Civil Liberties and National Security from Indian Perspective

Author : Sagar Mazumdar, a student of Rabindra Shiksha Sammillani Law College, University of Calcutta

To The Point

The scuffle between the two are not new but a longstanding battle. Many argues that Government is keeping eye on people. Whereas, others defends that it is necessary in order to maintain the integrity and unity of the nation. But one common thing that both cannot deny is that too much of anything is harmful. If the Government starts surveillance upon the individual then it is likely to frustrate the civic society as one day may come when the Government may start dictating on what to wear, what to eat, how to wear and how to eat. Similarly, if there is right without no restriction, then it may lead to an undesirable situation. For example, if certain safeguards are not provided for sharing of content on the internet by the appropriate authority and it is free to share whatever one want, then it may lead to a state of anarchy. This article is about civil liberty national security from the Indian perspective. It is mainly about what are the civil liberties and the basic constitutional restrictions in relation to national security.

Legal Jargon

MEANING AND ORIGIN OF THE CONCEPT OF CIVIL LIBERTIES AND NATIONAL SECURITY

The term Civil Liberty, in general terms, refers to those rights which are absent of any restraint. These rights are not absolute and should not be treated as a license to do whatever one feels like. There are certain restrictions imposed by the states on its enforcement. These restrictions are to be backed by the principle of natural justice. The concept of civil liberty first got its formal recognition in the year 1215, in the form of Magna Carta. The principles like right to own and inherent property freely, due process of law and equality before law has given birth to the concept of human rights. Later, the adoption of the Constitution of America and French Declaration has strengthened the need for civil liberties. It was finally in the United Nations Declaration on Human Rights which mandated all the member nations to recognize rights related to the dignity of humans. In India, the principle of compassion for all human beings and the righteousness inscribed in the form of Dharma has also been a focal point of civil liberty.

National Security, on the other hand, is the protection of a state from internal and external threats to ensure safety to the people and infrastructure. It can be referred to socio-political stability, territorial integrity, economic solidarity and strength, ecological balance, ecological cohesiveness, external peace and so on. In its broadest sense, national security has unlimited scope. It can be said that the physical security of a state is referred to as the national security. In India, during the British regime, the Defense of India Act, used to deal with preventive detention. Any person could be detained for a period of up to two years without any trial if they were suspected to cause threat to security and public order. In the beginning, it was used to deal with the exigencies of World War I but then it was used to arrest and curb the voices which were protesting against the colonial rule and fighting for India’s independence. 

Proof

Civil Liberties under Indian Constitution

• Protection of Certain Rights (Article 19): The rights under this article are guaranteed to the citizens only. Foreigners and juristic persons are not guaranteed rights under this Article. All these rights are subjected to reasonable restrictions. The six rights are as follows:

1. Freedom of Speech and Expression: It states that every individual has the right to express his views freely to the public through writing, speaking, using of gestures, paintings, photography, audio, video, and so on. The freedom of free press is also covered in this category. The term ‘expression’ means no interference by the authority.
2. Right to Assemble: The main conditions to be fulfilled are that the assembly must be peaceful and without arms. It must not be violent or do anything in the public which incites violence or breach of peace. Taking part in procession, or demonstration either political, religious or any other nature which leads to public disturbances are not covered under Article 19(1)(a).
3. Right to Form Associations: Right to form and continue to remain a member of any company, corporation, club, society, partnership firms, political parties, union, cooperative or any other type of organization are the positive aspects of this provision. The right to not join any association or organization is the negative aspect of the provision. Recognition of association is not a fundamental right as it is subject to the reasonable restrictions.
4. Right to Move Freely: The usage of the phrase ‘move freely throughout the territory of India’ clearly indicates that the citizens have the right to move from one place to another within India. This may include both ‘one village to another’ as well as ‘one state to another’ provided it should be within India. The intention of this sub-clause is to build a nationalistic mentality among the people that the country is one as a unit. 
5. Right to Reside and Settle: The expression ‘reside’ induces temporary nature whereas the expression ‘settle’ induces the permanent nature. Even in this case, the residing and settlement should be within the territory of India. The object is same as that of Article 19(1)(d). Both the provisions are complementary to each other. Even this provision is subjected to certain restrictions.
6. Right to Practice any Profession, or to Carry on any Occupation, Trade or Business: This provision covers all the means of earning livelihood. No person shall be prohibited from earning livelihood others on ground of reasonable restriction and educational qualification and State’s partial or whole control over an industry. 

