As it comes under attack, there is need to lay emphasis on the fundamental right
Rakesh Dwivedi | June 1, 2017
1. A worrying phenomenon has become widespread on the political horizon of our country. Extra-legal forces and vigilante groups have emerged under the wings of political parties. Most parties forming government in the centre or states are allied to groups which can be used to pulverize critics and dissenters with violence. Often the groups have casteist tones and anti-dalit objectives. These groups act with impunity and under patronage, and often under cover of police protection and local administration. Ruling parties prefer using allied forces as their government can shrug off responsibility with convenience. Dissent and diversity are at discount and under pressure. The contradiction between the right to life and personal liberty on the one hand and the state and vigilantes on the other hand is becoming heightened. It is therefore time to reemphasise the significance of the fundamental rights, in particular Article 21 of the Constitution.
2. Article 21 enshrines the most precious of all the fundamental rights which the Constitution of India recognises – the right to life and personal liberty. The full worth and significance of this article was not understood in the first quarter after independence. So much so that the emergency imposed during the Congress rule saw the Supreme Court overturning nine high courts’ unanimous verdict and upholding the serious onslaught on personal liberty. Subsequently, it has undergone dynamic evolution at the hands of the court. Its constructional growth is not matched by any other provision. Initial focus of courts was on the deprivation aspect of life and personal liberty. The Supreme Court in Gopalan (AIR 1950 SC 27) looked at Article 21 narrowly and in isolation from other fundamental rights. “Personal liberty” was understood as liberty of person or body and as an antithesis of law was sufficient to deprive a person of his life or personal liberty. The course correction happened in Maneka Gandhi (1978) 1 SCC 248. The Supreme Court overruled its previous position and held that Arts. 14, 19, and 21 should be considered together holistically as a holy trinity and that the depriving law should be one which lays down a just, reasonable and fair procedure.
3. Later the Supreme Court began focussing on the content of life and personal liberty guaranteed by Article 21. The court emphasised that it was not mere animal existence or freedom from restraint which was guaranteed, but it embraced the right to live with dignity. It was understood as including right to shelter, right to environment, right of children against exploitation, right to privacy, etc. Another 25 years later the Supreme Court of India basing on the judicial innovation of the Doctrine of Basic Structure in Kesavanand Bharti took another leap forward in IR Coelho’s case (2007) 2 SCC 1. It ruled that the trinity of fundamental rights - Article 14, 19 and 21 were part of the basic structure of the Constitution and could not be destroyed even by a constitutional amendment. Thus another vital limit was drawn as against the state power. Right to life and personal liberty was strengthened. This article is not yet fully explored. Article 21 is verily a bastion of the fundamental right to dissent, critically enquire and to choose one’s way of life and a protection against state and non-state forces who wish to trample upon this right and impose their conception of how the life is to be lived. How one wants to live precede the living with dignity, and is intricate to it.
4. When Article 21 seeks to protect Life and Personal Liberty it very meaningfully brings into play a symbiotic relationship between the life of individual and his personal liberty. The two when considered in their togetherness would indicate the intent of the framers to recognise that in India every individual would have the right to personal liberty which would include the right to choose the way of life he wishes to lead and to live it with dignity. When Article 21 talks of the fundamental right to life it is not merely a protection from destruction of life or its incarceration by the state, but it is a positive right to live one’s life in its many facets and range in the way one likes undeterred and unfettered by state power. As long as an individual’s thoughts and action are not injurious to others and peaceful the state should not interfere. The individual enjoys full sovereignty and hegemony over his thoughts and actions. In fact, it is the state’s obligation flowing from Art. 21 to provide protection to all individuals so that they are able to think, act and live the way they want. And also to provide the conditions for such living to the best of its ability. This right to way of life would include the right to eat the food the individuals want; to wear the dress they wish to wear; to adopt the mode of worship and the religion one pleases to; to read and write what one wants to; to speak and express what he chooses. State can impose reasonable and just restrictions on this right on constitutionally limited heads without being excessive. The limiting role of the state is secondary to its primary role of encouraging individuals thought, speech and action even when they are opposed to or different from the thinking and policies of the government that be. The Constitution of India seeks to build India as an open society tolerant of different ways of life. It is not the job of the government to be a sponsor of a particular way of life.
