Liberty in the context of the Indian Constitution

Introduction

Liberty is both an idea in political theory and a guaranteed right in the Indian Constitution. The question asks how the theoretical concept is carried over into constitutional practice.

Meaning of liberty

In its simplest sense freedom is the absence of external constraints: a person is free when not subject to coercion and able to make independent decisions. Constraints come from more than one direction. Social hierarchy is one: a caste order that decides whom a person may eat with or which trade she may follow restricts her as surely as a law. Deep economic inequality is another, since a family that cannot pay for a daughter's college is not free to send her there. And there is the oldest source, force and domination, including laws through which rulers impose their will on the ruled and back it with coercion; a regime that forbids a people to print newspapers in their own language is the plainest case. But freedom is not only the removal of obstacles. It also has a positive side: enlarging people's capacity to express themselves and to develop what they are capable of. Since nobody who lives among others can be free of every restriction, the question that matters is not whether there are constraints but which of them can be justified and which should go.

Mill's harm principle and reasonable restrictions

J. S. Mill's answer to the question which constraints are justified? is the harm principle: power may rightly be used against any member of a civilised society, and against that person's will, solely to stop harm to other people. Two filters follow from it. The first is seriousness: freedom matters so much to a dignified life that only serious harm justifies the force of law, while lesser nuisances should be met by the disapproval of those affected. A colleague who keeps taking loud phone calls in a shared office deserves the cold shoulder from the people around him, not a complaint to the police. The second filter rests on Mill's distinction between conduct that concerns only the actor, which he calls self-regarding and which the state has no business to touch, and other-regarding conduct, which may affect and harm others and so may be restrained. In Indian constitutional language the justified constraints are reasonable restrictions: a restriction must stay in proportion to the act it targets, go no further than needed, and rest on reasons that can be defended in the open.

Liberty and the Indian Constitution

Liberty is central to the Indian constitutional order. The ideals of freedom and equality debated by political thinkers find their place in the Constitution: the Preamble enshrines freedom and equality, and the chapter on rights abolishes untouchability in any form. Rights recognised in the Constitution are called Fundamental Rights; the Constitution is the highest law of the land, so other laws and policies are meant to respect them. Among them, freedom of expression is guaranteed to citizens, and the right to protest is an aspect of it, so long as protest does not harm the life or property of others or of the State; each individual may profess the religion of his or her choice, and religious minorities may maintain their own culture and educational institutions. The freedoms are not unlimited: in Indian constitutional discussion the justified constraints are called reasonable restrictions, which must be defensible by argument and kept in proportion to what they guard against. Even then, citizens must watch restrictions imposed for national security, and arrested persons are to have legal counsel and a hearing before a magistrate or court.

Two developments show that the constitutional idea of liberty has both a negative and a positive side. First, the courts have read the right to life as including the right to livelihood; the Supreme Court has held that Article 21's right to life includes the right to livelihood (Olga Tellis, 1985). On that reading the liberty that matters to a rickshaw-puller in Lucknow is not only freedom from interference but also the means to earn his living. Fundamental rights are thus reinterpreted as circumstances change, and some new rights, such as the right to information, have come through ordinary law. Secondly, the idea of freedom in the national movement was always wider than the end of foreign rule: swaraj meant both rule of the self and rule over the self, and Subhas Chandra Bose spoke of freedom that included equal distribution of wealth and the abolition of caste barriers and communalism. The Constitution therefore combines protections against the state (the negative side) with Directive Principles that ask the state to create enabling conditions, for example Article 46, which directs the State to take particular care to advance the education and economic interests of the weaker sections, the Scheduled Castes and Scheduled Tribes above all.

Negative and positive liberty

Negative liberty is freedom from: it marks out a protected zone, the minimum area of non-interference, which no outside authority may enter and within which a person shapes her own life and character as she chooses; the case for such a zone is that a dignified human life is impossible without some space free of other people's obstruction. It answers the question over what area am I the master?. Its tradition (Hobbes, Locke, Bentham and Mill are the usual names) wants the area as large as is compatible with the stability of society: Hobbes located freedom where the law is silent, Locke held that law rightly confined to protecting each person from others enlarges liberty, and the English line from Bentham and the Mills took each person to be the best judge of his own interest.

Positive liberty is freedom to: it answers the question who governs me? with I govern myself. It looks at the social conditions a person needs in order to grow, in the way a young cricketer needs a pitch, a coach and time to practise and not merely the absence of a ban on playing. Those conditions are access to education, enough material means to be free of poverty and unemployment, and a voice in the making of the laws. Its tradition runs from Rousseau, Hegel and Marx to Gandhi and Aurobindo. The difference in outlook is basic: the negative view guards a boundary and asks nothing more of society, while the positive view holds that freedom is achieved within society, not outside it, and so asks that society be arranged to enable it.

Relation. The two generally go together and support each other, but they can come apart: tyrants have justified their rule by invoking arguments of positive liberty.

Freedom of expression as a test case

The commitment to liberty is often tested in disputes about expression. Suppose a group demands that a new novel about a Kerala fishing village be withdrawn because, it says, the book shows the community in a poor light. Withdrawing it would end the protest quickly, but NCERT warns that bans of this kind, easy in the short run, damage freedom in the long run, because each ban makes the next one easier and a society slips into the habit. J. S. Mill's four reasons for freedom of expression, including the point that ideas which look false may contain some truth, give the standard answer. Such cases show why restrictions must be reasonable and not just popular.

Conclusion

The Indian Constitution treats liberty as a protected area (the Fundamental Rights), limited by reasonable restrictions, and as something to be built through enabling conditions. Its idea of liberty therefore has both the negative and the positive sides identified in political theory.