New Delhi: The Gujarat high court on Wednesday stopped the state government from declaring any locality a “disturbed area” allowed under Section 3(1)(ii) of the Gujarat Disturbed Areas Act, 1991, stating that it could lead to “improper clustering of persons” from “one community”.
According to LiveLaw.in, a bench comprising Chief Justice Vikram Nath and Justice Ashutish J. Shastri was hearing a public interest litigation (PIL) filed by the Jamiat Ulama-e-Hind organisation, challenging the Gujarat Disturbed Areas Act, 1991, amended in 2020.
The court ordered the state government not to issue any notifications under Section 3(1)(ii) and (iii) of the said Act until February 3, when the next hearing is scheduled.
The petitioner, represented by advocate Muhammad Isa M. Hakim, requested the court to declare the said Act ultra vires as it is in violation of Article 14, 15, 19, and 21 of the constitution.
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Section 3(1)(ii) of the Disturbed Areas Act (as amended in 2020) gives the state government power to declare an area to be a disturbed area on the following grounds: (a) improper clustering of persons; (b) polarisation, and/or (c) maintenance of demographic equilibrium; and even the mere likelihood of any of the same.
According to the petitioner, the Act envisages two kinds of ‘clustering’, namely proper and improper. While the clustering of persons with one common identity is considered proper, other forms of communities are treated as ‘improper’.
This, the petitioner argued, could result in segregation of citizens on the grounds of religion, race, or any other “uncommon aspect of identity”, thereby allowing ghettoisation and the creation of enclaves.
While stating that the said Act is “apparently neutral”, the petitioner, however, said in reality, the minority communities would be at disadvantage, and more importantly the Muslim community.
Among other objections raised by the petitioner are that it is in violation of the constitutional principle that allows an Indian citizen to reside anywhere in the country, as provisions under the said Act allows the state to bar persons to undertake sale and purchase of properties in a “disturbed area”. Under Section 5 of the said Act, a district collector wields power to reject an application for permission to transfer immovable property in a “disturbed area”.
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The petitioners further said not only the Act violates India’s international commitments on the question of human rights but is also discriminatory to minorities. It also gives state government “unbridled discretion” to declare a neighbourhood as “disturbed area”.
The Gujarat Disturbed Areas Act, 1991, was enacted to crystallise pervious 1986 legislation, which sought to arrest inter-area migration resulting from panic sales in the aftermath of the 1985 Ahmedabad riots. While the 1986 legislation prohibited the transfer of immovable property in “disturbed areas” temporarily, for a specific period of time, the 1991 Act made it a permanent affair. This was further amended in 2020 to add heft to the legislation and allowing for proper and improper “clustering of persons”.