SECOND LECTURE

May 2, 1978

CONSTITUTION AND CIVIL LIBERTIES

Having dealt with the various articles of the Consti-

tution which bear on the question of civil liberties,
we may now consider some of the issues which are

linked with those liberties. The first question is:

how far is a bill of rights consistent with effective,
purposeful government? A government is a human
institution and, like all other such institutions, it can
be used by those in charge of it, not merely for legiti-
mate purposes but also for ulterior
purposes, for pur-
poses not related to the interest of the State but for the
self-aggrandisement of those in power. How to check
such abuses while, at the same time, not clip the
government of effective means of governance is a prob-
lem which has often baffled political philosophers and
constitutional experts. If men, as observed by Madison,
were angels, no government would be necessary.
If angels were to govern, neither external nor
internal control on government would be neces-
sary. In framing a government, which is to be adminis-
tered by men over men, the great difficulty lies in this:
you must first enable the government to control
the governed; and in the next place, to control itself.
A dependence on the people is, no doubt, the primary
control on the government. But experience has taught
mankind the necessity of auxiliary precautions. It is
in the latter context that the political thinkers have
evolved a system of checks and balances. The surren-
der of power by the people to the government in a
republic is guarded by the division of the State ma-
chinery into different compartments. The method
most often used is to have three distinct wings of the
State: the Legislature, the Executive and the Judiciary.

55
 Each operates within its demarcated field, but each,
at the same time, acts as a check against the excesses
and abuses of the others, Of the three, the Executive
exercises the greatest power. Too much concentra-
tion of power, experience tells us, quite often leads to
abuse of power, which soon degenerates into
tyranny. Both Legislature and Judiciary have, there-
fore, been assigned authority, though of different
kinds, to check such abuse of power by the Executive.
The great security against the gradual concentration
of civil powers in the same department, it has been
said, consists in giving to those who administer each
department the necessary constitutional means and
personal motives to resist encroachments of the others.
Ambition must be made to counteract ambition. The
interest of the man must be connected with the cons-
titutional rights of the place. It may be a sad reflec-
tion on human nature that such devices should be
necessary to control the abuses of government. But
looking to the history of man, such safeguards are
essential and cannot be dispensed with.
One other method of checking the excesses of the
government is to have a charter or a bill of rights.
This ensures that the government, while dealing with
the citizens, adheres to certain norms. The charter
spells out a code which is vital for the preservation
of the basic dignity of the individual and the govern-
ment agrees to abide by that code.
According to the
theory of social contract, some aspects of which
have now been discredited, human
beings surrender
their freedom in return for the
blessing of govern-
ment. The blessing of government would
lapse into the
tyranny of government unless it were accompanied by
a recognition that there are certain basic
rights which
are possessed by all citizens, not
only good citizens
but also bad citizens. These are the
rights which are
inalienable because the enlightened conscience of the
community would not permit the surrender of those
56
rights by any citizen even of his own volition. These
are the rights which are inviolable because they are
not only vital for the development and efliorescence
of human personality and for ensuring its dignity,
but also because without them men would be reduced
to the level of animals. The charter ensures rules of
self-restraint which have to be exercised by the govern-
ment in dealing with the citizens in order to preserve
a certain level of civilised existence for the community.

The question, then, is whether such a charter of rights

cramps the powers of the government and thus creates
difficulty in the functioning of an effective govern-
ment.
This question, in a way, is linked with the other ques-
tion as to why and for what purpose we need a govern-
ment. Whatever might have been the notion in the
primitive stage of mankind and during the subsequent
periods of history, the modern View is that the end of
good government is to bring about the security, welfare
and happiness of the people. Of all the various forms
of government, democratic government with a bill of
rights comes nearest to the ideal form for the attain-
ment of those objectives. Even the latter qualification
about a bill of rights is superfluous, for all genuine de-
mocratic governments do have provisions in their cons-
titutions or laws corresponding to a bill of rights.
There can, indeed, be no genuine democracy where
the citizens do not enjoy basic rights and civil liberties
like freedom of expression, equality before law and
a provision that no one shall be deprived of his life

or liberty without the authority of law. Experience also

tells us that in the absence of these attributes of a State,

we can have no freedom from fear. It is also axiomatic
that without freedom from fear there can be no happi-
ness. Fear dries up all springs of idealism, and in the

process, coarsens the conscience and degrades the spirit.

