Basic structure of Constitution can’t be tinkered with even by amending Constitution by Parliament: HC

Srinagar, May 24: The High Court of J&K and Ladakh Friday scrapped a government’s communication seeking action against a group of contractors and barring them for executing works as a CID report had attested to an involvement of their relatives in alleged subversive activities.

Observing the matter of very serious nature, a bench of Justice Sanjeev Kumar held that the then Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj, who had issued the communication, showing complete disregard to the law deserved to be proceeded against.

The Court also sought a report with regard to action taken against the then Commissioner/Secretary to be submitted by the Chief Secretary to the Court within a period of two months from the date a copy of its judgment was served upon the Chief Secretary.

For this purpose only, the matter shall be listed before this Court on 29.07.2024.

“The right to life and liberty guaranteed under Article 21 and the right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India essentially form the basic structure of the Constitution and cannot be tinkered with even by amending the Constitution by the Parliament,” The Court held while allowing a batch of writ petitions by some contractors against a communication dated March 15, 2023, issued by Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj.

The petitioners are 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.

In keeping with this communication Director, Rural Development Department, Jammu and Srinagar had been called upon to initiate action against the petitioners (aggrieved contractors) and also to ensure that no contract from Rural Development Department was allotted to them in future.

The basis of the communication was a report dated 15.02.2023 received from Criminal Investigation Department (CID), Jammu and Kashmir, wherein petitioners along with some other contractors had been found to have failed the security test.

The petitioners had also placed on record their character and antecedent verification reports submitted by CID, J&K, Srinagar, to the Executive Engineer, R&B Division, Kupwara, a perusal whereof showed that there was nothing adverse against them.

However, in the remarks column of the reports, CID had 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 the relatives indicated in the remarks column of the verification reports are dead for the last couple of decades.

“Such is the sanctity of the fundamental rights; particularly the right to life and liberty and right to carry on trade or business and, therefore, the action envisaged under the impugned communication is totally unacceptable. Such action of the respondents, whatever be the intention behind it, cannot be countenanced in law,” the court said while quashing the communication.

“The respondents shall permit the petitioners to participate in the tendering process, if they are otherwise eligible, the impugned communication dated 15th March, 2023, notwithstanding”.

The Court held that in a democracy as we are governed by rule of law and no authority, howsoever high and mighty it may be, cannot be permitted to subvert the constitutional provisions. “The fundamental rights, which form the bedrock of rule of law, cannot permitted to be tampered with in the manner it has been done by the Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj”

While observing the issue of serious nature, the court said: “Let a copy of this judgment be placed before the Chief Secretary of the Union Territory of Jammu and Kashmir, for initiating departmental action against the concerned Commissioner/Secretary”.

“A report with regard to action taken against the then Commissioner/Secretary to Government, Department of Rural Development and Panchayati Raj shall be submitted by the Chief Secretary to this Court within a period of two months from the date a copy of this judgment is served upon the Chief Secretary”.

For this purpose only, the matter shall be listed before this Court on 29.07.2024.

The court pointed out that the communication, which was in clear violation of Article 19(1)(g) and Article 21 of the Constitution of India, had put the petitioners to serious prejudice as they had 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”, it said.

“ ….. to such a blatant violation of fundamental rights of the citizens, this Court cannot remain a mute spectator,” the court said, adding, “ It may not be out of sync to point out 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. Similar policy was also promulgated by the Government for rehabilitation of surrendered militants. They were not only provided cash assistance but were also given vocational training. Reference in this regard can be made to Government Order No.Home-55/H of 2004 dated 31.01.2004” the court said.

The court observed that the intent and objective of the said 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. Was it intended to make the petitioners to starve or take up activities prohibited by law,” the court said. “They were debarred from executing works of the Rural Development Department on a flimsy ground that their uncle or even father’s uncle 10/20 years back were involved in anti-national activities. As is evident from the CID report, most of the relatives of the petitioners named therein have either died or surrendered to make a new beginning as law abiding citizens of this Country”