research paper on article 21 of indian constitution

Article 21 of the Indian Constitution: An In-Depth Analysis

Article 21 - protection of life and personal liberty, meaning of the word life, meaning of the word liberty, procedure established by law, due process of law, procedure established by law vs due process of law in india, interpretation of article 21 according to traditional approach, interpretation of article 21 according to modern approach, the extended dimensions of article 21, right to livelihood, right to live with human dignity, right to shelter, right against sexual harassment, right for prisoners, right to life does not include right to die, right to privacy, right to clean environment.

• P.N. Bhagwati, J.
• Indian Constitution, Article 21
• AIR 1971 SC 337
• AIR 2000 SC 998
• 1963 AIR 1295
• AIR 1950 SC 27
• 1978 AIR 597
• 1981 AIR 746
• 1986 AIR 180
• AIR 1976 SC 1207
• 1993 AIR 2178
• Re Sant Ram, AIR 1960 SC 932
• Board of Trustees of the Port of Bombay v. Dilip Kumar R. Nadkarni, AIR 1983 SC 109
• 1980 AIR 1579
• AIR 1984 SC 802
• AIR 1996 SC 114
• (1990) 1 SCC 520
• Air 1996 SC 1051
• (1997)6 SCC 241
• AIR 1978 SC 1548
• AIR 1979 SC 1369
• AIR 1992 SC 170
• AIR 2001 SC 3173
• (1996) 2 SCC 648
• AIR 1994 SC 1844
• AIR 1963 SC 1295
• AIR 1991 SC 420
• AIR 1999 SC 812

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42 Life and Personal Liberty

Anup Surendranath is an Assistant Professor of Law, National Law University, New Delhi.

This chapter has been possible due to the tremendous research assistance I received from Akshay Vaddagiri and Rishika Sahgal.

• Published: 06 February 2017
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This chapter considers the ‘right to life and personal liberty’ guaranteed in Article 21 of the Indian Constitution. It provides an account of the content of this right, the way in which its meaning has developed and been understood, and the shape the jurisprudence in this area has taken. It explores certain specific guarantees that have been recognized under the right, and the way in which the right has been expanded, including through the Supreme Court’s emphasis on dignity. It considers debates on the hierarchy of rights and concerns that remain on the nature and meaning of this guarantee within Indian constitutional law.

I. Introduction

The cases that invoke the ‘right to life and personal liberty’ in Article 21 are far too many to confidently build a grand narrative around it. It has been expanded in such numerous directions in so many different ways that it becomes difficult to discern any level of normative coherence. The attempt in this chapter is to achieve a balance between coverage and developing an analytical critique of the manner in which the content of the ‘right to life and personal liberty’ has been developed. In circumstances of difficult political, social, and economic questions, the reasonableness standard has resulted in dilution of rights protection under Article 21. At the same time, however, we see repeated references to ‘dignity’ and ‘life beyond animal existence’ being used to radically redefine the scope of rights protection under Article 21. Given that the extent of the protection under Article 21 now extends from the prohibition against torture to the right to sleep, a discussion on the hierarchy of rights seems inevitable. Further, the chapter in various sections also examines the inconsistent use of dignity and the ‘life-is-more-than-animal-existence’ framework to read in penumbral rights.

The chapter adopts two broad approaches. The first is to distil the normative concerns about the content of rights, method of recognition of rights, and protection of rights from landmark cases. Secondly, in the parts that deal with specific rights, the attempt has been to buttress the arguments on the lack of normative coherence, while at the same time to provide an internal critique about the inadequacies relating to the content of those rights.

In Section II, the various aspects of Article 21 that were considered in AK Gopalan are discussed. The section also demonstrates that the solution arising out of Maneka , while addressing the issue of the test to be adopted under ‘procedure established by law’, leaves quite a few questions unanswered about the content of Article 21.

In Sections III and IV, the strategies adopted by the Supreme Court (SC) to expand the scope of the ‘right to life and personal liberty’ are analysed, with particular emphasis on the Court’s surprising and repeated emphasis on a particular extract from Munn v Illinois , along with its use of dignity. Sections V, VI, and VII contain an examination of the manner in which specific rights claims were recognised or not, while also engaging with the content of these rights. Section VIII brings together the various discussions and argues for the need to discuss hierarchy of rights and critically re-evaluate the significance of Maneka in contemporary constitutional jurisprudence on Article 21.

II. From Gopalan to Maneka—Unresolved Issues

Every discussion on the content of the right to life and personal liberty inevitably takes us back to Gopalan 1 because it was in that case that the SC, despite being primarily concerned with Article 22, made its first moves on the scope of Articles 19 and 21. The critical question in Gopalan was whether a particular freedom (in this instance the preventive detention law) could fall under both Articles 19 and 21, for this would determine the applicable standard of review.

Gopalan is often taken to have only held that any particular freedom cannot fall under both Articles 19 and 21. However, such a reading misses out nuances that appear on a close reading of the opinions in Gopalan . Of the six judges in Gopalan , only Fazl Ali J held that an overlap of Articles 19 and 21 was possible. 2 For him, a preventive detention law had to not only satisfy the requirements of Article 21 but additionally that of freedom of movement in Article 19(1)(d) and 19(5) because Articles 19–22 did not form independent codes in themselves.

However, the five other judges in Gopalan held that Articles 19 and 21 occupy exclusive domains, with no overlap whatsoever. Apart from the fact that Article 19 is available to all citizens and Article 21 to all persons, the text indicates more restrictions on the State under Article 19. Reading freedoms as overlapping between Articles 19 and 21 would result in the alleged infringement being tested against the provisions of Article 19 as well. However, the majority position in Gopalan would require a particular freedom to be located either in Article 19 or 21.

There was significant discussion in Gopalan on the substance of the protection in Article 21 under the term ‘personal liberty’ and its relation with Article 19 freedoms. Despite being subsequently overruled, the opinions on the fields occupied by Articles 19 and 21 in Gopalan raise important questions for subsequent constitutional discussions on the content and protection under Article 21.

Amongst the majority, Sastri and Mukherjea JJ view Article 21 as being limited to issues of bodily restraint and coerced detention, while Kania J takes a much broader view to include the rights to work, sleep, play, etc. 3 However, Das J envisages a hierarchy of rights between the bodily freedom of a person and other auxiliary rights. Even within the auxiliary rights, Das J saw the Article 19 freedoms as occupying a higher position and therefore having received specific mention in the Constitution.

The above discussion is important because it highlights a conceptual difficulty that has been largely ignored since Gopalan , namely the difference in treatment that must be accorded to the different freedoms that form part of Articles 19 and 21. Article 19 gives a clear framework for the protection of freedoms mentioned therein for citizens, but the development of Article 21 jurisprudence so far leaves us with the rather problematic choice to protect the right against torture in the same manner and intensity with which we would protect the freedom of dietary preferences.

The SC in RC Cooper 4 made an important contribution in finally achieving the reversal of the majority position in Gopalan that Articles 19 and 21 occupy different and exclusive fields. In RC Cooper it was held (in the context of right to property under Articles 19(1)(f) and 31) that the freedoms and rights in Part III could be addressed by more than one provision. 5 Using this move made by an eleven-judge bench, the transformation in the Articles 19–21 debate was completed in Maneka Gandhi . 6

The seven-judge bench in Maneka , though primarily concerned with the meaning of ‘procedure established by law’, had to necessarily address the relationship between the substantive protections of Articles 19 and 21. Maneka was explicit that there existed certain freedoms that fell within both Articles 19 and 21, and for such freedoms the State would have to satisfy the burdens envisaged in both provisions, along with satisfying the non-arbitrariness requirement of Article 14.

Therefore, the following scheme appears after Maneka:

Freedoms that fall under both Articles 19 and 21: the Article 19 reasonableness test and the requirements of Article 21 would have to be satisfied, along with the Article 14 non-arbitrariness test.

Freedoms that fall only within Article 21: the Article 14 non-arbitrariness test along with the requirements of Article 21 would have to be satisfied.

Maneka ’s attempts to resolve issues in one area has left many others unresolved. Maneka has no reply to the issue of whether the primary and foundational rights under Article 21 must be protected in the same manner as auxiliary rights. Further, even within Article 21, the spectrum of freedoms contained within the provision raises similar questions. For example, the protection against torture under Article 21 is only subject to the non-arbitrariness test under Article 14, which imposes a very low burden. Moreover, there is arguably no clear basis for the conflation of the rights within Articles 14, 19, and 21. 7 As at least one author notes, this integrated reading of the Articles renders emergency provisions providing for suspension of Article 19 freedoms (among others) useless, and to that extent is inconsistent within the constitutional framework. 8

Both Gopalan and Maneka get parts of the puzzle correct, while leaving other parts with no clear resolution. Gopalan is correct to the extent that it recognises that certain Articles 19 and 21 freedoms attract different levels of protection, but its weakness lies in holding that the ‘right to life and personal liberty’ is to be protected to a lesser degree than Article 19 freedoms. Maneka , on the other hand, raises the level of protection for the freedoms contained within ‘right to life and personal liberty’ but ends up homogenising the level of protection for all freedoms. In this levelling of freedoms, Maneka has ensured that it is quite convenient and easy for the State to discharge its burden in restricting even the most foundational of freedoms contained in Article 21. This near-homogeneous treatment of freedoms in Articles 19 and 21 leads to difficult constitutional dilemmas that will be explored in the following sections of this chapter.

III. The Basis for Expanding the Meaning of ‘Personal Liberty’

Apart from the relationship between Articles 19 and 21, the critical question raised during the Emergency was whether there existed a natural law right to life and personal liberty in natural law after Part III was suspended (Articles 352 and 359 as it stood then). Deciding the case in a pre- Maneka context, four judges in ADM Jabalpur v Shivakant Shukla took the position that there existed no right to life and personal liberty beyond Article 21 and that the State’s suspension of Part III was constitutionally valid. 9 This majority judgment of the five-judge bench was delivered in the context of widespread State excesses, including forced disappearances and illegal detention. Khanna J’s muchcelebrated dissent took the position that even though Article 21 might have been validly suspended, it did not mean that the petitioners could not challenge the exercise of that power.

The first couple of decades of the Court’s adjudication on Article 21 involved issues of detention, arrest, and restrictions on movement wherein the SC began to seriously address the issue of rights beyond the literal meaning of Article 21, in both the contexts of ‘personal liberty’ and ‘right to life’. The possibility of expanding the protection available under ‘personal liberty’ was explored in Kharak Singh , 10 strengthened in Gobind , 11 and given the widest reading in Maneka . As far as the expansion of the ‘right to life’ under Article 21 is concerned, a significant part of the judicial discourse relies on the dignity-based conception of the right in Francis Coralie Mullin . 12

The protection and expansion of ‘personal liberty’ received significant support in Kharak Singh . Adjudicating the validity of surveillance measures, the Court upheld the right to be in one’s house without unjustified interference by the State. It invoked ‘common law rights of man’ to hold that ‘every man’s house is his castle’. 13 Building on this property notion, the Court held that domiciliary visits by a police official were violative of Article 21. The majority opinion relied heavily on the aspect of ‘dignity’ used in the preamble to bring in the expanded reading of Article 21. 14 Though the majority made no explicit reference to the right to privacy (unlike Subba Rao J’s dissent) it nonetheless began the process of expanding Article 21 beyond the limited issues of arrest and detention as far as ‘personal liberty’ was concerned. The expansionist mode of the Court is evident in its characterisation of Article 21 as the residuary of all personal liberties not covered by Article 19(1).

With the recognition of the right to privacy as a fundamental right in Gobind , the idea of penumbral rights under Article 21 seems to have been established. It would be difficult to argue, from a textual reading of the provision, that the right to privacy is an obvious component of Article 21. However, this expansion of ‘personal liberty’ was based essentially on a broad and vague understanding of the ‘right to life’. In Kharak Singh , Ayyangar J based his wider reading of ‘personal liberty’ on a wide definition given to life in Munn v Illinois 15 as being something ‘more than mere animal existence’. 16 Curiously (and it goes on to become symptomatic of the SC’s use of foreign sources), there is hardly any context provided to this excerpt. Munn has hardly anything to do with the right to life and the phrase was never meant to delineate the precise meaning of that right. It is surprising that in many ways it went on to represent a judicial standard that determined the content of ‘right to life and personal liberty’ under Article 21.

In Kharak Singh, the argument was that if ‘life’ could be construed widely, then the same approach was to be adopted for ‘personal liberty’ and include all safeguards necessary to protect the dignity of the individual. 17 This might well be due to the fact that Kharak Singh and Gobind are based on the premise that Article 21 is a residuary provision for all personal liberties. A subtle shift on this issue can be seen from a comparison with Gopalan , where the Court viewed Article 21 as a provision that encompassed certain rights out of which Article 19 freedoms were carved out.

Maneka throws further light on unenumerated rights and attempts to provide a framework (albeit in the context of Article 19). The test developed in Maneka is whether the right claimed is an integral part or of the same nature as the named right. Further, these rights need to be ‘in reality and substance nothing but an instance of the exercise of the named fundamental right’. 18 There was no further guidance available to determine whether a rights claim would fall under a fundamental rights provision.

