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Unlocking the reality of preventive detention laws in India



Criminal laws act as a tool to prosecute criminals and also to prevent or reduce the risk of an anticipated future harm. Such measures enable the state to criminalize conduct at an early stage in order to allow the authorities to take action, to incapacitate suspected future wrong doers, keeping them behind the bars for an extended period and all this is done in the garb of public protection and security. Classical theories of jurisprudence comprehend the relationship between states and citizens. A citizen’s obligation to obey to the sovereign is a tacit form of consent and in return the state owes a deemed duty to protect the citizens from hazards, threats and any form of violence. With this rationale, the state proceeds towards fostering in itself the power the prevent an individual or a group from committing any harm. Broadly, preventive detention is a measure if it is created to avert or reduce the frequency or impact of an unacceptable risk or harm.


There is no universally accepted definition of preventive detention but in general sense preventive detention means to detain a person in order to prevent him from committing any possible future crime. There is another similar type of detention called ‘administrative detention’ which is more often used in civil law countries and on the other hand preventive detention’ is more often used in common law countries. The major difference between two types of detention is that in a former case detention is a tool for administration and on the other hand in the later case detention is a tool to prevent a ‘potential threat’.

There is also a third type of detention, ‘punitive detention’ the main purpose of which is to punish the person for an offence committed only after a trial and conviction in a court of law. As the name suggests the major difference between punitive detention and preventive detention is that one talks about punishment and other about prevention.


India chose to be a democratic country with inherent values of human rights embedded in our Constitution. However, the irony lies in the fact that the Constitution makers still chose to grant exemption to prevention detention laws when once they were victims of the same despotic laws.

Under Entry 9 the Union list, Parliament has the absolute power to enact laws with regard to preventive detention for reasons connected with security, defence and foreign affairs of India. Under Entry 3 of the Concurrent, both the state and the central government have been vested with the powers of enactment of such laws which related to the maintenance of public order, maintenance of supplies and services essential to the community etc. Preventive detention finds place in Constitution and that too under Fundamental Rights. Article 22(3) provides that: “if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under Article22 (1) and 22 (2) shall not be available to that person.” This is why article 22(3) cannot be said as the fundamental right but a fundamental danger to the liberty of a person.

The Criminal Procedure Code of India also provides for Preventive detention under Section 151 as: “A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.”

In Union of India v Paul Nanickan and Anr, the Supreme Court of India stated: “the object of preventive detention is not to punish a man for having done something but to intercept him, before he does it, and to prevent him from doing it. No offence is proved, nor any charge formulated; and the justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.”

The main purpose for inserting preventive detention laws was to prevent the commission of a crime which are prejudicial to law and order of a state but it has failed miserably to serve its purpose and on the other hand is proving to be a tool to curtail the liberty of an individual.

Clause (3) of Article 22 is the main escape that outrightly exempts the applicability of rights of an arrested person as conferred by Article 22. Preventive detention thus allows detention without legal trial. At the same time, the constitution provides safeguards in case of misuse of preventive detention laws.


The first case in post-independent India where the constitutionality of the Preventive Detention Act, 1950 was questioned was the AK Gopalan Vs State of Madras. The court gave a green flag to the Preventive Detention Act because of the presence of the explicit provisions of Article 22(5). Although the petitioner made a good attempt by challenging the law in violation of Article 14, 19 and 21 of the Constitution. Later, PDA lapsed in 1969 and Parliament enacted the Maintenance of Internal Security Act (MISA) two years later. The infamous emergency of 1970s exercised MISA as a political weapon to curb political criticism and dissent. MISA expired in 1978 but paved way for the birth of another preventive detention law which is National Security Act (NSA) which is in effect today. Simultaneously, in 1967 the government enacted Unlawful Activities Prevention Act (UAPA) to restrict the fundamental rights of freedom of speech and expression, freedom to assembly peaceably without arms and to form associations. UAPA has undergone half a dozen amendments since then and is currently also recognized as a terror law.

