LIBERTY: CONSTITUTIONAL REVIEW

LIBERTY

The Indian Constitution is known as a living document because it is not static and ever-evolving and having survived after 103 amendments and still moving ahead to match up the needs and requirements of the society”.

The Preamble provides us with the liberty of thought, belief, faith, expression, and worship.

The Supreme Court has repeatedly emphasized the importance of liberty and has concluded that the judiciary must act as guardians of the liberties of the people, protecting them against the executive or even legislative arbitrariness or despotism. Liberty, Equality and Fraternity are not to be treated as separate entities but a trinity. They form a union in that and to divorce one from the other is to defeat the very purpose of Democracy.

In the case, Munn v. Illinois, Justice Field said life means more than mere animal existence and it not just physical existence but also quality of life. Personal liberty not only means freedom from arrest and detention or against wrongful confinement but also includes rights which are essential to live life with freedom.


Case: Kharak Singh v. State of U. P

Facts: The petitioner was charged in a dacoit case however, no evidence was found against him subsequently, he was released. He was kept under surveillance, which included domiciliary visits at night and verification of his activities and movement. He challenged this as being violative of his fundamental right under Article 21.

Judgment: The Supreme Court deciphered the word ‘life’ in this case. The word ‘life ‘signifies something which is more than mere animal existence. ‘Personal liberty’ isn’t limited to substantial limitation or confined to prisons only, yet was used in a concise sense including all varieties of rights which constitutes the personal liberty of a human being other than those mentioned under Article 19(1). Any kind of unauthorized obstruction into an individual's home and aggravation caused to him is an infringement of the personal liberty of the individual. The domiciliary visits of the policemen in the house of the petitioner was an infringement of the petitioner’s personal liberty as no law that can justify this act. Therefore, the U.P. Police Regulation was violative of Article 21 and struck down as unconstitutional.

In Maneka Gandhi v. Union of India, the Supreme Court again considered the words ‘personal liberty’.

Facts: The petitioner received a letter from a Regional Passport Officer, Delhi asking the petitioner to surrender her passport within 7 days of the recipient of the letter. She immediately address letter to the officer and requested to issue the reason of such a letter in writing. She received another letter from the Ministry of External Affairs, Government of India, stating that the reason cannot be furnished to her because of the interest of the general public. Her passport was impounded under Section 10(3) of the Passports Act, 1967, in the public interest.

The petitioner approached the Hon’ble Supreme Court under Article 32 of the Indian Constitution, claiming infringement of her fundamental right to personal liberty.

Judgment: The Supreme Court held that the Government was not justified in withholding the reasons for impounding the passport from the petitioner and perceived the following-

  1. The right to go abroad is implicitly covered under Article 21.

  2. The Passports Act, 1967, doesn’t prescribe the procedure for the confiscation of passports.

  3. The principle of Natural Justice was violated because the petitioner was never given a chance to be heard.

There are two rights that are explicitly included under Article 21.

1. Right to life

2. Right to personal liberty

Besides these two rights, there are several other rights that come within the scope and meaning of Article 21. These rights are not expressly mentioned in Article 21 but impliedly embedded under it. Article 21 includes the following rights:

1. Right to live with human dignity

In the case of Francis Coralie vs. Union Territory of Delhi[1], it was held that right to live includes the right to live with human dignity with bare necessities of life such as:

· Adequate nutrition,

· Clothing,

· Shelter over the head and facilities, and

· Writing, and expressing oneself in diverse form

2. Right to livelihood

In Olga Tellis v. Bombay Municipal Corporation[2], the Supreme Court held that imposition of Tehbazari by the Municipal Corporation violates the right of hawkers to carryout


3. Right to privacy

In Justice K.S. Puttuswamy(Retd.) v. Union of India[3], it was held by the 9-judge bench that the right to privacy is a fundamental right and comes under article 21 of the Indian Constitution.

4. Right to choose a life partner

In Shakti Vahini v. Union of India,[4] the Supreme Court held that the right to choose his or her life partner comes under article 21 and has set guidelines to combat honor killings.

5. Right to a clean environment

In Vellore Citizens’ Welfare Forum v. Union of India[5], the court held that right to live includes living life in a healthy environment, which is free of pollution and includes an adequate sanitization system.

6. Right to die with dignity

In Aruna Ramchandra Shanbaug v. Union of India[6], the Supreme Court allowed passive euthanasia under some exceptional circumstances and strict monitoring of the court. The court has permitted a “living will” under which a patient can withdraw medical support in case if the person concerned goes into an irrecoverable state of coma.

