LAW AND IT’S FREEDOM

Reading time : 10 minutes

  • INTRODUCTION:

In general understanding, law and freedom are recognized to be two ends of a thread, being opposite to each other. The major question pondered upon by everyone of us is whether law grants us the freedom or takes away the same.

The debate between the law and its freedom insinuates a characteristic of law that constrains one’s freedom.

Law is the set of rules and regulations which guarantees effective functioning of the society. We are aware of the process that whenever the need of change in working of the society arises, law is the only answer. It was evident from the events occurred in history such as abolition of sati system, dowry prohibition, POCSO etc.

Freedom on the other hand, is the state of being free and acting freely within the society. It is one of the most important fundamental rights of a human being which effects the performance of one’s individuality. Freedom gives one sense of privilege among the people to put up their thoughts without any sense of fear, thus helping in the development of a state.

  • LAW AND FREEDOM:

The Indian Constitution guarantees its citizens the freedom by two articles. Article 21 provides one’s personal liberty and a various type of freedoms including speech and expression, assembly, trade, profession etc. Judiciary acts as the watchdog and applies the law to protect the freedom of the people. Hence, we can say that freedom means to exercise one’s own will. We are very well aware of the fact that our constitution restricts the right to freedom, especially when the exercise of one’s individual liberty violates other rights of the public or harms the state.

These restrictions are given under Article 19(2). There is a constant argument by courts and scholars that freedom and liberties cannot be unrestricted as unrestricted rights will be more harmful than helpful.

ADM JABALPUR V. SHIVAKANT SHUKLA[1]

A Constitution Bench by a majority of 4:1, ruled that while a proclamation of emergency is in operation, the right to move High Courts under Article 226 for Habeas Corpus challenging illegal detention by State will stand suspended. The apex Court said “…If extraordinary powers are given, they are given because the Emergency is extraordinary, and are limited to the period of the Emergency.”

  • LEGAL INTERFERENCES IN EVERY AREA:

Since the last year, it is evident as to how judiciary is playing its part in every issue coming under the concept of Judicial Overreach. Judicial overreach is when judicial activism crosses its limit. In other words, it refers to the acts where the courts go beyond their functional limits to make decisions related to the current challenges the country is facing. Judicial overreach is undesirable in a democratic government like India as it goes against the principle of separation of powers.

It is not only the obligation, but also the domain of the judiciary to protect the fundamental rights of the citizens, and ensure that the laws are being made in a way that the administration is accountable for any mis-happening.

But after looking at the recent decisions by the honourable Supreme Court, it is clearly proved that it needs to keep rational restraint while stepping into the shoes of a policy formulation domain, keeping in mind the impact on executive and the legislature. Some of the major acts where judiciary walked on the path of judicial overreach are as follows:

  1. SC ban on sale of liquor at retail outlets including resorts, hotels, bars etc. 500m of any National or State Highway to ensure road safety by lowering the cases of drunk and driving.
  2. Ex-Chief Justice of India becoming the Member of Parliament.
  3. Supreme Court putting the restrictions on the internet connections in Jammu and Kashmir.
  4. Supreme Court conclusion of contempt of court case against the Prashant Bhushan.
  5. Interference in the regulation of OTT platforms.
  6. Interfering in the reproductive choices for the women via MTP Act.
  7. Supreme Court giving clearance for the Central Vista Project.
  8. Judiciary’s involvement in the housing decisions for the poor.
  9. Imposition of Patriotism in National Anthem Case.

Let’s discuss these issues in detail one by one and review as to how these decisions have resulted in judicial overreach.

  1. Supreme Court ban on sale of liquor:

The SC order putting a blanket ban on all the liquor outlets is a radical measure, a measure with good intentions but missing the essential mark. While the ban is aimed to curb the drunken driving that leads to thousands of accidents, but tit puts thousands of employed peopled at risk. It is a decision taken in haste without considering its consequences.

Such type of blanket bans injures the economy and endangers the tourism industry while these sectors produce the most jobs in the country.

  1. What was the ban?
  • The supreme Court directed an order stating the ban on sale of liquor on national and state highways, by April 1, 2017.
  • It also stated that no liquor stores must be visible within a distance of 500 metres of the highways.
  1. Implications of such ban:
  • It is evident that such decisions taken in haste leads to occurrence of huge losses in terms of revenue for the state governments.
  • Since alcohol is so harmful, then why is there not a ban on it fully as according to WHO alcohol kills more people than HIV.
  • According to the estimates, there was to be the loss of Rs 65,000 crores, and as many as 1 million people would lose their jobs as a result of the ban.
  • Revenue from excise meant for welfare schemes to vulnerable sections is reduced.
  1. How does it imply Judicial Overreach?
  • Under 7th schedule “alcohol for human consumption” is a subject of state list. Thus, ban on liquor on respective state highways should be left in the hands of the states only.
  • Prohibition is violation of fundamental right of freedom of choice and right to privacy as well.
  • A pragmatic approach that aims to regulate the consumption will be more effective stance rather than having an emotional view that makes drinking an evil act.
  • Ex-Chief Justice of India getting nominated for Member of Parliament:

The very nomination to the council of states i.e., Rajya Sabha, just after 4 months of his retirement from the post of CJI, has set a wrong precedent. It raises the question that should judges and that too at such high position should accept post-retirement jobs, at least for some years as acceptance of such posts hampers the independency of the judiciary.