IV. Using Dignity to Expand the ‘Right to Life’ and ‘Personal Liberty’

In Francis Coralie Mullin , 19 the Court used the extract from Munn to establish a dignity-based conception of the ‘right to life’. Holding that the ‘right to life’ went beyond protection of limbs and faculties, the Court included in it the ‘right to live with human dignity’. Without providing any normative framework for the application of human dignity, the Court provided an inclusive list that comprised dignity—for example, adequate nutrition; clothing, shelter and facilities; expressing oneself; etc. 20 This dignity-based conception was subsequently used in cases such as the Asiad case, 21   Olga Tellis , 22   Bandhua Mukti Morcha , 23 and Mohini Jain. 24

The right to live with dignity as part of the ‘right to life’ becomes a constant refrain for the Court in cases that invoke the ‘right to life’ but the use of dignity in cases that involve issues of personal liberty is rather confused. The SC has invoked dignity to adjudicate the constitutionality of practices like solitary confinement and bar fetters, 25 handcuffing of prisoners, 26 and custodial death and torture. 27 The use of dignity in Sunil Batra and DK Basu is typical of the manner in which it is invoked in personal liberty cases. The Court declares the issue at hand to be an instance of violation of dignity without ever really developing the principles indicating the instances that are likely to be considered violations of dignity.

In more recent times, the difficulty in the manner in which the SC has developed the dignity discourse has been exposed in the context of manual scavenging. With the 2013 Act replacing the 1993 Act, 28 the SC delivered a final judgment in a public interest litigation filed by the Safai Karamchari Andolan in 2003 seeking destruction of all dry latrines. 29 It was unfortunate to see the SC give its approval for the 2013 Act wherein the issue of cleaning of sewers and septic tanks continues to be legal when undertaken using protective gear and cleaning devices. The 2013 Act places this issue within the framework of health and safety of the workers rather than one of dignity.

V. Civil and Political Rights

In this section, various instances of the SC providing content to the ‘right to life and personal liberty’ are analysed. Within each of these instances, it will be examined whether the Court has considered the issue under the right to ‘life’ or ‘personal liberty’. Further, an attempt has been made to delineate the Court’s basis for either accepting or rejecting a particular rights claim.

1. Rights of Individuals in Detention and Protection Homes

Custodial torture and death, rights of prisoners, and sexual violence in custody are the main themes with which the Court has engaged on the rights of detainees. Although the jurisprudence of the Court has seen significant expansion in this area with reliance on dignity, no clear dignity framework has been developed.

In Sunil Batra , 30 the Court found the solitary confinement of a death row prisoner and use of bar fetters on an undertrial prisoner to be violative of the right to live with human dignity under Article 21. 31 Similarly, handcuffing a certain class of prisoners while being escorted to court was held to be violative of dignity and an unreasonable restriction on the freedom of movement. 32 Citing Sunil Batra and Prem Shankar Shukla , the Court has also declared that handcuffing and parading an accused through the streets to the police station amounted to undignified treatment. 33

In the context of custodial violence the radical aspect of the Court’s jurisprudence is the remedy it has crafted for it. Through a series of decisions, the Court has now firmly crystallised the position that it can award monetary compensation as a public law remedy for such Article 21 violations. 34 However, the Court has not developed a principled basis for determining the categories of rights violations that are eligible for monetary compensation.

It is curious that the Court has largely been quiet on fixing accountability and the criminal prosecution of those involved in custodial torture and deaths.

In dealing with Article 21 rights of arrested persons, undertrials, prisoners, and those in protection homes, the Court has also adopted the strategy of issuing wide-ranging directions on procedure for arrest, treatment of inmates, living conditions, and access to legal aid, as typified in the Agra Protection Home case. 35

The Court uses this strategy in an attempt to secure the protection of Article 21 rights, but the Court has not attempted a constitutional justification of such a power. Doing so will not only ensure that the Court’s powers in designing such remedies are well defined, but will also provide a basis for insisting that the Court exercise such a power when the conditions laid down are satisfied. The current manner of exercising this power to issue directions resembles political discretion more than anything else.

2. Access to Justice

Access to justice under Article 21 is largely based on reading in the content from Article 39A in the Directive Principles of State Policy (DPSPs). While there is hardly any discussion on whether access to justice is part of right to ‘life’ or ‘personal liberty’ under Article 21, the argument on offer is that not reading access to justice as part of Article 21 would violate the ‘fair, just and reasonable’ requirement of the ‘procedure established by law’. Through acting on newspaper reports about the large number of undertrials languishing in Bihar’s jails, the SC issued a series of directions in the Hussainara Khatoon line of cases. 36 In Hussainara Khatoon (IV) , 37 the SC for the first time held that the right to free legal aid services was part of the protection afforded by Article 21 and a non-negotiable part of the right to a fair trial. 38 In Khatri (II) , 39 the Court plugged a major loophole and made it mandatory for judges in lower courts to inform all accused persons that they had a right to free legal representation if they could not privately afford the services of a lawyer. In Suk Das , 40 the Court further clarified that it is not necessary for the accused to ask for free legal representation but it is instead the obligation of the judge to inform the accused of such a right. 41

MH Hoskot affirmed the right to legal aid for convicts in order to help them in the appellate stages, 42 ruling that the burden was not on the convicted prisoner to seek legal aid inside prison, but rather that it was the obligation of the prison authorities to inform all convicted prisoners of their right to legal aid and the authorities would be required to demonstrate that they had indeed discharged their duty.

One area within access to justice that the Court has surprisingly paid scant attention to is legal aid in police custody. In Nandini Satpathy , 43 where the rights of arrested individuals were examined in detail, the Court declined to rule that an indigent person detained at a police station has the right to free legal aid. This case, along with Sheela Barse , 44 are notable instances of the Court missing an opportunity to rule on informal arrests. 45 While in DK Basu the Court did rule that a person detained by the police had the right to consult a lawyer, the Court was quick to clarify that such a right did not extend to having a lawyer present throughout police interrogation. Even the Legal Services Authorities Act 1987 does not recognise such a statutory right, and only extends legal services to a person who has to ‘file or defend a case’. 46

3. Taking Life: The State and the Individual

In this sub-section the SC’s position on extinguishing life in two contexts is examined. The constitutional discourse on taking of life by the State through the death penalty and the attempt to commit suicide by an individual are analysed.

a. Death Penalty

The first constitutional challenge to the death penalty was in Jagmohan 47 (pre- Maneka ) and was based on Articles 14, 19, and 21 on the grounds that: (a) the judges had arbitrary power to impose the death penalty; (b) the death penalty extinguished all freedoms under Article 19; (c) there was no procedure prescribed for sentencing to indicate when the death penalty must be chosen. The constitutional bench unanimously disagreed with these arguments, largely within the framework that the Constitution of India itself recognised the existence and validity of the death penalty. 48 Also, the judgment in Jagmohan came three months after the decision in Furman v Georgia , 49 but the bench was unwilling to give it any considerable weight, citing the lack of a provision similar to the Eighth Amendment (‘cruel and unusual punishment’) in the Constitution of India. The majority in Bachan Singh 50 (post- Maneka ) operated within the same framework as Jagmohan , but made a crucial addition by developing the ‘rarest of the rare’ framework to address concerns around the arbitrary use of the death penalty. Now the Court was required to balance aggravating and mitigating circumstances relating to the criminal and the crime in the sentencing phase. However, inconsistency displayed by the SC itself on this ruling, as in Ravji , 51 which was subsequently relied on to confirm the death sentences of numerous individuals (some of whom were even executed) before the error was judicially acknowledged in Santosh Bariyar 52 and Sangeet , 53 has inexplicably kept some prisoners such as Mohan Anna Chavan and Umesh Reddy under death row despite two benches of the SC having acknowledged the error in their cases. 54

The constitutionality of death by hanging was challenged in Deena before a three-judge bench. 55 Upholding its constitutionality, the Court declared that hanging did not amount to cruel punishment. Citing medical opinion, the Court was of the view that death by hanging causes the least pain and was a dignified manner of carrying out death sentences. 56

The SC, however, has gone miles ahead of the rest of the world in terms of delay jurisprudence in the context of the death penalty. In Shatrughan Chauhan , 57 it ruled that undue and inordinate delay in deciding the mercy petition of death row prisoners would be a ground for commutation by itself. The concerned prisoner need not show any adverse effects s/he has suffered due to such delay and the very fact of the delay would be sufficient for commutation, as it has a dehumanising effect amounting to torture. 58 While commuting the death sentence of fifteen prisoners, the Court laid down detailed guidelines concerning steps that must be taken after the rejection of mercy petitions such as a last meeting with the family, the opportunity to challenge the rejection of the mercy petition, mental health evaluations, etc. 59   Shatrughan Chauhan also overruled the decision in Devender Pal Singh Bhullar , 60 which had held that those sentenced to death for terrorist offences could not claim the benefit of inordinate delay due to the nature of their crimes.

b. Attempt to Suicide

The constitutional discussion on the attempt to suicide is important for two reasons: (i) it throws light on the nature of Article 21 and its relationship with the other fundamental rights; (ii) it highlights the concerns with the use of dignity in the absence of a framework.

The constitutionality of Sections 306 and 309 of the Indian Penal Code 1860 that criminalise the attempt to suicide and abetment of suicide was the subject matter of P Rathinam 61 and Gian Kaur , 62 respectively. Gian Kaur overruled the decision in Rathinam based on a different understanding of Article 21. In Rathinam , the Court held that what was true of other fundamental rights must be true of Article 21, and so the right to life must also include the right not to live, just as the freedom of speech included the freedom not to speak. 63 However, in Gian Kaur the constitutional bench took the view that such a construction cannot be given to Article 21 because in all other instances it is the negative aspect of the right that is invoked; that is, no action is required from the individual and the right to kill oneself would require positive actions by the individual. 64 The Court does not offer an explanation for this differential treatment between positive action and inaction. In Gian Kaur , the Court was also of the view that since dignity was used to give meaning and content to the right to life, it could not then be used to extinguish life itself.

However, the Court distinguished the right to end one’s life from the choice to die a dignified death at the end of one’s natural life. The right to die with dignity is available only when ‘the natural process of death has commenced’, but there is no right to die an unnatural death. However, this part of Gian Kaur was recognised as obiter in Aruna Ramachandra Shanbaug . 65 Addressing the issue of passive euthanasia in Aruna Ramachandra Shanbaug , the Court was of the view that in situations where the natural process of death had begun or the person was in a permanent vegetative state, it would not be a crime to passively accelerate death in these instances by refusing medical assistance. The issue for the Court in this case was not whether there was a right to die, but instead whether there was an obligation to prolong life when the patient was terminally ill.

4. Anti-terror and Security Legislation

In many ways the constitutional challenges to anti-terror and security challenges have tested the normative foundations of the SC’s seemingly progressive jurisprudence on the ‘right to life and personal liberty’. The superstructure of Article 21 built in a host of cases discussed before seems to stand on unstable foundations as the Court struggles to even frame the constitutional debate in the context of anti-terror and security legislation. The Court’s response to the constitutional challenges to these legislation also demonstrates the inherent weakness of the Article 21 jurisprudence that has been developed since Maneka.

In this section, the constitutional challenges to the Armed Forces Special Powers Act 1958 (AFSPA), the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA), and the Prevention of Terrorism Act 2002 (POTA) are considered. The AFSPA gives power to the executive to declare an area as ‘disturbed’ and within such areas, amongst other powers, allows the armed forces to arrest without warrant and shoot at sight in case of an unlawful assembly. 66 AFSPA is now applicable in parts of all seven States in the North East and also in Jammu and Kashmir. TADA, which lapsed in 1995, was applicable in declared ‘disturbed’ areas and permitted long periods in police custody without a charge sheet, made bail provisions onerous for the accused, permitted the use of confessions in police custody as evidence in a trial, and authorised the use of anonymous witnesses. 67 POTA was enacted in March 2002 with provisions largely similar to TADA, and was repealed in December 2004 by Parliament, despite its constitutionality having been upheld by the SC. In Naga People’s Movement of Human Rights (hereinafter ‘ Naga People’s ’), 68   Kartar Singh , 69 and PUCL , 70 the Court was concerned with setting the constitutional standards that the State had to meet before taking measures that subverted fair trial protections in the context of security concerns.

It is rather curious that in all three of these cases there is hardly any discussion on the nature of the right being restricted or deprived. A constitutionally relevant method would be to first lay out the content of the right that is sought to be restricted and then proceed to examine the justifications put forth by the State. The cases are remarkable for their lack of balancing of interests, and are focused solely on the reasonableness of the measures taken, rather than examining their impact on the rights in questions. The concern here is not that the Court has come out in favour of the State by upholding the legislation in question; the point is a prior one. Surely, the burden on the State should differ depending on whether the legislative measures in question merely have an incidental impact on the right, or amount to substantial infringement. Further, there needs to be a constitutional examination of the stated aims of the State in introducing such legislation.

On the issue of the State’s rationale for anti-terror laws in Kartar Singh , and PUCL in the context of TADA and POTA, the Court gave a resounding approval for the State’s version. The Court precedeed by accepting the background of extremist violence and terrorism provided by the State and then proceeded directly to address the reasonableness of the measures. It is almost as though invoking the national security argument entitles the State to very wide latitude in terms of constitutionally acceptable measures, without having to demonstrate a narrower fit to the aims sought to be achieved. 71

It has been argued that greater deference to the State is appropriate in respect of anti-terror and security measures adopted under ‘conditions of stress’, as opposed to in ordinary times. 72 This does not, however, ease the burden on the State to show that it is faced with such ‘conditions of stress’. In Naga People’s , the Court gave the State a free hand in extending the imposition of AFSPA without any outer limit, which led to the rather absurd situation where certain areas had been subject to this Act for decades. At the very least, the State must have an increasing burden, with time to justify the continued imposition of such a special law.

