"CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE".
A final draft submitted in partial fulfillment of the course Comparative Public Law - for the
requirement of degree of LL.M. for the Academic Session 2023-24.
Comparative Public Law
Submitted by:
Amisha Prakash
LL.M.
1st Semester
Roll no. 534
Submitted to:
Prof. Dr. P.P. Rao
(Faculty: Comparative Public Law)
September, 2023
CHANAKYA NATIONAL LAW UNIVERSITY
PATNA
CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
DECLARATION BY CANDIDATE
I, hereby, declare that the work reported in the LL.M Project titled “Civil Liberties:
Comparative Perspective” submitted at Chanakya National Law University, Patna is an
authentic record of my work carried out under the supervision of Prof. Dr. P.P. Rao. I have not
submitted this work elsewhere for any other degree or diploma.
Amisha Prakash
Roll no: 534
LL.M. 1st Semester, (Criminal Law)
CNLU, Patna.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
ACKNOWLEDGEMENT
A project is a joint endeavour which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my heart to
all those who have helped me to put these ideas, well above the level of simplicity and into
something concrete effectively and moreover on time.
At the outset, I take this opportunity to thank my Prof. Dr. P.P. Rao, Faculty of Comparative
Public Law, from the bottom of my heart who has been of immense help during moments of
torpidity while the project was taking its crucial shape.
Thirdly, the contribution made by my parents and friends by foregoing their precious time is
unforgettable and highly solicited. Their valuable advice and timely supervision paved the way
for the successful completion of this project. Words aren’t sufficient to acknowledge the
tremendous contributions of various people involved in this project, as I know ‘Words are Poor
Comforters’. I once again wholeheartedly and earnestly thank all the people who were involved
directly or indirectly during this project making which helped me to come out with flying colors.
Moreover, thanks to all those who helped me in any way be it words, presence, encouragement
or blessings.
- Amisha Prakash
- Roll no: 534
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
TABLE OF CONTENTS
1) INTRODUCTION............................................................................................................................................................................................5
1.1) RESEARCH METHODOLOGY.........................................................................................................................................................6
1.2) AIMS AND OBJECTIVE.....................................................................................................................................................................6
1.3) RESEARCH QUESTIONS...................................................................................................................................................................6
1.4) HYPOTHESES......................................................................................................................................................................................6
1.5) LITREATURE REVIEW.....................................................................................................................................................................7
1.6) SOURCES OF DATA...........................................................................................................................................................................8
1.7) LIMITATION........................................................................................................................................................................................9
2) DEFINITION AND ORIGIN OF CIVIL LIBERTIES...............................................................................................................................10
3) COMPARATIVE EXAMINATION OF GUARANTEE OF CIVIL LIBERTIES IN VARIOUS LEGAL SYSTEM OF WORLD..13
4) DIFFERENCE BETWEEN CIVIL LIBERTIES AND CIVIL RIGHTS.................................................................................................17
5) CONCLUSION & SUGGESTIONS.............................................................................................................................................................20
BIBILOGRAPHY...........................................................................................................................................................................................22
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1) INTRODUCTION
Civil liberties are guarantees and freedom ensured by the government of a country to its
people. This guarantee is ensured through laws and is managed by the legislature, the
executioner and the judiciary. It is the duty of the government in power to ensure that every
person is gaining the most from the civil liberties and no one is missing out on the basic
civil liberties provided by law. The scope of civil liberties may not be the same worldwide.
In India, the basic rights of a citizen include. Right to Equality, Right to freedom of speech,
Right to Life, etc. The fundamental rights of an Indian Citizen are embodied in Article III
of the Indian Constitution. Violation of any such right can lead to criminalisation under the
Indian Penal Code. Each and every citizen of the country irrespective of their caste, creed,
gender or status is allowed these rights and in case of any violation can approach
authorities 1.
