Liberty – Constitutional Perspective

By | August 16, 2021
Liberty – Constitutional Perspective

Last Updated on by Admin LB

Introduction

Supreme Court time and again in its various judgments has stated not only the right to freedom, the right to life; it is the right to life with dignity which gives it concrete protection from the constitution of India. This right extends to even right to dignified death which was earlier denied and was considered a crime if the person committed any grave crime then he/she was not supposed to be eligible for dignified death and till death, he/she was denied of enjoying their personal and basic rights which every person should be allowed according to Indian constitution in the 21st century.

In the case of Gian Kaur v. State of Punjab (1996), the five-judge constitutional bench of the Supreme Court overruled P. Ratinam’s case decision. Supreme Court held that the right to life under Article 21[1] of the constitution does not include the Right to die or the Right to be killed by other person, and there is no such ground that holds section 309 of the Indian Penal Code (1860) constitutionally invalid.

Right to life in its true sense means the right to live with human dignity. Any aspect which makes life dignified may include in such definition but not that which douses it.

Late on in the case of Aruna Ramchandra Shanbaug v. Union of India (2011), Supreme Court held that Article 21 not only gives the right to people to live but also safeguard their rights to die with dignity. Court also stated passive euthanasia can be allowed at times under extraordinary circumstances, under the monitored guidance of the respected court.

Rights provided are neither definite nor resistant from constitutional amendments. The major aim is to overcome the inequalities of poor pre-independence social and cultural practices which have proven menace to the existence of fair constitution governance.

In the modern political and legal system, liberty means a state of being free with the society from all kinds of controls, oppressive restrictions imposed by the government authority on what ones way of life behaviour.

Relevant Provisions

From the preamble to part 3 of the constitution all are very much relevant if we talk about liberty, clearly depicting the ambit and importance of liberty in the Indian constitution.

Article 21 reads as:

No person shall be deprived of his life or personal liberty except according to a procedure prescribed by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural Magna carta[2] protective of life and liberty.”

This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.

Part 3 of the Indian constitution[3] governs fundamental rights which guarantee and preserves various liberties (available to citizens as well foreigners) (except enemy aliens)

To live with peace, harmony and dignity.

These fundament rights are namely:

  1. Right to equality (Articles 14-18)
  2. Right to freedom (Articles 19-22)
  3. Right against exploitation (Article 23 and 24)
  4. Right to freedom of religion (Article 25-28)
  5. Cultural and Educational rights (Articles 29 and 30)
  6. Right to constitutional remedies (Articles 32 and 226)

Violation of these rights or any enshrined in our constitution results in punishment to the wrongdoer for which punishment manner is prescribed in Indian penal code (1860)[4].

Rights provided Supreme Court took the view that it enough to have the law if there is a law then that law is good enough.

Supreme Court referred to a judgment of Bishops of Rochester of United Kingdom.

Their law was that the accused who further has been proved guilty will be thrown into boiling oil and the English court gave their consent to the law. Also, the Supreme Court of India accepted this proposition.

It was only in the case of Maneka Gandhi that the supreme court came forward and turned its page and said no, it is not enough to have just mere presence of law, the law must be just, fair and reasonable, so in today’s period it is not enough to have a law, it is also required that the law must satisfy the test of being fair, just and reasonable.

Reality Of Liberty In Indian Democracy

Indian constitution begins with justice, and the justice here talked is for and about liberty which persists for the betterment of the constitution and public, guarantee every form of remedy for a person.

Our constitution is democratic and republic[5] which signifies the head of the state is an elected body, otherwise, democracy exists even in the United Kingdom, but it is not a republic constitution because the head of the state is not elected by the citizens of the United Kingdom.

Practically, the essence of democracy according to the present scenario is that people agree to disagree. The principle of disagreeing is the role of the constitution where everybody has the right to either agree or disagree to any matter, fact, decision, law, custom etc.

When a government comes into power, irrespective of the fact that a particular person has voted it to power or not, the law that it makes will be binding on each one of them irrespective of the person who voted him to power or not. But that does not indicate that the government is free from criticism. If the government is criticized then in that event it does not mean that the person criticizing is anti-national. With the power to elect comes the power to criticize the elected person if he/she is acting against the welfare of the society or is misusing her/his power to govern.

The difference between government and nation has to be clearly understood by each and every person related to the country. The government will keep changing but the nation will remain the same. Loyalty and interest is a subject matter which should be diverted and lie towards the nation and not necessarily in the government.

Law is never static; it keeps moulding and has to take shape according to the present requirement of the country’s welfare, with the aim of providing security, peace, equality to the citizens.

