LIMITS ON INDIVIDUAL LIBERTY AND GOVERNMENT

AUTHORITY

By

Name of the student: Sheik Shiny Haneefa

Roll No.: 21LLB109

Semester: 1st

Name of the program: 5-year B.A., LL.B. (Hons.)

Name of the Faculty Member: Dr. T.Y. Nirmala Devi

Date of Submission: 30th January 2022

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

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 ACKNOWLEDGEMENT

I would like to express my sincere thanks to Dr. T.Y. Nirmala Devi for her support and
constant guidance in the conduct of the research on Limits on Individual liberty and
Government liberty. Throughout this research I gained a great deal of insight.

And also, I would like Thank Damodaram Sanjivayya National Law University Library team
who provided access to Library which helps me in gathering the material required for the
research. Also, I would want to convey our gratitude to everyone who has provided advice in
finishing this paper.

Thank you.

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 ABSTRACT

The 'people as a sovereign body' protects against abuses of individual liberty and despotic
authority through publicly approved rules that relate to a common set of public limits.
Individuals are deprived of this protection when there is no such centralised organisation.
Individuals must follow without liberty in such situations, while those in authority
command under a licence. An individual is unfree if and only if the act of another
individual prevents him from performing any action. That is, the individual is unfree since
the action in concern is prohibited by another.

It is also important that the government does not in any way override the law and establish
its supremacy in the country. The nature and limits of the power which can be legitimately
exercised by society over the individual. Certain limitation on individuals is legally
accepted to control the harm of other individual. This paper focuses on the concept of
individual liberty and their limitation as well as discusses the concepts of limited
government in detail. This paper describes several philosophical views of liberty and what
constitutes a reasonable restriction on Individual liberty. It will be argued that defining
liberty in terms of external influence from other agents minimizes the impact of natural
incapacity on a person's ability to fulfil their fundamental desires—a real limitation of
liberty is any restriction that prevents a person from doing as they like.

Keywords: Individual liberty, deprived, protection, limited government, constitutionalism,

prohibiting.

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 SYNOPSIS

Objective:

The objective of this study to know the limits of the individual liberty and government
authority and to know types of liberties enjoyed by the individual and to know what exactly
the limited government mean in detail.

Scope of the Study:

The scope of the study is limitation on individual liberty and government authority in India in
comparison to US.

Significance of the Study:

This study helps to understand the limitation placed on liberties of individual and government
authority.

Literature Review:

The researcher used various books, journals and articles. In this project, information is
gathered from various primary and secondary sources.

Primary sources:

Indiankanoon.com – The researcher has used this to understand the case judgement in
respective to safeguarding individual liberty.

Hein Online – The researcher has taken various journals and articles from this website.

Secondary sources:

“Limits of Individual Liberty” by Francis C. Montague – The researcher has taken this book
to study the importance of unfree individual liberty. This journal Cleary justified the
reasonable restriction on individual liberty.

“Law and Liberty” by Akanksha Dutta – The researcher has this article to study the relation
between law and liberty in detail. It explains the law doesn’t contradict the liberty in fact it
safeguards the liberty.

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“Redefining liberty: is natural inability a legitimate constraint of liberty?” By Zahra Ladan –
This article explains the concept of liberty with presenting various viewpoints. And explains
the government security is protecting or violates the individual liberty.

Research Methodology:

The current research is based mostly on data and information acquired from various web
articles, journals, and publications and other sources. The researcher had used doctrinal and
explanatory study.

Research Question:

Whether the state laws or government authority limits the individual liberty?

Research Mode:

The researcher used the OSCALA mode of citation style.

Research Design:

Introduction – This section explains

Liberty: Individual Liberty – This part explains the concept of liberty and its definitions by
various viewpoints.

Positive and negative aspects of liberty – This part discusses the concept of positive and
negative aspects of liberty which are types of liberty.

Law and Liberty – This part explains the relation between law and liberty. Discusses how law
restrict the individual liberty.

Reasonable restrictions on individual liberty – view points – this past discusses the various
viewpoints like idealistic, individualist, Anarchist point of views on restrictions of individual
liberty.

Restriction on government authority- This part explains the restrictions on government and
the importance of restrictions on government authority.

