[This is a post by Sana Afraz and Malobika Sen]
Introduction: What were the intentions of the Founding Fathers?
Let us remember what the Constitution makers envisioned for this nation and the liberty of its people, before we are accused of mirroring our own virtues as the Constitution’s burden. Not only is ‘liberty’ lawfully sacrosanct, it emanates from the core on which the Constitution was built, the preamble. From the perception that ultimate sovereignty rests with the people of India, ergo, power is derived from the people. Dr. Ambedkar professed this public-supremacy in his concluding speech in the Constituent Assembly: “Political democracy cannot last unless it lies at the base of its social democracy. What does social democracy mean? It means a way of life which recognizes Liberty, equality, and fraternity…”
Democracy is dynamized with certain minimal and intrinsic rights, a requisite for a free and civilized existence: Liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote fraternity. It is the proverbial truth that without liberty, there cannot exist a democracy.
Liberty as we know it
The knight in shining armor of this proverbial truth is Article 19, which guarantees to the citizens of India, six paramount rights. While Liberty is also covered under Articles 20, 21, and 22, Article 19 is distinctive, as it speaks of ‘basic liberty‘ as opposed to ‘personal liberty.’
The six rights under Article 19, briefly understood are: (1) Freedom of speech and expression: (Article 19(1)(a)), is indispensable and allows for open channels of free discourse; (2) Right to assemble (Article 19(1)(b))peaceably and without arms; (3) Right to form associations or unions: Article 19(1)(c) The need for collective strength and such freedom is upheld under this right. (4) Liberty to move freely (Article 19(1)(d)) and (5) reside and settle in any part of India ( Article 19(1)(e)) These rights illustrate the notion that India is one indivisible unit, territorially (and metaphorically). (6) Liberty to practice any profession or carry on occupation: (Article 19(1)(g)) and an individual cannot be forced to accept a livelihood.
How is Liberty statutorily restricted?
While Liberty is inviolable, the freedoms guaranteed by Art. 19(1), are not absolute, as no right can be. As was observed in 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.”
Thus, the rights under Article 19 may be regulated by laws made by Parliament or State Legislatures (Clauses (2) to (6) of Article 19), as ‘reasonable’ restrictions. So far as (i) the freedom of speech is concerned, the right can be enjoyed subject to the interests of’ ‘security of State, friendly relations with foreign states, public order, decency, morality, sovereignty and integrity, or concerning contempt of Court, defamation or incitement to offense.’ (ii)The right to assemble, may be restricted in the interest of public order, sovereignty and integrity of India; (iii) right to form associations or unions, impose the same limitations along with an additional ground of morality; (iv) right to move freely and (v) the right to reside and settle in any part, is also limited to reasonable restrictions in the interests of the general public or Scheduled Tribe; (vi) right to practice a profession or run a business may be restricted in the interest of the general public. The State may also make laws regarding necessary qualifications or to create a monopoly in its favor.
However the right is paramount and restrictions are auxiliary and the burden is on the authority to justify the restrictions.
While the restrictions are legally sound, how then, do we judge their ‘reasonability’?
Since society was created and the chaos that followed, there is a pursuit to bind an individual under the realm of civilization. No one exists in society with the (arrogant) expectation of living in complete freedom, and minimum restrictions become imperative for harmony to prevail and anarchy to desist. Judicial precedents establish that there is no mathematical paradigm to determine these restrictions. However, there exists a general understanding. While analyzing a restrictive legislation, reasonability and proportionality come into play. These help analyze the legislation in two ways, whether ‘directly’ as infringing fundamental rights or whether they are ‘proportional’ to constitutional limitations.
Over time, the courts have taken care not to be misguided by the apparent ‘intention’ of legislation but surgically manoeuvre through elements of public interest, rights and remedy. In effect, the burden is on the State to prove there is no proximate nexus to the infringement of Fundamental Rights. Another yardstick is to see whether the legislation passes the test of public interest, such that whether or not it upholds the Directive Principles of State Policies. The courts are to prudently evaluate the effect of the legislation, however ‘noble’ its intention.
Constitution as the Supreme law
The Constitution is the supreme law of the land and permeates each institution in the country. This unassailable supremacy is enunciated in Minerva Mills v Union of India, as, “People of the country, the organs of the government, legislature, executive and judiciary are all bound by the Constitution, which is the paramount law of the land, and nobody is above or beyond the Constitution.” Separation of power was established, while denominating the Constitution as the only sovereign, beyond all else.
The courts have carried the weight of this supremacy with great diligence. In India, overpopulated and developing, it is a persistent concern that exercising the liberty of one may infringe the liberty of another. The Supreme Court, through its powers of judicial review, can audit whether a law surmounts its limits set by the Constitution. This constitutionally derived power enables the court to protect liberty, as in Anuradha Bhasin v Union of India, where it was held that reasonability of state actions shall be measured against the scale of proportionality.
Recently, Calcutta High Court set aside a ‘Leave India Notice’ issued by the government to a Polish student in India, involved in the anti-CAA protests, by equating the administrative action to a ‘paranoid overreaction’. Similarly, the Bombay High Court upheld the freedom of conscience of a school teacher, a non-believer and nullified his suspension for not folding his hands during school prayers. These illustrations embody that restraint of liberty may be warranted, but constitutionally powered checks on the restraint, prevent the becoming of a despotic dictatorship.
Conclusion: The need to find a balance
What we need is to prevent the tilting of the scale of checks, towards the side of social control. In the recent past, arguably, this tilt has been deepening. Whether it is the excessive use of force against anti-CAA protesters, application of the UAPA on student activists on flexible degrees of suspicion, excessive force against farmers protesting against the farm bills, hastened passing of controversial laws without proper discourse, recurring contempt petitions; without getting into the merit of these issues, what we observe is a marked rise in the shushing of the common man.
While the responsibility towards liberty is not an isolated one, the courts are duty-bound to register their intervention when such liberty is in peril. Consider the Covid-19 situation and imposition of a ‘lock-down’ in light of migrant workers and traders. While the argument isn’t to say that the State cannot put such a restriction at the eve of a pandemic, it is towards questioning a means-ends relationship between the measures and the goal it sets out to achieve. Recall that Covid-19 spreads through close proximity and public health guidelines require ‘social distancing’. An observation of a rapid, all-pervasive ban on individual movement – a restriction on the freedom of movement and trade, which has varying degrees of effects on differently placed citizens, also soliciting selective ostracization and excessive force, would be arguably, disproportionate.
It is easy to overlook technical niceties in the face of a crisis when our own head isn’t in the lion’s mouth, but isn’t that where the courts step in?
Notably, the guidelines under the National Disaster Management Act, 2005, or the Epidemic Diseases Act, 1867, themselves largely impose a ban on gatherings and not individual movement. These restrictions can be traced to Article 19(5) and 19(6) under the concern of ‘general public interest’. However, we need the courts to prevent disproportionate restriction in the pursuit of ‘general public interest’ at the cost of that very public.
While liberty cannot be unrestricted, we cannot undermine the sanctuary of balance.