The nobler impulses of mind and the higher values of
a life cannot co-exist with fear. Where fear is, happiness

57
 cannot be; where fear is, justice cannot be; where fear
is, freedom cannot be. Democracy entails the involve-
ment of the people in the governance of the country
by giving them a direct hand in the selection of
rulers and by giving them periodic opportunities of
getting rid of the rulers and replacing them by new
rulers if they, the people, do not approve of the poli-
cies of the old rulers. Experience further tells us that
those governments have proved to be most enduring,
purposeful and effective that have been able to secure
the maximum cooperation and willing involvement of
the people.
Judged by all these tests, we can say that a bill of
rights in a democratic set-up is not only consistent with
etfective purposeful government, but, taking along~
range view of the matter, it is an essential attribute
and, perhaps, the best guarantee of an enduring,
effective and purposeful government.
Linked with the above, and, perhaps, another facet
of the same question, is the issue as to how fara bill
of rights is consistent with the need for quick socio-
economic changes for bringing about rapid development
in industrial and agricultural sectors. State interven-
tion and regulation of economies is now an accepted
principle of administration. A modern government
has to look after not merely the maintenance of law
and order or the defence of country’s borders
against
foreign aggression, its activities in other fields have
increased manifold and acquired numerous facets. It has
to undertake a large number of welfare measures with
a View to better the social and economic lot of the

people. With this end in view, the State has armed

itself with numerous powers, many of which impinge
upon the rights of the individuals. A modern State
has taken over the role of a protector, a
dispenser of
social services, an industrial manager, an economic
controller and an arbitrator.
There has been a tendency in some countries to eli-

58
minate or water down human rights and civil liberties
on the ground that a bill of rights creates restrictions
on the power of government to regulate economy

and bring about other reforms. That human rights

and civil liberties are a luxury which the poor cannot
afford is a pet theme of all authoritarian regimes.
Liberal values and effective measures to improve the
economic lot of the poor, according to them, cannot
co-exist. They masquerade as the champions of the
poor and down-trodden and under that garb set
up totalitarian rule. Experience, however, tells us, as
I said elsewhere, that the desire to do away with the
bill of rights is actuated not so much by a desire to
remove hurdles in the way of socio—eoonomic reforms

as with a View to arm the person or persons in authority

with more powers. Experience further tells us that the

elimination of the bill of rights and the curtailment of
civil liberties have always paved the way to authoritaria-
nism and dictatorship. It has also resulted in undermin-
ing the rule of law and thus created a climate of arbi-
trariness. The dictum that power corrupts and abso-
lute power corrupts absolutely is amply afiirmed by
the facts of history. Generally speaking, only those
economic and social developments have proved en-
during and have made a deep impact on the life of a
nation as have evoked willing cooperation and in-
volvement of the people. Human beings do have
physical needs but, in addition to that, they have also
some other needs and it is in the latter respect that

they differ from animals. There is always a craving in

the human heart for satisfaction of the things of the
spirit, the yearning for certain freedoms, for some basic
values, without which life is not worth living. It is only
when nations enjoy a synthesis of the satisfaction of
physical needs and the demands of the spirit that there
can be true efflorescence of the human personality and

free exercise of individual faculties. It, therefore, be-

comes essential that the ever increasing powers of the

59
modern government should be cushioned with ade-
quate safeguards for the rights of individuals against
any arbitrary and capricious use of those powers.
The question of majority rule and minority
rights
has always vexed constitutional pundits and
political
philosophers. On one side, we have the View of Jefler-
son, according to whom majority rule is neither anarchy
nor absolutism but government with self-imposed
restraints. Canvassing for the view that the will of
the majority should prevail, Jefferson observed:

“I persuaded myself that the good sense of the

am

people will always be found to be the best army.

They may be led astray for a moment, but will soon
correct themselves. The people are the only censors
of their governors; and even their errors will tend
to keep these to the true principles of their insti-
tution.”1

In reply to doubts expressed by another about the

necessity of conferring absolute power on the people,
Jefferson said: “We both love the people, but you love
them as infants, whom you are afraid to trust without
nurses; and I as adults whom I freely leave to self-
government.”2 As against that, we have the warning
of Adams that it is of great importance in a republic
“not only to guard the society against the oppression
of its rulers, but to guard one part of the society against
the injustice of the other part. Different interests
necessarily exist in different classes of citizens. If a
majority be united by a common interest, the rights
of the minority will be insecure. In a society under
. .

the forms of which the stronger faction can

readily
unite and oppress the weaker, anarchy may as
truly
be said to reign as in a state of nature where the weaker

1Bishop and Handels: Basic Issues of American Democracy, p. 62.

‘Ibid.

