Imagine you own a house and want to sell it. You have a willing buyer. You have agreed on a price. Both of you are acting freely, with full knowledge of what you are doing. And yet, a government officer can step in and say no — not because there is anything fraudulent about your transaction, not because either of you is being coerced, but because the officer has formed an opinion that your sale might affect the demographic composition of the neighbourhood. If you proceed with the transaction without the officer's permission, you face a minimum of three years in prison. That, in plain terms, is what the Rajasthan Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Bill, 2026 authorises.[1]
According to the Bill's objects and reasons, it is fashioned to “safeguard the demographic equilibrium and social harmony of Rajasthan.” It does so by regulating the transfer of immovable property in riot-affected areas or mob violence and preventing “improper clustering.”
However, these laudable objectives of the Bill do not represent its true nature. It is a law whose design creates a genuine constitutional difficulty, and that this difficulty is structural, not accidental. The vague language, the unchecked executive discretion, and the severe criminal penalties work together as a system. Understanding how that system operates requires looking past the Bill's benign stated objectives and asking what it actually does in practice. It is to be noted that this Bill has not received gubernatorial assent.
The Architecture of the Bill
As mentioned above, the Bill seeks to protect equilibrium and social harmony in Rajasthan. It regulates transfers of immovable property due to coercion and distress in riot-affected regions, officially termed as disturbed areas. These disturbed areas are to be ascertained on two grounds: prolonged disruption of public order due to violence or riots, and improper clustering. Improper clustering is defined as the concentration of a single community due to coercive or distress-driven circumstances, resulting in the erosion of communal harmony and a locality's mixed-community character.[2]
Transfer of immovable property in such areas will be subject to the sanction of the 'competent authority', to be appointed by the State Government.[3] The competent authority, while deciding the transfer applications, shall consider factors including free and fair consent, fair market rate for the property, and the propensity of ' improper clustering of persons of one community' due to the transfer in question. These measures are supposed to preclude transfers due to coercion and ensure that they are carried out with consent and at a fair market price. Further, they aim to avert the sprouting of improper clusters. Any violation of the Bill's scheme would draw penal consequences. If aggrieved by the decision of the competent authority, individuals have a recourse to appeal to the State Government, whose verdict will be final. Interestingly, the Bill does not contain any provision for approaching a judicial forum.
The 'Improper Clustering' Standard
A critical aspect of this bill is the concept of improper clustering, which forms the basis of determining disturbed areas where transactions can be blocked. There are several issues with this. First, the issue of what constitutes concentration: The law provides no objective threshold. What percentage of a community in an area constitutes 'concentration'? Over what geographic boundary? Compared to what baseline population? Second, how do you define a 'community'? Is the definition of community based on caste, class, religion or some other criteria? None of this is specified.[4]
Third, the phrase 'or otherwise unhealthy circumstances' means the enumerated grounds are merely illustrative; the phrase can expand to cover whatever the Government decides is unhealthy. The phrase 'likely to cause' means that the Government can intervene pre-emptively on the basis of a prediction about what might happen.
In practice, this vagueness can result in the State Government having broad powers to notify 'disturbed areas' without any defined grounds. This unconstrained delegation is precisely what Article 14 is designed to prevent, as the Court made clear in Anuj Garg v. Hotel Association of India.[5]
When Indirect Discrimination Is Still Discrimination
The law speaks of 'disturbed areas,' 'improper clustering,' 'demographic imbalance,' and 'social harmony.' It mentions no community by name. It does not say that transactions involving particular localities or communities require special scrutiny. On its face, it applies equally to everyone.
This is what is called facial neutrality: the text of the law treats all citizens the same. But a law can be facially neutral while being systematically non-neutral in its operation.
A good illustration of this would be the Gujarat Disturbed Areas Act, 1991, on which Rajasthan's 2026 Bill is closely modelled.[6]
A 2022 paper notes that while the Gujarat Bill formally subjects every transfer of property in disturbed areas, the authorities usually hinder transfers between Hindus and Muslims.[7] Given the relatively weaker socio-economic position of Muslims within the existing status quo, this has disproportionately disadvantaged the Muslim community. It further points out that, despite the initial assurances of the law being temporary and the gradual abatement of communal violence in the state, the Gujarat Government has continued to designate additional areas as disturbed without any justification.