Given the extremely deferential attitude to the State’s stated aims, the Court’s solution is to design interpretational remedies for the application of the legislation. The Court’s preferred method is to read the provisions in such a manner or issue guidelines that might prevent the abuse of power. 73 For example, in Naga People’s , on the issue of shoot-at-sight powers of the armed forces, the Court takes the view that there were sufficient inbuilt conditions, such as the officer having to satisfy himself that the situation demanded firing and warning shots having to be fired. 74 Similarly, while addressing the serious concern of custodial violence in the context of police confessions that were made admissible under TADA, the Court in Kartar Singh is of the view that the legislation’s meagre protections were sufficient. 75

The Court’s approach to these legislation has paved the way to treat these statutes like every other piece of legislation. A contrast to the majority’s approach is readily available in Ramaswamy J’s dissenting opinion in Kartar Singh , which invokes the right against torture entrenched in Article 21 and views the admissibility of custodial confessions within that framework. 76 He concludes that the power of the State to regulate criminal procedure cannot extend to deprivation of fundamental constitutional protections.

5. Sexual Minorities

The judgments in Naz Foundation 77 and Suresh Kumar Koushal 78 test the provision criminalising sodomy (Section 377, Indian Penal Code 1860) against Article 21. The judgment of the Delhi High Court in Naz Foundation and the SC’s judgment in Suresh Kumar Koushal come to opposite conclusions. The Delhi High Court accepts that Section 377 violates Article 21 by infringing the right to privacy and depriving homosexuals of autonomy, thereby denying them the right to life with dignity. The privacy right constructed by the Court is not spatial privacy but rather privacy of the person where the person has a right to be left alone. 79 Expressing one’s sexuality without the interference of community or the State is then viewed by the Court to be at the core of such a right to privacy of the person. Further, the Court argues that at the very core of dignity must lie the autonomy of the private will and the person’s freedom of choice and action. Section 377, in the opinion of the Court, took away a fundamental aspect of such autonomy by criminalising sodomy. 80

The SC’s judgment in Suresh Kumar Koushal , reversing the judgment of the Delhi High Court and upholding the constitutionality of Section 377, is shallow in its treatment of the Article 21 claim. Apart from citing decisions of the SC on privacy 81 and the right to life with dignity, 82 there is hardly any constitutional reasoning that the Court has to offer for finding Section 377 compatible with the ‘right to life and personal liberty’.

In National Legal Services Authority v Union of India , 83 we see a completely different Court in action on the legal recognition of transgenders as a separate gender identity. The Court reiterates that Article 21 protects individual autonomy, privacy, and dignity. 84 Aided by comparative and international jurisprudence, the Court concludes that ‘self-determination of gender is an integral part of personal autonomy’ and therefore a facet of ‘personal liberty’, 85 and is also a part of the right to life with dignity. 86 The stark difference in the approach to autonomy and dignity under Article 21 between Koushal and National Legal Services Authority is impossible to explain in terms of constitutional reasoning and interpretation. All that was denied to homosexuals by one bench of the SC for, amongst other reasons, being a minuscule minority , was allowed for transgenders by another bench of the Court.

VI. Socio-Economic Rights

There was a radical shift in the Court’s jurisprudence from the early 1980s concerning the very nature of rights protected under Article 21 towards understanding Article 21 as also imposing positive obligations on the State. Therefore, for example, Article 21 does not just protect against the State proactively depriving persons of education, it also imposes an obligation on the State to provide for education. However, this has led the Court into territory that has proven tricky for many apex courts around the world. Unfortunately, the SC has rarely acknowledged the normative difficulties of this task. We do not see fundamental discussions on the nature of socio-economic rights claims in terms of a minimum core or progressive realisation, precise content of the right, and their coverage in terms of beneficiaries. Developing a normative framework would ensure that the judiciary adjudicates all socio-economic rights claims within that framework and does not adopt an unpredictable and uncertain approach for recognition of these rights.

1. Right to Education

Though Article 21A now contains a fundamental right to elementary education, the evolution of the right to education jurisprudence of the SC is interesting for a few reasons. First, it is amongst the early and rare instances of the Court clarifying its position on positive rights in the context of Article 21. Also, it is one of the few instances where the Court grapples with the content of the socio-economic rights at a normative level, which then ultimately leads to an explicit constitutional and statutory obligation.

The judgment of a two-judge bench of the SC in Mohini Jain 87 triggered an interesting disagreement on the content of the right to education. Reading in a positive obligation of the State, the Court ruled that the State under Article 21 has to provide adequate educational institutions at all levels, but is, however, silent on free and compulsory education at any level. 88 However, the constitutional bench in Unni Krishnan 89 disagreed with Mohini Jain on the scope and content of the right to education and went on to hold that the right meant free and compulsory education until fourteen years of age. 90 Using Articles 41, 45, and 46 under the DPSP, the Court concluded that the constitutional scheme required an intense focus on primary education. 91 While the Court is undoubtedly correct in deciphering the constitutional emphasis on primary education, it has no real explanation for excluding all other levels of education from the right to education.

Nine years after the judgment in Unni Krishnan , Parliament inserted Article 21A into the Constitution, making free and compulsory education until the age of fourteen a fundamental right. In pursuance of this mandate, the Right of Children to Free and Compulsory Education Act 2009 (RTE Act) was passed by Parliament, which required all schools, including private unaided schools, to set aside 25 per cent of their seats for children belonging to ‘disadvantaged groups’ and ‘weaker sections’. 92 The constitutional validity of the RTE Act (except its application to unaided minority institutions) was first upheld by a three-judge bench in Society for Unaided Private Schools of Rajasthan . 93 Article 15(5) and the RTE Act (except its application to all minority institutions) were both upheld in Pramati Educational and Cultural Trust . 94

The importance given to education at all stages in Mohini Jain as part of Article 21 is first restricted to primary education in Unni Krishnan . The Court articulates this right as foundational for our polity, but then finds an exception for unaided minority institutions in Society for Unaided Private Schools of Rajasthan . This is further diluted in Pramati Educational and Cultural Trust , when the exception is then extended to all minority institutions. Once again, the Court finds itself without any tools for balancing the interests under Article 21 with minority rights in Article 30. Instead, we are left with a bald assertion that enforcing the RTE Act on minority institutions would abrogate their Article 30 rights.

2. Right to Health

The content of the right to health under Article 21 has been largely understood in two ways—first, as access to medical facilities and secondly, as the right to a healthy life. In Parmanand Katara , 95 the SC ruled that Article 21 imposed an obligation on all medical professionals to treat emergency cases without any delay. The Court did not explore any constitutional basis for imposing such an obligation and neither did it clarify the extent to which these emergency services were to be made available. In Paschim Banga Khet Mazdoor Samity , 96 the SC held that the non-availability of medical facilities is a violation of Article 21, ruling that the State had an obligation to provide medical facilities and that financial constraints are constitutionally unacceptable reasons in such a situation. The Court also issued guidelines to be followed while enforcing this right, but the Court was once again not very forthcoming about the content of such a right. Of course, the institutional capability of the Court to design such a right and provide a workable framework taking into account financial and infrastructural provisions needs to be closely examined.

In a more specific context in terms of access to medicines and treatment, the SC in Sahara House 97 issued an order stating that universal access must be provided to second-line anti-retroviral therapy for treating AIDS. Here, the Court is absolutely clear that the access to medicines and treatment is immediate and without exception. In Social Jurists , 98 the Court ruled that obligations of private hospitals to provide access to medical facilities to the poor meant providing holistic access to health care facilities in these hospitals and not merely setting aside of beds.

3. Right to Shelter and Housing

The right to housing is an area where the SC adopts a conservative approach in comparison to other socio-economic rights, 99 and the Court is clearly reluctant to use the fully fledged rhetoric around dignity to design immediately realisable remedies. Though there is constant reiteration of the impact homelessness has on dignity, the Court is satisfied to defer to the executive on providing the evictees with alternative accommodation, if at all. This is evident early on in Olga Tellis , 100 where the Court, while recognising the right to livelihood in Article 21 in very strong terms and providing for procedural safeguards in terms of a hearing, declined to uphold a right to resettlement before eviction. A similar ruling appears in Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan . 101 It is a curious judgment because on the one hand the Court cites the decisions in Chameli Singh , 102   Shantistar Builders , 103 and PG Gupta 104 to reiterate the importance of livelihood and shelter in ensuring a life with dignity, but on the other couches the problem of unauthorised encroachments in the framework of ‘unhygienic ecology’, ‘traffic hazards’, and ‘risks to lives of pedestrians’. 105 The Court is unwilling to intervene in the schemes of the competent authority, citing concerns of budgetary allocation and also distances itself from evolving any general system of resettlement before eviction, citing the apprehension that doing so would encourage people to encroach upon public property and abuse the judicial process. 106 The housing and shelter cases present a strange internal dichotomy where the Court is eager to engage in rhetoric about the dignity harms caused by homelessness, but at the same time is unwilling to structure any meaningful remedy to ensure protection from the marginalising impact of homelessness.

4. The Right to Food (Security)

The right to food is another example of a judicially recognised and enforced right being converted into a statutory right. In People’s Union for Civil Liberties , 107 the petitioners argued that the Government of Rajasthan failed to take measures to address scarcity of food by providing grains at subsidised prices to eligible persons. The first set of detailed orders started from November 2001, where the SC essentially converted a series of government schemes into constitutional guarantees under Article 21. In subsequent orders, 108 the Court went beyond effective access to foodgrains and issued orders on larger systemic issues affecting hunger and starvation by making modifications to such schemes. The Court unpacked the contents of the right in significant detail, something that it has failed to do in the context of other socio-economic rights. It is clear from these orders that the Court was in the process of developing a robust food security regime that accounted for various structural factors, rather than just ensuring that people received foodgrains.

This approach towards food security has unfortunately been abandoned in the National Food Security Act 2013, where the emphasis is on just giving foodgrains to the poor at highly subsidised rates. The Act has been rightly criticised for concentrating only on food entitlements and ignoring integral aspects of food security such as the non-food elements of nutrition, security of small farmers, protection of livelihoods, control of resources by people, etc.

VII. Environmental Jurisprudence and Article 21

In the matter of environment cases, the right to life has been read by the courts in two ways—first, a right to a clean environment has been read to be implicit in Article 21, 109 and secondly, the concept of ‘sustainable development’ has been firmly recognised through a combined reading of Article 21 along with provisions of the Constitution, statutory obligations, and international instruments. 110 The usual practice of the courts has been to enforce environmental statutory obligations of the State, and also award compensation for rights infringement.

In Indian Council for Enviro-Legal Action , the Court held that the failure of authorities to carry out their statutory duty to regulate pollution of soil and underground water constituted violation of the right to life of affected persons. 111 In the Oleum Gas Leak case, the Court recognised the ‘polluter pays principle’ and established the principle of absolute liability of enterprises that engaged in hazardous or inherently dangerous activity. 112

In Vellore Citizens’ Welfare Forum, the Court unpacked the concept of sustainable development, reading Article 21 together with the DPSPs in Articles 47, 48A, the fundamental duty enumerated in 51A(g), as well as various environmental legislation to hold that the ‘precautionary principle’ and the ‘polluter pays principle’ were two facets of sustainable development. 113 In MC Mehta v Kamal Nath , the Court expanded the principle of sustainable development to include the ‘public trust doctrine’, which enjoins the State to act as a trustee of the natural resources meant for public use. 114

The Court has held sustainable development to be a balancing concept between ecology and development. 115 Where an imbalance is alleged, the Court would have to assess rival claims on the basis of scientific and technical reports and with reference to the environment regulations. This necessarily involves taking executive decisions and legislative policymaking through the method of judicial review, and the SC has adopted this activist approach numerous times. 116 For instance, in Vedanta , 117 the Court revoked the permission of a controversial mining company to mine bauxite in the Niyamgiri Hills, citing the lack of a definite fillip to local jobs as well as the low credibility of the mining company as prominent reasons for refusal of permission. It is to be noted that the company had otherwise obtained all requisite clearances.

However, a completely different approach has been on display by the Court in cases relating to development projects. Here, the SC’s approach has been of non-interference on the ground that the issues raised in such cases require technical expertise and involve legislative policymaking and as such, are out of the purview of the Court. 118 In cases concerning the Tehri Hydroelectric Project, Konkan Railways, or the Sardar Sarovar Dam, judicial restraint was advocated by an appeal to the ideal of separation of powers. 119 In Narmada Bachao Andolan , 120 the SC declined to examine the environmental impact of the dam and restricted the petition to the matter of rehabilitation. 121

These cases illustrate that the Court does not regard ‘separation of powers’ as an ideal to uphold consistently. One explanation is that it is easier to make a prima facie case for the environment based on facts and reports than it is to decide between competing claims of national interest and ecological sustenance. 122 But that can hardly account for the courts’ active promotion of infrastructure and development projects where the ecological stakes enter the courtroom already diminished by a development rhetoric that pervades globalising India.

