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Mainstream, VOL LX No 22, New Delhi, May 21, 2022

Freedom And The Law | S.G.Vombatkere

Saturday 21 May 2022, by S G Vombatkere

Freedom as ‘mukti’

“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.

Heaven of freedom

“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 [Gitanjali-35] of a more 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 British times, has been as relevant or perhaps more so, post-Independence.

The Constitution of India

The leaders of our struggle for freedom from British rule and political independence, conceived the need for a Constitution document long before Independence [1]. Perhaps the first 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 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 also 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 empowerment and liberation, then and only then does he/she 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, with particular focus on the millennia-long suppression of the “untouchables”.

Power politics and governance

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

Governance is admittedly not an easy task. There will always be one or other section of the public or group of people who are unhappy — justifiably or otherwise — with State or Central governments’ 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 in executive power do not adhere to, and more often go against, the Constitution’s 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, anyway. 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 People.
People take to the streets [2] with peaceful protests, demonstrations, bandhs, morchas, etc., because they are unable to solve their problems or even get the attention of their elected representatives. The cause is the combination of C-I-A, which is:

  • Money-material-services corruption which accompanies political and administrative office,
  • Ignorance of, or deliberately ignoring, the Directive Principles of the Constitution, and
  • The arrogance — often unabashedly displayed — of virtually unaccountable power, with abandonment of 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 central and/or state governments. [3]

Over the decades and across successive political dispensations upto present times, it has not been the practice of many, even most, politicians in positions of power, to utilize the political tools of genuine 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 or mistrust of governments and governance processes, and results in public confrontation on the streets with government agencies, and especially law and order enforcement agencies — the police.

The political class usually appears quite willing to suppress protests rather than address the reasons for the protests. 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 ruling party.

The foregoing 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.

Rule of law vs. Rule by law 

CJI N.V.Ramana opined [4] 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 British colonial rulers enacted laws to serve as a tool of political repression, and used them harshly to control their Indian subjects. That was Rule by Law, when law was used devoid of justice and 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 governments to provide equity, and social, economic and political justice to the People, by ensuring the Rule of Law.

However, over the 7.5-decades since Independence, successive governments at centre and states, of various political ideologies have, on innumerable occasions, enacted and used various laws to control people, suppress protests, etc.

Laws and democracy 

The 1860-vintage IPC 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 misuse of law. The person(s) named in a FIR become embroiled in a criminal justice process that saps the person’s resources of all sorts. Those who thus misuse the law 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, his/her reputation is irretrievably damaged, and he/she is 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 targetted, 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 disempowerment and denial of freedom. It causes what is known as the “chilling effect”, by threatening freedom and exercise of democratic fundamental rights. In a larger context, 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 an almost transparent intention of inflicting “punishment by process”. Further, uncritical — sometimes motivated, even spineless — acceptance of such FIRs by 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 as a “just law”, the law can still be misused or used unjustly. The extent and frequency of misuse of criminal law is an indicator of the state of democracy and people’s freedoms.

(Author: 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)


[1Vombatkere, S.G.; “Our Nation, Our Constitution: A Layperson’s Understanding“; https://countercurrents.org/2021/06/our-nation-our-constitution-a-laypersons-understanding; Countercurrents.org; June 18, 2021.

[2Vombatkere, S.G., “Into that Heaven of Freedom from Corruption, Let My Country Awake”; https://www.mainstreamweekly.net/article2963.html;  Mainstream, New Delhi, Vol XLIX No.36; August 27, 2011, p.23.

[3Vombatkere, S.G., “Governance and the Armed Forces”; https://www.mainstreamweekly.net/article2665.html; Mainstream, New Delhi, Vol XLIX No.15; April 2, 2011, p.19-20.

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