The constitutional guarantee of equality before the law under Article 14 of the Constitution not only prohibits laws that expressly discriminate between communities. It also checks laws that, while facially neutral, operate to disadvantage a particular group without adequate justification. This is what constitutional scholars call indirect or substantive discrimination.
The Supreme Court's equality jurisprudence has moved well beyond a purely formal understanding of Article 14. In Shayara Bano v. Union of India, the Court recognised manifest arbitrariness as an independent ground of constitutional invalidity under Article 14: measures that are excessive, capricious, or disproportionate to their stated objective cannot survive constitutional scrutiny.[8]
A scheme that professes to protect all communities equally, but is structured, through its choice of notified areas and standardless discretion, to potentially operate against transactions in minority-dominated localities, is manifestly arbitrary in its design. The arbitrary element is not that it does something unreasonable on the surface. It delegates to executive officers a discretion so broad that the outcome of any given application depends not on law but on the government's judgment about what community balance in a neighbourhood should look like. Shayara Bano has essentially restricted this unconstrained delegation.[9]
The Mandate of Article 300A
The Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat clarified that the word 'law' in Article 300A means more than any legislative instrument. It means a law that is just, fair, and reasonable, one that satisfies the requirements of Articles 14 and 21. A statute that deprives someone of their property through a process that is arbitrary, lacks adequate safeguards, and provides no meaningful remedy does not qualify.[10]
Section 4 of the Bill renders all covered transfers null and void unless prior sanction is obtained under Section 5. Section 5 conditions every transfer on the approval of the Competent Authority, who may refuse on the clustering ground without needing to demonstrate any actual harm. The three-month window the Bill provides for the authority to decide is explicitly aspirational: the word used is 'endeavour,' which means there is no enforceable deadline.[11] There is no compensation for the period during which the transfer is held up. There is no enforceable right to a reasoned decision.
Taken together, these features mean that a willing seller and a willing buyer may have their transaction blocked indefinitely by an officer who is under no obligation to act within any particular time, apply any particular standard, or explain the reasoning behind a refusal, with no real recourse available to them. The constitutional floor set by Article 300A is not a demanding one, but this Bill does not clear it.
The Appeal Structure
Section 13 of the Bill allows a person aggrieved by the Competent Authority's rejection to appeal to the Government. Section 15 makes the Government's decision final.[12]
This structure deserves attention. The Competent Authority acts under powers delegated by the State Government. When a rejection is appealed, the Government sits in judgment on a decision made by its own subordinate. The Government is simultaneously the original authority, the appellate tribunal, and the body whose decision is declared final. That is not an independent appellate mechanism. It is the executive reviewing itself.
Section 15's attempt to make this 'final' decision immune from further challenge will not survive constitutional scrutiny. The Supreme Court settled the matter definitively in L. Chandra Kumar v. Union of India: the supervisory jurisdiction of High Courts under Articles 226 and 227 cannot be ousted by any statute.[13] Any person aggrieved by the Government's appellate decision can challenge it before the High Court, and Section 15 cannot prevent that.
However, the provision is constitutionally objectionable even if it will ultimately fail in court. Its practical effect is to signal to affected persons, especially those without legal sophistication or resources, that no further remedy is available. When this signal is combined with a minimum non-bailable prison sentence for any violation, the deterrent against challenging the system is not trivial. The provision does not need to be legally effective to be practically harmful.