It is suggested that much confusion arises from a lack of coherence on sustainable development and the constitutional contour given to it. Which interests could be fed into its matrix and what weights shall be attached to these interests? A framework that sets no normative limits on the extent of ecology preservation or that of development compounds the risks on the former. 123 Moreover, an incomplete articulation of the principles within sustainable development makes other rights susceptible to perceived development interests. A judicial engagement with these questions could possibly transform ‘sustainable development’ into a tool of immense objective application.

VIII. Evaluating the Judicial Discourse

Before reflecting on the jurisprudence around Article 21, there are larger structural issues with the development of ‘right to life and personal liberty’ jurisprudence that need to be addressed.

1. Restriction and Deprivation: The Burden on the State

As is evident from the discussion of specific rights, the ‘right to life and personal liberty’ now captures within it a very wide gamut of rights. How are we to conceptually understand these rights in terms of the claims made by persons and the burden the State must discharge to justify infringement or a violation in this context? Do all these rights identified and developed under the Article 21 occupy the same constitutional significance and position? Essential to this discussion is a point that has received scant attention in the interpretation of Article 21, and it concerns the interpretation of the word ‘deprived’. This issue finds place in the opinions rendered in Gopalan , but is largely lost thereafter. This strand of the discussion holds significant potential to provide structural and substantive coherence to the meaning of ‘right to life and personal liberty’. While Article 19 permits reasonable ‘restrictions’, the question that arises is whether there is a difference between a right being ‘deprived’ and a right being ‘restricted’. Are we to treat all kinds of impact on Article 21 arising from State action in the same way and subject them to the same level of scrutiny?

The burden on the State should vary with the extent of the infringement, depending on whether it is a ‘restriction’ or a ‘deprivation’. However, the judicial development of Article 21 so far has very little to offer on this. The problem that arises with not undertaking that exercise is that we end up with treating all infringements, irrespective of their extent, alike and subjecting the State to the same burden across the board.

2. Hierarchy of Rights?

Given the sheer breadth of rights being read into Article 21, it is evident that the same level of justification for infringement by the State for all rights recognised by the Court end up being problematic. Das J’s opinion in Gopalan engages with the idea of a hierarchy of rights. For Das J, at the very top of this hierarchy falls the right to life, which means the right to not have one’s life taken except in accordance with law. Then comes the right to the freedom of the person, the right against restraint or coercion of the physical body except according to law. These are the primary rights attached to a person, after which come the auxiliary rights that are attributes of the freedom of the person and are also attached to the person, including, but not limited to, Article 19 rights. Even within the auxiliary rights, Das J seems to accept the existence of a hierarchy where Article 19 rights would fall above the other auxiliary rights since they are more fundamental.

One may not entirely agree with Das J’s conceptualisation, particularly on the point that it has no place for socio-economic rights. But the point to be discussed is whether all rights being recognised and enforced under Article 21 must be protected to the same extent in terms of the burden to be discharged by the State. 124 At the risk of simplifying the issues, the question is whether the ‘right to sleep’ deserves the same level of protection as the right against torture. This discussion is important because one gets the sense that the expansion of the scope of Article 21 has resulted in a diluted standard of review for what we might consider core Article 21 rights (whatever they might be). Judicial deference in anti-terror law cases is one such worrying trend. In cases examining the validity of TADA and POTA, the mere invocation of the national security justification seems to be sufficient to meet the burden of the State. Even though the level of protection afforded to Article 21 rights post- Maneka is certainly higher than the Gopalan phase, one questions the appropriateness of the ‘reasonableness’ standard for the wide range of rights that Article 21 currently covers.

3. Developing Content of ‘Right to Life and Personal Liberty’

The use of dignity and the ‘right-to-life-is-more-than-mere-animal-existence’ framework have not been used in a manner to lend any sense of coherence to the content of rights in Article 21. When these frameworks have been used to recognise rights, it has largely been a bald assertion on a case-by-case basis, rather than any attempt to justify the recognition of a right by placing it in any normative framework. The problem with the current approach of the Court is that it leaves the Court with absolute discretion on which rights claims it will recognise, or rather more importantly, which ones it will not. And this issue manifests itself across the different segments discussed above. We see a total absence of the dignity discussion in anti-terror cases, despite foundational infringement of criminal justice protections. The Court’s arguments, while upholding the validity of criminalising the attempt to suicide and overruling the Delhi High Court’s judgment reading down Section 377, are also strong examples of the problems facing the dignity discourse under Article 21. In essence, it breaks down into whatever any judge says it is. Further, the selective application of the dignity framework in the socio-economic rights discourse is also apparent. In cases concerning the right to housing and shelter of slum and pavement dwellers, the Court’s use of dignity does not translate into any meaningful recognition of their rights, much less any protection. It also finds a curious manifestation in the Article 21 cases relating to the environment. In the context of big dams and infrastructure projects, the Court has been unable to achieve consistency on the weight it will assign to the impact on the project-affected groups. The very use of dignity in terms of when it is invoked, and also the manner in which it is used, does not present a picture of principled adjudication.

This use of dignity by the courts is not peculiar to India. Internationally, ‘dignity’ has been fraught with a conceptual open-endedness that has reduced it to a ‘rhetorical flourish’, contributing to judicial confusion. 125 A comparative analysis of the use of dignity with respect to South Africa and Canada suggests competing understandings of ‘dignity’. On the one hand, it is articulated as respecting individual autonomy, while on the other, it has been understood as mandating protection of people’s needs. 126 However, one must ask whether its nebulous conception must necessarily hinder a fundamental commitment to respecting human dignity. As McCrudden argues, ‘dignity’ offers a universally agreeable principle to recognise the worth of all persons and can thus be seen as a ‘place holder’ for furthering human rights. 127 To that extent the normative commitment of courts in India towards dignity has at the very least enabled the expansion of the ‘right to life and personal liberty’. However, the problem persists in the absence of a coherent understanding of ‘dignity’ to give content to Article 21 rights.

IX. Conclusion

I do believe that it is an important project to revisit the impact of Maneka on Article 21. For far too long now we have been viewing the importance of Maneka for Article 21 in the light of the ruling in Gopalan . Though the argument is obviously not to return to the Gopalan position, the call is for us to interrogate whether Maneka goes far enough to provide effective protection to the content of right to life and personal liberty. In its very conception, the ‘reasonableness’ review is not ideal to protect the core of Article 21 rights. The task of identifying the core, in terms of civil-political, socio-economic, and environmental rights, is an important one that requires clear normative foundations. The SC has regrettably not developed the normative foundations of Article 21, be it the use of dignity or the repeated invoking of the Munn v Illinois extract about life being more than animal existence, towards recognising penumbral rights. The process of deciding whether an action or inaction of the State amounts to a violation of the right to life and personal liberty increasingly seems to resemble Potter Stewart J’s ‘I-know-it-when-I-see-it’ test for obscenity.

AK Gopalan v State of Madras AIR 1950 SC 27.

AK Gopalan (n 1 ) [58].

AK Gopalan (n 1 ) [14].

Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248.

Rustom Cavasjee Cooper (n 4 ) [52].

Maneka Gandhi v Union of India (1978) 1 SCC 248.

PK Tripathi , ‘The Fiasco of Overruling AK Gopalan’ AIR 1990 (Jour) 1, 6 .

B Errabbi , ‘The Right to Personal Liberty in India: Gopalan Revisited with a Difference’ in MP Singh (ed) Comparative Constitutional Law (Eastern Book Company 2011) .

(1976) 2 SCC 521.

Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295.

Gobind v State of Madhya Pradesh (1975) 2 SCC 148.

Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608.

Kharak Singh (n 10 ) [15].

Kharak Singh (n 10 ) [13].

94 US 113 (1877).

Maneka Gandhi (n 6 ) [29].

Francis Coralie Mullin (n 12 ).

Francis Coralie Mullin (n 12 ) [8].

People’s Union for Democratic Rights v Union of India (1982) 3 SCC 235.

Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545.

Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161.

Mohini Jain v State of Karnataka (1992) 3 SCC 666.

Sunil Batra v Delhi Administration (1978) 4 SCC 494.

Prem Shankar Shukla v Delhi Administration (1980) 3 SCC 526.

DK Basu v State of West Bengal (1997) 1 SCC 416.

Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act 2013.

Safai Karamchari Andolan v Union of India 2014 SCC OnLine SC 262.

Sunil Batra (II) v Delhi Administration (1980) 3 SCC 488.

Sunil Batra (n 25 ) [197-A].

Prem Shankar Shukla (n 26 ) [25].

State of Maharashtra v Ravikant S Patil (1991) 2 SCC 373 [3].

See Khatri (IV) v State of Bihar (1981) 2 SCC 493; Khatri (II) v State of Bihar (1981) 1 SCC 627; People’s Union for Democratic Rights v Police Commissioner, Delhi Police Headquarters (1989) 4 SCC 730; Nilabati Behera v State of Orissa (1993) 2 SCC 746.

Dr Upendra Baxi v State of Uttar Pradesh (1986) 4 SCC 106.

Hussainara Khatoon (I) v Home Secretary, State of Bihar (1980) 1 SCC 81; Hussainara Khatoon (II) v State of Bihar (1980) 1 SCC 91; Hussainara Khatoon (III) v State of Bihar (1980) 1 SCC 93; Hussainara Khatoon (IV) v State of Bihar (1980) 1 SCC 98.

Hussainara Khatoon (IV) (n 36 ).

Hussainara Khatoon (IV) (n 36 ) [7].

Khatri (II) (n 34 ).

Suk Das v Union Territory of Arunachal Pradesh (1986) 2 SCC 401.

Suk Das (n 40 ) [6].

Madhav Hayawadanrao Hoskot v State of Maharashtra (1978) 3 SCC 544.

Nandini Satpathy v PL Dani (1978) 2 SCC 424.

Sheela Barse v State of Maharashtra (1983) 2 SCC 96.

Mohammad Ghouse , ‘State Lawlessness and the Constitution: A Study of Lock-up Deaths’ in MP Singh (ed) Comparative Constitutional Law (Eastern Book Company 2011) 488 .

Legal Services Authorities Act 1987, s 12.

Jagmohan Singh v State of Uttar Pradesh (1973) 1 SCC 20.

The majority cited Constitution of India 1950, arts 72(1)(c), 72(3), and 134, as well as art 21 itself. Jagmohan Singh (n 47 ) [12].

408 US 238 (1972).

Bachan Singh v State of Punjab (1980) 2 SCC 684.

Ravji v State of Rajasthan (1996) 2 SCC 175.

Santosh Kumar Satishbhushan Bariyar v State of Maharashtra (2009) 6 SCC 498.

Sangeet v State of Haryana (2013) 2 SCC 452.

Deena v Union of India (1983) 4 SCC 645.

Deena (n 55 ) [80].

Shatrughan Chauhan v Union of India (2014) 3 SCC 1.

Shatrughan Chauhan (n 57 ) [61].

Shatrughan Chauhan (n 57 ) [241].

Devendar Pal Singh Bhullar v State (NCT of Delhi) (2013) 6 SCC 195.

P Rathinam v Union of India (1994) 3 SCC 394.

Gian Kaur v State of Punjab (1996) 2 SCC 648.

P Rathinam (n 61 ) [31].

Gian Kaur (n 62 ) [22].

Aruna Ramachandra Shanbaug v Union of India (2011) 4 SCC 454.

Armed Forces Special Powers Act 1958, ss 3, 4(c), 4(a).

Terrorist and Disruptive Activities Act 1987, ss 20(4)(b), 20(8), 15(1), 16(2).

Naga People’s Movement of Human Rights v Union of India (1998) 2 SCC 109.

Kartar Singh v State of Punjab (1994) 3 SCC 569.

People’s Union for Civil Liberties v Union of India (2004) 9 SCC 580.

For an opposing perspective, refer to Richard Posner , Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press 2006) .

Michel Rosenfeld , ‘Judicial Balancing in Times of Stress: A Comparative Constitutional Perspective’ in Andrea Bianchi and Alexis Keller (eds) Counterterrorism: Democracy’s Challenge (Hart Publishing 2008) 357–94 .

For a comparative perspective on the levels of responses to counterterrorism measures offered by national courts through judicial review, refer to Eyal Benvenisti , ‘United We Stand: National Courts Reviewing Counterterrorism Measures’ in Andrea Bianchi and Alexis Keller (eds) Counterterrorism: Democracy’s Challenge (Hart Publishing 2008) 251–76 .

Naga People’s Movement of Human Rights (n 68 ) [46].

Kartar Singh (n 69 ) [258], [259].

Kartar Singh (n 69 ) [397].

(2009) 160 DLT 277.

(2014) 1 SCC 1.

Vikram Raghavan , ‘Navigating the Noteworthy and Nebulous in Naz Foundation’ (2009) 2 NUJS Law Review 397, 398, 403

See Naz Foundation (n 77 ) [26], [48].

Kharak Singh (n 10 ); Gobind (n 11 ); Mr X v Hospital Z (1998) 8 SCC 296; Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1.

(2014) 5 SCC 438.

National Legal Services Authority (n 83 ) [73].

National Legal Services Authority (n 83 ) [75].

National Legal Services Authority (n 83 ) [74].

Mohini Jain (n 24 ).

Mohini Jain (n 24 ) [14].

Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645.

Unni Krishnan (n 89 ) [54].

Unni Krishnan (n 89 ) [171]

Right of Children to Free and Compulsory Education Act 2009, s 12.

Society for Unaided Private Schools of Rajasthan v Union of India (2012) 6 SCC 1.

Pramati Educational and Cultural Trust v Union of India (2014) 8 SCC 1.

