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Monday, January 13, 2020

The HINDU Notes – 13th January 2020






πŸ“° Private property is a human right: Supreme Court

‘Grabbing private land and claiming it as its own makes the State an encroacher’

•A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a judgment.

•The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’, the court said.

•Grabbing private land and then claiming it as its own makes the state an encroacher.

•In a welfare state, right to property is a human right, a Bench of Justices Indu Malhotra and Ajay Rastogi declared in their January 8 verdict.

Adverse possession

•“A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens,” Justice Malhotra, who authored the judgment, laid down the law.

•Yet, this is exactly what happened 52 years ago with Vidya Devi, a widow. The Himachal Pradesh government forcibly took over her four acres at Hamipur district to build a road in 1967.

•Justice Malhotra highlights how the state took advantage of Ms. Devi’s illiteracy and failed to pay her a compensation for 52 years.

•“The appellant [Ms. Devi] being an illiterate widow, coming from a rural background, was wholly unaware of her rights and entitlement in law, and did not file any proceedings for compensation of the land compulsorily taken over by the state,” Justice Malhotra empathised with Ms. Devi, who is 80 years old now.

Moves HC

•Ms. Devi first learnt about her right for compensation in 2010 from her neighbours who had also lost their property to the road. Then, in her 70s, she did not lose time to march straight to the Himachal Pradesh High Court, accompanied by her daughter, to join her neighbours in their fight against the state. But the High Court asked her to file a civil suit in the lower court. Disappointed, Ms. Devi moved the Supreme Court.

•Ordering the state to pay her ₹1 crore in compensation, the Supreme Court noted that in 1967, when the government forcibly took over Ms. Devi’s land, ‘right to private property was still a fundamental right’ under Article 31 of the Constitution.

•Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. Nevertheless, Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.

πŸ“° India’s under-5 mortality of girls exceeds that of boys, unlike global trend, says report

India’s under-5 mortality of girls exceeds that of boys, unlike global trend, says report
‘Grabbing private land and claiming it as its own makes the State an encroacher’

•A citizen’s right to own private property is a human right. The state cannot take possession of it without following due procedure and authority of law, the Supreme Court has held in a judgment.

•The state cannot trespass into the private property of a citizen and then claim ownership of the land in the name of ‘adverse possession’, the court said.

•Grabbing private land and then claiming it as its own makes the state an encroacher.

•In a welfare state, right to property is a human right, a Bench of Justices Indu Malhotra and Ajay Rastogi declared in their January 8 verdict.

Adverse possession

•“A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens,” Justice Malhotra, who authored the judgment, laid down the law.

•Yet, this is exactly what happened 52 years ago with Vidya Devi, a widow. The Himachal Pradesh government forcibly took over her four acres at Hamipur district to build a road in 1967.

•Justice Malhotra highlights how the state took advantage of Ms. Devi’s illiteracy and failed to pay her a compensation for 52 years.

•“The appellant [Ms. Devi] being an illiterate widow, coming from a rural background, was wholly unaware of her rights and entitlement in law, and did not file any proceedings for compensation of the land compulsorily taken over by the state,” Justice Malhotra empathised with Ms. Devi, who is 80 years old now.

Moves HC

•Ms. Devi first learnt about her right for compensation in 2010 from her neighbours who had also lost their property to the road. Then, in her 70s, she did not lose time to march straight to the Himachal Pradesh High Court, accompanied by her daughter, to join her neighbours in their fight against the state. But the High Court asked her to file a civil suit in the lower court. Disappointed, Ms. Devi moved the Supreme Court.

•Ordering the state to pay her ₹1 crore in compensation, the Supreme Court noted that in 1967, when the government forcibly took over Ms. Devi’s land, ‘right to private property was still a fundamental right’ under Article 31 of the Constitution.

•Property ceased to be a fundamental right with the 44th Constitution Amendment in 1978. Nevertheless, Article 300A required the state to follow due procedure and authority of law to deprive a person of his or her private property, the Supreme Court reminded the government.

