A Person Can’t Be Penalized Or Deprived Of Right To Livelihood On Ground That His Relatives Indulged In Anti-National Activities: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court held that a person cannot be penalized or deprived of his/her livelihood on account that his/her relatives had indulged in anti-national activities in the past.

The Court held thus in a writ petition filed by contractors of different classes registered by the competent authority under J&K Registration of Contractors Rules, 1969 and engaged in the execution of public works allotted to them by the Government Departments from time to time.

A Single Bench of Justice Sanjeev Kumar observed, “That apart, in the instant case, there is nothing adverse noticed by the CID against the petitioners while verifying their character/antecedents. The petitioners can, by no stretch of reasoning, be penalized and deprived of their right to livelihood on the ground that one or more relatives of the petitioners had, in the past, indulged in anti-national activities. The competent authority under the Act and the Rules framed thereunder can refuse to renew the registration of the petitioners as contractor only if such contractor is convicted of specified offences. The cancellation of certificate of registration as contractor and its renewal is regulated by the Act of 1956 and the Rules framed thereunder.”

Advocate Mir Umar represented the petitioners while Sr. AAG Mohsin Qadiri represented the respondents.

In this case, the petitioners/contractors were aggrieved by the communication issued by Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj by which the Director, Rural Development Department, Jammu/Srinagar, was called upon to initiate action against the petitioners and also to ensure that no contract from Rural Development Department is allotted to them in future. The basis of such communication was a report received from Criminal Investigation Department (CID), J&K wherein the petitioners along with some other contractors were found to have failed the security test.

In remarks column of the reports, CID indicated that close relatives of the petitioners, i.e., brother, cousin, uncle, nephew, maternal uncle, father’s maternal uncle, father, etc. had in the past remained involved in subversive activities. Some of these relatives were dead for the last couple of decades. The grievance of the petitioners was that they were entitled to do their trade and business of executing government contracts to make their livelihood and therefore, no authority of the government can take away their rights.

The High Court in view of the facts and circumstances of the case noted, “I deem it relevant to point out that the impugned communication, which is in clear violation of Article 19(1)(g) and Article 21 of the Constitution of India, has put the petitioners to serious prejudice as they have been deprived of their right to participate in the process of allotment of contracts by the Department of Rural Development. It is not clear as to whether similar communications have also been issued by the other government departments.”

The Court said that it cannot remain a mute spectator to such a blatant violation of fundamental rights of the citizens and further, it noted that with a view to rehabilitating ex-militants/surrendered militants, the Government of Jammu and Kashmir has been promulgating rehabilitation policies.

“I am reminded of issuance of Government Order No.Home-1376(IAS) of 2010 dated 23.11.2010 laying down the policy and procedure for return of ex-militants to Jammu and Kashmir State. As the preamble of the policy suggests, the policy was intended to facilitate return of ex-militants who belonged to the J&K State and had crossed over to POK/Pakistan for training in insurgency but later gave up insurgent activities due to change of heart”, it also noted.

The Court added that the intent and objective of such rehabilitation policies issued by the Government from time to time was to bring the misguided youth and others, who had strayed into militancy but had realized their mistake, into mainstream.

“The impugned communication issued by the then Commissioner/Secretary to Government Rural Development Department and Panchayati Raj is clear onslaught on the well thought after and wise decisions taken by the Government to bring peace and normalcy in the then State of Jammu and Kashmir, now Union Territory of Jammu and Kashmir. I have not been able to discern the thought process that might have gone into the mind of the then Commissioner/Secretary to issue such communication”, it said.

The Court observed that most of the relatives of the petitioners either died or surrendered to make a new beginning as law abiding citizens of this country.

Accordingly, the High Court allowed the petitions and quashed the impugned communication.

Cause Title- Mohammad Shafi Malik and Others v. UT of J&K and Others

Appearance:

Petitioners: Advocate Mir Umar

Respondents: Sr. AAG Mohsin Qadiri, AAG Alla-ud-din Ganai, and Assisting Counsel Maha Majeed.

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