Mutilated Liberty and the Constitution Author(s): Nirmalendu Bikash Rakshit Source: Economic and Political Weekly, Vol

. 38, No. 16 (Apr. 19-25, 2003), pp. 1548-1550 Published by: Economic and Political Weekly Stable URL: Accessed: 18/03/2009 23:30
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were out of their classes in protest, soon to be joined by others - their teachers, coevais from other institutions and past students, the last demonstrating the nostalgia that an endangered alma mater can evoke. There were others too, those with concern for the city, its heritage and for its much-misused Marina. All these reactions were spontaneous, not fanned by politicians or professional agitators. These also came in of course and added to the tension and the drama. There were reports of ‘masquerades’, of the politically motivated trying to pass off as police and students and rumours of dire threats to student leaders. The closure of the college was ordered and naturally legal redress was sought. The chiefjustice was sharply critical of the government’s handling of the situation. He ordered the opening of the college and stayed demolition until the final verdict.-And there the matter rests, for the time being. But the incident did generate some side-shows, the arrests of DMK tnen, including M K Stalin, on the charge of inciting the students. An intriguing question why is 1 so keen on the QMC site? 1t is not tnnt there is so severe a shonage of space in Chennai that 21 functioning heritage building has to be demolished to make way for a new secretariat complex assuming that this has high priority when the state‘s coffers are so depleted as to occasion econcmy measures impinging on employment and emoluments in the government sector. Naturally, the talk is that the dccision is in accordance with ‘vaasthu' dictates - the same that led to the removal of the Kannagi statue (see ‘Tamil Nadu: Travails of a Statue’, EPW, February 2, 2002). And it is said that the propitious time had also been set, and hence the unseemly haste. The timing of some other operations also seems to be set in accordance with astrological prescriptions. Itwas reported that in the matter of a midnight arrest, the police waited for quite some time outside the home of their quarry for the ‘auspicious’ hour! Meanwhile, some of the opposition led by Karunanidhi seem to consider the time suitable for more serious action, demanding the use of Article 356. Summer is advancing and the temperature will rise all round, it seems. [1111

Mutilated Liberty and the Constitution
Without liberty there cannot be democracy and Article 19 of the Indian Constitution guarantees that right to all citizens. In order that the state can regulate the individual ’s freedom in the greater interest of society a number of restrictions have been placed on these rights. However the restrictions have become so numerozis today that the balance has tilted towards social control rather than liberty.
NIRMALENDU BIKASH RAKSHIT rticle 19 ofthe Indian Constitution Ahas guaranteed the right to liberty to all citizens. It is closely related to the preamble which intends to create a ‘sovereign democratic republic‘ and it is axiomatic that without liberty there cannot be democracy. In that sense, Article 19 is a very important Anicle of the C0nstituti0n.1 Although it has been given second place in the list of our fundamental rights, it is not secondary in imp0rtance.2 It is rather the basic right which was felt to be essen~ tial for the establishment of the free Inclia. Of course, right to liberty is covered by Articles 19, 20, 21 and 22 and embraces the classical liberties of the individual.3 The makers realised mm without such right, no man can, in fact, seek to be at his best. As S L Sikri observed, “Taken together, these four Articles form a charter of liberties which provide the backbone 0f the chapter on fundamental rights.‘ But Article 19 is the crown and it can be easily separated from Articles 20, 2l and 22 in the sense that while they deal with ‘personal liberty’, Article 19 speaks of the basic ‘liberty’. It is, thus, the single provision which has eagerly been inserted to protect the ‘liberty’ of the individual. In this way, Article 19 forms the core of our freed0m.5 But, as a matter of fact, liberty has many aspects and Article 19 singularly covers all of them. As 21 stark reality, it deals with six basic freedoms.‘/’ It, in its original form, stated that all citizens shall have the right: (21) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations and unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of India; (F) to acquire, hold or dispose of property (omitted by the 44th Amendment in 1978); and (g) to practise any profession or to curry on any occupation, trade or business»

