Civil liberties vs.

National security
-KRISHNA GUPTA

ABSTRACT
Civil liberties are natural rights inherent to every citizen which protects them from
tyranny by the state. The degree to which these liberties are enjoyed by people is an
important indicator of the quality of a given country’s democracy. The Civil liberty is
the freedom given to its citizens to enjoy which is an inherent linkage between the
democratic republic and dictatorship.
In dictatorship , the Civil liberties are being taken away from its citizens making them
unable to enjoy their rights and follow the regime orders . But , there is a difference
between liberty and absolute freedom. The nation gives its citizens freedom to certain
extent which may not tamper the nation’s own integrity and security.

INTRODUCTION
The rights that exist when the government refrains from interfering without cause are
known as civil liberties. People can write, speak, own, marry, identify, and vote as
they wish in a fully free society, free from governmental interference. The
government and its agencies need simply refrain from limiting these liberties,
theoretically speaking, in order to ensure these freedoms. Supporting these freedoms
naturally doesn’t need any more work as long as the government stays out of its
citizens’ personal life. Unlike civil rights, which are areas where the government
actively tries to promote democratic values and equitable treatment, this collection of
liberties is not the same.

CONCEPT OF NATIONAL SECURITY & CIVIL LIBERTY

In the broadest scope , the idea of “ National security” is virtually without limits; it
embraces every aspect of the general welfare of the nation 1. It is possible that the term
“National Security” is being used as an external threat but it also indicates the internal
threat that lies within the nation . For example: The communal harmony being
disturbed to create the chaos within the nation’s integrity to harm peace is being under
the sphere of internal threat . Under this threat the people who harm the nation lives
with same people can also be called as “ sleeper cells” which activates on specific
indications to create communal nuisance under which many innocent lives get lost. So
, the term “ National security “ is the being used for both cases.

Whereas the term “ civil liberties “ being used as a right which is being given to
citizens as a fundamental right. Actually, it is synonymous to fundamental rights . The

1
Thomas I. Emerson , National Security And Civil Liberties , 9:78 TYJWPO 2 , 2-3 (1982).
rights which provides its citizens to enjoy their freedom without any restriction
imposed being called as “civil liberties “. Yet a nation must co-ordinate between civil
liberties and national security because the term civil liberties does not mean absolute
freedom. When it comes to the absolute freedom, it might be harmful for state to an
extent . So, the sphere of civil liberties must be confined .A democratic society that
seeks to protect itself by sacrificing individual rights soon finds that it is no longer the
kind of society it purports to be.

CIVIL LIBERTIES IN INDIA

The greatest attack on civil liberty has come in the name of national security.
But the concept of national security remains vague, broad and amorphous. It has been
invoked by politicians on every conceivable excuse from a challenge to leadership to
a district agitation, to an economic crisis, to racial or religious conflict, to a border
skirmish, to an ideological contest thousands of miles away. The very invocation of
“national security” has always led to a rationalization and legitimization of any
curtailment of civil rights. Hence the need to define and understand national security
as clearly as possible and as strictly as practicable.

The Fundamental Rights – embodied in Part III of the constitution – guarantee

liberties such that all Indians can lead their lives in peace as citizens of India. The six
fundamental rights are right to equality, right to freedom, right against exploitation,
right to freedom of religion, cultural and educational rights and right to constitutional
remedies. These include individual rights that are widespread in most modern
democracies, are enshrined in basic law, and can be enforced in court. Violations of
these rights result in punishments as stipulated by the Indian Penal Code, at the
discretion of the judiciary. These rights are not absolute or immune to constitutional
revisions. They have sought to reverse the disparities of pre-independence social
practices. They specifically abolished untouchability and prohibited discrimination
based on religion, race, caste, gender, or place of birth. They prohibit human
trafficking and forced work. They safeguard the cultural and educational rights of
ethnic and religious minorities by enabling them to keep their languages and run their
own educational institutions.
These include individual rights that are widespread in most modern democracies, are
enshrined in basic law, and can be enforced in court. Violations of these rights result
in punishments as stipulated by the Indian Penal Code, at the discretion of the
judiciary. These rights are not absolute or immune to constitutional revisions. They
have sought to reverse the disparities of pre-independence social practices. They
resulted in the abolition of untouchability and the prohibition of discrimination based
on religion, race, caste, gender, or birthplace. They forbid human trafficking and
forced labour. They defend ethnic and religious minorities’ cultural and educational
rights by allowing them to maintain their Among native languages and run their own
educational institutions.
 According to the statistics, over half – 45 percent – also support allowing the
government to monitor email content and other online activities. And 62 percent
believe that investigating terrorist threats is more important than protecting the right
to privacy. That approval is constant across parties. We are at war with terror, so
certain liberties must be compromised. It’s the same thing folks stated when similar
difficulties surfaced under the Bush administration. It does not appear to matter to
them that the “war” is open-ended and primarily metaphorical, implying that we can
expect no official surrender point at which our rights will be restored. For what it’s
worth, we’ve witnessed comparable ambivalence towards the excess of another open-
ended metaphorical struggle2

