Asymmetric federalism in India, one of the founding tenets of her Constitution, attempts to ensure the rights of minorities are effectively protected. This has been reflected in the provisions of fifth and sixth schedule, Articles 371 A to 371 J, where religious, caste and cultural minorities have been accorded constitutional protections and cocooning from exploitation. Lakshadweep is a small archipelago of the Indian Union, designated as a Union Territory. The Constitution of India under Article 239 authorises appointment of an administrator for governing the Union Territories (UTs).
The Lakshadweep administrator recently released the Lakshadweep Development Authority Regulation Bill (LDAR) to develop land and attract tourism. The Bill seeks to swat approval through the mechanism provided under Article 240 of the Indian Constitution. Article 240 allows the President to make regulations for peace, progression, and good government in the territory of Lakshadweep, thereby providing him a wholesome ambit to regulate its affairs. In a triple whammy, the administrator brings three regulations including a Prevention of Anti-Social Regulation Act (PASA), Lakshadweep Panchayat Regulation and the Animal Preservation Regulation Act, concomitantly violating constitutional and human rights of the archipelago’s population through the content of such regulations. The PASA gives the administrator the power to order the detention of any person if it is feared that they might disrupt peace and public order, making it thematically similar to preventive detention. The Animal Preservation regulation seeks to regulate and ban the slaughter of cows and bullocks, whereas the Panchayat Regulation has proposed to disqualify any person with more than two children from contesting the Gram Panchayat elections. All these regulations are in addition to the Land Development Authority Regulation brought for land acquisition and regulation in the island.
I would specifically comment on the bona fides and credence of the LDAR in this particular analysis. The LDAR makes provisions for development of townships, acquiring land, imposing restrictions on the landed properties in the Union Territory by declaring it as planning area. According to reports, 94% of the residents in Lakshadweep are Scheduled Tribes (STs). I argue that the LDAR is a violation of the constitutional and human rights of the residents of Lakshadweep, as is also an indictment of promises made by the ideas of legal pluralism to include and respect the interests of the ethnic and cultural minorities in the Union.
I would bulwark my argument using three sub-arguments. I contend that the LDAR violates right to equality, it violates the right to life of the inhabitants of the island, and finally that it runs contrary to the pluralist canvas that the framers of our Constitution had envisioned while drafting the supreme law of the land.
Right to Equality Violated
Right to equality is a fundamental right guaranteed under Article 14 of the Indian Constitution. The regulation (LDAR), it is argued, violates article 14 of the Indian Constitution. Right to equality calls for equal protection of law and equality before law. However, the flexibility of our constitution allows the state to create reasonable classifications as an exception to the general rule. These classifications have to be tested on the anvil of rationality and arbitrariness. It has been held through cases of DS Nakara and R Veeraswamy that the classification being sought in the law has to have reasonable nexus with the object that the regulations seek to achieve. The case of EP Royappa introduced to us, the antithetical nature of equality and arbitrariness. Classifications which are arbitrary, and irrational are not reasonable and are not capable of being valid legislations. Applying these tests, LDAR arbitrarily, unreasonably classifies and excludes the islands residents from the purview of Land Acquisition Act (LAA). I say this because the main objective of the Land Acquisition act (the general law on land acquisition in India) was humane, participative, transparent process of land acquisition. By not including any precautions or participative provisions, the LDAR unreasonably carves a separate category, consisting of residents of the island and prevents them from taking advantage of the procedures and protections provided under the LAA, which applies to rest of India.