Civil liberties act as the cornerstone of every democracy. Democracies are governments of
the people. To quote Abraham Lincoln, “Democracy is a government of the people, by the
people and for the people.” The intent of these lines is to lay emphasis on the fact that
democratic governments are a representation of the people of the nation. These
governments need to ensure that each and every citizen is governed equally and given the
same platform to grow in. This is where the cornerstone of democracy is civil liberties 2.
Civil liberties offered to every citizen of the country will ensure a smooth running of
democracy. Many contemporary nations have a constitution, a bill of rights, or similar
constitutional documents that enumerate and seek to guarantee civil liberties. Other nations have
enacted similar laws through a variety of legal means, including signing and ratifying or
otherwise giving effect to key conventions such as the European Convention on Human
Rights and the International Covenant on Civil and Political Rights. The formal concept of civil
liberties is often dated back to Magna Carta, an English legal charter agreed in 1215 which in
turn was based on pre-existing documents, namely the Charter of Liberties. Civil liberties are
1
https://upscpathshala.com/content/civil-liberties-are-fundamental-to-the-functioning-of-model-democracies-upsc-
essay-writing/
2
https://study.com/academy/lesson/origins-of-civil-liberties-in-the-united-states-history-timeline.html
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natural rights which are inherent to each person and they actually operate as restraints on how
the government can treat its citizens3.
For democracies to prosper, the countrymen should be very well educated on the working
of their government. The right to education is one such civil liberty that will promote the
well being of the nation through investment in education. Human capital is very vital for
every nation and the right to safe and clean drinking water, right to sanitation and many
other rights pertaining to the wellbeing of every citizen is helping in improving the human
capital capacity of India 4. A higher and better qualified human capital will ensure better
economic growth for the nation.
1.1) RESEARCH METHODOLOGY
The researcher will be relying on both Doctrinal and non-doctrinal method of research to
complete the project.
1.2) AIMS AND OBJECTIVE
The project aims to critically examine the current state of civil liberties within the context of the
contemporary socio-political climate. This involves identifying potential threats, challenges, and
areas where civil liberties might be at risk.
To analyze existing laws, regulations, and legal precedents related to civil liberties. Identify
potential gaps or areas of concern where legal protections may be lacking or insufficient.
1.3) RESEARCH QUESTIONS
What are civil liberties, are they absolute, and Why do we need civil liberties?
What is the difference between civil rights and liberties?
What are civil liberties without equal enforcement?
Why are civil liberties considered as a threat to national security and state governments?
What happens when governments breach civil liberties?
3
https://www.cliffsnotes.com/study-guides/american-government/civil-liberties/perspective-on-civil-liberties
4
Cheibub, J. A., Gandhi, J., & Vreeland, J. R. (2010). Democracy and dictatorship revisited. Public Choice, 143(1),
67–101.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
1.4) HYPOTHESES
Preserving civil liberties fosters a just society where empowered individuals uphold
democratic values and social unity.
Restricting civil liberties may lead to societal tension, inequality, and a weakened
democratic foundation.
1.5) LITREATURE REVIEW
The research has depended on the primary sources, including the Constitution of India and case
laws. The research has also used secondary resources like books, commentaries for the proper
understanding of the subject and analysing the various topics. The research is extensively
depended on electronic resources like online databases, websites for gathering resources.
