CHAPTER I

INTRODUCTION

The origin of the concept of Fundamental Rights,

which are also known as Natural Rights or Human Rights or

Basic Rights or Inalienable Rights,^ is based on the

theory of Natural Law. The idea that people have certain

rights,which cannot be taken away, began with the theory

of Natural Law. This theory states that natural order

exists in the universe because all things are created by

Nature or God. Every thing has its own qualities and is

subject to the rules of Nature to achieve its full

potential. According to this theory, anything that

detracts from man's human qualities,

prevents their or
2
full achievement, violates the law of Nature. This idea

led to the belief that men and governments everywhere are

bound by Natural Law, it being higher than man's law. The

Roman Philosopher Cicero held the view that this Natural

Law could be discovered from human reason. This theory of

Natural Law created an awareness of Natural Rights and

various thinkers and philosophers started discerning the

Inherent and Sacred Rights of men in the Divine Law.

Natural Rights thus led to the formulation of Human Rights

and the influence of Natural Rights can be found not only

1. The Fundamental Rights are also sometimes described as

Inherent or Sacred Rights.
2. William C. Harvard, The World Book Encyclopedia, Vol.4,
1972, p. 469.
 2

in the English Bill of Rights (1689), the French D e c l a r a ­

tion of Rights of Man (1789), the United States’ Bill of

Rights (1791), the Universal Declaration of Human Rights

(1948)., but also in the Part III of the Constitution of

India which deals with Fundamental Rights.

The Part III ®f the Constitution of India, wherein

has been incorporated a long list of Fundamental Rights,

is described as the Magna Carta ■ of India. The inclusion of

a chapter on Fundamental Rights in the Constitution of

India is in accordance with the trend of modern democratic

thought. The aim of having a declaration of Fundamental

Rights is to withdraw certain elementary rights from the

vicissitudes of political controversy, to place them

beyond the reach of shifting majority in legislature of

the Country and to regard them as inviolable under all

conditions. Certain elementary rights, such as, right to

life, liberty, freedom of speech, freedom of faith and so

on, should not be submitted to vote, they being not

depended on outcome of any election.^

The Fundamental Rights represent the basic values

cherished by the people of India and they are calculated

to protect the dignity of the individual and create

3. V.G. Ramchandran, Fundamental Rights and Constitutional

R e m e d i e s , V o l . 1, 1964, p. 1.
4. A.K. Gopalan V. State of M a d r a s , A.I.R., 1950, S.C. 27.
See a l s o J u s t i c e Jackson in West Verginia State Board
of Education V . B a r n e t t e ?319 U.S. 624.
 3

conditions in which every human being can develop his

personality to the fullest extent.^ The Fundamental Rights

impose a negative obligation on the State not to encroach

on individual liberty in its various dimensions. The

declaration of Fundamental Rights in the Constitution thus

serves the purpose of reminding the Government in power to

respect those rights and limiting the range of activity of

the State in appropriate directions. The concept of

Fundamental Rights has been given a more concrete and

universal texture by the Charter of Human Rights enacted

7
by the United Nations Organisation.

Another purpose behind the inclusion of the

chapter on Fundamental Rights in the Constitution is to

establish "a government of law and not of man", that is, a

governmental system where the ruler cannot oppress the

ruled by encroaching on citizen's basic rights and

liberties. The incorporation of the Fundamental Rights in

the Constitution vests them with sanctity which the rulers

dare not violate them so easily. In a parliamentary system

of government those who form the government are also

leaders of the majority party in the legislature and can

get laws made easily. Therefore, the danger of encroach­

ment on citizen's liberty cannot be ruled out in absence

5. Maneka Gandhi V. Union of India, A.I.R. 1978. S.C. 597

at 619
6. Dr. M.P. Sharma, Government of the Indian Republic,
1965, p. 41.
7. Ian Brownlie, Basic Documents on Human Rights,1967,p .27■
 4

of prescription of limitation of authority of the state by

declaration of Fundamental Rights in the constitution. As

a result, the incorportation of Fundamental Right in the

constitutions of modern democratic countries has been a

trend.89

The Fundamental Rights as incorporated

the in
9
Constitution of India can be classified under six groups.