Parmanand Katara v Union of India (1989) 4 SCC 286.

Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37.

Sahara House v Union of India , Writ Petition (C) 535 of 1998, order dated 16 December 2010.

Social Jurists v Govt of NCT of Delhi (2007) 140 DLT 698.

For international and comparative law perspectives on the right to housing, see Jessie Hohmann , The Right to Housing: Law, Concepts, Possibilities (Hart Publishing 2013) .

Olga Tellis (n 22 ).

(1997) 11 SCC 121.

Chameli Singh v State of Uttar Pradesh (1996) 2 SCC 549.

Shantistar Builders v Narayan Khimalal Totame (1990) 1 SCC 520.

PG Gupta v State of Gujarat (1995) Supp (2) SCC 182.

See Usha Ramanathan , ‘Demolition Drive’ (2005) 40(23) Economic and Political Weekly 2908 .

Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan (1997) 11 SCC 121 [32].

People’s Union for Civil Liberties v Union of India , Writ Petition (C) 196 of 2001, order dated 28 November 2001.

Virender Gaur v State of Haryana (1995) 2 SCC 577; Re Noise Pollution (V) (2005) 5 SCC 733.

Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212; Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647; MC Mehta v Kamal Nath (1997) 1 SCC 388.

Indian Council for Enviro-Legal Action (n 110 ) [54].

MC Mehta v Union of India (1987) 1 SCC 395.

Vellore Citizens’ Welfare Forum (n 110 ) [13]–[14].

MC Mehta (n 110 ) [34].

‘The traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer.’ Vellore Citizens’ Welfare Forum (n 110 ) [10].

State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC 363; S Jagannath v Union of India (1997) 2 SCC 87; MC Mehta v Union of India (1997) 2 SCC 353; MC Mehta v Union of India (1998) 6 SCC 63; Intellectuals Forum v State of Andhra Pradesh (2006) 3 SCC 549; TN Godavarman Thirumulpad v Union of India (2008) 2 SCC 222; Videh Upadhyay , ‘Changing Judicial Power: Courts on Infrastructure Projects and Environment’ (2000) 35(43/44) Economic and Political Weekly 3789 .

TN Godavarman Thirumulpad (n 116 ).

Nivedita Menon , ‘Environment and the Will to Rule’ in Mayur Suresh and Siddharth Narrain (eds) The Shifting Scales of Justice (Orient Blackswan 2014) .

Upadhyay (n 116 ) .

Narmada Bachao Andolan v Union of India (2000) 10 SCC 664.

‘In respect of public projects and policies which are initiated by the Government the Courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration.’ Narmada Bachao Andolan (n 120 ) [234].

As Nivedita Menon argues, this is akin to taking a very instrumental view of the environment, where environment is just fodder for development. Menon (n 118 ) .

The idea of a pyramidal structure within Article 21 has found recent traction with the SC in Mohd Arif v The Registrar, Supreme Court of India Writ Petition (Crl) No 77/2014 [36] (Nariman J).

Conor O’Mahony , ‘There is No Such Thing as a Right to Dignity’ (2012) 10 International Journal of Constitutional Law 551–52 .

Rory O’Connell , ‘The Role of Dignity in Equality Law: Lessons from Canada and South Africa’ (2008) 6 International Journal of Constitutional Law 267, 285 .

Christopher McCrudden , ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655 .

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Article 21: Understanding The Right to Life and Personal Liberty from Case Laws-Academike Explainer

Article 21 (and its many interpretations) is the perfect example of the transformative character of the Constitution of India. The Indian judiciary has attributed wider connotation and meaning to Article 21, extending beyond the Constitution makers’ imagination. These meanings derived from the ‘right to life’ present unique complexities. It is impossible to understand the expansive jurisprudence on Article 21 within the length of this piece. Therefore, Riya Jain understands the various components of freedom that stem from the ‘right to life’. She presents a straightforward and comprehensive explainer on the case laws that have interpreted the right.

By Riya Jain, UILS Panjab University.

*The piece was first published by Riya in 2015, this is the updated form. 

Introduction of Article 21

Article 21 of Indian constitution reads:

“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

In Francis Coralie Mullin vs The Administrator (1981), Justice P. Bhagwati had said that Article 21 ’embodies a constitutional value of supreme importance in a democratic society’. Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of life and liberty’.

Article 21 is at the heart of the Constitution . It is the most organic and progressive provision in our living Constitution. Article 21 can only be claimed when a person is deprived of his ‘life or ‘personal liberty’ by the ‘State’ as defined in Article 12. Thus, violation of the right by private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1)  Right to life, and

2) Right to personal liberty.

It prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

It is also fundamental to democracy as it extends to natural persons and not just citizens. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner to the right to reside and settle in India, as mentioned in Article 19 (1) (e).

This Article is an all tell for Article 21. The first part will understand the meaning and concept of ‘right to life’ as understood by the judiciary. Further, the piece will lay out how several violations of the body, reputation and equality have been understood and brought under the purview of the right to life and the right to live with dignity.

Meaning, Concept and Interpretation of ‘Right to Life’ under Article 21

‘Everyone has the right to life, liberty and the security of person.’

The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India , 1950 provides,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider, including, including the right to live with human dignity, Right to livelihood, Right to health, Right to pollution-free air, etc.

The right to life is fundamental to our very existence, without which we cannot live as human beings and includes all those aspects of life, which make a man’s life meaningful, complete, and worth living. It is the only Article in the Constitution that has received the broadest possible interpretation. Thus, the bare necessities, minimum and basic requirements for a person from the core concept of the right to life.

In Kharak Singh v. State of Uttar Pradesh [i] , the Supreme Court quoted and held:

By the term ‘life’ as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

In Sunil Batra v. Delhi Administration [ii] , the Supreme Court approved the above observations. It held that the ‘right to life’ included the right to lead a healthy life to enjoy all faculties of the human body in their prime conditions. It would even include the right to protect a person’s tradition, culture, heritage and all that gives meaning to a man’s life. In addition, it consists of the Right to live and sleep in peace and the Right to repose and health.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India [iii] , the Supreme Court gave a new dimension to Art. 21. The Court held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi [iv]  observed:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

Another broad formulation of life to dignity is found in Bandhua Mukti Morcha v. Union of India [v] . Characterising Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. “These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”

Following the above-stated cases, the Supreme Court in Peoples Union for Democratic Rights v. Union of India [vi] , held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.

Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under various labour laws are intended to ensure basic human dignity to workers. He held that the non-implementation by the private contractors engaged for constructing a building for holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21 [vii] .

In Chandra Raja Kumar v. Police Commissioner Hyderabad [viii] , it has been held that the right to life includes the right to live with human dignity and decency. Therefore, keeping of beauty contest is repugnant to the dignity or decency of women and offends Article 21 of the Constitution only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. Therefore, the government is empowered to prohibit the contest as objectionable performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan [ix] , the Court struck down a provision of Bombay Civil Service Rules, 1959. Thi provision provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended government servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution.

Right Against Sexual Harassment at Workplace

Sexual harassment of women has been held by the Supreme Court to be violative of the most cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

“The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse. “

The above statement by Justice Verma in the famous Vishakha judgment liberalised the understanding of Article 21. Therefore, making it even more emancipatory.

In Vishakha v. State of Rajasthan [x] , the Supreme Court declared sexual harassment at the workplace to violate the right to equality, life and liberty. Therefore, a violation of Articles 14, 15 and 21 of the Constitution.

In this case, in the absence of a relevant law against sexual harassment, the Supreme Court laid down the following guidelines to ensure gender parity in the workplace:

This meant that all employers or persons in charge of the workplace, whether in the public or private sector, should take appropriate steps to prevent sexual harassment.

• Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated inappropriate ways.
• The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers steps should be taken to include the prohibitions above in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided for work, leisure, health, and hygiene to ensure that there is no hostile environment towards women at workplaces. No employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
• Where such conduct amounts to specific offences under IPC or under any other law, the employer shall initiate appropriate action by making a complaint with the appropriate authority.
• The victims of Sexual harassment should have the option to seek the transfer of the perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra [xi] , the Supreme Court reiterated the Vishakha ruling and observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India…. “In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated….”

Understanding Article 21 Through Against Sexual Assault and Rape 

Rape has been held to be a violation of a person’s fundamental life guaranteed under Article 21. Therefore, the right to life would include all those aspects of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty [xii] , the Supreme Court observed:

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.

Right to Reputation and Article 21

Reputation is an essential part of one’s life. It is one of the finer graces of human civilisation that makes life worth living. The Supreme Court referred to D.F. Marion v. Minnie Davis [xiii] in Smt. Kiran Bedi v. Committee of Inquiry [xiv] . It said:

“good reputation was an element of personal security and was protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The Court affirmed that the right to enjoyment of life, liberty, and property. The Court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to human society.”

The same American decision has also been referred to in State of Maharashtra v. Public Concern of Governance Trust [xv]. The Court held that good reputation was an element of personal security and was protected by the Constitution, equally with the right to enjoy life, liberty and property.

It has been held that the right equally covers a person’s reputation during and after his death. Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person would undoubtedly come under the scope of Article 21.

State of UP v. Mohammaad Naim [xvi] succinctly laid down the following tests while dealing the question of expunction of disgracing remarks against a person or authority whose conduct comes in consideration before a court of law. These are:

• whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself.
• whether there is evidence on record bearing on that conduct justifying the remarks.
• Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct, it has also been recognised that judicial pronouncements must be judicial. It should not normally depart from sobriety, moderation, and reserve.

In State of Bihar v. Lal Krishna Advani [xvii] , a two-member commission got appointed to inquire into the communal disturbances in the Bhagalpur district on  October 24, 1989. The commission made certain remarks in the report, which impinged upon the respondent’s reputation as a public man without allowing him to be heard. The Apex Court ruled that it was amply clear that one was entitled to have and preserve one’s reputation, and one also had the right to protect it.

The Court further said that if any authority, in the discharge of its duties fastened upon it under the law, transverse into the realm of personal reputation adversely affecting him, it must provide a chance to have his say in the matter. Finally, the Court observed that the principle of natural justice made it incumbent upon the authority to allow the person before any comment was made or opinion was expressed, likely to affect that person prejudicially.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include the right to livelihood. In Re Sant Ram [xviii] , a case arose before the Maneka Gandhi case, where the Supreme Court ruled that the right to livelihood would not fall within the expression ‘life’ in Article 21. The Court said curtly:

“The Right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view changed. The definition of the word ‘life’ in Article 21 was read broadly. The Court, in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni [xix] , came to hold that ‘the right to life’ guaranteed by Article 21 includes ‘the right to livelihood’.

The Olga Tellis v. Bombay Municipal Corporation [xx] , popularly known as the ‘Pavement Dwellers Case’, is important. Herein, a five-judge bench of the Court implied that the right to livelihood is borne out of the right to life. It said so as no person can live without the means of living, that is, the means of livelihood. The Court further observed:

“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”

If the right to livelihood is not treated as part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation [xxi] .

In the instant case, the Court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.”

Emphasising upon the close relationship of life and livelihood, the Court stated:

“That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life [xxii] .”

Article 21 does not place an absolute embargo on the deprivation of life or personal liberty and, for that matter, on the right to livelihood. What Article 21 insists is that such lack ought to be according to procedure established by law which must be fair, just and reasonable. Therefore, anyone deprived of the right to livelihood without a just and fair procedure set by law can challenge such deprivation as being against Article 21 and get it declared void [xxiii] .

In DTC v. DTC Mazdoor Congress [xxiv] , the Court was hearing a matter where an employee was laid off by issuing a notice without any reason. The Court held that the same was utterly arbitrary and violative of Article 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd [xxv] , it was held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasised that a government servant does not have his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law which must be fair, just and reasonable and in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.

In Chameli Singh v. State of Uttar Pradesh [xxvi] , the SC held that the state acquired a landowner’s land following the procedure laid down in the relevant law of acquisition. So even though the right to livelihood of the landowner is adversely affected, it is not violated.

The Court opined that the state acquires land in exercising its power of eminent domain for a public purpose. The landowner is paid compensation in place of land. Therefore, the plea of deprivation of the right to livelihood under Art. 21 is unsustainable.

In M. J. Sivani v. State of Karnataka & Ors [xxvii] , the Supreme Court held that the right to life under Article 21 does protect livelihood. However, the Court added a rider that its deprivation could not be extended too far or projected or stretched to the recreation, business or trade detrimental to the public interest or has an insidious effect on public moral or public order.

The Court further held that regulating video games of pure chance or mixed chance and skill are not violative of Article 21, nor is the procedure unreasonable, unfair or unjust.

An important case that needs to be mentioned when speaking about the right to livelihood is MX of Bombay Indian Inhabitants v. M/s. ZY [xxviii].   In this case, the Court had held that a person could not be denied employment if they tested positive for HIV. And they cannot be rendered ‘medically unfit’ owing to the same. In interpreting the right to livelihood, the Court emphasised that the same couldn’t hang on to the fancies of the individuals in authority.

Is Right to Work a Fundamental Right under Article 21?

In Sodan Singh v. New Delhi Municipal Committee [xxix] , the five-judge bench of the Supreme Court distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)(g). Regarding the same, the Court held that the right to carry on trade or business is not included in the concept of life and personal liberty. Thus, Article 21 is not attracted in the case of trade and business.

