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Law and Other things and the Indian Express have a series of posts and articles on Mayawati and her understanding of the constitution; the latest being Vinay Sitapati’s article in the Indian Express available here.

In a gist, Vinay argues that while most legal commentators view individual rights as being the core of the Constitution, group identities as mere political concessions, Mayawati subscribes to the inverse idea — of the Constitution being a power-sharing agreement between groups. He also adds that in Mayawati’s view, the provisions for weaker sections were the result of a political compromise.

Perhaps the only politician who is so vocal about the constitution during the times of elections has been Mayawati and we must give the devil her due for that. She also has raised some serious questions that Vinay brings forth but doesn’t go further into. For instance, would we have specific provisions for the minorities if there hadn’t been a political compromise as he puts it ?

Most of the provisions today in the Constitution talk of group rights and identities within the paradigm of individual rights; Articles 15, 16 (reservations), prohibition of untouchability (Article 17), rights to administer minority institutions (Article 30) etc…. They make you think as to whether they would’ve existed even if there wasn’t an Ambedkar in the 1950s being a part of drafting the Constitution. I wasn’t alive back in the 1950’s but the recent examples of South Africa and its struggle for the inclusion for group rights makes me understand that it surely wasn’t an easy thing to attain and incorporate. Readers may read Barbara Oomen’s article here to get an idea of the same.

In the Constitution, we do talk of the individuality of rights. That part III incorporates the civil and political rights that are primarily individual in nature and part IV is to have social and economic rights that are group rights. But having a lot of these group rights in part III for the benefit of minorities is not such a bad thing either. India and now South Africa mark a shift in this traditionalist thinking and perhaps maybe for the better. If the Constitution is a power sharing agreement between groups, then the rights are surely the result of a political compromise. It took 300 odd people sitting for more than 2 years to debate and frame our constitution, in exchange for the discrimination that the dalits had faced and their rights (may be not for a separate state as mayawati argues though) some provisions in Part III may be considered as a compromise to them.

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“In a rule of law society operating under a constitutional order, either deterrent or preemptive executive action against prohibited human conduct including terrorist acts must be pursued only within the matrix of legislatively spelt out substantive and procedural rules of engagement and sanction. The executive, whether political or the professional has no legitimate authority to act in derogation, independent of or beyond the sanction of law. This is the price civil society and all institutions of government willingly pay for a constitutional way of life.”

 

Perhaps one of the most interesting and profound judgments off late has been that of Andhra Pradesh Civil Liberties Committee v. Govt. of AP, where the Andhra Pradesh High Court was deciding whether it is obligatory to file a First Information Report against the police officers who may have committed ‘crimes’ while taking part in an encounter. The judgment has come at a time when the country is grappling under terrorism, naxal ‘disorder’ and acts allegedly threatening the sovereignty of the state.

To elucidate the issue; when the police forces take part in an encounter that lead to the killing of persons, it was not possible to lodge or move ahead on filing an FIR by the victim. The apparent reason being because such acts were committed in exercise of the right of private defense and the executive then, in its discretion had the authority to dismiss the complaint. Furthermore, the state claimed immunity from disclosing the name of the police officers involved in the encounter operation thus making it difficult for an investigation to move ahead. These were the issues that the five judge bench of the Andhra Pradesh High Court was called upon to decide.  

 

“In this case, the Court [was] called upon to identify the balance between the right to life of presumptive serious offenders of law and order and of the equilibrium of civil society; and the sovereign obligation of the State to maintain such law and order equilibrium, within the context of constitutional injunctions and legislative authority.”

In its ruling the Court held that it is obligatory on the police officer in charge of a police station to record an FIR under Section 154 even if it be committed against a police officer. In recording the FIR, the police officer cannot exercise any discretion in terms of the whether the offence had been committed or the complaint has any merit. This shall be the job of the judiciary and the existence of the claim of self defense is an extremely legal question that has to be determined only by a judicial process.

The judgment also delves upon certain essential principles of criminal law theory that would be useful for any law student.

In effect then, the Court negated an idea of immunity that could have been given to police officers that may have committed crimes in the guise of encounter deaths. Fake encounter killings are not inane to the Indian situation. Places like Kashmir, Gujarat, Punjab, Maharashtra and Andhra Pradesh was witnessed numerous instances where such encounters have occurred and this judgment of the Court re-iterates on the preservation of the rule of law and not giving a free hand to the police to kill.

This landmark judgment then came as a blow to the state government and the Centre who wanted some powers to check actions threatening the sovereignty of the state. When the case was appealed to the Supreme Court, the Court ordered a stay on the operation of the judgment and has scheduled a hearing soon.

Lord Cooke of Thorndon stated that his admiration for the Indian Courts (mainly the Supreme Court) in its ordinary work, particularly in the field of human rights, is no whit abated. He cited the judgment of Anand J. in DK Basu v. State of West Bengal to justify his statement. It takes a lot of courage for a Court of law to rule against a state policy and stand up for the protection of human rights. Though at times I have expressed by disgust for the way our judicial system works, these are solitary times when I wish I could retract my statement. Landmark decisions indeed !

 

Readers may also read Law and Other Things  on the case and developments therein. 

 

 

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.

 

 


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

 

 

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.