They are (i) Right to equality (Articles 14-18), (ii) Right

to freedom (Articles 19-22), (iii) Right against exploita­

tion (Articles 23-24), (iv) Right to freedom of religion

(Articles 25-28), (v) Cultural and educational rights

(Articles 29-30) and (vi) Right to constitutional remedies

(Articles 32-35).

Article 21 ,which provides that "no person shall

be deprived of his life or personal liberty except accor­

ding to procedure established by law" falls under the

8. However, there is no formal declaration of people's

Fundamental Rights in Britain. The doctrine of soverei­
gnty of Parliament prevailing there does not envisage a
legal check on the power of Parliament which, as a
matter of legal theory, is free to make any law even
though it abridges, modifies or abolishes any basic
civic right and liberty of the people. The protection
of individual liberty in Britain, therefore, rests not
on constitutional guarantees, but on public opinion,
good sense of people, strong common law traditions
favouring individual liberty and the deep rooted
democratic traditions.
9. Articles 19(i)(f) and 31 which provided right to
property as Fundamental Right has been omitted by 44th
Amendment as the said Amendment abolished right to
property as Fundamental Right.
 5

group of "right to freedom." But what is "life" or

"personal liberty" is not defined by the Constitution any­

where .

Meaning of Life

In common parlance life connotes animation or

period from birth to death of every living thing. But in

the broader sense life means activeness, dynamism,

10
exuberance, liveliness, vigour and vitality etc. The New

Encyclopaedia Britannica defines life as any system

capable of performing a number of such functions as

eating, metabolizing, excreting, breathing, moving,

growing, reproducing and being responsible to external

11
stimuli. Section 45 of the Indian Penal Code, 1860,

defines life as the life of a human being. The notion of

life, therefore, has to be undestood as an antithesis of

lifeless.

Human life can be understood also as the

consequence of the blending of body and soul. When the

soul deserts the body, life comes to an end.

Physiologically speaking ^ cell is the basic living unit

of a human being. Various cells combine to form a tissue

and host of tissues synthesize to make an organ. The

aggregate of these organs constitute the whole,i.e., the

10. William C. Burton, Legal Thesaurus, 1991, p. 316.

11. The New Encyclopaedia Britannica, Vo l . 22 (15th edn.),
p. 985.
 6

human self. Every student of human anatomy will testify

the fact that human beings are the most meticulously

designed creatures on earth. Even the Darwinian version

lends support to the fact that human beings are at the

highest, level of evolution. Anthropology also tends to

prove it further.

Human beings possess various organs and each organ

has a particular function to do. This makes them

structurally intricate. They, therefore, indulge in very

complex activities. Each human being thinks, understands,

talks, walks and listens. Sometimes he feels like reading

or writing, while at other occasions he may laugh, cry or

weep etc. Every human being unergoes many behavioural

changes, depending on the situation he is put in. This

whole range of activity is what is meant by life of a

human being.

Right to Life

Right means a claim, an entitlement and right to

life signifies a claim to one's life. The right to life is

presupposed by every other right of a human self and that

is what makes it a fundamental of all Fundamental Rights.

Other rights, mentioned in Part-Ill of the Constitution,

even though fundamental, without right to life means many

things in nothing. The claim to one's life is inherent in

every man by virtue of law of Nature.

 7

To maintain the physical integrity every

individual has certain basic requirements like a machine,

which needs fuel for its working. An individual, to keep

his physical existence, has requirement of food, clothing,

shelter etc. This means right to life,which is paramount

Fundamental Right,presupposes many other rights.

The evolution of the concept of right to life by

the Supreme Court of India becomes evidently clear when we

12
look into its some of the decisions. In Kharak Singh case

the Supreme Court relying on the observation of Justice

Field in Munn V. Illinois held for the first time that

by the term "life'^as used in Article 21 of the Constitu­

tion, something more is meant than mere animal existence.