The petitioners in the case were hawkers doing business off the paved roads in Delhi. They had claimed against the Municipal authorities who did not allow former to carry out their business. The hawkers claimed that the refusal to do so violated their Right under Article 21 of the Constitution.

The Court opined that the petitioners had a fundamental right under Article 19(1) (g) to carry on trade or business of their choice. However, they had no right to do so in a particular place. Hence, they couldn’t be permitted to carry on their trade on every road in the city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking may be permitted at all or permitted once a week.

The Court also held that footpaths, streets or roads are public property intended to several general public and are not meant for private use. However, the Court said that the affected persons could apply for relocation and the concerned authorities were to consider the representation and pass orders thereon. Therefore, the two rights were too remote to be connected.

The Court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation [xxx]. In the case the Court held:

“in that case, the petitioners were very poor persons who had made pavements their homes existing in the midst of filth and squalor and that they had to stay on the pavements so that they could get odd jobs in the city. It was not the case of a business of selling articles after investing some capital.”

In Secretary, the State of Karnataka v. Umadevi [xxxi] , the Court rejected that right to employment at the present point of time can be included as a fundamental right under Right to Life under Art. 21.

Right to Shelter

In UP Avas Vikas Parishad v. Friends Coop. Housing Society Limited [xxxii] , the right to shelter has been held to be a fundamental right which springs from the right to residence secured under Article 19(1)(e) and the right to life guaranteed under Article 21. The state has to provide facilities and opportunities to build houses to make the right meaningful for the poor. [xxxiii] .

Upholding the importance of the right to a decent environment and a reasonable accommodation in Shantistar Builders v. Narayan Khimalal Totame [xxxiv] , the Court held:

“The Right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.

The Court advanced:

“For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U P [xxxv] , a three-judge bench of the Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen. And the same was read into Article 21 of the Constitution. Thus, ‘right to shelter’ was considered encompassing the right to life, making the latter more meaningful. The Court advanced:

“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being [xxxvi] .”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of the family. K. Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose [xxxvii] , held that right to social and economic justice is a fundamental right under Art. 21. The learned judge explained:

“right to life and dignity of a person and status without means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning the right to life and that Right to Social Security and Protection of Family were an integral part of the right to life.”

In NHRC v. State of Arunachal Pradesh [xxxviii]  (Chakmas Case), the SC said that the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise. Further, it cannot permit anybody or a group of persons to threaten another person or group of persons. No state government worth the name can tolerate such threats from one group of persons to another group of persons. Therefore, the state is duty-bound to protect the threatened group from such assaults. If it fails to do so, it will fail to perform its constitutional as well as statutory obligations.

In  Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde [xxxix] , it was held that the right to economic empowerment of poor, disadvantaged and oppressed Dalits was a fundamental right to make their right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa [xl] , the Supreme held that security against sickness and disablement was a fundamental right under Article 21 read with Section 39(e) of the Constitution of India.

In LIC of India v. Consumer Education and Research Centre [xli] , it was further held that right to life and livelihood included right to life insurance policies of LIC of India, but that it must be within the paying capacity and means of the insured.

Further, Surjit Kumar v. State of UP. [xlii] is a crucial case that reads Article 21 as extending protection against honour killing.  In the case, a division bench of Allahabad high court took serious note on harassment, ill-treatment, and killing of a person for wanting to get married to a person of another caste or community. The accused justified the harassment and killing, claiming that the victim had brought dishonour to the family. The Court said that such a practice of ‘honor killing’ was a blot on society and inter-caste marriage was not against the law. Therefore, the Court directed the police to take strong measures against the accused.

Right to Health and Medical Care

In State of Punjab v. M.S. Chawla [xliii] , it was held that the right to life guaranteed under Article 21 includes within its ‘ambit the right to health and medical care’.

In Vincent v. Union of India , [xliv] the Supreme Court   emphasised that a healthy body is the very foundation of all human activities. Further, Article 47, a Directive Principle of State Policy, lays stress note on the improvement of public health and prohibition of drugs detrimental to health as one of the primary duties of the state [xlv] .

In Consumer Education and Research Centre v. Union of India [xlvi] , the Supreme Court laid down:

“Social justice which is a device to ensure life to be meaningful and livable with human dignity requires the state to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilised living. The health and strength of worker, the Court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”

In Parmananda Katara v. Union of India [xlvii] , the Supreme Court has very specifically clarified that preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost, status quo ante cannot be restored’. [xlviii] It was held that it is the professional obligation of all doctors (government or private) to extent medical aid to the injured immediately to preserve life without legal formalities to be complied with by the police.

Article 21 casts the obligation on the state to preserve life. It is the obligation of those in charge of the community’s health to protect life so that the innocent may be protected and the guilty may be punished. No law can intervene to delay and discharge this paramount obligation of the members of the medical profession.

The Court also observed:

“Art. 21 of the Constitution cast the obligation on the state to preserve life. The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment…. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.”

This link between the right to medical care and health and Article 21 played out most vividly during the pandemic. Especially since the state couldn’t manage the crisis and many people were left to fend for themselves.

To read about the right to health and Article 21, click here

Coming back to understanding the right to medical care pre-covid era, another case that understands this interlink better is Paschim Banga Khet Mazdoor Samity v. State of West Bengal. [xlix] In this case, a person suffering from severe head injuries from a train accident was refused treatment at various hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide treatment.

Through this case, the Supreme Court developed the right to emergency treatment. The Court went on to say that the failure on the part of the government hospital to provide timely medical treatment to a person in need of such treatment results in the violation of his right to life guaranteed under Article 21.

It acknowledged the limitation of financial resources to give effect to such a right. Still, it maintained that the state needed to provide for the resources to give effect to the people’s entitlement of receiving emergency medical treatment [l] .

It has been reiterated, time and again, that there should be no impediment to providing emergency medical care. Again, in Pravat Kumar Mukherjee v. Ruby General Hospital & Others [li] , it was held that a hospital is duty-bound to accept accident victims and patients who are in critical condition and that it cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the expenses or on the ground that there is no close relation of the victim available who can give consent for medical treatment [lii] .

The Court has laid stress on a crucial point, viz., the state cannot plead lack of financial resources to carry out these directions meant to provide adequate medical services to the people. The state cannot avoid its constitutional obligation to provide adequate medical assistance to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga [liii] , the Supreme Court recognised that provision of health facilities could not be unlimited. The Court held that it has to be to the extent finance permits. No country has unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India [liv] , the right to get free and timely legal aid or facilities was not held as a fundamental right of ex-servicemen. Therefore, a policy decision in formulating a contributory scheme for ex-servicemen and asking them to pay a one-time contribution does not violate Art. 21, nor is it inconsistent with Part IV of the Constitution.

No Right to Die

While Article 21 confers on a person the right to live a dignified life, does it also confers a right to a person to end their life? If so, then what is the fate of Section 309 Indian Penal Code (1860), which punishes a person convicted of attempting to commit suicide? There has been a difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held that the right to life guaranteed under Article 21 includes the right to die. The Hon’ble High Court struck down Section 309 of the IPC that provides punishment for an attempt to commit suicide on a person as unconstitutional.

In P. Rathinam v. Union of India [lv] , a two-judge Division Bench of the Supreme Court took cognisance of the relationship/contradiction between Section 309 IPC and Article 21. The Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Article 21 also embodied in it a right not to live a forced life, to his detriment, disadvantage or disliking.

The Court argued that the word life in Article 21 means the right to live with human dignity, and the same does not merely connote continued drudgery. Thus the Court concluded that the right to live of which Article 21 speaks could bring in the right not to live a forced life. The Court further emphasised that an ‘attempt to commit suicide is, in reality, a cry for held and not for punishment’.

The Rathinam ruling came to be reviewed by a full bench of the Court in Gian Kaur v. State of Punjab [lvi] . The question before the Court was:  if the principal offence of attempting to commit suicide is void as unconstitutional vis-à-vis Article 21, then how abetment can thereof be punishable under Section 306 IPC?

It was argued that ‘the right to die’ had been included in Article 21 (Rathinam ruling) and Sec. 309 declared unconstitutional. Thus, any person abetting the commission of suicide by another is merely assisting in enforcing his fundamental Right under Article 21.

The Court overruled the decision of the Division Bench in the above-stated case and has put an end to the controversy and ruled that Art.21 is a provision guaranteeing the protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in the protection of life. The Court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”

However, in this regard, in 2020, the Supreme Court had sought a response from the central government. The Court had asked the center to explain its stance on the conflict between Section 309 and the Mental Healthcare Act, promulgated in 2017 (MHCA). As opposed to Section 309, which criminalises attempts to suicide, the MHCA proscribes prosecution of the person attempting it. Given that the Section is colonial legislation, many have vocalised to do away with the same altogether. Additionally, in 2018, in a 134-page-long judgment, Justice DY Chandrachud said it was ‘inhuman’ to punish someone who was already distressed .

Euthanasia and Right to Life

Euthanasia is the termination of the life of a person who is terminally ill or in a permanent vegetative state. In Gian Kaur v. State of Punjab [lvii] , the Supreme Court has distinguished between Euthanasia and an attempt to commit suicide.

The Court held that death due to termination of natural life is certain and imminent, and the process of natural death has commenced. Therefore, these are not cases of extinguishing life but only of accelerating the conclusion of the process of natural death that has already started.

The Court further held that this might fall within the ambit of the right to live with human dignity up to the end of natural life. This may include the right of a dying man to also die with dignity when his life is ebbing out. However, this cannot be equated with the right to die an unnatural death curtailing the natural span of life.

Sentence of Death –Rarest of Rare Cases

The law commission of India has dealt with the issue of abolition or retention of capital punishment, collecting as much available material as possible and assessing the views expressed by western scholars. The commission recommended the retention of capital punishment in the present state of the country.

The commission held recognised the on-ground conditions of India. By that, it meant the difference in the social upbringing, morality and education, its diversity and population. Given all these factors, India could not risk the experiment of the abolition of capital punishment.

In Jagmohan v. State of U P [lviii] , the Supreme Court had held that the death penalty was not violative of Articles 14, 19 and 21. It was said that the judge was to make the choice between the death penalty and imprisonment for life based on circumstances, facts, and nature of crime brought on record during trial. Therefore, the choice of awarding death sentence was done in accordance with the procedure established by law as required under article 21

But, in Rajindera Parsad v. State of U.P. [lix] , Krishna Iyer J., speaking for the majority, held that capital punishment would not be justified unless it was shown that the criminal was dangerous to society. The learned judge plead for the abolition of the death penalty and said that it should be retained only for ‘white collar crimes’

However, in Bachan Singh v. State of Punjab [lx] , the leading case of on the question, a constitution bench of the Supreme Court explained that article 21 recognised the right of the state to deprive a person of his life in accordance with just, fair and reasonable procedure established by valid law. It was further held that the death penalty for the offence of murder awarded under section 302 of IPC did not violate the basic feature of the Constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar [lxi] , it has held that a Public Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the Constitution. The Court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of     the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”  

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not checked.

The following are some of the well-known cases on the environment under Article 21:

In M.C. Mehta v. Union of India (1988) [lxii] , the Supreme Court ordered the closure of tanneries polluting the water.

In M.C. Mehta v. Union of India (1997) [lxiii] , the Supreme Court issued several guidelines and directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation.

In Vellore Citizens Welfare Forum v. Union of India [lxiv] , the Court took cognisance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. As a result, the Court issued several directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan [lxv] , the Supreme Court held that the “right to life” means clean surroundings, which leads to a healthy body and mind. It includes the right to freedom from stray cattle and animals in urban areas.

In  M.C. Mehta v. Union of India (2006) [lxvi] , the Court held that the blatant and large-scale misuse of residential premises for commercial use in Delhi violated the right to a salubrious sand decent environment. Taking note of the problem, the Court issued directives to the government on the same.

In  Murli S. Deora v. Union of India [lxvii] , the persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of the act of sTherefore, rights. Right to Life under Article 21 is affected as a non-smoker may become a victim of someone smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution [lxviii] , the case was regarding noise pollution caused by obnoxious noise levels due to the bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of such noise-making crackers and observed that:

“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It guarantees the right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person’s life meaningful, complete and worth living. The human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet within his house has a right to prevent the noise as pollutant reaching him.”

Continued…

“No one can claim a right to create noise even in his own premises that would travel beyond his precincts and cause the nuisance to neighbors or others. Any noise, which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man, is nuisance…. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 [lxix] “.

Right to Know

Holding that the right to life has reached new dimensions and urgency the Supreme Court in RP Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the state.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link between Art.21 and the right to know, particularly where secret government decisions may affect health, life, and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who had been made responsible for protecting the environment had a right to know the government proposal.

Read more about right to know here .

Personal Liberty

The liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty. What can be more important than liberty? In India, the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognised as being essential to the orderly pursuit of happiness by free men.

The meaning of the term’ personal liberty’ was considered by the Supreme Court in Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary visits secret picketing.

Oddly enough, both the majority and minority on the bench relied on the meaning given to the term ‘personal liberty’ by an American judgment (per Field, J.,) in Munn v Illinois , which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which life was enjoyed.

This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorising domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional.

The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment

Right to Privacy and Article 21

Although not explicitly mentioned in the Constitution, the right to privacy was considered a ‘penumbral right’ under the Constitution, i.e. a right declared by the Supreme Court as integral to the fundamental right to life and liberty. After the KS Puttuswamy judgment, the right to privacy has been read and understood by the Court in various landmark judgments.