It is pertinent to note that, the law in India allows detention of individuals in order to prevent act that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard in the case of Ram Manohar Lohia v. State of Bihar, wherein the court differentiated the concepts pf ‘security of state, public order and law and order’. The Court concluded that law and order represent the largest circle within which there is a smaller circle of public order and the smallest circle is the security of the state. So, it can be seen that what may affect law and order might not affect public order, similarly what may affect public order might not affect security of state.

However, the state is trying to normalize preventive detention under the umbrella of ‘national security’ and invoking judicial remedies in preventive detention cases becomes a rare option. The Apex Court has also mistakenly made a dangerous viewpoint in the case of Union of India Vs Dimple Happy Dhakkad where the accused were already arrested under the regular criminal process but were also subject to the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) as the case involved gold smuggling. Bail applications were rejected twice, The Apex Court very narrowly failed to consider the pre-existing detention of the accused when they were already languishing in jail for 2 months before the preventive detention order. The Supreme Court relied completely on the doctrine of the ‘subjective satisfaction’ of the detaining authority. The author undoubtedly admits the limitations of judicial review in detention orders but at the same time our Apex Court has itself widened the horizons of judicial review in arbitrary detention orders. The judiciary as in ADM Jabalpur has transformed itself to completely outlaw its tragic effect of fundamental freedoms and constitutionalism and overruled in the landmark Puttaswamy judgment. Moreover, the court in the case of Prabhu Dayal Deorah Vs. D.M Kamrup have rightfully assented to test the grounds on which the detention orders are passed on the lines of arbitrariness and vagueness. In another case of Bhawarlal Ganeshmalji v. State of Tamil Nadu, the court created a judicial requirement that the allegation must have a ‘live link’ with the present situation to justify the need of preventive detention.

It is significant to substantiate the recent judgment of Allahabad High Court in the Habeas Corpus case of NuzhatPerween Vs State of Uttar Pradesh. Briefly stating the facts of this case, Dr. Kafeel Khan (son of Nuzhat Perween) gave a public speech in Aligarh Muslim University. It was alleged that his speech incited feelings of communal disharmony and also lead to violent protests by some groups of students. A preventive detention order was passed against him to maintain public order in the district and he was put behind the bars. He applied for the bail and the bail was granted. What happens next is the episode which actually happens in our system. The executive did not enforce the bail order. When the court passed a second order to release Dr. Khan, the state claimed that the order was notified later and they have taken a preventive detention order authorized by the District Magistrate, Aligarh. When this matter reached the constitutional High Court of Allahabad, it took six months for a decision to be made. The inordinate delay is in itself a violation of the fundamental liberty of a person whose crime is a mere allegation. The petitioner mentioned that he did not have adequate material and thus his right to effective representation against is detention is violated. The Court agreed with this argument because the petitioner was given the CD of his speech but was given any means to play his disc. He was neither supplied the main transcript which was the primary basis for his preventive detention. Next, the court was asked to determine the contents of his speech as to whether it is of such a nature that a reasonable person could apprehend any disturbance to public order. The state correctly claimed that it is not open for the courts to wear the shoes of the preventive detention authority and the court cannot substitute their opinion in place of the ‘subjective satisfaction of the detaining authority’.

However, the court walked one step ahead and contradicting the above doctrine stated that ‘The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned.’ In line with this principle of judicial scrutiny in the detention authority, the court noted that the speech delivered by the detenu was presented in parts by the police and not holistically. The speech is in no way against the maintenance of public order and therefore the closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions.

In the recent bail order of the Delhi High Court in the case of Devangana Kalita Vs State of NCT of Delhi the court strongly observed that the state in its anxiety to suppress dissent has blurred the line of constitutionally guaranteed right to protest and terrorist activity. The Court uprightly confronted Section 43D(5) of the Unlawful Activities Prevention Act. Quoting the court ‘The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA’

In the latest 2019 amendment, individuals can also be designated as ‘terrorist’ by way of Section 35. Not just that, under Section 43D(5), bail can be denied by relying upon the prosecution documents even though they are inadmissible in courts. This archaic provision has been affirmed by the Apex Court of the country in the case of National Investigation Agency Vs. Zahoor Ahmed Shah Watali. This is the point of concern.