The inhibition against its deprivation extends to all

those limbs and faculties by which life is enjoyed. The

provision equally prohibits the mutilation of the body by

the amputation of an arm or leg or the putting out of an

eye or the destruction of any other organ of the body

1. A
through which the soul communicates with the outer world.

The Supreme Court did not remain content with the

above expansion of the concept of right to life. In Francis

Coralie case 15 the court did not agree to keep the right

12. Kharak Singh V. State of U.P., A.I.R., 1963, S.C. 1295.

13. Munn V. Illinois 94 U.S.113 (1877).
14. A.I.R. 1963 S.C. 1295 at 1301.
15. Francis Coralie Mullin V. A.D.M. Union Territory of
Delhiand others, A.I.R. 1981 S.C. 746.
 8
to life limited only to protection of limb or faculty but

went further and held that the right to life includes the

right to live with human dignity and all that goes along

with it, namely, the basic necessities of life such as

adequate nutrition, clothing and shelter, and facilities

for reading, writing and expressing oneself in diverse

forms, freely moving about and mixing and commingling with

fellow human beings . ^

The above observation speaks volumes about

judicial activism and substantiates the earlier contention

that the right to life pre-supposes many other rights. It

is because of this that right to life has been characterized as

17
most "fundamental of all Fundamental Rights. Right to

life, therefore, no more means mearely the sanctity of

life. It includes right to live decently as a member of

civilized society and have all the freedoms and advantages

that would go to make life aggreable and living assured in

18
a reasonable standard of comfort and decency. Right to

life includes right to livelihood, right to education,

right to work, right to minimum wages, right against

economic exploitation, right to environmental protection,

16. A.I.R. 1981 S.C. 746 at 753.

17. B. Erabbi, "The Right to Life and New Strategy of
Enforcement", a paper presented at U.G.C. Seminar on
"Judicial Activism and Social Change", at Faculty of
Law, University of Jammu, Jammu (1987).
18. See B. Shiva Rao, Framing of India's Constitution •
’
Select Documents, Vol. II, 1967, p. 41.
 9

right to minimum liveable healthy environment free from

19
danger of disease and infection and many other rights.

The Supreme Court of India by interpreting right to life

in the light of the Preamble of the Constitution and

various provisions of Directive Principles of State Policy

is discovering more and more components of the right to

life* as will be evident from the discussions in the

relevant chapters of this work.

Life and personal liberty are inter-related

concepts. They are so closely inter-related that they

cannot, by any stretch of imagination, be completely

divorced from each other. Where there is life there must

also be personal liberty. If a person is deprived of

personal liberty, automatically his right to life becomes

meaningless. Life bereft of personal liberty would be

without honour and dignity and it would lose all

significance and meaning. That is why life and personal

liberty have been put together as integral parts of

Article 21 of the Constitution of India.

Meaning of Personal Liberty

There is difference of opinion about the meaning

of personal liberty. Some have given a very narrow and

restricted meaning to the concept of personal liberty.

19. See V.K. Bansal and N.K. Gupta, "Environmental Protec­

tion — A Constitutional Obligation", in paras Diwan
(ed.), Environmental Protection, 1987, p. 495.
 10

According to Dicey "the right to personal liberty means a

person's right not to be subjected to imprisonment, arrest

or other physical coercion in any manner that does not

admit of legal justification*. Blackstone,emphasizing on

the freedom of movement to be the essence of the liberty

of person,has held that "Personal liberty consists in the

power of locomotion,of changing situation or moving one's

person to whatever place one's inclination may direct,

without imprisonment or restraint unless by due course of

law."21

If we analyse the above two definitions we find

that Dicey's definition is more concerned with the

negative aspect of personal liberty, that is with the kind

of restraints which take away personal liberty of a person.

To Dicey, personal liberty is freedom from physical

coercion and restraint in a way not authorized by law.

