Civil Liberties: The Idea

In one line

Civil liberties are the freedoms a person has against his own State, and the emergency question is what happens to them when the State says it is in danger.

In the wording a student can write in an exam: civil liberties are the freedoms of the individual which the State may not invade, chiefly liberty of the person, freedom of speech and expression, freedom of assembly and association, freedom of movement, freedom of conscience, and the procedural protections that surround arrest and trial. In India they are given the form of fundamental rights in Part III, principally by articles 19, 21 and 22, and are enforceable under articles 32 and 226. They differ from human rights in that human rights are claimed by virtue of being human and civil liberties are claimed against a particular State under its own law, and they differ from fundamental rights in that a fundamental right is a civil liberty which a written constitution has entrenched and made enforceable.

The three terms, kept apart

Students lose marks by using the three words interchangeably. The distinctions are not verbal.

Human rights are asserted as belonging to every person by virtue of being human, independently of any State's recognition. Their sources are moral and international: the Universal Declaration of 1948, the two Covenants of 1966, and in Indian law the definition in the Protection of Human Rights Act 1993, which defines them as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.

Civil liberties are the freedoms an individual enjoys against his own State, secured by that State's law. The term is English in origin and describes a relationship between subject and Crown, not between person and humanity.

Fundamental rights are civil liberties that a written constitution has listed, entrenched against ordinary legislation, and made enforceable by a court. Part III is the Indian instance.

The three overlap almost entirely in their content and differ entirely in their source, and the difference in source is what decides the emergency question. A human right is not affected by a proclamation, because it does not come from the Constitution. A fundamental right may be suspended in its enforcement, because it does. A civil liberty in the English sense may simply be legislated away, because Parliament is sovereign.

That is the whole of [Civil Liberties in England] in one sentence, and it is the reason MU asks for the comparison.

The Indian content: articles 19, 21 and 22

Article 19 confers on citizens the freedoms of speech and expression; assembly peaceably and without arms; association or unions or cooperative societies; movement throughout the territory of India; residence and settlement; and practice of any profession or carrying on of any occupation, trade or business. Each is subject to reasonable restrictions on the grounds in clauses (2) to (6), and the grounds include the sovereignty and integrity of India, the security of the State, and public order, which is where the vocabulary of Module I enters the freedoms.