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 TABLE OF CONTENTS

• ACKNOWELDGEMENT……………………………………………...……….2
• ABSTRACT……………………………………………………………...………3
• SYNOPSIS………………………………………………………………....……4

CHAPTERS:

1. INTRODUCTION……………………………………………………………...7
2. LIBERTY: INDIVIDUAL LIBERTY…………………………………...….…8
3. POSITIVE & NEGATIVE ASPECTS OF LIBERTY……………………….9
4. LAW AND LIBERTY………………………………………………………....12
5. REASONABLE RESTRICTION ON INDIVIDUAL LIBERTY –VIEW POINTS
6. RESTRICTION ON GOVERNMENT AUTHORITY………………………16
7. CONCLUSION……………………………………………………………. ….20
8. REFERENCE………………………………………………………………. ….21

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INTRODUCTION:

Complete liberation of the individual from all forms of social influence is a logical
impossibility. Fortunately, it is also highly undesired; the only liberty worth having is that of
the person who can either control or satisfy all of his wants. Liberty, in the ordinary sense of
the term, liberty from the restraints of law or public opinion, is only beneficial inasmuch as it
helps man in achieving that other liberty, which is an end in itself, the purpose of all social
organisation. Only a delicate balance of limitation and liberty exists in society. There will be
no society where the individual has no choice in his acts; for where there is no individual will,
there can be no joint will; and if the individual is free to do anything he wants, there can be no
society. The freest society is the one that is best organised for the highest purposes, and since
the best organisation is always relative to the personality and situations of the people
organising it, the desired volume of liberty from restraint is always relative to that personality
and those situations. Anyone who asks how much freedom is good for mankind is actually
asking how much freedom is good for his neighbours and countrymen, and the politician, not
the philosopher.1

As a result, a decent society must ensure that each and every healthy, mature human person
among its members is allowed to make their own decisions on a variety of important matters.
However, even liberty is only beneficial in moderation. A reasonable person does not
anticipate or desire to be completely free of social norms and positive law. He understands
that a society free of moral restraints on human behaviour is not human, but inhuman.2

Individual liberty, according to neoliberal thinkers, is undermined by any common

personality, which comes with a set of public and arbitrary positive and negative restrictions
on liberty. Only private restrictions on liberty are permitted under neoliberal doctrine. We
suggest that opposing governmental limitations on liberty does not improve individual liberty,
despite these neoliberal assumptions. On the contrary, it produces conditions in which free
people become slaves and political inequality deepens, separating citizens into those who
obey and those who command.3

In this we will discuss the concept of individual liberty, negative and positive liberty with
various philosophical views.

1
Montague, Francis C., Limits of Individual Liberty (1885) 182.
2
Theodore E. Simonton, ‘A Definition of Liberty, (1964) 50(4) JSTOR 337,337.
3
Regina Queiroz, ‘Individual liberty and the importance of the concept of the people’ (2018) 4(99).

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LIBERTY: INDIVIDUAL LIBERTY

Liberty implies an unrestricted state. When restrictions are introduced, liberty is taken away.
The term 'liberty' comes from the Latin word 'liber', which implies "freedom, freedom from
restrictions." As a result, liberty refers to an individual's ability to act without restraint. Man
has the ability to behave in accordance with his desires.

If liberty is defined as the ability to do something without being restrained, then only the
powerful will be free. In society, there will be constant conflict, and the powerful will
dominate the weak. The weak will be dependent on the powerful. As a result, we might
remark that liberty does not imply total or unrestricted liberty. There must be certain
limitations on liberty in order for it to be useful to society as a whole. Liberty entails the
attainment of the ability to create one's best self. As a result, an individual's liberty should be
limited if it causes harm to another person or society.

According to Cole, "Liberty is the freedom of an individual to express himself without

external influence".

According to Mackanzie, "Freedom is not the absence of all restrictions, but rather the
replacement of rational restraints for irrational ones".

The following are some of the different aspects of liberty:

1. Liberty cannot be defined as freedom without limitations.

2. Liberty is a necessary requirement for the development of one's personality.
3. To make liberty meaningful, it is important to set reasonable restrictions on person's
freedom.
4. Abiding by the law protects an individual liberty.

The concept of liberty is diverse and varied, with the only constant being that individuals
should be free to some extent within a society. The difference is in determining how
individuals may enjoy that freedom and how far that freedom can be extended without
government interference. Miller and Berlin both highlighted distinct kinds of libertarian
viewpoints that overlap.

According to the Miller, there are three 'families of ideas,'. 4

4
Miller D.,’ Introduction of Liberty’, Oxford University Press, 1991.

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 • First is the Republican idea—a person is free when they are a part of a self-governing
political sphere. They are not merely passive members of society; they take an active
part in ensuring that the government's actions represent the opinions of the people it
rules.
• The second liberal viewpoint is that a person is free to the extent that he is able to
behave as he likes without interference or restraint from other actors.
• And the final family is subject to Individual liberty.

