This article is written by Nitika currently pursuing B.A.LL.B(5 yrs), at the National University of Study and Research in Law, Ranchi
Table of Contents
Introduction
The “save Lakshadweep” social media campaign has gained tremendous popularity in recent days. The steps taken by the administrator and the Draft laws introduced in Lakshadweep have been criticized a lot. The group of 36 islands known as Lakshadweep is famed for its beautiful beaches, lush green terrain, as well as its biodiversity. In Malayalam and Sanskrit, the term “Lakshadweep” means “hundred thousand Islands”. It is India’s smallest union territory covering an area equal to 32 square km.
An administrator appointed by the president acts as the head of a union territory. In the usual scenario, a retired civil service officer, particularly an IAS officer is appointed as an administrator in union territories but in the case of Lakshadweep, Praful K. Patel, a politician, has been appointed as an administrator. He is not only the administrator of Lakshadweep but also of Daman and Diu and Dadra and Nagar Haveli. Recently 4 draft regulations have been implemented in Lakshadweep they are:
- Lakshadweep Animal Preservation Regulation, 2021
- Lakshadweep Panchayat Regulation, 2021
- Lakshadweep Prevention of Anti-social Activities Regulation, 2021
- Lakshadweep development authority regulation, 2021
which gained a lot of momentum and is the reason for protest and agitation among the public. The residents are very much disappointed with the draft laws and claim that the provisions of the laws are against their basic rights.
The research paper is extensively about all the draft regulations imposed in Lakshadweep and their analysis. The whole issue has been highlighted along the lines of the Indian constitution. The entire research is based on the draft laws, concerns of the residents, government arguments, precedent cases, judgment of the Supreme Court, etc. This article aims to present an overview of the current controversial issues aroused in Lakshadweep.
Lakshadweep animal preservation regulation, 2021
This regulation is promulgated by the president by exercising the powers conferred to him in Article 240 of the Indian Constitution. This regulation is brought for providing preservation to animals suitable for breeding, mulching, or agricultural purposes.
Section 5(1)
Prohibition against the slaughter of any animal without a certificate from the competent authority. It states that notwithstanding any other law in force, no person shall slaughter or cause to be slaughtered any animal unless he has obtained a certificate in writing from the competent authority and has been approved by the competent authority for such animal stating that the animal is fit for slaughter.
Section 5(2)
It restricts the issuance of a certificate in the case of a cow, a cow’s calf, whether male or female, and, if male, whether castrated or not, a bull or a bullock.
Section 5(3)
It states that even in the case of other animals to which sub-Section (2) does not apply, the authority may refuse to issue a certificate if in its opinion- the animal, whether male or female is useful or likely to be useful for the purpose or draught, or any type of agricultural practice, or the animal (male) is useful or likely to be useful for breeding, or, the animal (female) is useful or likely to be useful for mulching or bearing children.
Section 5(4)
It gives an exception for the slaughter of any animal or a religious day or bonafide religious purposes, but the animal should be above 15 years of age and other than cow, bull, bullock, or calf of a cow.
Section 6
It states that no slaughter should be carried in a place other than what is specified for the purpose. And Section 7 prohibits the transportation of specified animals for slaughter.
Section 8:
It bars a person from selling, keeping, storing, transporting, offering, buying beef or beef products in any form, whether directly or indirectly. And Section 10 imposes penalties for contravention of the above Sections.
Section 11
It specifies that despite anything contained in the Code of Criminal Procedure (CrPC), 1973, all offenses under this rule shall be cognizable, and non-bailable.
ISSUE 1: Does the beef ban violate the right to life and personal liberty?
ISSUE 2: Is a ban on cow slaughter against the right to religion and the spirit of secularism?
Critical analysis
The residents are arguing that the majority of the people living here consume beef and Lakshadweep has a major percentage of the Muslim population, thus such regulation is arbitrary and discriminatory. The order violates the Right to life and the right to privacy guaranteed under Article 21 of the Indian Constitution.
It also violates the right to choose food or the right to choice covered under Article 21. It affects and infringes the ethnic culture, heritage, food habits of the islanders. The Lakshadweep Animal Preservation Regulation, 2021 violates Article 19 of the Indian constitution which states the freedom of trade and occupation as a fundamental right.
It also violates Article 25 of the Indian constitution which ensures the right to profess, practice any religion, as it harms the religious sentiments of the Muslim community. Although there is a different side to this too.
