Something About The Law

“One of the fundamental contrasts between free democratic societies and totalitarian regimes is that the totalitarian governments rely on secrecy for the regime and disclosure for all other people, where as in the civic culture of liberal democracy, the position is approximately the reverse.”

-         Geoffrey De Q Walker

The new national ID card scheme sought to be introduced by the Government marks a movement towards this totalitarian regime referred to above. Picture ‘Enemy of the State’ and at the least harmful level, “the government knowing where youa re and what you are doing at every point of time” and then ask yourself if its allright that this be the case?

Hopefully, the answer should be a ‘no’;else you are one of those sitting in the chairs attempting to be the very puppet the state wants you to be, and not paying any heed to rights and constitutional protections.

The greatest threat posed by this scheme is that to privacy and individual liberty as a whole. That an individual can exercise his option of free will within a certain space to himself without the state knowing what he or she is doing. This also being perhaps the greatest advantages of a civil democratic society. On the other hand is the dystopic vision of a Orwellian society with the state playing the role of a “Big Brother” and watching everybody’s move. In fact, the Indian Supreme Court has said in as early as in 1964 in Kharak Singh v. State of UP, that nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.

While there may be some doubts as to the prevalence of this right under the Constitution, the movement on the other hand to legitimize other modes of surveillance and collection of evidence is also disheartening. We are one of the few democratic countries where illegally obtained evidence is still admissible and narco analysis and brain mapping practiced ‘circumstances galore’. All this is done under the garb of state security. That this is the solution for ending the search for terrorists, the problem of illegal immigrants, state enemies and the like. You sell this to the common man and Voila! You get them to sign up for a national ID card program/ scheme. Ofcourse, there are the benefits of easy distribution of ration, programmes for the poor etc… that come along; but they surely don’t mandate a card for every citizen.

It is not just an ID card, but there’s also an angle of biometrics involved. Thus, every citizen would have a number tag, his personal details and biometric descriptions like finger prints, DNA etc… attached. I couldn’t help amusing myself with this thought the moment I saw the IDEA  advertisement on the issue. The one where everybody is referred to by their phone numbers and the new government policy is highlighted in the background.

Sadly unlike the United States and the European Union, the law on privacy in India has one limitation as observed by the Court in PUCL v. Union of India,

“The Right to Privacy is subservient to the interests of the state.”

That’s how easy it is to introduce and prepare a defense around the national ID card scheme. And that’s why it would succeed and my/our concerns wouldn’t be addressed. But if there is any semblance and place for rights being used as trumps against Government power, that rights can simply not be stashed away merely because a certain section would be better off it they were; then there is some hope.

It must be remembered that what is at stake is nothing less that the nature of our society and the power and authority of the state over the individual; something that we cannot afford to lose in a democracy.

Hindutva seems to have got new vigour now. The Advisory Board constituted to examine Varun Gandhi’s hate speech and booking under the National Security Act has recommended the withdrawal of the said Act against Vaun Gandhi. (news item here)

The three member panel comprising two retired HC judges Justices S N Sahai and P K Sareen, was understood to have stated in no uncertain terms that the inflammatory speeches made by Varun were not enough to attract the deterrent provisions of the NSA and the action takes was disproportionate to the nature of the alleged crime committed by Varun Gandhi.

But what exactly is this Advisory Board? Who constitutes it ?

Under the National Security Act, Sections 9, 10 and 11 govern the formation of the Advisory Board. Once a person is booked under the NSA, the appropriate government forms the Advisory Board and transfers the case to it. The main function of the Board is to look into the alleged acts and opine if there was sufficient cause for the person to be detained and booked under the NSA. If the Advisory Board opines that there wasn’t any sufficient cause for the detention of such person, the Appropriate government must revoke the order of detention.

The National Security Act governs the arrest and detention of persons acting in any manner prejudicial to the defence of India, relations of India with foreign powers, or the security of India.In Kartar Singh v. State of Punjab, the phrase ‘defence of India’ was construed to mean not only external sovereignty but also internal sovereignty. This, added to the phrase ’security of India’ might have seemed appropriate to book Varun Gandhi to say that his hate speech might have instigated a riot or harmed the security of the state. The hate speech of Varun can be viewed below,

Well, he might want to cut the hands of people from another religion, But surely Varun Gandhi has had the laugh now. The question remained as to whether this speech was sufficient to harm the security of the state or ‘defence of India’. The Advisory Board found otherwise and thus the booking him under the Act has been revoked against him. He may however, still be booked under the Indian Penal Code for incitement to violence and religious hatred.

Readers might also want to read earlier news items and posts on this here;

- Varun Gandhi’s Hate Speech and the Law

- Frame by Frame

- V is for Varun Gandhi…

- Beyond the Law

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. These posts give some interesting insights into a political leaders views on the Constitution and should be read by all I choose to bring out a point in Vinay’s latest article.

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.

That the Constitutional protection under Article 22 providing every detainee the right to be represented by a lawyer of his/her choice is sacred and held to be the foundation of our legal system. So much so, that the Court has stated that an accused may even be acquitted or a mistrial may be declared if found that he did not have a fair trial. (SD Kohli v. State of Maharashtra, jdg dtd. 18/12/2008 )

That the Advocates Act bars anyone from denying to take up a case on the ground that the accused had actually committed the crime.

That in light of this; Kudos to Anjaji Waghmare for having the courage to represent Ajmal Kasab.

I had earlier written about the Catch-22 situation about providing legal aid to Kasab. While the Shiv Sena has already attacked her house and created a ruckus, there was some deliberation in Court as to whether she would continue with her client. The Court has now provided security to her.

Readers may read Kevin John Heller’s post on “Why I am Advising Radovan Karadzic?” for a possible explanation why lawyers defend known criminals.

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.