πŸ“° Social media posting is a fundamental right, rules Tripura High Court

Remarking broadly, Chief Justice quashes case against arrested youth

•In a landmark order, the High Court of Tripura ordered the police to refrain from prosecuting a man who was earlier arrested over a social media post. Chief Justice Akil Kureshi also barred the police from making any further arrest in connection with the case.

•The Chief Justice passed the order on Friday after lawyers moved his court against the arrest and harassment of a Congress youth activist Arindam Bhattacharjee over his post on a social media platform. Mr. Bhattacharjee had in his Facebook page criticised the Bharatiya Janata Party’s online campaign in support of the Citizenship Amendment Act (CAA) and warned people to not dial a given phone number even by mistake.

•“If you call 8866288662, all your data would go to hackers,” he had commented in his post, inviting the ire of BJP’s IT Cell, which responded with a police complaint.

Broadly remarks

•The Chief Justice in his order broadly remarked that posting on social media was tantamount to a “fundamental right” applicable to all citizens, including government employees.

•In compliance with the court’s order, the police have now erased Sections 120(B) and 153(A) of the Indian Penal Code (IPC) from the relevant First Information Report (FIR) to quash the case.





•Subal Bhowmik, senior Congress leader who unsuccessfully contested in the 2019 Lok Sabha elections from the West Tripura constituency, hailed the order. Mr. Bhowmik had organised protests outside West Agartala Police Station after Mr. Bhattacharjee was detained.

‘Adhere to rules’

•“The order has been in line with the very essence of the Indian Constitution. We hope police officers will henceforth adhere to the rule book and not try to act as henchmen of their political bosses,” Mr. Bhowmik, himself a lawyer, told The Hindu on Sunday.

•He alleged that the police had harassed many innocent people, particularly youths, and dragged them into false cases in recent months, over their posts on micro blogging sites.

πŸ“° Matter of interpretation: On NCRB’s Crime in India Report 2018

Overall crime rate in India in 2018 increased marginally since 2016

•Only three months after the release of the much delayed “Crime in India report” for 2017, the National Crime Records Bureau’s 2018 report was unveiled last week. While the fact that this document has been made available so soon should be welcomed, this report, as with those for earlier years, carries the caveat that crime records and statistics are only as good as their reporting. Some States are better than others in tracking and registering crimes. This is why Kerala and the National Capital Region having the highest crime rates in the country — 1463.2 per one lakh population and 1342.5, respectively — is also a reflection of the fact that crime reporting, follow-up and subsequent steps in trial and punishment are much better undertaken in these two States/UTs. Yet, what should be worrying for the capital city region is that unlike Kerala, the number of cognisable crimes has steadily increased to 2,62,612 in 2018 from 2,16,920 in 2016. Better reporting could also perhaps explain why there is a 15% increase in the total crimes against women across all States, but the fact that this number went up by 66% in a large State such as Uttar Pradesh must be cause for concern. Conversely, crimes against women fell 20.8% after reaching a peak number of 17,222 in Delhi. It is well understood that the protests against the gangrape in Delhi in 2012 had significantly contributed to greater reporting of crimes against women. The fall in these numbers, corresponding to the general increase in crimes, could reflect the outcomes of better gender sensitisation in the capital region. Unlike crime numbers that are difficult to interpret due to registration and policing issues, the number of murders across States is a stark reflection of violent crime. The finding in the 2017 NCRB report that northeastern States such as Arunachal Pradesh, Assam, Tripura and Meghalaya have a relatively higher murder rate compared to most States bears itself out in 2018 as well. Other States which have a worrisome record here include Jharkhand (4.6 murders per one lakh population, the highest in the country) and Haryana (3.9). Among cities, Patna (4.4) has an egregious murder rate.

