Thursday, October 6, 2011

Supreme Court verdict raises a vital issue of bearing of Morality on Law

A Bench comprising Justices Dalveer Bhandari and Deepak Verma of the Hon’ble Supreme Court of India in a verdict on 29th September has rightly ruled that people’s right to own property fell very much with in the domain of human rights. However, it also raises a vital issue of bearing of morality on law. It is no gainsaid to emphasize that law of adverse possession under which any person in illegal possession of a property for 12 years could claim legal ownership of it in preference to real owner, if certain other requisite legal imperatives are satisfied, is immoral per se.
Does law and morality not have any nexus with each other? Can a law be formulated in total oblivion of moral considerations? If a law is bereft of morality, can it be enforced efficaciously? Is Law in force in India has underpinnings of morality in it? A bird’s eye view of various laws in force in India will bear out that it is not entirely devoid of morality viz. Law against immoral trafficking including Prostitution, Child Labour; Exemption of certain movable and immovable property from attachment and sale in execution of a decree; Complete exoneration of criminal acts of a child under seven years of age; Plethora of social welfare Legislations; Special provisions for Women, Children and other Vulnerable sections of the Society; Quota based Reservation Policy as a part of Affirmative Action are worth mentioning in a ocean that abounds with such provision.
However, human rights as appendages of “fundamental right of life and personal liberty” as enshrined in the Indian Constitution are inalienable. Going by that yardstick, once Supreme Court holds that right to property is one of the human rights, shouldn’t the law of adverse possession become ultra vire the Constitution of India and hence, a dead letter.
As a Corollary, doesn’t the law that declare a debt as time barred if no legal proceedings initiated for recovery with in three year from the time when it became due also deserves the protective cover of human rights? Doesn’t every rigor of law of limitation impinge on one or other human right?

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