THE STRUGGLE FOR CIVIL LIBERTIES RAMMANOHAR LOHIA WITH A
FOREWORD BY JAWAHARLAL NEHRU:
In order to arrive at an understanding of what civil liberties are, it is necessary to go into their
conceptual extent, origins, present state and contemplate dactions to maintain them. An
enquiry under these fourheads: What is the number and types of civil liberties ? How did they
arise ? How and why are they attacked today ? Why and how should they be defended ? will
yield us the concept of civil liberties. We have only to string together the epochal statements
of state-builders and the basic doctrines of organic laws and court decisions. These doctrines
and statements related to various types of civil liberties 5. At the head of them all stands
liberty of person and movement and the sanctity of dwellings. "The aim of the State is the
conservation of natural rights of man; these rights are liberty, property, security and
resistance to oppression," lays down an article of French Constitution of 1789. No one shall
be arrested and detained or imprisoned without due processes of law. Such processes have
gradually come to include an open trial by jury, whose predominating element is drawn out
of the same class of men as the accused. Everyone shall be secure in his house, which will
not be broken into and searched unless on charge of a definite and specified act of
lawlessness. No restrictions shall be imposed on the freedom of a citizen to move about in
the country and to obtain passports in order to travel abroad.
5
http://library.bjp.org:8080/jspui/bitstream/123456789/825/1/Struggle%20for%20Civil%20Liberties%20-%20Ram
%20Manohar%20Lohia%20-%20Freedom%20Movement.pdf
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Are civil liberties contagious? Analysis of determinants of de facto civil rights
protection in post-socialist countries Anna Lewczuk1 Published online: 17 July
2020.
In this paper, the focus is primarily on spatial determinants that is, those related to
institutional diffusion between countries. Women’s suffrage rights constitute an example of a
right that spread universally in the twentieth century. The reason a large number of otherwise
dissimilar nation-state actors have decided to follow a similar path in the political
incorporation of women is the existence, development, diffusion, and influence of a more
inclusive model of political citizenship6.
The main aim of the paper is to verify what the spatial and aspatial determinants of protection
of a specific type of human rights are, for example, civil liberties in post-socialist countries.
Civil rights constitute a broad category of human rights. The analysis highlights three
categories of civil liberties–private civil liberties, political civil liberties and physical
integrity rights. we propose a theoretical framework of determinants of civil liberties and test
it empirically with advanced econometric techniques. To the best of our knowledge, this is
the first study dealing with spatial determinants of de facto civil liberties protection in post-
socialist countries. The paper is structured as follows. Firstly, we describe the characteristics
of civil liberties within the scope of our analysis. In the following few sections, we expound
upon spatial and aspatial determinants of civil liberties protection, develop a theoretical
framework and then test it empirically with the usage of spatial econometrics techniques.
Section 5 discusses civil rights protection in post-socialist states. Section 6 includes a
description of the data, variables and methodology used in the empirical study, and discusses
the obtained model results. The paper fnishes with conclusions and policy implications.
1.6) SOURCES OF DATA
The researcher has utilized the primary and secondary sources of information in the project. The
primary sources include judicial enactments, international enactments etc. The secondary sources
books, web journals, magazines, articles and blogs.
Tools of data collection
6
https://link.springer.com/content/pdf/10.1007/s10602-020-09313-7.pdf
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For the purpose of research various tool such as observation guide, interview schedule, notepad,
pen, camera, laptop etc been used by researcher.
1.7) LIMITATION
The present research is confined to a time limit of one month and this research contains doctrinal
works, which are limited to internet sources.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
2) DEFINITION AND ORIGIN OF CIVIL LIBERTIES.
Definition of 'civil liberties':
1. Civil liberties are freedoms guaranteed by the U.S. Constitution (primarily from the First
Amendment). They are natural rights which are inherent to each person. While they are
commonly referred to as "rights," civil liberties actually operate as restraints on how
the government can treat its citizens7.
As such, the First Amendment's language ("congress shall make no law") explicitly
prohibits the government from infringing on liberties, such as the freedom of speech.
Civil liberties are constitutionally protected freedoms.A violation of civil rights affords
the injured party a right to legal action against the violator. For example, the freedom of
religion is recognized as both a civil right and civil liberty; it is protected under the
Constitution from government infringement (liberty) as well as under the Civil Rights
Act of 1964 from being the basis of discriminatory practices.
2. A person's civil liberties are the rights they have to say, think, and do what they want as
long as they respect other people's rights8.