According to the Berlin, there are two types of liberty: negative liberty and positive
freedom. Unlike Miller, who believes that all three of his "families" of liberty contribute
equally to actual liberty, Berlin favours one over the other. According to Berlin, negative
liberty refers to freedom from intervention or restraint. Positive freedom, on the other hand,
refers to a person's ability to behave as they like; to be their own master. Berlin asserts that
the true self is free in the positive sense when it is a part of a larger collective that works to
achieve a better level of freedom for all members of that community.5 Berlin had stated that
liberty, properly defined, lies in not being prohibited from doing whatever one wants by other
people, and that one is free to the extent that one is not prevented from doing what one
desires.6 He also stated that liberty simply refers to the space within which a man can behave
without interference from others. He believes that when a man's liberty is restricted to the
point that he is unable to behave himself as he desires, he is being coerced and so unfree.

As an Individualist, Mill viewed Liberty as completely free of any restrictions in the "self-
regarding" domain of human action. It was a highly selfish and unrealistic view of liberty.
While totalitarians and idealists believed that liberty is found in obeying the laws of the state.

T.H. Green defines it as the ability to do or enjoy something worthwhile in the company of
others. Many philosophers divide liberty into two categories: negative and positive liberty.
Positive and negative liberty are generally discussed in the context of political and social
philosophy.

POSITIVE AND NEGATIVE ASPECTS OF LIBERTY

The absence of barriers, restrictions, or restraints is known as negative liberty. To the extent
that actions are open to one in this negative sense, one enjoys negative liberty. Positive liberty
is the ability to act — or the actuality of behaving — in such a manner that one may take

5
Berlin I. Hardy H, ‘Two concepts of liberty. Oxford: Oxford University Press’, 2002.
6
Hillel Steine, ‘Individual Liberty’ (1974 – 1975) 75 pp.33, 34.

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control of one's life and achieve one's basic goals. Positive liberty is occasionally assigned to
collectivises or persons seen primarily as members of certain collectivises, whereas negative
liberty is frequently attributed to individual actors.

Negative and positive liberty, as Berlin demonstrated, are not only two different types of
liberty; they may also be viewed as conflicting, contradictory interpretations of a same
political ideal. Because few individuals claim to oppose liberty, how the term is understood
and used can have significant political repercussions. Political liberalism usually assumes a
negative conception of liberty: liberals argue that if one supports individual liberty, one
should impose severe restrictions on the state's operations. Liberalism's critics commonly
compete this inference by disputing the negative definition of liberty: they argue that the
pursuit of liberty as self-realization or self-determination (whether of the individual or of the
collectively) can necessarily require state intervention of a kind that liberals do not normally
allow.7

NEGATIVE LIBERTY

In its negative sense, liberty implies complete independence from all constraints. Individuals
should be able to do anything they want. Every law limits an individual's liberty; hence the
law of the state should not be enforceable on anybody. As a result, the state should take care
to eliminate any obstacles to an individual's freedom. J.S. Mill, Rousseau, and Spencer are the
most prominent proponents of negative liberty. It also suggests that the person must be left
alone to live his or her life as he or she wishes. Every state law is essentially an infringement
on individual liberty. As a result, the state's role should be limited to preventing obstacles and
performing the minimum necessary of negative activities such as preserving law and order
and protecting people and property. It should not, however, interfere with social, cultural,
economic, or moral aspects of life.

In a society divided between 'haves' and 'have notes,' unrestricted freedom of action and
thinking would eventually favour the wealthy, resulting in the subjugation of the poor.
Capitalists will have total freedom to suck the blood of countless millions under the guise of
freedom of action in these conditions.

J.S. Mill said – "The lack of restrictions is liberty."

7
Carter, Ian, Positive and Negative Liberty, (Stanford Encyclopaedia of Philosophy, 2021)
<https://plato.stanford.edu/entries/liberty-positive-negative/> accessed 22 January 2022.

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Rousseau said - "Man is born free, yet he is chained everywhere."

Herbert Spence said - "Only the strongest should have the right to live."

The Negative aspects of liberty can be described this way:

a) The absence of constraints is defined as liberty.

b) With the expansion of government actions, individual liberty is decreasing.
c) The government that rules the least is the best.
d) The greatest way to improve is through open competition.
e) The government's protection strategy is incorrect.