7. Right to Education

The right to education is a fundamental right of a person as it directly flows out from the right to life. Earlier this right to education was covered under directive principles of state policy but with the change in needs and circumstances in the society, it has been now categorized as a fundamental right.

8. Right to free legal aid

In Hussainara Khatoon vs. State of Bihar[7], the court held that right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty, indigence, or incommunicado situation is a part of fair, just and reasonable procedure under Article 21 of the Indian Constitution.

9. Homosexuality

The 5 Judges Constitution Bench in the case of Navtej Singh Johar v. Union of India[8] has declared ultra-vires section 377 of Indian Penal Code, 1860, thereby striking down criminalization in same-sex relations between consenting adults. As a result of the above, LGBTQ individuals are permitted to engage in consensual intercourse. This is said to be another milestone in the journey of Article 21.

10. Right against illegal detention

In D.K. Basu vs. State of West Bengal[9], the Supreme Court laid down the guidelines to be followed by the Central and the State investigating authorities in all cases of arrest and detention.

Arnab Manoranjan Goswami v. State of Maharashtra & Ors

Raigad Police filed a charge sheet against Arnab Goswami, Firoze Sheikh, and Nitish Sarda in a 2018 Anvay Naik abetment of suicide case. Three of them has been charged under section 306, 109 and 34 of Indian Penal Code. As many as 65 persons are named as witnesses in the charge sheet that runs into 1,914 pages. Anvay Naik's handwriting has been matched with the writing in the suicide note and the forensic report indicated that he was not under pressure while writing it.

Anvay Naik’s wife Akshyata Naik filed an FIR on 5th May 2018 against Arnab Goswami who has not paid 83 lacs for the Bombay Dyeing Studio project. Naik was under mental pressure because of which he committed suicide on 5th May 2018. There is a suicide note holding the above three individuals responsible.

The appellant is the Editor-in-Chief of an English television news channel, Republic TV. He is also the Managing Director of ARG Outlier Media Asia net News Private Limited which owns and operates a Hindi television news channel by the name of R Bharat. The appellant anchors show on both channels. He was arrested on 4 November 2020 in connection with FIR 59 of 2018 which was registered at Alibaug Police Station under Sections 306 and 34 of the IPC.

The appellant moved to Supreme Court under article 32 of the Indian constitution challenging all the FIRs.

Mr. Harish Salve submitted that The arrest of Arnab Goswami is rooted in malice in fact, which is evident from the manner in which the appellant has been targeted for his news broadcasts criticizing the Maharashtra government and the Maharashtra police.

Mr. Salve said allegations mentioned in FIR, do not establish an offense under Section 306 read with Section 34 of the IPC. To constitute the offence of abetment there must exist:

i. A direct or indirect incitement to the commission of a crime;

ii. An active role of the accused in instigating or doing an act facilitating the commission of the crime; and

iii. The existence of a proximate relationship in time.

Mr. Salve further submitted that the judgment of this Court in Habib Jeelani (supra) has been wrongly interpreted by the High Court. It has been submitted that it was in pursuance of the liberty that was granted by the High Court, that an application for bail under Section 439 of the CrPC was filed.

On 11 November, Supreme Court had granted bail to Republic TV Editor-in-Chief Arnab Goswami in a 2018 case of abetment to suicide.

The court said “deprivation of liberty even for a single day is one day too many” and courts across the country “must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens”. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”

“Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media, and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.”

In its judgment, a Supreme Court bench comprising Justice D.Y. Chandrachud and Justice Indira Banerjee observed, that the High Court was in error in rejecting the applications for the grant of interim bail. They ordered the release of Arnab Manoranjan Goswami, Feroz Mohammad Shaikh, and Neetish Sarda shall be released on interim bail.

The concept of liberty has evolved a lot since the constitution of India became alive. The man was born free. Liberty is paramount to the existence of man. In India, liberty is fundamental to the existence of democracy. Therefore, the constitutional courts are bound to protect the liberty of a citizen against the acts of the ruling government other than in accordance with the law.

[1] 1981 AIR 746 [2] AIR 1986 SC 180 [3] (2017) 10 SCC [4] 2018 (7) SCC 192 [5] 1996 (5) SCC 647 [6] (2011) 4 SCC 454 [7] AIR 1979 SC 1369 [8] 2018 (1) SCC 791 [9] 1997 1 SCC 416

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