Lakshadweep Legislative Reforms
Lakshadweep Islands are one of the remotest areas of India. They have almost always enjoyed their time away from limelight unlike their eastern cousins, the Andaman and Nicobar Islands, which have been a tourism hotspot. However, recently, the administration decided to bring about certain legislative reforms on the islands and since then Lakshadweep is the epicentre of some major disputes.
In this article, we dissect the following regulations introduced by the Lakshadweep Administration and analyse the legal issues surrounding them:
- The Lakshadweep Prevention of Anti-Social Activities Regulation, 2021
- The Lakshadweep Animal Preservation Regulation, 2021
- The Lakshadweep Town and Country Planning Regulation, 2021
Lakshadweep Prevention of Anti-Social Activities Regulation, 2021
The Lakshadweep Prevention of Anti-Social Activities Regulation, 2021, also known as the “Goonda Act”, provides many powers to the Administrator of Lakshadweep. Some of the powers include:
- Detaining a person for upto a year to prevent him from “acting in any manner prejudicial to the maintenance of public order”. This detention order would not be invalidated even if one or more grounds of the person’s detention are "vague, non-existent, non-relevant, non-connected or not proximately connected with such a person or invalid for any other reason whatsoever”.
- A person would be deemed to be a “goonda” or as someone “acting in any manner prejudicial to the maintenance of public order” if he is engaged in “any activities as a bootlegger or cruel person or dangerous person, or drug offender or immoral traffic offender or property grabber or cyber offender or money lending offender or depredator of environment or sexual offender, which affect adversely or are likely to affect adversely the maintenance of public order”.
- The Administrator or an authorized officer can empower any police officer to enter any house, vehicle, or vessel, conduct a search on them and seize anything that they reasonable believe as being used or about to be used for certain illegal activities.
- Threat to Freedom of Speech and Expression: It is difficult to find any basis for such a regulation as the crime rate in Lakshadweep is very low as compared to other parts of India. According to National Crime Records Bureau, only 121 criminal cases were registered in Lakshadweep in 2017; 86 in 2018; 186 in 2019; and 89 in 2020. As such, the regulation is seen by the people of Lakshadweep as a tool to suppress any form of protest and agitation, therefore, imposing a threat to the freedom of speech and expression guaranteed by the Constitution of India under Article 19(1).
- Right to Protection Against Arrest and Detention: The regulation is further in contradiction to the fundamental right of “protection against arrest and detention in certain cases” as covered by Article 22 of the Constitution. Article 22(1) provides that: “No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
- Further, Article 22(2) states that: “Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.”
State’s Power to Arrest and Detain and its Constitutional Validity
- Provisos Under Article 22: While clauses (1) and (2) of Article 22 provide the right to “protection against arrest and detention”, clause (3) of Article 22 itself puts a limitation on these rights by attaching a proviso that “nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention”.
Further, clause 7(b) of Article 22 empowers the Parliament to “prescribe the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention”. However, these limitations on “protection against arrest and detention” and powers of the State to make laws providing for detention, do not give the State a license to make such laws arbitrarily and without a valid pretext.
- Power Under the Union List: Lakshadweep, being a union territory, is administered by the President through an administrator appointed by him, as per Article 239 of the Constitution. Therefore, when any law introduced by the administrator is ratified by the Union Parliament and assented to by the President, it becomes binding. Entry 9 of the Union List contained in the Seventh Schedule of the Constitution gives the power to the Union to make any laws related to “preventive detention for reasons connected with defence, foreign affairs, or the security of India; persons subjected to such detention.” As such, any law made by the administration of Lakshadweep would be constitutionally valid once it receives the signature of the President.
Lakshadweep Animal Preservation Regulation, 2021
The Lakshadweep Animal Preservation Regulation, 2021, is aimed at restricting and banning the slaughtering of certain animals including bulls, bullocks, cows, calves, male and female buffaloes and buffalo-calves.
- The regulation provides that “no person shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such animal a certificate in writing from the Competent Authority appointed for the area that the animal is fit for slaughter”.
- No such certificate can be granted in respect of a cow; the calf of a cow, whether male or female and if male, a bull or a bullock.
- The regulation states that it provides for the preservation of animals suitable for breeding, yielding milk (milch) and agricultural purposes. No certificate can be granted for the slaughtering of any animal which fulfills any of these purposes.
- The regulation also prohibits buying, selling, transporting or storing beef or beef products. A person violating this is entitled to a jail term of 10 years and a fine upto Rs. 5 lakh.
- State’s Power to Make Regulations on Cow and Cattle Slaughter and Constitutional Validity: Article 48 of the Constitution, as Directive Principle of State Policy, directs the State to make efforts for "preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle". It also directs the State to organise agriculture and animal husbandry on modern and scientific lines.