POSITIVE LIBERTY:

The lack of restraints, according to positive liberals, cannot be called ‘liberty. If man's
behaviour is controlled in the societal interest, it will protect not just his own liberty but also
the liberty of others. No one is allowed to act in a way that damages or infringes on the rights
of others. In a positive sense, liberty is described as a state of freedom in which undesired and
insufficient limitations are not only absent, but also favour possibilities that aid in the whole
development of human personality. It is having the ability and skills to fulfil one's full
potential. Positive liberty can also refer to the absence of internal limitations. It appears that it
requires the presence of something (i.e., of control, self-mastery, self-determination or self-
realization). In Berlin’s words we use the positive idea to try to address the question "What,
or who, is the source of control or interference that might cause someone to do, or be, this
rather than that?".8

According to Green Writes "As beauty is not the absence of ugly, so liberty is not the lack
of limitations,". He went on to say that liberty is the ability to do and enjoy something, as long
as it is worthy to do and enjoy.

The positive aspect of liberty can be described this way:

1. If liberty is to be given a true meaning, it must be limited in an adequate amount.

2. There is no contradiction between the individual’s and society’s interests.

8
Carter (n 7).

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Karl Marx had a distinct perspective on liberty; he believed that there could be no true
freedom unless capitalism was replaced by a socialist government. He doesn't only see liberty
as identical with the end of human exploitation; he also sees it as associated with the
wonderful human qualities that can only be achieved in a stateless era of social growth.9

The strong ideas of Idealists, Individualists, and Marxists resulted in a more neutral view of
authority and law as a complement to man's extroversion. Man must submit himself to
authority as long as he is social. Certainly, laws restrict liberty and hence infringe on liberty,
but they are rules that help people live better lives. It is a justifiable constraint of liberty to
force adherence to them.

LAW AND LIBERTY

Liberty means freedom of choice—the ability to conduct one's life according to one's own
free will. Laws, on the other hand, impose restrictions on individual liberty. They begin with
the state and are backed by the state's sovereignty and physical power. Physical punishments
are imposed for breaking the law. As a result, it appears that there is a conflict between law
and liberty.

Individual liberty is protected by laws, which are enacted to safeguard it against despotic
powers.10 The preamble of the Indian Constitution mentions liberty, declaring that the
Constitution of India would protect the people of India's freedom of thought, speech, religion,
faith, and worship. When individual liberties are preserved and maintained, a community can
create a greater level of personal transcending. A community can provide the framework for a
rich ferment of spiritual ideas and expressions when diverse viewpoints and lifestyles are not
just allowed but encouraged. This can lead to a greater degree of spiritual exploration,
intellectual adventures, and personal enlightenment.

When drafting a law, legislators must constantly keep in mind the liberty that each citizen of
our country enjoys. The laws and responsibilities of a citizen should never clash with an
individual's right to liberty. The idea of a liberal state has emerged in the contemporary state
system, which has the responsibility to protect an individual's inherent liberty in legal and
political terms, which includes the lack of limits and interference from any power.

9
Akanksha Dutta, ‘Law and Liberty’ (lawoctopus.com, 2015) < https://www.lawctopus.com/academike/law-
liberty/ >accessed 22 January 2022.
10
Regina (n 3).

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Some people believe that liberty means having the freedom to do anything they want. They
also believe that law is what limits one's ability to exercise liberty. They don't contradict one
other; rather, they complement one another. True liberty can only come as a result of
established law, and the only established law that exists is the one and only Law Giver's.
Individuals' freedom and liberty are, nonetheless, guaranteed by the law.

Article 21 of the Indian Constitution guarantees citizens liberty, as well as a variety of other
freedoms such as speech and expression, mobility, assembly, and profession, among others
via article 19. The United States of America's constitution, via a series of amendments,
guaranteed its citizens freedom of the press, expression, association, and assembly, among
other things.

As a result, most constitutional democracies and monarchies guarantee freedoms and rights in
their constitutions. The judiciary is the guardian of these constitutions, enforcing the law to
protect the people's liberty. This liberty is a combination of positive and negative liberty; it
allows individuals to develop and realise their full potential while also protecting them from
outside influence.

Depending on the form of government, one can study their relationship. While in a dictatorial
system, law is the command of the dictator and does not represent the public opinion, in a
democratic system it is an essential condition for the full enjoyment of individual liberty.
Throughout history, enactment of the law has been viewed as a curtailment of individual
liberty, starting with the Sophists and going up to the Laissez Faire theorists. Anarchists
argued for the abolition of the state so that individuals could have complete freedom. As a
result, there is a relationship between law and liberty depends on the political system in which
they exist.