3. Freedom from arbitrary governmental interference (as with the right of free speech)
specifically by denial of governmental power and in the U.S. especially as guaranteed
by the Bill of Rights 9.
The Origin of Civil Liberties:
7
https://www.law.cornell.edu/wex/civil_liberties
8
https://www.collinsdictionary.com/dictionary/english/civil-liberties
9
https://dictionary.cambridge.org/dictionary/english/civil-liberty
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
Civil liberties are defined as rights guaranteed to the people by the United States Constitution
and by court-made law or legislation. These liberties allow us to speak out freely against our
government, express our opinions, organize protests and practice or not practice religion in
whatever way we choose. It was important to the early settlers that we have these liberties in
order to be protected from unnecessary government intrusion. These liberties are included in
the Bill of Rights, the first 10 amendments to the United States Constitution, and include the
right to privacy, the freedom of speech and the right to bear arms10.
History of Civil Liberties:
In the late 1600s, England established something similar to our Bill of Rights. This included
many of the civil liberties that we enjoy today—including the right of free speech and a form of
the right to bear arms. When the British settlers came to the United States and established the 13
original colonies, they brought with them British thinking and rule.
In the mid-1700s during our declaration of independence from Britain, it was argued that one of
the most important roles of government was to protect our personal rights. When the United
States Constitution was written, many of our modern civil liberties were incorporated into the
Bill of Rights.
However, the United States Supreme Court did not yet have power to declare laws or legislation
unconstitutional; therefore, the Bill of Rights was merely a statement of beliefs that had no legal
backing.
During the early 1800s, Marbury v. Madison11 gave power to the United States Supreme Court
to strike down legislation that is found to be unconstitutional. This gave great protection to our
civil liberties that are included within the Bill of Rights because there was an entity to protect
them.
In the later 1800s, the Fourteenth Amendment, which incorporated our civil liberties found in the
Bill of Rights to the states, was ratified. What this meant was that the individual states could not
create laws that were against the Bill of Rights and conversely extended the protections included
10
Davenport, C. (1999). Human rights and the democratic proposition. Journal of Confict Resolution, 43(1), 92–116
11
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
within the Bill of Rights to the citizens from the states. This was not challenged and confirmed
until 1925 when the U.S. Supreme Court ruled that the states are definitively bound by the Bill of
Rights via the Fourteenth Amendment.
Our civil liberties continued to be tested, interpreted and extended to this day. In 1965
in Griswold v. Connecticut,12 the Supreme Court ruled that several amendments to the Bill of
Rights imply a right to privacy. This landmark ruling paved the way for future civil liberty cases,
such as those on abortion and same-sex marriage13.
The characteristics of civil liberties:
Human rights constitute a broad category of rights with various objects of protection. According
to Brian Orend, there are five main abstractly defined objects of human rights, these are physical
security, material subsistence, personal liberty, elemental equality, and social recognition.
Another possible classification involves the division of rights into positive and negative rights. A
positive right is a claim to something (like a share of material goods or an access to a particular
good such as health services), while a negative right is a right that something shall not be done to
a person—a right to not be interfered with in forbidden ways. Positive and negative rights differ
in terms of their determinants and possible social outcomes. In this paper, we focus on first-
generation negative civil liberties and use three indices of de facto civil liberties protection.
Private civil liberties index—captures the extent to which the government respects private
liberties understood as freedom of movement, freedom of religion, freedom from forced labour,
and property rights. Political civil liberties index—envisages to what extent the government
respects political liberties such as freedom of association and freedom of expression. Physical
violence index—indicates the extent to which physical integrity is respected, that is, citizens
enjoy freedom from political killings and torture by the government. Civil rights have a clear,
identifiable beneficiary—they primarily benefit those who are typically not privileged in society,
that is ethnic, religious, geographic, or ideological minorities. They protect the personal space
within which citizens are free to make important decisions in their lives. The provision of civil
rights is costly to the majority and largely unnecessary for the elite of society.14
12
Griswold v. Connecticut, 381 U.S. 479 (1965).
