Introduction
At the outset,
let it be clear that the sole aim of the author in this post is to provide an
understanding of ‘liberty’ and ‘freedom’. Do not be misguided by the title of
the post. The author has no intention of diving freedom and liberty into two
water-tight compartments. The author is only trying to present the difference
between liberty and freedom as has been mentioned in various law dictionaries
and judgments. Whether in fact such difference exists or not is a question left
open to the readers.
Let us start by
understanding the definition of Liberty.
Black’s Law
Dictionary defines ‘Liberty’ as:
1. Freedom from
arbitrary or undue external restraint.
2. A right,
privilege, or immunity enjoyed by prescription or by grant; the absence of a
legal duty imposed on a person.
In Meyer
v. Nebraska[1],
the court said that:
“Liberty
denotes not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up children, to
worship God, according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men.”
Glanville
Williams said that “the sphere my legal liberty is that sphere of
activity within which the law is content to leave me alone”.
Positive
Liberty and Negative Liberty
Negative liberty
is the absence of obstacles, barriers or constraints. One has negative liberty
to the extent that actions are available to one in this negative sense.
Positive liberty is the possibility of acting — or the fact of acting — in such
a way as to take control of one's life and realize one's fundamental purposes[2].
Let us now talk
a bit about ‘Freedom’. Black’s Law Dictionary defines Freedom as the state
of being free or liberated.
There are
various characterizations of freedom such as Freedom of Assembly, Freedom of
Association, Freedom of Choice, Freedom of Contract, Freedom of Expression,
Freedom of Information, Freedom of Speech, Freedom of the Press etc.
Freedom has also
been defined as relationship free of oppression and coercion or the absence of
disabling conditions for an individual and the fulfilment of enabling
conditions.
Freedom and
Liberty under Article 19 and Article 21
In the
Constitution of India, Right to Freedom has been guaranteed under Article 19
and Right to Life and Liberty has been guaranteed under Article 21. These
Fundamental Rights along with the others are also known as Negative Rights.
Negative because these rights cast a negative duty upon the state not to
infringe or violate these rights.
It is
interesting to note that Article 19 contains enumerated rights. It is a
different matter that a lot of other rights have been read into Right to
Freedom by our Courts. Nevertheless, the Article 19 contains a list of six
rights[3] only. On the other hand,
there is no such enumeration under Article 21. The wordings of article 21 are
as broad as possible.
Article 21
states that “No person shall be deprived of his life or personal liberty
except according to procedure established by law”.
Neither freedom
nor liberty has been defined under Article 19 and Article 21. However, freedom
derives it color from the subsequent words used with it such as ‘of speech and
expression’, ‘practice any profession or trade’, ‘move freely’ etc. Thus, by
applying the legal maxim, Ejusdem Generis, the general word ‘freedom’
under article 19 derives its texture from the particular words used with it
whereas under article 21, there are no such particular words used. The only
particular word used is ‘personal’ before liberty. Thus, anything that could be
covered under ‘personal liberty’ would form the subject-matter of Article 21.
Also, personal
liberty refers to the liberty that is available with an individual. Article 21
cannot be invoked to grant liberty to fictitious persons such as a company or an
association. On the other hand, freedom to form associations and unions connotes
that article 19 protects the existence of some fictitious persons such as
associations and unions.
Our Constitution
did not differentiate between freedom and liberty on a jurisprudential basis.
These rights usually go hand in hand. The courts do not hesitate to read
article 21 with article 19. Thus in the Indian context, the difference between ‘freedom’
and ‘liberty’ is quite slim. Even otherwise, liberty and freedom are often
referred to as two sides of the same coin and sometimes used interchangeably as
well.
In the end, I
would like to quote Morris R. Cohen who rightly believed that:
“The word
liberty has become a symbol around which have clung some of the most generous
human emotions. We have been brought up to thrill with admiration at the men
who say, Give me liberty or give me death. But the philosopher asks whether all
those who are devoted to liberty mean the same thing. Does liberty or freedom,
for instance, involve free trade? Does it involve freedom to preach race hatred
or the overthrow of all that we regard as sacred? Many who believe in liberty
characterize the freedom which they are not willing to grant, as license, and
they do it so often that one may be inclined to think that what we really need
is less liberty and more license. Moreover, there is a confusion between the
absence of legal restraint and the presence of real freedom as positive power
to do what we want. The legal freedom to earn a million dollars is not worth a
cent to one who has no real opportunity. It is fashionable to assert that
men want freedom above all other things, but a strong case may be made out for
the direct contrary. Absolute freedom is just what people do not want.”
[1]
262 U.S. 390, 399.
[2] http://plato.stanford.edu/entries/liberty-positive-negative/
[3]
Freedom of Speech and Expression, Right to Assemble Peacefully and without
Arms, Right to form Associations or Unions, Right to move freely throughout the
territory of India, Right to reside and settle in any part of India, Right to
practice any profession or trade.
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