There are violations of freedom and liberty where there are no laws to safeguard or guarantee
them. The existence of liberty is threatened when the law and legislators do not support it. In
the Ramlila Maidan Incident11 in India, the Supreme Court of India found the authorities
responsible for assaulting a sleeping crowd of protestors who had gathered at Ramlila Maidan
in New Delhi for a yoga camp and to protest rising government corruption with Baba
Ramdev, a yoga teacher. As a result, it is true that law promotes liberty rather than hindering
it. In the historic case of Maneka Gandhi v. Union of India,12 the new government

11
Ramlila Maidan incident v. home secretary, union of India & Ors, (2012) 5 SCC 1.
12
Maneka Gandhi v. Union of India, 1978 A.I.R 597.

13
attempted to seize Maneka's passport, which she challenged in court and won a landmark
ruling on personal liberty. "Democracy is built basically on free debate and open discussion,
for that is the only curative of government action in a democratic setup," the court said in the
case. As a result, the Indian judiciary granted individuals liberty in accordance with the
constitution's provisions.

In the international context, Assanidzé v. Georgia13 was a landmark decision under the
European Convention on Human Rights, in which Tenguiz Assanidzé, the mayor of Batumi
and a member of the Ajarian Supreme Council, was detained for over three years after being
acquitted by the Supreme Court of Georgia. The Court determined that the appellant had been
detained indefinitely in violation of Articles 5 (right to liberty and security) and 6 (right to a
fair trial); for the first time, it requested that the state secure the individual's immediate
release. It was once again the law that protected a European citizen's liberty.

Some thinkers, such as John Locke, believe that the law creates a favourable environment for
the enjoyment of liberty. A number of philosophers and famous scholars, including Hobbes,
Spencer, and Prof. A.V. Dicey, hold the opposite viewpoint. According to Prof. A.V. Dicey,
"the more of one, the less of the other." Anarchist philosophers such as Proudhon, Goodnow,
Bacunm, Kropotkin, and others have advocated for the state's elimination in order to achieve
more liberty.14

A dictator's law, enacted without respect for public opinion, is a direct threat to liberty. As a
result, in certain political systems, law and liberty are mutually exclusive. It is possible to
argue that ultimate freedom is neither freedom nor a licence. Liberty is only a limited form of
freedom, and this limitation is imposed solely by the law.

J.S. Mill expresses his view that state rules are always a violation on man's 'individuality.'
Except to ensure the freedom of other people, the state should not have more than the ability
to limit an individual. A "drunk" person should not be detained, but a "drunk" police officer
on duty should. Individual acts must not be restricted by legislation as long as they do not
infringe on the liberty of others.

In the Golak Nath case, the Supreme Court stated, "The constitution creates the legislature,
the executive, and the judiciary." It clearly demarcates their authority and expects them to

13
Assanidzé v. Georgia, no. 71503/01, § 202.
14
Ankita, Relation Between Liberty And Authority and also between Liberty and Law (preservearticle.com)
< https://www.preservearticles.com/articles/relation-between-liberty-and-authority-and-also-between-
liberty-and-law/6931> accessed 24 January 2022.

14
perform their separate functions within those limits. They must work within the limitations of
the spheres that have been assigned to them.15

The restriction of one's liberty might be caused to any natural interference. Absolute liberty
necessitates the abolition of all laws. However, in the absence of law, anarchy prevails, and
ultimate liberty is a form of negative liberty. Laws are needed to avoid chaos in the state,
which requires individuals to give up some liberties while keeping the good of society and the
state in mind. According to a logical contrast between liberty from and liberty of, the concept
of negative liberty, defined as the absence of interference, is placed against the concept of
positive liberty. The conceptual gap between the lack of limits on individual behaviour and
decisions (negative liberty) and the individual claim to be the owner of one's own destiny
(positive liberty) may be stated as this opposition (positive liberty).16

As a result, liberty cannot be said to be fundamentally opposed to the law, because it is the
law that most frequently grants liberty, and any restrictions put on it are intended to safeguard
the wider public and state. As a result, a society without laws to manage or ensure liberty will
mirror Hobbes' state of nature, in which life is harsh, individuals violently struggle for rights
and resources, and there is no security.17

In other view It's also important to note that the law both restricts and protects our freedom.
As a result, legislation is a great evil when it comes to liberty.

Separation of Powers –

When judicial power is not separated from legislative and executive power, there can
be no liberty. Without a separation of powers between the judiciary and the legislature,
power over citizens' lives and liberty would become arbitrary, since the judge would also be a
legislator. The judiciary would have the power of an oppressor if it were not separated from
governmental authority. ~ Montesquieu.

