Essay on Personal Liberty is the most fundamental of fundamental rights

Personal Liberty is the most fundamental of fundamental rights. Articles 19 to 22 deal with the different aspects of this basic right. Taken together, these four articles form a charter of personal liberties, which provides the backbone of the chapter on Fundamental Rights.

Of these, Article 19 is the most important and it may rightly be called the key-article embodying the “basic freedoms” under the Constitution, guaranteed to all citizens. These are the right:

(1) To freedom of speech and expression;

(2) To assemble peaceably and without arms;

(3) To form associations or unions;

(4) To move freely throughout the territory of India;

(5) To reside and settle in any part of the territory of India; and

(6) To practice any profession, or to carry on any occupation, trade or business.

It is impossible to exaggerate the importance of these freedoms in any democratic society. Indeed, the very test of a democratic society is the extent to which these freedoms are enjoyed by the citizens in general. These freedoms, as a whole, constitute the liberty of the individual, and liberty is one of the most essential ingredients of human happiness and progress.

The most important among the inalienable rights of man, according to the Declaration of American Independence, are “Life, Liberty and the Pursuit of happiness”. The Preamble of almost every Constitution declares the same in one form or another as its objectives.

The Preamble of the Constitution of the United States, for instance, declares that one of its objects is “to secure the blessings of liberty to ourselves and to our posterity”. The Preamble of the Indian Constitution too proclaims that one of its objectives is to secure Liberty “Liberty of thought, expression, belief, faith and worship”.

The Articles dealing with the Rights to Freedom embodied in the Constitution are the product of a compromise of two extremes. Having achieved political freedom only recently, the urge to exercise unfettered right to freedom was very much there.

At the same time, there was also the realisation that the State that had been brought into existence was an infant State and if the newly-won freedom was to be guaranteed by a stable political order, it depended on the continued existence of that infant State which had yet to pass through many troubles.

Therefore, the State should be preserved even if that entailed the abridgement to some extent of the rights guaranteed. The Drafting Committee, therefore, chose the golden mean of providing a proper enumeration of those rights that are considered essential for the individual and at the same time putting such checks on them as will ensure the security of the State.

They thought that the working of these rights depended on the genius of the Indian people, on how they developed their ideas of liberty which at the time of the drafting of the Constitution were in a rather undeveloped state.

As it stands now, there are eight restrictions on the freedom of speech and expression. These are in respect of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to violence.

As it was passed originally by the Constituent Assembly, the restrictions were fewer and confined only to “libel, slander, defamation, contempt of court, any matter which offends against decency or morality, or which undermines the security of, or tends to overthrow the State.”

These were modified into their present form as a result of the First Amendment of the Constitution, 1951, necessitated by the decision of the Supreme Court in Romesh Thapar vs. The State of Madras.

The Court held in this case that, unless a law restricting freedom of speech and expression were directed solely against the undermining of the security of the State or its overthrow, the law could not be held a reasonable restriction though it sought to impose a restraint for the maintenance of public order.

On the basis of this interpretation of the Supreme Court, some of the High Courts gave decisions to the effect that even incitement to individual murder or promoting disaffection among classes could not be restricted under the permissive limits set in Article 19(2). This was indeed a drawback which required rectification.

The First Amendment of the Constitution made the necessary provision to obviate this difficulty by including “public order” along with other grounds for restricting the freedom of speech and expression. The Sixteenth Amendment further added “Sovereignty and integrity of India”. Thus, the scope of restriction under the present provision is broader than what it was under the original provision.

Yet, in every case the judiciary gets a chance to test the validity of the executive action or legislative enactment against its reasonableness. In fact, the word “reasonable” is the life and soul of the entire Article. Interpreting the meaning of this word the Supreme Court said:

“The phrase ‘reasonable restriction’ connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or on an excessive nature beyond what is required in the interest of the public.

Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed and the social control permitted under Article 19 it must be held to be wanting in reasonableness”.