It's High Time Gujarat Government Recognises the Communal Elephant in the Room

It is not uncommon for Muslims to be denied a house in Hindu-dominated areas and vice-versa, and one of the chief culprits of this blatant apartheid is the regressive Disturbed Areas Act, 1991, which is fuelling distrust.

It has been 16 years since the 2002 riots, which serves as a reminder to the Gujarat government for a policy overhaul if it sincerely wants to address the glaring demarcation and ghettoisation of the Muslim residents in the state.

Gujarat has residential areas demarcated for Hindus and Muslims. Within Ahmedabad, for instance, Muslim residential areas such as Juhapura and Jamalpur have clearly defined boundaries with other Hindu residential areas. I have witnessed this phenomenon as a child and an adult in this state through the lived experiences of Muslim friends. It is not uncommon in Gujarat for Muslim citizens to be denied a house in any of the Hindu dominated areas and the other way around.

One of the chief culprits of this blatant apartheid is the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 or commonly called the ‘Disturbed Areas Act, 1991’. It is a law that restricts sale of immovable property in “disturbed” areas with the justification to avert an exodus or distress sales in neighbourhoods hit by inter-religious unrest in Gujarat. The Act is currently implemented in many parts of Ahmedabad, Vadodara and Surat city. In Ahmedabad alone, more than 30 areas are declared disturbed. Almost 40% of the areas in the state fall under this Act. Most of these areas still declared “disturbed” have not seen mob violence since 2002.

The various clauses of the Act have been thoroughly misused by the state government, beginning with the very interpretation of Section 3(1) of the Act on the declaration of disturbed areas:

“Where the State Government, having regard to the intensity and duration of riot or violence of mob and such other factors in any area of the State is of opinion that public order in that area was disturbed for a substantial period by reason of riot or violence of mob, it may, by notification in the Official Gazette, – (a) declare such area. to be a disturbed area (b) specify the substantial period (hereinafter referred to as “the specified period).”

Section 3(1) indicates invoking the Act only in areas “disturbed for substantial period by reason of riot or violence of mob.” The latest imposition of the Act is in October 2017 in Surat and Vadodara, where the central zone of Surat Municipal Corporation and several residential colonies within Bopad police station were declared “disturbed”. These declarations were not a result of “reason or violence of mob” but because of religious intolerance among communities, not willing to share residential spaces. Vadodara police had conducted a survey in August 2017 based on various applications requesting for invoking the Act and submitted a report to the Home Department, enlisting the demands of the residents. According to Police Commissioner Manoj Sashidhar, many Hindus in the area were apprehensive about “Muslims acquiring the residential properties”.

The BJP MLA from Surat, Sangita Patil, had demanded imposition of the Disturbed Areas Act in August 2017 in her constituency of Limbayat, on the following grounds (in her own words):

“Limbayat was once a Hindu area. But now, many societies, such as Govind Nagar, Bharati Nagar, Madanpura and Bhavna Park, which go by Hindu name, are now dominated by Muslims. If they do not get the house easily, they even threaten Hindus and force them to sell it……The way Muslims are using various tactics to acquire Hindu properties, I am of the opinion that the ‘Disturbed Areas Act’ should be imposed here to stop them from spreading into Hindu areas. I requested the collector to do so after many residents made their representations to me”.

She also won the MLA elections held in Gujarat in December 2017. The misuse of the Act for inciting intolerance and creating a vote bank is quite apparent in the close timing of these events.

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There are other sections in the Act which are problematic and have been misused in the state.

The Act gives a lot of power to the collector to hold an inquiry and reject an application to transfer immovable property in disturbed areas even when the transfer of immovable property was made “by free consent of the transferor and the transferee (and) for a fair value of the immovable property so transferred.” (Section 4(2) of the Act).

2002 Gujarat riots. Credit: Reuters/Files

In such instances, despite free consent and fair value of the transaction, if the collector invalidates the transfer, there is no judicial recourse for those aggrieved by such a decision. The only recourse is an appeal to the state government and all proceedings before the collector and the state government shall be deemed judicial proceedings (refer Section 6 and 7 of the Act). The decisions of the collector and the state government on the appeal, according to Section 8 of the Act “shall be final and conclusive and shall not be questioned in any Court”. These provisions often leave the communities at the mercy of the inclinations (religious and political) of the state machinery.

This act is not only ill-drafted, archaic and regressive but also a tool of social engineering of the society by the state. The Act has no place in a modern society and should be abolished. The Chief Justice of Gujarat high court also called for a repeal of the Act in 2011, which fell on deaf ears of the state administration.

Invoking this Act, as recently as 2017, only reflects on the failure of the state machinery to promote communal harmony.

Memories of the 2002 riots still linger in the continued distrust among the communities. The Act perpetuates this distrust by adhering to the status quo. Gujarat desperately needs a communal harmony policy with clear objectives and action plan on promoting religious pluralism in school, colleges, government offices and residential colonies.

Dr Damini Shah’s thesis, “Muslim Ghettoisation – A tragedy”, received a lot of attention in 2015. She studied Muslim communities within three districts in the state  –  Anand, Ahmedabad, and Sabarkantha – and found that 92% of Muslim residents (respondents) who earlier had some contact with Hindu communities, do not have contact with the majority (Hindu) community after coming to the ghettos. The state government should, therefore, ensure more interaction between and across communities, through de-stigmatisation campaigns and promoting co-existence of communities within residential colonies, than declare more areas as “disturbed” under this Act.

The state government can also look at creating a Minority Commission (with members from all communities and judiciary) to look into these matters that can also serve as a platform for grievance redressal. In Gujarat, while such a commission exists in name, an RTI enquiry to the department of social justice and empowerment on the same in 2014 received a response that no such commission exists.

The need of the hour is to acknowledge the communal elephant in the room, learn from past experiences and memories of the 2002 riots and find solutions to create a more plural society in Gujarat.

Nidhi Tambi is a public policy enthusiast and a former LAMP fellow.

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