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Camus idea that dissent must never be confused be disloyalty may find new vigour with the events unfolding in Pakistan. President Zardari has applied Section 144 of the Code of Criminal Procedure in the country thus giving a free hand to the security officials to make arrests of those protesting against the state of that nation.
The Section 144 of Pakistan’s Criminal Procedure Code is similar to the Indian legislation giving the power to a magistrate to issue an order in urgent cases of nuisance or apprehended danger. Mustafa Quadri in The Guardian gives an interesting history of this legislation in India and Pakistan with its British Origins and critiques it with reference to the current state of affairs. To quote him,
“But the provision, sadly, has a much older history than that. Section 144 traces its origins to a British criminal code enacted in India as far back as 1860, just three years after the subcontinent’s first modern independence movement rocked British rule throughout north and central India. The provision was subsequently used routinely by British authorities well up to Partition in 1947. Many of the most celebrated leaders of the great civil disobedience project that eventually unseated the British were imprisoned using this most colonial of enforcement mechanisms.
The 1860 criminal code was adopted by Indian and Pakistani authorities after independence, and section 144 has been used to prevent civil disobedience in both countries for successive decades.
Pakistan‘s latest string of protests is no different.”
Perhaps when all forms of expressing dissent fail, civil disobedience may be pursued. The situation in Pakistan is tense with the Government in shambles. It is evident that there is no rule of law prevalent in that State and a movement towards its preservation in the manner of protests may then be justified.
With pressure being put across from all corners; national and international, if President Zardari does not cede to the demands of his adversaries, then probably Marital law may be the best alternative. Not unnatural in a supposed Constitutional democracy where the Army has ruled more than democratically elected governments combined. Truly history repeating itself.
The papers today write about a petition filed in the Supreme Court stating that the ‘Right to Property’ must be brought back to the Constitution thus reversing the 44th Amendment of the Constitution that removed this right.
This is an interesting development; especially after the case of IR Coelho v. State of Tamil Nadu, where a nine judge bench in 2007 opened up the ambit of judicial review stating that even constitutional amendments have to pass the test of some basic fundamental rights (14, 19 and 21). In this post I propose to talk about the history of the ‘Right to Property’ and how this petition affects the precedents in this matter.
Under the Original Constitution, the right to property was guaranteed in two places; as a positive right to acquire under Article 19 (1)(f) and as a negative right under Article 31 where no person shall be deprived of his property save by the authority of law. Article 31 was subjected to various amendments where the nature of this right was changed (Articles 31-A and 31-B) and has been the subject of numerous litigation. All this was later brought to a stop when the 44th Amendment removed this right from Part III and inserted Article 300 – A in the Constitution.
As rightly said in the present petition before the Court, the idea behind the removal of this right by the Moraji Desai government was the abolishment of the zamindari system. In Kameshwar Singh v. State of Bihar, when the Bihar Zamindari Abolition Act was held unconstitutional, the Government intervened and inserted Articles 31-A and 31-B by the 1st Amendment thus restricting the scope of this right. Later cases have not challenged this right on merits but only the adequacy of compensation that can be provided under this right.
In Keshavananda Bharti v. State of Kerala, the opinion of Justice Khanna clearly held that the right to property is not a part of the Basic Structure of the Constitution. Though he later clarified this position as regards the Basic Structure in Indira Gandhi v. Raj Narain, he maintained the above as regards the right to property.
Coming to the present petition, Harish Salve appearing for the Centre for Good Governance director SK Agarwal argued that,
“The PIL seeking restoration of the right to property in the third chapter of the Constitution, which enumerates the fundamental rights enjoyed by every citizen, argued that it was made a statutory right in 1978 to abolish large land holdings with zamindars and rich and their distribution among landless peasants.
Having achieved the purpose behind the legislative action in the late 1970s, the government should now initiate fresh measures to put ‘right to property’ back in the fundamental right basket”
As stated earlier, because of the decision in IR Coelho’s case, all the Constitutional Amendments after 1st January 1974 can be challenged on the ground of violation of basic structure and Articles 14, 19 and 21. This petition seeks to do the same since the 44th Amendment was passed after this date.
“Explaining why the lawsuit was filed nearly three decades after the status of the right to property was diluted to that of an ordinary legal right, Salve told the court that there was a legal hitch in fling the lawsuit anytime before 2007.
For the first time in 2007, a nine-judge bench had clarified that any fundamental right of citizen is the basic structure of the constitution, which cannot be altered.”
I understand that the Court has now issued notices to the Centre to respond to this petition and it’d be interesting to see how this case goes ahead. Property has always been an issue in this Country, especially after the acquisition of land for the purposes of SEZs and the displacement of lakhs of people (generally poor). Perhaps, if the 44th Amendment is now declared unconstitutional we could now see a new trend in terms of recognizing the rights of slum dwellers and other persons.
Keeping my feelings against the Death penalty aside, the verdict in the Nithari killings comes as a shock to me. It is not that I thought either of them to be innocent, but the idea of giving the harshest punishment meted out by law to them is what I’d like to question.