Violating the Right to Life
The right to life and liberty is a fundamental right under the Indian Constitution. It guarantees to the inhabitants a right to seek protection of their lives against the state. It is argued that the proposed regulations violate the right to life of the inhabitants. The island has a high population density, accounting for an inverse ratio between available land and number of people. With 32 sq. km being inhabitable in the entire island, only 2 sq. km is available for private ownership by locals. These locals account for more than 6000 residents per island, and a simple mathematical analysis heralds land scarcity. If any more land was to be acquired, there are geographically no possibilities of reallocation or providing a fair compensation to those displaced as a result of these regulations. The courts have expanded the meaning of right to life from mere physical existence and have read into the right to life conditions like dignity, healthy environment, right to clean air. Olga Tellis and its counterparts envisage within Article 21, the right to livelihood and dignified living, both of which are a far cry in the proposed arrangement. Being forced to relocate, and even bid adieu to their cultural groups, the inhabitants are being denied a right to dignity and live in healthy environment by virtue of this regulation. It also mocks the Directive Principles of State Policy in the Indian Constitution, which specifically mention promotion of interests of Scheduled Tribes, providing humane conditions, adequate means of livelihood and welfare.
What at first blush appears to be the utilisation of presidential and administrative powers, masks an attempt to overhaul the Constitution where the Government is indirectly seeking to curtail rights of STs while converting their lands for public use. What has been rightly tagged as “killing the Constitution with a thousand cuts” by Tarunabh Khaitan is mirrored in the LDAR. He had ideated a situation of executive aggrandisement where the state was accused of violating the constitutional ideologies without any overt or visible thwarting of the provisions. Similarly, the rights of the inhabitants are being violated through this regulation, without an overt violation of provisions. Sections 22 and 24 of the regulations do not posit any consultation with the indigenous tribes and the local governments, which is a necessity under Sec 41 of the Land Acquisition Act 2013 (LAA). The Land Acquisition Act, which applies to the whole of India, gybes the presentation of Social Impact Report before acquisition, whereas there are no such heads- up provisions provided for in the Lakshadweep Land Acquisition Regulation. An analogical explanation would suggest that once the state decides to acquire land, the train leaves the station with no possibility of looking back, there are no chains to pull or intermediary stops till the train reaches its final destination (in this case acquiring land and leaving its inhabitants without remedy).
Moreover, though Article 240 is being used to tramp LAA, the LDAR needs to be read in combination with Article 339 of the Constitution. This provision mandates the setting up of a tribal welfare commission and compels the President to seek tribal welfare reports. The state has chosen to read only parts of the constitution which are favouring its decision and it is axiomatic that the State is asserting all its powers without adherence to protections provided to ethnic tribes.
International human Rights Protection
It also becomes imperative to understand the international human rights law violations by the regulations. While building on the fundamental rights as guaranteed by the Indian Constitution, these conventions expand the interpretation and provide further grounds to challenge the regulations. For instance, the United Nations Declaration on Human Rights provides for the right to livelihood and the right to live with dignity. While similar to right to life in the Indian constitution, Article 22 of the UN Declaration expands the scope and deems social and cultural security as necessary, in order to realise the right to dignity and personality of an individual. Moreover, Article 27 gives every individual the right to participate in cultural affairs and to be a part of their cultural community. The inhabitants of the island are demonstrably being alienated from their culture, livelihood, and community with this regulation in place. They are being deprived of the opportunity to participate in their indigenous practices and communities, with the Regulations disrespecting their identity and right to protected environment.
The regulation also jeers at the International Convention for Civil and Political Rights (ICCPR), whose roots are right to self-determination, in this case of the STs under a footloose regulation. The right to self-determination implies within it the right to determine one’s own culture and social development without any state interference or pressure. This has been deprived with the regulations possibly eroding and displacing indigenous tribals from their culture and social setting. The regulations are therefore not compliant with international norms and conventions.
The regulation attempts to overhaul the administrative machinery in Lakshadweep without the least kowtow to Constitutional or Human rights. The regulations are violative of the fundamental rights of life, livelihood, and dignity, as recognised both by domestic and international law. Taking advantage of the lack of special status to the island, the regulations jibe at the constitutional intent of the framers (reflected through fifth and sixth schedules of the constitution) which sought to protect minorities and indigenous cultures from exploitation. It is high time that the Centre acknowledge Lakshadweep which consists of 94% ST population as sixth schedule area, thereby conferring it its due.
(This post has been authored by This post has been authored by Nishtha Gupta, a fourth year law student at NALSAR University of Law, Hyderabad. )