Ethics: January 2021 Current Affairs Current Affairs Notes | EduRev

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82                                                                               www.visionias.in                                                                        ©Vision IAS  
9. ETHICS 
9.1. LAW AND LIBERTY  
Introduction  
In the general parlance, liberty and law are seen as opposite forces where law restricts the extent of liberty and 
liberty continuously pushing the boundaries of the law. But are they always antithetical to each other? When do 
they operate in harmony and when in opposition? How can their opposition be resolved and what should be the 
way forward? 
What is a law and liberty and how do they interact?  
Broadly, law is the set of rules and regulations which enables effective 
functioning of society by upholding its collective value system. For 
example, a society which values gender equality will translate this idea 
into a law that prescribes penalization of gender discrimination.  
In other words, a law can be understood as a codification of collective 
ethics of society. Liberty, on the other hand, broadly refers to the idea or state of being free and being able to 
act in accordance with one’s wishes. For example, an Indian citizen 
has the liberty to reside in any part of the country.  
But the idea of freedom which constitutes the crux of liberty is in 
some or the other way part of the societal value system. The idea 
of liberty and conception of a law both have their basis in the value 
of system of the society.  
Every value system remains in continuous flux and so does the idea 
of liberty in that society. This is unlike a law which remains static 
unless actively amended. This creates a scenario where there is continuous interaction between a law, extent of 
societal allowance for liberty and individual liberty. For example, before decriminalization of homosexuality in 
India, section 377 of IPC law was at variance with liberty of the individual. At the same time, studies suggest that 
for more than 50 percent of India’s population still consider homosexuality as a taboo.  
Does the idea of individual liberty influence the lawmaking process? If yes, then how?  
As can be seen from above, both liberty and law have their core in the prevalent ethical framework of the society. 
This common core leads to influence of liberty on law in following ways-  
• Influence through the constitutional pathway: 
Our constitution upholds the Liberty as a part of 
basic structure and as a consequence, it becomes 
fundamental to law making process. For 
example, the laws that are blatantly antithetical 
to individual liberty are termed as 
unconstitutional and thus get repealed.  
• Civil society vigilance on restriction to liberties: 
Any law which seems to unreasonably restrict 
individual liberty, faces active opposition in the 
form of protests and/or non-compliance. For 
example, the law barring widow remarriage in 
India faced opposition from several sections and was ultimately amended.  
• Democratic nature of the Government: The prevalence of democracy creates an indirect pressure on the 
political representative to align laws with collective will of the people. This ensures that altering the status of 
societal liberty can entails political costs for the ruling dispensation.  
On the other hand, what are the potential impacts a law can have on exercise of liberty?  
• Balancing individual liberty and collective needs: Exercise of liberty, although key to experience of freedom 
and personal growth, cannot be absolute in nature. The exercise of liberty does not happen in a vacuum but 
Law, liberty and India’s Constitution  
Liberty serves as a key value in India’s constitution. This can 
be clearly inferred by the text of the preamble which states 
that people of India enjoy liberty of thought, expression, 
belief, faith and worship.  
With regard to enforceability of one’s liberty, in India 
Fundamental Rights of the individual serve as the 
barometer for the extent of liberty available to the 
individual. For example, liberty granted in Article 21 of the 
Constitution entails that a person can go out of the country 
at will, but this is subject to the reasonable restrictions 
documented in the Article. 
Positive Liberty: It 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. 
Negative Liberty: It is the absence of 
obstacles, barriers or constraints for a 
particular action.  
Page 2


 
82                                                                               www.visionias.in                                                                        ©Vision IAS  
9. ETHICS 
9.1. LAW AND LIBERTY  
Introduction  
In the general parlance, liberty and law are seen as opposite forces where law restricts the extent of liberty and 
liberty continuously pushing the boundaries of the law. But are they always antithetical to each other? When do 
they operate in harmony and when in opposition? How can their opposition be resolved and what should be the 
way forward? 
What is a law and liberty and how do they interact?  
Broadly, law is the set of rules and regulations which enables effective 
functioning of society by upholding its collective value system. For 
example, a society which values gender equality will translate this idea 
into a law that prescribes penalization of gender discrimination.  
In other words, a law can be understood as a codification of collective 
ethics of society. Liberty, on the other hand, broadly refers to the idea or state of being free and being able to 
act in accordance with one’s wishes. For example, an Indian citizen 
has the liberty to reside in any part of the country.  
But the idea of freedom which constitutes the crux of liberty is in 
some or the other way part of the societal value system. The idea 
of liberty and conception of a law both have their basis in the value 
of system of the society.  
Every value system remains in continuous flux and so does the idea 
of liberty in that society. This is unlike a law which remains static 
unless actively amended. This creates a scenario where there is continuous interaction between a law, extent of 
societal allowance for liberty and individual liberty. For example, before decriminalization of homosexuality in 
India, section 377 of IPC law was at variance with liberty of the individual. At the same time, studies suggest that 
for more than 50 percent of India’s population still consider homosexuality as a taboo.  
Does the idea of individual liberty influence the lawmaking process? If yes, then how?  
As can be seen from above, both liberty and law have their core in the prevalent ethical framework of the society. 
This common core leads to influence of liberty on law in following ways-  
• Influence through the constitutional pathway: 
Our constitution upholds the Liberty as a part of 
basic structure and as a consequence, it becomes 
fundamental to law making process. For 
example, the laws that are blatantly antithetical 
to individual liberty are termed as 
unconstitutional and thus get repealed.  
• Civil society vigilance on restriction to liberties: 
Any law which seems to unreasonably restrict 
individual liberty, faces active opposition in the 
form of protests and/or non-compliance. For 
example, the law barring widow remarriage in 
India faced opposition from several sections and was ultimately amended.  
• Democratic nature of the Government: The prevalence of democracy creates an indirect pressure on the 
political representative to align laws with collective will of the people. This ensures that altering the status of 
societal liberty can entails political costs for the ruling dispensation.  
On the other hand, what are the potential impacts a law can have on exercise of liberty?  
• Balancing individual liberty and collective needs: Exercise of liberty, although key to experience of freedom 
and personal growth, cannot be absolute in nature. The exercise of liberty does not happen in a vacuum but 
Law, liberty and India’s Constitution  
Liberty serves as a key value in India’s constitution. This can 
be clearly inferred by the text of the preamble which states 
that people of India enjoy liberty of thought, expression, 
belief, faith and worship.  
With regard to enforceability of one’s liberty, in India 
Fundamental Rights of the individual serve as the 
barometer for the extent of liberty available to the 
individual. For example, liberty granted in Article 21 of the 
Constitution entails that a person can go out of the country 
at will, but this is subject to the reasonable restrictions 
documented in the Article. 
Positive Liberty: It 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. 
Negative Liberty: It is the absence of 
obstacles, barriers or constraints for a 
particular action.  
 
