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Constitutional Justice and Personal Liberty
Context:
As India marks the 75th anniversary of its Constitution, it is imperative to reflect on the ethical and moral crises that challenge its core values.
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- Personal liberty and human dignity, integral to the constitutional ethos, are increasingly being interpreted in reductionist and mechanical ways.
- Amid the celebrations, there is a need to soberly examine the right to personal liberty, a cornerstone of justice in any democratic framework.
The Legacy of Dissent and Constitutional Ethics
- The Supreme Court’s reinstatement of Justice S. Fazl Ali’s dissenting opinion in the landmark A.K. Gopalan vs State of Madras (1950) case—through its judgment in Puttaswamy vs Union of India (2017)—is a pivotal moment in Indian constitutional jurisprudence.
- Justice Fazl Ali’s dissent, which argued for a broader interpretation of personal liberty, was vindicated in 2017, highlighting the ethical and constitutional flaws in the majority ruling from 1950.
- This dissent upheld Gopalan’s right to political resistance, aligning liberty with the ethical principles of the Constitution.
- The Court’s acknowledgement of past errors underscores the indivisibility of justice, liberty, and dignity.
- As Justice R.F. Nariman observed in Puttaswamy, Article 21 of the Constitution is designed to ensure the dignity of the individual, a fundamental human value.
- In these reflections lies a profound question: how can the Constitution remain a living document—workable, flexible, and strong—in the face of divisive political narratives?
Preventive Detention and the Erosion of Liberty
- The issue of preventive detention, arbitrary arrests, and prolonged custody has taken on alarming dimensions.
- Anti-terror laws, often enacted with minimal checks, have turned legal processes into instruments of punishment, undermining personal liberty and the rule of law.
- From A.K. Gopalan, who faced imprisonment under independent India’s preventive detention laws, to modern-day dissenters like Umar Khalid, Sharjeel Imam, and Gulfisha Fatima, the patterns of injustice and impunity remain disturbingly consistent.
- While Puttaswamy heralded the recognition of privacy and liberty as constitutional values, these principles are often overshadowed by the systemic criminalisation of dissent.
- Young activists who protested the Citizenship (Amendment) Act (CAA) of 2019 face prolonged imprisonment under opaque legal procedures.
- This paradox—where dissent is both upheld and criminalised—highlights a crisis of constitutional ethics.
Historical Parallels and Contemporary Challenges
- A.K. Gopalan’s memoir, In the Cause of the People: Reminiscences (1973), offers a vivid account of his struggles against detention and injustice.
- His defiance, even in the face of imprisonment, mirrors the resilience of today’s anti-CAA protesters.
- Yet, while courts in Gopalan’s time occasionally moved to uphold personal liberty, contemporary judicial interventions often lack the urgency needed to address prolonged detentions.
- The preventive detention regime that began in 1950 has expanded into a sprawling complex of laws that perpetuate colonial legacies.
- As civil libertarian lawyer K.G. Kannabiran aptly noted, the Gopalan judgment was “the first Indian-made foreign judgment,” validating colonial practices in an independent India.
- Seventy-five years later, the proliferation of such laws demands urgent judicial scrutiny to align them with the ethical principles enshrined in the Constitution.
Toward Creative Constitutionalism
- The arrests of writers, activists, and community leaders in cases like Bhima Koregaon and the Delhi riots reveal systemic failures to uphold personal liberty.
- These cases underscore the urgent need for what Professor Upendra Baxi calls “creative constitutionalism.”
- Courts must exercise their power to reinterpret laws and protect constitutional values, ensuring that justice is not deferred for future generations.
Preventive detention, unchecked state power, and the criminalisation of dissent pose a grave threat to the ethical spirit of the Constitution. The time to act is now—India cannot afford to repeat its mistakes and wait decades to acknowledge being on the wrong side of history. Upholding personal liberty and justice is not just a legal obligation but a moral imperative to preserve the democratic soul of the nation.
