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Law and Civil Liberties

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Course Type Course Code No. Of Credits
Discipline Core NSLG1LP111 4

​​​​​​Course coordinator and team: 

Does the course connect to, build on or overlap with any other courses offered in AUD?

The course builds on other courses on Indian Constitution offered to students in previous semesters. This course will take some of the discussions forward through the specific lens of civil liberties and its relationship with the democratic state and the constitutional regime in India

Specific requirements on the part of students who can be admitted to this course: (Pre requisites; prior knowledge level; any others – please specify) No requirement

No. of students to be admitted (with justification if lower than usual cohort size is proposed): As per AUD rules

Course scheduling: (summer/winter course; semester-long course; half-semester course; workshop mode; seminar mode; any other – please specify) Semester-long course

Proposed date of launch:  Winter 2021

How does the course link with the vision of AUD and the specific programme(s) where it is being offered?

The course takes up the question of rights and liberties of the citizens and juxtaposes the framework of civil liberties with constitutional guarantees and democratic state in India. In line with AUD’s vision, the transaction of this course aims to revisit questions of justice, accountability, democracy and constitutionalism, and in the process establish a conversation between history and the present as well as the legal-constitutional regime in India and other liberal democracies.

Course Details:

Summary In 1936, as part of the anticolonial struggle in India Ram Manohar Lohia wrote ‘The Struggle for Civil Liberties’ arguing that “the concept of civil liberties is an outcome of the struggle that the citizen has eternally waged against the State”. This idea of eternity that Lohia introduced and documented in the wake of liberation movements across the world, is substantially problematized in the face of constitutional states elected on the basis of popular sovereignty claiming democratic legitimacy to create centralizing discourse of governance. This course attempts to relocate the civil liberties debate in context of a democratic state enjoying overwhelming electoral support. The legitimization discourse of popularly elected political authorities and the subsequent delegitimization of the politics of dissidence needs to be reviewed in context of the civil liberties movement.  In doing so the course will ground the idea of civil liberty within the doctrine of constitutionalism which calls for limits to be imposed on the arbitrary exercise of state power. The course will probe the relationship between a democratic state and civil liberties and will seek to answer how law mediates this relationship to what ends. Though it is a course with committed focus on the civil liberties in India, a course of this kind can best be attempted in a comparative frame where historical and contemporary accounts from other democratic countries construct analogous frames.

A parallel discussion would run through the modules with regard to a critical engagement with the category of civil liberty itself probing into the consequences of its deeply liberal ontological character, alternate traditions of its articulation and whether the category of civil liberties creates its own exclusionary frame. Against this background, the contiguous idioms of democratic rights, human rights, constitutional rights, etc. would be discussed to mark the overlaps as well as the distinctions. Since the attempt is to situate civil liberties at the cusp of law and politics, the course would largely borrow from scholarships on people’s movements and organizations and their interface with the legal discourse. Bringing together genres of literature offering a legal perspective along with political history and practice, the course would place legal texts in their wider socio-political contexts. Instead of looking at the interface between law and civil liberties in India in terms of a historical survey account, the course chooses to work with themes such as speech, association, and personal liberties. within which key historical moments would be placed. One of the critical points of focus would be to look at the intersections between different kinds of civil liberties and the continuity of meanings therein.

Objectives To probe the relationship between a democratic state and civil liberties and to examine how law mediates this relationship to what ends.

Expected Learning Outcomes

On the successful completion of the course students would be able to

Demonstrate an understanding of the concept of civil liberties and its relationship with constitutional rights in India

Demonstrate knowledge of the civil liberties tradition in India

Equip themselves with an awareness of the key concerns related to rights and justice through the lens of civil guarantees in India

Understand the civil liberties perspective in a cross country framework

Overall structure

Module 1-

Law and civil liberties- a conceptual interface (2 weeks)

The philosophical moorings of the concept of civil liberty in the philosophy of liberalism works with the presumption of the neutrality of law. The legal guarantee of civil liberties on the one hand safeguards the rights of the individuals, on the other hand law imposes restrictions on the state power. This legal encircling of civil liberty while offering protection also limits its conception within the imaginations of law. The expanse of civil liberty becomes the threshold of legality. Against this background, this module will look at the relationship between civil liberty and the constitutional-legal framework. It would study the symbiotic relationship between the two- constitutional liberties situated within the larger framework of civil liberties lineage (say anti-colonial struggle), in turn, constitutional framework of fundamental freedoms guaranteeing civil liberties. This discussion would encompass a brief overview of some of the most notable civil liberties texts- The United States Bill of Rights (the first 10 Amendments), The Magna Carta, the English Bill of Rights (1689), Chapter Two- Bill of Rights in South African Constitution, while touching about conceptual distinctions between civil liberties, civil rights, human rights and democratic rights.  

Another concern of the interface between civil liberty, law and state involves the question of both legal and extra-legal violence. A civil libertarian perspective on violence is critical to the understanding of the claim of law to be a protection against state arbitrariness. This calls for a study of a civil libertarian account of what can be constructed as legal violence for instance death penalty. It is also crucial to revisit how the civil liberties movement upholds its autonomy in the face of political violence by non-state actors in response to state excesses.