The Structural Contradiction: Consent Protected and Overridden Simultaneously
One of the Bill's stated purposes, reflected in its Statement of Objects and Reasons, is to ensure that property transfers are made with 'free consent' and at 'fair market value.' Section 5(3)(B)(ii) requires the Competent Authority to verify that the seller is acting voluntarily before granting sanction. But Section 5(3)(B)(iv) empowers the Authority to reject the transfer even where free consent is verified, if the Authority is concerned about demographic outcomes.[14]
The Bill, therefore, simultaneously protects consent and provides a mechanism to override it. A seller who freely and genuinely wishes to sell to a buyer of a particular community, with no pressure, no distress, and no below-market price, can still be refused. The 'consent verification' requirement is not a safeguard for the seller. It is a procedural step that the State may choose to honour or override depending on its assessment of neighbourhood demographics.
This is not a hypothetical concern. The Gujarat experience shows precisely this dynamic: consenting transactions between parties from different communities are routinely blocked, while same-community transfers proceed without equivalent scrutiny.[15] A scheme that professes to protect free choice while building in the power to override it, and that operates systematically to block cross-community transfers while permitting same-community ones, is manifestly arbitrary in its design, not merely in its application. The core structural argument bears restating: this Bill is not neutral legislation that has been misapplied in practice. It is legislation whose design ensures that non-neutral operation is the predictable output.
Not everything in this Bill deserves critique. Section 12, read with the accompanying amendment to the Rajasthan Rent Control Act, 2001, addresses a historically neglected and genuine problem: in riot-affected areas, tenants often lose their homes not because they are evicted, but because landlords do not rebuild damaged or destroyed premises.[16]
The Bill addresses this by obligating landlords to reconstruct within fifteen months, giving tenants the right to reoccupy the rebuilt premises, and providing for the site to vest in the State if the landlord defaults. These are meaningful protections with no equivalent in most state tenancy frameworks. A tenant in a riot-affected locality who has lost their home to fire or mob destruction is precisely the kind of person the law should protect.
The problem is that these provisions are embedded in a statute whose other sections are constitutionally vulnerable. If the Bill is successfully challenged, and the challenge is not merely plausible but likely, the tenant protection provisions will be struck down along with the rest. A legislature serious about tenant protection in riot-affected areas would have enacted a standalone amendment to the Rent Control Act. Bundling these protections into a demographic management statute was either an oversight or a deliberate attempt to shelter controversial provisions behind a sympathetic cause.
End Notes & References:
1. Rajasthan Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Bill, 2026 (Raj.) [hereinafter 'the Bill']. ↑
2. The Bill, s. 2(f). ↑
3.The Bill, s. 5(3)(C). ↑
4. The Bill, s. 5(3)(B). ↑
5. Anuj Garg v. Hotel Association of India, Appeal (Civil) 5657 of 2007 (holding that facially protective legislation that operates to disadvantage a particular group, without adequate justification and without meaningful scrutiny of alternatives, cannot survive Article 14). ↑
6. Gujarat Disturbed Areas Act, 1991 (Guj. Act 21 of 1991). Rajasthan's 2026 Bill closely follows its architecture, including executive notification, prior sanction requirements, and criminal penalties for contravention. ↑
7. Sheba Tejani, Saffron Geographies of Exclusion: The Disturbed Areas Act of Gujarat, 60 URB. STUD. 597 (2022). ↑
8. Shayara Bano v. Union of India, Writ Petition (Civil) No. 118 of 2016 (India) (Nariman J., concurring) (articulating manifest arbitrariness as a ground of invalidity under Article 14). ↑
9. Id. ↑
10. Jilubhai Nanbhai Khachar v. State of Gujarat, Appeal (Civil) 2211 of 1984(India). ↑
11. The Bill, s. 5(3)(C). ↑
12. The Bill, ss. 13, 15. ↑
13. L. Chandra Kumar v. Union of India, Appeal (Civil) 481 of 1980(India). ↑
14. The Bill, ss. 5(3)(B)(ii), 5(3)(B)(iv). ↑
15. Sheba Tejani, Saffron Geographies of Exclusion: The Disturbed Areas Act of Gujarat, 60 URB. STUD. 597 (2022). ↑
16. The Bill, s. 12, read with the amendment to the Rajasthan Rent Control Act, 2001 (Raj.). ↑
Authors are Law students at National University Of Law, Punjab. Views are personal.