  1. How does it imply Judicial Overreach?
  • It was the most crucial tenure as it involved a scrutinization of much more serious issues.
  • His acceptance was contradictory as he had himself pronounced that there is a valid strong point that post-retirement appointment is a scar on judicial independence of the judiciary. 
  • He was also the part of the bench hearing in the case where allegations for sexual harassment were made against him.
  • Imposition of compulsory playing and standing on National Anthem:

The court in Shyam Narayan Chouksey v. Union of India[2] passed an order stating:

  • All the Indian cinema halls shall play the national anthem before starting the film.
  • All the people present in the hall are mandated to stand to show respect to the national anthem.
  • Entry and exit doors will be closed before it is played to make sure there is no disturbance and will be opened after the anthem is played.
  • The National Flag should also be displayed on the screen while it is played.
  1. How does it imply judicial overreach?
  • While ruling in this case, SC ignored its earlier judgement in Uphaar tragedy case where court held that under no circumstances, the doors in the hall should be shut from the outside.
  • The decision goes against the Prevention of Insults to National Honour Act, 1971, which implies that no film, drama or show can have the National Anthem as part of the show.
  • It also ignored its implementation issues as there might be some people who won’t be able to stand due to physical or any other problem.
  • Interfering in the abortion choices for women:

In the last few years, it is evident from various decisions as to how court is continuously meddling in the reproductive choices of women.

  1. Some decisions that implied judicial overreach:
  2. In Savita Sachin v. Union of India, the court denied the termination of pregnancy of 27 weeks. Medical board stated there is no physical risk to the mother, but the foetus suffered physical anomalies.
  3. The Madhya Pradesh High Court denied termination of pregnancy of 26-week-old to a 13-year-old rape survivor. The petitioner contended that pregnancy might cause severe psychological, as well mental emotional trauma. The medical board’s psychiatrist argued that while survivor might be having anxiety but she was not suffering from any delusion or hallucination which leads to any emotional or psychological trauma thus no need to terminate the pregnancy.
  4. In very recent march 2020, a girl decided to end her pregnancy after her partner refused to marry her. She was 24-weeks pregnant by this time and thus abortion at this time would lead to criminal offence. The Madhya Pradesh High Court refused to grant the termination and argues that such pregnancy was outcome of a consensual and voluntary act.

Thus, we can see that medical boards act as the gatekeepers. They just rely on the facts of the case and don’t add any sort of personal beliefs which is one of the biggest challenges as having a third-party opinion on a decision which is very personal indirectly affects the right to privacy of women.

Hence, women wanting to terminate the pregnancy more than 20 weeks have no option but to knock the door of the judiciary and ask for the permission for which she should have full rights on her own. However, in most of the cases, where court grants compulsorily continuation of pregnancy, it results in miscarriages.

  • Judiciary’s involvement in the housing decisions for the urban:

Recently Supreme Court ordered the removal of approximately 48,000 slum dwellings situated along the railway tracks in Delhi within just 3 months.

It also directed that any interference, political or any other should be present against the order of their removal.

It said that any interim order by any court passed against the removal of such encroachments shall be deemed ineffective.

  1. How does it imply judicial overreach?
  • First, the court has totally ignored the principles of natural justice i.e., Audi alteram. The order has violated the due process as it decided to make the removal of such jhuggi jhopris without giving the affected party, right to be heard i.e., to the jhuggi dwellers.
  • Court has overlooked many of the past decisions such as;
  • In Olga Ors v. Bombay Municipal Corporation[3], a bench of five judges concluded that right to life shall include right to livelihood and in turn no eviction shall take place without notice and giving them the opportunity to be heard.
  • In other case, Sudama Singh and Ors v. Government of Delhi[4], the High Court declared that before any eviction takes place, a survey must be carried on and those evicted shall have the right to receive appropriate relocation plans.
  • The decision was made during the covid pandemic. The supreme court has threatened to leave thousands of people homeless amid such emergence when people are already suffering through a lot.
  • Supreme court conclusion on Prashant Bhushan’s contempt of court case:

Recently, the SC initiated proceedings for criminal contempt of court against the Adv. Prashant Bhushan for his tweets on CJI S.A. Bobde as well as former CJIs in which he was held guilty for the said offence.

  1. What were the tweets about?

Mr. Bhushan’s first tweet commented on a picture of CJI Bobde in which he was sitting on a high-end motorcycle with neither helmet nor mask.

In second tweet he commented on the role of last CJIs in respect of governing the affairs of the country.

