Freedoms: Conditional and not Absolute


Gajanan Khergamker explains the distinction between Freedom and Liberty; debates through instances their significance and makes out a case the riders that come into play when it comes to their enforcement. The bottom line: Fundamental rights are conditional and not absolute.

The concept of Freedom, as construed strictly, is understood by its presence in the Indian Constitution legally enforced in 1950 that is said to have ‘borrowed’ the most pivotal concepts from Constitutions all over the world. So, the ideas of Fundamental Rights and the Preamble were said to be elements borrowed from the United States Constitution while the concept of Liberty taken from the French Constitution.

Indian history, often traced only as far back at the nation’s Independence gives rise to a fallacy most colonial nations suffer from. All ‘theological’ systems that tackle history and modern law tend to concentrate only on British, the post colonial era and present-day systems and completely disregard ancient knowledge and ethnic learnings of the land.

For purpose of brevity, we now concentrate on the legal systems that came into being only during this period but that, in no way, undermines the body of knowledge accrued during Vedic times and particularly so, during the genesis and growth of, say, Hindu law across India. A case in point being the Mimasa, probably the earliest of the six darsanas, is fundamental to Vedanta, another of the six systems, and has deeply influenced the formulation of Hindu law.

Freedom and Liberty

While the concepts of Freedom and Liberty in Modern Day systems are used and often interchangeably too, loosely, they are distinctly different from each other. Liberty entails the responsible use of freedom under the rule of law without depriving anyone else of their freedom. Now, juxtapose that in the Indian context and you’ve got Article 21 that tackles the Right to Life and Personal Liberty. It reads: No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.

So, while the Article elucidating Liberty does not define Freedoms, it presupposes that all citizens shall enjoy Freedoms, including the Right to Life accompanied with the Freedom to all that’s necessary to sustain one’s Life. And that the Freedoms in themselves are not unbridled. And that all Freedoms are subject to conditions inbuilt: Starting with the Right to Life which also is conditional to procedures established by law. This, in effect, means that all are free to life and enjoy personal liberty unless curtailed or prohibited by a procedure established by law.

For example, if a man is arrested for an offence, he could be jailed for the purpose of investigation, in accordance with a procedure established by law. The Criminal Procedure Code (CrPC) or the Bombay Police Act, as the case may be, for instance.

After a due process of law and a judicial trial, an accused may be sentenced to jail for a period of time or sentenced to death and his Right to Life and Personal Liberty deprived but only in accordance to the procedure established by law.

Only by ‘due process’

This means that any sentencing to imprisonment or death will be legal only if done by due process. Any police excess or anomaly leading to unlawful restraint or death by an illegal process will be stripped of any legal justification and concurrently call for a fresh investigation and inquiry based on the violation of Article 21 of the Indian Constitution. The Right to Life and Personal Liberty are guaranteed but aren’t absolute.

Over the years, since India got her own Constitution and her version of Liberty, on a series of occasions, litigations have been initiated in the Supreme Court particularly with regard to how Personal Liberty was quashed by authorities, mostly investigation agencies, who had failed to follow due process. In 1979, lawyer Kapila Hingorani filed a petition and secured the release of almost 40,000 undertrials from Patna’s jails in the famous ‘Hussainara Khatoon’ case. This case was then filed in the SC before a Bench led by Justice P N Bhagwati. It became India’s first Public Interest Litigation (PIL).

Freedoms essential for humans

Now, as for the Freedoms themselves, as assured by the Indian Constitution and included because they were considered essential for the development of the personality of every individual and to preserve human dignity.

Democracy was useless if civil liberties such as freedom of speech and religion were not recognised and protected by the State. It is understood that a democracy by election is a government by public opinion and that the means to formulate public opinion must, at all times, be secured to the people of the democracy. Constitutions, for this purpose, must guarantee to all, the freedom of speech and expression and various other freedoms in the form of the fundamental rights.

The concept of Freedom of Speech and Expression as guaranteed by the Freedoms Article 19 of the India Constitution in 1(a) is, as a rule, conditional and not absolute. Nothing, the Article says, shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Conditional and not absolute

‘Nothing shall affect the operation of any existing law,’ means that an existing law preventing a person or a section of the public from exercising Freedom of Speech to prevent violence cannot be challenged on grounds of Constitutionality. Also, the State may curb the Right to Speech or Expression, say a controversial drama performance, if it is defamatory, an incitement to an offence, public order or in contempt of court.

Concurrently, the Freedom to assemble peacefully without arms is conditional to State imposing reasonable restrictions in the interest of public order and the sovereignty and integrity of India. Also, with regard to the freedom to form companies or unions or co-operative societies, the State can impose reasonable restrictions in the interest of public order, morality and the sovereignty and integrity of India. Citizens have the freedom to move freely throughout India yet reasonable restrictions can be imposed on this right in the public’s interest; a case in point being the restrictions on travel within the state and across borders to control the spread of COVID-19. In such situations, restrictions on movement and travel can be imposed by the State and it would not be in violation of Article 19. Also, the Freedom to reside and settle in any part of the territory of India is subject to reasonable restrictions laid down by the State in the interest of public or for protection of the scheduled tribes of that state in question. The law permits certain safeguards that are justified to protect indigenous and tribal people from exploitation and coercion.

Freedom to practice any profession or to carry on any occupation, trade or business is conditional to the State’s reasonable restrictions in public interest through statute. For example, nobody has the right to carry on a business that is dangerous, immoral or against public order. To practice certain professions or trades, professional or technical qualifications may be prescribed too.

In Article 21A of the Indian Constitution, the State gives free education to all children of the age of six to fourteen years yet in such a manner as the State may, on its accord, by law, determine. And, Article 22 protects citizens against arrest and detention in certain cases.

Government may restrict freedoms

The government may restrict these freedoms in the interest of the independence, sovereignty and integrity of India. The restrictions may be imposed also in the interest of morality and public order.

And then, there’s the Right to Freedom of Religion and guaranteed by Articles 25, 26, 27 and 28, which maintain all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Yet, the Haj subsidy and the Reservation for SCs and STs are argued by most quarters as indicative of the State’s interference in matters of Religion.

Gajanan Khergamker

Gajanan Khergamker is an independent Editor, Solicitor and Film-maker. He is the founder of the International Think Tank DraftCraft.