Jamiat-Ulama-e-Hind claims Gujarat law "brazenly" promotes ghettoisation, segregation of Muslims, Hindus; High Court stops implementation

In a significant development, the Gujarat High Court on Wednesday restrained the Gujarat government from issuing any notification under Section 3(1)(ii) of the 2020 amendment to the Gujarat Disturbed Areas Act, 1991, which empowers the State to notify any areas as "disturbed area" based on "improper clustering of persons of one community.".A Bench of Chief Justice Vikram Nath and Justice Ashutosh J Shastri also sought the response of the Gujarat government on the plea filed by Jamiat Ulama-e-Hind challenging the Amendment Act of 2020. ."Senior Advocate Manisha Lavkumar, Government Pleader has informed that as of date the notification under Section 3(1)(ii) and (iii) of the amending Act has still not been issued and is at the stage of assent of the Governor. Till the next date fixed, respondent state is restrained from issuing any notification under the above provision," the Court ordered..Jamiat Ulama-e-Hind has challenged the law on the ground that it violates the principles of equality and secularism and would make communal segregation permanent..The law which prohibits the transfer of immovable property in notified disturbed areas so as to prevent panic-driven sales of property by communities affected by riots, goes against the Indian philosophy of Vasudhaiva Kutumbakam in its present form, Jamiat Ulama-e-Hind has contended. .Under challenge are Sections 3, 4, 5, 5A, 6, 6A, 6B, 6C, 6D, 6E, 16A, 16B, 16C, 16D of the Gujarat Prohibition of Transfer of Immovable Properties and provision for Tenants from Eviction from Premises in the Disturbed Areas Act, 1991 (Disturbed Areas Act) as amended by the Amendment Act of 2020..The challenged law, instead of reducing the de facto segregation of Hindus and Muslims in the State, makes it a de jure Government policy, it has been argued..The petition states that the Act "is enacted on the basic presumption that the people of different communities cannot live in harmony together." This is against the fundamental idea of India and everything the Constitution stands for. On the contrary, the impugned Act endorses the ideology that resulted in the partition of India on religious lines, it has been contended. ."The impugned Act which gives legal imprimatur to further entrench and codify the segregation between communities. Accordingly, the Muslims and other minorities of Gujarat who are already highly ghettoized will be further marginalized and segregated under the legal sanction of the impugned Act. In this way, the impugned Act is an affront to the ideal of secularism which is a basic feature of the Constitution," the petitioner has submitted..Senior Advocate Mihir Joshi, appearing for the petitioner told the Court on Wednesday morning that the Amendment Act is so brazen that a message needs to be sent to the legislature. ."Your Lordships have always deferred to the legislature. But there are cases where a message needs to be sent. Something which is as brazen a this, requires also a message to be sent. There are some outreaches by legislature which are so brazen then an innocuous message needs to be sent," Joshi submitted..He added that he was not seeking a stay on the law but only for a direction to the government to refrain from issuing a notification under Section 3(1)(ii). .The Court then kept the matter for further hearing at 2.30 pm so that the State counsel could take instructions. Subsequently, after hearing the parties at 2.30 in the afternoon, the Court proceeded to injunct the State government from issuing any notification under Section 3(1)(ii) of the Amendment Act for a week. .The matter will be heard next on February 3. .Tracing the history of the law under challenge.The petitioner recounts in its petition that prior to the 1991 Act, the State had introduced a law in 1986, in the wake of the 1985 Ahmedabad communal riots, to prohibit land transfers in disturbed areas temporarily from May 18, 1985 to October 29, 1986 "corresponding to the incidents of communal violence in Ahmedabad.".The law was meant to provide relief to the victims of riots and mob violence in the disturbed area who may be coerced to indulge in distress transfer of immovable properties, the plea states. .Further, it is submitted that "no authority was vested in the State government to extend the duration of the time for prohibition of transfer of immovable property beyond 31 March 1987.".Moreover, the 1986 Act also contained provisions to validate land transfers in the so notified disturbed areas if they were found to be by free consent and for fair value, following an enquiry by the concerned Collector, it is noted. .In 1991, a revised Act was enacted which contained provisions similar to the 1986 law, except that the time limits for the application of the Act were omitted. Thereby, the arrangement brought in the 1986 Act were made permanent in