Limits to Freedom
RIGHT TO EXPRESS
Irfan Rasool writes on the concept of freedom and the legal norms associated with it.
“…all government is, of course, against liberty”
… H. L. Menckens
“God created the light from the darkness and the water from the land. And the man divided his fellow man into those who possessed rights and those who were considered to possess none”
The simplistic definition of power can be given as, “the ability to affect another by its exercise”. And the abuse of power, as understood, could be in two ways either by exceeding the limits or by non-performance of the functions entrusted upon the power-holder. The play of power enters at varied points into legal, political and diplomatic developments and operations. The existence of power influences the determination of human behavior in society; the behavior of the “submitted” is frequently determined not so much by themselves as by individuals in “dominating position”. Here it would be worth mentioning what Lord Acton said “power corrupts, and absolute power corrupts absolutely.”
To prevent this ever present danger inherent in power, the organized State imperatively requires, in the interests of the power holders no less than of the power addresses, that the exercise of power be contained and restrained. Human nature being what it is, such restraints cannot be expected to operate automatically; they must be carried into the power process from outside. An agreed set of fixed rules, binding the power holders and the power addresses alike, was found to be the most effective device to prevent the abuse of power by the power holders.
In a multicultural and diverse society like ours, a written Constitution was thought to be the most appropriate device for the containment of State power to which the State has accessed through “Instrument of Accession”. This written document firmly embodies controlling devices in the interest of the power addresses.
Article 19 of the Constitution of India is a catalogue of human rights. The guarantee of free speech and expression enumerated under Constitution is essential for the proper functioning of the State and is a condition precedent of ensuring liberty which is essence in the Preamble to the Constitution. The guarantee of free speech and expression obligates the State not only to respect this right but ensure conditions under which this right can be meaningfully and effectively enjoyed which is an essential facet of social order. An intervention to these basic human rights is an intervention with the dignity of an individual. And such disadvantageous and arbitrary moves would defeat the time count spectrum enshrined in the Indian Constitution.
Constitutionally, the State is expected, under the compulsion of Article 13(2) read with denial of power in Article 14 of the Constitution not to allow any time gap for the approximation of the “is” to the “ought”. What, however, has been witnessed in the valley, particularly after banning the pre paid cell phones, has raised a fundamental question, as to whose fault and whose failure? The power holders have turned into a “black hole”- “in which nothing can be seen and heard”. The failure of the power-holder to respect the principles of freedom and equality has inevitably raised a question that, why the constitutional functionaries are failing to realize the mandate of the Constitution? This further raises a larger question, who will be compelled to restore the status quo against the violation, and pay reparations for violation of rights for the intervening period?
It can be, however, contended that there are two distinct situations when freedom of expression can be restricted. Firstly, Article 19 in its subsequent clause, clause 19(2) enumerates the conditions like “security of state”, as a ground to impose restriction on the freedom of speech and expression. The second instance, when freedom of speech and expression can be restricted, is during the proclamation of emergency. The second situation is however not prevailing and regarding first, Article 19 is self evident to the extent that the restriction imposed ‘shall’ be “reasonable”. And no restriction can be reasonable if it falls foul to Article 13(2) read with Article 14 of the Constitution.
It is contended, however, by the State that in “valley”, illegal and connections to unidentified individuals have put the security of the State at stake. It must be borne in mind that it is not only the valley contemplated with such problem but the entire India, whether it is Mahashrata (where it is presumed that during the attack on Mumbai the terrorists used local cell phones), Bihar (the Nexal hit area, using local cell phones), Tamil Nadu (Tamil tigers presuming using local cells) or for that matter any other state. To deny it would be unrealistic. The state, if now intended to pass any “order”, through its organs to restrain the use of pre-paid phones should have been extended and applicable to all states alike. The State can not discriminate among the citizens of a Nation. The withdrawal of the forces from the State on one hand and the pretext of “security of state” on the other hand projects that it is by ‘design’ that “we the people of Jammu and Kashmir” are being subjected to ‘political absolutism’, concept contrary and antithesis to concept of ‘democracy’. Article 14 ensures fairness and equality of treatment and strikes at arbitrariness in State action. It requires State action to be based on valid relevant principle applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations, for, else, it would be denial of equality. The sentinel on the qui vive of the State action is Article 14 of the Constitution.
The Constitution of India envisages to establish parity of power by providing equality before law and equal protection of the laws, and the three organs of the State – the Legislature (policy determination), the Executive (policy execution) and the Judiciary (policy control) have to function to achieve the aims of the Constitution and in doing so are not to infringe the constitutional rights of the people. One of the ways provided in the Constitution is by denial of power to the ‘State’ by Article 13(2) to abridge or take away any of the fundamental rights guaranteed to the people by legislative action and by Article 14 to control the other exercises of State power so as to ensure compliance with every applicable law as at the relevant point of time.
Article 14 would invite the superior courts also to take a position that judicial action has to be basically centered around policy control in terms of the applicable and constitutionally valued laws and the court to take judicial notice of facts as contemplated in Section 57(1) of Indian Evidence Act and suo motto enforcement of the appropriate provisions in Chapter IX of Indian Penal Code dealing with offences by or against public officers. A judicial action is also state action, it would be necessary for the judiciary not to allow any time gap for approximating the “is” to the “ought” and deliver the promise of law on ground. Judicial procedure will have to ensure that impugned unconstitutional state action is routinely and automatically strayed for, else, restitutive justice would be defeated by delays.
Because of the intimate connection between freedom, equality and man, the inner state of ‘State’ is reflected in the external order. This is the critical moment in history, a time where the constitutional functionaries must exercise their constitutional power to ensure compliance with every applicable law of the land.
“Everything has been said already, as no one listens, we must always begin again.”
(Irfan Rasool is LL.M from National Law School of India University, Bangalore)
Lastupdate on : Thu, 18 Mar 2010 21:30:00 Makkah time
Lastupdate on : Thu, 18 Mar 2010 18:30:00 GMT
Lastupdate on : Fri, 19 Mar 2010 00:00:00 IST
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