The expression “liberty” is given a very wide meaning in America. It takes in all the freedoms.
In Bolling vs. Sharpe (1954) 347 U.S. 497 at page No. 499, the Supreme Court of America observed that the said expression was not confined to mere freedom from bodily restraint and that liberty under law extended to the full range of conduct which the individual was free to pursue. But this absolute right to liberty was regulated to protect other social interests by the State exercising its power such as police power, the power of eminent domain, the power of taxation etc.
The proper exercise of the power which is called the due process of law is controlled by the Supreme Court of America. In India the word “liberty’ has been qualified by the word “personal’, indicating thereby that it is confined only to the liberty of the person. The other aspects of the liberty have been provided for in other Articles of the Constitution. The concept of personal liberty has been succinctly explained by Dicey in his book on Constitutional Law, 9th edn. The learned author describes the ambit of that right at pages 207-208 thus:
“The right not to be subjected to imprisonment arrest or other physical coercion in any manner that does not admit of legal justification”.
Blackstone in his Commentaties on the laws of England Book1, at page No. 134 observes:
“Personal liberty includes “the power to locomotion of changing situation, or removing one’s person to whatsoever place one’s inclination may direct, without imprisonment or restraint, unless by due course of law”.
In A. K. Gopalan’s case it is described to mean liberty relating to or concerning the person or body of the individual; and personal liberty in this sense is the antithesis of physical restraint or coercion. The expression is wide enough to take in a right to be free from restrictions placed on his movements. The expression “coercion” in the modern age cannot be construed in a narrow sense. In an uncivilized society where there are no inhibitions, only physical restraints may detract from personal liberty, but as civilizations advances the psychological restraints are more effective than physical ones. The scientific methods used to condition a man’s mind are in a real sense physical restraints, for they engender physical fear channeling one’s actions through anticipated and expected grooves. So also creation of conditions which necessarily engender inhibitions and fear complexes can be described as physical restraints. Further the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life.
It is true that Indian Constitution does not expressly declare a right to privacy as a fundarnental right, but the said right is an essential ingredient of personal liberty Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his tamily, is his “castle”; it is his rampart against encroachment on his personal liberty.
The pregnant words of that famous Judge, Frankfurter J., in (1948) 338 US 25 pointing out the importance of the security of one’s privacy against arbitrary intrusion by the police, could have no less application to an Indian home as to an American one. If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.
We would, therefore, define the right of personal liberty in. Art. 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions to encroachments are directly imposed or indirectly brought about by calculated measures. If so understood, all the acts of surveillance under Regulation 236 infringe the fundamental right of the petitioner under Art. 21 of the Constitution .
Kharak Singh Versus State of U.P. and others -18/12/1962 [ Justice Subba Rao]
Categories: Judicial Dictionary