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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.

 

 


State of West Bengal v. Bela Bannerjee : Vajravelu v. Deputy Collector : State of Madras v. Narsimharaju Mudaliar

 

 

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Subhadra sent me an email article about the recent spate of attacks on women wearing ‘western clothes’ in Bangalore. It’s disheartening to read them and ponder on the state of things in this Country.

In this earlier post, I have talked about morality and the Dworkinian conception of harm and the enjoyment of rights. I shall talk about it briefly here and go about an extension of it.

The Dworkinian concept of harm, also called the ‘harm prinicple’ rests on the idea that one should be allowed to enjoy his/ her rights as long as they do not affect the rights of others. First, conceptualized in his article “Do we have a right to Pornography”, it now lays the foundation of any debate on morality. This idea also does away with any role the State may claim to play as the upholder of morality and leaves the choice to the people itself as long as it does not affect others. Reading pornographic magazines and open sexual acts are a few of the examples that Dworkin gives to explain the ‘harm principle’.

More importantly, I saw this principle being applied completely in the context of anti-smoking legislation. It must be noted that the reasoning against smoking in public places is not that it is bad to the smoker itself, but that it harms the passive smoker and thus to discontinue the violation of his rights, the laws have been made. (See Murali Deora v. Union of India, AIR 2002 SC 40). This has also been explained in this previous post of mine here.

On the State being the ‘upholder of morality’ notion; it is sad that the Constitution contains various references [Article 19 (2) and Article 25 ] to morality being a ground for a restriction and it being used in the same manner even though the harm to others may not be evident.  

If this be so, then perhaps Mr Muthalik and the State should lay no claim as regards deciding on what people should wear or Drink.

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Below is Manav’s post on the Pink Chaddi campaing. Interesting read. May not be that legal though.

Where are they, those advocates of human dignity? 

While I am ensconced in Santa Clara, the internet serves me well in providing me with information on what is going on in our motherland. About a week back, all that I heard from home was on the Pink Chaddi campaign.

Initially, it amused me, made me laugh, was interesting. I thought it would be a good cock-a-snook at Those-Who-Are-The-Sole-Custodians-Of-Indian-Culture. Later, I thought more about it. It didn’t seem so funny then.

A few girls were beaten. Beaten badly. At least two of them were hospitalised. For being in a pub. The Hindu right evidently thinks that these women have strayed from the path of Indian Culture and Morality (“Women?” “Drinking?” “India?” Horror!). In fact, it was suggested that these women deserved the beating because they were “getting too close to Muslim men”.

And how did we- the liberal, the elite, the English-speaking (partly) convent-educated react? We, who speak for rights? We, who believe in equality, in human dignity, in the freedom of choice? What did this group of people do?

Decided to send pink underwear to the Sri Ram Sene. That’s all. Pink, because it was “a frivolous colour”.

Well, pardon me for my ignorance. Just what is so frivolous about being beaten up for choosing to go to a pub? What is frivolous about people making your decisions for you? Where you should be, what you should do, who you should “be close to”? Instead of making a rational point, instead of sending a message out saying such harassment is unacceptable, all we chose to do was send undergarments- the equivalent of saying “Nyah-Nyah, losers, you suck. Kiss my ass”.

Indian culture, morality, our notions of religion, are all fast becoming the domain of a set of right-wing reactionaries. Instead of ensuring that such interference ceases immediately, or even engaging them in debate, of trying to get them to see our side of the picture, of asking them what gives them the authority to interfere with our lifestyle, all we do is send them chaddis- thus suggesting that we, the liberals, don’t think their viewpoint befits more than insults, not even when it manifests itself in ways so entirely unacceptable to us.

No one I’ve been able to speak to has given me an answer to this one, let’s hope the comments do.

 

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.

News Clip here.

The previous post correctly states my view on this subject. However, no critique of an issue would be justified without putting forth the arguments for the other side. In this post, I try to look at the possible justifications at the sanction against conduct levied by non- state actors in what seems to be immoral according to them.

A year ago, when that actress Shilpa Shetty kissed Richard Gere, the Supreme Court stepped in to quash the charges against her. About a week ago, Justice Muralidhar gave a landmark judgment quashing the charges against a couple kissing in public. The law now seems to be becoming more and more clear as to what kind of conduct is morally permissible, an aspect that is laudatory of the Court.

However, leaving the harm principle as dealt with in the last post aside, is it that the Court is only speaking for the ‘socially elite’ in this circumstance while a major portion of the society still thinks women going to pubs is bad and that public display of affection (PDA) should not be permitted. Are we seeing a difference of opinion between the Court and the society as to what constitutes morally permissible behavior ?

A pub going woman would argue that she has a right to do whatever she wants with her life and that neither the state nor the other members of the society should interfere in this right of hers. Quite true and I agree with her.

But she hardly represents 1 % of the Indian woman population and in a country of more than a billion, she’s a minority. What might constitute moral to her and people like us sitting and surfing the net everyday might not be so to the millions at other places.

Counter questions arise; is the idea of morality to be determined by what a majority of the society think to be so ? Whose morality comes into play when we talk of Section 294 of the Indian Penal Code ? To what extent can the Indian public honor the right to privacy ?

About 3 decades ago when the ‘social elite’ longed to read DH lawerence’s ‘Lady Chatterlee’s Lover’, the Court in Ranjit Udeshi v. Union of India, stepped in and declared the banning of the book constitutionally permissible. Then it was representing the will of the majority that thought such conduct to be immoral. The perceptions of morality keep changing in a dynamic society like ours and perhaps the Ram Sene people should understand that too. But a movement to counter it cannot be successful by sending him ‘pink undergarments’ but only by making a serious effort to develop the perceptions of others as to what can be morally right according to our views.

It is a futile attempt for an English medium student living in an urban town like myself to even try to argue for Muthalik and his activities. I wouldn’t either because I think that he is wrong in all aspects. But the point that I am trying to get across is the idea of moral permissibility that is now creating differing opinions with the Court and the social pub going elite on one side and a majority of the Indian population on the other. Apart from Dworkin’s reasoning, what possible could be a justification for such acts when a vast majority think such conduct is bad ?