Power and Corruption

 

Lord Acton on 5 Apr1887 wrote to the Bishop Mandell Creighton about how historians should judge the abuse of power by past rulers, especially popes. In this letter he wrote that “Power tends to corrupt; absolute power corrupts absolutely”.

He argued that people in position of power, especially popes and monarchs should be held to a higher standard of judgment - because of - not in spite of- the tremendous power they have.

Acton’s observation is interpreted to imply that Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superimpose the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it.

Myanmar’s Nobel laureate Aung San Su Kyi puts it in a different perspective by saying that “It is not power that corrupts but fear of losing power corrupts those who wield it and fear of the losing of power corrupts those who are subject to it.”

There are enough examples to show that people in power tend to abuse their power either to safeguard themselves or justify it in the name of welfare to public or masses. Basically this category of persons belongs to the ruling class or politicians. But there are also examples of people in power or hold over masses which they used it for the welfare of masses. These are the social reformers whose basic aim is to remove the aberrations in the society by mass movement.

It stands to logic that if power corrupts a person then lack of power should imply no corruption. But this is not what is observed. Research by Huisi Li indicates that it is most often those who lack power – rather than those who have it- that engages in corrupt practices maybe at a smaller level at compared to big corruption.

When a person exercises power over others then there is a tendency for the power holder to feel that others cannot control their behavior or are seen as less worthy and are less deserving of respect. Therefore, they are good prospects to be exploited.

It, therefore, stands to reason that if there are people who belong to either class of corrupt power holder or benevolent power holder then it can be argued that power does not corrupt people but it is something else. Power is just a tool to enhance your inner skill and what it does is to awaken one’s inner feeling, thoughts and believes. What it does is to bring to the public view your hidden face whether good or bad.

A person in power eventually tends to realize that power and wisdom are the same thing and as he possesses power he must also possess wisdom. If wisdom does not come along with power then it leads one to be corrupts and if power leads one to possess wisdom then it leads one to be benevolent. If he starts to believe that powers also implies that he has gained wisdom  then in actuality he begins to lose his ability to distinguish between what is morally right and what is politically expedient and tends to lean towards corruption for the fear of losing importance and esteem which can propel him to promote self promotional lies.

Suicide Dilemma

 

                                                                Suicide Dilemma

Suicide is an act by an individual to take his own life as he does not wish to live in this word due to a number of reasons. Suicide is treated as an offence under the Indian penal code section 309. It is probably the only offence in the IPC in which no action can be taken or punishment given to the person if he is successful, just because he is no longer alive, but if he fails or is saved then besides being treated as a criminal he is liable to be punished by the state and treated as a criminal. The trauma to the family and the stigma attached to the family and individual is given by the society as an added bonus. Section 309 of Indian Penal Code states that:-

“Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.”

The dilemma at present lies in the treatment of suicide by the society and under the law.  On one hand the government wants the citizens to live by guaranteeing the right to life under article 21 of the Constitution of India but if one does commit suicide then he gets sympathy and maybe in some cases respect by the society but in case he survives the attempt to suicide due to any reason then the governments tries to punish him for trying and even ostracizes him from the society. Even with the altered legal implications regarding suicide as given in section 115(1) of the Mental Healthcare Act 2017 the act remains highly stigmatized and misunderstood, meaning those who survive offer suffer ignominious lives.

At present as it stands only the state has a right to take lives whether on orders by court or in special circumstances or in case of waging war against another state and tries to control the lives of its citizens except guaranteeing some fundamental rights including right to life but prosecute its citizens when they wish to exercise their freedom to end their own lives and punishes them rather than trying to understand and make efforts to remove those circumstances or reasons as to why a person decides to end his life. The reasons could be varied from external, failure in life or job, internal pressures from family and their expectations, suffering from terminal disease or even mental illness. If a person takes live of another person then he is labeled as a murderer and if he takes his own life then he is treated as a coward and ostracized. Birth and death both subject are subject to state regulation and remain beyond individual control. Section 309 implies that only the state has the authority to legally take life and exert control over the body in other ways as well.

Section 309 of the Indian Penal code criminalizes the suicide and this is where the dilemma lies because Article 21 of the constitution of India guarantees the fundamental right to life. In its 42 nd report the law commission of India recommended the repeal of section 309 of IPC but the government did not accept this report. In 1978 the Janta government brought a bill to implement the recommendations and it was passed by Rajya Sabha but not by Lok Sabha as it was dissolved before passing the bill and the bill lapsed.

