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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.
I learnt today that apparently the Chief Justice and his office do not constitute a ‘public authority’ under the Right to Information Act.
This, after the Supreme Court petitioned the Delhi High Court against an order passed by the Central Information Commission asking the CJI to disclose as to whether the judges of the Supreme Court were disclosing their assets to him.
In a brief background to the situation, a resolution was passed on May 7, 1997 requiring every judge to declare to the CJI assets including properties or any other investment in the name of their spouse and any person dependent on them. Earlier petitions regarding the disclosure of assets of judges under the RTI were dismissed on the ground of such information not being in the ‘public domain’. However, in this order, the CIC did not ask for the disclosure of assets but as to whether the practice set out in the resolution of 1997 was still being followed.
In the petition before the Delhi High Court, the Supreme Court (as a petitioner) stated that this practice was only ‘informal’ in nature and that there was nothing in the Constitution or any other law ‘mandating’ the judges of the Supreme Court to disclose their assets to the CJI. I now know that the Delhi High Court has issued a stay on the CIC order and the next date of hearing is set on 12th February 2009.
Questions are raised when the most powerful organ of the Government sheds and denies any degree of accountability upon itself. In Association of Democratic Reforms v. Union of India, the Court had asked candidates standing for elections to disclose their assets stating that in a democracy, those in power must behave responsibly and know that they ultimately work at the behest of the people. Much earlier, it had asked IAS officers to disclose their assets and ordered authorities to keep a check on them.
At both the above instances, the Court judged on the basis that the Right to information was a constitutional and fundamental right of the citizens; thus holding that in the case of the legislature and the executive, this right must not be denied to the citizens. The Right to Information Act was passed to give effect to this constitutional right.
However, when the Apex Court denies this responsibility upon itself and ensures its performance among other organs of government, it is using double standards. There is a tint of supremacy of the Court over the Constitution here which I would say is no where mandated by the Constitution. In the Hamlyn Law Lectures, MC Mehta had stated,
“there is no theory of judicial supremacy in India, but that of Constitutional Supremacy”.
So if there does exist a theory of Constitutional supremacy in India, surely the Court should not place itself above the Constitution. If the argument is that the Right to Information Act does not look upon the Court as a public authority, surely under the rights guaranteed by part III, this disclosure of assets can be achieved; just as done in the case of the executive and the legislature (In both cases, the RTI Act did not exist).
V Venkatesan of Law and Other Things wrote a post here on the CIC decision that was passed on the 6th of January 2009. He says;
“Although the decision pertains to the RTI question on the declaration of assets by the Judges of High Court and the Supreme Court, it has set an important precedent to make the Higher Judiciary truly accountable. It will be unfortunate if the Supreme Court appeals against the decision in the High Court, in which case, the Judges hearing the appeal may not be able to decide the appeal objectively in view of the apparent conflict of interests.”
I will not be faltering when I say that I share the same concern.
Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.
1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).
2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.
KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.
Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.
On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.
Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:
Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.
Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.
The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.
Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;
It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.
The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.
The United States Supreme Court will now decide on the issue of granting immunity to former Attorney general Ashcroft on the issue of the treatment of detainees not related to terrorism during the 9/11 attacks.
“The petitioner was among more than 700 Arab and South Asian Muslim men from the New York City area rounded up after the September 11, 2001 attacks. While they were all eventually charged with immigration violations or minor crimes, none was linked to terrorism.
In his lawsuit, Iqbal alleges that Ashcroft and Mueller targeted the men for investigation and punitive detention, sidestepping procedural protections usually granted to such detainees.
Iqbal, who was held at a maximum security section of a Brooklyn federal prison, says he was subjected to harsh treatment and discrimination and that federal officials classified him as a “high interest” suspect because he was a Muslim from Pakistan.
A June 2003 report by the Department of Justice inspector general found “significant problems” in the treatment of detainees like Iqbal.”
Earlier, the Fed Court and state Supreme Court had denied giving immunity to the cabinet officials involved and now the US Supreme Court is seized of the matter. The fundamental issue of this case would be whether there should be any special legal immunity conferred to cabinet officials in the handling of terrorism and crisis situations. Should we expect another hamdan v. Rumsfled in the making here ?
An analysis of the case and its impact may be found here .
A summary preview of what to expect out of the case may be viewed here.
(This post forms the second of a three-part article. The next one attempts to debunk the myth of tougher terror laws).
The overwhelming public response to laxities in handling terrorist attacks and security threats has prompted the Government to formulate a proposal for a federal anti-terror agency. The proposal, incorporated as an amendments to the National Security Act, 1980 is expected to be tabled in the upcoming Parliamentary session. The Bill, currently in its nascent stages, has not been placed before the public yet; we’ve relied solely on secondary sources to analyze the amendments.
The changes to the existing law include
- Setting up of a National Security Authority that will take charge of administration and supervision of all investigation of terrorism-related crimes across the country
- The Authority, comprising a Chairman and five members, will be responsible for prosecuting the accused
- The appointment of a Security Commissioner (a high-ranking IPS officer) in each State, who will report directly to the Authority
- Stringent Bail provisions
- Fast-track Courts
- Death Penalty (no surprises here)
- Freezing of assets and bank accounts of those accused and their overt and covert sympathizers and sponsors
- Punishment for those found guilty of raising funds or sponsoring terrorist acts, conspiracy, harbouring terrorists or threatening witnesses
While the attempts to usher in reform are perhaps well-intentioned, the proposed changes do not seem to be a radical digression from the extant system. The introduction of a National Security Authority will merely augment excessive bureaucratization, the very lapse currently being highlighted post-Mumbai. The Authority seems to be quasi-judicial, with powers to prosecute the accused. In this regard, it is important to note that the framework seems to base itself on the ethos of Tribunalization. While the main purpose of creating alternative judicial forums is to expedite the process of justice delivery, the same attitude cannot be adopted in an issue of such magnitude. Quasi-judicial authorities or fast-track courts are not the solution to tackle terrorism, as it involves a long, extended process of collecting evidence and arriving at conclusions. The allegations raised towards the accused will be, no doubt, grave – it is important that the veracity of claims is brought out through extensive investigation and not speedily dismissed. Missing the target will not only fail to curb terrorism, but also reduce the public’s faith in the legal machinery.
One may question the role of the Security Commissioner in each State; are they acting as officers of this quasi-Court? Will their findings and observations be treated as evidence? Is the State Police involved in assisting the Security Commissioners? What difference does such appointment bring about, apart from adding an unnecessary intermediary? These are questions to which the Government must respond. The onus upon the establishment to effectively tackle terrorism cannot be guised in the form of knee-jerk reactions.
The other provisions seem to belong to the macho-class of anti-terror laws. They have been advertised as tougher, more stringent norms to curb the menace of terrorism. However, tough does not mean efficient, as my next post will hope to convince.
(To be continued…..)
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