The laws which pay due regard to the spirit of liberty are known as good laws. Gettell has very aptly remarked in this respect, “Sovereignty carried to the extreme becomes tyranny and destroys liberty and liberty carried to the extreme becomes anarchy and destroys sovereignty.” Thus, it is quite clear that there is a very close relationship between liberty and equality.
Where there is no law there is no freedom.
Law is considered to be an essential part of liberty. Laws are the one who protects liberty. In the absence of law, the individual will not be able to seek help in order to safeguard his liberty.
Law: Backbone of a country
Law is being referred to as a set of rules and regulations which guides the society. It is very important for society to understand that in order to maintain equality and sustain equity law plays a crucial role. The rule of law helps to maintain peace and society free of chaos. A system of rules which a particular country or community follows as regulating the actions of its citizens which may be enforced by the imposition of penalties. Law is considered to be a guideline that is accepted by the whole society and if there would be conflicts among people having different opinions and different social groups then the law would be taken into consideration. Hello plays an important role in bringing up a positive change in the society which is focused towards the integration and welfare of the society. This is a positive change is the result of the development of society as a social change. What is the demand of the hour? Does it prove that whenever the society needs to be changed in a particular way the answer to the question lies within the subject of law? On the other hand, if we talk about liberty which is defined as a state of being free within a country from all the restrictions that are imposed by authority.
What is Liberty?
Liberty is the freedom from arbitrary or extreme external restraint. It is considered as a right, privilege, or immunity enjoyed by prescription or by a grant. Liberty can be classified into two types as according to Isaiah Berlin:
- Positive Liberty – Positive liberty is a liberty which has the capacity to act on one’s own will. It provides freedom from internal restraints. Individual liberty has the power of an individual to act in the government and bring changes. This includes the concept of self-governance and democracy.
- Negative Liberty – Negative liberty is the concept of attaining freedom from external restraints. An individual is free from any interference by other persons as according to negative liberty. Thomas Hobbes and John Locke are the proponents of this theory.
Law and liberty
Liberty comes as a result of established law. It is the law that guarantees freedom and liberty to individuals.
In order to define how law protects liberty. This can be explained in three different ways.
- Law provides a congenial atmosphere for the smooth running of civilized life of a person in our society. Law helps to punish the criminals and defend the right of the individuals.
- Laws guarantee to protect individual rights and duties for the enjoyment and public welfare. The state punishes the individual who causes harm to others and hinders the path of others.
- The Constitution of India is considered to be the custodian of liberty. It is the only Constitution that confines the authority of the state in order to protect the fundamental rights of the people so as to create a healthy environment among people.
Relationship between Law and Liberty
There are two kinds of relationships between law and liberty:
1) Positive Relationship
This approach talks about a positive relationship that induces between law and liberty. Law promotes liberty. The more law there is, the more liberty there is. They are proportionate to each other. And as soon as law ends, liberty also ceases to exist. Where there are no laws to protect or provide freedom and liberty, violations of the same take place. John Locke suggests that where there is no law, there is no freedom. Professor Willoughby has asserted that “Freedom exists only when there is restraint.” Gettell observes, “Liberty in any real and dependable sense is possible only if sovereignty exists and becomes more perfect as sovereignty is more completely organized.”
This approach has been upheld by the Supreme Court of India in its various decisions. For example,
- Maneka Gandhi v. Union of India, when the personal liberty of the petitioner was abrogated, the Supreme Court protected her liberty in consonance with the Constitutional rules. Similarly,
- Navtej Singh Johar v. Union of India, the Supreme Court provided that Homosexuals were free to choose their partners and had liberty in doing so.
