The Law of Freedom

“Human freedom, in its widest and deepest sense, is fundamental, and needs to be fought for at every step. That is the most central of Vedantic messages” – was a comment made by a learned friend, during a conversation about freedom.

This is of course, about mukti as a spiritual concept of freedom or final liberation from mortal bonds. But it is equally about striving for freedom of thought, belief and expression in real life, without which contemplation for mukti cannot practically begin.

“Where the mind is without fear, where knowledge is free; where the world has not been broken up into fragments… into that heaven of freedom, my Father, let my country awake”. Thus sang Gurudev Rabindranath Tagore of an earthly heaven of freedom, not merely from oppressive British rule, but equally if not more, as freedom of the individual from social oppression.

This fervent prayer for freedom in colonial times, has been as relevant or perhaps more so, since Independence.

The leaders of our struggle for freedom from British rule and political independence, conceived the need for a Constitution document long before Independence. An early mention of a constitution was by M.K Gandhi, writing on parliamentary democracy in his weekly journal Young India, dated 10 September 1931: “I shall strive for a constitution, which will release India from all thralldom and patronage...” Here, “release” implied both liberation and freedom.

Under Part III our Fundamental Rights, the Constitution sets out several freedoms in terms of rights, but principally as the Right to Freedom, since freedom is “the power or right to act, speak, or think as one wants”. Freedom empowers the individual.

Liberty is “The state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behaviour, or political views”. The Constitution guarantees the liberty of thought, belief, expression, faith and worship. These liberate the individual.

When a citizen has access to and enjoys the combination of freedom and liberation, then and only then do they enjoy Independence and the fruits of democracy. Indeed, B.R Ambedkar firmly held that while political democracy was about acquiring power, social democracy was about empowering society, beginning with the long oppression of the “Untouchables”.

Politics has always been for and about power. A cynic might even say that politicians who seek and grasp any and all means to acquire power, surely would not mind if benefits also reached the people.

Government is admittedly not an easy task. There will always be one or other section of the public who are unhappy, justifiably or otherwise, with a State or Central government policy, proposal, program, project, etc., and will complain of injustice, illegality, etc.

It is generally recognized that a large proportion of such complaints, etc., arise because politicians with executive power do not adhere to, and more often go against, the Constitution, particularly its Directive Principles of State Policy.

Perhaps this happens because non-observance of the Directive Principles is not justiciable, and the wily politician reckons that he will see his way to power in the next election, anyhow. It is also quite possible that many politicians are not conversant with, maybe have not even read the Constitution, which they take oath to protect and implement, when they assume public office as public servants of the sovereign People.

People take to the streets in peaceful protests, demonstrations, bandhs, morchas, etc., because their elected representatives are unable to solve their problems or even turn their attention to them. The cause is the combination of C-I-A, which is:

. Corruption in money, material, services which accompanies political office,

. Ignorance of, or deliberately ignoring, Constitutional principles, and

. Arrogance, often unabashedly displayed, of virtually unaccountable power, by abandoning the very concept of public service, or of being “servants of the people”.

It is well recognized that social unrest and most law and order situations are due to C-I-A, which results in non-governance, mis-governance or active mal-governance, within our governments at all levels.

Over the decades and across successive political dispensations up to the present times, it has not been the practice of many, even most, politicians in public office, to use the political tools of sincere consultation, dialogue, negotiation, and building confidence and consensus.

That the public is well aware of their grandstanding, tall claims, and assurances appears not to bother the political class.

This endemic situation is certainly neither recent nor localised. It breeds public distrust and mistrust of governments and governance processes, and results in public confrontation on the streets with government agencies, especially law and order enforcement agencies – the police.

The political class usually appears quite willing to suppress protests rather than address the reasons for them. Many, even most, of the personnel of our administrative and law enforcement agencies are as much steeped in C-I-A as their political masters, whom they serve unquestioningly, regardless of the political ideology of the governing party.

This is not to allege that genuine political or administrative-police action are absent. It is the so called “20-80” proportion of genuine to ill-motivated governance, which keeps our country moving, and the public servants comprising the “20” richly deserve praise and encouragement. However, it is the “80” proportion which systemically and systematically denies people their freedoms and liberties.

Chief Justice N.V Ramana opined that in the most general sense, “law” is a tool of social control used by government, but that the difference between a “just law” and an “unjust law” are according as the ideals of justice and equity are “imbibed within” the law.

The colonial rulers enacted laws to serve as a tool of political repression, and used them harshly to control their subjects. That was Rule by Law, when law was used devoid of justice or equity.

This was remedied by We the People enacting the Constitution of India, which created an organic link between laws and justice. The Constitution enabled the state to provide equity, and social, economic and political justice to the People, by ensuring the Rule of Law.

However, over seven decades since Independence, successive governments at the centre and states, of various political ideologies have, on innumerable occasions, enacted and used various laws to control people, suppress protests, etc.

The 1860-vintage Indian Penal Code is a legal tool available to government officials to handle law and order situations. The IPC has historically been used to control individuals and groups. Over several decades, government officials have been legitimately, and as often falsely or motivatedly, filing FIRs against individuals.

In more recent times, individual citizens have also begun using these laws to file FIRs with personal or political agendas including vendetta, or against perceived insult as criminal defamation.

False or motivated FIRs are a misuse of law. The person/s named in an FIR become embroiled in a criminal justice process that saps their resources of all sorts. Those who misuse the law thus are often well aware that the offence named in the FIR is unlikely to stand in a Court, and that the person named is likely to be acquitted. But false or motivated FIRs are filed precisely because cases drag on for years, the person named remains an “undertrial” in custody, and in any case, even if bail is granted, their reputation is irretrievably damaged, and they are socially and economically ruined.

Even if the trial ends in acquittal, the individual is effectively punished by the criminal justice process – this has been named “punishment by process”.

Persons who may be legitimately and peacefully protesting against government’s policy, proposal, program, project, etc., are vulnerable to such misuse of criminal law. Such misuse causes fear of being targeted, and constitutes a threat to free speech and association rights, and additionally, a threat of physical confinement in police or judicial custody.

Law thus misused, is a tool for deprivation and denial of freedom. It causes what is known as the “chilling effect”, by threatening freedom and the exercise of democratic fundamental rights. In a larger context, the misuse of law by whomsoever is an attack on democracy itself.

It is necessary to observe that misuse of law has been occurring for decades under various central and state governments. But more recently, dissent, criticism of government, or questioning politicians, attracts FIRs filed with the almost transparent intention of inflicting “punishment by process”. Further, uncritical, sometimes motivated, even spineless acceptance of such FIRs by the police and lower magistracy, results in the already overloaded criminal justice system getting further stressed, and effective denial of justice.

The point made here is that, even if the values of justice and equity are imbibed into a law, and it can be termed a “just law”, the law can still be misused or used unjustly. The extent and frequency of the misuse of criminal law is an indicator of the state of democracy and people’s freedoms.

Maj Gen S.G.Vombatkere, VSM, joined the Indian Army in 1961, was commissioned into the Corps of Engineers, and retired in 1996, from the post of Additional DG in charge of Discipline & Vigilance in Army Headquarters, New Delhi

Where the mind is without fear

Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
Into that heaven of freedom, my Father, let my country awake!