•While protests and violence related to them have occupied the news cycle in the last month or so, data from the report suggest that there has been a marginal decrease in the total cases related to rioting from 2016 (61,974) to 2018 (57,828). Cases related to caste and communal/religious riots, political violence and agrarian conflicts registered a dip while there was an increase in industrial rioting and other personal disputes. Among cases registered as “offences against the State”, there has been an ominous increase under “sedition” with the number of those booked in 2018 double that of 2016, even as most such cases under this section came under the “Prevention of Damage of Public Property Act”; Tamil Nadu and Uttar Pradesh led with nearly half of the overall cases.

πŸ“° Favouring public order over justice

The Supreme Court’s order on the Internet shutdown in J&K was a statist expression of law

•Last week, the Supreme Court gave its much-awaited judgment on the legality of the telecommunications and Internet shutdown orders in Jammu and Kashmir (J&K), in place for more than 160 days now. Given the centrality of the Internet in our lives and the fact that the preceding weeks had seen such shutdowns in Uttar Pradesh, Rajasthan, Madhya Pradesh and Delhi, the ruling was eagerly awaited across the country. However, in its language, structure and the relief granted, the verdict came across more as one premised on legal centrism than one advancing fundamental rights.

•After acknowledging in the first paragraph that India is a “land of inherent contradictions”, the court immediately assumed the role of an acrobat which had to “strike a balance between the liberty and security concerns” rather than rule in favour of citizens’ rights. That said, it is important to understand that the scope of the constitutional challenge before the court was narrow by design. The petitioners, with considered and strategic thought, did not challenge the underlying power of the Central government to turn off telecommunications and Internet connectivity. The focus of their challenge was not the Telegraph Act and the Internet Suspension Rules that enabled the government to shut down the Internet, but squarely on the orders passed under these laws.

Reluctance to furnish orders

•In this regard, the petitioners faced a challenge that is common in present times. The government had not made the shutdown orders publicly available. Pressed for disclosure, the Centre initially cited national security concerns and, only after persistent arguments over multiple hearings, filed some sample orders. To not even provide the Supreme Court a copy of such orders was an extreme position, but did not come entirely as a surprise. We have in the recent past seen such opacity, especially under former Chief Justice Ranjan Gogoi, clothed in what legal scholar Gautam Bhatia termed “sealed cover jurisprudence”. Ultimately, it came as a relief that, to some extent, ordinary legality and common sense prevailed. The apex court rejected the government’s secrecy claims and directed the publication of orders recognising that, without them, litigants would not be able to seek judicial remedy. However, eventually, it failed to judicially review the orders furnished in court and also permitted claims of privilege to prevent their disclosure.

Question of fundamental rights

•The principal job of the court in such writ challenges is to review the administrative and executive action. In this case, the decision charted the link between fundamental rights and access to the Internet and sought to apply it when it came to prohibition in place in J&K. While doing so, the court rejected the government’s arguments emerging from extreme positions of national security. It applied the proportionality doctrine to reason that “complete blocking/prohibition perpetually cannot be accepted”. And while noting the issues pertaining to the Internet shutdown rules, the order directed the government to change them and placed a time limit of seven working days for periodic review.

•These victories were incremental and certainly could not be termed as ‘wins’. They emerged amidst a cynical framing of rules by the executive and extreme, adversarial national security arguments to impair progressive constitutionalism. The judicial response followed clear precedents and did not fashion anything novel. For instance, on the surface, the directions for the right to access the Internet may seem to be a victory for the litigants. However, this was already a well-established position flowing from various previous verdicts such as the Section 66A decision in the Shreya Singhal case and administrative policies and orders such as National Telecom Policy and Net Neutrality Rules.

•Even when it comes to the court’s direction to conduct a periodic review of such shutdowns every seven days, it needs to be noted that the review committee will lack independence and real power to overturn the initial Internet shutdown orders. The committee will be principally composed of bureaucrats and no independent members. Further, the findings and recommendations of such committees, as scholar Nakul Nayak has shown, will not be legally binding. As Mr. Nayak has noted, those wanting to be heard by the review committee will face several procedural obstacles. Ultimately, the judgment has left it to the government to decide on such shutdown orders under pre-existing constitutional principles.