83                                                                               www.visionias.in                                                                        ©Vision IAS  
in the context of society, where needs of multiple individuals are to be satisfied. Thus, in many cases individual 
liberty has to be restricted in order to ensure collective good. For example, restricting freedom of movement 
in border areas restricts movement but is essential to protection of National Security.  
• Acting as a catalyst to liberty: Law, in many cases, provides the requisite framework for the individual to 
exercise his/her liberty, especially when the societal conditions are not conducive to exercise of such liberty. 
For example, the Abolition of Sati law encouraged individual liberty of women despite the overall societal 
sentiment being against it. This idea operates on the basis of the notion of positive liberty.  
o In this sense, law can act an agent of reform and make societal value system more progressive.  
o Also, law creates a punitive mechanism for enforcement of legitimate rights and liberties in a society.  
• Acting as a hinderance to liberty: While balancing individual liberty and collective needs of society, institutions 
tend to interfere and unreasonably restrict the individual freedom thus creating hindrance to exercise of 
individual liberty.  
o In this case, the law will be restricting freedom of choice and make societal value system more regressive.  
How can a potential contradiction between law and liberty be resolved?  
Since there is a perennial debate on several issues from preventive detention to restriction on food choices. The 
question here becomes on what basis we can decide- “what is a reasonable restriction on liberty” and “what 
constitutes unnecessary interference.”  
In this context, Supreme court in its proceedings of the Right to Privacy judgement provided a framework to ensure 
that the restrictions on liberty are minimum, namely, Doctrine of Proportionality. The doctrine states that-  
• Legitimate state aim: The doctrine states that any restriction proposed by the state cannot be arbitrary I.e., it 
should be based on a legitimate state aim.  
• Relationship between the restriction and the aim: There needs to be a rational nexus between the liberty 
which has been restricted and aim of the state.  
• Least restrictive method: The restriction that is imposed needs to be least restrictive method needed for 
achieving the desired aim.  
• Balance between the restriction of liberty and overall benefits: There must a balance between the extent to 
which rights are infringed and the public benefit to be attained from the legislation.  
For instance, if a country introduces conscription policy, first it needs to be examined does it have a legitimate 
aim? Say, the country is at war, which provides it a legitimate aim. Secondly, does the restriction and aim have a 
relationship? Yes, conscription will increase the strength of the armed forces needed in a war. Thirdly, is 
conscription the least restrictive method? Here other options available to the country are to be analyzed. Finally, 
it needs to be examined that does the restriction on individual liberty (through conscription) of all citizens 
proportionate with objective of the war.   
What can be done to avoid such a contradiction in the first place?  
• Making the legislative process more participatory and inclusive: Making the legislative process more 
participatory and inclusive increase the overall acceptance for laws on the one hand and on the other, diverse 
participation will be improve the quality of legislation. This process will ensure that the doctrine of 
proportionality is followed by the state.  
• Regular updation of laws: One of the primary reasons for a contradiction between laws and liberty is the 
obsolete nature of laws. For example, Section 377 of IPC, Section 497 of IPC etc., although antithetical to the 
prevalent value system, remained in use due absence of methodology for regular updation of laws.  
• Encouraging empathy among citizens: A law is universal in nature, but the contexts in which the individuals 
operate are different. Thus, every individual may perceive the differently. In this context, empathy for diverse 
situations among citizens will help reaching a common ground without generating discontent from significant 
section of the population.  
Conclusion  
In the contemporary world liberty is important for individuals but this freedom is subjective, depending upon the 
socio-economic context of the society. The subjectivity associated with the idea may restrict the notion of liberty. 
But this restriction needs to pass the test of reasonableness, keeping in mind that in the long-term, efforts should 
be made minimize the occurrence of such contradictions.  
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