SOURCE :- SIASAT NEWS
Two treatises, “Socio-spatial Consequences of Disturbed Areas Act 1991 on Urbanizing Spaces in Gujarat” by Shrivastava and “Saffron geographies of exclusion: The Disturbed Areas Act of Gujarat” by Tejani, both of 2022, examining a phenomenon rooted in 2002, by all counts a very tough year for harmony and national integration, and analysis of the Act itself, read in the context of the Constitution, are a clear red flag for those willing to read between lines.
Table of contents
The two treatises show that the spatial organization of urban India is no longer merely a story of economics or demography. It has become, with quiet but gathering force, a story of law: of how legislative architecture can be deployed to draw invisible walls between communities, walls that endure long after the violence or disorder that ostensibly justified them has passed. The proliferation of regulatory regimes modelled on the Gujarat Disturbed Areas Act: statutes that subject property transactions between members of different religious faiths to administrative scrutiny and approval: represents one of the most consequential, yet least examined, intersections of law and sectarian geography in contemporary India. Scholarly analysis has begun to characterise this phenomenon as “ethnocratic urban planning”: the use of ostensibly neutral, order-maintaining law to institutionalise religious segregation as a durable feature of the cityscape. That characterisation demands a rigorous constitutional reckoning.
Is it not legislative encroachment into citizenship rights, constitutionally guaranteed, resulting in wrongful confinement by erosion of residential mobility? The question arises because the “operational logic” of the statutes is deceptively modest. They do not, in their text, prohibit any transaction. They merely require that a Collector be satisfied, before a sale or transfer between persons of different faiths may proceed, that the transaction will not disturb public order or accelerate demographic polarisation. The language of supervision is borrowed from the emergency toolkit of public administration, deliberately kept capacious enough to cover almost any situation the executive might find inconvenient.
When supervision becomes silent gatekeeping
Yet what looks like oversight is, in its effect, unstated gatekeeping. The right to reside and settle in any part of the country, guaranteed under Article 19(1)(e) of the Constitution, is not a privilege dispensed by the state’s grace: it is a fundamental liberty whose restriction must satisfy the twin demands of legality and proportionality. The Supreme Court’s landmark expansion of constitutional freedom in Maneka Gandhi v. Union of India (1978) 1 SCC248, where the Court held that any law or procedure abridging personal liberty must be just, fair, and reasonable, and not a mere formality dressing up arbitrary executive power, established a standard that these statutes struggle to meet. Read alongside the Court’s recognition in Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 that the right to shelter is an inseparable component of the right to life under Article 21, the constitutional demand becomes clear: a person’s choice of where to live, and with whom she may transact in pursuit of that choice, cannot be made contingent on bureaucratic approval whose standards are unguided, whose exercise is unreviewable in any practical and realistic sense, and whose outcomes track religious identity with unmistakable regularity.
The empirical record confirms what the doctrinal analysis predicts. These regulatory frameworks seal the porosity of neighbourhoods, foreclosing the organic formation of diverse, mixed-religion residential spaces. What may begin as self-segregation, often a survival response to episodes of proximate communal violence, temporary as well as reluctant, is transformed by the stamp of administrative approval withheld into a permanent, state-sanctioned feature of the urban order. The Gujarat High Court, in Suleman Isabhai Memon v. State of Gujarat 1997 (2) GLR 1479, was alive to this danger. While declining to strike down the Act, the Court was emphatic that the Collector’s power could not be exercised capriciously and must rest on objective material with a direct and demonstrable nexus to the maintenance of public order. The Supreme Court, affirming that position in State of Gujarat v. Suleman Isabhai Memon (1997) 9 SCC 431, underscored that administrative discretion under such laws must be canalised and cannot become an instrument of disguised discrimination.
Muslims are increasingly becoming educated. Very likely that this will positively impact their earning capacities. If a Muslim’s financial upward mobility enables him to buy property in a better neighbourhood where the overwhelming majority are Hindu citizens, which he desires to live in, but the legislative architecture and its operationalisation disable his desire for that geographic mobility, the result would saffronize the urban living space.
The geography of exclusion and what flows from it
Academic discourse has characterised this process as the creation of “geography of exclusion”, and the terminology, though pointed, is analytically precise. The state assumes the role of a gatekeeper, standing at the boundary between communities and determining who may cross. Three consequences flow from that assumption of role.
First, spatial policing replaces spatial freedom. National integration is a desirable goal in express constitutional terms. Yet, the state’s presence at the threshold of every inter-faith property transaction signals, in terms that any prospective buyer or seller can read, that integration is not merely inconvenient but administratively suspect. The chilling effect on transactions that might otherwise occur cannot be captured in any refusal-rate statistic. RTI applications can be easily stonewalled.
Second, the control of property markets translates directly into the curtailment of opportunity. Access to quality residential areas is inseparable from access to better schools, hospitals, infrastructure, and social networks. By restricting the mobility of religious minorities, these laws reproduce and entrench socio-economic disadvantage across generations.