60
individual is not secured against the violence of the
stronger.”
A similar view was expressed by de Tocqueville, when
he wrote:

“Unlimited power is in itself a bad and dangerous

thing; human beings are not competent to exercise it
with discretion, and God alone can be omnipotent,
because his wisdom and his justice are always equal to
his power. But no power upon earth is so worthy of
honour for itself, or of reverential obedience to the
rights which it represents that I would consent to admit
its uncontrolled and all-predominant authority. When
I see that the right and the means of absolute com-
mand are conferred on a people or upon a king,
upon an aristocracy or a democracy, a monarchy or
a republic, I recognize the germ of tyranny, and
I journey onward to a land of more hopeful insti-
tutions.”1

The device which has generally been adopted to

meet the opposing viewpoints is that the minorities
should not be allowed to deprive other members of
the society of their rights, which flow from the opera-
tion of the principle of majority rule. At the same
time, minorities should be assured as a result of the
operation of the constitutional check on the power
of majorities, that they would not be deprived
of their basic rights, It is with that object that the
various constitutions contain provisions of restraints
in the form of checks and balances. So far as the Cons-
titution of India is concerned, there are, as already
mentioned, ample provisions for safeguarding the
interests of the minorities. This fact is also borne out
by a series of judgements rendered by the Supreme
Court.

1Democracy in America; reproduced in Basic Issues of American

Demucracy, p. 66.

61
 Ahealthy society, in the words of Reinhold Niebuhr,l
must seek to achieve the greatest possible equilibrium
of power, the greatest possible number of centres of
power, the greatest possible social check upon the
administration of power, and the greatest possible
inner moral check on human ambition, as well as the
most effective use of forms of power in which consent
and coercion are compounded. At the same time, a
free society requires some confidence in the
ability
of men to reach tentative and tolerable
adjustments
between competing interests and to arrive at some
common notions of justice which transcend all
par-
tisan interests. The preservation of a democratic civi~
lisation, it is stated, requires the wisdom of the serpent
and the harmlessness of the dove. The children of
light must be armed with the wisdom of the children
of darkness but remain free from their malice.
They
must know the power of self-interest in human
society
without giving it moral justification. They must have
this wisdom in order that they may beguile, deflect,
harness and restrain self-interest, individual and col-
lective, for the sake of the community.
One of the most cherished human rights is the free-
dom of expression, which includes the freedom to
dissent. This right can be regarded as a true index of
the prevalence of democratic Values in a comitry. The
enlightened sections of the community, as I said else-
where, have to safeguard against anyerosion or abridge-
mcnt of the right to dissent—a right so essential for
the moral health of the community. In respect of free-
dom of speech, Cardozo observed that it is the matrix,
the indispensable condition, of nearly
every other
form of freedom. To repeat what I said some time
back, if we look at the history of fifty years, we would
find that some of the ideas which gained currency and
spread like wild fire at one time had only an ephe-

‘Basic Issues of American Denmcracy, p. 53.

62
meral existence and thereafter nothing could revive
them. Indeed, looking retrospectively and examining
the matter with detachment and in an atmosphere
free from the frenzy of the moment, we often wonder
as to how certain ideas could have had such a sway over

the minds of the people. This only shows that man is

a gregarious animal. It is at moments like these that

we need the sentinels to make us aware of the danger

which underlies the disposition to take the immediate

for the eternal, the transitory for the permanent and
the ephemeral for the timeless. This necessarily calls
for a determined resistance to the hypothecation of
the thinking process. It also postulates a free trade in
ideas.
It is the freedom to express a view diiferent from
that of the ruling party or individual that distinguishes
democracy from dictatorship. Regimentation of ideas
goes ill with democracy. It is not for those in power
to decide as to what views should be propagat-
ed amongst, or professed by, the people. Power always
thinks that it has a great soul and vast views beyond
the comprehension of the weak, and that it is doing
God’s service when it is violating all His laws. Those
in power, however, forget that the people as a whole
have basic common sense and it is not proper to deny
them an opportunity of judging for themselves as
to which view is better and more conducive to their
welfare. Any attempt at preventing the people from
knowing a view different from that of the persons in
power betrays a distrust of the people and proceeds
upon the assumption that the people are not sui juris
and as such are not capable of deciding what is
for their good. Such an approach strikes at the very
basis of democracy. The suppression of the freedom
of expression, it has been said, constitutes a disastrous
threat to public safety. To be afraid of ideas is to
profess failure or unfitness for self-government. The
right to exert all governmental pOWers in aid of main-