The Delhi High Court in its 1985 judgment dubbed the section as” An anchroronism unworthy of humane society like ours.”  The Andhra high court in 1988 however upheld the provision. Bombay High Court in 1987 on the question of individual right declared section 309 of the IPC as unconstitutional. It said that the freedom of speech and expression includes freedom of not to speak and to remain silent, the freedom of association and movement likewise include the freedom not to join any association or not to move anywhere. If these observations are correct then logically it must follow that the right to life by article 21 will include the right not to live or not to be forced to live.

In 1996 a two Judge bench of the Supreme Court observed that “Any person abetting the commission of suicide by another is merely assisting in the enforcement of the fundamental rights under article 21.”  But a five judge bench overruled he two judge bench in 1996 and declared section 309 as constitutional. The court also rejected the argument of Right to die and said that Right to Life is a natural right embodied in article 21 but suicide is an unnatural termination of extinction of life and therefore incompatible and inconsistent with right to life.

The Law commission’s report of 1997 recommended the retention of section 309. It took law commission another decade to recommend the repeal of section 309 of IPC in 2008 in its 210^th report. In December 2014 the government told the parliament that it has been decided to repeal IPC section 309. But this is yet to happen even though the new act on Mental Healthcare Act 2017 in its section 115(1) exempts suicide attempt survivors from the ambit of section 309 IPC presuming unless proven otherwise that they “Have severe Stress”.

Section 115(1) of the Mental Healthcare Act 2017 state that:-

 “Notwithstanding anything contained in section 309 of the Indian Penal Code, any person who attempts to commit suicide shall be presumed, unless proved otherwise, to have severe stress and shall not be tried and punished under the said code.”

The moot point is that, is it the individual who has a right over his life and body or it is the state. Certainly the data suggests that even in the diluted section 309, individuals retain some right to their bodies although the state claims ownership rather than an individual. The state under the fundamental rights in article 21 guarantees right to life and in various judgment the Supreme Court has reiterated that the right to life include right to enjoy it peacefully. Therefore, it stands to reason that it is the duty of state and society to safeguard the peaceful enjoyment of life without any tension, stress or any external or internal factors. The state has to create an environment, facilities, and conditions in the society so that an individual is free from stress to enjoy his life peacefully and does not end up taking his own life.

 

Woman, Widow & Will - A Real Life Story

 

A young widow with no children was forced to leave her in-law’s house after death of her husband. She stayed with her parents, got professional qualification, a good job and finally was able to purchase a flat in her own name and some investments where she stayed with her parents. A story, which can happen in any family. After her sudden death while she was around 50, her parents claimed the property and investment as legal heirs. Here comes the twist that the in-laws also claimed the same and the court citing the Hindu succession Act 1956 ruled in favour of in-laws and even SC upheld this decision and her parents who had struggled, brought up their daughter were left with no flat and no investment just because the daughter had failed to make a will making her parent’s as beneficiary. This real story shhok the core of my heart but I was helpless as the daughter never made a will out of ignorance and besides some personal help I could do nothing.

During my various interactive sessions and presentation on will and related issues I am often told that it not necessary for the wife to make a will and the arguments given are too many. She does not own anything, her property of share will always come to husband or the husband has paid money for her flat or share, etc, etc. But these arguments only show the ignorance and lack of knowledge of succession and inheritance act, rules and procedure. In some cases it also involves the transfer of property act and the Income Tax Act.

Writing a will is a very personal decision but those who do write a will normally only write for themselves and avoid or do not make a will for wife. A will ensures that the assets are transferred to the desired beneficiary easily, efficiently and at the least cost. A will is governed by the Hindu succession act 1925 in case there is a will and in case of no will by the Hindu succession act 1956. In case of marriage under Special Marriage Act 1954 it is governed by the Indian Succession Act 1925 which also applies to Christians. Muslims are governed by Shariat Act. Word Hindu includes Sikh, Jain and Buddhist.

In case of death of a woman/widow without a will, then her inherited as well as her self acquired property will be divided between sons, daughters and husband in equal proportion. In her case the act (section 14) does not distinguish between inherited and self acquired property. Further two sections (section 15 and 16) lay down the successor and the order of succession. In case of no issue of the widow or woman (whether biological or adopted) then the property (Immovable and movable) will go to the parent’s of husband in case of widow or to the legal heirs of husband. In no case her property whether inherited or self acquired property will go to her parent’s or their legal heirs unless there is a will and beneficiaries specified. If the property is inherited from her husband or in laws then it devolves in the absence of a will to her husband’s heirs.

A daughter stands to inherit an equal share in her father’s or mother’s inherited or self acquired property in case of no will by them like other siblings. In this case she can will this property as per her wish or execute a relinquishment deed to relinquish her claim on this property. But in the absence of any of these then the property in her death will revert back to her parent’s or their legal heir’s and not to her husband or his legal heirs in case there are no sons or daughters.

