Srinagar: In a landmark decision that could have far-reaching implications, the High Court of Jammu and Kashmir and Ladakh has nullified a contentious directive issued by the Commissioner/Secretary to the Government, Department of Rural Development and Panchayat Raj, while providing significant relief to contractors.
The directive, which barred contractors from participating in tenders if their relatives were previously associated with anti-national activities, has been deemed unconstitutional and violative of fundamental rights.
Justice Sanjeev Kumar presided over the case, highlighting that the petitioners had not been found guilty of any adverse activities by the CID during their character verification. "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 penalised 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," he stated.
The case, involving multiple petitions filed by contractors under the J&K Registration of Contractors Rules, 1969, revolved around the barring of these contractors from public works tenders. This decision was based on a CID report indicating that their close relatives had been involved in subversive activities in the past.
Petitioners argued that the directive violated their fundamental rights under Article 19(1)(g) of the Indian Constitution, which guarantees the right to practice any profession or carry out any occupation, trade, or business. They also contended that their character verification reports were clear of any adverse findings.
The Department of Rural Development and Panchayat Raj defended the directive, asserting it was meant to ensure fairness and transparency in government contracts and to prevent those involved in anti-national activities from obtaining such contracts.
Justice Kumar, however, found the directive in violation of fundamental rights, specifically the right to livelihood. He underscored that the Act and Rules governing contractor registration specified particular grounds for disqualification and the petitioners did not meet these disqualifications.
"The petitioners have not incurred any of the disqualifications under the Act and the Rules framed thereunder and, therefore, hold valid certificates of registration issued by the competent authority. These certificates were issued by the competent authority after recording satisfaction about the eligibility and fulfilment of requisite conditions by the petitioners," he explained.
The court reasoned that denying the petitioners the right to contract with the government based solely on their relatives' past involvement in anti-national activities was unjust. The valid registration certificates entitled the petitioners to participate in government contracts.
Elaborating on the right to life and liberty under Article 21 and the right to carry on trade or business under Article 19(1)(g), the court stressed that restrictions on these rights must be reasonable, in the public interest and imposed by law. "Such restrictions must be reasonable, in general public interest and imposed by law. The restriction on the fundamental right to carry on trade or business guaranteed under Article 19 (1)(g) of the Constitution, even if it is reasonable, cannot be imposed by the government through executive fiat," the court underscored.
Furthermore, the court noted the government's rehabilitation policies for ex-militants and surrendered militants, emphasising the importance of reintegration into the mainstream. It deemed the directive contrary to these policies and detrimental to the petitioners, who were not responsible for their relatives' actions.
Consequently, the court allowed the petitions, quashing the directive and directing authorities to allow the petitioners to participate in the tender process if they met the eligibility criteria.
The court also directed Atal Dullo, Chief Secretary of the Union Territory of Jammu and Kashmir, to initiate departmental action against Mandeep Kour, who issued the directive. "An action report taken against the then Commissioner/Secretary to Government, Department of Rural Development and Panchayat Raj shall be submitted by the Chief Secretary to this Court within 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 July 29, 2024," the court concluded.
On March 15, 2023, the Jammu and Kashmir administration ordered action against contractors and suppliers allegedly involved in militancy and anti-India activities. This directive was issued by Mandeep Kour, Commissioner/Secretary to the Government, Department of Rural Development and Panchayati Raj, who shared a list of 345 contractors and suppliers failing the 'security test.'
In the communication, Kour had requested the Director of Rural Development to take action against these contractors and ensure they did not receive any future contracts from the department. "This is in reference to the UO No. CID/NGO/SS/2023/325-26 dated 15.02.2023 received from Criminal Investigation Department (CID), Jammu and Kashmir along with a list of contractors, who are found to have failed the security test. In this connection, you are requested to initiate action against them as per law and ensure no contract from the Rural Development Department is allotted to them in future (SIC)," the communication read.
Kour was appointed as Commissioner/Secretary to the government, Department of Rural Development and Panchayat Raj on December 8, 2021.
The court began hearing the petitions filed by 16 aggrieved contractors and suppliers on April 6, 2023. The case has drawn significant attention due to its implications for the livelihood of many contractors in the region and the broader political and social context.
In the legal battle concerning the nullification of a controversial directive, the petitioners include a group of contractors comprising Mohammad Shafi Malik and others, Tanveer Ahmad Malik, Tahir Ahmad Mir, Syed Maqsood Shah, Syed Mehboob Shah, Parvaiz Ahmad Qureshi, Parvaiz Ahmad Khatana, Mohammad Talib Joo, Ali Mohammad Baba, Mohammad Fojdar Khan, Bashir Ahmad Dar, Ahmadullah Khan, Muzaffar Ahmad Khan, Ghulam Mohammad Mir, Shahyar Ahmad Malik, and Ghulam Hassan Shah. They are being legally represented by advocate Mir Umar.
On the opposing side, the respondents in this legal dispute involve various entities, notably the Union Territory of Jammu and Kashmir, along with the Rural Development and Panchayat Raj Department. Additionally, the respondents include the Director of Rural Development and Panchayat Raj Kashmir, Commissioner Secretary PWD (R and B) UT of Jammu and Kashmir, Executive Engineer R&B Division Kupwara, Executive Engineer REW (Rural Engineering Wing) Kupwara, Assistant Commissioner Development Kupwara, Executive Engineer Irrigation and Flood Control Kupwara, Executive Engineer Jal Shakti Department Kupwara, and DSP (SS) Special DG CID Jammu and Kashmir.
Advocates representing the respondents are Maha Majeed, Assistant Counsel (vice Mohsin Qadiri, Sr. AAG), and Alla-ud-din Ganai, AAG.
The case involves several petitions, including the main petition labelled as WP(C)/774/2023, along with WP(C)/768/2023, WP(C)/1150/2023, WP(C)/611/2023, and WP(C)/823/2023.
The Jammu and Kashmir administration's action against contractors and suppliers allegedly involved in militancy and anti-India activities last year triggered widespread criticism. Political parties in the region condemned the move, asserting that it would further alienate the people of Jammu and Kashmir.
On March 19, 2023, PDP Chief Mehbooba Mufti criticised the intelligence agencies via Twitter, alleging that in Jammu and Kashmir, these agencies focus solely on harassing Kashmiris, even going so far as to criminalise their livelihood under the guise of 'security'. Mehbooba further claimed that these agencies are misled by numerous individuals like Kiran Patels, whom they empower to perpetuate the false narrative of 'Naya Kashmir'.
In a separate instance on the same day, Altaf Bukhari, President of the Jammu and Kashmir Apni Party, also addressed reporters, characterizing such actions as an attempt to instil fear. He appealed to LG Manoj Sinha to quell this fear and prioritise the establishment of peace.
"Why are they disturbing the tranquillity of the populace? LG, this doesn't align with the vision of a 'New Kashmir'. By reopening past cases, aren't we denying those who live ordinary lives their right to live peacefully?" Bukhari said while questioning LG Manoj Sinha.