Third, and most fundamentally, state-engineered segregation corrodes the constitutional commitment to secularism as well as national integration. The Supreme Court in S.R. Bommai v. Union of India (1994) 3 SCC 1 declared secularism a basic feature of the Constitution: not a policy preference subject to legislative revision, but a structural commitment that conditions the very legitimacy of state action. The Court’s unequivocal holding in Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629 that the mixing of religion with state affairs is antithetical to the constitutional scheme applies with full force to any regulatory architecture that uses religious identity as its organising principle.
Look at the Constitutional and rights-based implications. The constitutional infirmities of such a regulatory model impact fundamental rights, touching equality, liberty, and the right to property in turn. The guarantee of equality under Article 14 has never been satisfied merely by the formal neutrality of a law’s text. E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3 established that arbitrariness is the very antithesis of equality, a principle that State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 had already applied to strike down laws conferring unguided and standardless discretion on the executive. A regime in which a Collector may refuse a property sale on grounds as elastic as “likelihood of polarisation” or “threat to demographic equilibrium” fails the most elementary scrutiny for definiteness and restraint. The Supreme Court’s formulation in Shayara Bano v. Union of India (2017) 9 SCC 1, recognising manifest arbitrariness as an independent ground to invalidate legislation, now provides a potent instrument to constitutionally challenge a regime of this character. A law that leaves the scope of permissible residential choice to an administrative officer’s assessment of demographic sensitivity is not law in any meaningful constitutional sense; it is licensed executive will. This is even more so considering such officials are inevitably political appointees hand-picked to further the executive policy, stated or unstated.
The right to property, no longer a fundamental right, still retains constitutional protection under Article 300A. The jurisprudence around that provision requires that any deprivation of property occur only by authority of law that is fair, just, and non-arbitrary. A denial of permission to complete a property transaction, in practical terms, a compelled forfeiture of the seller’s right to dispose freely and the buyer’s right to acquire, must satisfy that standard. Where it does not, and rests on a Collector’s unarticulated alleged unease about demographic consequences (which the Constitution states is desirable!), it constitutes a deprivation of property without the authority of law in any constitutionally meaningful sense.
The Bharatiya Nyaya Sanhita 2023 (replacing the IPC) sec. 197 punishes communicative acts (spoken or written words, signs, etc.) that make imputations cause disharmony or do other things jeopardizing national unity. Sec. 152, however, broadly penalizes any act by words, signs, financial means, or otherwise that …endangers India’s …unity, carrying a higher punishment. The mere administrative act of making rules or regulations, by itself, would not attract its penal consequences. However, where the effect of those rules threatens national integration, the broader language and scope of Section 152, particularly its use of “or otherwise”, can bring up some questions. While the process of rule-making cannot constitute an offence under s. 197 BNS, could its substantive anti-national effect attract the wider stringent s. 152? What if such an exercise is believed to be with the intent of creating barriers between people of different faiths, obstructing integration?
The architecture of plausible deniability
Procedural burden, plausible deniability and State-imposed ghettoisation can be a set because the most insidious feature of such a regulatory model would be not its explicit provisions but its procedural architecture. The law does not, in terms, prohibit the transaction. It merely requires administrative approval and, if that is refused, preserves the right to seek judicial review. On the surface, the legal system remains open. That is the surface. In practice, it is functionally closed to all but the most tenacious and resourceful.
A family seeking to purchase a home across a neighbourhood boundary must first wait for an administrative decision that may or may not come, then, if refused, mount litigation: expensive, prolonged, and emotionally exhausting: before courts that will presume the Collector acted in good faith and place the burden of disproving that presumption on the aggrieved party (there is a presumption in law of evidence that all official and judicial acts have been regularly performed, i.e., following procedure and are therefore valid: he who desires a court to believe otherwise must prove what he asserts: that is the burden of proof or onus probandi. If you are unable to prove something, you lose. As the party approaching the Court, the burden to prove is on you. Even if the State acted with discriminatory intent, and is not able to prove otherwise, it would be of no avail to you: precedents are that you cannot win on the weakness of the defence. You must win on the strength of your own case! If the State were required to prove it was free from the taint of discriminatory intent, the burden would be on it. So, an adverse order passed, the citizen is forced to go to Court, and he has to prove intent. Intent being a mental condition, how would he do it? See the genius in the architecture?)
The principle is well-settled: a plea of malice against a public authority must be specifically pleaded and proved with cogent material; courts will not infer oblique motive from a pattern of adverse outcomes alone (Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579). Consequently, even where the administrative record, viewed in the aggregate, reveals a pattern of denials that track religious identity, no individual applicant will be able to discharge the burden of proving that the Collector who refused his or her application was motivated by sectarian purpose rather than a genuine assessment of public order.
To be continued
SOURCE : SIASAT
