Curtailing Individual Liberties: Test of Reasonableness
The
right to personal liberties cannot be unbounded. In any ordained and structured
society, the object of criminal justice is substantially different from that of
civil justice. While in the civil process, an individual seeks to redress the
violations of his individual rights; criminal justice system seeks to remedy
the wrongs that the society, through law established, perceives as done against
the society (despite the fact that the victim is an individual). An interesting
view was voiced in the Criminal Law journal in 1998[1]
that the police, prosecution and the courts are concerned with the rights of
the criminal and are largely unaffected by the plight of the victim, because
the criminal justice system’s primary objectives are societal in nature!
Art.
21 prohibits the denial of individual life or liberty, except by procedure
established by law. It is worthwhile to dwell upon the import of ‘procedure
established by law’ to understand its effect of individual liberties. Courts in
India have interpreted this ‘procedure’ as wide enough to cover the entire
process by which the deprivation is effected, not merely to include the
adjectival but also the substantive part of law. Take the example of preventive
detention. If a person is placed under preventive detention on a ground other
than those set out in the law, the preventive detention would obviously be not
according to the procedure established by law, because the procedure set out by
law prescribes certain conditions under which alone such a detention can be
resorted to. If those grounds do not exist, then the detention would be in
violation of Art 21. Every facet of law that deprives a person of his life or
personal liberty would, therefore, have to stand the test of reasonableness,
fairness and justice in order to be beyond the inhibition of Art 21[2]
which is also implied by the ‘due process’ clause. Such constraints as are placed on an
individual, needless to say, ought to be minimal and cannot exceed the
constraints of the particular situation, either in nature or in duration. Above
all, they cannot be used as engines of oppression, persecution, harassment or
the like. The sanctity of the person and of privacy has to be maintained at all
costs and that cannot be violated under the guise of maintenance of law and
order[3]
Though
the makers of the Indian Constitution deliberately abstained from including the
‘due process’ clause of the American constitution, in construing the
permissible restrictions on the freedoms guaranteed by the constitution, the
Supreme Court of India has, as a matter of construction, given effect to the
same considerations that weighed with the Supreme Court of America while
applying the ‘due process’ clause and the doctrine of the police power.
Apparently, the question as to whether the restrictions imposed by law are
reasonable or not is subject to examinations by the court by an objective test[4]
Laying down the foundations for the test of reasonableness the learned Chief
Justice, Mr. Patanjali Shastri, said:
“It is important in this
context to bear in mind that the test of reasonableness, wherever prescribed,
should be applied to each individual statute impugned, and no abstract
standard, or general pattern, of reasonable can be laid down as applicable to
all cases. The nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion of the imposition, the
prevailing conditions at that time, should all enter into the judicial verdict.
In evaluating such elusive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale of values of the Judges participating in the
decision should play an important part, and the limit to their interference
with the legislative judgment in such cases can only be dictated by their sense
of responsibility and self restraint and the sobering reflection that the
Constitution is meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people have, in
authorizing the imposition of the restrictions, consider them to be reasonable”
[5]
The democratic values and traditions that have evolved
since the clarion call of the French Revolution for ‘liberty, equality and
fraternity’ are at the foundation of every democracy around the world.
Inalienable right to life with dignity and the pursuit of all necessary means
to this end cannot be deprived of to any individual, except when such
individual has to stand the scrutiny of established law for an act or omission
that infringes on the liberties and rights of all other members of the society.
Under these circumstances, the need to curtail individuals’ rights so as to
subject him fruitfully to judicial scrutiny has the sanction of Constitutions
and Courts across the world. Even then, no arbitrary and oppressive measures
and procedures are accepted except those that stand the test of reasonableness.
A comparison with the mandates of Canadian and New Zealand Courts on the
‘reasonableness’ of restrictions would reveal that the concept of individual
liberty being subject to social needs is universally acceptable.