• Protection in respect of conviction for offences (Article 20): Article 20 grants the right to ‘persons’ which includes citizens, foreigners as well as juristic persons. The provision contains three directions-

1. Ex Post Facto Law: It states that no person shall be convicted for an offence other than which is committed during the law being in force. And it also states that no person shall be subjected to punishment higher than what was provided by the law during the time of commission of the offence. This means that no person should be punished retrospectively. This protection is not provided in case of a civil proceeding or a taxing statute. 
2. Double Jeopardy: Based on the legal maxim Nemo Debet Bis Vexari Pro Una Et Eadam Causa states that no person shall be prosecuted for an offence for which he has already got the punishment. Here, both prosecution as well as punishment is necessary.
3. Prohibition Against Self-incrimination: The provision states that no person accused of any offence shall be a testimony or a witness against himself. Based on the legal phrase “Innocent until proven guilty”, it wants the prosecution to prove the charges against him. Even this provision applies only to criminal proceedings and not to civil proceedings.

• Protection of Life and Personal Liberty (Article 21): The provision states that no person shall be deprived of his/her personal liberty except the procedure established by law. Earlier, the court had a very narrow view in this regard. But in Maneka Gandhi v. Union of India, it was held that the procedure established by law included due process of law which meant that the law should be fair, just and reasonable. It was also available against legislative actions. And the term right to life included the right to live with dignity. Personal liberty includes all the rights with which a human being can live with comfort.

• Protection Against Arrest and Detention in Certain Cases (Article 22): It consists of two cases of detention. In the first case, detaining of a person after trial and conviction of an offence. The second case deals with the protection from preventive detention, that is, arrest and detention before commitment of any offence in order to prevent the person from committing any offence in future.

National Security Concerns

The term Reasonable Restriction usually means restriction backed by care and caution. Under Article 19, it refers to restrictions on the ground of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence. But here, the scope of discussion shall be restricted to the grounds which are related to national security. They are as follows:

1. Sovereignty and Integrity of India: This ground states that the State can restrict any person if it tries to strike on the sovereignty and integrity of India. The term sovereign means that India is not dependent on any external power. If read together, it means the independence of India from any external control and the country as a whole. [Applies to subclauses (a), (b), (c) of clause (1) of Article 19]
2. Security of the State: The ground is concerned with the acts which are very serious in nature. For example, armed rebellion, insurrection, invasion, waging war against the state. It does not matter whether the end result is achieved or not but even an action which has a chance to incite serious violence may attract this provision. [Applies to subclause (a) of clause (1) of Article 19]
3. Friendly Relations with Foreign States: This restriction has been attached to prevent individuals from doing certain acts which may put the friendly foreign relations at stake. Foreign relations being of strategic importance for any country’s benefit, this provision is to make sure that the friendly relation is maintained. [Applies to subclause (a) of clause (1) of Article 19] 
4. Public Order: Anything which disturbs public peace is a disturb to public order. For example, a communal disturbance, or a lockout by laborers are example of disturbance to public order. Public order is that state where the people are in sync with the law of the state and are governed according to the internal rules made for that purpose. What may disturb public order may not disturb security of the state as security of the state is a smaller real and only few acts have the capacity to do so. [Applies to subclauses (a), (b) and (c) of clause (1) of Article 19]
5. Incitement to Offence: No person can be expected to commit or omit anything in the name of civil liberties which otherwise will constitute an offence. No person can exercise this power on the expense of the liberties of other person. [Applies to subclause (a) of clause (1) of Article 19]

National Emergency 

(Article 352) deals with National Emergency. It states that when the security of the state is threatened by war, external aggression or armed rebellions, the President can declare Emergency. During Emergency, Article 19 is automatically suspended. This means that the President is not required to suspend the Fundamental Rights under Article 19 specifically. This will allow the State to make law or take actions which were otherwise restricted by the Article before. After the emergency is over, the Article shall be restored. But the 44th Amendment Act, has made suspension of fundamental rights under Article 19. Firstly, only if emergency is declared on the grounds of external aggression or war and not armed rebellion. Secondly, only those actions are protected which are related to emergency. Article 359 states that the other fundamental rights can be suspended only when the President declares in the Presidential Order. It is not that the Articles are suspended, it is only their enforcement which is suspended. The 44th Amendment Act has also made changes in the scope of Article 359. Firstly, Article 14 and Article 21 cannot be suspended. Secondly, only those actions are protected which are related to emergency.

In either case, no remedy lies for the actions taken by the Legislative or Executive during the Emergency period.