Readings:

  • Civil Liberties Database, compiled by Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/comparative-constitutional-law-database/
  • Primary texts: The United States Bill of Rights (the first 10 Amendments), The Magna Carta (1215), the English Bill of Rights (1689), Chapter Two- Bill of Rights in South African Constitution
  • R M Lohia, 1936, The Struggle for Civil Liberties, Published by AICC, Allahabad
  • G. Sartori, 1962. Constitutionalism: a preliminary discussion. American Political Science Review, Vol 56, pp. 853-864. 
  • Setalvad, War and Civil Liberties

Additional

  • Peter Linebaugh, 2008 Magna Carta and the US Constitution, in The Magna Carta Manifesto, Liberties and Commons for All, University of California Press.

Module 2- Anti-colonialism, civil liberties and the Indian Constitution- understanding the legacy (2.5 weeks)

This module will trace the emergence of the language of civil liberties in India against the use of arbitrary police powers by the colonial executive as well as the enactment of repressive colonial legislations. It would try to examine whether or not the anti-colonial movement and the subsequent envisioning of a post-colonial constitution had enough space for civil liberties. The empirical realties such as the formation of Indian Civil Liberties Union in 1936, the idioms of ‘civil disobedience’ and ‘non-cooperation’ had carved out the space for the recognition of civil liberties as the right to oppose political authority. Against this background, the module would try to engage with the seeming contradiction between an anti-colonial legacy of resistance against an undemocratic state and the construction of a post-colonial state with centralizing tendencies resulting in shrinking space for civil liberties post-independence. One of the critical tropes to understand this contradiction is the idea of the ‘ordinary’ and the ‘extraordinary’ contexts which help situate the problematic as ‘liberty versus security’ debate. Besides laying down the foundation on which the civil liberties discourse was constructed, the module would also engage in a brief survey of the civil liberty movement in India taking up questions like who the actors were, the organizational structure, the method of working etc. Since the course adheres to situate the civil liberty discourse in India within a larger comparative frame, this module would try to create an analogous frame juxtaposing the organizational basis of civil liberty movement in India with that of the American Civil Liberties Union for its long consistent history as well as the interest it has generated for researchers in the area.

Readings:

  • Ajay Gudavarthy, 2009, Human Rights Movement(s) in India: State, Civil Society and Beyond, in Singh ed Human Rights, and Peace; Ideas, Laws, Institutions and Movements, OUP
  • Amit Upadhyay and Sasheej Hedge, 2017, Always Already Political? ‘Civil Liberties’ in India, School of Public Policy and Governance, Faculty Working Paper, TISS, Hyderabad.
  • Bipan Chandra, 1992, The Fight for Civil Liberties, in The Epic Struggle, Orient Longman
  • Manoranjan Mohanty, 2011, Citizen’s Civil Liberties, in Mohanty et eds Weapon of the Oppressed, CSD, Daanish Books
  • S G Vaze, 1949, Civil Liberty under the New Constitution, Being Papers submitted to Indian Civil Liberties Conference, Madars, July 1949. Text available with the Cornell University Library
  • Ujjwal Kumar Singh, 2003, Democratic Dilemmas, Economic and Political Weekly, Vol. 38, Issue No. 05

Additional reading:

  • Samuel Walker, 1990, In Defence of the American Civil Liberties Union, OUP (book review by Jeremy Rabkin in Constitutional Commentary. 481.)
  • Randhir Singh, 2009, Terrorism, State Terrorism and Democratic Rights, in Singh ed, Human Rights and Peace: Ideas, Laws, Institutions and Movements, OUP

Module 3- Speech (2 weeks)

This module will conceptually engage with the question of speech as a constitutive idea of civil liberties. Tracing the origin of the right to speech both as a form of civic action and activism, while engaging with the distinction between the two, the module would build the discussions to situate the fundamental right to expression in India and the limitations imposed on the same. The centrality of speech related debates within the framework of civil liberties stems from both a vertical defence of speech viz. the right to speech against the state as well as a horizontal defence with regard to the claims of social tolerance of various kinds of speech. Since the course is oriented towards understanding the relationship between civil liberty and state, the module would largely focus on the vertical defence while simultaneously touching upon the horizontal concerns. Freedom of Press in the Indian context is of particular importance by virtue of press freedom being the first target of colonial legislations casting a chilling effect of free speech to restrict the power of the press to create and mould public opinion. The pattern found newer expressions in the early years after independence and perhaps is mostly timely situated for a debate in today’s context of increasing attacks on journalists and media houses, as well as political control over the content of broadcasting. Through both kinds of intervention either the media’s power to mobilize public opinion is restricted or the media is used to construct a certain kind of public. The idea of free speech through media freedom thus becomes a casualty. The third kind of debate that the module would focus on concerns the constitutional right of the accused against self-incrimination. Reading silence as a form of speech, this module would traverse the stories of police confessions in custody.