According to him if a restriction does not amount to

imprisonment, arrest or coercion the liberty of a person

is not affected. From this analysis the difference between

the approaches of Blackstone and Dicey becomes quite

marked. While to Blackstone the freedom of movement, a

positive aspect, is the basic element of the liberty of a

person, to Dicey protection from imprisonment or physical

coercion is the necessary condition of liberty of a

20. A.V. Dicey, Law of the Constitution, 1961, p. 207.

21. Blackstone, Commentaries on the Laws of England, 1844,
p. 134.
 11

person. In interpreting Blackstone's definition one can

analyse the forms in which the freedom of locomotion or

22
movement can be claimed by a person. But this would be

unnecessary for the definition of Dicey.

But we find that above given narrow meaning of

personal liberty have undergone changes and broader

meanings have been accepted. Earnest Barker has defined

personal liberty as "the liberty of a man which he enjoys

23
in the capacity of an individual person". According to

him there are three components of the personal liberty.

They are — (i) Physical freedom from injury or threat to

life and health, and movement of thebody; (ii)

Intellectual freedom for the expression of thought and

belief; and (iii) Practical freedom for the play of will

and exercise of choice in general field of contractual

24 -
actions and relations with other persons. According to

Lord Denning personal liberty means freedom of every law

abiding citizen to think what he will, to say what he

will, and to go where he will on his lawful occasions

without let or hinderance from any other person . This

freedom must be matched with social security, that is, the

25
peace and good order of the community in which he lives.

22. This was done in the case of Karak Singh V. State of

U.P., A.I.R. 1963 S.C. 1295.
23. Earnest Barker, Principles of Social and Political
Theory, 1952, p. 146.
24. Ibid, pp.146-47.
25. Sir Alfred Denning, Freedom Under the L aw, 1949, p.5.
 12

From the above definitions we find that the scope of

personal liberty is very wide.

However, there is no uniformity in the personal

liberty clause of different constitutions of the world.

26 27
For example, the constitutions of U.S.A., Cambodia,
28 29
Japan and Belgium use the word "liberty"; whereas the
30 31
constitutions of German Democratic Republic, Ireland,
32 33
Italy and Portugal use the words "personal liberty" in

the relevant clauses. The Universal Declaration of Human

t
3 /

Rights, 1948 also uses the word "Liberty" only. The dual

approach of the world constitutionSj in the initial stage?

brought in uncetainty in the minds of the Indian Consti­

tution makers in the Constituent Assembly. This is evident

from the fact that the first draft of the Constitution of

35
India used the word "liberty1
; it was later on that the
O C
Constituent Assembly inserted the word "personal" before

the word "liberty" so as to ensure that the word "liberty"

was not misconstrued as to include even those freedoms

26. After the Fifth Amendment

27. Art. 3
28. Art. 31
29. Art. 7
30. Art. 8 (The Constitution of G.D.R. does not exist now)
31. Art. 40(4)(i)
32. Art. 13
33. Art. 8(vii)
34. Art. 3
35. See C.A.D., Vol.III, 1947, p. 441.
36. See C.A.D. Vol. VI, 1948, at 1001
 13

already dealt with in Article 19 of the Constitution.

Consequently, the import of the word "liberty" in Article

21 of our Constitution got narrowed down to the meaning

given in English law to the expression "liberty of person"

or "personal freedom", i.e., "the right not to be

subjected to imprisonment, arrest or other physical

coercion in any manner that does not admit of legal

38
justification. The Supreme Court of India also

initially gave a very narrow meaning to the term "personal

liberty" in Article 21 of the Constitution by subscribing

to the definition given by Dicey under the English law.

