January 20, 2021 8:02:15 pm
The Gujarat High Court on Wednesday directed the state government to not issue any fresh notification in operation of the amended sections of the Disturbed Areas Act, which deals with “improper clustering”, until further hearing.
The court’s direction came while hearing a special civil application moved by Jamiat Ulama-e-Hind Gujarat (JU-e-H) and others challenging the amendments made to the Act.
The bench headed by Chief Justice Vikram Nath also issued notice to the state authorities, directing them to respond by the next date of hearing, February 3.
The petitioners in the Disturbed Areas Amendment Act, 2020 or what is formally known as Gujarat Prohibition of Transfer of Immovable Properties and provision for Protection of Tenants from Eviction from Premises in the Disturbed Areas (Amendment) Act, 2019, have primarily challenged the concept of “proper clustering of persons” as has been introduced and defined under the newly added Section 2(d).
Petitioners also include Jamiat Ulama Welfare Trust and Nisar Ahmed Mohammad Yusuf Ansari who is the general secretary of JU-e-H Gujarat.
The 2020 amendment also resulted in the amendment of section 3 of the original Act. The amendment of section 3 subsection 1 (ii) and (iii) now lays down that an area can be declared as disturbed area by the state government if the latter is of the opinion that “polarization of persons belonging to one community has taken place or is likely to take place disturbing the demographic equilibrium of the persons of different communities residing in that area or that improper clustering of persons of one community has taken place is likely to take place where the mutual and peaceful coherence amongst different communities may go haywire in that area,” or “…that area of the State has become prone to disturbance of public order”.
Apart from the clauses being “vague” and “subjective”, it was the case of the petitioner that clauses of “likely to get disturbed” and “may go haywire” in the section further broadens the ambit of the provision, which was otherwise meant for limited operation.
Operation of both these provisions – Section 3(1) (ii) and 3(1) (iii) have now been stayed by way of court’s direction on Wednesday until February 3.
As per government pleader Manisha Shah’s submission, no notification under the said provisions have been issued till date, since October 2020 when the amendments were given the President’s nod. According to her, notifications under the same are awaiting the governor’s assent at the moment.
The petitioners, represented by senior advocate Mihir Joshi, submitted while relying on earlier landmark judgments, that “…the intent and purpose of the Act clearly appears to be prevention of migration of residents in minority in one area and taking over of their properties by other communities under coercion in the aftermath of communal disturbances. There is nothing in the Act to suggest that it was intended to divide residents or citizens on communal lines.”
“Instead of rectifying with the authorities to implement the provisions of the Act in its true spirit, the Act has gone ahead (through the new amendments) and has institutionalised this segregation, which is now part of the Act…the segregation and unconstitutionality is writ large…,” submitted senior counsel Joshi.
It was also pointed out that while the initial Act bore the provisions where if an area is declared as disturbed area, it may subsequently be revoked. This however now stands changed, making such a declaration as permanent.
“The word used in the Act is ‘improper clustering’. They define proper clustering…the state will now decide what is ‘proper clustering of one community’….this goes against all notions of constitutional morality, of fraternity of brotherhood… this is absolute segregation on religious lines. You are absolutely ghettoising the entire city by saying that the state in its wisdom feels that only persons having common identity, common religious practice, sense of place – means there must be a temple nearby, then only those (Hindus), means there must be a Derasar nearby, then only Jains, mosque nearby then only Muslims – then only it will be proper clustering. This is what this law says,” submitted Joshi.
“Proper clustering of persons of one community”, as the amended act defines, “…with all grammatical variations and cognate 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”.
Joshi also objected to the amendments brought to section 5 of the Act which now permits third parties to raise objections to a sale/transfer of immovable property. “Those groups which should otherwise be dealt with by a heavy hand, are now permitted a legitimate entry…by law then, it says…we are not supposed to be pluralistic democracy…we must ensure that a homogenous community stays together,” added Joshi.
“This (law) brings in the doctrine of vicinage, which was struck down by the Supreme Court in 1960s as vicinage encourages same kind of people to stay together which doesn’t encourage fraternity….this (law) brings in by the backfoot, those kind of archaic principles which are unconstitutional…,” stressed Joshi.
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