Property not Fundamental Right: SC

It is really unfortunate that Supreme Court dismissed the PIL. Part III imposes a check on government, tinkering with it, is indeed violative of the basic structure of Constitution. Part III does form basic structure of Constitution, else need to have a written constitution becomes unnecessary. The Constitution has been amended more for political reasons than for principles.

Property rights must be protected and is one of the most invaluable right of anyone. Our Framers of constitution had rightly included this/ownership of property in the fundamental right (right to hold, dispose etc). Unfortunately politics is taking toll on this right.

 

IPRI 2010: India's score slips for the second year in a rowLiberty Institute India Press Release


Monday, May 10, 2010The 2010 International Property Rights Index (IPRI) 2010, which measures the intellectual and physical property rights of 125 nations, from around the world, has Finland at the top for the fourth consecutive year. Pakistan is at the other end of the list. This year’s Index ranks India at 53, and regional rank at 9. For the second year running, India’s performance slipped from 6.1 in 2008, to 5.7 in 2009, and 5.4 in 2010.

Need to appreciate the connection between property rights and economic well-being

The 2010 International Property Rights Index (IPRI) 2010, which measures the intellectual and physical property rights of 125 nations, from around the world, has Finland at the top for the fourth consecutive year. Pakistan is at the other end of the list. These 125 countries included in this Index form the 97% of worlds GDP.
For India, property rights continue to be a challenge. This year’s Index ranks India at 53, and regional rank at 9. For the second year running, India’s performance slipped from 6.1 in 2008, to 5.7 in 2009, and 5.4 in 2010. The IPRI 2010 will be released by the Honourable Minister for Law and Justice, Dr M. Veerappa Moily on 14 May 2010, in New Delhi.

The IPRI emphasizes the great economic differences between countries with strong property rights and those without. IPRI ranks countries based on 11 factors which reflect the state of both Intellectual and physical property rights. This year, sixty-two international organizations, including Liberty Institute in India, partnered with the Property Rights Alliance in Washington, DC and its Hernando de Soto Fellowship program to produce the fourth annual IPRI.

Three primary areas of private property rights were used by IPRI to rank the countries: Legal and Political Environment (LP), Physical Property Rights (PPR), and Intellectual Property Rights (IPR).  Nations falling in the first quintile enjoy an average national GDP per of $35, 676; almost double that of the second quintile with an average of $20, 087.  The third, fourth, and fifth quintiles average $9,375, $4,699, and $4,437 respectively.

India experienced a decline in all the three components. A decrease in judicial independence score was responsible for the drop in the Legal and Political environment score. The physical property rights came down as of a deterioration of opinion of business leaders on the protection of private property rights and access to loans. There was a slight improvement in the copyright piracy levels for business software, however.

https://www.protectingpropertyrights.org/story.aspx?id=2942&pubid=2871

The petition filed by Sanjiv Kumar Agarwal instead of seeking a direction to make ‘right to property' a fundamental right under the Constitution, should have sought directions to clarify if Right to Life & Liberty under Article 21 also includes Right to Property? Can the Constitution say that the Right to Life & Liberty is guaranteed, but it does not include the right to property? If right to property is not included, then what kind of Constitunal guarantee is this guarantee? If the State is allowed to infringe on right to property, then the Life & Liberty of citizen may resemble that of a beggar with no property, whose life and liberty is at the mercy of State help and the mercy of donors around him.

 

"The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government -- lest it come to dominate our lives and interests."- Patrick Henry

 

“When men yield up the privilege of thinking, the last shadow of liberty quits the horizon.” - Thomas Paine

 

Exactly,

Life always get attached with property (Like we say JAAn Aur MAAL Ka Loss), both come under right of self defence. And if state machinery fails to protect it, a person has right to go to the extent to protect his life and property.

The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights. A new provision, Article 300-A, was added to the constitution which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. This also means the State can reduce a person to a begar and he will have no remedy. It aslo means State can create circumstances and indirectly force the person into exploitative proffessions and thus violate the Right against Exploitation guaranteed under Articles 23 and 24 of Part III of Constition. Now here comes the role of Article 21 and courts need to clarify this.

The Supreme Court has paved a better road to ensure the interest of few powerful and influential.

Right to life under Article 21 of the constitution bears meaningless to marginalized section.

On the one hand Hon SC says the following

"Laws violating Constitution's framework open to review: SC"

Last updated on: January 11, 2007 16:11 IST

"In an unanimous verdict, a nine-member Constitution bench headed by Chief Justice Y K Sabharwal rejected the government's claim that certain laws, even if they infringed the fundamental rights of citizens, cannot be subjected to judicial review, if the legislations were placed under the Ninth Schedule".