A Genealogy of Civil Liberties in Independent India

This paper identified several concerns that were not the focus of any specific legal
system in the course of the 1950s, including the infringement on the essential right in
the Constitution during the Constitution’s formative years to discuss the out-of-court
advocacy of civil liberties in civil law by academician affectations over the next few
decades. Arguments made by A.K Gopalan regarding preventive detention was not
deemed as unjust until the Puttaswamy judgement in the year 2017 where the
Supreme Court of India reinstated the dissenting opinion for the correctness; The
challenge made by Champakam Dorairajan to reservations was met with the
Constitution (First Amendment) Act of 1951 being passed immediately. Both these
indicators substantively re-established the Equality Code, and suggest that the social
justice issues were deeply embedded in Independent India’s society. A third question
that continued to be debated in the 1950s in locations other than the north, west, and
east were issues over citizenship and its consequences which arose in the jurisdictions
of various courts regarding claims of returning Muslim migrants in the year following
partition in 1947.

CIVIL LIBERTIES INDEX RANK

The civil liberties index in India fell from 9.12 out of 10 in 2016 to 5.59 in 2020 3,
albeit increasing slightly since. There have been increasing restrictions for civil
society organizations (CSOs) and civil liberties in India in recent years, including
stricter control of CSO-funding and increasing violence against ethnic minorities.
This index clearly stated that the Indian score of civil liberties being falling with a
greater rate . It is an alarming state which is proclaiming the restrictions imposed on
the citizens. It is because of the rise in communal violence, violation of the

2
The Indian National Bar Association, [Link] (Last visited on
13.06.2024).
3
Statista,[Link] ( last visited on 13.06.2024).
fundamental rights,etc. Being done by the regime to minimise the loss in the violence
. Such incidents should be avoided by the state authorities to ensure the security and
liberty of its natives.

The national security also underlined the fact that in the case of such violence oriented
incidents the protection of human life , property and nations security should be kept
upfront dis-regarding the civil liberties on that moment . So , it states that a nation
may impose restrictions on certain extent to prioritise security of nation.

But , this index must be kept in account to educate masses and commissions like
human rights commission to keep an eye on the rights of the natives as it is a moral
and ethical responsibility .

LIBERTIES IN EMERGENCY CASES

The word emergency used by the nation when there is an extreme situation occur in
front of nation where the solution of case must needed to surpass the civil liberties for
a short period of time. During that period the state or government took control over all
aspects of the nation except the life and constitutional rights.

A recent case which needed to be encounter in this article was “ COVID -19”. This is
a perfect example of emergency case. During the period, there was a massive increase
in the deaths due to virus spread across the globe which affect billons of lives . To
encounter the spread the government restricted the liberty to roam freely to avoid
contact . So, the right to roam freely was being ripped during that period to prioritise
the nation’s health and welfare. The liberties are being given in a democratic republic
to label it’s citizens as free but when such liberties start to harm the nation , then it
will be restricted.