63
 taining our institutions and resisting their
physical over-
throw does not include intolerance of and
persecution
for ideas and opinions, even though they be
oppos-
ed and alien to the dominant
thinking of the person or
persons in power. Freedom of expression, as was ob-
served in the course of a judicial
pronouncement, is the
well-spring of our civilisation. For social development
trial and error, the fullest possible opportunity for the
free play of the human mind is an
indispensable pre-
requisite. The history of civilisation is in considerable
measure the displacement of error which once held

sway as official truth, by beliefs which in turn have

yielded to other truths. Therefore the liberty of man
to search for truth ought not to be
fettered, no matter
what orthodoxies he may challenge.
Liberty of thought
soon shrivels without freedom of
expression. Nor
can truth be
pursued in an atmosphere hostile to the
endeavour or under dangers which are hazarded only
by heroes. It is an essential function of speech to free
men from the
bondage of irrational fears. To put it in
the words of Justice Brandeis,1 those who won our
independence believed that the final end of the State
was to make men free to
develop their faculties; and
that in its government the deliberative forces should
prevail over the arbitrary. They valued liberty both
as an end and as a means.
They believed liberty to
be the secret of happiness and
courage to be the secret
of liberty. They believed that freedom to think as
you will and to speak as you think are means indis-
pensable to the discovery and spread of political truth;
that without free speech and
assembly discussion would
be futile, that with them, discussion affords
ordinarily
adequate protection against the dissemination of
noxious doctrines, that the greatest menace is an inert
people; that public discussion is a political duty.
They recognised the risks to which all human insti-
1Denm'rel‘al v. United State’s, 341 US 494 (1951); Frankfurter
J. Whitney v. California,
274 US 357.

64
tutions aresubject. But they knew that order cannot
be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought,
hope and imagination; that fear breeds repression;
that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the oppor-
tunity to discuss freely supposed grievances and pro-
posed remedies; and that the fitting remedy for evil
counsels is good ones. Believing in the power of
reason as applied through public discussion, they
eschewed silence coerced by law—the argument of
force in its worst form.
Freedom of expression also requires that the opposite
views should be expressed in the language of those who
propagate that view and not in a language which some
others think expresses that View. According to John
Stuart Mill‘, it is not enough that a person should
hear the arguments of adversaries from his own
teachers, presented as they state them, and accompani-
ed by what they offer as refutations. That is not the
way to do justice to the arguments, or bring them into
real contact with his own mind. He must be able to
hear them from persons who actually believe them;
who defend them in their most plausible and persuasive
form; he must feel the whole force of the difiiculty
which the true view of the subject has to encounter
and dispose of; else he will never really possess him-
self of the portion of truth which meets and removes
that difficulty.
Rule of law and independence of the courts are
essential attributes of a civilised society. Without
them, a bill of rights would be no more than a pious
recital of platitudes, hollow and meaningless. Rule
of law is the antithesis of arbitrariness. There was a
time when philosophers assessed the respective merits
of the rule of men and the rule of law. In the aggre-
‘On Liberty; quoted in Basic Isrues of American Democracy,
cover page.

65
gate, the decision has been in favour of the rule of law
when the hard facts of human nature demonstrated
the essential egotism of men and the truth of the dictum
that power corrupts and absolute power corrupts
absolutely. Rule of law has now come to be looked
upon as the accepted norm of a civilised country and
the hallmark of a free society. Even if there have been
deviations from the rule of law, such deviations have
been covert and disguised, for no government in a
civilised country is prepared to accept the ignominy
of governing without the rule of law. Although the
contents of the rule of law may vary from country to
country, everywhere it is identified with the liberty
of the individual. It seeks to strike a balance between
the opposing notions of individual liberty and public
order. The problem of reconciling human rights with
the requirements of public interest and of harmonis-
ing the two can be attained only by the existence of
independent courts which may hold the balance be-
tween the citizen and the State and compel the gov-
ernment to conform to the law. Rule of law, it has
been said, ultimately has three moral justifications:

(1) It secures for men the maximum of individual

liberty, freedom of speech and association,
religion and privacy and equality before the
law.
(2) It secures the greatest opportunities for peace-
ful change not only today but also in the future.
(3) The ultimate commitment of those devoted
to the rule of law is the belief that the growth
of each individual towards responsibility and
the freedom to choose the best he can discern,
is a purpose which must not be made subservient
to other objectives.

History, it has accordingly been said, reveals no subs-

titute for the rule of law in furthering the above put-

66
pose. To achieve these goals, even the power of the
government must be restrained and ways must be
found by which men can live together not by power
but by what reason tells is just to achieve. The substi-
tute for power, in the words of Archibald Cox, is the
rule of law. Our constitutionaliSm, according to him,
is founded upon institutional inspiration that makes
for a free and civilised society organised with the mini-
mum of force and maximum of reason. A society can