But we find that the Supreme Court after giving a very

restricted view, i.e., Dicean view of the expression

39
"personal liberty" in Gopalan's case went on expanding

it gradually. In Kharak Singh's case^ the court liberated

to some extent the "personal liberty" clause from the

restricted view given in Gopalan.when the court ruled that

the expression "personal liberty" used in Article 21

embraced within its fold all the varieties of rights

except those mentioned in Article 19. However, we find

that after the decision'in Maneka's case^ the expression

"personal liberty" contained in Article 21 has got the

widest amplitude and it embraces now within its fold

37. A.V. Keith, Constitutional Law, 1939, p. 434.

38. A.V. Dicey, Introduction to the Study of the Law of
the Constitution, 1956, pp. 207-209.
39. See A.K. Gopalan V. State of Madras, AIR, 1950, S.C.27
40. Kharak Singh V. State of H.P. AIR, 1963, S.C. 1295.
41. Maneka Gandhi V. Union of India, AIR, 1978, S.C. 597

Q
 14

different variety of rights including the rights conferred

under Article 19. That is to say, the expression

"personal liberty" in the Constitution of India has

received now the meaning given to it by Lord Denning and

Ernest Barker.

The expression "personal liberty" in the Article

21 of the Constitution no more means the Dicean concept of

personal liberty but it means liberty or the rights

attached to the person under a government.

In United States also the term "liberty"^

incorporated in the U.S. Constitution by 5th Amendment ,at

first received a narrow interpretation in the Blackstonian

sense,42 because the other forms of liberty were included

in other Amendments. But it was only when the 14th

Amendment applied the "due process clause" of 5th

Amendment to the States as well that the Supreme Court of

the United States began to interpret the term "liberty"

with wide dimensions including the right to engage all his

faculties, to live and work, to earn livelihood, to

contract, to acquire useful knowledge, to marry, to

establish a home, to bring up children, to follow ordinary

pursuit of happiness etc.

42. See for example, Munn V. Illinois, (1877) 94 U.S.

113, 114,per Field,J.
43. See for example Mayer V. Nebraska (1923) 262 U.S. 390,
399; Bolling V. Sharpe (1964) 347, U.S. 497; Kent V.
Dulles (1958) 357, U.S. 116.
 15

The Indian judiciary also has developed a new

trend in the post-internal emergency period to give widest

possible interpretation to the provision of the right to

"life and personal liberty" in the Article 21 of the

Indian Constitution. The judiciary is trying to expand the

reach and ambit of the Fundamental Rights rather than to

attenuate their meaning and content. The judiciary is

widening the ambit of the Article 21 in light of the

provisions of the Universal Declaration of Human Rights,

1948 and the provisions of the International Convenant on

Civil and Political Rights, 1966. For doing this the

judiciary is taking help from the solemn declaration made

in the Preamble of the Indian Constitution and the

provisions of the Directive Principles of State Policy

which are though not enforceable in the court of law are

nevertheless fundamental in the governance of the Country.

The Supreme Court has come out with the view that to be a

Fundamental Right it is not necessary that a right must be

specifically mentioned in a particular Article. Even if it

is not mentioned in any of the Articles specifically, it

may be a Fundamental Right if it is an integral part of a

named Fundamental Right or partakes the same basic nature

and character as that Fundamental Right.^ According to

the Court every activity which facilitates the exercise of

the named Fundamental Right may be considered integral

part of that right. Following this attitude3the content and

44. See A.I.R. 1978, S.C. 597 at 606.

 16

ambit of the right to "personal liberty" has been expanded

so much that right to speedy trial, free legal aid,

protection to prisoners in jails from degrading and

inhuman treatment etc. have been judicially incorporated

in Article 21 by importing them from the Universal

Declaration of Human Rights, 1948 and the International

Covenant on Civil and Political Rights, 1966.

