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Lakshadweep's Draft Regulations: A Constitutional Critique

Ria Yadav
5 Jun 2021 9:41 AM GMT
Lakshadweeps Draft Regulations: A Constitutional Critique
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Over the past few months, the Administrator of the Union Territory of Lakshadweep has introduced and sought comments on a set of draft regulations that have been heavily criticized. These draft regulations cover a range of particulars including a beef-ban, an archaic Goonda Act, a two-child policy for aspirants of panchayat posts, and a development authority act which locals deem anti-local. The locals have been protesting against these proposed regulations, some were even detained but released later because of a Kerala High Court order. The Islands' geographical and cultural linkage to Kerala has also led the Kerala Legislative Assembly to pass a unanimous resolution to recall the Administrator and to withdraw the proposed regulations on Monday. The resolution introduced by the Chief Minister Pinarayi Vijayan was also backed by the Opposition Leader V D Satheesan.

The proposed regulations, already in force in some of the states, need to be scrutinised with their legal histories to comprehend the detrimental impact it will have on Lakshadweep.

Goonda Rei(g)ning

One of these regulations, the Lakshadweep Prevention of Anti-Social Activities Regulation (popularly known as "Goonda Act") provides a range of sweeping powers to the Administrator including allowing for the detention of a person for upto a year "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order". According to Section 6 of this regulation, such a detention order will not be deemed invalid even if one or some grounds are "vague, non-existent, non-relevant, non-connected or not proximately connected with such a person or invalid for any other reason whatsoever". The Administrator (or an authorized officer) can also empower any police officer to enter and search any dwelling house, vehicle, vessel, or animal and seize anything which they have a reason to believe "has been, is being or is about to be" used for certain illegal activities. This is not the first time this Act has come under fire.

During the discussions and propositions of amendments to the Fundamental Rights chapter in the Constituent Assembly, Kazi Syed Karimuddin raised pertinent questions about the search and seizure powers of certain acts and proposed an amendment that Article 13 are inalienable and should not be limited by the "vagaries of the legislature":

"Suppose, in a State there is a political party, which is hostile to the Central Government and they frame laws to the great detriment of the political minority or the religious minorities. What can be done? People have to suffer and there would be untold miseries. Particularly the wording 'subject to operation of existing laws' is very unjust. What is the situation today in India? Practically there is a state of siege. There are Goonda Public Safety Act, etc. in all the provinces in which there is neither appeal, nor any warrant is necessary for arrest, and searches can be made without justification. "

From the entirety of his speech, it is evident that he recognized that acts like the Goonda Public Safety Act were a colonial appendage and can potentially be used to suppress minorities in the future. When his proposed Amendment was put to vote, the house broke into a ruckus. It was put to vote twice, and after objections, shelved to a later date. When the time did come, it was rejected by the house without a debate.

However, it is important to note that Lakshadweep will not be the first territory or state to have a 'Goonda Act'. West Bengal had the earliest of the Goonda Acts in 1923; Karnataka, Tamil Nadu, Uttar Pradesh, Rajasthan, and Gujarat too have variations of the Act. Some of these Acts have been and are currently being challenged on their constitutionality. The Kerala Anti-Social Activities (Prevention) Act is presently being challenged. The Central Provinces and Berar Goondas Act, 1946 of Madhya Pradesh was struck down as unconstitutional in the State of Madhya Pradesh v. Baldeo Prasad as being violative of Article 19 (1) (d) and (e) but largely because the Act failed to define who a Goonda is.

Section 6 of the Lakshadweep Goonda regulation postulates that even if the grounds may be vague or non-relevant the detention order is valid. Section 18 gives the Administrator and its forces sweeping search and seizure powers. According to the regulation, a Goonda may be a "bootlegger, dangerous person, cruel person, drug offender, immoral traffic offender, lending offender, depredator of environment, or sexual offender". The question remains, do these definitions, search and seizure powers and particulars pass the test of constitutionality, or are they incurably vague, arbitrary, and thus unconstitutional?