Perhaps the best portrayal of the death penalty and why it must be abolished is Albert Camus ‘s essay titled “Reflections on the Guillotine” in Resistance Rebellion and Death. I myself was spellbound when I read that essay and I’d recommend it to all my readers.
After 1981 and the cases of Bachan Singh v. State of Punjab and Machi Singh v. State, the death penalty as a form of punishment has now been held to be the exception rather than the rule. To mete out a sentence of death, there must be reasons given by the judge and the circumstances of the case must be rarest of the rare.
The idea of rarest of the rare is also to remove any possibility of the innocence of the accused and that the circumstances of the death were so grave in nature that is called for a sentence of death. It is the former aspect that I’d like to look into more. The gravity of the offence is beyond dispute.
Glanville Williams in The Proof of Guilt, a study of the English Criminal trial wrote that the idea of beyond reasonable doubt conveys the message that any single or meek possibility of the accused not committing the crime must be considered, if not for the guilt then atleast when speaking for sentence. Such factors mitigate the sentence that can be meted out to the accused and the foundations of the English system (now India) rest on such presumptions.
The point that I’d like to put forth is that if the Central Bureau of Investigation (CBI) gave a clean chit to Mohinder Singh Pandher, then this should have acted as a mitigating factor as to his sentence and he should not have been given the death penalty. What does it say of our criminal system when the judge disregards the report of the investigating authority and pronounces guilt on his own inhibitions of the facts and circumstances ?
Could the judge have been a victim of the pressure surmounted by the media in this case ? Rationality and reason says that Mr Pandher should have been given a sentence of life considering this mitigating factor and not a sentence of death (the guilty being left out of question).
We saw the treatment of such cases in Manu Sharma’s trial, Nitish Katara’s case and now this may possibly be added to the list.
About a month ago, the Centre decided to increase the salaries of High Court and Supreme Court judges. A High Court judge now gets 80,000 Rs, the Chief Justice of the High Court 90,000 Rs. and Supreme Court Judges getting 90, 000 Rs and teh CJI a salary of Rs 1 Lakh.
Amidst this the All India Judges Association has now filerda petition in the Supreme Court asking that their salaries be revised too. This is based on certain committee reports.
I would be a little harsh in my words now but the judiciary does not have any right in the policy decisions of the Government and cannot interefer and ask it to do something in that area. We have ratios to the point stating that the judiciary has no control over the purse of the Government and cannot make any decision to that effect ( Asif v. State of J & K ).
It is then surprising that the Supreme Court allowed this petition to stand and asked the Centre to submit a detailed response as to why it hasnt affected the same for other judges.
The Supreme Court has now stated in an Order that strikes and bandhas are a part of the freedom of expression. As reported by the Times of India, this despite a Supreme Court ruling in 1998 that the calling of a bandh is not permitted by the Constitution. This post may be treated as explaining the nature and history of this right under the Constitution.
The right to strike as such is held to be sacred to the history of labour movements and unfolds with the idea of socialism and industrial disputes in our Country. While the Industrial Dispute Act has appropriate provisions to regulate the calling of strikes, in Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166. the Court held that there is no right to resort to a strike under the Indian Constitution and doing so would be violative of the fundamental rights of the citizens who would be affected by it. In TK Rangarajan v. Gov. of Tamilnadu, the Court while deciding on Jayalalitha’s sacking of service officers for striking held that;
“law on this subject is well settled and it has been repeatedly held that the employees have no fundamental right to resort to a strike. Take strike in any field, it can easily be realized that the weapon does more harm than any justice. The sufferer is the society- the public at large”.
As regards bandhs, the case referred to by the Times of India is that of Communist Party of India v. Bharat Kumar, (1998 ) 1 SCC 201. The court held here that there cannot be any right to call or enforce a bandh which interferes with the exercise of the fundamental freedoms of other citizen, in addition to causing national loss in many ways. Under no circumstances, does the Constitution give sanction to such a right. Interestingly, this case was an appeal from the kerala HC on a decision that the present Chief justice Balakrishnan (then as a HC judge) had ruled.
So day before yesterday when the Court was asked to issue a stay on the bandh issued by the DMK as a protest for the treatment of the tamils in Srilanka; there was clear precedence that the Court should have done so. However, what the Court did do was to state;
“What has this Court to do with stopping strikes? India is a democratic state where everyone has a right to express their feelings”
In one sitting, taking not more than an hour I am told, the Court deviated from years of precedence and ruled otherwise. This is outrageous in my personal opinion. Writing on the Indian judiciary, one foreign author wrote that what is fascinating about the Indian Supreme Court is how serious questions of policy and law are decided by an unelected elite in just a few minutes of argument in Court. This departing from a formal process of lawmaking which takes months of thinking in that area.
The author has made a right comment and it has a great bearing in the present situation. The Court should not have stated something like this. When the case comes up for hearing again on the 15th of feb., it is hoped that it would realize its folly and make amendments to its order.