Something About The Law

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 44^th 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 1^st 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 1^st 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 44^th 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 44^th 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.

Earlier this month, the US Securities and Exchange Commission charged billionaire entrepreneur-cricket promoter Sir Allen Stanford with investment fraud for over $ 8 billion. The SEC has stated the fraud was “based on false promises and fabricated historical return data”. Following the framing of charges, there were several raids by federal regulatory agencies in the Stanford Group’s Houston and other US offices. In addition the BBC reports that a US judge has frozen the assets of Sir Allen and the other defendants as well as those of the Stanford Group, its Antigua-based subsidiary Stanford International Bank (SIB) and another subsidiary, investment advisor Stanford Capital Management. Consequent fallouts have been the termination of all the Group’s contracts between the English and Antiguan Cricket Boards.

What is chillingly coincidental, however, is the alarming frequency of frauds, manipulation and scandal being unearthed at the critical juncture of the ongoing financial downturn. Clearly, there are many links between the hostile consequences of the crisis and the bursting of fictional bubbles (the most important of which have been Satyam, Maddoff and Stanford). The crisis, in addition to exposing the chinks in the free market armour, is also a clarion call to improve standards of corporate governance to usher norms of fair and ethical business practice.

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.

The British Council is co-ordinating a series of lectures to commemorate its 75th anniversary (entitled 75 years of Cultural Relations) and Archbishop Emeritus Desmond Tutu will deliver the inaugural address on February 19,2009. The lecture series, named Talking without Borders, is aimed at providing a bird’s eye-view of the most pressing needs in today’s global village.

Quite interestingly, Desmond Tutu has written a superlative article for the BBC, in a moving piece titled Viewpoint: A Word of Caution for Obama. Refreshingly analytical, the article aims to debunk the myth of ‘anti-Americanism’, emphasizing on the tectonic shifts in perceptions during the nascent stages of the Obama regime. The article, cogently articulated in style and substance, may be viewed here.

Because the Bush years have been disastrous for other parts of the world in many ways, Obama’s victory dramatises the self-correcting mechanism that epitomises American democracy. Elsewhere, oppressors, tyrants and their lapdogs can say what they like and, for the most part, they stay put.

But ordinary citizens living in undemocratic societies are not fools; they may not always agree with US foreign policy, but they can see and register the difference between the United States – where people can kick an unpopular political party out – and their own countries………

………….And here I want to end with what seems so utterly obvious about what we learned from our particular situation in South Africa. Peace does not come from the barrel of a gun but is achieved when cultural differences are respected and the fundamental rights of all are recognised and upheld.

A referendum is currently under way in Venezuela where voters are to decide on a proposal that would assist elected officials in seeking as many terms as they wish. Mooted by the Hugo Chavez-led Government, the proposal is set to be a watershed in the political landscape of this South American country. A similar referendum was narrowly rejected in 2007 and there seems to be extensive campaigns from ‘pro’ and ‘anti’ groups to mobilize voters.

If the 2007 proposal sought to extend the presidential term limit, this year’s constitutional amendment will cover gubernatorial and state political posts. The move to push forth for such a change has evoked mixed reaction from the public, in and outside Venezuela. While critics believe that the referendum is designed to facilitate a concentration of power on the President’s hand, Mr. Chavez himself believes that the extant regime offers little scope for a constitutionally elected leader to function effectively.

“Ten years is nothing,” Mr Chavez, whose term expires in 2012, said at a news conference on Saturday. “I don’t know what they’re complaining about.”

As to whether the Venezuelan voter agrees to give the right of unlimited terms to its leaders in power will be clear within this week. Campaigning has acquired great intensity and the move will certainly reflect on the country’s future in coming years.