Draft Lakshadweep law does more harm, no good

Lakshadweep Administrator Praful Khoda Patel has proposed the Draft Lakshadweep Development Authority Regulation (LDAR) 2021, which would give him unrestricted and arbitrary power to relocate or remove islanders from their properties for town planning or by asserting the land to be a “planning area”.

It is to be noted that the powers of the Administrator of Lakshadweep come from Article 240(b) of the Indian Constitution which allows the President to promulgate "regulations for progress, peace and good governance" in Union Territories (UTs). These regulations have the force of an "Act of Parliament". The President acts through the Administrator.

According to Section 2(12) of the draft LDAR, the Administrator is the "government" of the UT. The draft regulation would allow the administration to detain any person without any trial for up to a year. Section 19(2)(b) read with Section 29 empowers the government to choose any land for “development” activities under its regulation. Once picked, the government can use that land on its whims and fancies in the name of “public purpose”.

Section 2(9) of the draft refers to “development” as activities including “building, engineering, mining, quarrying or other operations in, on, over or under, land, the cutting of a hill or any portion of the making of any material change in any building or land, or in the use of any building or land, and includes sub-division of any land.” If permission is granted for development, the maximum period shall be three years in some cases for the same as per Section 37 of the draft. This means that the fate of an islander is at the mercy of the authority after three years. If you fail to renew permission for your house every three years, you have to pay a fine of Rs 2 lakh and then Rs 10,000 for every additional day of the violation. The draft allows the administration to evict a person from a property that “he is not entitled to occupy” under the procedure prescribed in the rules laid down by the government through the notification. In the absence of any further deep dive into what constitutes “he is not entitled to occupy”, the impugned section infringes on one’s right to property under Article 300A of the Constitution which is not only a constitutional or statutory right but also a human right.

Some sections of the draft explicitly state that orders and decisions passed under the legislation are unchallengeable and final. For instance, Section 125 states: "Save as otherwise expressly provided in this Regulation, every order passed or direction issued by the Government or the Prescribed Authority or order passed or notice issued by any Planning and Development Authority under this Regulation shall be final and shall not be questioned in any suit or other legal proceeding."

In S P Sampath Kumar v Union of India, Justice P N Bhagwati held that it was well settled that "judicial review is a basic and essential feature of the Constitution." It was said that if the power of judicial review was abrogated or taken away, the Constitution would cease to be what it was.

The current draft legislation curtails the power of judicial review, which is an essential part of the basic structure.

Also, the draft proposal for the formation of a development authority and the executive order of transfer of powers from panchayats is in direct confrontation with the recommendations of the Justice Raveendran Committee constituted by the Supreme Court in 2012. As per the Island Protection Zone notification 2011, any development activity can only be done under the ‘Integrated Island Management Plan’ Provisions.

The elected council representatives of the local population of the island will not be able to make decisions on many issues affecting people directly such as agriculture, healthcare, animal husbandry and fisheries. These subjects would have direct control of the administration. Hence the Administrator’s designs amount to a glaring violation of the International Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly and recognised by India. Further, the draft legislation violates Article 21 (Right to Life and Liberty) of the Constitution as the draft gives sweeping and uncontrolled power to the Administrator without allowing the local population of the island to make decisions on many issues that directly affect their livelihood, such as fisheries.

What is happening in Lakshadweep is a calculated effort to break the biological integrity of the 'pristine island with the active involvement of the local community.'

(The writer is from NLSUI)