13
https://study.com/academy/lesson/origins-of-civil-liberties-in-the-united-states-history-timeline.html
14
Elkink, J. A. (2011). The international difusion of democracy. Comparative Political Studies, 44(12), 1651–1674.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
3) COMPARATIVE EXAMINATION OF GUARANTEE OF CIVIL LIBERTIES IN
VARIOUS LEGAL SYSTEM OF WORLD
CIVIL LIBERTIES IN FRANCE: The concept of civil rights in any clear form arose first
out of the French Revolution. In their fight against the Bastille where countless men were
made to suffer and die without justice and without law, except an order of the
Government, the French gave to the world a concept of what no Government dare do to
its citizens and what is the right of every man. "Men are born and live free and equal
before law;" "The aim of all political association (the State) is the conservation of natural
rights of man; these rights are liberty, property, security and resistance to oppression";
"Sovereignty resides in the nation. No group or individual dare exercise authority which
does not emanate expressly from the nation"; "Law is an expression of general will. All
citizens are equally admissible to public employment and dignities"; "No man may be
accused, arrested or detained out of the scope of the law and the prescribed forms"; "The
free communication of ideas and opinion is a very precious right of man"; are a few of
the articles laid down by the French Constitution of 1789 15. This statement of human
rights is among the first points of departure for modern civilisation in the regulation of
relations between the citizen and the Government. The French League through its
incessant and numerous activities, attempts to pattern real life on the ideal and, also, to
chisel the ideal brighter and clearer16.
CIVIL LIBERTIES IN AMERICA: In the theoretical justification of extensive civil
liberties and, in particular, of the rights of the citizen in opposition to the Government,
the United States of America easily holds the palm in the world. The unlimited moral and
legal freedom of the individual to express by speech, if he so chooses his revolt against
the existing social order and the Government has met with an openhearted and an un-
hedged assent. Thomas Jefferson, Patrick Henry, Benjamin Franklin and Abraham
15
http://library.bjp.org:8080/jspui/bitstream/123456789/825/1/Struggle%20for%20Civil%20Liberties%20-%20Ram
%20Manohar%20Lohia%20-%20Freedom%20Movement.pdf
16
Id. at 1-7
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Lincoln, in pre-wartimes, ex-Governor Smith, Senator Borah and Justice Holmes, in
recent years, to select only a few, have expressed noble sentiments in advocacy of
unfettered freedom of opposition to the Government. Defending the 'field of opinion'
against the magistracy, Thomas Jefferson declared in 1786 that it was time enough for the
government to interfere when principles break out into overt acts against peace and good
order.' A little earlier, Patrick Henry had advised the people to guard with zealous
attention the public liberty' and to 'suspect everyone who approaches that jewel.'
Admitting that abuses of freedom of speech ought to be suppressed, Benjamin Franklin
retorted, 'to whom dare we committee power of doing it.' Whenever the people shall grow
weary of the existing government, said Abraham Lincolnin, 'they can exercise their
constitutional rights of amending it, or their revolutionary right of over-throwing it.' The
United States Commission on Industrial Relations reported in 1914 that a government
which could be maintained only by the suppression of criticism should not be maintained.
Senator Borah said, "Repression is not only the enemy of free government, but it is the
breeder of revolutions. It is the enemy of progress and human happiness. And above all, it
is neither a test of error nor of truth.' In the course of an opinion, Justice Holmes
remarked only recently, "those who won our independence by revolution were not
cowards. They did not fear political change. They did not exalt order at the cost of
liberty." For fear either that it will led to tyranny, that it will block progress and breed
revolutions or that society will stagnate and experiments in better social forms stand
outlawed, repression of opinion meets with unqualified condemnation at the hands of
America's most eminent and respected men of affairs17.
