It is important to note the concept, object and scope of life and personal liberty as enshrined in Article 21 of the Constitution of India by quoting the observation of Shri K.Ramaswamy, J. in the case of Kartar Singh v. State of Punjab , . His Lordship while dealing with the constitutional validity of the draconian law i.e. Terrorist and Disruptive Activities (Prevention) Act, 1987 observed as under – .The right to life with human dignity of person is a fundamental right of every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for full development of human personality.
Article 21 of the Constitution protects right to life which is the most precious right in a civilised society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Article 19 conjointly assured by Arts. 20(3), 21 and 22 of the Constitution and Article 19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for the full development of human personality.
Liberty is the essential concomitant for other rights without which a man cannot be at his best. The essence of all civil liberties is to keep alive the freedom of the individual subject to the limitations of social control envisaged in diverse articles in the chapter of Fundamental Rights Part III in harmony with social good envisaged in the Directive Principles in Part IV of the Constitution. Freedom cannot last long unless it is coupled with order. Freedom can never exist without order. Freedom and order may coexist. It is essential that freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive. Fundamental rights are the means and the directive principles are essential ends in a welfare state.
The evolution of the State from Police State to a Welfare State is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Though one of the main functions of the democratic Government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order. The individual has to grow within the social confines preventing his unsocial or unbridled growth which could be done by reconciling individual liberty with social control.
Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a companion virtue; virtue and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability. Man being a rationale individual has to live in harmony with equal rights of others and more differently for the attainment of antithetic desires. This intertwined network is difficult to delineate within defined spheres of conduct within which freedom of action may be confined. Therefore, liberty would not always be an absolute licence but must arm itself within the confines of law.
In other words there can be no liberty without social restraint. Liberty, therefore, as a social conception is a right to be assured to all members of a society. Unless restraint is enforced on and accepted by all members of the society, the liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty must be a problem of organising restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper social weal and harmony and powerful courses or forces would be at work to determine social welfare and order. Thus, the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution.
The modern social evolution is the growing need to keep individual to be as free as possible, consistent with his correlative obligation to the society. According to Dr.Ambedkar in his closing speech in the Constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced by liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would not produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things.
Courts, as sentinel on the qui vive, therefore must strike a balance between the changing needs o the society for peaceful transformation with orders and protection of the rights of the citizen. One of the functions of the State is to maintain peace and order in the society. As its part, State is not only the prosecutor of the offender but also the investigator of crime. To facilitate such investigation police has been given wide powers to arrest the suspect without warrant, interrogate him in custody search and seize incriminating material, to collect the evidence and to prosecute the offender. Deprivation of dignity of person, self-respect and inviolable right to life, would only be within the prescribed limits set down by laws; assiduously supervised by courts; and executive excesses strictly be limited. Excessive authority without liberty is intolerable. Equally excessive liberty without authority and without responsibility soon becomes intolerable. Lest the freedoms and fundamental rights become sacrificial objects at the altar of expediency.
Unrestricted liberty makes life too easy for criminal and too difficult for law-abiding citizens. In a free society too many crooks blatantly break the law, blight young lives, traffic in drugs and freely indulge in smuggling and claim fundamental rights to exploit weak links of law, indulge in violence and commercial camouflage. Our values are drastically eroded because many a man with no more moral backbone than a chocolate éclair claim the freedom and free action which results inevitably in increasing the members of violent criminals. In the midst of clash of interest, the individual interest would be subservient to social interest, yet so long as jubi jus, ibi remedium is available the procedure prescribed and the actions taken thereon by then law-enforcement authority must be the test of the constitutional mandates.