The Parallel Play of Liberty and Subsistence

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Editors’ note: This post is part of a joint symposium between the IACL-AIDC Blog and African Law Matters, featuring posts on the theme ‘Constitutional Transformations’ from participants at the upcoming World Congress of Constitutional Law in Johannesburg, South Africa 5-9 December 2022. Professor Dhanda will speak at the Plenary on ‘Poverty, Discrimination and Constitutions’.

The 2006 Convention on the Rights of Persons with Disabilities is amongst the recent human rights instruments which emphasises the indivisibility of rights.

The right to speech and expression holds little meaning if accessible means and modes of communication and information are not available. This indivisibility was acknowledged by categorising many rights as a hybrid construction of civil-political and socio-economic rights.

Henry Shue, in his theory of Basic Rights, addressed the issue of indivisibility by arguing for a universally guaranteed regime of basic rights. Basic Rights, Shue clarifies, are those rights which are prerequisites for the grant of any other rights. They are basic not because they are more inherently valuable but because without them no other right can be realised. Basic Rights are foundational. He names the right to security and the right to subsistence as the two basic rights, with the right to liberty as a possible third. 

When Shue wrote his book in 1980, he acknowledged that the book may have a certain imbalance in its insistence that subsistence rights must be accorded the highest priority. This was an argument he was compelled to make because the principle of progressive realisation of socio-economic rights often did not distinguish between subsistence and other economic rights.

Social arrangements, Shue contended, were more urgently needed for subsistence as one’s security could still be protected with some self-help. Shue was arguing for subsistence as a right and to strengthen that argument he was keen to draw a parallel between subsistence and liberty. Such connection, he contended, was necessary because “defenders of liberty usually neglect subsistence and the defenders of subsistence often neglect liberty”.

Due to this connection, from the entire gamut of liberties Shue focusses special attention on the liberties of participation and physical freedom. These two liberties, Shue holds, have to be categorised as basic because their absence results in the robbing of other rights.

I have often used Shue to argue for subsistence rights. However, this blog post is looking at Shue’s connection between liberty and subsistence to raise concerns around some recent legislative and judicial developments in Indian criminal law.

Many criminal law statutes in India have reversed the presumption of innocence and placed the burden of proving non-culpability on the accused (examples include The Maharashtra Control of Organized Crimes Act 1999; The Narcotic Drugs and Psychotropic Substances Act 1985; and The Unlawful Activities (Prevention) Act 1967).

These statutes operate on the default position of jail not bail. Original courts have been prohibited from granting bail without hearing the prosecution and, even then, bail must not be given if the prosecution is able to present a prima facie case against the accused, with prima facie often meaning no more than the prosecution asserting that there was a case against the accused.

“Detention does not just rob the detainee of freedom but also livelihood.”

Earlier criminal law jurisprudence kept matters of guilt and innocence separate from questions of bail. In bail matters courts were required to consider if the accused would flee from the law or vitiate the process of justice by influencing witnesses or distorting evidence.

Persons with roots in society, permanent addresses and vast social networks were considered more reliable than rootless strangers, be they national migrants or immigrants. The earlier jurisprudence, with its insistence on settled abode or sureties or cash deposits, was anti-poor and denied bail to most accused if not all of them.

The large presence of undertrials (remand prisoners) in Indian prisons showed this anti-poor bias of the law. Ordering the grant of bail on personal surety was an initiative of the Indian Supreme Court aimed at offsetting the anti-poor bias of the law (see Hussainara Khatoon vs State of Bihar AIR 1979 SC 1369). 

That jurisprudence is of little assistance when denial of bail becomes the norm of the law. The linking of bail with possibilities of culpability has made obtaining liberty more difficult for all. However, in the real world these difficulties would be disproportionately felt by those lacking social networks and having meagre financial resources to buy quality legal representation; an apprehension which is confirmed by data showing a disproportionate use of the law against persons from minority communities.

The new bail provisions have been questioned but primarily for their liberty depriving propensities. The impact of such laws on the subsistence rights of people is largely ignored. Detention does not just rob the detainee of freedom but also livelihood. A loss of livelihood caused by custodial detention does not only destroy current ability to earn a living but also future ability to do so.

There is a need to see the parallel play of subsistence and liberty, be it with the law relating to bail or laws providing for food security and guaranteeing health entitlements. In the first, the loss of subsistence is not seen; and in the second, the right to participation stands silenced.