  1. How does it imply judicial overreach?
  • The contempt of court is not at par with the aim of Article 19(1)(a) as it curbs the people’s right to freedom to speech and expression against the functioning of the court.
  • In such a democratic country it gives a wrong signal in respect of the highest court’s ability in being open to public criticism. In other words, it shows that judiciary is way sensitive to handle the criticism.
  • There are many other important issues that demands the attention of Supreme Court such as CAA, internet curbed in Jammu & Kashmir, petitions related to scraping of Article 370 in J&K etc. This shows the priority index of the Supreme Court.
  • The offence of contempt of court was introduced during the reign of Britishers i.e., colonial period. Even, England and US have put freedom to speech over the criticism of judiciary. The Indian courts should also consider the same proposition.
  • Judiciary ordering the regulation of OTT platforms:

The Supreme Court in October 2020 ordered that Central Government should take up the charge of digital content and that these OTT platforms now to be administered by the Ministry of Information & Broadcasting.

Thus, the government has finally decided to make OTT platform’s censorship under the abovesaid ministry.

  • Supreme Court refused to lift ban on 4G internet in Jammu & Kashmir:

The Supreme Court recently gave a verdict in a reply to all the petitions challenging the Central Government’s decision to put restrictions on the internet usage of 4G after the revocation of Article 370 of the Indian Constitution.

  1. How does it imply judicial overreach?
  • Right to use internet is a concept that comes under the fundamental rights in the freedom of expression under Article 19 of the Indian Constitution.
  • Such suspension if internet services are the violation of telecom rules also.
  • These restrictions were imposed under the aegis of public order and national security, but national security don’t appear imposing section 144 of Criminal Procedure Code in the region.
  • These restrictions were extended which had severe consequences on business, trade, education.
  • All of these actions have made India top the list of internet shutdowns in the world. According to Software Freedom Law Centre’s Tracker, India imposed total 381 shutdowns since 2012, out of which 106 were imposed in 2019.
  • IMPACTS OF LAW ON THE EXERCISE OF PEOPLE’E FREEDOM:
  1. Balancing individual and collective needs-

The exercise and experience of freedom does not happen in a blink or according to one’s personal need, but in the context of whole society as it is the needs of multiple individuals that needs to be satisfied. Hence sometimes, individual freedom needs to be restricted to ensure collective good. 

  • Act as a catalyst to freedom-

Law sometimes acts as an agent of reform to make system of societal value more progressive rather than making it regressive in nature. Law provides essential framework for individuals to exercise their freedom, when society puts conditions upon them that are not at par with the exercise of such liberty.

  • Act as a restriction to freedom-

Sometimes, law tends to interfere and unreasonably restrict the individual freedom which in turn creates hindrance to the exercise of individual liberty. In this scenario, societal value system males the system of law regressive in nature.

  • HOW CAN THESE CONTRADICTIONS BE SOLVED?

The argument between law and freedom needs to be solved as such states are likely to have a nature where life is brutish, people opening the road of violence to compete for their rights and resources and there will be no security. Following options can be considered:

  • Legislative process should be more participatory and include people at large:

This will help to increase the overall acceptance for the laws on one hand and on the other hand, it will also help in improving the quality of the working of legislation. This will ensure the following of doctrine of proportionality. The doctrine states;

  1. Presence of legitimate state aim- As per the doctrine any sort of restriction posed by state must not be arbitrary i.e., that should be based on a legitimate state aim.
  2. Balance between the restriction of liberty and overall benefits- There must be a balance between the extent of restriction of rights and the public benefit to be attained from the legislation.
  3. Must be least restrictive method- The restrictions imposed must be based on least restrictive method needed to achieve the desirable aim.
  • Regularly update the law:

One of the main reasons for such contradiction is the obsolete nature of the existing laws. Like section 377, 497 of IPC although being antithetical as per the present societal value system, they still remained in use for a very long time which led to restriction on people’s freedom.

  • CONCLUSION:

In this world, the essence of freedom is essential, but this freedom is subjective to certain restrictions as per the socio-economic context of the society. However, these restrictions need to pass the test of reasonableness and the other facets of doctrine of proportionality. All the restrictions must be passed keeping in mind the long-term effects of it and efforts should be made to minimize such contradictions.

Thus, we can conclude that the real relationship between law and freedom exists in the conciliation of the two concepts. Freedom without law is simply a grant of licence and law without the freedom is totally of domineering nature. Where law gets dissolved, dictatorship begins and freedom cease to exist.


[1] ADM JABALPUR v. SHIVAKANT SHUKLA AIR (1976) 2 SCC 521.

[2] SHYAM NARAYAN CHOUKSEY v. UOI AIR 2003 MP 233.

[3] 1986 AIR 180.

[4] WP(C) Nos. 8904/2009, 7735/2007, 7317/2009 and 9246/2009

Author: NEHA DHALARIA

Editor: Kanishka VaishSenior Editor, LexLife India.

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