Classification of Personal Liberty

Personal liberty has two aspects -— one positive

and the other negative.^ The negative aspect of personal

freedom is understood as freedom from restraint upon

individual's person, thought, speech and conduct etc. It

is viewed as the invidivual's right not to have something

done to him, that is, immunity from restraint and inter­

ference by the state. The restraints upon the government,

such as those found in the American Bill of Rights and the

Chapter on Fundamental Rights in the Constitution of India,

provide the negative aspects of the personal liberty. On

the other hand the positive aspect of personall liberty is

envisaged as the individual's right to have done

something for him, that is, the state shall provide with

the opportunities to the individual to realize the

potentialities of his personality to the maximum extent

possible. This, therefore, makes it a duty of the state

for providing access to all those opportunities which are

45. See Sir Isaiah Berlin, Two Concepts of Liberty, 1961,

pp. 7-16.
 17

essential to the development of personality of the

individual. This positive aspect of personal liberty which

calls for providing of means by the state to the

individual for enjoyment of his freedoms originated from

the writings of idealists, especially Green, and has

47
become more common in the twentieth century. The new

rights such as right to education, right to clean and

healthy environment etc. fall within the positive aspect

of personal liberty. In fact3 for the development of the

personality of the individual, every civilized community

has the responsibility to ensure positive freedoms to the

individual, besides guaranteeing him the negative ones.

That is, the state should not only not interfere with the

individual's right to publish a political pamphlet} but

also should guarantee him his right to be given the

facilities for publishing i t . ^

The negative aspect of personal liberty, which

envisages a negation of numerous restraints such as

coercion, oppression, fear and psychological and physical

insecurity, is silent on the environmental support to the

individual for his self-realization and growth which are

46. T.H. Green, Liberal Legislation and Freedom of Contract

S$e T.H. Green edited by R.L. Nettleship, Vol.III,
1885, p. 372.
47. See S.N.Rath, "Liberty and the Indian Constitution”
See The Indian Constitution edited by V. Grover, 1989,
p. 144.
48. See Robert G. McCloskey in International Encyclopaedia
of the Social Sciences, edited by D.L. Sills, Vol.III,
1968, p. 307.
 18

the ultimate ends of liberty. The negative category is the

traditional one, and most of the personal liberties fall

under this category. But the truism that underlies the

idea of positive liberty should not be overlooked;

because the freedom to read is meaningless if no books

are available. The negative liberties can themselves be

futher subdivided into rights against interference by

government and rights against interference by private

individuals or groups. Because3the enjoyment of negative

liberties is hindered not only by the encroachment on the

individual’s rights by the state ? but also by other

individuals or groups. For example, in order to be really

free to speak, a street corner orator may need, not only

the assurance that the police will leave him alone but

also the assurance that they will protect him from any

angry reactions of his audience, that is, the state will

49
'hinder hindrances' to his freedom.

Rights against the government are sometimes still

further divided into three types : political rights (those

bearing on the political process, such as the right to

vote or to engage in political controversy), economic

rights (such as enterpreneurial freedom or the right to

practise a profession), and private rights (which is a

catch-all term meant to cover all rights that are neither

50
political nor economic). Of course, these are not

49. ibid.
50. ibid.
 19

perfect categories as they are not always mutually exclu­

sive. Each of these three classes of rights against

government subsumes two kinds of rights, the "substantive"

and the "procedural". Substantive guarantees include the

right of participation, in the political process,

protection against encroachment on social and economic

rights, and guarantees of freedom of expression, privacy,

physical security and other forms of personal liberty. The

substantive rights are regarded, in some degree as ends in

themselves. The procedural rights relate to the manner in

which a government must proceed to protect the substantive

liberties. Through the procedural rights the fairness of

the administration in dealing with the citizen is sought

to be achieved. While in the United States the procedural

safeguard to personal liberty has been provided by the

"due process clause", in India it has been sought to be

provided by the phrase "procedure established by law" in

*51
Article 21 of the Constitution.

Limits of Personal Liberty

Absolute and unrestricted personal liberty does

not and cannot exist in any modern state. Unrestricted

liberty becomes a licence and jeopardizes the liberty of

others. While recognizing the personal liberty of one, the

personal liberty of another cannot be sacrificed. So the

51. K.K. Nigam, "Due Process of Law : A Comparative Study

of Procedural Guarantees against Deprivation of
Personal Liberty in the United States and India",
J.I.L.I, Vol.4, 1962, p. 99.
 20

need is to keep the personal liberty within controls.