•The Supreme Court applied a limited rights doctrine and removed the anxiety among a section of the Indian public concerning drastic constitutional regression. Such mixed results can be understood by looking beyond the court to our present political environment. The verdict has come at a time when basic rights are being violated with impunity and public expectations for remedy from institutions are extremely low. And though the court may have rejected several contentions by the government, ultimately it seems to have accommodated the arguments of the executive branch on issues of national security.

An act of judicial centrism

•The ruling may be termed as an act of judicial centrism. The court clutched on to the basic constitutional norms to maintain legality, while showing reluctance to expand upon rights. An end product of such a posture is that it may not extend the true spirit of our fundamental rights and would perpetuate a status quo. This was tangibly felt when the judgment shifted the legal review of the J&K shutdown orders — the principal question of determination — back to the government.

•The court further avoided any comment on the legality of such orders given in the past, even those furnished by the government before it. Martin Luther King admonished this kind of centrism when he said that it was “more devoted to ‘order’ than to justice; [that] prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice”.

•On the whole, the judgment was a statist expression of the law, neither conservative nor radical. For actual relief, petitioners will now need to approach the high courts, which will come at a huge cost to their time and the right to access the Internet. The legal doctrines laid down in this ruling may be beneficial; however, the more difficult task will be to obtain clear-headed pronouncements that actually declare the executive orders, such as those that led to the shutdown of Internet in J&K, to be illegal.

•Today, “We the people” is not a mere phrase of our constitutional preamble but a call for action to Indians. They must encourage our institutions to shift from centrism to a progressive assertion of our fundamental rights.

πŸ“° The warp and weft of religious liberty

In expounding the scope and extent of freedom of religion, the Supreme Court faces a difficult question of balance

•In December 2014, the Supreme Court of India placed a temporary ban on madesnana, a 500-year-old ritual performed at the Kukke Subramanya Temple in Karnataka. The practice involves persons, in particular those from Scheduled Castes and Scheduled Tribes, rolling over plantain leaves left behind with food half eaten by Brahmins, in the belief that doing so would cleanse their skin of impurities.

•Initially, in 2012, at the behest of a group of progressive-minded petitioners, including the seer of the Nidumamidi Math, a division bench of the Karnataka High Court put a halt to the ritual, but allowed it to continue in a modified form. Devotees could now voluntarily choose to roll over leaves containing prasada, that is offering made to the deity, so long as the food was not “tasted or partially eaten by the members of any community”. But this order was lifted two years later by another division bench of the High Court, which found little wrong with madesnana in its supposedly “original” form. The practice, the court said, did not, on its face, violate any law. What is more, in the judges’ belief, a proscription of the ritual until a final ruling was delivered would both hurt the sentiments of devotees and impinge on their constitutionally guaranteed right to freedom of religion.

What is at stake

•It is cases such as this and many more, including the practice of female genital mutilation and the rights of Parsi women to enter fire temples, which are at stake when a nine-judge bench of the Supreme Court begins hearing arguments on questions concerning the relationship between the right to freedom of religion and the rights of individuals to dignity and equality. The establishment of the Bench emanated out of an order of reference made on review petitions filed against the Sabarimala judgment. But when the Bench assembles today, its remit will involve a rather more abstract exercise: to answer a series of wide-ranging questions and to expound the scope and extent of the Constitution’s religious liberty clauses.

•In answering these questions, the Court will be faced with a difficult question of balance. Within the Constitution of India, there are two impulses that may, at times, come into conflict with one another. The first impulse recognises that India is a pluralist and diverse nation, where groups and communities — whether religious or cultural — have always played an important role in society. Following up on this impulse, the Constitution recognises both the freedom of religion as an individual right (Article 25), as well as the right of religious denominations to manage their own affairs in matters of religion (Article 26). The second impulse, on the other hand, recognises that while community can be a source of solidarity at the best of times, it can also be a terrain of oppression and exclusion. The Constitution, therefore, expressly provides for the possibility that there may be times when members of religious and cultural communities may need to be protected from authoritarian and oppressive social practices. Thus, both Articles 25 and 26 are subject to public order, morality, and health; and further, Article 25 is also subject to other fundamental rights guaranteed by the Constitution, and to the state’s power to bring in social reform laws.

