Even the unswerving proponent of liberty, Lord Denning conceded that “liberty of the individual, has to be balanced with his duty[1].” This is in contravention to the purely individualistic ideology of classical liberals epitomized by Mills[2]. 

Liberty remains to be a cause for which men are willing to fight and die; and to fetter individual freedom by unnecessary, unenforceable, and unfeasible restrictions is bound to incite revolt[3]. The state, under the veneer of its welfare function might stifle individual liberties[4] to appease transient political majorities. This would upset the delicate equipoise between individual liberty and state intervention. This necessitates meticulous introspection about aspects of liberty to ensure such a miscarriage of justice is not being meted out.

Such an assessment cannot be done in isolation from the effects of the current pandemic. From historic novels like Albert Camus’s “The Plague[5]” to contemporary works [6]of erudite professors like Frank Snowden of Yale University a common lesson is evident- A big calamity has the tendency to make the state stronger vis-a-vis the citizenry. This has been factually evident during the current pandemic. Flagrant ignorance of privacy owing to mandatory installation of unreliable apps like Aarogya Setu tracking sensitive data of the users, the developer of the app is kept discreet [7]by the government. This vitiates the right to privacy of an individual which has been exalted to a fundamental right[8]. But the courts deemed it expedient to not intervene. [9]

The liberty of expression available to the media has been conciliated. Fabricated charges of grave offences like sedition under draconian preventive detention laws are pressed against anyone who dares to question the government. Kishorechand Wangkhem was incarcerated for criticizing Chief Minister Biren Singh[10]. Pawan Jaiswal was arrested for unearthing that only roti and salt were served as midday meals. [11]The courts have been lackadaisical in entertaining the habeas corpus petitions, the only legal avenue available in cases of preventive detention filed by these journalists. 

More worryingly, the courts have rekindled the logic of “executive supremacy[12]” which had ultimately culminated in the disgraceful ADM Jabalpur case [13]and held that there is limited scope under Article 226 of the Constitution to review a detaining order[14]. It is not only article 226 that is being emasculated. Even Article 32, the “heart and soul” of the Indian Constitution is being subverted by its very guardians. The Chief Justice of India has on two consecutive days reiterated that the apex court is seeking to “cut down the article 32 jurisdiction[15].”  The petitioner in the first instance was praying for the release of a journalist whose only “crime” was reporting the heinous Hathras incident. 

Disarmed with the most potent weapon in a citizen’s arsenal-article 32; the realization of the exalted and extolled ideals of justice enshrined in the Indian preamble would prove elusive. The slow, yet, steady emasculation of it not only from the executive, but the judiciary is an alarming shift endangering the very sustenance of fragile ideals like liberty; and this concerning trend needs to be arrested with alacrity. 

This writer is confident, that the Indian judiciary in consonance with its robust ethos will rise to the occasion. The sublime wisdom of the Court in landmark decisions like striking down discriminatory laws including triple talaaq, adultery and Section 377 would be at display again.

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[1] Anderson, N., 1978. Liberty, Law And Justice. London: Stevens [for] the Hamlyn Trust, p.4.

[2] Mill, J., 1859. ESSAYS ON GOVERNMENT, JURISPRUDENCE, LIBERTY OF THE PRESS, AND LAW OF NATIONS. p.22.

[3] Kesavananda Bharati … vs State Of Kerala And Anr [1973] (Supreme Court of India).

[4] Anderson, N., 1978. Liberty, Law And Justice. London: Stevens [for] the Hamlyn Trust, p.4.

[5] Camus, A. and Buss, R., 1947. The Plague.

[6] Frank M. Snowden, Epidemics and Society: From the Black Death to the Present

[7] Saroha, A., 2020. Govt Gets Notice After Saying It Has No Information On Aarogya Setu Creator. [online] The Hindu. Available at: <https://www.thehindu.com/sci-tech/technology/govt-gets-notice-after-saying-it-has-no-information-on-aarogya-setu-creator/article32963829.ece&gt; [Accessed 20 November 2020].

[8]  Justice K. S. Puttaswamy v. Union of India [2017] (Supreme Court of India).

[9] The Hindu. 2020. HC Dismisses Plea Against Arogya Setu. [online] Available at: <https://www.thehindu.com/news/national/kerala/hc-dismisses-plea-against-arogya-setu/article31915979.ece&gt; [Accessed 20 November 2020].

[10] The Hindu. 2018. Manipur Journalist Jailed For 12 Months Under NSA For Criticising State, Central Governments. [online] Available at: <https://www.thehindu.com/news/national/manipur-journalist-kishorechandra-wangkhemcha-jailed-for-12-months-under-nsa-for-criticising-bjp-government/article25782130.ece&gt; [Accessed 20 November 2020].

[11] Rashid, O., 2019. Journalist Who Exposed Salt-Roti Meal In School Booked By UP Govt.. [online] The Hindu. Available at: <https://www.thehindu.com/news/national/other-states/journalist-who-exposed-salt-roti-meal-in-school-booked-by-up-govt/article29320560.ece&gt; [Accessed 20 November 2020].

[12] Garg, A., 2020. Upholding ‘Executive Supremacy’ Over Personal Liberty: The New Downturn Of The Constitutional Court. [online] TheLeaflet. Available at: <https://www.theleaflet.in/upholding-executive-supremacy-over-personal-liberty-the-new-downturn-of-the-constitutional-court/#&gt; [Accessed 20 November 2020].

[13] Additional District Magistrate, … vs S. S. Shukla [1976] (Supreme Court of India).

[14] Mian Abdul Qayoom vs State Of J&K And Others [2020] (J&K High Court).

[15] Business-standard.com. 2020. SC Is Trying To Discourage Use Of Article 32 After Surge In Petitions: CJI. [online] Available at: <https://www.business-standard.com/article/current-affairs/sc-is-trying-to-discourage-use-of-article-32-after-surge-in-petitions-cji-120111600809_1.html&gt; [Accessed 20 November 2020].