Even when the laws were not amended, the application of law stands changed.

Liberty has become a very debatable question because of the famous case of the journalist who had been incarcerated on the ground of abetment to commit suicide, and Justice Chandrachud of the Supreme Court exercised the power under Article 226[6] for writ of habeas corpus.

Nobody has any grievance of Supreme Court chooses to exercise its power to secure somebody’s liberty. But then, Supreme Court cannot discriminate between person A and B otherwise it would be a violation of Article 15[7] of the Indian constitution.

Right to privacy[8] is one of the facets of liberty. The human rights are also right of basic liberty because human right is nothing but a right of a person to live with dignity. Liberty also includes a person maintaining his or her dignity.

Supreme court in Olga Tellis case, 10 July 1985 also stated that living like an animal is not counted in having the right to life because so as to live with dignity you need to have more than mere existence which is the right to life and liberty.

Our own law gave the right for the trial to Kasab[9], who was a terrorist and everybody knew it because it was recorded on the camera. Despite the clear image, we followed the entire free and fair trial and after it, the conviction was granted which shows that liberty exists for the public as well as for the constitutional body.

In 2021, article 21 is not just assurance of the right to life and liberty, it also includes the right to live happily, fearlessly and with dignity so it becomes the paramount duty of the government to protect these rights of citizens.

Real-Life Examples

There was a time when society had immense faith in the integrity of a doctor. His/her prescriptions, tests, opinion and honesty were never questioned. The position of law during this period was that if an eye witness X testifies that he has seen Y been stabbed to death and the medical practitioner says that he did not find any wound rather found injury behind the head caused by either of some heavy blunt pointed weapon. So here contradiction between X and medical practitioner exists. But because of the fact that society had no reason to doubt the veracity of the evidence of the doctor that in the event of such conflict it is the medical evidence that will prevail.

Today the situation is when we go to a doctor and he gives a prescription asking for various diagnostics tests to be done we start wondering in front of him as to how much commission is he going to receive and starting doubting his honesty and passion towards his job. And that happens because we have numerous rights in our hands which are embedded in our constitution so we start questioning everybody’s power over his job and also need to know our rights available if any infringement of right exists so that we can raise our voice against such injustice.

The profession has not changed but the outlook and perception of society about the doctor has completely changed and there exist various reasons behind such drastic change.

Supreme Court says medical evidence cannot be treated as a touchstone for testing the veracity of popular evidence[10].

Similarly, we witness the same kind of behaviour by the people when we look at someone questioning the power and authority of police officer when he/she has been stopped in the road for not wearing a helmet or for violating any of the road safety rules and this audacity comes to people from our constitution who has given the power to the common people to reach to the appropriate authority or court when faced any kind of injustice if they feel so.

In the case of A.K. Gopalan v. State of Madras (1950), a person named A.K. Gopalan was detained under the Preventive Detention Act (1950)[11]. Subsequently, the act was challenged by A.K. Gopalan on the ground stating that this gesture infringed his personal liberty.

Supreme Court held that personal liberty can only be infringed in two conditions i.e.

  1. presence of physical restraint
  2. presence of coercion

If either of the above-mentioned conditions is not present then in that case personal liberty is not infringed and will remain non-violated.

In this case, the concept of personal liberty was interpreted in a narrow perspective.

Later on, in the case of Maneka Gandhi v. Union Of India (1978), Maneka Gandhi’s passport was impounded by the government without giving any reasonable justification for such an act.

Maneka Gandhi challenged this action of the government to Supreme Court and stated that it is an infringement of her personal liberty. Supreme Court gave its view on personal liberty and said it is a wide concept. Personal liberty cannot only be infringed by physical restraint and coercion.

The narrow view on personal liberty (A.K. Gopalan case) was overruled in this case. Personal liberty got its wider definition in this particular case. Supreme Court stated that if there exists any law or procedure which curtails the personal liberty of a person, then it should fairly pass the “Test of Reasonability”.

Only after this case did there existed no such difference between the due process of law and procedure established by law.

A drastic change has taken place in the law/constitution, but there is no amendment in the Evidence act (1872) regarding the changes in concepts of liberty. Evidence act remained the same[12], but because of the fact that our perception has changed so the law stands changed.

Similarly, the journey of humanity in its fight against liberty or many times for liberty is full of this perception and society’s welfare policy. So there is no standard formula and that is why we must understand that the liberty of a person is not only dear to him but also dear to the society as a whole and that is the reason constitution guarantees it.