Personal liberties as guaranteed by the constitution imply

the existence of an organized society maintaining public

order. If the people are given complete and absolute

personal liberty without any social control the result

would be ruin and anarchy. On the other hand, if the state

has absolute power to determine the extent of personal

52
liberty} the result would be tyranny. Therefore, a

balance must be there between personal liberty and social

control to avoid both anarchy and tyranny. But the

question is how to bring about their balance. This is a

very delicate task which every government faces. In some

matters personal freedom or liberty is more desirable than

social control^ while in some matters social control is

more required. Therefore, in some cases, restrictions have

to be placed upon free exercise of individual rights to

safeguard the interest of the society, on the other hand,

social control which exists for public good has got to be

restrained, lest it should be misused to the detriment of

individual rights and liberties. That is to say, while no

individual should be allowed to override ultimately the

rights of the community at large, the community also

should not injure the rights of the individual unless it

53
be for the most urgent and important reason. Therefore,

52. See Willis, The Constitutional Law of the United States

1936, pp. 477-82.
53. R.V.R. Chandrashekhar Rao, "Fundamental Rights and the
Problem of Judicial Review” 2S.C.J., 1961, p. 71.
 21

it is rightly said that claim for individual liberty is to

, 54
be judged against community's need for security.

The limits of personal liberty vary with time. In

time of war, a government may restrict the personal

liberty to safeguard the country. If the nation is at war,

a policy of censorship may be justified even though it

invades the right to say what one thinks on matters of

political controversy. Similarly during emergency some

measures may be adopted. But the emergency must be

genuine. There must be, what Oliver Wendell Holmes

described, a "clear and present danger11, and the danger

55
must be one of magnitude. Because, there are instances

in the history that the emergency provisions have been

misused in the name of national security. In India,, we have

the experience how emergency provisions were misused

during the 1975-77 internal emergency. Hitler also misused

the emergency provisions of the Constitution of the German

Republic and Germany under Nazis was throughout kept under

state of emergency.

Personal liberty on occasion faces a peril, not at

the hands of some external forces, but at the hands of

56
those for whose benefit it exists. The underlying

54. See Paras Diwan, Abrogation of Forty Second Amendment:

Does Our Constitution Need a Second Look, 1977, p. 69.
55. R.L. Bhat, "Personal LibetyiA Conceptual Analysis1',
5, K.U.L.J., 1979, p. 18.
56. See H.R. Khanna, "Inaugural Address" on personal
liberty under the Indian Constitution, 4 ,K.U.L.J .,1978
p. 7.
 22

assumption of the grant of liberty always is that it shall

not be allowed to degenerate into licence and that those

who are granted liberty would always be conscious of the

responsibility which the right of liberty carries with it.

The history of liberty shows that when those who enjoy

its blessings abuse their liberty and turn into licence,

there follows an atmosphere of lawlessness and anarchy of

which advantage is invariably taken by some strong

personality, ambitious and charismatic but with scant

regard for liberal values and democratic traditions.

Therefore, the restraints on personal liberty must be

exercised also from within the citizens if they want to

keep their liberty alive. It is rightly said that the

personal liberties are safe only if the spirit of liberty

is alive in the society. If the flame of the liberty goes

out, no Bill of Rights, however, impressive on paper, can

possibly guarantee the continued rights of the people in

•1 - 1 sense. 57
any vital

The changing social and economic conditions also

cause changes in the importance that the people give to

certain rights. For example9the western democracies^which

are economically rich emphasize the political aspects of

the right to personal liberty, whereas the socialist demo­

cracies attach greater importance to the economic aspects

of the right to personal liberty and favour constraints on

57. See M.C. Chagla, Law, Liberty and Life, 1958, p. 16.
 23

58
the political aspects of the personal liberty. Thus, we

find that limits of personal liberty or constraints on

personal liberty are bound to vary from time to time and

country to country depending on social, political,

59
economic and other conditions. How the Indian judiciary

has responded in prescribing the limits of personal

liberty or in enlarging the scope of personal liberty

under varying circumstances will be evident from the study

of relevant subsequent chapters.

58. See Hari Swarup, Concept of Freedom under Communism,

1968, p. 52.
59. P.B. Mukherjee, Civil Liberties, 1968, p. 9.