The tragic death of Father Stan Swamy is one such harshest reality of UAPA who was languishing in jail at the age of 84, a man who fought for the rights of the tribals and is applauded by the world. Many other renowned educators and activists like Professor Sudha Bhardwaj, Tamil Poet Varvara Rao etchave been detained under this law in the controversial ElgaarParishad and Bhima Koregaon case. Student activists have been put behind the bars for more than a year only because they dissent from those in power. The dissenting opinion of Hon’ble Justice DY Chandrachud in the Romila Thapar Case enlightens the current scenario of the arbitrariness of these laws. The complexity is embedded in Article 22 which guarantees protection against arrest and detention, yet it provides exception for preventive detention laws and our so called ‘democratic governments’ have time and again enacted preventive detention laws like MISA, UAPA, TADA, POTA, NSA etc. to curb voice raised against them.


All these legislations outlaw the fundamental rights coupled with the basic human rights. Article 10 of the Universal Declaration of Human Rights embodies the rule of fair hearing in every circumstance and this has been recognized as the basic human tenant. The state, under the misconception of protecting the security of the country, has actually put the country in a state of turmoil. Where at one instance Arnab Goswami is granted bail in 24 hours,

Father Stan Swamy was denied medical bail every time he knocked the doors of the court. The question is who actually are we protecting under these arbitrary preventive detention laws. The answer is none. We are actually protecting the state from dissent.

The constitutional courts of the country must remind themselves the crucial judgment if Maneka Gandhi Vs. Union of India which has expanded the horizons of Article 21 and the court also heard a batch of petitions challenging the National Security Act. In the case of A.K. Roy Vs Union of India upheld the validity of the Act by completely relying on Article 22 (3)(b). After this judgment, preventive detention laws have never been tested constitutionally and this settled proposition is proving to be very unsettling now. The author argues and concludes by stating that the narrowed interpretations of Article 22 have ceased to exist when the Apex Court re-affirmed due process into the constitution and the State cannot rely on this provision anymore while putting people behind the bars for months without giving them adequate legal representation. The judiciary must uphold constitutionalism of the constitution.

It is pertinent to note that the law in India allows detention of individuals in order to prevent acts that may threaten ‘national security’ or ‘public order’. But the author wants to argue that neither the Constitution nor the preventive laws expressly define what amounts to national security or public order or what possibly are the range of acts that may fall under these categories of offences. This deficiency on the fundamental clarity poses a challenge on the legality of these laws. The courts have justified preventive detention orders and given some direction in this regard.

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Legally Speaking


The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.



The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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It is interesting to note that while fully, firmly and finally very rightly and commendably upholding the ban that was imposed on meat shops that was enacted by the Zila Panchayat of Uttarkashi District, the Uttarakhand High Court in an extremely remarkable, robust, refreshing and rational judgment titled Naved Qureshi vs State of Uttarakhand & Ors in Writ Petition (MS) No. 2073 of 2016 that was pronounced recently on July 20, 2022 has expressed its consonance with a bye-law of Zila Panchayat, Uttarkashi to the effect that no shop for butchering animals and selling meat within 500m from the bank of river Ganga shall be permitted. It must be noticed here that the Single Judge Bench of Hon’ble Mr Justice Sanjaya Kumar Mishra said quite clearly that keeping in view the “special status” of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making the said bye-laws is in line with the scheme of Constitution of India, as envisaged in Part IX. It very rightly ruled that the District Magistrate had not committed any error in not issuing a no objection certificate to the petitioner to run a mutton shop, at a premises situated at 105 metres distance from the bank of Ganga.