So, it becomes the duty of everyone in the society as was done by Americans who raised their voice against the abuse of liberty.

Recently. India has witnessed a case where an accident took place and the collision was between a lady and a police officer. In an act of rage and anger police officer shot the lady.

The question here arises is, from where does the police officer has empowered this authority to act in such a manner?

It is maybe because he considers himself to be law and considers nobody above him. This question will become more rampant if the court does not come forward to check or secure the liberty of the individuals.

In actress, Rhea Chakraborty’s case there were two aspects. First was the alleged use or purchase of drugs and the other one was the allegation for the abetment of suicide. It was Prima facie declared that she has abetted the offence of commission of suicide.

As far as habeas corpus is concerned, the majority of the judicial opinion is that it can be exercised against a judicial order[13].

Nanipalkiwala said on the superstition of the judges of Supreme Court “1974 is as important as 1947”[14]. 1947 mark the end of the struggle for winning freedom whereas 1974 marks the beginning of the struggle of preserving freedom.

Personal Liberty

It is the freedom of movement. Every citizen is entitled to freely move without constraints subject to certain regulations.

In the case of D.K. Basu v. State of West Bengal (1997), the petitioner wrote a letter addressing to the Chief Justice regarding the deaths which are happening in police custody and lockups and drawn attention towards such news proving his statement. This letter was considered as a Writ Petition to the Supreme Court.

Supreme Court held that doing such an act would be completely illegal and would be a violation of Article 21 of the Indian Constitution. Supreme Court laid down certain guidelines to be followed by the center and state police and other investing authorities in every matter related to arrest and detention of a person. If such illegal detention, arrest and killing take place in police protection, custody or lockups then the responsible authority would be punished according to departmental actions and would also amount to contempt of court.

The concept of personal liberty is altogether connected with the concept of bail[15]. When the application for bail has been heard in the court, the majority of the learned judges have a question in mind i.e. ‘whether I should rant a bail or not?” The judicial officer might make a slight change in their approach at the very inception while entertaining the bail application.

Instead of the above-mentioned question, the question in the true spirit of justice assurance should be that “whether to legitimize encroachment from personal liberty or to dismiss it”.

Therefore bail has to be granted as a rule, and bail has to be negated as an exception.

Criminal Liberty

The ultimate aim of the criminal justice system is two-fold, specifically:

  1. Assuring innocent people that they would not be subjected to abuse of process of law.
  2. Conveying the message to society that if the law is neglected and crimes are being committed, they cannot escape the long arms of the law and will surely suffer punishment.

The constitutional mandate speaks that every citizen of India is entitled to speedy and inexpensive justice.

This mandate of the constitution is a mere paper tiger. In our country, we do not experience the majority of justice seekers getting inexpensive and speedy justice because justice costs a lot even if the decision has been given then also there is no assurance that justice has been given in the true sense of humanity. Instances such as Tampering and hindering of evidence, absconding criminals, further crimes leads the justice system questionable in the eyes of law and the public which is altogether a mistake and failure of the criminal justice system.

Neither legal aid function is performing satisfactorily, nor speedy trial and justice are provided[16]. This is becoming a matter of disgrace in the light of the Indian judiciary system which is a huge drawback resulting in numerous case files piled up in offices unheard undecided. The question of whether people are enjoying their right to liberty in a realistic, efficient and effective manner is popping out which either can be ignored or eradicated by applying some constructive means.

For example appointment of judges can be increased so as to maintain the ratio of judges and cases pending in the Indian judiciary system.

Section 89 of the Civil Procedural Code deals with the settlement of disputes outside the court; more emphasizes can be given on these methods of solving disputes outside the courtroom and try reaching to the knowledge of common people about these alternate dispute resolution ways.

Often judicial capacity and capability are adjudicated by the time taken for disposal of the cases. There exist many scandals and frauds which needs or needed to be disposed off as quickly as possible, but India failed to do so a lot many times.

For e.g. the Harshad Mehta scam[17] took almost 6 years for the pronouncement of the decision during which he died while simultaneously a scandal in Singapore Nick lesson of barring company was decided within 2 years. This clearly depicts the delayed justice system prevalence in India not today but for the past many years which affects and reveal how the delay in the justice providing system works in the favour of the judicial system and criminals.

Justice delayed is justice denied, is said to be true with various examples proving this statement absolutely right and this harsh reality of Indian judiciary system can not be denied but only can be bridle by introducing special laws and policies in favour of common man to get just, a speedy and inexpensive decision by the court which should subsequently result in providing impartial justice.

