedabad have also shifted to other areas. The story of Juhapura, an area on the outskirts of
Ahmedabad, which houses an estimated 4.5 lakh Muslims, comprising 50% of the Muslims population of the city, is a living testament to the failure of the Disturbed Areas Act. The fact that the area is mockingly described as a “mini-Pakistan” in Ahmedabad colloquialism further demonstrates the deeply entrenched communal acrimony in the state. (See ‘Muslims in Indian Cities: Trajectories of Marginalisation’ by Christoffe Jaffrelot and Laurent Gayer for more on Juhapura)
With the entire Government and bureaucracy working hand in glove towards the objective of ghettoization, the only saving grace has been the judiciary. In a number of significant judgments, the Gujarat High Court directed the Collector to restrict its inquiry to the stated objectives of free consent and fair value and not beyond. The High Court also ruled that neighbours and political organisations do not have any jurisdiction or say to challenge the grant of permission by the Collector in such private sale transactions.
Further, the challenge to arbitrary extension of notifications declaring areas to be disturbed without there being any real incidence of violence are also pending consideration before the High Court.
In an obvious attempt to overcome these judgments and petitions, the present amendment was enacted. In a particularly telling passage in the Statement of Objects and Reasons appended to the Amendment Act, it is stated that the Act seeks to “have demographic equilibrium” by “identification of proper clusters of one community on the basis of traits of the residents of a particular geographical area having common norms, religion, values or identity and sharing a sense of place in the said area.”
As is often the case with such controversial legislations, the objective is carefully wrapped in a complex design and vague legal jargon (Citizenship Amendment Act, abrogation of Article 370
being cases in point).
Enlarging the definition of disturbed area: As stated above, earlier, the power to declare an area to be a disturbed area was circumscribed by actual disturbance of public order on account of a riot or mob violence. While this discretion itself had been generously misused, the Amendment Act gives a blanket discretion to the State Government by adding two more vaguely worded criteria:
(a) That the demographic equilibrium has been disturbed or is likely to be disturbed owing to persons belonging to one particular community settling in an area;
(b)Improper clustering of persons has taken place or is likely to take place whereby the mutual and peaceful coherence between communities may go haywire.
Here, ‘improper clustering’ (as defined under the Amendment Act) essentially means that persons who, geographically or on account of their identity, religion etc., do not belong to that area but have come and settled in big numbers. For example, Hindus settling or likely to settle in an area where there are many Muslims or Muslims places of worship, or the converse, would be forming an improper cluster based on the new Amendment and such area could be declared to be disturbed.
It is clear that with the Amendment, now the State Government virtually has unbridled discretion to declare an area to be a disturbed. As already stated, the direct effect of the creation of a disturbed area is that all persons desiring to transfer property in a disturbed area must take prior permission of the Collector. Consequently, even the scope of the Collector’s inquiry is generously enlarged.
Additional scope of inquiry by the Collector: As stated above, earlier, the nature of the inquiry to be done by the Collector was limited to examining whether the transfer happened out of free consent, and for fair market value. However, the Amendment Act, brings two more limbs of inquiry:
(a) If there is a likelihood of persons belonging to one community settling in the disturbed area in large numbers causing disturbance in demographic equilibrium due to such a sale/transfer.
(b)If there is a likelihood of improper clustering of persons belonging to one community due to such a sale/transfer.
Here again, improper clustering means persons of one community, who, geographically or on account of their identity, religion etc., do not belong to that area but have come and formed a cluster. For example, the sale of property bought by a Muslim seeking to reside in an area where there are many Hindus or Hindu places of worship, or the converse, would be invalidated.
From the above, it is clear that the term ‘proper cluster’ in the Amendment Act is nothing but a sophisticated device for creating a segregated society. The original Act was not religion based albeit its implementation was communal. But with the latest amendment, by bringing in concepts of clustering, polarization, and demographic equilibrium, the usage of the Act for communal considerations is legally envisaged. The Amendment Act also brings in a provision which now makes it open to any person to challenge any private transaction that has already been permitted by the Collector and thus nullifying the judgment of the High Court which prohibited neighbours and society members from challenging a transfer.
The last 20 years of BJP rule in Gujarat have already achieved near total polarization and consequent ‘enclavization’ between Hindus and Muslims in Gujarat. With this amendment, this state of affairs now receives legal sanction and shatters the façade of even a paper commitment to communal harmony. As the latest amendments start taking effect, Gujarat’s landscape will be Balkanised and increasingly mirror the racist arrangement of apartheid era South Africa which had created separate tribal homelands for blacks called Bantustans.
Constitutionally, the Amendment Act militates against the right of every citizen to reside and settle in any part of the territory of India and the right to privacy guaranteed under Article 19(1)(e) and 21 of the Constitution. But more importantly, in a country that derives its strength from its diversity and multiculturism, the latest amendments to the Disturbed Areas Act pose a frontal attack on the foundational values of the Constitution which contemplate a society based on fraternity, tolerance, brotherhood, secularism where people of different communities live as neighbours in harmony and the State does not discriminate based on religion.
*Mohammad Tahir M. Hakim is an Ahmedabad-based advocate practicing in the Gujarat High Court. He can be contacted at [email protected]