 

Several other states had come out with their own laws on land reforms, land ceilings and other local legislations purportedly infringing upon fundamental rights, and had put them under the Ninth Schedule to avoid judicial scrutiny. 

 

The bench held that although the government was entitled to place laws in the Ninth Schedule, such legislations if they violated the fundamental rights guaranteed under Articles 14, 15, 19, 20 and 21 of the Constitution are liable to be struck down by courts.

 

https://www.rediff.com/news/2007/jan/11law.htm

 

On the other hand the same court dismissed a public interest litigation petition seeking a direction to make ‘right to property' a fundamental right under the Constitution.

 

Complete confusion is prevailing. What one can hope?

 

Here I feel appropriate to paste this news article, salient points have been highlighted and underlined, plz comment on this,

Aggressors can't claim right to self-defense:  SC

Dhananjay Mahapatra, TNN, Dec 11, 2006, 12.22am IST

 

NEW DELHI: Right to self-defense forms an important part of the Indian Penal Code justifying a person's action to defend himself during an attack. Nothing, not even taking the assailant's life, is an offence when one is trying to save his own life.

But this right is available only to the person attacked and not to the assailant because the aggressor forfeits his right to self-defense, a Bench comprising Justices A K Mathur and D K Jain has ruled.

Misuse of this important right is reflected in many recent judgments. In all these cases, the assailant's plea of self-defense is based on the injuries they received during the process of attack on the victims, who tried to defend themselves causing small injuries to the aggressors.

"The persons who are members of the aggressor party cannot claim right of self-defense, "the Bench said in its judgment on Friday.

It said that the threat to life was looming on the victims and not on the aggressors.

If an injured accused in a murder case claims the right to self-defense, the court has to compare the nature of injury on his body to those inflicted by him on the victim, it said.

Explaining the basic principle underlying the doctrine of the right to self-defense, Justice Jain, writing for the Bench, said: "When an individual or his property is faced with a danger and immediate aid from state machinery is not readily available, that individual is entitled to protect himself and his property."

The person facing threat to life and property is entitled to use force or even cause death of the assailant. But the force used to defend "must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended".

The Bench realized that there cannot be a measure to quantify the force to be used by the victim in self-defense.

"The means and force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scale," it said.

However, it was clear in its mind that the exercise of the right of private defense can never be vindictive or malicious as this would be repugnant to the very concept of private defense.

 

https://timesofindia.indiatimes.com/india/Aggressors-cant-claim-right-to-self-defence/articleshow/763462.cms

Just see these paras,

 

"The person facing threat to life and property is entitled to use force or even cause death of the assailant."

and

 

"When an individual or his property is faced with a danger and immediate aid from state machinery is not readily available, that individual is entitled to protect himself and his property."

 

Here Hon. SC has not mentioned/thrown light anything that how an individual should use force or protect his life and property, when these are at danger.

 

Plz. enlighten me/us.

"On the other hand the same court dismissed a public interest litigation petition seeking a direction to make ‘right to property' a fundamental right under the Constitution."


A lot depends on the language of petition made to court. The petition filed by Sanjiv Kumar Agarwal instead of seeking a direction to make ‘right to property' a fundamental right under the Constitution, should have sought directions to clarify if under Right to Life & Liberty under Article 21 also already exists Right to Property? Then the court would have been compelled to use its mind and think deeply.


"The person facing threat to life and property is entitled to use force or even cause death of the assailant."


Above becomes applicable only when one is faced in situations as described in Section 100 of IPC.


"When an individual or his property is faced with a danger and immediate aid from state machinery is not readily available, that individual is entitled to protect himself and his property."


Above opnion is more of a theoritical opinion than a practical opinion. The person/s attacking you to cause death or grievios hurt are not going to wait and allow you to call police and then again wait for the police to arrive and arrest them.


"Here Hon. SC has not mentioned/thrown light anything that how an individual should use force or protect his life and property, when these are at danger"


"How" is a different topic, courts give opinion on the subject matter of the case and not beyond. "How" can be any implement you can lay your hands on or any method that you can think of. Self defense is not a question of a fair fight that is governed by fair rules of a "tournament" or a "game", you are free to take help of best possible tools and strategies that can neutralize the numerical and phyisical strength of attacker/s. Only the force used has to be in proprtion to the threat. It means that if somebody is just slapping you on your cheek, you cannot use disprpotionate force to cause death or grievous hurt to that person. But if somoene is attacking you to cause death or greivous hurt(as per situations mentioned in Section 100 IPC) then you get the right to the extent of causing death in self defense. For details as to what is Right of Private Defense and when it becomes applicable read Sections 96 to 106 IPC.

Supreme Court now says that right to property is a human right. It means right to property is embeded in Article 21 of the Constitution. May read https://www.lawyersclubindia.com/forum/Sc-right-to-property-is-a-human-right-44986.asp