It will be seen that the American Union is not quite extensive in its field of operations as
the French League. It is, however, a very assiduous watch-dog of the civil rights of the
people in the narrow sense of the term. No doubt, in its effort to secure freedom of speech
and the right to organise and picket and proper dispensation of justice, it is faced with
social and economic conditions which, as in France, are the roots of all mischief. No
doubt every attack on civil liberties is but a reflection of certain basic social condition. A
thoroughgoing investigation into acts of suppression of civil rights has thrown very
instructive sidelights on the economy and the political management of the country, as
17
Id at 8-19
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with Scottsboro, Tampa, Mooney and Sharecroppers. In so far, a campaign for civil
liberties resolves indirectly into a campaign against social abuses. The concept of civil
liberties, therefore, includes indirectly the campaigns for reform in administration, police
and judiciary and for the suppression of private gangsterism. Account of the Civil
Liberties Movement in America, will however, be incomplete, unless we pay a personal
tribute to Roger N. Baldwin who is the chief of American libertarians and to whose
untiring efforts and will is due the success and growth of the American Civil Liberties
Union.
CIVIL LIBERTIES IN ENGLAND: It is only in recent years that the English citizen has
begun to experience attacks upon his civil liberties. During the latter half of the
nineteenth century and till before the outbreak of the world war, the English man had
settled down to a comparatively unbroken enjoyment of the rights of free speech and
assembly and association and equal justice which he had won after great efforts. Right
from the days of the mediaeval Magna Charta up to the nineteenth century Charter revolt
for democracy and the Tolpuddle martyrdom of workers who had dared to form Trade
Unions of the working-class, the fight for social changes and for civil rights had been
waged. Social progress had later become possible in England without basic transference
of power from one class to another. This was due to a variety of reasons such as the
possession of the world's best industrial machinery and the largest colonial domains.
What the American ruling caste did to the Negroes and the emigrant workers at home, the
English could conveniently shift upon the colonial peoples. The English middle classes
and the working class were fairly prosperous and participated, however meagrely, in the
spoils of their ruling caste; they did not clamour for basic social changes and their civil
rights were consequently untouched. Post-war England is, however, different. Social
progress is now become dependent on disturbance in the control of political power. The
fight for social progress, therefore, involves governmental attacks on the civil liberties of
such citizens as seek such a progress and, therefore, a basic transference of political
power. Civil Liberties have now acquired a new meaning and, though won It after
continuous sacrifices, they have to be fought for again. Whoever is for democracy as the
basis of social progress, whatever liis other opinions on different economic and political
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
systems may be, he lines up in this broad front of civil liberties against the autocracy and
misuse of executive power18.
CIVIL LIBERTIES IN INDIA: India has fought hard and bitter struggle to win her
civil liberties. Modern India begins in the eighties of the last century with a fight on the
issue of equal justice as between the Englishman and the Indian. It was the Ilbert Bill that
sought to abolish the preferential justice meted out to Englishmen. The English
bureaucracy and the commercial class were alarmed and launched on a violent campaign
against the Bill. The Indian people answered by an equally resolute agitation in favor of
the Bill and this agitation became the starting point for a sense of political rights in the
country. Again, the period of submissive criticism ends and the era of a vigorous
nationalism is ushered in with a fight for civil liberties. Post-war India was made to suffer
the Rowlatt Act and the denial of all human liberties, Jallianwala Bagh and crawling on a
fours, that followed in its train. The first mass action that the country carried out to wrest
its freedom from British Imperialism was largely inspired by its revolt against the
Rowlatt Act and, consequently, the suppression of civil liberties. Since then, there has
been not single year when all manner of repressive laws and Acts of the Government
have not been a sore point with Indian Nationalism19.
18
Id. at 20-29
19
Id. at 40-51
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4) DIFFERENCE BETWEEN CIVIL LIBERTIES AND CIVIL RIGHTS
Both words appear in the Declaration of Independence and the Bill of Rights. The distinction
between the two has always been blurred, and today the concepts are often used interchangeably.