This regulation i.e The Lakshadweep Animal Preservation Regulation, 2021, is brought under Part IV of the Indian constitution. Part IV states certain principles which are not binding as fundamental rights but acts like guidelines for the government.
These are referred to as Directive Principles of State Policy (DPSP). And Article 48 states that- the state shall attempt to manage agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps to prevent the killing of cows, calves, and other milch and draught cattle.
This issue had been dealt with by the Supreme Court through various judgments. The Supreme court has emphasized in “Quareshi v. The State of Bihar AIR 1958 SC 731 : 1959 SCR 629.”, that in Article 48, the directive for taking steps for preventing the slaughter of certain specified categories of animals is quite explicit and positive. It is an aspect of organizing animal husbandry on modern and scientific lines.
The court had opined that the directive in Article 48 contemplates protection only of cows and calves, and other animals, which though once milch or draught, cease to be so in course of time. Article 48 does not forbid the ban of the slaughter of all types of cattle or bulls or bullocks. The state is to prohibit the killing of milch and draught livestock only.
The Supreme court has interpreted the scope of this Article in the Quareshi case as “ the protection recommended by this part of the DPSP is confined only to cows and calves and to those animals which are currently or capable of yielding milk or of doing work as draught cattle but does not, from the very nature of the purpose for which it is recommended, extend to cattle which at one time were milch or draught livestock but have ceased to be such”, thus prohibition on the killing of cow, bulls, and bullocks more than the age of 16 years i.e above the age of utility did not fall within the ambit of Article 48(Mirzapur Moti Kureshi Kasab Jamat v. State of Gujarat, AIR 1998 Guj 220).
There was a view that a total ban on the slaughter of cows, calves, buffalos, bull, bullocks of all ages is reasonable and completely valid and as per Article 48 of the Indian Constitution. Also in the case of other animals, their slaughter is reasonable as long as they are unfit for milch, draught, or agricultural purposes.
However, this reasoning of applying a test of usefulness in the case of other animals and not in the case of cows, calves, bulls, etc has been criticized by many people for being anti-secular and arbitrary. Gajendragadkar says that Article 48 has been recognized to some extent in a favor of Hindu sentiment regarding cows. Directive principles are enabling provisions i.e it depends upon the discretion of parliament, implementing them is not a mandate, so even the laws which allow such slaughter are not against the constitution i.e unconstitutional or invalid.
Indian secularism has been criticized by Gajendragadkar, he states that the test of secularism has been propounded in the context of distinguishing essentially religious practices from secular practices to restrict Article 25 of the Indian constitution.
He gives an example of CJ. Das in cow slaughter case i.e Mohammad Hanif Quareshi v. the State of Bihar, MANU/SC/0027/1958, the court while dealing with a challenge against the prohibition of cow slaughter in Bihar, denied the relevance of the Fundamental right in such cases with the reasoning that Muslims have an option of sacrificing other animals and so it is not obligatory to sacrifice a cow only according to religious belief. Having an option counters the notion of having an obligatory duty.
Thus, the test of essentiality transformed into the test of obligation and it was generalized from differentiating secularism from religious practices. According to him, this reasoning is absurd.
The justification for this test of essentiality has been given by a statement of Dr. Ambedkar during the Constituent Assembly Debates: ‘There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a way that we do not extend it beyond beliefs and such rituals as may be connected with essentially religious ceremonies, I do not see why religion should be given this vast, expansive jurisdiction as to cover the entirety of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for?
We are having the liberty to reform our social system, which is so full of inequalities, discrimination, and other things which conflict with our fundamental rights. But in the cow slaughter case, the test to determine whether the practices were ‘essentially’ religious has been changed to ‘essential to the practice of religion’ and thus obligatory, although this significant difference has not been observed.
In my view, a total ban on cow slaughter and the beef ban is discriminatory for the sake of secularism and for the protection of the fundamental right to choose, right to privacy, right of choice of food, and right to religion. DPSP provides for proper management of animal husbandry, so these fundamental rights along with secularism should be balanced with the preservation and protection of animals taking into account the population of the cattle.
Lakshadweep Panchayat regulation, 2021
By exercising the powers conferred by Article 240(1) of the Indian constitution the “Lakshadweep Panchayat regulation, 2021” is brought.