At the outset, this extremely laudable, learned, landmark and latest judgment authored by a Single Judge Bench of the Uttarakhand High Court comprising of Hon’ble Mr Justice Sanjaya Kumar Mishra sets the ball rolling by first and foremost putting forth lucidly in para 1 that, “By filing this writ petition, the petitioner has prayed for the following reliefs:

“i. Issue a writ, order or direction in the nature of certiorari calling for the original record and pleased to quash the impugned order dated 08.06.2016 (Annexure – 2) passed by the respondent no. 2 i.e. District Magistrate, Uttarkashi, District Uttarkashi.

ii. Issue a writ, order or direction in the nature of Mandamus directing and commanding the respondents that they shall not interfere in the peaceful business activities i.e. in running the mutton shop in his house situated at the roadside of Gangotri National Highway without any valid reason.

iii. Issue a writ, order or direction in the nature of Prohibition making declaration to the effect that after central enactment of the Food Safety and Standards Act, 2006 the bye-laws no. 3 framed by the respondent Zila Panchayat became illusionary and same are not applicable for the purpose of regulating food safety activities in rural area, therefore, no license from respondent Zila Panchayat is required to do business.””

To put things in perspective, the Bench then envisages in para 2 that, “The facts of the case, not disputed at this stage, are that petitioner is a resident of village Hina Gaon, Police Station – Maneri, District – Uttarkashi. His father was recorded tenure holder having bhumidhari land bearing Khasra Nos. 1555 and 15556, situated in the aforesaid village. He was running a mutton shop since 2006 in a rented accommodation in village – Hina Gaon, after getting license from Zila Panchayat. Though, according to him, license was not required after enforcement of Food Safety and Standards Act, 2006 (hereinafter referred to as “FSS Act, 2006” for brevity). In the year 2012, he also obtained a license from the designated authority under the FSS Act, 2006. Till the year, 2015, he ran his shop at aforesaid rented premises and after construction of his own shop over the bhumidhari land, he shifted his business of butchering and selling mutton into it. On 27.02.2016, respondent no. 3 – Zila Panchayat, Uttarkashi, through Additional Mukhya Adhikari, issued a notice to the petitioner to shift his mutton shop, within 7 days to another place, as his shop is situated 105 metre away from the bank of river Ganga, which is violative of the existing by-laws. As per the by-laws, operation of mutton/chicken shop within 500 metres from the bank of river Ganga is prohibited. On 15.03.2016, petitioner being aggrieved by the notice, preferred a Writ Petition (MS) No. 651 of 2016, which was disposed of, in limine, by this Court by giving opportunity to the petitioner to file a representation before the Authorities and with a direction to the Authorities to dispose of the same. Thereafter, on 09.05.2016, the petitioner served a copy of the aforesaid order on respondents no. 2 and 3 and prayed for issuance of license for the next financial year 2016-17 but the respondent no. 2 – District Magistrate, Uttarkashi vide order dated 09.05.2016 rejected the representation of the petitioner on the basis of the Resolutions of meeting held on 04.05.2016.”

In this same para 2, it is then further mentioned that, “Feeling aggrieved by the aforesaid order dated 09.05.2016 and minutes of meeting dated 04.05.2016, the petitioner preferred a Writ Petition (MS) No. 1383 of 2016 wherein respondents were directed to file counter affidavit within four weeks and the said writ petition is still pending. In the meantime, petitioner again represented before respondent no. 2 – District Magistrate, Uttarkashi to grant him no objection certificate, which was again rejected. The said order of the learned District Magistrate, Uttarkashi is assailed in this writ petition.”

On the one hand, the Bench then points out in para 3 that, “Learned counsel for the petitioner would submit that the only ground on which his application for grant of no objection certificate has been rejected by the District Magistrate, Uttarkashi is that his shop is situated within 500 metre from the bank of river Ganga. According to the petitioner, after passing of the FSS Act, 2006, the jurisdiction of Zila Panchayat is ceased to operate and it is only the Designated Authority, under the FSS Act, 2006 has authority to grant license or reject it in favour of the petitioner for running a shop for selling and butchering the animals. Therefore, he prayed that annexure no. 2 to the writ petition be quashed and it be declared that FSS Act, 2006 shall have overriding effect on the by-laws issued by the Zila Panchayat.”