be said to be free in which law binds all men equally—

the governors as well as the governed, the judges as
well as the litigants. The people—the ultimate rulers
in a democracy——have voluntarily subjected themselves
through a bill of rights to the restraints of law and
have created courts to help them observe the law’s
prohibition.
In the working of a constitution, as I mentioned
elsewhere, we sometimes come across encounters be-
tween one freedom and another. It was more than a
century ago that de Tocqueville pointed out that one
kind of liberty may cancel and destroy another, and
that stronger even than the love of liberty is the pas-
sion for something different in name and yet at core
the same, the passion for equality. Restrictions,
vexatious if viewed alone, may be necessary in the long
run, it has been said, to establish the equality of posi-
tion in which true liberty can have its efllorcs-
cence. Many an appeal to freedom is the masquerade
of privilege or inequality seeking to entrench itself
behind the catchword of a principle. The underlying
assumption of the grant of liberty always is that it
shall not be allowed to degenerate into licence and those
granted liberty would also be conscious of the res-
ponsibility which the conferment of liberty carries.
Exercise of the right of liberty is always subject to
reasonable restrictions. The liberty of one cannot be
allowed to be asserted in such a manner as to destroy
the liberty of others. To safeguard the liberty of the

67
 weak, it becomes essential to put restrictions on the
liberties of the strong, including the manner of the
exercise of those liberties, which itself is a form of
liberty. Restrictions upon the exercise of the right of
liberty thus become essential for the defence of liberty.
Many political thinkers are of the View that equality
affords an answer to the excesses of liberty. As was put
by one of them, there is only one solution to the prob-
lem of liberty and it lies in equality. There must have
been periods in social evolution when the refusal to
permit the strong man to do what he liked with his own
physical strength seemed, at least to the strong, an out-
rageous interference with his personal liberty. There is
no more reason why a man should be allowed to use

his wealth or his brain rather than his physical strength

as he likes. Liberty of the weak depends
upon the re-
straint of the strong, that of the poor upon the restraints
of the rich and that of the simple-minded upon the res-
traint of the sharper. Every man should have his liberty
and no more, to do unto others as he would that they
should unto him; upon that common foundation rest
liberty, equality and morality. Looked at superficially
every curtailment of the right of an individual to do
what he likes might be construed as an inroad into his
liberty and thus smack of oppression. It is only when
we construe liberty in that sense that we would come

across areas of conflict between liberty and equality,

for most measures undertaken by the State to bring
about equality are bound to impinge upon the domain
of liberty so conceived, and thus be looked upon as
a challenge by its votaries. Deeper reflections would,

however, show that there is no antithesis between

equality and liberty if properly understood and that
far from there being a conflict between the two, one
can hardly exist without the other. Liberty and
equality
supplement each other in all welfare societies. It is
only a proper synthesis of the two that can result in a
true welfare society. Liberty, it has been rightly said,

68
must be measured against the community’s need for
security against internal and external peril. Equality
must be measured against the need for a hierarchy of
social functions by which a community integrates its
life and work.
In a nascent democracy like ours, freedom granted
by the Constitution cannot be absolute; freedom has
to be subjected to reasonable restrictions for its own
survival Liberty, if allowed to degenerate into licence,
is suicidal, for it poses the greatest threat to liberty
itself. Those who enjoy the blessings of liberty must
not forget the heavy responsibility which the right to

liberty carries with it. Those who love liberty,

must also ensure the prevalence of conditions which
are vital for the preservation of liberty. The worst
enemies of liberty are those who abuse their liberty,
for in the atmosphere of disorder and chaos created
as a result of the abuse of liberty comes the man with

the sword on horseback, be it a Mussolini or a

Hitler.
A bill of rights necessarily postulates an awareness
of corresponding duties. A society in which everyone
is conscious only of his rights and not of his duties
would soon find itself in a State of anarchy. Liberty
is not, in the words of Learned Handl, the ruthless
unbridled will; it is not freedom to do as one likes.
That is the denial of liberty and leads straight to its
overthrow. A society in which men recognise no check
upon their freedom soon becomes a society where
freedom is a possession of only a savage few, as we
have learnt to our sorrow. A society in which each
is willing to surrender only that for which he can see
a personal equivalent is not a society at all; it is a
group
already in the process of dissolution and no one need
concern himself with staying its inevitable end. It would
be a hard choice between that and a totalitarian society.

1Irving Dilliard: Spirit of Liberty, p. 150.

69
No utopia, nothing but bedlam, will automatically
emerge from a regime of unbridled individualism. F ree-
dom has its own limitations in its own interests and can
properly be described as regulated freedom. Accord—
ing to Ernest Barker,1 (i) the truth that every man
ought to be free has for its other side the complementary
and consequential truth that no man can be absolutely
free; (ii) the need of liberty for each is necessarily quali-
fied and conditioned by the need of liberty for all;
(iii) liberty in the State, or legal liberty, is never the
absolute liberty of all; (iv) liberty within the State is
thus a relative and regulated liberty; (v) a relative and
regulated liberty, actually operative and enjoyed, is
liberty greater in amount than absolute liberty could
ever be—if, indeed, such liberty could ever exist.