Section 3(1), chapter 2 of this act confers power to the administrator to declare any local area comprising a village or a group of villages as a Panchayat area. The administrator can alter this area, include or exclude any area through the powers conferred to him by Section 6 of this act.
Section 14 of the act lists a few conditions that will lead to disqualification from the Panchayat election in Lakshadweep. One such condition is having more than two children i.e Section 14(n) of the aforementioned act. It mentions two exceptions that are- a person having more than two children on the date of commencement of the act will not be disqualified from contesting elections, so it means that the act has a prospective effect. Also if a kid or more than one kid is born to a person within one year of the commencement date and in a single delivery then he or she will not be barred under Section 14(n) of the Act.
ISSUE 1: Does bringing the two-child norm as a criterion for contesting the Panchayat election violate the right to equality and equal opportunity?
ISSUE 2: Is the two-child norm effective?
Critical analysis
Earlier, Ashwani Kumar Upadhyay, a politician, and lawyer had requested a regulation that would deny entry of people having more than two children into public services, and even they would not get access to subsidies and other government policies. The Ministry of health and family welfare refused to implement such a required law for the whole country. They clearly stated that they would not implement a two-child policy nationwide as the Family Welfare Programme is voluntary without any compulsion on the government.
India is a male-dominated country with families still having a preference for a male child. India is one of the countries having a poor sex ratio. As per Niti Aayog, the sex ratio in India is 900 females per 1000 males in the year 2015. This means that if families were disincentivized from having more than two children, they are more likely to abort or abandon a daughter in the hope of having a son, worsening India’s sex ratio. So such a law would instead have unintended impacts that are sex-selective practices, unsafe abortions, sex determination, female foeticide, etc.
An analysis of the government’s newly released health data showed that such laws are unnecessary, as in 19 out of 22 states and union territories for which data were released, on average women have fewer than two children. The Supreme court dismissed the public interest litigation (PIL) filed by Ashwani Kumar Upadhyay to bring the two-child policy by stating that it depends upon the discretion of the parliament, the court can not direct the parliament to make laws. Also, experts are of the opinion that India does not really need coercive family planning strategies or laws at this stage or point of time, as 25 Indian states already have fertility rates at either replacement level or near replacement level so there is no need for forceful family planning strategies.
India’s total fertility rate has lowered from 3.4 children per woman, aged 15 to 49 years, in 1992- 1993 to 2.2 children in 2015- 2016 as per the data released from the National Family Health Survey 4 (NFHS 4). This is projected to fall to 1.93 by 2025 and to 1.8 by 2030 without any mandatory child policy or law, according to the health ministry report.
Fertility rates have fallen due to socio-economic factors, access to contraceptives, awareness about birth control, women empowerment, education, modernization, the popularity of the nuclear family concept, overall awareness about sexual health and health of mother and child, sex education, etc. So focusing on these factors and making proper policies for development will work more efficiently rather than bringing flawed legislation to control birth.
Another problem with this issue is that it is more likely that women will suffer more. Despite our constitution providing the right to equality as a fundamental right and various judgments of the Supreme Court have upheld its validity along the lines of gender equality, it is still lacking in a country like India. In Indian families, women still don’t have the autonomy to decide how many children she wants, it depends upon patriarchy, especially in rural areas. So such a policy would undermine women’s empowerment. For example- suppose a couple, in which the male is not a government employee and the female wants to be a government employee or either is a government employee, she may be forced to have more than two children for whatever reasons, one of them being want of a male child and other, for letting her not to do any work.
Ultimately, it would be the female who will suffer by losing her job. Supreme Court in the case “Sucheta Srivastava vs Chandigarh Administration”, added a new dimension of bodily integrity in Article 21 of the Indian Constitution. It was held that every woman has the freedom to make reproductive choices, that is- to decide whether to sustain a pregnancy or not, whether to engage in sexual activity or not and so on. Despite all these measures such atrocities with women are very prevalent in India.
After the 1991 census, several States prohibited those who had more than two children from holding any Panchayat post. Instead of better family planning, this had unintended consequences like men deserting or divorcing their wives if they become pregnant the third time, sex determination and abortions, and given the persisting preference for sons, families going in for repeated pregnancies.
Laws that punish families for having a third child or force abortions of the third child will increase female foeticide and unsafe abortions. The on-ground reality and also the data show that for the first child, the sex ratio is not too bad but it is very bad for the second and the third child as families give preference to a male child.
