SRINAGAR: In a significant ruling upholding fundamental rights, the High Court of Jammu & Kashmir and Ladakh has struck down the government’s decision to bar certain contractors from bidding on public works contracts solely because their relatives were previously involved in anti-national activities decades ago.
Justice Sanjeev Kumar declared the government directive unconstitutional, stating it violated the petitioners’ rights under Articles 19(1)(g) and 21 of the Constitution – the rights to practice any trade or business and the right to livelihood.
The verdict was delivered on May 25. Two days after this verdict, Union Home Minister Amit Shah announced a new policy denying government jobs to relatives of militants and stone-pelters in Jammu and Kashmir.
Shah, in an interview to PTI, said, “In Kashmir, we have taken a decision that if someone joins a terrorist organization, their family members will not get any government job.” Similarly, if someone indulges in stone pelting, his family members will also not get a government job, he said.
The policy already stands implemented and scores of government employees including officers and academics have been terminated since 2020.
The move has drawn flak from regional political parties including National Conference, the Peoples Democratic Party, and the Apni Party.
The case related to the contractors centered on petitions filed by registered contractors challenging a March 2023 directive from the Rural Development Department. This directive sought to debar them from future contracts based on an adverse security report from the Criminal Investigation Department (CID) citing their relatives’ past insurgent ties in the early 1990s or later.
However, the court emphasized that constitutional rights are paramount and cannot be arbitrarily curtailed. It noted the state’s own rehabilitation policies aimed at reintegrating former militants who had surrendered insurgent activities. Barring the petitioners from their livelihood based on long-past relatives’ actions went against the spirit of these policies.
The fundamental rights enshrined in the Constitution’s basic structure cannot be altered even through parliamentary amendments, the court asserted. It deemed the impugned directive an illegal overreach amounting to an “executive fiat” restricting trade without a statutory basis.
While acknowledging security concerns, the court questioned the logic of essentially punishing or starving petitioners for decades-old militant ties of some relatives, many now deceased or reformed. It quashed the directive, allowing the petitioners to participate in tenders if otherwise eligible.
The court has also initiated departmental proceedings against the then Rural Development Commissioner who issued the unconstitutional order, terming the matter serious official disregard for the law. A compliance report has been sought within two months.
The ruling upholds core constitutional tenets – due process, natural justice, and preventing guilt by association from undermining citizens’ fundamental freedoms and equal opportunity to earn a dignified living through lawful vocations. Its reasoned application of constitutional principles aims to preserve the rule of law while allowing course correction after past unrest.
The court emphasized that no authority can subvert constitutional provisions, and the fundamental rights to life, liberty, and livelihood must be upheld. “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,” the court stated.
The court also observed that 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, are essential elements of the Constitution’s basic structure. These rights cannot be altered, even through constitutional amendments by Parliament. “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,” it held.
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