This article is written by Ambrish Maurya student of IIMT law school, IP University, Delhi.
Table of Contents
Liberty is to live one’s life according to one’s own will, without being restricted by any supreme authority. The right to individual liberty is one of the basic principles of natural law. Liberty should not be mistaken with democracy, and these two are separate domains that occasionally overlap.
There is a constant tussle in every society between the state and the public about the degree of liberty the public should have a right to. What should be the appropriate amount which satisfies the needs of the individual without hindering the interests of the state?
John Locke’s principles
Born in 1632, John Locke is considered one of the most prominent philosophers. His work about the rights of an individual, theories about social contract acted as the catalyst of numerous revolutions in the coming centuries.
“Natural rights such as life, liberty, and property existed in such a nature could never be taken away or even voluntarily given by individuals; these rights are ‘inalienable’.”1
Locke, through the argument of natural law, tried to challenge the status quo of the English society, which was of the nature that favored the absolute power of sovereign over individual liberty2.
Locke redefined the concept of ‘social contract’ which in simplified words meant that a community of people came together and surrendered their right to an authority for the protection of their life and property when they failed to protect themselves. These authorities later developed into the institution of state and monarchy.
Locke argued that people didn’t surrender all of their rights but only parts of their rights. Natural rights such as the right of life, liberty and property still remained with individuals. He emphasized that if a state fails to fulfill its purpose, it should be overthrown.
Locke being a staunch individualist, even claimed that the individual is sovereign, not the state.
He states that individuals are a source of power for the king, and he can only practice these powers in administering and protecting the public.
Two concepts of liberty
English philosopher Isaiah Berlin breaks the concept of liberty into two headings, namely “negative” and “positive”. This classification was made on the basis of whether the restriction was internal or external. Positive liberty means the restrictions individual put on himself, while the negative liberty means restriction by external forces3. Under Positive liberty general will of the community is given preference, Rousseau labeled general will Volonte generale. Some critics worry that general will could lead to a majoritarian state and lead to the oppression of minorities.
While negative liberty is referred to as a situation where although you are restricted, but you are contending with it, you do not have the desire to break free and pursue your belief. It’s like being locked in a room but contending with it, not wanting to go out but rather enjoying your stay.
Inspired by the work of Locke, the American revolutionaries led the American war of independence against Great Britain, which led to the freedom of 13 American colonies and the establishment of the United States of America.
The founding father of the USA mentioned in the preamble of declaration of independence that “all men are created equal” and included the provision of “LIFE, LIBERTY, and PURSUIT OF HAPPINESS,” altering the principle given by Locke of ‘life, liberty, and property.’
U.S. Bill of rights, through the amendments in the constitution, limited the power of government and provided civil and personal liberties. First amendments provide some civil liberty as freedom of speech, press, and personal liberty to practice the religion of one’s choosing. The second amendment is somewhat controversial in the present context. It gives the right to citizens to bear arms for their protection against the state in case the state tries to infringe on their liberty.
Fourth and Fifth amendment provides that no property of a citizen will be seized without the proper procedure of law, and no person can be compelled to self discriminate, or no one should be punished for the same offence twice (double jeopardy), respectively.
The ninth amendment states that the rights mentioned in the constitution are not exhaustive; the list can be increased as per the requirement of society.
The French revolutionaries in 1789 drafted the “The declaration of Right of man and citizen” and gave rights to “liberty, property, security, and resistance to oppression” as inalienable rights to each citizen. These were later incorporated in the French constitution.
It is to be noted that both the French and American constitution contained provision related liberty and equality, but neither abolished the practice of slavery. It remained in practice in a few states of America up until the American civil war. The French constitution which was drafted in 1792 under Robespieree abolished the slavery but it was not a permanent move, it was legitimatized again in the year 1795 by French directory.
After their surrender in World war II, the allied force came into the occupation of Japan, and under their guidance, the Japanese constitution, with a strong set of Bill of Rights, was introduced. Article 13 of the Japanese constitution inspired by its American Counterpart states that every citizen has the right to “Life, Liberty, and pursuit of happiness.” Chapter III of the Japanese constitution contains provisions regarding civil liberties such as freedom of speech, freedom to assemble, freedom to seek redressal against any authority. It also incorporated personal liberty to follow their religion, and not to self incriminate, etc.
Liberty in Indian Context
The concept of liberty was enshrined in the Indian constitution since its inception. It is part of the basic structure of the Indian constitution. The Indian preamble seeks out to fulfill the following objective, JUSTICE, LIBERTY, EQUALITY, FRATERNITY.
Articles 19 to 22 of the Indian constitution provides personal and civil liberty as a fundamental right to citizens.
Article 19 of the Indian constitution provides six fundamental freedoms to its citizens, and these liberties are not available foreign citizens. Freedom guaranteed under Article-19:
- Freedom of speech and Expression.
- Freedom of Assembly.
- Freedom to form Association or Union or Co-O\operative Societies
- Freedom of movement
- Freedom to reside and to settle
- Freedom of profession, occupation, trade, or business.
Liberties provided under Article 19 are not absolute freedom; they are subject to ‘reasonable restriction.’ The restriction cannot be based on arbitrary reason, and it has to be imposed by law5.
The restriction should be derived from due reasoning.
Article-20 It protects in respect of conviction of an offence, and this article contains three clauses. Clause (1) says that in a criminal trial, the person can only be convicted according to laws which were in function during when the crime was committed. A law made after the crime committed can not be applied retrospectively.
Clause (2) no individual can be punished for the same crime twice (double jeopardy)
Clause (3) no one should be compelled to give self-incriminating evidence in court.
Article-21: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. The procedure should be just, fair, and reasonable.
In the current scenario, there have been several waves of attempts made to curb civil and personal liberties worldwide. The public is not allowed to voice their concern effectively. It can be seen in the yellow vest protest of Paris, Hong Kong protest, or the Indian protest against CAA. Liberty concerns itself with the freedom of society to express itself, not with the content they express. Hence the general will of the people is searching a ground to stand itself.
- Locke,John. Two treatises of Government (1690)
- Dr. N.V. Paranjape, Jurisprudence and Legal Theory pp 109 (2012)
- Carter, Ian. “Liberty.” Political Concepts, edited by Richard Bellamy and Andrew Mason, Manchester University Press, Manchester; New York, 2003, pp. 4–15
- Cl.(f) was omitted by the constitution (44th Amendment) Act ,1978
- J.N. pandey ,Constitution law of India,pp209 (2019)