Liberty cannot rest upon anarchy; it is conditioned

upon an ordered society. Some groups might bawl
of liberty, but really they mean no more than the
tyranny of their own domination over the mob and
the freedom to use the mob for their partisan ends.
Liberty postulates that all political parties should act
with a sense of responsibility. There is a close nexus
between liberty and the proper functioning of democra-
tic institutions. Democracy embodies the principle
of resistance to government within the principle of
government itself. When differences of opinion with-
in a State reach a point where individuals or groups
refuse peaceably to lose and brush aside constitutional
barriers, there arises real danger of the breakdOWn
of constitutional system and collapse of civil liberties.
Such individuals and groups would no doubt describe
civil liberty to mean the removal of all restraints from
the crowds and all local attempts to maintain order
as impairment of the liberty of the citizen. “The
choice in such a situation is,” in the words of Jackson,
“not between order and liberty. It is between liberty

‘Quoted in Addirianal District Magirtrate, Jaba/pllr. r. Shivkanr

Shukla (supra), pp. 747-748.

70
with order and anarchy without either.”1 It is in such
moments that we have to ensure that a constitutional
bill of rights is not converted into a suicide pact.
Liberty is as much threatened by unruly elements and
forces of indiscipline, by mass hysteria and mob
action, by giving up methods of free discussion and
taking matters to the streets, as it can be by forces of
totalitarianism and dictatorship. The excesses of
liberty are the worst enemies of liberty. Elimination
of restraints can turn large groups of population into
a rabble and a mob. Once roused it can easily become

a Jacobin crowd. If it can guillotine a Louis XVI

and Marie Antoinette; it can also mete out the same

treatment to Danton and Robespierre. Mob passion,
once roused, is like a Frankestein monster stalking
the land and in the process making mince-meat of
civil liberties and decent values. There can be nothing
so dangerous as pandering to the emotions and pas-

sions of amob. The furies of revolution, after devouring

those against whom it is directed, quite often turn their
wrath against the progenitors of the revolution. It is
a common feature in such a situation for the heroes

of today to become the victims of tomorrow.

The tender plant of liberty can have its efliorescence
only in a climate where each one displays an attitude
of tolerance and a spirit of moderation. The absence
of these attributes poses a grave danger for society,
of which warning was given by Learned Hand when
he said:

“You may ask what then will become of the funda-

mental principles of equity and fair play which our
constitutions enshrine; and whether I seriously be-
lieve that unsupported they will serve merely as
counsels of moderation. I do not think that anyone
can say What will be left of those principles; I do not

‘Termim'eI/o v. Chicago (1948). 337 US], pp. 36-37.

71
 know whether they will serve only as counsels; but
this much I think I do know—that a society so riven
that the spirit of moderation is gone, no court can
save; that a society where that spirit flourishes, no
court need save; that in a society which evades its
responsibility by thrusting upon the courts the nur-
ture of that spirit, that spirit in the end will perish.”l

Entrustment of power to those in charge of the gover-

nance of the country calls for utmost vigilance lest the
over-ambitious amongst them should make short shrift
of our great heritage. Those in power can always,
under the cover of a smoke-screen of slogans and in-
cessant propaganda, create mass illusions and thus
play with cherished values and basic liberties. Man,
we should remember, is the kind of lion, who both

kills the lamb and also dreams of the day when the
lion and the lamb shall lie together. Experience should,
therefore, teach us to be on guard against the insi-
dious erosion of liberty. The people, it is said, never
give up their liberty except under some illusion. Men
born to freedom are naturally alert and would be
immediately called to action to repel frontal assault on
their liberty by evil-minded persons. The greatest
danger is when liberty is nibbled away in bits and parts
under cover of objects ostensibly beneficent and by
men apparently well-intentioned.
One of the questions which has acquired importance
during recent years relates to the right of privacy.
Privacy has been defined as the claim of individuals,
groups or institutions to determine for themselves,
when, how and to what extent information about them
is communicated to others. Some others have defined
privacy as control over knowledge about oneself. Elec-
tronic surveillance as also search and seizure of homes
and persons has led to unprecedented accumulation

lIrving Dilliard : Spirit 0f Liberty, p. 164.

72
of data which quite often get computerised. Sophisti-
cated electronic devices have enabled the government
to pry into the private life of individuals. There is
eavesdropping by mechanical process; there is also
watching by an invisible eye. Both men and women are
thus, in a way, laid bare and all their activities get
ex-

posed to inquisitive eyes.