According to Poonam Muttreja, director of the Population Foundation of India, the imposition of the two-child policy norm in Lakshadweep is flawed, as Lakshadweep has one of the lowest fertility rates in the entire country and also an aging population. Also, there is no evidence so far, no study or survey has been done that can confirm the efficiency of the two-child policy in the states which have implemented it till now, in fact, it will increase atrocities against women, which is still prevalent in India and would burden woman disproportionately.
According to the statistics from the National Family Health Survey (NFHS), the total fertility rate (TFR) of India is falling from 3.4 in 1992 to 2.2 in 2015-16. So it is not evident that there is a population explosion in the country. It is very important to take note that states such as Kerala and Tamilnadu have significantly brought down the fertility rates without any two-child policy norm.
This has been achieved due to better education and health care facilities and also empowering women. Kerala has the highest female literacy rate also.
Also, if we analyze at ground level and for a moment forget all the negative impacts of the two-child policy then also even after the implementation of Lakshadweep Panchayat Regulation, 2021, it won’t affect the fertility rate as having more than two children only disqualifies a person from contesting elections and nothing else, it won’t be effective at all as in reality very limited people wants to contest the election at a various level so only they would be affected and nobody else, unfortunately, it won’t work because this disqualification would be limited for a few and not everyone.
Lakshadweep Prevention of Anti-social Activities Regulation, 2021
Section 3(1) of the regulation empowers the administrator to retain any person if he is satisfied, to prevent that person from acting in any manner which is prejudicial to the maintenance of public order.
Section 20 states that notwithstanding anything given in the Code of Criminal Procedure (CrPC), 1973, all offenses and violations of the orders made under this law shall be cognizable and non-bailable.
Section 8(1) states that the person detained should be communicated about the grounds on which the order of detention was made against him. He should be communicated and informed about the grounds of the detention as early as possible and this should not be delayed for more than 7 days from the date of detention.
Section 8(2) empowers the authority not to disclose facts about detention if in their opinion it is against the public interest.
Section 13 empowers the administrator or the appropriate authority to detain a person for one year from the date of detention.
Section 14 states that no detention order would be invalid merely on the basis that either the person or the place of detention is outside the territorial jurisdiction of the officer authorized to make such detention.
ISSUE 1: Is detaining a person for one year valid i.e constitutional?
ISSUE 2: Is there a requirement for preventive detention law in a place with the lowest crime rate?
Critical Analysis
This act is also known as the “Goonda Act”. Article 22 of the Indian constitution confers protection against arrest and detention. It states that no person should be detained without being told the reason for such arrest and shall not be denied the right to consult a lawyer.
Clause 2 of Article 22 specifies that the person so detained must be brought before the nearest magistrate within the limit 24 hours of his detention, disregarding the travel time. Clause 4 of Article 22 mandates that the detention of a person should not exceed the limit of 3 months.
Provided that such detention can be exceeded if there is a sufficient cause for exceeding it and it should be reported by the advisory board before the expiration of the period of three months. It also states that these clauses will not apply if the detention is made under the provisions of any law in force and which is passed by the parliament.
The Prevention of Anti-social Activities Regulation, 2021 in Lakshadweep is unconstitutional as it is violative of Article 22 of the Indian constitution. It gives power to the administrator to detain a person without public disclosure and legal trial for one year.
One year-long preventive detention is against the personal liberty of a person. Our constitution legalizes preventive detention for sufficient cause maximum up to the limit of three months it can be extended further but after submission of a report. But here in the case of Lakshadweep, once a person is detained he can be kept arrested for one year without following the procedure of submission of the report after 3 months.
Also there are no such provisions in the regulation to present the detained person before the nearest magistrate within 24 hours of his arrest. The Lakshadweep Prevention of Anti-social Activities Regulation, 2021 mandates the ground for detention to be communicated to the person detained within 7 days from the date of detention.
This is also against the personal liberty of a person so detained. So it is clear that the regulation does not align with the provisions of the Indian constitution. As the Prevention of Anti-social Activities Regulation, 2021 is not passed by the parliament, it is merely an executive order under Article 240 of the Indian constitution as Lakshadweep is a union territory.
Thus it cannot even be protected under Article 22(4)(b) which states that the protection against detention as provided under Article 22 will not apply to such detention which is made under the law passed by the parliament.
The residents claim that there is a hidden intention besides framing this legislation which is to suppress the protest and agitation against the laws being implemented by giving immense power to the administrator to detain any individual violating his basic rights.