• During the Covid- 19 crisis as the public was confined to their homes, the
police forces implemented the measures rigorously with discriminative
approach hence raising the concern of human rights violations. Most of the
people arrested for breaching the rules of the lockdown were those SOCIAL
PARIAHS, often referred to as Scheduled Castes, Scheduled Tribes, denotified
Tribes, Muslim, or workers of the lower class. Of the acts committed by the
Uttar Pradesh police in March, they made migrant workers, who were on their
way back home, crawl on the road carrying their belongings since they
disobeyed the lockdown measures. Mohammed Rizwan of Uttar Pradesh had
gone out shopping for essential commodities and was brutally assaulted by the
police using canes on 18 April; he later succumbed to his injuries in the
hospital. This shrunk the existence of democracy even further when new
limitations were placed on freedom of speech and rally within the COVID-19
effects. On March 24, by the application of the Disaster Management Act, the
Prime Minister Modi ordered a complete lock down of the country and every
citizen was made to stay at home. Not only during the pandemic, freedom of
 movement and assembly were limited, one cane name several instances when
restrictions of civilians were applied what led to destruction of the property
during the protests that became violent. 4
• Another case was – Uttar Pradesh police killed a suspect Vikas Dubey in July
sensing he was attempting to flee from police custody; Uttar Pradesh tops the
list of 119 mostlyoney ‘’extrajudicial killings” since the BJP usurped power in
Uttar Pradesh with Ajay Bisht alias Yogi Adityanath as the Chief Minister in
March 2017. In September the state government of Uttar Pradesh promised to
fortify a new police force of 13,000 that would have the right to search and
arrest a suspect without warrant which stirred further police brutality. Over
11,000 complaints against human rights violations have been filed involving
police personnel in the Financial Year: 2020-2021, out of which 5,388
complaints came from UP. 5

Over the three years NHRC has advised monetary compensation of Twenty Rupees
only. Thus, the analysis revealed 42 crore spent in 784 cases of police brutality,
disciplinary action in 48 cases and criminal prosecution and/or trial in one case. Thus,
the NHRC filed 17,229 cases of human rights violations and during the years 2018-
2019 as many as 28,342 cases. For instance, in the tenure of 2017-2018, NHRC filed
26,391 cases regarding alleged human rights violations by the police officials. As per
the given data, till January 15, 2021, the most,’ police personnel were found involved
in human rights violation case in UP which was 1194 and the second was Delhi with
940 human rights violation case, Tamil Nadu 575, third was Bihar 562 and fourth was
Haryana 408 followed by Andhra Pradesh 384, fifth was Rajasthan 352, MP 341,
Telangana 288, Maharashtra Documentary evidence available through statistics
released by India’s National Crime Records Bureau (NCRB) reveal that despite the
custodial death of more than 860 individuals since 2011, no police officer has been
convicted for an instance of police brutalities. In the last five full years, only 3 police
officers have been convicted in spite of the 498 shaken cases of other human rights
abuses including torture, unlawful detention, and asking for bribes.

Security v. Liberty uses periods of National Emergency of the twentieth century from
the First World War up to the Vietnam War to analyse whether previous episodes can
be applicable to the present case. The distinguished historian Alan Brinkley
demonstrates that during the First World War the government searched for the
dangerous enemies among ‘suspect’ individuals, such as socialists, anarchists, and
labor leaders, although in reality there was no threat to the USA, and the purpose of
persecutions was to discredit the unpopular groups.

CONCLUSION

4
[Link] ( last visited on 13.06.2024).
5
Swatantrata , [Link] (last visited on 13.06.2024).
In looking at civil liberties, and their reconciliation with the security of the State, a paradox is
presented: it is that acts of terror thrive in the freedom of democracies. The freedom of
association, expression and movement enjoyed in a liberal democracy are conducive to the
planning and execution of acts of gross violence, designed to destabilise or destroy State
structures, and to advance particular ideological ends. Innumerable themes are illustrative of
the difficult juxtaposition of civil liberties and national security, in which a delicate balance
may be less in evidence than a fervour for erosion of civil liberties in response to perceived
crises. Detention without charge for years for suspects and extensive privacy incursions for
the ordinary citizen have been considered necessary by States involved in a war on an
intangible enemy – terror. But as the enemy is intangible so too are the contours of the front-
line. There must be a delicate balance between the civil liberties and national security.
On taking account of human rights are seen as inalienable and the intrinsic and universal
qualities of the human being but that does not mean that such rights cannot be restricted in
any way, a judging of which is now more realistic given the understanding of derogable and
non-derogable rights. And for security -Literally, security is protection from danger and
guarantee of safety. In a politico-military context the term security is normally used with
reference to military protection against a threat or use of armed force against human life and
material wealth. In this strict sense, the term security precludes. Non-physical and abstract
political or cultural or psychological or intellectual elements both in terms of danger and in
terms of protection.6

6
M.V Naidu , civil liberties & national security, UNWC , 2-3(2010).