Some of the keys themes to be discussed in this module are

  • Political speech and its ‘preferred position’
  • Freedom of press and the construction of the ‘public’
  • Speech versus silence- the right against self-incrimination 

Readings:

Module 4-  Association (2.5 weeks)

This module would primarily engage with the concerns of the right to assemble and organize as modes of active politics emanating from the right to expression yet establishing itself as a distinct sphere of civic action. The module with look at association both as a political and a socio-economic category often forging class alliances and creating space for group politics and community identities to emerge in a manner that right to speech doesn’t. Besides dwelling on case laws on freedom of association the discussions would focus on trade union politics as one of the explicit illustrations of the fundamental freedom of association. The module would then focus on the politics of proscription and its rationale within democratic contexts starting from Criminal Law Amendment 1908 which provided for banning of organizations to the working of the Unlawful Activities Prevention Act in contemporary times. It would also discuss the thin yet fine line of divide between passive and active association and how the offence of political conspiracy is legally constructed out of associational politics. Key themes of emphasis:

  • Organizational politics and unionism
  • Laws related to banning
  • Crimes of conspiracy

Readings:

  • Eric Barendt, 1985, Freedom of Association, in Freedom of Speech, Oxford: Clarendon Press, 1985.
  • K G Kannabiran, 2008, Conspiracies of Associations: Associational Offences, Associational Freedoms and the Rule of Law, in Kannabiran and Singh (ed), Challenging the Rule(s) of Law, Sage
  • Reports published by Civil Liberties and Democratic Rights organizations.
  • Romila Thappar vs Union of India, Writ Petition (Criminal) No. 260 Of 2018
  • S G Vaze, 1949, Freedom of Association, in Civil Liberty under the New Constitution, Being Papers submitted to Indian Civil Liberties Conference, Madras, July 1949. Text available with the Cornell University Library
  • Sharanya Shivaraman, 2018, The UAPA – some interpretive issues, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2018/09/24/guest-post-the-uapa-some-interpretive-issues/

Module 5-

Personal liberties (3 weeks)

Much more than any other category of rights within the broader framework of civil liberties, the right to personal liberties including life, invites endless and inconclusive debates around its normative concerns and substantive content. The module hence chooses to work with specific themes which unfortunately and inevitable create a hierarchy of rights within personal liberties but allows for a narrow focus on its substance. The themes have been chosen in order to help unravel the conceptual meaning that personal liberty acquires as a form of civil liberty. They are- preventive detention, custodial torture and privacy. The module will begin by constructing a debate between Fifth and Fourteenth Amendments to the US constitution with regard to the Due process clause and Draft Articles 15 and 15A in the Constituent Assembly of India (Article 21 and 22 in the final Constitution) to locate the legal position on personal liberties in India which can be taken away through ‘procedures established by law’. The module would proceed by way of a historical engagement with the jurisprudence on personal liberty in independent India starting with the first constitutional challenge to the Preventive Detention Act in 1950 to the most recent with regard to the use of Public Safety Act in J&K from 2018 onwards. Besides the question of preventive detention, the module would focus on the protections of an accused whilst in the custody of the state and the rights of the individuals to privacy especially in the wake of the increasing surveillance techniques.

  • Preventive detention
  • Custodial violence  
  • Concerns of privacy and the regimes of surveillance

Readings:

  • Abhinav Sekhri, 2019, Article 22- Calling Time on Preventive Detention", 9 Indian Journal of Constitutional Law 173, available at SSRN: https://ssrn.com/abstract=3455821 or http://dx.doi.org/10.2139/ssrn.3455821.
  • AK Gopalan vs The State Of Madras (AIR 1950 SC 27)
  • Anup Surendranath, 2016, Life and Personal Liberty, in Sujit Choudhry et al,  The Oxford Handbook of the Indian Constitution, New Delhi: OUP
  • Constituent Assembly Debate on Article 15 and 15-A, September 15 and 16, 1949, CAD, Volume IX
  • Gautam Bhatia, 2017, The Supreme Court’s Right to Privacy Judgment, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2017/09/10/the-supreme-courts-right-to-privacy-judgment-round-up/
  • Jinee Lokaneeta, 2011, Transnational Torture: Law, Violence, and State Power in the United States and India, NYU Press (selected extracts from Ch 1 and Ch 4)
  • K G Kannabiran, 2004, Personal Liberty After Independence, in Wages of Impunity, Power, Justice and Human Rights, Orient Longman.

Additional readings:

  • Anjum Zamarud Habib, 2015, Prisoner No.100: An Account of My Nights and Days in an Indian Prison, Zubaan
  • MK Nambiar, Preventive Detention, Indian Law Institute

Pedagogy:

Instructional design

  • The course will be a combination of lectures, case studies, thematic discussions, Case Law discussions and presentations.
  • Special needs (facilities, requirements in terms of software, studio, lab, clinic, library, classroom/others instructional space; any other – please specify)None
  • Expertise in AUD faculty or outside
  • The faculty members at SLGC with training in both law and media theory are well equipped to teach the course ​​​​​​​
  • Linkages with external agencies (e.g., with field-based organizations, hospital; any others)

 

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