However, they do refer to different kinds of guaranteed protections20.
Civil liberties are protections against government actions. For example, the First Amendment of
the Bill of Rights guarantees citizens the right to practice whatever religion they please.
Government, then, cannot interfere in an individual's freedom of worship. Amendment I gives
the individual "liberty" from the actions of the government.
Civil rights, in contrast, refer to positive actions of government should take to create equal
conditions for all Americans. The term "civil rights" is often associated with the protection of
minority groups, such as African Americans, Hispanics, and women. The government counter
balances the "majority rule" tendency in a democracy that often finds minorities outvoted.
Civil Liberties are individual freedoms that protect citizens from government intrusion and
ensure personal autonomy. These liberties are often enshrined in constitutions or legal
documents, such as the First Amendment of the United States Constitution, which guarantees
freedom of speech, religion, and the press. Civil liberties aim to limit government power,
allowing citizens to express themselves and live without unwarranted interference. They
safeguard individual rights to privacy, due process, and a fair trial, exemplified by landmark
cases like Roe V. Wade (1973) in the U.S., which protected a woman's right to choose.
Civil Rights, on the other hand, focus on ensuring equal treatment and opportunities for all
citizens, particularly in the face of historical discrimination. These rights often necessitate
government intervention to address systemic injustices. For instance, the U.S. Civil Rights Act of
1964 prohibits discrimination based on race, color, religion, sex, or national origin, promoting
20
https://www.ushistory.org/gov/10.asp
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equality in areas like employment and public accommodations. Civil rights extend to the right to
vote, with the U.S. Voting Rights Act of 1965 combatting racial discrimination in voting.
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The Judiciary and Civil Liberties: Guardians of Freedom
The relationship between the judiciary and civil liberties is a cornerstone of any democratic
society. In the United States, this dynamic is particularly significant, as the judiciary plays a
pivotal role in safeguarding and interpreting the Constitution, which enshrines the civil liberties
of its citizens. This chapter explores the critical role of the judiciary in upholding civil liberties
and provides key examples of landmark cases to illustrate this vital connection.
The Guardian of the Constitution:
The judiciary, often referred to as the "guardian of the Constitution," ensures that the rights and
liberties granted by the Constitution remain intact. In doing so, it acts as a check on the other
branches of government, ensuring that they do not infringe upon these fundamental freedoms.
Landmark Cases:
1. Brown v. Board of Education21: This case declared racial segregation in public schools
unconstitutional, a significant step toward ensuring equal protection under the law for all
citizens.
2. Gideon v. Wainwright22: This case established the right to legal counsel for criminal
defendants who could not afford an attorney, bolstering the right to a fair trial.
3. Roe v. Wade23: This landmark case affirmed a woman's right to choose to have an
abortion, establishing a precedent for reproductive rights.
4. Obergefell v. Hodges24: In this case, the Supreme Court legalized same-sex marriage
nationwide, expanding civil liberties to the LGBTQ+ community.
5. Navtej Singh Johar v. Union of India 25: This case decriminalized consensual
homosexual acts, affirming the right to privacy and equality for LGBTQ+ individuals.
6. Shayara Bano v. Union of India26: The Supreme Court declared instant triple talaq
(divorce) unconstitutional, upholding the dignity and equality of Muslim women.
21
Brown v. Board of Education, 347 U.S. 483 (1954).
22
Gideon v. Wainwright, 372 U.S. 335 (1963).
23
Roe v. Wade, 410 U.S. 113 (1973).
24
Obergefell v. Hodges, 576 U.S. 644 (2015).
25
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
26
Shayara Bano v. Union of India, (2017) 9 SCC 1.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
The Indian judiciary's role in upholding civil liberties is indispensable to the country's
democratic fabric. Through landmark judgments and vigilant interpretation of the Constitution, it
ensures that civil liberties remain a cornerstone of Indian society, protecting the rights and
freedoms of all citizens.