These six aspects of liberty need to be discussed in short. (1) F remlom nfspecch and It is obviously a right of paramount importance, because it gives the individual the invaluable and inalienable right of free» dom ofthought andexpression. Very righlly M V Pylee observes, “it is impossible to exaggerate the importance of this freedom in any democratic society. Indeed. the very test of :1 democratic society is the extent to which these freedoms are enjoyed by the citizens."7 In ademocracy,thcindividual must have the precious right to hold a view and to express it publicly. As B C Routg observes, “The freedom of speech and expression is :1 freedom which is absolutely necessary in 21 democracy”. S0, under Article 1 ), an individual can formulate his view and can also express it by his speeches and writings. Significantly, the freedom of press has not been separately mentioned in the Constitution. Though J L Nehru and Jai Prul<ash Narayan loudly claimed that this freedom should be expressly stated‘) they could not prevail upon the constituent assembly. S0, B R Ambedkar, the chief architect ofthc Constitution, was seriously criticised in the constituent assembly for this omission. But he rightly claimed that the free~ dom of press was implicit in the freedom of speech and expression. To quote him, “the press has no Special right which are not to be given or which are not to be exercised by the citizen in the individual capacity. The editor of 21 press or the manager are all citizens and, therefore, when they chose to write in the newspapers, they are merely exercising their right of expression and, in my judgment, therefore, no special mention is necessary of the freedom of the press at His assertion was subsequently accepted by the Supreme Court in the case of Ramesh Thappar vs Madras (1950).

1548 ' Economic and Political Weekly April l9, 2003

This is why, Sikri observes,“ “The
freedom of expression includes the freedom ofpress. Taking the same view, Pylee has remarked that “the word expression that is used in Article 19(1)(a) in addition to speech is comprehensive to Cover the freedom of press.”l3 (2) Right to assemble: The imponant thing as guaranteed by Article l9(1)(b) is the right to assemble and to hold meetings. The primary objective of this provision is that no undue interference should be made in public meetings or demonstrations. (3) Rig/22 to form associations or unions: Thirdly. Article l9(l)(c) guarantees to the individual the inalienable right to form associations or unionsi It is a cardinal fact that, more often than not, an individual cannot duly fight even for a right cause by his isolated effort — he needs collective strength to achieve his purpose. For this rcason. the Constitution has guaranteéd this essential right to the (:itizen. (4) Liberty to move freely throughout the of India." It is surely a great protection against provincialism or localism which may develop if such freedom is not granted.” This right, in other words. reminds us that though the federal country has been divided into several administrative units, it is territorially one and indivisible. (5) to reside and settle in any part oflndia: This is a right which is closely related to the right to move throughout the tfirritory of India. In the case of Gopalan vs Madras (1950), the Supreme Coun held. “The whole of India, in spite of being divided into a number of states, is really one unit”. S0, a person can, at his will, reside and settle in any part of the state his language. caste, religion or place of birth cannot be a bar to it. (6) Liberty to practise any profession or I0 carry on any occupation: 19(1)(O gives the individual the right to choose his occupation or profession and, thus, he cannot be forced to accept a livelihood against his own desire.