This apart, persons holding high political office
and their close relatives are shadowed by some over-
zealous pressmen to learn about their private aflairs.
Perhaps, the worst victims have been stars of the cinema
and the theatre, and other glamorous personalities.
And whatever they do, and sometimes even do not
do, finds prominent mention in certain types of news-
is as to how far
papers and magazines. The question
this invasion of privacy is consistent with basic human
rights. Everyone, so long as he does not commit any
breach of law or violation of the prescribed code of
behaviour, has a right to be left to himself
to enjoy his private life in comparative seclusion.
Does his public image require that there should be a
continuous and ceaseless surveillance of his private
activities? Does the fact that one holds a political
office or has a position in the world of cinema, theatre
or some other sphere of social life disentitle
him or
her to enjoy a private life away from the public gaze
and prying eyes?
A question connected with the liberty of the press
relates to the danger of trial by the press. Certain
in the
aspects of acase pending before, or to be put up
near future before a court of law or tribunal,
are so

much highlighted by the press that the publicity which,

on occasions, is not free from mendacity, gives
rise to
emotions. The inevitable effect of this
strong public
is to prejudice the case of one party or the other for
as to what
a fair trial. The question consequently arises

extent restraints are necessary and have to

be exer-
cised by the press with a view to ensure fairness of trial

73
and purity of judicial process. We must, however,
also guard against another danger. A person cannot,
as I said in the course of a
judicial pronouncement in
1969, by starting some kind of judicial proceedings
in respect of a matter of vital public importance,
stifle all public discussion of that matter. A line to
balance the whole thing has to be drawn at some
point.
The demand for the security of the State and the
country’s relations with foreign powers might also
raise questions of restraint on the freedom of the press.
A leading pressman of the United States‘, writing
under the caption ‘In thy name, oh Liberty’, stated
that a French statesman who had served his country
as Foreign Minister and Premier, had
complained
to him that it was impossible to talk confidentially
with American leaders. The reason, he said, was
that they immediately made memoranda of such con-
versations and distributed them in Washington and
allied capitals. Often these subsequently leaked to
the press. This made it difficult to discuss sensitive
issues. In the above context, one may also refer to a
recent remark of the US President that he was dis
concerted by lack of confidentiality around Washing-
ton.
On one side we have the view of Woodrow Wilson
that diplomacy shall proceed always frankly and in
public. He accordingly called for open covenants
of peace, openly arrived at. On the other, we have the
words of a distinguished French Ambassador to
Germany before First World War, “The day secrecy
is abolished, negotiation of any kind is impossible.”2
The functioning of democracy, it has been said, might
well require some rough but rational balance between
secrecy and disclosure, between official control of

‘C.L. Sulzberger; New York Times, January 12, 1972.

'Arthur Schlesinger Jr: The Secrecy Dilemma, New York Times,
February 6, 1972.

74
information and public need for it. When somebody
in the government upsets that balance by deceiving
or misleading the public, resourceful newspaper—
a scoop and then restore
men step in to come out with
been observed that
the balance. It has accordingly
when credibility is truly
secrecy can be preserved only
maintained.
Another question which has attracted
attention and
of difference in recent
has also been the subject some

times is whether we should allow international agencies

is flagrant violation of human
to interfere when there
address to the United Na-
rights in a country. In an
Carter stated that no mem-
tions Assembly, President
that maltreat-
ber of the United Nations can claim
ment of its citizens is solely its own business. Equally,
according to him, no member can avoid its responsi-
torture or un-
bility to review and to speak when in any
warranted deprivation of freedom occurs
the View has been
part of the world. As against that, is
its own citizens no
expressed that how a State treats
consti-
concern of anyone else even if such treatment

tutes a breach of human rights.

The governments of
the violation of human rights
the countries in which
has occurred have invariably taken the stand that the
is matter within the do-
treatment of its nationals a
State and any
mestic jurisdiction of each sovereign
interference in
international concern is gratuitous
a

their internal afiajrs.

the
It may be mentioned that in February 1946,
Commission of Human Rights was set up with the duty
of submitting to the UN Economic and
Social Council
proposals on topics concerning human rights, such as
of
the International Bill of Human Rights, protection
minorities, prevention of discrimination on grounds
Dec-
of race, sex, language or religion; International
and Freedom
larations or Conventions on Civil Liberty
Covenant on
of Information. Also an International
International Covenants
Civil and Political Rights,