5. Life and personal liberty would involve the whole growth of the individual. The framers deliberately introduced Art. 21 in its expansive plenitude as they were aware that in India there were regressive groups and even feudal thoughts and forces, which were holding back the unfolding and unleashing of individual enterprise. And that in the developmental path of the country there will always be such regressive forces who will blunt individuality and will pull the nation back. Such forces are truly anti-national but often tend to cloak themselves as nationalist forces or protectors of culture or religion. Therefore, Article 21 ought to be understood as providing a foundation for full individual growth and as conferring the choice to an individual to determine the way he wants to grow and live, including his group existence. It is truly a foundational platform for free secular growth. Of course, with equality of opportunity.
6. Article 21 does not use the word "choice" as does Article 30 which confers on religious and linguistic minorities the right to establish educational institutions of their choice. But choice is inherent in all fundamental rights. Article 21 talks about liberty. It means freedom. Without choice, liberty and freedom have no meaning. All the fundamental rights in Article 19 – speech and expression; movement throughout the territory of India; association; settling in any part of India; engage in any business, occupation and trade – involve choice of citizens. Choice is the essence of freedom, the core of liberty. Take away the choice and you have dictatorship, tyranny. The framers were therefore not content with mere mention of these freedoms and choices and gave a positive mandate to the state to provide equality of opportunity to all. Article 14, 15 and 16 together oblige the state to guarantee equality of laws and equality before law. In short, equal liberty.
7. Art. 25 of the Constitution also deals with an important aspect of personal liberty, the right to conscience and to freely profess, practice and propagate religion. This right is expressly made subject to public order, morality and health. It is also subjected to the other provisions of Part III of the Constitution. Thus, it is subject to Arts. 14, 15, and 21 also. Two aspects about these provisions stand out for mention. First, the right to religion and to conscience guaranteed is subservient to the equality, in particular gender equality, assured by Arts 14 and 15. This would compel the various religions practised in India to reform to eliminate inequality prevalent within them. Courts too can intervene to mandate removal of inequality. Second, Art. 25 only concerns itself with conscience and practice of religion. It is an assurance of secularism as far as practice and propagation of religion is concerned. But secularism has significance even for atheists and agnostics and many aspects of life are not governed by religion or are peripherally touched by religion. Secularism is not only about state being neutral towards all religions or even religious tolerance, it is more about tolerance and development of different ways of life. Therefore, the right to life and personal liberty assures to all the right to choose the way of life for oneself in all its diverse aspects. It is the fountainhead of secularism.
8. In addition, all the above mentioned Articles contemplate imposition of restrictions by the state alone and that to by law of legislature. These restrictions have to stand the test of reasonableness and fairness. They cannot be excessive. This is equally valuable as it rules out vigilantism by any group of people. No group of persons can be allowed to arrogate to themselves the power to act outside the law and impose their own conception of morality, religious correctness, righteousness and understanding of legal mandates. They cannot bash up or lynch people who differ from them or do not do their bidding and do not accept their thoughts and views or their way of life, in short do not conform to their opinion and views. The essence of Art. 21 is non-conformance and not conformance which is the essence of dictatorship. Art. 21 is inspired by the Socratic experience where non-conformance led to his execution. Vigilantes conforming mandate is patently illegal. In many cases, gau rakshaks, to take one example of such groups, cook up facts regarding cow slaughter and beef eating and attack minorities. They pose as self-proclaimed law enforcers. Actually, it is commission of offence by them under the penal laws. PM Narendra Modi has rightly characterised them as thugs. The state must come down with a heavy hand on the self-proclaimed defenders acting outside law in the name of nation, culture or religious sensitivities. If the state is soft or protectionist towards the vigilantists resorting to violence then it is liable to be understood as indirectly sponsoring the vigilantism and as abdicating its primal duty to protect life and personal liberty.
9. Art. 21 provides that “No person shall be deprived of his life and personal liberty...” When is a person “deprived”? It is not only when a person is incarcerated or when the hangman’s noose is tied around his neck or when some restraint is put on his movement or assembly. Absence of such restraints and unfair impositions of punitive acts of the state are termed as negative liberty by many philosophers, including Isaiah Berlin. Deprivation also occurs when state fails to encourage individuals’ thoughts and actions by ensuring the existence of opportunities for their development and by failing to prevent the extra-legal forces or vigilantists from obstructing the exercise of this right. This is termed as positive liberty. The injunction and mandate of Art. 21 has a broad sweep and emphasis is on both negative and positive aspects of liberty. If the state fails to protect, the judiciary would be entitled to act in discharge of its constitutional duty as ‘Sentinel on qui vive’.