"Power corrupts, and absolute power corrupts completely," as the saying goes. India
maintains a system of separation of powers among its three wings: legislature, executive, and
judiciary, to prevent the concentration of power in one single entity. In principle, each of the

15
L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.
16
Berlin (n 5).
17
Ankita (n 13)

15
three wings is self-contained. Each wing operates independently of the others and is required
to stay within its own set of parameters.18

REASONABLE RESTRICTION ON INDIVIDUAL LIBERTY – VIEW

POINTS

Liberty progress toward an intended result, yet the more powerful members of society want to
control all opportunities. That is why a strong power is required to ensure that all citizens
have equal opportunities for growth. The state does this by forcing citizens to follow the law.
As a result, the state is necessary, and it should enforce laws. In terms of the existence of a
state and compliance with the law, there are three points of view. They are as follows:

1. Idealistic standpoint: Idealists believe that the state is the basis of liberty and
morality. As a result, man can only enjoy liberty if he obeys the state's laws. State law,
according to idealists, is always founded on ethical principles, which is why freedom
comes from law and liberty comes from obeying the law. According to "Liberty is
only achieved within the government,".
2. Individualistic view point: Individualists believe that law is contradictory with
liberty. According to them, every law establishes a barrier in the way of liberty. "The
more of one, the less of the other," Dice said. Individualists argue that the state is
necessary because it maintains internal law and order, protects the state from foreign
attack, and resolves necessary disputes. The government's role is restricted to this
extent, and individuals should be granted complete freedom for the remainder.
3. Anarchist viewpoint: Anarchists have described the state as "very evil." They believe
that man's growth can only be achieved in a society without a state. State, according to
William Godwin, is an unpleasant natural order. In summary, the status of liberty is
determined by a reasonable and fair law, and the state's unlawful involvement is
harmful to liberty.

RESTRICTIONS ON GOVERNMENT AUTHORITY

The majority of nations in the world have chosen democratic systems, documents, and
policies, and are actively promoting democracy. Only a few nations are still ruled by
dictatorships or armed forces. The ultimate law of the nation, the Constitution, governs

18
Abhinav Mishra, ‘Law and Liberty: A Tug of War’, (2015) 1(1).

16
democratic governments. If the Constitution is weak or poorly drafted, democracy will surely
collapse due to the flaws that will exist in the system as a result of lawlessness. It's also
crucial that the government doesn't use the law to build its own supremacy in the country.
Many thinkers advocate limited government and constitutionalism in order to limit the powers
of government.19

By liberty, the political rulers' despotism was designed to be protected.20 The rulers were
regarded as being inherently unfriendly to the people they controlled. They took the form of a
governing One, or a governing tribe or caste, who derived their authority from inheritance or
colonisation, who, in any case, did not hold it at the pleasure of the governed, and whose
supremacy men did not endeavour, perhaps did not desire, to challenge, regardless of the
precautions taken against its oppressive exercise.

Their authority was seen as both essential and dangerous; as a weapon that they would try to
use against their citizens, just as they would against foreign enemies. To safeguard the
community's weaker individuals from being preyed on by hundreds of vultures, a stronger
beast of prey was hired to keep them down. But, because the king of the vultures would be
just as intent on feeding on the flock as any of the minor harpies, it was necessary to maintain
a constant defensive position against his beak and claws. Patriots' goal then, was to restrict the
power that the ruler should be allowed to have over the people, and this limitation was what
they understood by liberty.

CONSTITUIONISM:

The Constitution is a document that provides regulations governing the organisation of a

country's government and its governance. During its rule as governing authority, the
government is bound by the Constitution and cannot violate it. The restrictions placed on the
government by these laws and regulations gradually build up to the concept of
constitutionalism. Constitutionalism refers to the concept of limited governance or
government restriction. It is the total opposite of arbitrary authority. Constitutionalism
recognises the need for a government with powers, but it also demands that those powers be
limited. Despotism is the total opposite of constitutionalism. When a government oversteps its
limits, it loses its power and credibility. As a result, the Constitution should be filled with

19
Rachit Garg, ‘Constitutionalism and limited government’, (blogipleaders.in, 2021)
<https://blog.ipleaders.in/constitutionalism-limited-government/> accessed 25 January 2022.
20
John Stuart Mill, ‘On Liberty’ (econlib.org, 2018) < https://www.econlib.org/library/Mill/mlLbty.html>
accessed 25 January 2022.

17
'Constitutionalism,' with certain inherent restrictions on the powers given by it on
governmental institutions, in order to safeguard the individual's basic liberties and maintain
his dignity and identity.21 When limited government is implemented, it frequently contributes
to the protection of individual liberty against government intervention.

