Question

Article 21 of the Constitution states that no person shall be deprived of his liberty except in accordance with procedure established by law. Conversely, we think that a person is entitled to the protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa? Further, should this Court weigh in favour of a person’s freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against rule of law? We wish to make it clear that only when rule of law prevails will liberty and all other fundamental rights would prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof. Justice Nagarathna, who authored the judgement, began her pronouncement by invoking classical Greek Philosopher Plato. “Punishment is to be inflicted not for the sake of vengeance but for the sake of prevention and reformation. In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine administered for the sake of the one being
chastised. Thus, if a criminal is curable, he ought to be improved by education and other suitable arts and the set free as a better citizen and less of a burden to the state. This postulate lies at the heart of the policy of remission.” Having said that, she also pointed out the competing interests involved, of the rights of the victim’s family to justice and the right of the convicts to a second chance by remission or reduction of their sentence. She added, “A woman deserves respect howsoever high or low she may otherwise be considered in the society or whatever faith she may follow or whatever creed she may belong to. Can heinous crime against women permit remission of the convicts by a reduction in their sentence and
by granting them liberty?”
(This extract has been taken from Bilkis Yakoob Rasul v. Union of India (2024) 5 SCC 481)