•These two impulses, and their expression in various provisions of the Constitution, speak to an observation made by Alladi Krishnaswami Iyer, one of the foremost drafters of the Constitution: that in our country, religion and social life are inextricably linked. As the madesnana example shows us, religious proscriptions often spill over into broader society, and religious and social status often reinforce each other. A classic example, of course, is that of the practice of “untouchability”, which the Constitution explicitly prohibits. Another is the practice of “excommunication”, a practice prevalent among certain communities, where the head of the community has the power to expel recalcitrant members, and exclude them entirely from any form of interaction with their former friends or families.

Finding the middle ground

•How then do we strike a balance between respecting the autonomy of cultural and religious communities and also ensuring that individual rights are not entirely sacrificed at the altar of the community? Over the years, the Supreme Court has attempted to do so by carving out a jurisprudence that virtually allows it to sit in theological judgment over different practices. It has done this by recognising that it is only those practices that are “essential” to religion that enjoy constitutional protection. Any other ritual is seen as secular and amenable to the state’s interference.

•This doctrine of essential practices has invariably seen the Court play the role of a moral arbiter. It invoked it, for example, to rule, in 2004, that the performance of the Tandava dance was not an essential tenet of the religious faith of the Ananda Margis, even though the followers of the religion conscientiously believed it to be so. Similarly, the Court, especially during the tenure of Chief Justice of India P.B. Gajendragadkar, struck down a number of rituals across religions on the grounds that those practices were embodiments of superstition as opposed to faith. But was the Court at all competent to make this distinction? Many scholars have argued that it was not: the idea of a secular Court sits uneasily with investigations into the nature of religious practice. In response, the Court has often stated that the “essential religious practices” test is indeed the only way it can reconcile the two impulses of respecting religious autonomy and enforcing individual rights.

The anti-exclusion principle

•For these reasons, one option before the nine-judge Bench would simply be to affirm existing jurisprudence, as it stands, and has been incrementally developed over the years. That would certainly not be an unacceptable position to take.

•There are, however, other ways. One way, for example, would be to ask whether the effect of the disputed religious practice is to cause harm to individual rights. Madesnana, for example, is a clear violation of human dignity. A few years ago, the Bombay High Court found (similarly) that the exclusion of women from the inner sanctum of the Haji Ali Dargah was an indefensible violation of equality. The enquiry, thus, is not whether the practice is truly religious, but whether its effect is to subordinate, exclude, or otherwise send a signal that one set of members is entitled to lesser respect and concern than others. Interestingly, in the Sabarimala case — out of which this reference arose — both the concurring opinion of Justice D.Y. Chandrachud and the dissenting opinion of Justice Indu Malhotra agreed that this ought to be the test; their disagreement was limited to whether, in the specific case of the Sabarimala temple, the practice, on its facts, was exclusionary or not.

•An articulation of the anti-exclusion principle would also take into account an important truth. In many religious communities, norms and practices are shaped and imposed from above, by community leaders, and then enforced with the force of social sanction. Dissenters are then faced with an impossible choice: either comply with discriminatory practices, or make a painful (and often unsustainable) exit from the community. It is here that the Constitution can help by ensuring that the oppressed and excluded among communities can call upon the Court for aid, and by ensuring that powerful communities are not exempt from guaranteeing the basic norms of fairness, equality, and freedom to all their members.

•When the hearings begin today, therefore, the nine-judge Bench will face a difficult and delicate task of constitutional interpretation. Much will ride upon its decision: the rights of women in particular (a group that has long been at the receiving end of discriminatory practices) and of many other vulnerable groups in general but also, the constitutional vision of ensuring a life of dignity and equality to all, both in the public sphere and in the sphere of community.




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