Although the Directive Principles of State Policy are “fundamental in the governance of the country”, it is to be noted that they are not legally enforceable. They act as guidelines laid down by the framers of the Constitution for governing India as a welfare state, which preserves the very essence of its being – the principles of sovereignty, democracy, justice, liberty, equality, fraternity and secularism. Therefore, any laws that the State makes, have to be made by keeping in mind these principles meant to be followed by any government.
Opinion of the Supreme Court on Cow and Cattle Slaughter
- Hanif Qureshi v. State of Bihar, 1958: Lakshadweep is not the first state to propose or implement laws that check the slaughter of cows, bulls and bullocks; several states and union territories already have cattle and cow preservation laws in some form or the other. Judicially, the first major challenge to anti-cow slaughter laws in India came before the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar, 1958, where the petitioners pleaded for the preservation of their right to trade arguing that “the Qureshi community had generally engaged in the butcher's trade". The Supreme Court held that a complete ban was impossible in the economic interest of the nation, but it allowed a partial ban on cow-slaughter. The Supreme Court also recognized that "beef was a common part of the diet of poorer Muslims, Christians, Scheduled Castes and Scheduled Tribes”.
- State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, 2005: The Supreme Court in this judgment took a much clearer view of the cow-slaughter issue and upheld the Constitutional validity of laws putting a total ban on cow slaughter. The court held that: “In the agricultural sector, use of animals for milch, draught, breeding or agricultural purposes has great importance. It has, therefore, become necessary to emphasise preservation and protection of agricultural animals like bulls and bullocks. With the growing adoption of non-conventional energy sources like bio-gas plants, even waste material have come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and bio-gas, and therefore, they cannot be said to be useless. It is well established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole structure of the Indian agriculture and its economic system.”
- All India Jamiatul Quresh Action Committee v. Union of India, 2017: This case reopened the debate related to ban on cattle and cow slaughter. The Supreme Court, in this case, suspended a government order that banned the trade of cattle for slaughter. It stressed on the hardship that the ban on the trade of cattle for slaughter had imposed. This verdict was delivered keeping in mind the livelihood of the people involved in the leather and meat industry. India is one of the largest exporter of beef in the world and a total ban on the trade of cattle for slaughter affects the livelihood of millions of people associated with this industry.
Therefore, the Lakshadweep Animal Preservation Regulation contradicts the judgment of the Supreme Court.
Lakshadweep Town and Country Planning Regulation, 2021
The Lakshadweep Town and Country Planning Regulation, 2021, provides for the formation of Lakshadweep Planning and Development Authority and gives widespread land eviction and confiscation powers to the Lakshadweep Administration.
- The Administration may evict, alter, and/or occupy any land owned by a person on the island for the purposes of development.
- The Regulation lays down the procedure for eviction and gives the power to the Planning and Development Authority to evict a person who continues to occupy any land that he is not entitled to occupy under the final scheme.
- It punishes any person who obstructs the development process "with fine which may extend to ten thousand rupees or with imprisonment for a term, which may extend to two months."
- Right to Property and Article 300A: Article 300A of the Constitution provides that “no person shall be deprived of his property save by authority of law”. Although not a fundamental right, the right to property is still a constitutional right under this article and it does not give arbitrary powers to the State to evict, alter, and occupy the property of any person at will. Nonetheless, this right of a citizen to defend itself against the arbitrariness of the State is still protected under the right to equality and right to life and personal liberty guaranteed by the Constitution under Article 14 and Article 21, respectively. This is emphasized by the various judgments of the Apex Court:
- Padmamma v. S. Ramakrishna Reddy, 2008 – Inthis judgment the Supreme Court observed that “the right of property is a human right as also a constitutional right, the same cannot be taken away except in accordance with law. Article 300A of the Constitution protects such right.”
- Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P. & Ors, 2009– the Supreme Court emphasized on the importance of the right to property as a basic human right as “an indispensable safeguard against the tyranny and economic oppression of the Government. … that property must be conserved if other constitutional values are to flourish…”
- Jilubhai Nanbhai Khachar v. State of Gujarat, 1995– the Supreme Court pointed out that Article 300A limits the power of the State that it cannot deprive any person of his property except by the authority of law; there cannot be any deprivation without the sanction of law.
- Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors., 2012– The Supreme Court emphasized that “a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution.” “It is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development.”
Struggle between Power and People
The new laws introduced in Lakshadweep touch upon many delicate aspects of the individual and society – religion, lifestyle and culture. Therefore, any legislation that is made for the archipelago must keep in mind its demographic and ecological welfare. However, in a sudden democratic turmoil, the people of Lakshadweep find themselves right in the middle of complex and unresolved battles between the rights related to property and personal liberty, and the power of the State to exercise “reasonable restrictions” on them.
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