2) Negative Relationship
Several theorists suggest that there exists a negative relationship between the two. However, there are two dimensions of the same:
The more the law, the less the liberty – This approach talks about the concept of ‘state of nature,’ that is, anarchy. Anarchy is a state of a situation where there is no law or government to regulate the acts of an individual. The pure state of nature or “the natural condition of mankind” was deduced by the 17th century English philosopher Thomas Hobbes. According to Hobbes, the state of nature is a negative concept; i.e., it was a constant state of war. However, Rousseau and Locke provide a rather positive interpretation of the ‘state of nature.’ According to them, life in the ‘state of nature’ was happy, and there was equality among men. This approach suggests that law restricts liberty. It was highly prevalent in the 18th-19th Century. Some scholars even suggest that the concept of state endangers the concept of liberty.
The more the liberty, the less the law – Some scholars advocate that law should not provide for liberty because more provisions for liberty would defeat the ultimate purpose of the law. In other words, liberty is in contradiction with the purpose of law and therefore, negates it. Professor A.V. Dicey stated this approach.
Leading Case Laws
In 1977 the new Government sought to impound Maneka’s passport against which she went to court and won a landmark decision on personal liberty. In the case, the court found that “Democracy is based essentially on free debate and open discussion, for that, is the only corrective of government action in a democratic setup.” Thus the Indian Legal system provided liberty to its citizens as per the provisions of the Indian constitution.
Popularly known as the Bank Nationalization Case, the apex court overruled the ratio laid down in A. K. Gopalan case and rejected the mutual exclusivity theory. The court gave preference to the effect test over object test. In case the effect of any act violates the fundamental rights of citizens, it shall be violative of the Constitution and liable to be struck down. The court held that the term property in itself constitutes the rights, liabilities etc. that accrue to the property. The power to acquire property was held to be an independent power of Parliament and it required no separate legislation under List II or List III. The Supreme Court ruled that the state can always create a partial and absolute monopoly.
It has come a long way through a journey of various judicial pronouncements by the Supreme Court. In A.K. Gopalan case, the Supreme Court narrowed down the meaning and scope of “personal liberty” and held that the term “personal liberty” meant only freedom of the physical body and that Articles 19 (1) (d) and Article 21 have to be treated separately.
Where Supreme Court considered the said regulation as ultra vires Article 21 and Article 19 (1) (d) of the Constitution and held that domiciliary visits by the police every night to check and monitor the doings of Kharak Singh were violative of his right to personal liberty and right to freedom of movement as “personal liberty meant much more than mere animal existence”.
Law & Justice
The Constitution of India guarantees protection of life and personal liberty to one and all. It provides adequate safeguards to fundamental rights against arbitrary decisions. This section has detailed information about various legislations, rules and regulations, legal institutions, commissions and tribunals. You can also get information about the Supreme Court, High Courts, Subordinate Courts, Legal Aid, Profession, Alternative Dispute Resolution (ADR) etc. Details of online services and free legal aid schemes are also available. Related documents and forms are provided in this section
Thus, the relationship between law and liberty is ambiguous in nature. A positive approach is more prevalent in present times. The negative approach, either advocates for the absence of a legal scenario or the absence of liberty. Both the dimensions of the negative approach endanger a civilized society. Where law ends, anarchy begins and where liberty exits, tyranny enters. In the contemporary world, liberty is important for individuals but this struggle is subjective, the freedom of a person has no limits, means he can do anything he wants and these actions may be negative for society. Here comes the role of law, which imposes the restrictions that are reasonable and justified to bring in liberty in a positive sense which is more important for the state than absolute liberty.
1. AIR 1978 SC 597 (Passports Act, 1960
2. AIR 1970 SC 564- (Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969)
3. AIR 1950 SC 27 (Preventive Detention Act, 1950)
4. AIR 1963 SC 129(Regulation 236 of Chapter XX of the U.P. Police Regulation)
Student, Amity University NOIDA
Vani Parashar is a 3rd-year law student at Amity University, Noida. As a law student, She has taken part in different fields like youth parliaments, debates, MUNs and event organisation. She is a well-rounded individual who lives with passion, dedication and grace and this is what sets her apart from anybody else.