Cows on an Island

Another of these regulations is the one which prohibits cow-slaughter. It too has been a contentious legal issue longer than the constitution even existed, this is especially disputable for Lakshadweep for it has a population of over 90% Muslims and 95% members Scheduled Tribes. The Administrator of Lakshadweep Praful Khoda Patel, the first non-IAS to be given the post, has also entirely ignored the cultural bond of the people of Lakshadweep with Kerala. He also changed freight traffic routes to the Islands from Beypore in Kerala to Mangalore in Karnataka. A majority of the population of Lakshadweep speaks Malayalam, the Islanders are ethnically and culturally close to the Malayali people. Beef, thus, is an important part of their diet. The debate around the beef-ban has been convoluted as even though the act and the substantive directive principle itself claims to have an economic basis, it reeks of religious motives. Rarely has it been in the world that the majority-supported authority/government imposes its own food choices on all, commonly regarded as a conservative nation even the muslim-majority UAE has not banned pork. But, India has had a much-checkered history and much more recently, lynchings in the name of cow slaughter. Lakshadweep was far from this mainland spectacle but the recent draft regulations threaten to make it a part and an example of what happens to muslim-majority territories and the interest of the people under the Bhartiya Janta Party's rule.

The Lakshadweep Animals Preservation Regulation prohibits the slaughter of any animal without a certificate, bans cow-slaughter, and sale/purchase of beef. Article 48 of the Constitution, a Directive Principle of State Policy does provide for "preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle", the constitutional assembly amendment which proposed it substantiated it with the economic argument of useful cattle and not as a religious right. Presently about 24 states and union territories have some form of anti-cow-slaughter laws.

One of the earliest challenges to anti cow-slaughter laws in India, Mohd. Hanif Qureshi v. State of Bihar, the petitioners pleaded for their right to trade and asserted themselves as belonging to "the Quraishi community and generally engaged in the butcher's trade". The Court ruled that a complete ban would be impossible in the nation's economic interest but allowed a partial ban on cow-slaughter. Rohit De in his A People's Constitution points out that Hanif Qureshi is frequently cited with reference to freedom of religion which effaces the caste and professional identity of the butchers who chose to contest the attack on their livelihood. Similarly, De notes that the Court had recognized that "beef was a common part of the diet of poorer Muslims, Christians, Scheduled Castes and Scheduled Tribes".

States under Entry No. 15 of Article 246, List II are empowered to make laws on "(P)reservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice". The rationale would indicate that states may independently assess the needs of their own people and accordingly enact anti cow-slaughter laws. But, Lakshadweep is not a state and as a Union Territory "the President may make regulations for the peace, progress and good government of the Union territory". However, it remains unclear how banning cow-slaughter benefits the Islanders, a majority of whom belong to the Scheduled Tribes and the Muslim community. The law is clearly divorced from public benefit, Lakshadweep's indigenous population has no use for it economically or culturally.

Of Development and Developers

The Lakshadweep Development Authority Act, another of these proposed regulations, would upon implementation allow the government to evict. alter and/or occupy any land owned by any common man in the island for "development" purposes.

It provides for the formation of a Planning and Development Authority which would further formulate a Development Plan. And, if a property is not deemed fit for the final scheme and the owner still continues to occupy it, Section 72 of the Act provides for the procedure for eviction: "any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure, be summarily evicted by the Planning and Development Authority or any of its officers authorised in that behalf by that Authority." Any cost regarding alterations to the property will be borne by the owner. Right to Property may only be taken away in accordance with the authority of law but must it be so arbitrary a law?

According to Section 119 of the Act, any person who obstructs the said development will be punished "with fine which may extend to ten thousand rupees or with imprisonment for a term which may extend to two months." The sweeping powers of acquisition and alteration of properties along with the possibility of a penal action upon non-compliance reeks of arbitrariness. The population density in the archipelago is high, properties scarce and there is little hope for rehabilitation. The regulation strikes at their very Article 21 rights. As it falls foul of the fundamental rights, is manifestly and wholly arbitrary and unreasonable, it is also violative of Article 14.

The Administrator of Lakshadweep has also proposed a draft Panchayat Regulation, 2021 with a two-child norm for the aspirants in panchayat elections even when experts claimed the FTR is within ideal limits and the proposed norm might have an adverse impact on the sex ratio.

Tthe opposition against these draft regulations proposed by the Administrator of Lakshadweep is not surprising. In a recent hearing at the Kerala High Court, the Lakshadweep Administration submitted that it has recieved 593 comments, suggestions and objections about the draft regulations. The number of regulations proposed at the very peak of the pandemic, when little public scrutiny was anticipated, must be probed for their rationale and public benefit, and rolled back. And, if not then struck down by our constitutional courts.

Views are personal.


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