On the other hand, the Bench then mentions in para 4 that, “Learned counsel for the State would submit that petitioner was granted license by the Designated Authority to run the shop at a particular place but he shifted his shop, after getting the license from the Designated Authority under the FSS Act, 2006, to another place, which came within 500 metre from the bank of river Ganga, therefore, no objection certificate was not granted to him and order passed by District Magistrate, Uttarkashi does not have any infirmity or perversity and requires no interference.”

Furthermore, the Bench then succinctly discloses in para 5 that, “Learned counsel for the State further submits that as per Section 106 (1) of the Uttarakhand Panchayati Raj Act, 2016, the Zila Panchayats have powers to make by-laws. Section 106 of the Uttarakhand Panchayati Raj Act, 2016 is quoted as under:

“106 Powers of Zila Panchayat to make bye-laws (1) A Zila Panchayat may, and where required by the State Government shall, make bye-laws for its own purposes and for the purposes of {Kshettra Panchayats}, applicable to the whole or any part of the rural area of the district, consistent with this Act and with any rule, in respect of matters required by this Act to be governed by bye-laws and for the purposes of promoting or maintaining the health, safety and convenience of the inhabitants of the rural area of the district and for the furtherance of the administration of this Act in the Khand and the district.””

Needless to state, the Bench then notes explicitly in para 6 that, “Article 243 (Part IX) of the Constitution of India provides for formation of Gram Sabha and Gram Panchayat. Article 243 G provides for the powers, authority and responsibilities of Panchayats. For better appreciation of the matter, it is quoted below:

“243G. Powers, authority and responsibilities of Panchayats – Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to –

(a) the preparation of plans for economic development and social justice;

(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.””

Quite ostensibly, the Bench then enunciates in para 7 that, “Thus, it is apparent from the aforesaid Article that the Constitution recognises the Zila Panchayats, as sovereign authorities, having powers to plan for economic development and social justice, as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. Article 243 G also provides that the Legislature of a State, may by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self government. Entry 4 in the Eleventh Schedule of the Constitution of India provides for animal husbandry, dairying and poultry. Entry 22 provides for markets and fairs. Thus, it is clear that as far as markets and fairs and animal husbandry, dairying and poultry are concerned, the Zila Panchayat, as an institution of self government, may function to regulate animal husbandry etc. as mentioned above.”

Be it noted, the Bench then quite forthrightly holds in para 8 that, “Therefore, the contention of learned counsel for the petitioner that after passing of the FSS Act, 2006, the powers of Zila Panchayat ceased to operate with respect to food items does not appears to be correct. Since, the Zila Panchayats have been granted powers to act as institutions of self government, the provisions made by Zila Panchayat has to be harmoniously constructed with the provisions of the FSS Act, 2006.”

Most significantly, what truly constitutes the cornerstone of this notable judgment is then encapsulated in para 9 wherein it is held that, “In view of the above, this Court is of the opinion that no objection certificate is mandatory to be obtained from the Zila Panchayat or the District Magistrate for running a mutton shop in the present matter. At the same time, keeping in view the special status of State of Uttarakhand and the river Ganga that emerges from District Uttarkashi and the sanctity attached with the river Ganga by majority of population of Uttarakhand, the decision taken by the Zila Panchayat by making by-laws to the effect that no shop for butchering the animals and selling the meat within 500 metres from the bank of river Ganga appears in line with the scheme of Constitution of India, as envisaged in Part IX. Hence, this Court is of the view that respondent no. 2, District Magistrate, Uttarkashi has not committed any error in not issuing no objection certificate to the petitioner to run a mutton shop within 500 metres from the bank of river Ganga.”

Finally, the Bench then concludes aptly by directing in para 10 that, “Accordingly, the writ petition fails and is hereby dismissed. It is observed that any person, who runs a meat shop for selling and butchering the animals in District Uttarkashi, shall obtain no objection certificate from the concerned authority, in the light of by-laws made by the Zila Panchayat and also obtain license from the designated authority.”

In sum, the Uttarakhand High Court has very rightly held that Uttarkashi’s ban on meat shops within 500 meters of the river Ganga is in line with constitutional scheme. So it definitely merits no reiteration of any kind that the same has to be complied with accordingly in its entirety! No denying it!

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