Concept Of Liberty

• The term ‘Liberty’ is derived from the Latin word

‘Liber’ which means free.
• Freedom means unrestricted liberty enjoyed by man in
the ‘State of nature’. Liberty means restricted freedom
available to people living in a society or state.
• Negative aspect
• Prof. Seeley- Liberty is the opposite of over-
government.
• GDH Cole- Liberty is the freedom of every individual to
express, without external hindrance, his personality
• Burns- Liberty means to grow to one’s natural height,
to develop one’s abilities.
• Positive Aspect :
• T.H.Green – Power to do or enjoy something
that is worth doing or worth enjoying in
common with others
• M’Kechnie – Freedom is not the absence of all
restraints but rather the substitution of
rational ones for irrational
Aspects of Liberty :
1. Negative Liberty
2. Positive Liberty
• Negative aspect of liberty means ‘absence of restraints’.
This implies there should be no limits or control on
individual liberty.
• The supporters of this theory are Locke, Detocqueville,
Edmund Burke’ Thomas Paine, Bentham, Spencer and
most significantly J.S.Mill
• “That government is the best which governs the least.”
• The state is a necessary evil. It must not interfere with the
natural liberty of individuals.
• Article 21 lays down that no person shall be
deprived of his life or personal liberty except
according to' procedure established by law’.
• Article 21 emphasizes, Right to food, Right to
livelihood, Right to medical care, Right to
Shelter, Right to privacy, Right to education,
Right to healthy environment.
• Article 21 uses four crucial expressions , viz:
1. Life: as here used, something more is meant than mere animal
existence. The inhibition against its deprivation extends to all
those limbs and facilities by which life is enjoyed.
2. Personal liberty: In art.21 it is of widest amplitude & it covers a
variety of rights which go to constitute personal liberty of man&
some of them have been raised to status of distinct Fundamental
Rights
3. Law: constitution make no distinction in principle between a law
made by the legislature & ordinance issued by president, both are
equally subject to limitation which the constitution has placed
upon that power.
4. Procedure established by law: it extends both to substantive as
well as procedural law. A procedure not fulfilling these attributes
is no procedure at all in the eyes of art.21
Kinds of Liberty :
1.Natural Liberty
2.Moral Liberty
3.Civil Liberty
4.Political Liberty
5.Economic Liberty
6.National Liberty
7.International liberty
Safeguards of liberty:
1. Inclusion of rights in the Constitution
2. An Independent and impartial Judiciary
3. Rule of Law
4. Separations of Powers
5. Restrictions on the Legislature
6. Absence of special privileges
7. Freedom of Press
8. Democratic Government
9. Economic Security
10. Decentralization of Powers
11. Sprit of Liberty
The Relationship between Law and Liberty :
• Laws protect and promote liberty.
• There are several factors like, the form of the
government, the socio-economic status of the
society and the sprit of the liberty in the
individuals which determine the relationship
between law and liberty.
• Law and liberty are complimentary to each other
• Law and Liberty are contradictory to each other.
• Maneka Gandhi v. Union of India Maneka’s
passport was impounded by the Central govt.
under the passport Act in the interest of the
general public.
• Maneka filed a writ petition challenging the order
on the ground of violation of fundamental right
under Art. 21. The major ground of challenge was
the order impounding the passport was null and
void as it had been made without affording her
an opportunity of being heard in her defense
• Right to livelihood : Olga Tellis V. Bombay
Municipal Corporation - AIR 1986 SC 180
• The right to livelihood is borne out of the right to
life, as no person can live without the means of
living, that is, the means of livelihood.
• If the right to livelihood is not treated as a part
and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to
life would be deprived him of means of livelihood
to the point of abrogation.
• . Right to privacy : Mr. ‘X’ v. Hospital ‘Z’ (AIR
1999 SC 495)The Supreme Court explained
that Article 21 of the Constitution entitles a
person to lead a healthy life and therefore the
women who was to marry a person was
entitled to know whether her prospective
husband has any deadly and communicable
disease.
• . RIGHT TO SHELTER : Shantisar Builders v. Narayan
Khimal Totame AIR 1990 SC 630 The SC has ruled that
the right to life is guaranteed in any civilized society.
That would take within its sweep the right to food, the
right to clothing, the right to decent environment and
reasonable accommodation to live in. The difference
between the need of an animal and a human being for
shelter has to be kept in view. For an animal it is the
bare protection of body: for a human being it has to be
a suitable accommodation which would allow him to
grow in every aspect-physical, mental and intellectual .
• Parmanand Kantar V Union of India AIR 1989
The SC has considered a very serious problem
existing at present: in a medico legal case
(such as accident) the doctor usually refused
to give immediate medical aid to the victim
until the legal formalities are care completed.
In some cases, the injured die for want of
medical aid. The SC has now very specifically
clarified that preservation of life is of
paramount importance.
• RIGHT TO EDUCATION Mohini Jain V. State of Karnataka AIR
1992“The right to education flows directly from the right to life,”
and the right to education being concomitant to the fundamental
right, “The state is under a constitutional mandate to provide
educational institutions at all levels for the benefit of the citizens.”
• Vishaka v. State of Rajasthan AIR 1997 The SC has declared sexual
harassment of a working woman at her place of work as amounting
to violation of rights of gender equality and right to life and liberty
which is clear violation of Article 14,15 and 21
• RIGHT TO ENVIRONMENT , Murali S. Deora v. Union of India, Since a
non-smoker is afflicted to various diseases including lung cancer or
of heart, only because he is required to go to public places and it is
indirectly depriving of his life without any process of law. Hence
smoking in public places was banned