Various Statutes

Indian Penal Code: Chapter VI of the Indian Penal Code provides for the substantive laws relating to waging war and sedition and depredation of foreign relations. 

Unlawful Activities (Prevention) Act: This act deals with the prevention of unlawful activities. It defines the terms unlawful activities as well as terrorist acts in relation to sovereignty and territorial integrity, unity, and security. It also provides for the procedure of bail. 

National Security Act: This act empowers the Central and State Governments to give effect to preventive detentions on the grounds that the person has acted prejudicially to the defense of India, friendly relation with foreign states, security and maintenance of public order. The Act empowers the person to be detained up to the period of twelve months. The government can withhold facts regarding detention if it thinks it will be against public interest if disclosed.

Abstract

The Test of Reasonable Restriction

If a law invades the rights of a person guaranteed then its reasonableness is it to tested. The Supreme Court has in many cases laid down circumstances as to the reasonableness of any law. The reasonableness is to be decided by the Courts and not the Legislature. It should be maintained that the law is not arbitrary and care and caution has been exercised on the reasonableness of the law. Each case has to be judged according to the facts and circumstances. There are no standard criteria to be maintained in judging the reasonableness of each case.

Remedies Available

In case of violation of the fundamental rights, the people so affected can file Writ petitions under Article 32 or Article 226 of the Constitution of India. The Indian Constitution has provided five writs- Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. Every Writ has its own merits and has to be used with caution. Any person though not affected by violation of any fundamental rights can still file a petition under Public Interest Litigation.

Case Laws 

In Indian Express Newspapers v. Union of India, the Supreme Court held that freedom of free press and expression is at the heart of the socio-political intercourse.

In Haji Mohd. V. District Board, Malda, restriction of a teacher to take permission before engaging in political activity was held to be reasonable.

In Niharendu Dutt Majumdar v. Emperor, the Federal Court held that mere criticism of the Government did not amount to offence unless it is making people disobey the Government and only anarchy is followed.

Conclusion

It is to be noted that with the changing patterns of the society and technological upgradation, news ways are being discovered which are causing invasion to the civil liberties. The States should take appropriate action in balancing the civil liberties guaranteed to an individual and to what extent that it would not lead to any breach of the national security. The Courts also have an important role in this aspect. It has to decide on the facts and circumstances of each case what is a reasonable restriction to civil liberty. It should maintain that freedom of speech does not turn into a hate speech.

FAQs

1. What does the term Civil Liberty mean?

Ans. The term civil liberty basically refers to those rights without any restraint. But if it is to be followed in its entirety then the situation may lead to anarchy. Thus, civil liberty has some restrictions to it.

2. What does the term National Security mean?

Ans. National Security refers to the safety of a nation from internal and external threats.

3. What is the Test of Reasonableness?

Ans. The test of reasonableness refers to the test to check whether a decision was guided by adequate care and caution. There is no standard criteria to check the reasonableness of a decision and it varies from case to case.

4. Is there any Remedy?

Ans. Yes, there is remedy. Writs are maintainable in case of breach or violation of the civil liberties guaranteed under Constitution of India.

References:

1. American Declaration of the Rights and Duties of Man
2. The Declaration of the Rights of Man and of the Citizen. 
3. United Nations Universal Declaration of Human Rights
4. Morality and moral development: Traditional Hindu concepts, National Library of Medicine 
5. Thomas I. Emerson, Civil Liberties and National Security, Vol. 9;78 1982, TYJWPO 78 1982
6. KBS Sidhu, From British Raj to the NSA: A Historical Analysis of Preventive Detention (last visited on June 15, 2024)
7. Indian Penal Code, 1860, Act 45 of 1860
8. Unlawful Activities (Prevention) Act, 1967, Act 37 of 1967
9. National Security Act, 1980, Act 65 of 1980
10. Chintamani Rao v. State of Madhya Pradesh, AIR 1951 SC 118
11. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
12. Maneka Gandhi v. Union of India, AIR 1978 SC 597
13. Indian Express Newspapers v. Union of India, (1985) 1 SCC 641
14. Haji Mohd. V. District Board, Malda, AIR 1958 Cal. 401
15. Niharendu Dutt Majumdar v. Emperor, AIR 1942 FC 22
16. Bimal Gurung v. Union of India, AIR 2018 SC 459 pp. 1470, 1472.
17. 58th Edition, Dr. J. N. Pandey, Constitutional Law of India, Central Law Agency 2021 
18. Constitution of India.