Also, there is no sense in implementing such preventive detention rule in Lakshadweep as according to the crime report by the government Lakshadweep has the lowest crime rate in the entire country and heinous crime is very rare, the cases reported are usually of theft, mischief, trespass, etc, and till date, only 3 murder cases are reported. The data released by National Crime Records Bureau (NCRB) also suggest that the island has the least number of violent crimes in the entire country.
To the claim that what was the necessity of bringing such regulation, despite knowing the fact that Lakshadweep has the lowest crime rate, the government answered that the crime rates are low right now but there is no guarantee that it will remain low after developing the island as a tourist hub, so the law is important and thus being implemented beforehand keeping law and order in mind.
Also, from a national security standpoint, the rule of law was critical, “ the government can’t take any chances on the law and order front because the island is on a major international shipping route,” says one official. Although this answer is vague and unsatisfactory.
In the case of “Hans Muller of Nuremberg versus Superintendent, Presidency jail, Calcutta and others”, the Supreme Court held that Article 21 of the Indian constitution guarantees protection of personal liberty to citizens as well as non-citizens, thus no one shall be denied of his liberty except according to the procedure provided by law and Article 22 lays out a minimum procedure that must be followed in any event of arrest or detention.
A person must not be arrested or detained without being presented to the nearest magistrate within the limit of 24 hours, disregarding the time of travel. It was only contended in this case that the only authority which can frame laws regarding preventive detention is the central government or the parliament. Thus, it was decided that a law of preventive detention can be adopted by parliament exclusively under entry 9, list I, for reasons related to defense, foreign affairs, or the security of India.
This is also violative of Article 14 which provides a fundamental right of equality before the law and equal protection from laws to every person. So a person cannot be denied from consulting a lawyer and also he should be allowed to be heard.
The Supreme Court of India ruled in “Rekha versus the state of Tamil Nadu”, which prevents detention is typically repulsive to democratic notions and odious to the rule of law. In the United Kingdom and the United States, there is no such legislation except during wartime.
We cannot hold preventive detention illegal because it is allowed under Article 22 of the Indian constitution. However, we should keep the intensity of preventive detention within defined limits, or else we will be intruding on a person’s right to liberty guaranteed by Article 21 of the Indian constitution which was obtained after a long, arduous, and significant battle.
The law allows the police to hold anyone in custody even if there is a fear that he would commit an offense that will harm the public interest.
According to the proposed law, a “cruel person” or a “dangerous person” can be detained on grounds that appear satisfactory to the Administrator’s authority. Several of the charges specified in the proposed law are bailable, including those that are non-cognizable and carry a sentence of fewer than three years, six months, or a fine. Protesters who gather for any social or political purpose are frequently charged with “unlawful assembly”. Thus the intention of bringing such regulation can easily be doubted.
Lakshadweep Development Authority Regulation, 2021
This legislation authorizes the administrator, the government, to establish Planning and Development Authorities to plan the development of any region classified as having “poor layout or outmoded development.” The authority would be a legal entity with a chairman selected by the government, a town planning officer, and two local government officials, as well as three government-nominated “experts.”
These authorities are responsible for preparing land use maps, conducting type-of-land-use zonation, and identifying locations for proposed national highways, arterial roads, ring roads, major streets, railways, tramways, airports, theatres, and museums, among other things.
The regulation also provides that for zone changes, islanders must pay a processing fee. It means that local governments would have to pay fees to get clearance to change zones following the development plan, as well as costs to develop their land. It also establishes consequences for hindering the development plan’s activities or workers, such as jail.
People’s concerns
Real estate interest
People believe it was issued at the request of ‘real estate interests’ attempting to steal the islanders’ limited property holdings, with the majority of them (94.8 percent according to the 2011 census) belonging to the Scheduled Tribes (ST). Proposals to bring real estate development principles to the island, such as “transferable development rights,” have sparked fears of forced migration.
Forced relocation
It gives the administration the ability to make extensive development plans for any area and remove individuals against their choice. It allows for violent eviction, places the onus on the landowner to develop his property following the authority’s plan, and punishes non-compliance severely.
Danger to the culture
The islanders are a close-knit community with many families. The regulation will put an end to a way of life that they have followed for generations.
Concern to the environment
It is neither ecologically nor socially viable, and it was not drafted with the people’s representatives in mind.
