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Is Personal Liberty a hindrance upon the development of a nation?

Written by: Kapil Raina - B.S.L. - LL.B. (Pune University)
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English Philosopher John Stuart Mill in his widely appreciated work ‘On Liberty’ has said Over himself, over his own body and mind, the individual is sovereign[1], thus propounding the most commonly accepted meaning of the term Liberty. The very accurate conceptualization of the term can’t be questioned, though at times, it may sound weak on the count that whether it should be legally granted, in its entirety, at the outset of the development of a nation. There is no uniform rule to be followed; it depends upon the kind of society in question. It would not be wrong to say that absolute personal liberty may be granted taking into consideration the two basic factors for its purposeful application i.e. Self-Restraint amongst the people in a society and Strictness of law prevailing in the society.

Considering the global perspective regarding grant of absolute personal liberty at the very beginning of development, there have been instances where it came out to be really successful and at times it turned out to be a failure. The failures lacked the basic requirements like Self-Restraint and Strictness of law. As per the US constitution, The Fifth Amendment says that one shall not be deprived of his life, liberty, or of property, without the due procedure of law [2]. The concept is very much similar to the Indian law but for the basic presumption in the American Jurisprudence which says that A person is presumed to be guilty till proven innocent, so there is a kind of strictness of law which in turn provides for the much needed self-restraint. Hence, it was never a hindrance to the American development. But, on the other hand, the same has not worked well for a few others.

The prototype of failure is, unfortunately, the transformation of Iran from Constitutional Monarchy to Islamic Republic better known as the ‘Iranian Revolution’ or ‘The Third Great Revolution in the History’ after French and Russian Revolutions. The advent of theocracy suppressing the rule of Mohammed Reza Pahlavi proved to be more lethal. The basic aim of the Theocratic Republic, headed by Ayatollah Khomeini, was to uphold the personal rights (including life and liberty) that were not absolutely enforced during the rule of the Constitutional Monarch [3]. The grant of absolute personal liberty, in turn, resulted into an even more chaotic situation demanding restraint on the same. So it depends more on the kind of civilization and the two basic factors.

In India, at the very beginning, Article-21 safeguarded the right to life and personal liberty of an individual and the same was reinforced by various interpretations of the Apex Court over the years. At the same time there was a conflict regarding the appropriate procedure to be followed as the courts were not certain about the consequences, this resulted into the liberal application of laws with respect to the right to life and personal liberty. The same policy is being adhered to for the last few decades and still right to life & personal liberty is subjected to a liberal interpretation. The need of the hour is to strictly apply the laws in order to fence the scope of Article-21.

A similar need can be inferred from the much hyped findings of Justice Malimath and his committee where it has been clearly suggested that as far as criminal justice reforms are concerned its hi-time that India should switch over to the principle of “preponderance of probability” rather than applying the age old rule of level of persuasion i.e. “Proving guilt of the accused beyond reasonable doubt”[4]. Regrettably, the same was not accepted by the then Indian Government but this, again, emphatically supports the fact that there is a need for self-restraint, and the basic rules & laws governing the nation are not in a position to effectively deal with the situation till there exists an unending advantage of The Right to Life and Personal Liberty.

To end with, absolute personal liberty needs to be coupled with self-restraint which can only be achieved by way of strict application of laws. Decades into its existence, India though potentially capable, is not able to get the desired share of development. The reason being, absolute personal liberty granted at the very outset of the development barring the application of strict laws.

Endnotes
1. ‘On Liberty’, J.S. Mill - http://en.wikipedia.org/wiki/On_Liberty
2. ‘You and The Law’, Page 76, Reader’s Digest Association, Inc., New York
3. ‘Iranian Revolution’ http://en.wikipedia.org/wiki/Iranian_Revolution
4. The Justice Malimath Commission Report on Reforms in Criminal Justice System

The author can be reached at: kapilraina@legalserviceindia.com - Ph No: 9890363977 / Print This Article

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