Constitutionalism, according to Louis Henkin, includes the following elements: (1)

constitutional government; (2) separation of powers; (3) people's sovereignty and democratic
government; (4) constitutional review; (5) independent judiciary; (6) limited government
subject to a bill of individual rights; (7) civilian control of the military; and (9) no state
power, or very limited and strictly circumscribed state power, to sue.

CONSTITUTIONALISM IN INDIA:

India has a written constitution and is a democratic country. The rule of law is the cornerstone
of the country's government, and all administrative organisations are supposed to uphold it in
letter and spirit. Constitutionalism is thought to be a natural result of government in India.
However, India's experience with the governance process over the previous six decades has
been varied. On the one hand, we have great administrative mechanisms in place to supervise
even the smallest issues linked to wellbeing of the individual, but on the other hand, it has
simply resulted in excessive bureaucracy and ultimate separation of rulers from ruled. Since
independence, the backward regions have stayed the same, the wealth gap has expanded,
individuals at the bottom of the pyramid have remained on the edge of progress, bureaucracy
has maintained colonial characteristics, and overall development has lagged far below
people's expectations.

The majority of earlier constitutions focused primarily on allocating decision-making

authority and limiting government power. However, many twentieth-century constitutions,
like the Indian Constitution, give an enabling framework for the government to achieve some
beneficial things, such as represent society's aspirations and goals. In this regard, the Indian
Constitution was particularly innovative. Societies with deep-seated inequalities of many
types would need to not just limit government authority, but also enable and empower the
government to take proactive actions to address forms of inequality and hardship.

India is one of the world's two largest democracies. With 448 articles, 25 sections, and 12
schedules, the Indian Constitution is one of the world's largest and longest. Article 13 of the

21
Kiruthikadhanapa, ‘Constitutionalism’ (legalserviceofindia.com)
<http://www.legalservicesindia.com/article/1699/Constitutionalism.html> accessed 25 January 2022.

18
Indian Constitution establishes the principle of the rule of law. Both the people's rights and
the government's authority are limited under the Indian Constitution. In India, it is reasonable
to assume that the idea of constitutionalism is organically adopted.

CONSTITUTIONALISM AND RULE OF LAW:

The supremacy of law refers to the fact that law governs society and that this law applies
equally to all people, including government and state officials. Separation of powers, judicial
review, the prohibition of retrospective legislation, and habeas corpus are some of the typical
institutional elements used to protect the rule of law, all of which are based on constitutional
principles. As a result, genuine constitutionalism gives a minimum guarantee of both contents
and form of legal justice. Constitutionalism, on the other hand, is protected by the rule of law.
The supremacy of the constitution can only be achieved once the rule of law has been
established. To offer structure to its framework, constitutionalism also requires strong laws
and their execution.

CASE LAWS (In which the Supreme Court has legally recognised the concept of
"Constitutionalism")

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors., the Supreme Court took
the part: Constitutionalism is currently a legal principle that requires control of government
authority in order to guarantee that it does not undermine the democratic values on which it is
founded. The safeguarding of basic rights is one of these democratic values.
Constitutionalism proposes a check-and-balance system of separation of powers; it
necessitates a separation of powers, needing several independent decision-making centres.
The key aspect of common law constitutionalism is the preservation of fundamental
constitutional rights by the common law.22

"The constitutionalism or constitutional system of government dealing with different kinds

absolutism - it is premised on the Rule of Law in which subjective satisfaction is replaced by
objectivity provided by the provisions of the Constitution itself," the court wrote in
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr.23 Limits and goals are at
the heart of constitutionalism. "The Constitution is a treasured heritage and, consequently,
you cannot destroy its identity," said Chandrachud, CJ, in Minerva Mills Ltd.

22
I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, (1999) 7 SCC 580.
23
Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr, WP (civil) 257 of 2005 (High Court).

19
Constitutionalism makes citizens shall be safe from being detained arbitrarily and without
reason. This is one of the most fundamental limitations on government power. Citizens will
usually enjoy the right to basic liberties such as freedom of expression, conscience,
association, and trade or business. In practise, these rights can be restricted during times of
national emergency, and the constitution lays out the conditions under which these rights
might be repealed.

CONSTITUTIONALISM IN DIFFERENT COUNTRIES

UNITED STATES:

Constitutionalism has been described as a set of beliefs, attitudes, and habits of behaviour in
the United States that elaborate on the principle that government authority comes from the
people and is limited by a body of fundamental law. According to one analyst, these ideas,
attitudes, and habits of behaviour come from "a dynamic political and historical process rather
than a static body of thinking laid down in the eighteenth century."