ISSUE 1: Does Lakshadweep Development Authority Regulation violate a person’s right to protest?
ISSUE 2: Is taking away landholdings of islanders for developmental activities legal? Does this regulation infringe the property right?
Critical Analysis
The government argues that This Regulation empowers the government and its Planning and Development authorities to remove those who are occupying land illegally. For the development of towns on the island, this law has been recommended. Its main purpose is to offer suitable provisions for the rehabilitation and relocation of those individuals and families who have been impacted by the land acquisition. Its goal is to turn this area into a “smart city” in the future. This rule would open the path for development and will go a long way toward raising the island’s social and environmental standards, which had been trailing behind other territories despite its potential.
However, the islanders fear that the government and its administrators may forcibly expel them shortly under the provisions of Lakshadweep Development Authority Regulation, 2021. This rule gives the government and its agencies arbitrary, broad, and unrestrained authority to interfere with islanders’ rights to acquire and maintain the property. It has been proposed with the primary goal of changing the island’s current land ownership and usage. By permitting the government to establish any redevelopment plans for any location, this legislation provides the government broad, arbitrary, and unregulated powers. Under this legislation, he can pick any territory as a “planning area” and relocate people.
After the government decides on the use of a piece of land, the owner has no authority over it from that point forward because it will be utilized for “public purposes” and will be acquired by the government. This rule came into effect to improve the provisions and techniques for developing townships, as well as purchasing, altering, and transferring land owned by the Lakshadweep people.
The government has been given the power of land acquisition, which is broad, arbitrary, and unrestrained, without consultation with citizens. No developmental plan may be questioned by anybody, including judicial proceedings, according to this Regulation.
This is a clear-cut violation of a person’s right to possess and retain his property as guaranteed by Article 300A of the Indian Constitution. Also, Lakshadweep is a scheduled tribal (ST) territory, which the government is dedicated to safeguarding.
The Constitution (Forty-Fourth Amendment) Act of 1978 made the right to property no longer a fundamental right, but it remained a human right 2 in a welfare state and a constitutional right under Article 300 A of the Constitution.
Article 300 A states that no one’s property can be taken away from them unless they have legal authorization to do so. The State cannot take a citizen’s property unless it follows the legal procedure. Though not clearly stated in Article 300 A, the need to pay compensation can be inferred from it.
In the case N. Padmamma S. Ramakrishna Reddy (2008) 15 SCC 517, it was held that the property right is both a human and a constitutional right, the court decided that it can only be taken away in compliance with the law. Such a right is protected by Article 300A of the Constitution.
Keeping in mind the provisions of Article 300A of the Indian Constitution, the provisions of the Act intending to divest such privilege must be strictly read. In “Fomento Resorts and Hotels v. Minguel Martins, (2009) 3 SCC 571”, the court held that, if the state transfers public trust properties to a private entity, the court can apply the public trust doctrine and take affirmative action to defend the right.
Also, Lakshadweep Development Authority Regulation, 2021 was brought during the lockdown and thus the inability of the residents to mobilize or protest against this arbitrary legislation was very well exploited. This regulation also establishes penalties and imprisonment for obstructing the workers or work for developmental activities. This also indirectly violates the right to protest, if done peacefully. Protesting is a fundamental aspect of democracy, and this is a well-established fact that can not be denied, it has also been laid down in various cases. “Freedom of speech and expression,” as defined in Article 19(1)(a) of the Indian constitution, is a basic right granted to citizens against the state, which includes peaceful public demonstrations.
On appeal, the Supreme Court concluded that there was no regulation under which essential rights provided under Article 19(1)(a) may be abridged in the case of “Bijoe Emmanuel v. the State of Kerala”, (1986)3 SCC 615. Article 19(a) rights can only be controlled by legislation and on grounds specified in the Constitution, not by presidential orders.
In “Romesh Thappar v. the State of Madras”, (AIR 1950 SC 124), the court stated that restricting an individual’s rights under Article 19(1)(a) is unconstitutional until it does not jeopardize the state’s security.
“Right to Protest vs. Public Convenience”, The Supreme Court ruled on October 7, 2020, that “it is critical to acknowledge that a democratic democracy includes the right to protest and express opposition.” Public spaces, on the other hand, cannot be occupied indefinitely.
Thus, the Supreme Court through its various judgments recognized that the right to protest is an important fundamental right and an essential part of democracy, so until it is peacefully demonstrated, it can never be curtailed.