The judiciary's role in protecting civil liberties is fundamental to the preservation of democracy.
Through landmark decisions and careful interpretation of the Constitution, the judiciary ensures
that civil liberties remain a bedrock of American society, safeguarding the freedoms and rights of
all citizens.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
5) CONCLUSION & SUGGESTIONS
Civil liberties, the fundamental rights and freedoms that underpin democratic societies, are a
critical aspect of modern governance. This project has explored the importance of civil liberties
in both the American and Indian contexts, highlighting the significant role of their respective
judiciaries in upholding these rights. From landmark cases such as Brown v. Board of
Education27 in the United States to Navtej Singh Johar v. Union of India 28 in India, it is evident
that the judiciary plays a pivotal role in interpreting and protecting civil liberties.
In a comparative perspective, while the specific rights and legal systems differ, the underlying
principles remain universal. Both nations have recognized the importance of safeguarding
individual freedoms, ensuring equality, and upholding the rule of law. This underscores the
shared commitment to preserving democracy and the inherent value of civil liberties.
Suggestions:
International Collaboration: Nations can collaborate to establish a global framework for
protecting civil liberties. This could involve sharing best practices, legal principles, and
guidelines to ensure a consistent approach worldwide.
Public Awareness: Governments should promote awareness of civil liberties among their
citizens through education and public campaigns. An informed citizenry is better
equipped to protect and demand their rights.
Judicial Independence: It is crucial to maintain the independence of the judiciary to
ensure impartial adjudication of civil liberties cases. Adequate resources and safeguards
against political interference are essential.
Legislative Reform: Regular review and reform of laws are necessary to adapt to
changing societal norms and challenges. Lawmakers should work to align legislation with
evolving concepts of civil liberties.
27
Brown v. Board of Education, 347 U.S. 483 (1954).
28
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
Civil Society Engagement: Civil society organizations should play an active role in
monitoring and advocating for civil liberties. They can act as watchdogs and promote
public discourse on these issues.
In conclusion, civil liberties are the foundation of democratic societies, and their protection
requires continuous effort and vigilance. By learning from comparative perspectives and
implementing these suggestions, nations can strengthen their commitment to upholding these
fundamental rights for all citizens.
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CIVIL LIBERTIES: COMPARATIVE PERSPECTIVE
BIBILOGRAPHY
Books and Statutes:
The Struggle for Civil Liberties by Rammanohar Lohia with A foreword by Jawaharlal
Nehru Constituion of India
Ira Glasser. Visions of Liberty: The Bill of Rights for All Americans. New York: Arcade
Books, 1991.
Lee Bollinger, The Tolerant Society. New York: Oxford University Press, 1986. Cass
Sunstein, Democracy and the Problem of Free Speech. New York: Free Press, 1993.
War and Civil Liberties, by M.C. Setalvad
Articles
https://www.lawteacher.net/free-law-essays/constitutional-law/human-rights-and-civil-
liberties-constitutional-law-essay.php
https://www.indianbarassociation.org/civil-liberty/
https://upscpathshala.com/content/civil-liberties-are-fundamental-to-the-functioning-of-
model-democracies-upsc-essay-writing/
https://www.ushistory.org/gov/10.asp
https://www.imf.org/external/pubs/ft/fandd/1998/03/pdf/pritchet.pdf
https://study.com/academy/lesson/origins-of-civil-liberties-in-the-united-states-history-
timeline.html
https://freedomhouse.org/country/india/freedom-world/2022
https://www.cliffsnotes.com/study-guides/american-government/civil-liberties/
perspective-on-civil-liberties
https://www.allahabadhighcourt.in/event/
TheJudiciaryandtheCivil_LibertiesNCChatterjee.pdf
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