10. The reason why Art. 21 is couched in an injunctive form is that our framers proceed on the basis that everyone in India should enjoy the right to life and personal liberty. They understood the importance of this right inhering in every individual as they had suffered deprivation and denial of it during the freedom struggle. And this structuring of Art. 21 is not a mere matter of form. It acknowledges the existence of the right and then seeks to delimit the authority and power of the state. When it says that no person will be deprived of this right except with the authority of law, it is clearly ruling out both executive action of the state as well as the action of non-state actors or vigilante groups from interfering with the right as they have neither law making nor law enforcing authority. Interference by such groups is nothing but an assault on life and liberty.
11. The rights enshrined in Art. 19 are all part of and included in the right to life and personal liberty in Art. 21 (See the Maneka Gandhi case). If nevertheless certain rights were separately mentioned it was only to restrict the power of the state further. To wit, free speech and expression can be restricted only on the heads of security of state, public order, defamation, contempt of court, incitement to offence and morality. Right to assemble peaceably and without arms and movement are also limited in the same fashion. Limitations can be imposed by the state only by making laws whose reasonableness can be tested by constitutional courts. The restrictions so imposed should not be excessive, a la VG Row case AIR 1952 SC 196.
12. Various shades of vigilante groups have emerged in India to dictate what girls should wear and when they should go out of home; what should be shown in the films; what should not be written by authors; what should not be done in public – expression of love; what should not be eaten; what views should be expressed or rather shouldn't be expressed by intellectuals; and so on. And this is all being done in the name of nationalism, religion, culture, and even hurting of the sensitivities. These vigilantes are all ‘extra legem’ – not authorised by law. They are like the group of terrorists who use extra-legal terror not only against the state but even against people to make them conform to their belief and opinion about Islamic tenets. The two reinforce each other. Both rely on instilling conformance through fear. They both are regressive and carry a perverted sense about their religion. But they are believed to have vote banks or support base. That explains the softness of political parties, ruling or otherwise towards the extra-legal forces. It is democracy in regressive play.
13. Hinduism involves worshipping of sun, moon, trees, air, fire, water, rivers and so on. Hindus believe in astrology – stars and planets governing human destiny. The Hindu pantheon is diverse – even animals are bestowed holiness and godliness. Cow too is idolised – though today it is used by so-called Hindu gau rukshaks as a ruse for lynching Muslims and even dalits. Look at the diversity of plants, flowers and fruits nurtured by mother earth for our nourishment and growth. See the humongous diversity in the marine life in the ocean which constitutes over 70% of the earth’s planet. The plant kingdom is truly amazing in its diversity – a mesmerising beauty. Over the course of history human beings have evolved diverse ways of living. They have struggled against oppression and discovered benevolent or welfare State with personal liberty. We understand that different ways of life need to be protected and given opportunity to flourish. Beauty lies in diversity. No wonder our first prime minister Jawaharlal Nehru emphasised “Unity in Diversity”.
In the melting pot of Indian nationhood so many religions, cultures, languages and food habits meld together in oneness that there is no option but to accommodate the various ways of life. This is what Art. 21 seeks to secure. We cannot allow borers, grazers and predators amongst us to flourish.
14. Says philosopher John Stuart Mill in his masterpiece ‘On Liberty’: “Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.”
15. Liberty is a war cry born out of the struggles against atrocities – atrocities against the slaves; atrocities of feudal lords against peasants and dalits; ecclesiastical inquisitions; atrocities against labour; atrocities against the colonies by imperialist powers; the Gulag Archipelago and the like. Often the atrocities were sanctioned by laws and quite often beyond the confines of law. The imperialist wars – WW1 and WW2 – added their own dimension. There is need to lay emphasis on the right to life and personal liberty which faces danger from states, from terrorists and from vigilantes. It is time to renew commitments to the right to life and personal liberty – the right of people to choose and live their way of life. It is time to rebuff all forces which attempt to assault the fundamental right to life and personal liberty.
Dwivedi is a senior advocate, Supreme Court of India.
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