So it appears that making a will for the wife is equally as important if not less than her husband’s will and such wills are called mirror wills

Woman's Property Rights

 

A daughter stand to inherit an equal share as other siblings in her father or mother's property. In this case sheor her children are conidered as a copercaner in the ancestral property. A daughter has a right or can ask for maintenance or shelter in her parent's residence if she is widowed or divorced or dersrted. This is applcable only if the property has not been divided and she has not received her share.

She has absolute right over her property whether self acquired or inhertied and she can sell/ gift/dispers her porperty as she wishes through her will only. But in case of no will the Hindu sucession act 1925 will apply for inhertiance and succession and in case of Muslim the shariat act and for Christian the Indian succession act 1925. In cae of marriage under Special marriage act 1954 the Indian succession act will apply.

A daughter in law has no right over the property owned by her husband's parents whether ancestral or self acquired. She can acquire righs over such assets only through her husband's inhertitance/ share.

I case of death of husband of a muslim woman and if she is the only wife she will inhertied one fourth if there are no children and one eighth if there are children. If there are more tnah one wife then each wife inhertitance reduces to one eighth.

However in case of HUF there is a variation and she is eligible to shelter, support and maintenance from her husband and his family. In case of division of property between her husband and her children, she also gets equal share as her husband and her children. In case of husband's death she is ehtitled to an equal share of husband's assets divided between her, her children and his mother

Gifting Immovable Property to Children

 

Recently in Chandigarh and earlier in Delhi & NCR there have been a number of cases were the parents gifted their hard earned only property to their children only to face haassment, mental torture, deprivation and in some cases getting thrown out of their own house. Sad and pathetic but true in some cases.

The gifting of immovale property which a person has made using his hard earned money to his/her children is an issue which depends on a host of factors, therfore, it is difficult to lay down a guideline but some general ways can be suggested to safeguard one's future. If the children need money due to any reason then by all means help them but within yor capability and without compromising your well being and do not expect any return or somre favor in return. A will can be changed any number of times but a gift is irrevocable and once made and accepted can not be changed, amended or revoked.

As a general rule do not gift your only hard earned property to your children but give it to them under a will which will be exceuted after your death. If you need money then one can always opt for reverse mortagae offered by banks to raise money for your comfort, well being and requirements. The bank wil give option to your children after your death whether they wish to get the property back after payment of mortagae loan or bank can sell it to recover dues.

If due to any reason whatsoever one has to gift his only property to his children then make sure that in the gift deed a clause is introdued that the deed will be null and void if the parents are ill treated, suffer harasment or deprivation at the hands of the peson to whom thy have gifted the property. This clause will help the tribunal headed by DM to revoke the gift deed and the property will revert back to parents and in some cases the children and their family have been ordered to leave thir parent's house. In other case if one is facing financial difficulty the recourse can be taken of Senior Citizen Protection act under which the DM can order the payment of montly allowance to the parents from their children or legal heirs and will make them responsile for their well being, medical needs, etc

Daughter's Claim on Ancestral property

 

The Hindu Succession act 1956 which is part of the coded Hindu act is perhaps one of the most comprehensive and progressive act. It is constantly being improved to meet new challenges and changing scenario.

In 2005 it was amended and daughters were given equal rights in the propety the same as for sons. Later Supeme Court in a judgement made this application backdated to be read from 1956 onwards. As compared to Hindu law the muslim law grants the dauhter only half of the share that a son will get and the wife gets only one sixth share.

But there is a small rider to this amendement in section 6 with a cut off date, which is normally missed by most and in a recent three judge bench the Supreme Court clarified it again by reiterating it. It simply means that if the ancestral property was sold, morgaged or donated on or before 20 Dec 2004 then the daughter or her children can not raise a complaint regarding their share. After 20 Dec 2004 the daughter or her children have a right to share in the ancestral property as much as son.

Ancestral property contains property brelonging to three generations of father, grandfater and great grandfather but it does not contain the property earned by the father and there he has a right to dispose it through a will as he wishes and in the absence of a will as per the Hindu succession Act 1956. Hindu definition includes Sikh, Jain and Buddhist also.

TDS on Joint Property

 

In a recent judgement by ITAT bench Jodhur, which applies to all joint properties and relates to the deuction of 1% of the sale consideration or market value which ever is higher as TDS and deposited with the IT department by the buyer ,if the sale consideration is 50 lacs or more. The bench held that in case of joint property if each individual gets less than 50 lacs then the TDS section does not apply and. TDS is not to be deducted by the buyer and deposited.

This is a very good observation and decision by the ITAT bench and will be of immense help to individuals where either buyer are more than one or sellers are more than one as is normally in case of joint or ancestral properties.