The Supreme Court has culled the right to privacy from Article 21 and other provisions of the Constitution, read with the Directive Principles of State Policy.

Although no single statute confers a crosscutting ‘horizontal’ right to privacy, various statutes had provisions that either implicitly or explicitly preserved this right . [lxx]

For the first time in Kharak Singh v. State of UP , [lxxi] the Court questioned whether the right to privacy could be implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the Court. “Surveillance” under Chapter XX of the UP Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to violate Article 21.  A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this Court in Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held that “an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilisation”

In a minority judgment, in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his ‘castle’; it is his rampart against encroachment on his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh [lxxii] , The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the Court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”

The Court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Mathew J. observed in the instant case,

“The Right to privacy will, therefore, necessarily, have to go through a process of case by case development.        Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them that one can characterise as a fundamental right, we do not think that the right is absolute….. …… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest.”

Scope and Content of Right to Privacy Pre-Puttaswamy Judgment

Read more about the right to privacy as part of Academike’s Constitutional Rights Series here

Tapping of Telephone

Emanating from the right to privacy is the question of tapping of the telephone.

In RM Malkani v. State of Maharashtra, the Supreme Court held that Courts would protect the telephonic conversation of an innocent citizen against wrongful or high handed’ interference by tapping the conversation. However, the protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885 . The Section lays down the circumstances and grounds when an order for tapping a telephone may be passed, but no procedure for making the order is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the Court issued procedural safeguards to be observed before restoring to telephone tapping under Section 5(2) of the Act.

The Court further ruled:

“right to privacy is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”. The Court has further ruled that Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The procedure has to be just, fair and reasonable.”

Disclosure of Dreadful Diseases

In Mr X v. Hospital Z [lxxv] , the question before the Supreme Court was whether the disclosure by the doctor that his patient, who was to get married had tested HIV positive, would be violative of the patient’s right to privacy.

The Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

The Court explained that the right to life of a lady with whom the patient was to marry would positively include the right to be told that a person with whom she was proposed to be married was the victim of a deadly disease, which was sexually communicable.

Since the right to life included the right to a healthy life to enjoy all the facilities of the human body in prime condition, it was held that the doctors had not violated the right to privacy.

Right to Privacy and Subjecting a Person to Medical Tests

It is well settled that the right to privacy is not treated as absolute and is subject to such action as may be lawfully taken to prevent crimes or disorder or protect health or morals or protection of rights and freedom of others. If there is a conflict between the fundamental rights of two parties, which advances public morality would prevail.

In the case Sharda v. Dharmpal [lxxvi] , a three-judge bench ruled that a matrimonial court had the power to direct the parties in a divorce proceeding to undergo a medical examination. A direction issued for this could not be held to violate one’s right to privacy. The Court, however, said that there must be sufficient material for this.

Right to Privacy: Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to refuse participation in the sexual activity or the insistence on using contraceptive methods such as undergoing sterilisation procedures. The woman’s entitlement to carry a pregnancy to its full term, to give birth subsequently raise children.

Right to Travel Abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi [lxxvii] , the Supreme Court has included the right to travel abroad contained in the expression “personal liberty” within the meaning of Article 21.

In Maneka Gandhi v. Union of India [lxxviii] , the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered the government to impound the passport of a person, in the interest of the general public, was challenged before the seven-judge Bench of the Supreme Court.

It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned Section didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.

The Court held that the procedure contemplated must stand the test of reasonableness in order to conform to Art.21 other fundamental rights. It was further held that the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding a passport under the Passport Act. Bhagwati, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that It must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Right against Illegal Detention

In  Joginder Kumar v. State of Uttar Pradesh [lxxix] , the petitioner was detained by the police officers and his whereabouts were not told to his family members for a period of five days. Taking serious note of the police high headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines governing arrest of a person during the investigation:

An arrested person being held in custody is entitled if he so requests to have a friend, relative or other person told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.

In the case of  DK. Basu v. State of West Bengal [lxxx] , the Supreme Court laid down detailed guidelines to be followed by the central and state investigating agencies in all cases of arrest and detention. Furthermore, the Court ordered that the guidelines be followed till legal provisions are made on that behalf as preventive measures. It also held that any form of torture or cruel, inhuman or degrading treatment, whether it occurs during interrogation or otherwise, falls within the ambit of Article 21.

Article 21 and Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not deprived of all the fundamental rights they otherwise possess by mere reason of their conviction. Following the conviction of a convict is put into jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21, and he shall not be deprived of his life and personal liberty except by a procedure established by law [lxxxi] .

In Maneka Gandhi v. Union of India , the Supreme Court gave a new dimension to Article 21. The Court has interpreted Article 21 to have the widest possible amplitude. On being convicted of a crime and deprived of their liberty following the procedure established by law. Article 21 has laid down a new constitutional and prison jurisprudence [lxxxii] .

The rights and protections recognised to be given in the topics to follow.

Right to Free Legal Aid & Right to Appeal

In  M.H. Hoskot v. State of Maharashtra [lxxxiii] , while holding free legal aid as an integral part of fair procedure, the Court explained:

“the two important ingredients of the right of appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise disabled from securing legal assistance. This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.”

In other words, an accused person, where the charge is of an offence punishable with imprisonment, is entitled to be offered legal aid if he is too poor to afford counsel. In addition, counsel for the accused must be given sufficient time and facility for preparing his defence. Breach of these safeguards of a fair trial would invalidate the trial and conviction.

Right to Speedy Trial

In  Hussainara Khatoon v. Home Secretary, State of Bihar [lxxxiv] , the Supreme Court observed that an alarming number of men, women and children were kept in prisons for years awaiting trial in courts of law.

The Court noted the situation and observed that it was carrying a shame on the judicial system that permitted incarceration of men and women for such long periods without trials.

The Court held that detention of undertrial prisoners in jail for a period more than what they would have been sentenced to if convicted was illegal. And the same violated Article 21. The Court ordered to release of undertrial prisoners who had been in jail for a longer period than the punishment meted out in case of conviction.

In  A.R. Antulay v. R.S. Nayak [lxxxv] , a Constitution Bench of five judges of the Supreme Court dealt with the question and laid down specific guidelines for ensuring speedy trial of offences some of them have been listed below [lxxxvi] :

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, appeal, revision, and retrial.

The concerns underlying the right of the speedy trial from the point of view of the accused are:

The period of remand and pre-conviction detention should be as short as possible.

The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

Undue delay may well result in impairment of the ability of the accused to defend him.

While determining whether the undue delay has occurred, one must regard all the attendant circumstances, including the nature of the offence, the number of accused and witnesses, and the Court’s workload concerned. Every delay does not necessarily prejudice the accused. An accuser’s plea of denial of the speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial

In the case of  Anil Rai v. State of Bihar [lxxxvii] , the Supreme Court directed the Judges of the High Courts to give quick judgments, and in certain circumstances, the parties are to apply to the Chief Justice to move the case to another bench or to do the needful at his discretion.

Right to Fair Trial

The free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in  Zahira Habibullah Sheikh v. State of Gujarat [lxxxviii] said that the right to free and fair trial to the accused and the victims, their family members, and relatives and society at large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day unsatisfactory and irrational rules for bail, which insists merely on financial security from the accused and their sureties. Many of the undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to languish in prisons awaiting their trials.

But incarceration of persons charged with non-bailable offences during the pendency of trial cannot be questioned as violative of Article 21 since the same is authorised by law. In Babu Singh v. State of Uttar Pradesh [lxxxix] , the Court held that the right to bail was included in the personal liberty under Article 21. Its refusal would be the deprivation of that liberty, which could be authorised in accordance with the procedure established by law.

Anticipatory bail is a statutory right, and it does not arise out of Article 21. Therefore, anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of Article 21.

Right Against Handcuffing

Handcuffing has been considered prima facie inhuman and therefore unreasonable, over-harsh and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.

In Prem Shankar v. Delhi Administration [xc] , the Supreme Court struck down the Rules that provided that every undertrial accused of a non-bailable offence punishable with more than three years prison term would be routinely handcuffed. Instead, the Court ruled that handcuffing should be resorted to only when there was “clear and present danger of escape” of the accused under  -trial, breaking out of police control.

Right Against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights, and his conviction does not reduce him into a non – person whose rights are subjected to the whims of the prison administration. Therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguard.

In Sunil Batra v. Delhi Administration [xci] , the petitioner was sentenced to death by the Delhi session court and his appeal against the decision was pending before the high Court. He was detained in Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement.

It was contended that Section 30 of the Prisoners Act does not authorise jail authorities to send him to solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law. Therefore, it could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the petitioner’s argument and held that the imposition of solitary confinement on the petitioner was violative of Article 21.

Right Against Custodial Violence

The incidents of brutal police behaviour towards persons detained on suspicion of having committed crimes are routine. There has been a lot of public outcry from time to time against custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under Article 21 secure life with human dignity and the same are available against torture.

Death by hanging is Not Violative of Article 21

In  Deena v. Union of India [xcii] , the constitutional validity of the death sentence by hanging was challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21.

The Court, in this case, referred to the Report of the UK Royal Commission, 1949, the opinion of the Director-General of Health Services of India, the 35 th Report of the Law Commission and the opinion of the Prison Advisers and Forensic Medicine Experts. Finally, it held that death by hanging was the best and least painful method of carrying out the death penalty. Thus, not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order, directed the execution of the death sentence of an accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity through the media.

On receipt of the above order, the Supreme Court in  Attorney General of India v. Lachma Devi [xciii] held that the direction for the execution of the death sentence was unconstitutional and violative of Article 21.

It was further made clear that death by public hanging would be a barbaric practice. Although the crime for which the accused has been found guilty was barbaric, it would be a shame on the civilised society to reciprocate the same. The Court said,

“a barbaric crime should not have to be visited with a barbaric penalty.”

Right Against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu [xcv] , the Supreme Court held that the delay in execution of a death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence be commuted to life imprisonment. The cause of the delay is immaterial. The accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab [xcvi] , the Supreme Court said that prolonged wait for the execution of a death sentence is an unjust, unfair and unreasonable procedure, and the only way to undo that is through Article 21.

But the Court held that this could not be taken as the rule of law and applied to each case, and each case should be decided upon its own facts.  

Procedure Established by Law and Article 21

The expression ‘procedure established by law’ has been the subject of interpretation in a catena of cases. A survey of these cases reveals that courts in judicial interpretation have enlarged the scope of the expression.

The Supreme Court took the view that ‘procedure established by law’ in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American ‘due process of law’.

But, in Maneka Gandhi v Union of India, the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be ‘right, just and fair’ and not ‘arbitrary, fanciful and oppressive’.

It also held that otherwise, it would be no procedure, and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration said:

“(though) our Constitution has no due process clause (but after Maneka Gandhi’s case) the consequence is the same, and as much as such Article 21 may be treated as counterpart of the due process clause in American Constitution.”

In December 1985, the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for killing two young women by setting them on fire. In an unprecedented move, the Court ordered both prisoners to be publicly executed.

In response to a review petition by the Attorney General against this judgment, the Supreme Court in December 1985 stayed the public hangings, observing that ‘a barbaric crime does not have to be met with a barbaric penalty’.

Furthermore, the Court observed that the execution of a death sentence by public hanging violates Article 21, which mandates the observance of a just, fair and reasonable procedure.

Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground, among other things, that it was violative of Article 21. Again, in Sher Singh v State of Punjab , the Supreme Court held that unjustifiable delay in execution of death sentence violates Article 21.

The Supreme Court has taken the view that this Article read is concerned with the fullest development of an individual, ensuring his dignity through the rule of law. Therefore, every procedure must seem to be ‘reasonable, fair and just’.

The right to life and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters that contributed to life with dignity.

The test of procedural fairness has been deemed to be proportional to protecting such rights. Thus, where workers have been deemed to have the right to public employment and the right to livelihood, a hire-fire clause in favour of the state is not reasonable, fair and just, even though the state cannot affirmatively provide a livelihood for all.

Under this doctrine, the Court will examine whether the procedure itself is reasonable, fair and just. And whether it has been operated in a fair, just and reasonable manner.

This has meant, for example, the right to a speedy trial and legal aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State action covering civil, criminal and administrative action.

In one of the landmark decisions in the case of Murli S. Deora v. Union of India , the Supreme Court of India observed that the fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law.

The Court observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Considering the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed the prohibition of smoking in public places.

It issued directions to the Union of India, State Governments and the Union Territories to take adequate steps to ensure the prohibition of smoking in public places such as auditoriums, hospital buildings, health institutions etc.

In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers.

Further, when there is an inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action.

But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted. The right is against actual proceedings in Court and against police investigation.

The Supreme Court has widened the scope of ‘procedure established by law’ and held that merely a procedure had been established by law, a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable.

Hence, it is well established that to deprive a person of his life and personal liberty must be done under a ‘procedure, established by law’. Such an exception must be made in a just, fair and reasonable manner and must not be arbitrary, fanciful or oppressive. Therefore, for the procedure to be valid, it must comply with the principles of natural justice.

Article 21 and The Emergency 

In ADM Jabalpur v. S. Shukla [xcviii] , popularly known as the habeas corpus case, the Supreme Court held that Article 21 was the sole repository of the right to life and personal liberty.