75
 on Economic, Social and Cultural Rights were adopted
by the UN General Assembly in 1966. The Covenants
came into force in 1976 on ratification
by the requisite
number of States.
I must also refer to one other
important matter.
When people, denied freedom for
long, suddenly ac-
quire freedom, the risk of over-reaction cannot be
ruled out. The danger in such situations is of the
people going to the other extreme. The potentiali-
ties of mischief and public harm are immense when
there is sudden loosening of the reins and
abrupt laxity
of administration. It is at moments like these that we
need sentinels who should put us on
guard against
the excesses of reaction. Such moments can well
prove
to be the twilight of freedom, when
only a firm ad-
ministration can prevent the degeneration of liberty
into licence. More than at any other time, it is at such
moments that we should heed the admonition of
Burke that nothing turns out to be so
oppressive and
unjust as a feeble government. The people have some-
times to pay a heavy price for the
pusillanimity and
lack of firmness of the administration at the initial
stages. Such a state of affairs quite often leads to
a situation wherein
subsequently there is repeated
resort to harsh and oppressive
measures, and even
they do not prove effective.
One other danger I also must allude
to, because that
is a danger of which the
history of a number of
countries teaches us to beware. When a
country’s
moral climate gets polluted, when
scruples and prin-
ciples are sacrificed for the sake of expediency and
personal ends, when democratic political parties be-
come discredited
by acts of corruption or otherwise,
when industry, unions and pressure
groups pursue
their own interest with little care for the rest of so-
ciety, when youth turns to vandalism and indisci-
pline, such moments prove to be crucial for civil
liberties and basic freedoms. It is in such moments

76
that weak democratic governments seem increasingly
unable to stop the onward march of organised, disci-
plined yet potentially undemocratic parties and groups.
Sometimes an attempt is made to clip the govern-
ment of certain powers which, though seemingly harsh,
are necessary for strong and effective government.
The demand to denude the government of those
powers stems from various sources. The demand is
articulated by idealists who are genuinely devoted
to civil liberties. The demand is also pressed by groups
and sections who may possibly derive political or
other benefit and premium from any aggravation of
conditions of law and order by embarrassing the
government on that account. Pressure is built up to
force the government to part with those powers.
When taking decisions on such issues, those in charge
of the affairs of the country have to look essentially
to the interest of the nation. Although it may be es-
sential to provide safeguards to prevent abuse of
such powers and mitigate their harshness, those at
the helm cannot ignore the conditions prevalent in
the country. It has to be borne in mind that condi-
tions in all countries are not alike and what may be
possible in some countries may not hold good in
others. In circumstances can a government, by
no

becoming captive of some catchword or slogan, abdi-

cate or suffer diminution of its primary responsibility
of providing effective administration and maintaining
proper law and order. As observed by Story1 in the
context of the admonition of Burke, government is
a practical thing made for the happiness of mankind

and not to furnish out a spectacle of uniformity to

gratify the schemes of visionary politicians. The busi-
ness of those who are called to administer it is to rule
and not to wrangle.

’Story: Commentaries an the Cansritution of United States,

1). 436. Quoted in Judgement of Shri Khanna in the
Kesavanaud Bharti Case.

77
 I may also observe that it would be a mistake to rely
too much on the courts and the laws for the preser-
vation of liberties. There is no modern instance, it is
said, in which any judiciary has saved a whole people
from the grave currents of intolerance, passion and
tyranny, which have threatened liberty and free insti-
tutions. The attitude of a society and of its organised
political forces rather than of its legal machinery, is
the controlling force in the character of free insti-
tutions. The ramparts of defence against tyranny,
to repeat what I said some time ago, are ultimately
in the hearts of the people. The Constitution, the
courts and the laws can act only as aids to strengthen
those ramparts; they do not and cannot furnish substi-
tutes for those ramparts. If the ramparts are secure,
anyone who dares tamper with the liberties of the
citizens would do so at his own peril. If, however, the
ramparts fall down, no constitution, no law, no
court would be able to do much in the matter.
I can do no better than end this address by quoting
a passage from the speech of Dr. Ambedkar, after

whom these lectures are named, in his last address to

the Constituent Assembly:

“The second thing we must do is to observe the

caution which John Stuart Mill has given to all
who are interested in the maintenance of democracy,
namely, not ‘to lay their liberties at the feet of even
a great man, or to trust him with powers which

enable him to subvert their institutions’. There is

nothing wrong in being grateful to great men who
have rendered life-long services to the country. But
there are limits to gratefulness. As has been said
by the Irish patriot Daniel O’Connell, no man can
be grateful at the cost of his honour, no woman
can be grateful at the cost of her chastity and no

nation can be grateful at the cost of its liberty.

The caution is far more necessary in“ the case of

78
India than in the case of any other country. For
in India, Bhakti or what may be called the path of
devotion and hero worship plays a part in its poli-
tics unequalled in magnitude by the part it plays in
the politics of any other country of the world.
Bhakti in religion may be a road to salvation of the
soul. But in politics, Bhakti or hero worship is a
sure road to degradation and to eventual dictator-

ship.”

79