Legal Limitations
But. such right can, by no means, be absolute and unrestricted. As the Supreme Court held in the case of Gopalan vs State of Madras (1950), "There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder“. This is why, the Constitution itself has imposed some limitations upon such freedom. A C Kapurm has rightly observed, “Article 19 may be divided imo two parts. The first is the declaration of right, the Economic and Political Weekly April second part confirms limitations”. Thus, while clause (1) of Article 19 guarantees some rights, clause (2) of it mentions the necessary limitations. So far as the freedom of speech is concerned, there are several limitations. This right must be enjoyed subject to public order, morality, security of the state, integrity and sovereignty of the republic, decency, etc. As H H Das15 points out, “the original provision of the Constitution regarding the freedom of speech was excep~ tionally wide”. But, by two amendments of the Constitution, some new limitations have been added to the original list and, thus, the scope of this freedom has been gradually limited. For example, originally, the limitation to the freedom ofspeech was confined to libel, slander. ddamation, contempt of court or any matter which offended against decency or morality or which undermined of the security of the state. But in order to surmount the adverse opinion of the Supreme Court pronounced in the case of Ramesh Thappar vs State of Madras and Brij Bhusan vs Delhi, the first amendment ofthe Constitution (1950) imposed a further restriction. Terms like ‘public Order’ and ‘friendly relation with foreign states’ were added to clause (2) of Article 19.16 Then, in 1961, the 16th amendment of the Constitution added another restriction to freedom of speech ‘the sovereignty and integrity of India’. Thus, the freedom of speech in India is not absolute, but constitutionally limited. The right to assemble granted under Article l9(l) (b) is similarly restricted, because such assembly must be peaceable and unarmed. So, this right can also be legally limited (Mishra vs Bihar 1970) in the interest of public order. Moreover, the right to take out processions is also subject to regulations forcontrollingtraffic (Himat Lal vs Police Commissioner 1973). Such meetings cannot, moreover, be held on private property orin government property even when the public servants seek to hold it (Railway Board vs Niranjan, 1969). Thirdly, citizens have the right to form unions or associations. But as D D Basu points out, the objects or purposes of an association is an important point in this matter.” The state can interfere with such right in the greater interests of public order or morality (All-India Bank Employees’ Association vs N I Tribunal, 1962). Moreover, this right does not confer a right to ‘strike’ (Kameswar vs Bihar, 1962). Fourthly, 19(l)(d) guarantees the freedom of movement throughout the territory of India. But restriction may be imposed on this right in the use of public highways (Saghir Ahmed vs UP, 1955). Moreover,

19, 2003 a watch by the police over the movements of a suspect is not a violation of this right (Kharak Singh vs UP, 1963). Besides, for public order, a person may be temporarily prohibited to enter a particular area (Kh are vs Delhi, 1950). Fifthly, a citizen can, under Article 19(1)(e), settle or reside in any place of India, but it is to be enjoyed with certain conditions. Restriction imposed on titutes to carry on their trade within a specified area and to reside in or move from particular area have been held to be valid (Kausalya vs UP, 1964). Moreover, restriction of residence be imposed on habitual offenders are also permissible (Arumaghan vs Madras, 1953). Above all, some restrictions may be imposed on this right in the interest ofthe scheduled castes and tribes. Lastly, though Anicle 19(l)(‘g) guaran~ tees to the individual the right to accept a profession or run a business of his own choice, the right is limited. The apex court held that crime was not a ‘business’ and, hence there was no right to carry on trade in adulterated foodstuffs (Karan Singh vs UP, 1964), nor can 21 citizen enjoy :1 right to deal with smuggled goods (Buta Singh vs Punjab, 1961) or intoxicants (Cooverjee vs Excise Commissioner, 1954). Moreover, as G S Pandey writes, for practising any profession or carrying on of any business, trade Or Occupation, the law may prescribe certain qualifications.“ Above all, the state can create monopoly in favour of itself and restrict the flow of private investment in that field (for example, railways or postal services) in the interest of the public (Narayanappa vs Mysore. 1967). So, a law can provide the exclusion from a service of all citizens or some of them. It may also run business in te entire state or in a specified part thereof (Satyanarayanmurthy vs APSRTC, 1961). Reasonable Restrictions In order that the state can regulate the individual's freedom in the greater interests of the society. The Constitution has permitted it to impose ‘reasonable’ restrictions upon individual freedom. As the Supreme Court opined, “For the Constitution, therefore, what the state attempts to do in declaring the rights is to strike a balance between individual liberty and social security”. S0, the restrictions must be ‘reasonable’ and the test of reasonableness is to be taken by the Supreme Court (Quareshi vs Bihar, 1959). As D D Basulg points out, “It is by way of interpretation of the word reasonable, that the courts come into the field". The Supreme Coun

