The Dismal Use of Legislation – Published in Rising Kashmir

In the year 1994, the Supreme Court of India stated that “the culture of law in Indian democratic republic should be on secular lines”; and that there can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faiths flying at each other’s throats. This is the understanding of the highest court of the country from the provisions of the Constitution of India on which the foundation of the nation India was laid.

In the recent past, we have seen various legislations coming out from various state legislatures that are threatening the basic constitutional principles. One such legislation, enacted by the legislature of Gujarat, in many parts from 1986 to 2019, is in relation to the right to property of citizens in our country.

Pursuant to the 1985 communal riots in Ahmadabad, a temporary legislation was enacted in 1986 to regulate the transfer of properties in riot-affected areas. Essentially, it was to ensure that the property transfer takes place with free consent, after paying a fair market value. In 1991, another Act was enacted which made this position of 1986 as permanent by deleting the time schedule in the 1986 Act. In 2010, the violation of the provisions of 1991 Act was criminalised. It also gave unregulated discretion to the State authorities to notify disturbed area. Practically, once notification was issued, they were never withdrawn. Consequentially, those areas covered under the notifications; perpetually remained disturbed area.

Recently, the State of Gujarat brought an amendment in the existing legislation called the Gujarat Prohibition of Transfer of Immoveable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas (Amendment) Act, 2019 which is currently sub-judice in the High Court of Gujarat. It is intended to expand the scope for declaration of any area to be a ‘disturbed area’. The community shall be identified in a particular area on the basis of common norms, religion, values or identity and sharing of sense of place of resident of that area and the State will determine the same on the basis of broad terms like ‘likelihood of polarisation’, ‘improper clustering of persons’ belonging to one ‘community’ and ‘fair valuation of immoveable property’.  The original Act of 1991 has already been used to segregate cities of Gujarat into clusters based on religion.

There is no doubt that in view of public disorder, the State can take certain temporary measures and during that period it is obligatory upon the state to create public order in that area and nullify those temporary measures which go against the spirit of the Constitution. However, it appears that the legislative measures have gone for a toss from 1986 to 2019 where the government has kept on adding provisions through legislation and has finally vague terms giving unregulated powers to the State administration. Freedom of faith and religion cannot be made conditional to the right to own and occupy properties at a preferred location of an individual. This is similar to the legislations putting regulatory conditions on other fundamental freedoms like the right to marry with a person of an individual’s choice and the right to eat food of the person’s choice.

If this trend goes on, it is not far away that we will see that the schools, hospitals, means of transport are brought under a regulatory regime based on religious faith of a citizen. This situation prevailed in the United States of America two centuries ago. Sadly, in 1886, the U.S Supreme Court created the concept of ‘separate but equal’ and justified the concept of segregation of blacks and whites in public transport, and that principle held the field to keep blacks and whites segregated in schools and other public places. Finally, in 1954, the U.S Supreme Court did away with this ‘separate but equal’ principle and with great reluctance in the society; the schools of United States were desegregated. Thereafter, the U.S Congress brought in a legislation called the Civil Rights Act of 1964 which effectively ended legal segregation. Author, Richard Rothstein has also described as to how the U.S government had created neighbourhoods where a minority was highly concentrated, and then the government would establish barriers to its exit ensuring that the minority would never come out of the ghettos.

70 Years ago, various Articles in the fundamental rights chapter of our constitution were introduced to ensure basic fundamental freedom and liberty of citizens and individuals in our country. This was the time when reforms were taking place in different parts of the world, just to make the society more democratic and free but the present law making process in India seems contrary of the past.

Very large population of India reflects diversity in their living, dress, eating and education. Our Constitution ensures fraternity irrespective of faith and religion of an individual. In case faith and religion is made integral to the exercise and non-exercise of basic fundamental freedoms in our social structure, then we are bound to create social disorder.

This article was published in the Rising Kashmir on March 21, 2021


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