In our criminal justice system, we have 85% of justice seekers belonging to the poor and underprivileged classes out of the 130 crore population. Those who can afford the best lawyer and legal assistance get their dispute resolved and the other 85% population still has to look for someone who would guide them through the process of law and filing cases. Therefore, the bulk of miscarriages of justice result.

Right To Personal Liberty

The Liberty of citizens has to be ensured in the whole part of the country including union territories and small villages where the existence of law and justice is still missing.

It becomes the responsibility of police and government to act responsibly and duty to protect the rights of people from getting infringed.

The spirit of law lies in the Supreme Court of India which also acts as a guardian of the constitution. An individual can reach out to Supreme Court if any fundamental rights are being violated because enforcement of these rights becomes the duty of police, government and judiciary altogether which are deeply enshrined in our constitution.

The concept of the right to constitutional remedy (article 32 – for supreme court and 226 – for high court)[18] stands responsible with supreme court to act in their true sense of honesty and exercise the significant power of judicial review [article 372(1)][19] through writs or orders for enforcement of fundamental rights if it thinks within the ambit of law and towards providing justice to the common person.

Article 32 is the heart and soul of the Indian constitution because it guarantees the rights of citizens remain in power and vests in them. If any violation of rights happens, then the common person has the golden remedy to raise his voice to the Supreme Court or high court through the writs mentioned in article 32 of the constitution, namely:

  1. habeas corpus
  2. mandamus
  3. quo-warranto
  4. certiorari
  5. writ of prohibition

Today, the law has advanced to an innovative and progressive stage where all the citizens, irrespective of race, religion, caste, creed and sex have access and right to approach the courts at times they feel their rights are in danger or at the extent of being violated, for proper enforcement of rights.

To advance human rights and equality, the concept of public interest litigation (article 39A)[20] has been introduced which is enshrined to help people raise their concerns through broad public opinion and welfare. Backward caste and societies have been advanced and provided prompt social justice after the term public interest litigation has been added in our constitution.

Earlier, before the 1980s only aggrieved has the right to approach the law or courts to ask for justice[21]. Nowadays, anyone can raise his voice against any kind of injustice witnessed in society by taking aid of public interest litigation giving to them to do such act lawfully, but previously this was not the case.

Earlier people use to fear in informing and sharing their harsh incidents which are pure proof of violation of human rights because they fear powerful people’s approach, worried about their family future, and didn’t want to indulge in court matters as it is time taken, costly and can be dangerous at times. This is the harsh reality of society still persists in our society even though laws are amended and introduced in the favor of common people.

This pushes the Indian judiciary to a challenging state where people do not fear to report their cases to police or to magistrates which can be only provided by safeguarding the rights and giving them assurance of security and winning people’s trust after all these small steps will eventually head towards a better structured judicial system.

Conclusion

Liberty which is enshrined in our constitution has to be exercised, applied and given to the public. Liberty makes our democracy strong. Although not clearly written in the Indian Constitution but Article 21 of the Indian Constitution includes, Right to life and personal liberty along with the right to privacy. Thus, under this concept of the right to life and the right to personal liberty, the right to privacy is also hidden and plays an indispensable role in an individual’s life.


[1] Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedures established by law.

[2] Magna Carta Meaning, Available Here

[3] Article 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights. These are Right to equality, including equality before the law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment.

[4] Indian Penal Code

[5] Sumant Batra, Of the people, for the people and by the people’, Available Here

[6] Article 226 in The Constitution Of India 1949

[7] Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[8] The right to privacy is also recognized as a basic human rights under Article 12 of the Universal Declaration of Human Rights Act, 1948, which state as follows: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation.

[9] Ajmal Kasab trial – Timeline, The Hindu, Available Here

[10] State of U.P v. Krishna Gopal & Anr, 1988 AIR 2154

[11] Preventive Detention Act, 1950

[12] http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf

[13] Writ of Habeas Corpus: History, Scope, and Landmark Judgements

[14] http://www.barcouncilofindia.org/about/legends-of-the-bar/nani-palikhivala/

[15] https://lawcommissionofindia.nic.in/reports/Report268.pdf

[16] Access to Legal Justice, Available Here

[17] Scam 1992 Explained: How Harshad Mehta, brokers and banks gamed the system, Available Here

[18] To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated.

[19] Article 372(1) in The Constitution Of India 1949

[20] Article 39A Constitution of India

[21] Before the 1980s, only the aggrieved party could approach the courts for justice. After the emergency era, the high court reached out to the people and devised a means for any person of the public (or NGO) approaching the court to seek legal remedy in cases where the public interest is at stake.


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