nature, it is submitted. In this regard, the petition further reads:"... it gave unguided and unbridled discretion to the State Government to make such declaration (of "disturbed areas" in which land transfer was prohibited) 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.".Pertinently, it has been highlighted that while the 1991 Act contained provisions empowering the State to rescind a notification declaring an area as disturbed, it was not mandatory to rescind such notifications even if normalcy was restored. As such, the government was conferred unbridled, unregulated and untrammeled discretion, it is contended. ."There are numerous instances which show that once the notification issued under Section 3 of the 1991 Act, the same had never been rescinded... initially, the notifications declaring areas to disturbed areas were issued for periods of 1-2 years. However, recently, notifications declaring areas to be disturbed are mechanically extended from time to time, in some cases, for as long as five or ten years and covering new areas and cities. Therefore, an Act that was intended to prohibit free transfer of property temporarily has been made permanent in practice," reads the petition..The 1991 Act has been in operation in the State of Gujarat for almost three decades but has not achieved any objective other than furthering the segregation of communities, the petitioner has claimed. ."Further, the excessive discretion to the State Government in the unamended provisions of the 1991 Act has further entrenched ghettoization and segregation of communities in Gujarat. It is common knowledge which is supported by a wealth of empirical evidence that the polarization between communities is very high in the State of Gujarat and Muslims are the most marginalized and ghettoized community in Gujarat.".While this is the case, the petitioner contends that the 2020 amendment to the 1991 Act goes a step further in making permanent the State's temporary powers, while also violating the Constitutional principles of fraternity, equality, tolerance, brotherhood and secularism in introducing the concept of “proper clustering of persons”, as defined under the newly added Section 2(d). ."The notification of disturbed areas on the grounds of improper clustering of persons, disturbance in demographic equilibrium, polarization etc. under Section 3(1)(ii) cannot be rescinded as per Section 3(2). Therefore, it is clear that a temporary power under the impugned Act for the objective of checking panic sales has been colourably exercised for the contrary objective of segregation and is made permanent," the petitioner explains..The petitioner goes on to term Section 3(1)(ii) of the amendment Act as the most insidious provision as it confers discretion on the State 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.”.The provision, the petitioner contands, is vague, subjective and undefined terms like polarization, demographic equilibrium, peaceful coherence, gives unguided and unbridled discretion and leaves it to the sweet will of the State to declare areas to be disturbed areas. ."There is no guideline or manageable standard provided to measure polarization which is a subjective index that cannot be empirically ascertained. Further, even the phrase 'disturbing the demographic equilibrium of the persons of different communities' is vague and subjective as there is no objective standard of ideal demographic equilibrium," the petition states..While the erstwhile object of the Act was to prevent panic sales in the aftermath of riots leading to segregation of communities, the Amendment Act of 2020 desires to compartmentalize communities based on so called common traits, the petitioner has claimed. .The plea also says that in addition to such vague and undefined terms, the phrases 'likely to get disturbed' and 'may go haywire' in the Section further broaden the ambit of the provision. ."In a particularly telling paragraph of the Statement of Objects and Reasons appended to the Amendment Act, it 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.' 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," the petition states..The law now advocates that the people can live peacefully only if they have something in common such as norms, religions, values or identity, it is argued. .The petitioner has, therefore, contended that to invest the state government to exercise its subjective satisfaction on such vague and invidious criteria is arbitrary and offends the right of equality under Article 14 and also puts unreasonable restrictions on the fundamental rights of the citizens under Article 19(1)(e) of the Constitution of India.. .Adding that this Act is against mutual cohabitation and the philosophy of “Vasudhaiva Kutumbakam – All world is a family” espoused by India, the petitioner has urged the Court to strike down various provisions of the amended Act as unconstitutional. The plea has been filed through advocate Muhammad Isa M Hakim.