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JUDGMENT

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL

APPEAL

NO.

750

OF

2012

(Arising out of S.L.P. (Criminal) No. 7281 of 2011

Rashmi Rekha Thatoi & Anr.

... Appellants

Versus

State of Orissa & Ors.

... Respondents

WITH

CRIMINAL

APPEAL

NO.

751

OF

2012

(Arising out of S.L.P. (Criminal) No. 7286 of 2011

J U D G M

E N T

Dipak

Misra,

J.

Leave granted in both the petitions.

2.

“Liberty is to the collective body, what health is to every

individual body. Without health no pleasure can be tasted by

man; without Liberty, no happiness can be enjoyed by society.”

Thus spoke Bolingbroke.

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JUDGMENT

2

3.

Liberty is the precious possession of the human soul. No

one would barter it for all the tea in China. Not for nothing

Patrick Henry thundered:

"Is life so dear, or peace so sweet, as to be

purchased at the price of chains and slavery?

Forbid it, Almighty God ! I know not what course

others may take, but as for me, give me liberty,

or give me death !"

The thought of losing one's liberty immediately brings in a

feeling of fear, a shiver in the spine, an anguish of terrible

trauma, an uncontrollable agony, a penetrating nightmarish

perplexity and above all a sense of vacuum withering the very

essence of existence. It is because liberty is deep as eternity and

deprivation of it, infernal. May be for this protectors of liberty

ask, "How acquisition of entire wealth of the world would be of

any consequence if one's soul is lost?" It has been quite often

said that life without liberty is eyes without vision, ears without

hearing power and mind without coherent thinking faculty.

4.

Almost two centuries and a decade back thus spoke

Edmund Burke: -

“Men are qualified for civil liberty, in exact

proportion to their disposition to put moral

chains

upon

their

own

appetites;

in

proportion as their love to justice is above

their

rapacity;

in

proportion

as

their

soundness and sobriety of understanding is

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JUDGMENT

3

above their vanity and presumption; in

proportion as they are more disposed to listen

to the counsel of the wise and good, in

preference to the flattery of knaves. Society

cannot exist unless a controlling power upon

will and appetite be placed somewhere and

the less of it there is within, the more there

must be without. It is ordained in the eternal

constitution

of

things

that

men

of

intemperate minds cannot be free. Their

passions forge their fetters.”

5.

Similar voice was echoed by E. Barrett Prettyman, a retired

Chief Judge of U.S. Court of Appeals:-

“In an ordered society of mankind there is no

such thing as unrestricted liberty, either of

nations or of individuals. Liberty itself is the

product restraints; it is inherently a composite

of restraints; it dies when restraints are

withdrawn. Freedom, I say, is not an absence

of restraints; it is a composite of restraints.

There is no liberty without order. There is no

order

without

systematized

restraint.

Restraints are the substance without which

liberty does not exist. They are the essence of

liberty. The great problem of the democratic

process is not to strip men of restraints

merely because 'they are restraints. The great

problem is to design a system of restraints

which will nurture the maximum development

of man's capabilities, not in a massive globe of

faceless

animations

but

as

a

perfect

realization, of each separate human mind,

soul and body; not in mute, motionless

meditation but in flashing, thrashing activity.”

6.

Keeping the cherished idea of liberty in mind, the fathers of

our Constitution engrafted in its Preamble: "Liberty of thought,

expression, belief, faith and worship." After a lot of debate in the

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JUDGMENT

4

Constituent Assembly, Article 21 of the Constitution came into

existence in the present form layi