Liberty can be limited by Law

Libertry - indian fundamental rights

The Oxford Dictionary defines liberty as the “state of being free within society from oppressive restrictions imposed by authority on one’s behaviour or political views”. Two distinct aspects of liberty are positive and negative liberty. Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one’s life and realize one’s fundamental purposes. Although described as two types of liberty, they imply the same thing – the freedom to do as one pleases.

On the other hand, the law of a land is such that it defines how these liberties are exercised. It is thus evident that the law of any land is either made to enhance the liberty of all its citizens or to limit the individual liberty with “reasonable restrictions”. In most cases, where the liberty is limited by law, it is because there need to be reasonable restrictions imposed on one person’s liberty so as to ensure that the others around him can also enjoy the same liberty without encroachment upon it. But there are certain laws which have been introduced for curbing the fundamental liberties of the citizens. Quite a few examples of such laws can be found in the Indian legal system itself.

The first and most talked about example is the Section 377, Indian Penal Code, 1860 (IPC) which was enacted by the British colonial regime to criminalise ‘carnal intercourse against the order of nature’. This Section reads as :

“377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Lacking a precise definition, Section 377 became subject to varied judicial interpretation over the years. Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity. Besides, the society too identified the proscribed acts with the homosexual men, and the criminalisation had a severe impact on their dignity and self-worth. Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces.

The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in the field of HIV prevention amongst homosexuals and other men having sex with men (MSM), realised that Section 377, IPC constituted one of the biggest impediments in access to health services for MSM. Through its interactions with clients, Naz Foundation became acutely aware of the disproportionate and invidious impact of Section 377 on homosexuals.
In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. The petition was dismissed by the High Court in 2004 for lack of cause of action as no prosecution was pending against the petitioner. The Petitioner filed a review petition in the High Court against the order of dismissal but that too was dismissed in the same year. Aggrieved by the same, the Petitioner filed a Special Leave to Appeal in the Supreme Court of India in 2005. In 2006, the Supreme Court passed an order holding that “the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated”. Remitting the matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in July, 2006.

In 2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private. But this judgement was again reversed by the Supreme Court, which, however, said that this was a matter that can only be solved by legislation.

Another such legislation was the Armed Force Special Powers Act (1958). The battle against this Act has been a long, bitter one. On August 15, 1942, Lord Linlithgow, the Viceroy of India, promulgated the Armed Forces Special Powers (Ordinance) to suppress the Quit India Movement launched by Mahatma Gandhi a week earlier.

In 1954, when the Nagas began an insurgency for independence, India responded by sending in thousands of Indian army soldiers and paramilitary men from the Assam Rifles to crush the rebellion and to arm his counterinsurgents and provide them with legal protection, Nehru’s government passed the Armed Forces Special Powers Act (1958) in the Indian parliament.

The Armed Forces Special Powers Act (1958) was enforced first in Nagaland and then extended to other parts of the north-east and to Jammu & Kashmir. It empowered the armed forces to kill anyone with impunity on mere suspicion that that person was going to commit certain ‘offence’. These laws were passed to curb the growing resistance of the people.

In February 1950, the Nehru-led government had enacted another draconian legislation – the Preventive Detention Act which could imprison thousands without trial. It was applicable to the whole of the country. During the first few years after the new government took over, fifty thousand political opponents were picked up and sent to prison, and thirteen thousand persons were killed or wounded, according to official accounts. In jail, they were compelled to languish under inhuman conditions. The Preventive Detention Act was replaced in 1971 by the Maintenance of Internal Security Act (MISA) under which tens of thousands of people were imprisoned between 1970 and 1973 in West Bengal alone, of which the overwhelming majority comprised the Naxalites.

One of the restrictive laws that have been amended is the Section 66A of the IT Act, 2000 which defined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and a fine.

The problem with the Section was the vagueness about what is “offensive”. The word has a very wide connotation, and is open to varied interpretations. While the objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media, Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies. Most of the terms used in the section had not been specifically defined under the Act.

A batch of petitions had alleged that the section tramples upon the Fundamental Right to freedom of speech and expression, and the Supreme Court ruled that the Section 66A of the Information Technology Act is unconstitutional in its entirety.

“It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. The definition of offences under the provision was “open-ended and undefined”, it said. The court pointed out that a penal law would be void on the grounds of vagueness if it failed to define the criminal offence with sufficient definiteness.

In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount significance under the Constitution. Three concepts fundamental in understanding the reach of this right were discussion, advocacy and incitement. Discussion, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the ground of causing public disorder. The court then went on to say that Section 66A actually had no proximate connection with public order or with incitement to commit an offence. “Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all,” the court held.

Thus, the Apex Court of our country upheld liberty to be of paramount importance, subject to reasonable restrictions.



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