The worst part of the amendment is that it gave a legal sanction to segregation based on religion and race, in open contravention to Constitutional principles of fraternity, equality, tolerance, brotherhood and secularism and the fundamental right of the people to settle down anywhere within the territory of India.
Syed Khalique Ahmed & Noor Nabi Khan
AHMEDABAD—In a significant development, the Gujarat high court has restrained the state government from implementing the amended sections of the Gujarat Disturbed Areas Act, 2020, that institutionalizes, by law, the segregation of communities on the basis of race and religion.
The order was passed by a bench comprising Chief Justice Vikram Nath and Justice Ashutosh J Shastri on Wednesday ( January 20) while hearing a petition filed by the Jamiat Ulama-e-Hind(JUH) that has challenged the Amendment Act of 2020. The court asked the government to submit its reply by February 3 when the next hearing is scheduled in the case. The plea was filed through Adv Mohammad Isa M Hakim.
Arguing before the court, advocate Mihir Joshi representing JUH submitted that though the law was initially passed in 1986 to give relief to riot victims and to prevent distress sale of immovable properties in areas affected by communal disturbance or frequent disturbance of law and order that adversely affected the people who were in a minority in those areas. Owing to frequent riots, the people in minority (they could be Hindus in a predominantly Muslim areas or Muslims in a predominantly Hindu area) in such areas were reported to be selling their properties at throwaway prices, the state government came with the Act to ensure that the people did not sell their properties under duress but through consent and at reasonable prices. To ensure this, the district collector was authorized to conduct an inquiry in such cases and allow sale of properties when convinced that the transfer of properties was not due to any coercion and the price offered is fair from the market point of view. And the permission of the district collector was a must for transfer of properties in such cases.
The area under the Act was to be notified as ‘disturbed area’ only for a limited period and was to be declared as a normal one by withdrawing the notification after normalcy was restored in the area.
The Act was amended in 1991 which gave excessive discretion to the authorities. The authorities continued to extend the notification of the Act in certain localities of major cities, particularly Vadodara, Ahmedabad and Surat, for unlimited periods under political pressure. This resulted in problems for sale of properties in such areas. The law is now applicable in Ahmedabad, Vadodara, Surat, Himmatnagar, Godhra, Kapadvanj and Bharuch. But it mainly affected the Muslim community who wanted to move to the new areas either for residence or business purposes in ‘mainstream’ areas with mixed population. This resulted in ghettoization and segregation of communities on religious lines in major cities of the state. But this happened through manipulation by administrative authorities, not by law as the law still allowed sale of properties to anyone if the authorities were convinced that the transfer of properties was being done through consent and not under duress and the seller was being offered a fair price.
But the amendment carried in the Act in October 2020 empowered the state government and authorities to declare certain areas as permanently ‘disturbed area’ and added that areas within 500 metres of the ‘disturbed areas’ will also be considered as ‘disturbed area’ and provisions regarding sale and purchase of properties in disturbed areas will apply in the extended area as well. The worst part of the amendment is that it gave a legal sanction to segregation based on religion and race, in open contravention to Constitutional principles of fraternity, equality, tolerance, brotherhood and secularism and the fundamental right of the people to settle anywhere within the territory of India.
The amendment allows the state government to declare an area as disturbed on the ground that “improper clustering of persons of one community has taken place or is likely to take place where mutual and peaceful coherence amongst different communities may go hay wire in that community.” Thus, the amendment gives unbridled discretion to the state to declare any area a disturbed area and prevent the transfer of properties to members of any particular community.
While defining “proper clustering”, Section 2(d) of the Act says, “proper clustering of persons of one community” with all grammatical variations and cognative expressions shall mean, in relation to a geographical area, a small or large social unit or a group of living things who have something in common, such as norms, religion, values, or identity and often share a sense of place that is situated in a given geographical area”. The amended Act also allows the state to form a committee to ensure proper clustering in maintained on these lines.
During the hearing, Adv Mihir Joshi argued that this provision legalizes absolute segregation and ghettoization on the basis of race and religion. Explaining it, he submitted that only people of a common religious identity can buy property in an area. Elaborating further, he said that Section 2 (d) meant only Hindus can buy property in an area with a temple and no one else, only Jains can buy property in an area with a Jain Derasar and only Muslims can buy property in an area with a mosque which is not only violation of the Constitutional principles of equality and fraternity but amounts to “institutionalization of segregation, by law, on basis of race and religion” and amounts to promoting homogenous society and striking down the promotion of pluralistic society, thus working against the ethos of the Constitution.
Adv Joshi also questioned the very objective of the amended Act which states that‘a new provision is sought to be substituted whereby, while enlarging the instances for declaration of any area to be a disturbed area illegal transfers of immovable property disturbing the proper clustering of the persons of one community and to have harmonious demographic equilibrium by introducing the concept of identification of proper clustering of the persons of one community on the basis of the 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.’ Pleading on behalf of JUH, he said, “The very object of the Act is unconstitutional and an affront to the constitutional values and basic features of fraternity, equality, tolerance, brotherhood and secularism as enshrined in the constitution.
Elaborating it, Adv Joshi said that it means that people could live peacefully only if they have something in common such as norms, religions, values or identity which is not only arbitrary and against the right of equality under Article 14 but also against the fundamental rights of the citizens under Article 19(1)(e) of the Constitution of India.