also held in the case of Chintamoni Rao vs MP, 1952 that a restriction would be regarded as reasonable when there is a proper balance between the rights of the individual and the claims of the society. Th6 court further in lhiS case that the restriction must not be greater than the mischief to prevénted. Thus, whether or not the restrictions are reasonable is to be‘. determined by the judiciary. Thus, in the opinion of the apex court, “Limitations which arbitrarily or excessively invade the right cannot he said to contain the quality of reasonablcnes.\:”. In Gop-alun’s case the court also held that “if a law ensures and protects the greater social interests, then such 11 law will be WhO16SOlTl€ and cficial law, although it may infringe the liberty of Some individL1zds". Thus. it may be held than the apex court is the ‘sole judge’ to decide whether a restriction imposed upon such right is actually reasonable or n0t'.30 Similarly, W H Morris-Jones observes, the phrase ‘reasonal restrictions‘ left room for the courts. The rulers may impose restrictions, but whether or not they are permissible is it matter to be decided by the judges. But, a brief study of events leads us to believe that the introduction of the word ‘reasonable’ has not been an unmixed blessing, because sometimes restrictions have been so introduced that thejudiciary has been compelled to look askance at such mcasures.3l A Critique Critics have, however. found out several loopholes in the whole arrang€ment. Their objections may be summed up in the following way. First, the number of restrictions are so many that they have practically taken away lhC core of the right no liberty. It is often asked whether it is the rights, or the restrictions. which are ‘fundamental’. Secondly, two amendments have materially affected the freedom of speech and expression. The Constitution had, originally, mentioned some limitations. but the list was further enlarged in this way. As Sachdev-Kedizi point out, “these limita~ tions eat the substance of the right to frecdom"f~ Thirdly. it is really a moot question whether the rights can be so curtailed by such amendment. It is held that the Constitution is the Supreme Law ofthe nation, and so the temporary will ofthc parliament cannot abridge or take away the right guaranteed by the architects of the Constitution. In fact, B RAmbedkar, Jawaharlal Nehru, S Radhakrishnan and others

promised in the constituent assembly that the fundamental rights would be invi0iable.33 But the right to liberty has been twice amended in order to curtail its true spirit. Iflhe process proceeds, it may deter the enjoyment of this vital right to such an extent as to make its exercise entirely incffective.24 It is really unjust to curtail such right except for grave necessity. As Justice V R Krishna Iyer observes: “The interest of society in free speech is that it is the means of interchanging of ideas for bringing about political and social change desired by the people".25 Fourthly, during emergency, the president can, under Article 358, suspend the right to liberty guaranteed under Article 19. In such time, this right remains practically non-existent. Fifthly, though Article 19 gives various types of liberty to the individual. he may under Article be arrested or detained by Preventive Detention Act on mere suspicion. This is a peculiar provisionwhichmayseriouslydamagethefabric of the democratic rights. Even the Supreme Court regarded it as a ‘sinisterlooking feature’ in Gopalan‘s case. It is really a ‘dangerous weapon’ which might be used for political victimisation.25 Lastly, in case the right to liberty is violated, the aggrieved person can, legally, move the superior courts, under Articles 32 and 226, for a judicial redress. But financial problem often acts as the actual bar and‘ hence, poor people have to bear with injustice meted out to them. Conclusion It is true that no right can be totally immutable. In fact, the interests of the individual and the society may sometimes differ. The makers of the Constitution realised that unrestricted power in favour of the individual may cause problem for the society.” For this reason, rights have been legally limited. But, in fact, the restrictions have been too many. This is why, the scale has been inevitably tilted on the side of social control.” K C Wheare has rightly observed that the Constitution is the resultant of a par~ allelogram of forces which operate at the time of its adoption. So, with the change of time, some aspects of it need to be changcd.29 Naturally, the rights guaranteed by the Constitution in 1949 must be modified in order to cope with the realities of the dynamic society. But some values are immutable

and unique. Liberty is, surely, One such magnificent preserves. It is, as Laski believes, something which helps men to be their best se1ves.3O But, according to him, liberty requires some safeguards and, surely, democratic systems is ons of them. As he writes, “Wilhout democracy, there cannot be liberty.“ But, in spits of lofty declarations, Our Constitution has failed to establish either trus democracv or real liberty. D C Gupta” that thé framers of the Constitution realised that ‘unrestrained freedom was the negation of liberty’. But it is also :1 cardinal truth that too much restraint on liberty also means a tacit denial of it. [HI]

Economic and Political Weekly April 19, 2003

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