Article 48A of the Indian constitution states that the state will work to maintain and improve the environment, as well as the country’s forests and wildlife.
There is also a threat of biodiversity loss through this regulation. The development plans are neither socially viable nor ecologically sustainable and might harm the rich biodiversity of Lakshadweep to a large extent. Lakshadweep has a rich diversity of seaweeds, seagrasses, mangroves, corals, marine fishes, Mollusca, sponges, etc. tuna, sharks, marine turtles, dolphins, whales, birds, etc that are economically and ecologically important fauna found in Lakshadweep.
The Lakshadweep archipelago is a typical marine system in which delineation of some environmentally sensitive and fragile areas is difficult due to people’s reliance on the resource. As a result, more revisions to the act are required for sensitive places such as coral islands, where fishing is the primary occupation. The proper conservation, propagation, and development of vulnerable ecosystems is a top priority. However, the need for resources for survival must also be taken into account.
In the case “M.C. Mehta v. Union of India, JT 2002 (3) SC 527”, The court emphasized the relevance of key environmental protection requirements. Article 48 A further ensures that the state will take appropriate measures to protect and safeguard the country’s wildlife. The court also held that Articles 39(e), 47, and 48a, individually and jointly, impose an obligation on the state to safeguard and improve people’s health, as well as to protect and improve the environment.
The Supreme court has formulated three principles: the precautionary principle, the polluter pays principle, and the idea of public trust in the case of “M.C. Mehta v. Kamal Nath, 1997 1 SCC 388”. The apex court also held that the natural resources, such as forests, water bodies, and seashores, have long been held by the state as a trustee on behalf of the people, particularly future generations.
These are common properties, and everyone has the right to utilize them without interruption. If the state transfers public trust properties to a private entity, the court can apply the public trust doctrine and take affirmative action to defend the right.
The government is of the view of converting Lakshadweep into the mini Maldives, but this plan is completely flawed as the Maldives is very different from Lakshadweep. Maldives’ population density is half that of the Lakshadweep. Within their atolls, the Maldives has a plethora of isolated and uninhabited islands that are ideal for tourists.
Furthermore, despite high-end tourism, the Maldives’ tourist approach does not return income to local people; instead, multinational commercial interests reap the benefits. Climate change is the most pressing ecological issue confronting the Lakshadweep at the moment. If this trend continues, the habitability of the planet will be called into question in the next decades. The atoll island protects the island within by being formed from broken coral and other biologically generated material from the reef.
The island’s highest point is 2-3 meters above sea level, making it vulnerable to storms and waves. The islands, however, are relatively safe as long as the atoll structure is intact. The structure is a living, self-repairing system that relies on the continuous activity of developing coral. Development activities, pollution, and other factors will disrupt this framework, causing ocean warming.
As a result, such developments and regulations constitute a threat to Lakshadweep’s biodiversity and even to the existence of the islands. People in Lakshadweep have been living pretty much within the confines of the islands’ ecological integrity, thus disrupting it would be unjust.
Conclusion
All the Draft regulations imposed in Lakshadweep give tremendous power to the administrator. There is a good chance that the regulations would be misused, this will destroy the culture and the way of life of the people living in Lakshadweep.
This is neither ecologically sustainable nor socially variable, and also the representatives of the people were not consulted before drafting the regulations, thus the concerns of the residents are genuine. This can be said as a recent burning example of the complete failure of democracy.
Bringing development in an area is not wrong, but the cultural diversity, concerns of the people, environment, necessity, the livelihood of the residents, biodiversity, etc should be taken care of. Development cannot be brought about by harming the cultural identity of people and keeping the rich biodiversity of the island at risk. Currently, Lakshadweep coexists with nature, fully cognizant of its reliance on maritime and environment.
The environmental condition may alter dramatically because of the commercial exploitation in the name of development. The government should recognize the need to manage resources along with safeguarding the environment i.e sustainable development. Also, basic rights which the constitution of India guarantees should not be infringed in any manner, either directly or indirectly. We are all affected by environmental circumstances.
Necessities include clean water, food, air, and shelter. We must first have access to those basic needs to live the life that development offers. If we pursue development at the expense of the environment, we will soon find ourselves in a situation where our basic requirements are not supplied. In some places of the world, this is already happening. This is why sustainable development is critical; it ensures that development plans consider all factors, including the environment and human rights.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
