Law and Liberty

In the general parlance, liberty and law are seen as opposite forces where law restricts the extent of liberty and liberty continuously pushing the boundaries of the law.

Law is the set of rules and regulations which enables effective functioning of society by upholding its collective value system, codification of collective ethics of society.For example, a society which values gender equality will translate this idea into a law that prescribes penalization of gender discrimination.

Liberty- idea or state of being free and being able to act in accordance with one’s wishes. For example, an Indian citizen has the liberty to reside in any part of the country.

Influence of liberty on law in following ways-

• Influence through the constitutional pathway: Liberty as a part of basic structure , so laws antithetical to individual liberty are unconstitutional.
• Civil society vigilance on restriction to liberties: For example, the law barring widow remarriage in India faced opposition from several sections and was ultimately amended.
• Democratic nature : creates an indirect pressure on the political representative to align laws with collective will of the people.

Impact of Law on Liberty

• Balancing individual liberty and collective needs: For example, restricting freedom of movement in border areas essential to protection of National Security.
• Acting as a catalyst to liberty: Law provides framework for the individual to exercise his/her liberty, especially when the societal conditions are not conducive. For example, Abolition of Sati law encouraged individual liberty of women : notion of positive liberty.
• law can act an agent of reform and make societal value system more progressive.
• law creates a punitive mechanism for enforcement of legitimate rights and liberties in a society.
• Acting as a hinderance to liberty: balancing individual liberty and collective needs of society, institutions tend to interfere and unreasonably restrict the individual freedom thus creating hindrance to exercise of individual liberty

Way Forward

Supreme court in Right to Privacy judgement provided Doctrine of Proportionality, which states-

• Legitimate state aim: any restriction proposed by the state cannot be arbitrary I.e., it should be based on a legitimate state aim
• Relationship between the restriction and the aim: rational nexus between the liberty which has been restricted and aim of the state.
• Least restrictive method: for achieving the desired aim.
• Balance between the restriction of liberty and overall benefits

What can be done to avoid such a contradiction in the first place?

• Making the legislative process more participatory and inclusive
• Regular updation of laws: For example, Section 377 of IPC, Section 497 of IPC etc., although antithetical to the prevalent value system, remained in use due absence of methodology for regular updation of laws.
• Encouraging empathy among citizens: for diverse situations will help reaching a common ground without generating discontent

Conclusion

In the contemporary world liberty is important for individuals but this freedom is subjective, depending upon the socio-economic context of the society. But this restriction needs to pass the test of reasonableness, keeping in mind that in the long-term, efforts should be made minimize the occurrence of such contradictions.