Therefore, if the presidential order suspended the right to move any court to enforce that right under Article 359, the detune would have no locus standi to a writ petition for challenging the legality of his detention.

Hence, such a wide connotation of Article 359 denied the cherished right to personal liberty guaranteed to the citizens. Experience established that during the emergence of 1975, the people’s fundamental freedom had lost all meaning.

So that it must not occur again, the constitution act, 1978, amended article 359 to the effect that during the operation of the proclamation of emergency, the remedy for the enforcement of the fundamental right guaranteed by article 21 would not be suspended under a presidential order.

Given the 44 th amendment, 1978, the observations in the above-cited judgments are left merely of academic importance.

India, legal Service. Article 21 of the Constitution of India – the Expanding Horizons , www.legalserviceindia.com/articles/art222.htm.

“Article 21 of the Constitution of India.” Scribd , Scribd, www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India.

Math, Suresh Bada. “10. Rights of Prisoners.” Nimhans.kar.nic.in , www.academia.edu/1192854/10._RIGHTS_OF_PRISONERS.

“SC Agrees to Examine Right to Shelter for PAVEMENT DWELLERS-INDIA News , Firstpost.” Firstpost , Sept. 2013, www.firstpost.com/india/sc-agrees-to-examine-right-to-shelter-for-pavement-dwellers-1108073.html.

admin on August 31, 2016 4:32 PM, et al. Human Rights and Jurisprudence: Right to Life / Livelihood Archives , www.hurights.or.jp/english/human_rights_and_jurisprudence/right-to-lifelivelihood/.

“Article 21 of the Constitution of India – DISCUSSED!” Your Article Library , 24 Feb. 2014, www.yourarticlelibrary.com/constitution/article-21-of-the-constitution-of-india-discussed/5497/.

“Honour Killing.” LAW REPORTS INDIA , 29 Apr. 2011, lawreports.wordpress.com/category/honour-killing/.

Grewal, Puneet Kaur. “Honour Killings and Law in India.” IOSR Journal of Humanities and Social Science , vol. 5, no. 6, 2012, pp. 28–31., doi:10.9790/0837-0562831.

Annavarapu, Sneha. “Honor Killings, Human Rights and Indian Law.” Economic and Political Weekly , www.academia.edu/5386926/Honor_Killings_Human_Rights_and_Indian_Law.

Nandimath, Omprakash V. “Consent and Medical Treatment: The Legal Paradigm in India.” Indian Journal of Urology : IJU : Journal of the Urological Society of India , Medknow Publications, July 2009, www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/.

http://www.hrln.org/hrln/peoples-health-rights/pils-a-cases/1484-sc-reaffirms-workers-right-to-health-and-medical-care.html

Cases as appearing in the Article:

[i] AIR 1963 SC 1295

[ii] AIR 1978 SC 1675

[iii] 1978 AIR 597, 1978 SCR (2) 621

[iv] 1981 AIR 746, 1981 SCR (2) 516

[v] 1984 AIR 802, 1984 SCR (2) 67

[vi] 1982 AIR 1473, 1983 SCR (1) 456

[vii] J.N. Pandey, Constitutional Law of India, Central Law Agency, 42 nd Ed. (2005), p. 222

[viii] AIR 1998 AP 302

[ix] 983 AIR 803, 1983 SCR (3) 327

[x] AIR 1997 SC 3011 : (1997) 6 SCC 241

[xi] AIR 1999 SC 625

[xii] 1996 AIR 922, 1996 SCC (1) 490

[xiii] 55 American LR 171

[xiv] 1989 AIR 714, 1989 SCR (1) 20

[xv] AIR 1989 SC 714.

[xvi] 1964 AIR 703, 1964 SCR (2) 363

[xvii] AIR 2003 SC 3357

[xviii] AIR 1960 SC 932

[xix] AIR 1983 SC 109: (1983) 1 SCC 124

[xx] AIR 1986 SC 180

[xxii] http://rshrc.nic.in/07%20Human%20Right%20Article-21.pdf

[xxiii] M.P. Jain, Indian Constitutional Law, Wadhwa, 5 th Ed. (2003), p. 1315

[xxiv] AIR 1991 SC 101

[xxv] AIR 1999 SC 1416 : (1999) 3 SCC 679

[xxvi] Air 1996 SC 1051 : (1996) 2 SCC 549

[xxvii] AIR 1995 SC 1770, JT 1995 (4) SC 141, (1995) 2 MLJ 38 SC

[xxviii] AIR 1997 Bom. 406

[xxix] AIR 1989 SC 1988

[xxx] Supra Note ( 10 to be corrected.. olgatellis)

[xxxi] 2006) 4 SCC 1: AIR 2006 SC 1806.

[xxxii] AIR 1996 SC 114

[xxxiii] http://www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India

[xxxiv] AIR (1990) SC 630 : (1990) 92 BOMLR 145 : JT 1990 (1) SC 106

[xxxv] 1996 AIR 1051, 1995( 6 )Suppl. SCR 827, 1996( 2 )SCC 549

[xxxvi] http://nsm.org.in/2008/08/29/judicial-activism-on-right-to-shelter-rights-of-the-urban-poor/

[xxxvii] AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)

[xxxviii] AIR (1996) 1234 :(1996) SCC (1) 742

[xxxix] (1995) Supp 2 SCC 549

[xl] AIR 1995 SC 1811

[xli] AIR (1995)1811 :(1995) SCC (5) 482

[xlii] AIR 2002 NOC 265

[xliii] AIR (1997) SC 1225

[xliv] 1987 AIR 990 : 1987 SCR (2) 468

[xlv] Supra note p.1639

[xlvi] AIR (1995) 922, (1995) SCC (3) 42

[xlvii] AIR (1989) 2039, (1989) SCR (3) 997

[xlviii] M.P. Jain, Indian Constitutional Law, Ed. 6 th (2010), p. 1616

[xlix] 1996 SCC (4) 37, JT 1996 (6) 43

[l] http://blog.medicallaw.in/supreme-court-of-india-on-emergency-healthcare/

[li] II (2005) CPJ 35 NC

[lii] Supra note 41 paschim bagga case online like at end of paragraph

[liii] AIR 1998 SC 1703 : (1998) 4 SCC 117

[liv] AIR 2006 SC 2945 : (2006) 8 SCC 199

[lv] 1994 AIR 1844, 1994 SCC (3) 394

[lvi] 1996 AIR 946, 1996 SCC (2) 648

[lvii] Ibid

[lviii] AIR 1973 SC 947

[lix] AIR 1979 SC 916

[lx] AIR 1980 SC 898

[lxi] 1991 AIR 420, 1991 SCR (1) 5

[lxii] AIR 1988 SC 1037 : (1987) 4 SCC 463

[lxiii] AIR 1997 SC 734 : (1997) 2 SCC 353

[lxiv] AIR 1996 SC 2721 : (1996) 5 SCC 647

[lxv] (2007) 2 SCC 413

[lxvi] (2006) 3 SCC 399

[lxvii] AIR 2002 SC 40 : (2001) 8 SCC 765

[lxviii] Writ Petition (civil) 72 of 1998

[lxix] Forum, Prevention of Environment & Sound Pollution v. Union Of India &Anr, AIR 2005 SC 3136 : (2005) 5 SCC 439

[lxx] https://www.privacyinternational.org/reports/india/ii-legal-framework-0

[lxxi] AIR 1963 SC 1295

[lxxii] 1975 AIR 1378, 1975 SCR (3) 946

[lxxiii] 1995 AIR 264, 1994 SCC (6) 632

[lxxiv] AIR 1997 SC 568

[lxxv] AIR 1995 SC 495

[lxxvi] AIR 2003 SC 3450

[lxxvii] 967 AIR 1836, 1967 SCR (2) 525

[lxxviii] 1978 AIR 597, 1978 SCR (2) 621

[lxxix] AIR 1994 SC 1349

[lxxx] AIR 1997 SC 610

[lxxxi] Pandey, J.N., The Constitutional Law of India 47 th Ed., Central Law Agency, Allahabad, 2010, p. 269

[lxxxii] See Kumar, Narender, The Constitutional Law of India, 1 st Ed., Allahabad Law Agency, Allahabad, 2009, p-158

[lxxxiii] AIR 1978 SC 1548

[lxxxiv] AIR 1979 SC 1360

[lxxxv] AIR 1992 SC 170

[lxxxvi] Jain, M.P., Indian Constitutional Law, 6 th Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010, p.1200

[lxxxvii] AIR 2001 SC 3173

[lxxxviii] AIR 2006 SC 1367

[lxxxix] AIR 1978 SC 527

[xc] AIR 1980 SC 1535

[xci] AIR 1978 SC 1675

[xcii] AIR 1983 SC 1155

[xciii] AIR 1986 SC 467

[xciv] AIR 1983 SC 1155

[xcv] AIR 1981 SC 643

[xcvi] AIR 1983 SC 465

[xcvii] AIR 1966 SC 424

[xcviii] AIR 1976 SC 1207

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47 thoughts on “Article 21: Understanding The Right to Life and Personal Liberty from Case Laws-Academike Explainer”

The information is quite helpful. Thanks

above the information sufficient for my case……….thanks

thanks ? If u need any help please let me know

very very informative…thanks..god bless you for spreading knowledge….

Awesome .this is 360′ information canopy .

very well presented…very useful and informative article

it is very nice work to 21 artices i am very heipful in all my acadimc year .LLb

what about right to choice falling under the same article?

I would expect, that falls within the ambit of “personal liberty.”

Sir how could I get natural justice as poor man, I am not able to afford fees of court etc. Help me. Facts with related land disputed.

Very Well drafted after depth research on the topic. Good reference specially to the judgments/law passed by Hon’ble Supreme Court. THANK YOU for serving society. Very useful for everyone.

Good work. It is very helpful to everyone to know about Article 21, especially to law students.Thanks a lot.

Thanks for the details

it’s good relay helping to the staudy

1. Thanks for a very exhaustive discussion and its footnotes. 2. I am an accused in a fake criminal case filed by my sibling about misappropriation of funds from our father’s firm. Based on this the IO sealed all bank accounts belonging to my father, me, my wife etc., in year-2014. They continue to be sealed. 3. My father died in 2016, so anyways the banks have sealed his accounts till a successor is decided. The charge sheet was filed in Feb-2017. 4. There is a nexus between my sibling and the IO and whatever information that I provide to the IO reaches my sibling, which is detrimental to me. 5. U/s 173(8) CrPC, (ongoing investigation), can the IO force me to provide details of my new bank accounts, which I started after the date when he sealed all accounts in 2014? 6. Can I refuse to provide the IO this information using the protection offered by Article 21 of the Constitution? 7. Thanks.

It’s really help me for my clat preparation ….

can a resident of society ,write on Facebook /social media that association members are goonda/goons ,related to apartment owners association

thank u for the wonderful explanation

Thank u so much This information is really helpful

its very effective

A wonderful article

Is there any special format for filing cases in supreme court for the violation of dignity?

Floods, due to human negligence and loss of human lives, loss of livestock and agricultural loss that disrupts Right to Life which also comes under Article 21, have not been covered in the article.

People are fighting for resarvations these days why? Art 21 of our constitution embodies Equal right to life and liberty still why they fight for Resarvations why?

Reservation is politically motivated, every political party wants to continue reservation for seeking votes, since in our country caste and religion play a vital role In every election. The only solution is to give up reservation by those who don’t really need it.

It is in article 15 where suoreme court held that the state is permitted to make any provision for the advancement of any social and educationally backward classes. I prefer you to go through RIGHT TO EQUALITY article(14-18) Its clear all your fought regarding reservation and quota etc

If you desire to know what is a hard work. Then this thesis on Article 21 shows the brilliant work done by a student. I wish great success to the author.

It is my first comment. If you desire to know what is a hard work. Then this thesis on Article 21 shows the brilliant work done by a student. I wish great success to the author.

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Is premature termination from employment without any reason against Article 21 of our Constitution?

Awesome post.

thankyou your feedback

The whole Article is explained in a very easy laungage, with land mark cases this is the best example of compilation of the work. I appreciate the efforts taken by the author

reservations in education and jobs are supposed to be for 10 years. But they appear to be perennial. In this context in have got certain doubts. 1. Did Dr Ambedkar suggest reservations only based on cast. regardless of merit,aptitude and capability? 2. Is it fair for a collector or doctor to retain the reservation facility for his children? 3.Reservation is snatching away opportunities from poor eligible, so called upper class candidates. Is it not against his fundamental right to live ?

The very purpose of Reservations is Adequate Representation in all feilds mandated by the Indian Constitution.But people from certain communities think Reservations means earmarking certain number of posts in the field of employment for the SC and ST communities.Here one more thing is to mention. Reservations are extended after every ten years.Why? Becasue in the knowledge of Govt the goals set by are not acheived. But the occupancy in high level posts by the non reserved communities is abnormal.It is an open secret but nobody questions.The answer is best known to the people who points their finger at the SC and STs only.

what is the relation between liberty and life

Excellent Information provides To read more visit the link :

‘The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognized as being essential to the orderly pursuit of happiness by free men.’ Can somebody please cite the case in which this was held by Supreme Court of India?

This article is so informative and yet not too exhaustive to understand! Thankyou so much, it’s of great help

Greetings, Usually I never comment on blogs but your article is so convincing that I never stop myself to say something about it. You’re doing a great job, Keep it up. You can check out this article, might be of help 🙂

it is very useful

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