In order to determine reasonableness, Canadian and New
Zealand Courts have both developed sets of principles. A Full Court of the High
Court in Solicitor-General v Radio New Zealand Ltd discussed the relevant
authorities[6] It
was stated there that the starting point in applying the substantive test is
the Supreme Court case of R v Oakes[7] where the Court set out a detailed test. In
an early formulation of the applicable test, the Court said that a limit will
be reasonable and demonstrably justified in a free and democratic society if:
"(i) the objective sought to be
achieved by the limitation at hand must relate to concerns which are pressing
and substantial in a free and democratic society; and
(ii) the means utilised must be
proportional or appropriate to the objective. In this connection there are
three aspects:
- the limiting measures must be carefully designed or rationally connected to the objective;
- they must impair the right or freedom as little as possible;
- their effects must not so severely curtail individual or group rights that the objective of the limitation, albeit important, is nevertheless outweighed by the restriction of the right or freedom concerned." [8]
The New Zealand High Court in SG v Radio
NZ Ltd rephrased the test slightly as follows, although this clearly follows
the two-stage approach adopted by the Supreme Court:
"...To establish that the limit
is both reasonable and demonstrably justified in a free and a democratic
society the law creating the limit on the right of freedom must have an
objective of sufficient importance to warrant overriding a constitutionally
protected right or freedom. ...The means chosen by the law to achieve the
objective must be proportional and appropriate to be objective. ...To meet the
requirement of the proportionality test there are three components. First, the
limiting measures or the law must be designed to achieve the objective not
being arbitrary, unfair or based on irrational considerations. This is
described as being rationally connected to the objective. Second, the measures
or the law should impair as little as possible the right or freedom. Third, there
must be a proportionality between the effects of the measures or the law
responsible for limiting the right or freedom and the objective. The law which
restricts the right must not be so severe or so broad in application as to
outweigh the objective." [9]
It
is as well to remember Judge Hand when he said, “ liberty lies in the hearts of
men and women, when it dies there, no Constitution, no law, no Court can even
do much to help it”. Having due regards to such enduring realities in the
sustenance of orderly society, the Constitution also guarantees certain
inherent rights to the accused to protect his basic rights, when it is
subjected to unreasonable and oppressive restrictions. Art. 20 of the Indian
Constitution provides that:
“ (a) No person shall be
prosecuted and punished for the same offence more than once.
(b) No person accused of any offence shall be compelled to be a witness
against
himself.”
The protection afforded to the individual under these
provisions is not merely in respect of testimonial compulsion in the courtroom,
but it also extends to any compulsory process for production of documents that
are likely to support the prosecution case against him.
[1] 1998 Cr
LJ, Journal Section at 74.
[2]
Bachan Singh v. State of Punjab, AIR 1982 SC 1325 at 1340.
[3]
Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65 at 66.
[4]
“The determination by the legislature of what constitutes a reasonable
restriction is not final and conclusive; it is subject to the supervision by
this court. In the matter of fundamental rights, the Supreme Court watches and
guards the rights guaranteed by the constitution and in exercising its
functions it has the power to set aside an act of the Legislature if it is in
violation of the freedom guaranteed by the Constitution.” Mahajan, J. in
Chintaman rao v. State of Madya Pradesh, (1950) S.C.R. 759 at 675; Jyoti Prasad
v. The Administrator for The Union Territory of Delhi, (1962) 2 S.C.R. 125.
[5] State of
Madras v. V.G. Row, (1952) S.C.R. 697; State of Uttar Pradesh v. Kaushalya
Devi, A.I.R. (1964) S.C.R. 416 at 422.
[6] [1994] 1 NZLR 48 - the Full
Court being a two-member High Court of the Criminal Division, in this case
Eichelbaum CJ and Greig J.
[7] (1986)
26 DLR (4th) 200.
[8]
That decision was later affirmed and followed by the Supreme Court of Canada in
Irwin Toy Ltd v Quebec (Attorney-General) (1989) 58 DLR (4th) 577 and Re A
Reference re Public Service Employee Relations Act [1987] 1 SCR 313, 373-374.
The latter case was referred to with approval by the NZCA in MOT v Noort;
Police v Curran, above n 86, 283. Cases have, however, moved away from
requiring limitations to impair rights "as little as possible"
(requirement (2) of the proportionality test) to a more flexible test of
"as little as reasonably possible".
[9] This
was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR
89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the
latter case law) Richardson J said at p.283: "It is worth emphasising too
that in principle an abridging inquiry under s 5 will properly involve
consideration of all economic, administrative and social implications. In the
end it is a matter of weighing (1) the significance in the particular case of
the values underlying the Bill of Rights; (2) the importance in the public
interest of the intrusion on the particular right protected by the Bill of
Rights; (3) the limit sought to be placed on the application of the Bill
provision in the particular case; and (4) the effectiveness of the intrusion in
protecting the interests put forward to justify those limits."
