A judgment from the Bombay High Court-

A leave-and-licence agreement does not confer the licensee any right on the property, the Bombay high court has held. “Leave-and-licence generally does not create a right in the property or interest in the property,” a division bench of Justice S B Mhase and Justice Prasanna Varale said. “It is only a right to enjoy the property for a specified period without creating any interest in the property.”


The judges said L’Oreal could be in unlawful possession of the property according to the agreement’s terms but GEPD would still have to follow the due process of law to evict it.

“It is a well-settled principle that even a trespasser cannot be removed by taking the law in one’s hands and the person entitled to possession of the property shall obtain it by following the due process of law… that is the method in a civilised society.

Without going into the specifics of the case – L’Oreal plans to go in appeal – the “trespasser cannot be evicted except by following the ‘due process of law'” argument makes no sense when the “process” takes ages, as the judges are well aware. After all, if someone illegally occupies my property, I should be able to kick him out without having to wait for twenty-odd years – the time the courts will take to render a final judgment. This case is an exception rather than the rule, and the fact that even it has taken two years before the HC could take it up speaks volumes about the sad state of the “Rule of Law” in India – anybody can occupy my property, refuse to vacate when the time is up, go to court and drag the case for ages while telling me that I don’t have the right to use violence against some one who used violence against me.

Some Rothbardian wisdom

A crucial question—and one which has unfortunately been almost totally neglected by libertarian theorists—may be illustrated by the following examples:

Suppose we are walking down the street and we see a man, A, seizing B by the wrist and grabbing B’s wristwatch. There is no question that A is here violating both the person and the property of B. Can we then simply infer from this scene that A is a criminal aggressor, and B his innocent victim?

Certainly not—for we don’t know simply from our observation whether A is indeed a thief, or whether A is merely repossessing his own watch from B who had previously stolen it from him. In short, while the watch had undoubtedly been B’s property until the moment of A’s attack, we don’t know whether or not A had been the legitimate owner at some earlier time, and had been robbed by B. Therefore, we do not yet know which one of the two men is the legitimate or just property owner. We can only find the answer through investigating the concrete data of the particular case, i.e., through “historical” inquiry.

Thus, we cannot simply say that the great axiomatic moral rule of the libertarian society is the protection of property rights, period. For the criminal has no natural right whatever to the retention of property that he has stolen; the aggressor has no right to claim any property that he has acquired by aggression. Therefore, we must modify or rather clarify the basic rule of the libertarian society to say that no one has the right to aggress against the legitimate or just property of another.

In short, we cannot simply talk of defense of “property rights” or of “private property” per se. For if we do so, we are in grave danger of defending the “property right” of a criminal aggressor—in fact, we logically must do so. We may therefore only speak of just property or legitimate property or perhaps “natural property.” And this means that, in concrete cases, we must decide whether any single given act of violence is aggressive or defensive: e.g., whether it is a case of a criminal robbing a victim, or of a victim trying to repossess his property.

In another case of injustice, an innocent man spent 10 years in jail for a crime he didn’t commit-

In a script straight out of a dark Kafka story, a man acquitted of a double murder spent ten years locked up in jail—five years as an undertrial and another five after his acquittal as he could not come up with the bail for his release.

“This is a sin,’’ exclaimed a division bench comprising Justice Bilal Nazki and Justice A R Joshi on Tuesday on the plight of Madankumar Mandal who was produced in court. The judges ordered that Mandal, who appears to be in his 30s, be released immediately on a personal bond. The court also expressed the need for framing guidelines in cases dealing with the arrest of an accused who has been acquitted on an appeal by the state (Section 390 of the Criminal Procedure Code).

I seriously think that “undertrials” should not be housed in the same prisons that house convicted criminals. Further, for whatever it is worth, since every “criminal” who is on trial is innocent until proven guilty, suggestions like that of Cho make sense-

I feel sorry for that. These remand prisoners are kept with convicts. Is it right? These people who are yet to face a charge, a trial, yet to be convicted by a court are placed in the same cells with the convicts. There should be a separate arrangement for them. That could even be a multistoreyed apartment complex with all conveniences. It is totally unethical on the part of the State to keep them along with the convicts.

