Is there a religion specific right to die?

I have just woken up and am looking through today's Times of India, Kolkata Edition. On the first page, bottom left corner is a news titled "Jain monk embraces after-life". The first paragraph of this news item reads:

"An 88-year old Jain monk breathed his last on Monday afternoon after embracing the voluntary fast to death called Santhara, sanctioned by Jain scriptures. Munisree Yasawai Sagarji Maharaj of the Digambar community took neither food nor water for 51 days.

In a rare honour to Yasawai Sagarji, the Kolkata Municipal Corporation reserved the wooden pyre of Kashi Mitra burning ghat from 2am to 10am on Tuesday for his cremation. In fact Jain leaders had applied to KMC the day the monk started his fast to reserve the pyre for a month. The KMC agreed. There is no precedence for this in the KMC's history"

So here is the situation, the Municipal Corporation was intimated about a person fasting unto death in its jurisdiction. It does nothing to stop the fast; to the contrary, it makes arrangements for a grand funeral and waits for the fast to succeed.

It has been just a day since the Supreme Court reiterated its stance on euthanesia and right to die, with a minor modification that permits passive euthanasia in exceptional circumstances. Even in such circumstances, passive euthanasia is to be conducted only after the approval of the High Court and after several riders have been met. 

So what granted this Munishree this unique right to die which no other citizen seems to be vested with? His religious belief? If religious belief on this matter was a source of right to die, then should the same right not be accorded to Jehovah's witnesses who refuse medical intervention on the ground of religious belief? Is there something that differentiates Jehovah's witnesses from this Munisree? If not the acts of KMC are not only bad administrative action, but probably also amounts to abetment of suicide under Section 309, IPC. 

Court rejects plea to make property a fundamental right

The Supreme Court has dismissed a public interest litigation petition seeking a direction to make ‘right to property' a fundamental right under the Constitution.

Though the ‘right to property' was deleted by the 44th Constitution Amendment in 1978, it was challenged only in 2007 in the context of acquisition of large extents of land for Special Economic Zones, and the court issued notice to the Centre.

It was contended in the PIL petition that nowadays, further inroads into the right to property were evident in the newly formed policy on SEZs, “which has as its goal the taking over of the property of individuals, small peasants and farmers under the Land Acquisition Act without reference to their reasonableness.”

On Monday, a Bench of Chief Justice S.H. Kapadia and Justices K.S. Radhakrishnan and Justice Swatanter Kumar, however, rejected the petition filed by Sanjiv Kumar Agarwal, founder of the Kolkata-based Good Governance India Foundation. Its dismissal is likely to have a bearing on land acquisition for SEZs.

When counsel Gopal Sankaranarayanan said the right to property was deleted by the 44th Amendment, the Bench said, “It has to be read along with the 42nd Amendment by which the word ‘socialist' was inserted in the Preamble to the Constitution. The CJI said: “If your contention is to be accepted, then we will have to reverse earlier judgments on property rights. Recently we dismissed the Gudalur Janmam petition seeking similar relief. We can't reopen the issue.”

44th Amendment

The petition challenged the deletion of Article 19 (1) (f) from the Fundamental Rights chapter of the Constitution by the 44th Amendment. According to the object of this Amendment, “In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 [compulsory acquisition of property] is being deleted.”

The petitioner contended that over the years the importance of the right of individuals to private property was limited in scope and size and was constantly invaded by schemes of acquisition without any safeguard as to the reasonableness of the law or their ultimate purpose.

The right to property, which existed as a fundamental right on April 24, 1973 when the court decision in the Kesavananda Bharati case was pronounced, was part of the basic structure and could not have been amended, leave alone deleted.

The petitioner said Article 19 (1) (f) was inextricably linked to Articles 19 (1) (d), (e) and (g), viz. the right to move, the right to reside and settle in any part of the country and the right to occupation, which together formed the fabric of unity and integrity of the nation. And without the right to acquire, hold and dispose of property, these other rights would become ephemeral and meaningless.

The petitioner, therefore, sought a direction to strike down the 44th Amendment as being violative of the basic structure of the Constitution.

Source:http://www.thehindu.com/news/national/article836599.ece

Unenumerated Fundamental Rights-Does it really exist ?

A common misconception among the people is that their rights come from the Constitution. Even lawyers and judges are guilty of believing this, oftentimes suggesting that whether a right exists or not depends on whether it is listed in the Constitution. Law-enforcement agents read criminal suspects “their constitutional rights,” which leads some people to infer that the Constitution is the actual source of people’s rights. Suppose the Constitution had not been enacted. Would that mean that people would not have the rights that are enumerated in it? No, it would not mean that. The existence and protection of those rights did not depend on the Constitution.

Unenumerated Rights are Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. In the US, this is specifically protected by the 9th Amendment. The text of 9th Amendment is reproduced below:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Justice Arthur Goldberg put it in the famous privacy case of Griswold v. Connecticut, which involved a state statute prohibiting the use of contraceptives:

"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments....

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment....

Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive."

The US position is comparable to Irish position. In the Irish Constitution,Article 40.3 expressly protects unenumerated fundamental rights. But a similar provision cannot be found in our Constitution. Our Apex Court in the case of PUCL v. Union of India(AIR 2003 SC 2363), has accepted the existence of unenumerated fundamental rights. This is surely a welcome step. It wold be apt to quote Justice K.K. Mathew's words from the decision in Kesavananda Bharati: "Fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of experience."