Constitutionalism has typically concentrated on the federal Constitution in both its descriptive
and prescriptive senses in American history. Many historians have assumed that knowing
"American constitutionalism" requires a grasp of the reasoning that went into the design of
the federal Constitution as well as the American experience with it after its passage in 1789.
State constitutionalism has a long history in the United States, and it provides a unique
perspective on the subject.

UNITED KINGDOM:

In a country with an unwritten constitution, the United Kingdom is possibly the greatest
example of constitutionalism. A number of events in seventeenth-century England, such as
"the prolonged struggle for power between the king and Parliament was accompanied by an
overgrowth of political ideas in which the concept of counterbalancing powers was clearly
defined," resulted in a well-developed polity with multiple governmental and private
organisations that counter the state's power.

CONCLUSION:

The influence of natural incapacity on individual liberty is ignored when liberty is defined in
terms of the acts of another human agent. When a restriction on liberty makes it difficult for
an individual to behave as they choose, it should be regarded legal. Natural incapacity is a real

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limitation of liberty when analysed in this way. Capacity-based views of liberty have been
argued to be favourable since they recognise that one's ability to enjoy liberty is dependent on
opportunity. Individual liberty must be balanced against government security, but it is crucial
to recognise that liberty is not always more important than other fundamental values. Lady
Hale's explanation of a denial of liberty focuses too much on liberty and neglect these other
important qualities.24

Individuals in a state are entitled to make choices that assume and foster responsibility; if a
man is unable to choose due to any restriction, he is mistreated to that level. The decision not
to select at all but to transfer that decision to an irresponsible collective public is a choice in
and of itself, and the final decision-maker, the person who rejected or refrained from
choosing, must bear the consequences of the collective's decision.25

Individual liberty is crucial in today's world, however this liberty is subjective, meaning that a
person's freedom has no limits, implying that he may do anything he wants, even if his
activities are harmful to society. Here comes the role of law, the reasonable and justifiable
restrictions that are necessary to bring about positive liberty, which is more vital for the state
than absolute liberty.

REFERENCES:

1. Queiroz, R., Individual liberty and the importance of the concept of the people.
2. Isaiah Berlin, Two Concepts of Liberty (1958).
3. Ridgway K. Foley Jr., Individual liberty and the Rule of law, Foundation for
Economic Education.
4. Kiruthikadhanapa, ‘Constitutionalism’ (legalserviceofindia.com).
5. Miller D.,’ Introduction of Liberty’, 1991.
6. Montague, Francis C., Limits of Individual Liberty (1885) 182.
7. Theodore E. Simonton, ‘A Definition of Liberty, (1964) 50(4) JSTOR 337,337.
8. Carter, Ian, Positive and Negative Liberty, (Stanford Encyclopaedia of Philosophy,
2021).
9. Abhinav Mishra, ‘Law and Liberty: A Tug of War’, (2015).

24
Zahra Ladan, ‘Redefining liberty: is natural inability a legitimate constraint of liberty?’, (2001) 47(1).
25
Ridgway K. Foley Jr., ‘Individual liberty and the rule of law’, (fee.org, 1971)
<https://fee.org/articles/individual-liberty-and-the-rule-of-law/> accessed 25 January 2022.

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10. Ankita, Relation Between Liberty and Authority and also between Liberty and Law
(preservearticle.com).
11. Hillel Steine, ‘Individual Liberty’ (1974 – 1975) 75 pp.33, 34.
12. Rachit Garg, ‘Constitutionalism and limited government’, (blogipleaders.in, 2021)
<https://blog.ipleaders.in/constitutionalism-limited-government/> accessed 25 January
2022.
13. John Stuart Mill, ‘On Liberty’ (econlib.org, 2018) <
https://www.econlib.org/library/Mill/mlLbty.html> accessed 25 January 2022.
14. L. C. Golak Nath & Ors. v. State of Punjab & Anr., AIR 1967 SC 1643.
15. Zahra Ladan, ‘Redefining liberty: is natural inability a legitimate constraint of
liberty?’, (2001) 47(1).
16. Ridgway K. Foley Jr., ‘Individual liberty and the rule of law’, (fee.org, 1971)
<https://fee.org/articles/individual-liberty-and-the-rule-of-law/> accessed 25 January
2022.
17. I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, (1999) 7 SCC 580.
18. Rameshwar Prasad and Ors. vs. Union of India (UOI) and Anr, WP (civil) 257 of
2005 (High Court).

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