Or Rothbard’s even more radical ones (his books – “The Ethics of Liberty” and “For a New Liberty” are must reads)-

At any rate, while the libertarian does not object to prisons per se, he does balk at several practices common to the present judicial and penal system. One is the lengthy jail term imposed upon the defendant while awaiting trial. The constitutional right to a “speedy trial” is not arbitrary but a way of minimizing the length of involuntary servitude before conviction for a crime. In fact, except in those cases where the criminal has been caught red-handed and where a certain presumption of guilt therefore exists, it is impossible to justify any imprisonment before conviction, let alone before trial. And even when someone is caught red-handed, there is an important reform that needs to be instituted to keep the system honest: subjecting the police and the other [p. 89] authorities to the same law as everyone else. As will be discussed further below, if everyone is supposed to be subject to the same criminal law, then exempting the authorities from that law gives them a legal license to commit continual aggression. The policeman who apprehends a criminal and arrests him, and the judicial and penal authorities who incarcerate him before trial and conviction — all should be subject to the universal law. In short, if they have committed an error and the defendant turns out to be innocent, then these authorities should be subjected to the same penalties as anyone else who kidnaps and incarcerates an innocent man. Immunity in pursuit of their trade should no more serve as an excuse than Lieutenant Galley was excused for committing atrocities at My Lai in the course of the Vietnam war.

The granting of bail is a halfhearted attempt to ease the problem of incarceration before trial, but it is clear that the practice of bail discriminates against the poor. The discrimination persists even though the rise of the business of bail-bonding has permitted many more people to raise bail. The rebuttal that the courts are clogged with cases and therefore cannot grant a speedy trial is, of course, no defense of the system; on the contrary, this built-in inefficiency is an excellent argument for the abolition of government courts.

Furthermore, the setting of bail is arbitrarily in the hands of the judge, who has excessive and little-checked power to incarcerate people before they are convicted. This is particularly menacing in the case of citations for contempt of court, because judges have almost unlimited power to slap someone into prison, after the judge himself has acted as a one-man prosecutor, judge, and jury in accusing, “convicting,” and sentencing the culprit completely free from the ordinary rules of evidence and trial, and in violation of the fundamental legal principle of not being a judge in one’s own case.

The story of Kannagi provides an interesting idea of justice-

Kannagi and Kovalan married in Poompuhar, on the east coast. After some time, Kovalan went off with a dancer named Madhavi. A year later, he returned home. He and Kannagi walked to Madurai, a distance of about 250 km, to start a new life. There Kovalan was unjustly put to death by the local ruler, the Pandian king: Kovalan had been falsely accused of stealing the queen’s anklet. Kannagi came to the court and proved that her husband had been innocent of this crime. The king punished himself for the injustice he had done, by simply laying himself down and dying. Kannagi walked around the city three times, tore off her left breast and threw it against the city wall, and called for the city to burn — but for good people and animals to be unharmed. Agni, the god of Fire, accomplished this. Kannagi wandered to the western mountains, where some people worshipped her.

Kannagi’s anklets had rubies in them; the queen’s had pearls. She goes into the court and smashes her remaining anklet (her husband had been trying to sell the first one when he was caught and killed) and the stones scatter all over the place. That is when the king and the queen take their own lives – in shame.

But Kannagi isn’t satisfied. She’s burning with rage at the injustice done to her and asks of the people of the city state-

Are there women here? …
Are there women who would allow such vileness
To be done to their own husbands? …
Are there good people here? …
Is there a god here?

She demands that a city that sanctions such injustice be burnt to the ground. And summons Agni who then does the job.

Maybe the statue of a blindfolded goddess of Justice should be replaced with that of an angry Kannagi with an anklet in her hand. Justice or death.

Trackbacks are closed, but you can post a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: