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Article 21
Article 21 of the Indian Constitution guarantees that "No person shall be deprived of his life or
personal liberty except according to procedure established by law." This fundamental right
ensures that any action by the state to take away an individual's life or freedom must follow a fair and
just legal procedure.
Early Interpretation: The A.K. Gopalan Case (1950)
In the early years after independence, the Supreme Court interpreted Article 21 narrowly.
● Background: A.K. Gopalan, a communist leader, was detained under the Preventive Detention
Act, 1950. He challenged his detention, arguing that it violated his fundamental rights.
● Supreme Court's Ruling:
○ The Court held that as long as there was a "procedure established by law," the state
could deprive a person of personal liberty.
○ The term "law" meant any enacted law by the legislature, regardless of its fairness or
reasonableness.
○ The Court rejected the incorporation of natural justice principles or the American
concept of "due process of law."
● Implications:
○ This meant that if the legislature passed a law, even if it was unjust or arbitrary, it could
not be challenged under Article 21.
○ The protection of personal liberty was limited, providing the state with broad powers.
Shift in Interpretation: The Maneka Gandhi Case (1978)
The narrow interpretation of Article 21 began to change with this case
● Background:
○ Maneka Gandhi's passport was impounded by the government under Section 10(3)(c)
of the Passport Act, which allowed for such action "in the interest of the general
public."
○ She was not given a chance to be heard or provided reasons for the impounding.
○ Maneka Gandhi challenged the decision, claiming it violated her fundamental rights
under Articles 14 (Equality before the Law), 19 (Protection of certain Rights
regarding Freedom), and 21.
● Supreme Court's Ruling:
○ Interconnected Fundamental Rights: The Court held that Articles 14, 19, and 21 are
not isolated but interconnected. Any law depriving a person of personal liberty must
pass the tests of all three articles.
○ Expanded Definition of Personal Liberty: The term "personal liberty" was given a
broad interpretation, covering a variety of rights that constitute personal freedom.
○ Procedure Must Be Just, Fair, and Reasonable:
■ The "procedure established by law" cannot be arbitrary, unfair, or
unreasonable.
■ Introduced the concept similar to the American "due process of law," ensuring
that laws must meet standards of fairness.
● Implications:
○ This case marked a turning point in the interpretation of Article 21.
○ The Court now had the authority to examine the fairness of laws affecting life and
personal liberty.
○ It provided stronger protection against unjust laws and state actions.
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Article 21
Expanding Scope of Article 21
Following the Maneka Gandhi judgment, the Supreme Court expanded Article 21 to include various
rights essential for a dignified life. Some of these rights and corresponding cases are:
Environmental Rights
1. Right to a Clean and Healthy Environment:
○ Case: M.C. Mehta vs. Union of India
○ Significance: Recognized that environmental pollution adversely affects the quality of
life and is a violation of Article 21.
○ Example: Closure of industries polluting the Ganga river to protect citizens' health.
2. Right to Sustainable Development:
○ Case: N.D. Jayal vs. Union of India
○ Significance: Emphasized balancing developmental activities with environmental
protection.
3. Right to Pollution-Free Air and Water:
○ Case: Subhash Kumar vs. State of Bihar
○ Significance: Affirmed that the right to life includes the right to enjoy pollution-free air
and water.
4. Protection from Hazardous Substances:
○ Case: Research Foundation for Science Technology vs. Union of India
○ Significance: Highlighted the state's duty to protect citizens from hazardous waste and
substances.
Personal Liberty Rights
1. Right to Privacy:
○ Case: Justice K.S. Puttaswamy vs. Union of India (2017)
○ Significance: Declared the right to privacy as a fundamental right under Article 21.
○ Example: Protection of personal data and autonomy over personal choices.
2. Right to Choose One's Sexual Orientation:
○ Case: Navtej Singh Johar vs. Union of India (2018)
○ Significance: Decriminalized consensual homosexual acts, recognizing LGBTQ+
rights.
○ Example: Overturning Section 377 of the Indian Penal Code.
3. Right to Choose One's Life Partner:
○ Case: Shakti Vahini vs. Union of India (2018)
○ Significance: Upheld the right to marry a person of one's choice, condemning honor
killings.
4. Right Against Phone Tapping:
○ Case: R.M. Malkani vs. State of Maharashtra
○ Significance: Unauthorized phone tapping violates privacy under Article 21.
5. Right to Reputation:
○ Case: State of Bihar vs. Lal Krishna Advani
○ Significance: Recognized reputation as part of the right to life.
Socio-Economic Rights
1. Right Against Sexual Harassment at Workplace:
○ Case: Vishakha vs. State of Rajasthan (1997)
○ Significance: Laid down guidelines to prevent sexual harassment, ensuring a safe
working environment.
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2. Right to Livelihood:
○ Case: Olga Tellis vs. Bombay Municipal Corporation (1985)
○ Significance: Connected the right to livelihood with the right to life.
○ Example: Protection of pavement dwellers from arbitrary eviction.
3. Right to Education:
○ Case: Mohini Jain vs. State of Karnataka (1992)
○ Significance: Declared that the right to education is fundamental for the exercise of
other rights.
4. Right to Health:
○ Case: Consumer Education and Research Centre vs. Union of India (1995)
○ Significance: Recognized health as an integral part of the right to life.
5. Right to Die with Dignity:
○ Case: Common Cause vs. Union of India (2018)
○ Significance: Legalized passive euthanasia under strict guidelines.
○ Example: Allowing withdrawal of life support for patients in a permanent vegetative
state.
Does right to live include the ride to die?
Section 309 of the Indian Penal Code (IPC):
○ Provision: Attempt to commit suicide is a punishable offense, with imprisonment up to
one year and/or a fine.
○ Rationale: Historically, suicide was considered a crime against society and the state.
Judicial Interpretations
1. P. Rathinam vs. Union of India (1994)
○ Ruling:
■ The Supreme Court decriminalized the attempt to suicide.
■ Held that the Right to Life includes the Right to Die.
■ Reasoned that fundamental rights have both positive and negative aspects.
■ Examples:
■ Freedom of speech includes the freedom not to speak.
■ Freedom of association includes the freedom not to associate.
2. Gian Kaur vs. State of Punjab (1996)
○ Ruling:
■ A five-judge bench overruled the P. Rathinam judgment.
■ Held that the Right to Life under Article 21 does not include the Right to
Die.
■ Emphasized that life is a natural right, and its extinction is inconsistent with the
concept of life.
Law Commission's Recommendations
● 210th Report (2008):
○ Recommended decriminalizing the attempt to suicide.
○ Suggested that individuals attempting suicide need care and treatment, not
punishment.
○ Pointed out that only a few countries, including India, Pakistan, and Bangladesh, still
criminalize attempted suicide.
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Arguments Against Decriminalizing Suicide
1. Societal and Familial Impact:
○ Individuals do not have complete autonomy over their lives; families and society have
legitimate interests.
○ Suicide can leave families destitute, especially if the individual is the sole breadwinner.
2. Potential Legal Complications:
○ Decriminalizing suicide might complicate the prosecution of abetment to suicide under
Section 306 of the IPC.
○ Counterargument: Legal amendments can address this technical issue without
affecting the abetment laws.
3. State's Responsibility:
○ The government has a duty to prevent violence, including self-inflicted harm.
○ Preserving life is a fundamental obligation of the state.
Arguments in Favor of Decriminalizing Suicide
1. Compassionate Approach:
○ Individuals attempting suicide often suffer from mental health issues.
○ They need empathy and medical assistance, not incarceration.
2. Anachronistic Law:
○ Punishing unsuccessful suicide attempts is illogical and inhumane.
○ It adds to the trauma of individuals already in distress.
3. Religious and Cultural Perspectives:
○ Some argue that life is sacred and only God can take it.
○ However, historical and mythological instances (e.g., Lord Rama's Jal Samadhi)
suggest that voluntary death is not necessarily irreligious.
Euthanasia and right to life
The word ‘euthanasia’, which originated in Greece, literary means a good death but in this
context, it means mercy killing. Euthanasia encompasses various dimensions, from active
(introducing something to cause death) to passive (withholding treatment or supportive
measures); and physician assisted (where physicians prescribe the medicine and patient or the
third party administers the medication to cause death).
Request for premature ending of life has contributed to the debate about the role of such
practices in contemporary health care. This debate cuts across complex and dynamic aspects
such as legal, ethical, human rights, religious, economic, social and cultural aspects of the
civilised society. In our day to day life, we often come across terminally ill patients that are
bedridden and are totally dependent on others. It actually hurts their sentiments. Looking at
them we would say that death will be a better option for them rather than living such a painful
life. But if we look at the Netherlands where euthanasia is made legal, we will see how it is
abused there. So following its example no one wants euthanasia to be legalized in India. But the
question that lies before us is which will be a better option.
What is Passive Euthanasia?
Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate
intention to hasten the death of a terminally-ill patient.
The 241st report of the Law Commission states that passive euthanasia should be allowed with
certain safeguards and there is a proposed law Medical Treatment of Terminally Ill Patient
(Protection of Patients and Medical Practitioners) Bill, 2006 in this regard.
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Passive euthanasia entails a patient being allowed to die by limiting medical intervention, not
escalating already aggressive treatment, withholding or withdrawing artificial life support in
cases that are judged to be medically futile.
Country Euthanasia Physician Assisted Suicide
Netherlands, Belgium Legal Legal
Germany Illegal Legal
Australia, Canada, Israel, Illegal Illegal
Italy
In 2011, the Supreme Court, while hearing the case of Aruna Shanbaug, who was in a
vegetative state for more than 40 years, had partially legalised passive euthanasia partially. A
nurse at KEM Hospital in Mumbai, Shanbaug was in a vegetative state since 1973 after a brutal
sodomisation and strangling with a dog-chain during a sexual assault. She died in 2015 while on
a ventilator for several days after suffering from pneumonia. SC gave patients living in a
vegetative state the right to have treatment or food withdrawn and laid down guidelines to
process passive euthanasia in the case of incompetent patients. The guidelines included
seeking a declaration from a high court, after getting clearance from a medical board and state
government.
The Supreme Court ruled in 2018 that individuals have a right to die with dignity, in a verdict that
permits the removal of life-support systems for the terminally ill or those in incurable comas. The
court also permitted individuals to decide against artificial life support, should the need arise, by
creating a “living will”. SC was hearing a plea by NGO Common Cause to declare ‘right to die
with dignity’ as a fundamental right within the fold of right to live with dignity, which is guaranteed
under Article 21 of the Constitution.
Arguments against euthanasia
1. Against the constitution of India: ‘Right to life’ is a natural right embodied in Article 21
but euthanasia/suicide is an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of ‘right to life’. It is the duty of the State to
protect life and the physician’s duty to provide care and not to harm patients. The Supreme
Court in Gian Kaur Case 1996 has held that the right to life under Article 21 does not include
the right to die.
2. Neglect of Healthcare by State: If euthanasia is legalised, then there is a grave
apprehension that the State may refuse to invest in health (working towards Right to life).
Legalised euthanasia has led to a severe decline in the quality of care for terminally-ill
patients in Holland.
3. May be misused: In the era of declining morality and justice, there is a possibility of
misusing euthanasia by family members or relatives for inheriting the property of the patient.
The Supreme Court has also raised this issue in the Aruna Shabaug judgement.
4. Lead to commercialisation of health care: Passive euthanasia occurs in the majority of
the hospitals across the county, where poor patients and their family members refuse or
withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is
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legalised, then the commercial health sector will serve death sentences to many disabled
and elderly citizens of India for a meagre amount of money. This has been highlighted in the
Aruna Shabaug Judgement.
Arguments in favour of euthanasia
1. Right to die with dignity: ‘Right to die’ supporters argue that people who have an
incurable, degenerative, disabling or debilitating condition should be allowed to die with
dignity.
2. Care-givers burden: The caregiver’s burden is huge and cuts across various domains
such as financial, emotional, temporal, physical, mental and social.
3. Right to refuse care: Right to refuse medical treatment is well recognised in law,
including medical treatment that sustains or prolongs life.
SC turned down a friend’s plea for mercy killing of vegetative Aruna Shanbaug saying
that only a hospital could make such a request. The judgment of SC is based on the
following logic:
1. If we leave it solely to friends and relatives, there is always a chance that this may be
misused by some unscrupulous elements who wish to inherit or grab patients’ property.
2. If euthanasia is legalised, then commercial health sector will serve death sentence to
many disabled and elderly citizens of India for meagre amount of money
Transgenders and their rights
Transgender individuals in India have historically faced discrimination, social exclusion, and lack of
legal recognition. However, landmark judicial decisions and legislative actions in recent years have
significantly advanced their rights, recognizing them as equal citizens under the Constitution.
The NALSA Judgment (2014)
● NALSA filed a Public Interest Litigation (PIL) demanding equal rights for transgender persons.
● Issue was lack of legal recognition and discrimination against transgender individuals in
various aspects of life.
Supreme Court's Ruling
● Recognition of Third Gender: The Supreme Court recognized transgender persons as the
"third gender", affirming that they are neither exclusively male nor female.
● Human Rights Issue: The Court stated that recognizing transgender individuals is not merely
a social or medical issue but a fundamental human rights issue.
● Non-Discrimination under Article 15:
○ Article 15 prohibits discrimination on various grounds, including sex.
○ The Court expanded the interpretation to include gender identity, meaning
discrimination based on gender identity is unconstitutional.
● Self-Identification of Gender:
○ Individuals have the right to self-identify their gender as male, female, or transgender,
regardless of whether they have undergone sex reassignment surgery.
● Equal Rights:
○ Transgender persons are entitled to fundamental rights under the Constitution,
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including the right to equality (Article 14), non-discrimination (Article 15), freedom
of speech and expression (Article 19), and life and personal liberty (Article 21).
● Directions to the Government:
○ The Court directed the central and state governments to treat transgender persons as
socially and educationally backward classes and extend reservation in education and
public employment.
○ Recommended the formulation of social welfare schemes for their betterment.
Significance
● Legal Recognition: This was the first time transgender persons were legally recognized,
ensuring their rights and dignity.
● Human Dignity and Equality: Emphasized that the spirit of the Constitution is to provide
equal opportunity to every citizen to grow and attain their potential, irrespective of caste,
religion, or gender.
The Transgender Persons (Protection of Rights) Act, 2019
Key Provisions
1. Definition of a Transgender Person:
○ A person whose gender does not match the gender assigned at birth.
○ Includes trans-men, trans-women, persons with intersex variations, gender-queers, and
socio-cultural identities like kinnar and hijra.
2. Certificate of Identity:
○ Transgender persons can apply to the District Magistrate for a certificate of identity
indicating their gender as transgender.
○ Post-sex reassignment surgery, they can apply for a revised certificate to reflect their
changed gender.
3. Prohibition Against Discrimination:
○ Discrimination against transgender persons is prohibited in:
■ Education
■ Employment
■ Healthcare
■ Access to public goods and services
■ Right to movement and residence
■ Holding public or private office
4. Right of Residence:
○ Transgender persons have the right to reside in the household where parents or
immediate family reside.
5. Healthcare Facilities:
○ The Act mandates:
■ Separate HIV surveillance centers.
■ Provision of sex reassignment surgery and hormonal therapy.
■ Review of medical curriculum to address health issues of transgender persons.
■ Comprehensive medical insurance schemes.
6. National Council for Transgender Persons (NCT):
○ Establishment of a council to advise the government on policies and legislation
concerning transgender persons.
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7. Punishment for Offences:
○ Acts of violence or discrimination against transgender persons can attract imprisonment
from six months to two years, along with a fine.
Critiques and Concerns
● Certificate Requirement: The need for a certificate raises concerns about the invasion of
privacy and may lead to bureaucratic hurdles.
● Definition Issues: Some argue the definition is not inclusive enough and may exclude certain
identities.
● Punishment Severity: The punishment for crimes against transgender persons is considered
lenient compared to similar offences against cisgender individuals.
Section 377 and the Navtej Singh Johar Judgment (2018)
● Section 377 of the Indian Penal Code (IPC), dating back to 1861 during British rule,
criminalized "carnal intercourse against the order of nature," effectively targeting homosexual
relations.
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or
animal shall be punished with imprisonment for life, or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine."
Legal Challenges and Developments
1. Naz Foundation Case (2009):
○ Delhi High Court decriminalized consensual homosexual acts among adults, stating
that Section 377 violated fundamental rights.
2. Suresh Kumar Koushal vs. Naz Foundation (2013):
○ Supreme Court overturned the Delhi HC judgment, reinstating Section 377.
○ Held that the matter should be left to Parliament.
3. Justice K.S. Puttaswamy Judgment (2017):
○ Recognized the Right to Privacy as a fundamental right.
○ Laid the groundwork for challenging Section 377 by emphasizing that sexual orientation
is an intrinsic part of privacy.
Navtej Singh Johar vs. Union of India (2018)
● Petitioners: A group including dancers, chefs, and activists challenged Section 377's
constitutionality.
● Supreme Court's Ruling:
○ Unanimous Decision: The five-judge Constitution Bench declared Section 377
unconstitutional insofar as it criminalizes consensual sexual conduct between
adults of the same sex.
○ Fundamental Rights Violated:
■ Article 14 (Equality before the Law)
■ Article 15 (Prohibition of Discrimination on grounds of religion, race,
caste, sex, or place of birth)
■ Article 19 (Freedom of Speech and Expression)
■ Article 21 (Right to Life and Personal Liberty)
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○ Observations:
■ Sexual orientation is an essential attribute of privacy.
■ Discrimination on the basis of sexual orientation is deeply offensive to the
dignity and self-worth of the individual.
■ Historical wrongs against the LGBTQ+ community need rectification.
Significance
● Decriminalization: Consensual homosexual acts between adults are no longer criminal
offenses.
● Partial Retention of Section 377:
○ The section remains in force for non-consensual acts, acts involving minors, and
bestiality.
● Societal Impact:
○ Paved the way for greater acceptance and rights for the LGBTQ+ community.
○ Encouraged discussions on same-sex marriage, adoption, and anti-discrimination laws.
Right to Privacy and the Puttaswamy Judgment (2017)
● Justice K.S. Puttaswamy (Retd.) vs. Union of India
● Issue: Whether the Right to Privacy is a fundamental right under the Constitution.
Supreme Court's Ruling
● Unanimous Verdict by Nine-Judge Bench:
○ Right to Privacy as Fundamental Right:
■ Recognized privacy as intrinsic to life and personal liberty under Article 21.
○ Broad Interpretation:
■ Privacy includes personal intimacies, the sanctity of family life, marriage,
reproductive rights, sexual orientation, and more.
○ Limitations on Right to Privacy:
■ The right is not absolute and can be curtailed by the state under certain
conditions:
■ Legitimate Aim: Any intrusion must serve a legitimate state interest.
■ Proportionality: The action must be necessary and proportionate to the
aim.
■ Legal Authority: Must have a legal basis.
Significance
● Impact on Aadhaar:
○ Raised concerns about data protection and privacy in the Aadhaar scheme.
● Foundation for Future Judgments:
○ Provided a constitutional foundation for the Navtej Singh Johar judgment
decriminalizing homosexuality.
● Protection of Personal Data:
○ Highlighted the need for data protection laws to safeguard citizens' personal
information.
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Importance of Right to Privacy
● Dignity and Autonomy:
○ Privacy is essential for maintaining human dignity and the freedom to make personal
choices.
● Protection from State Intrusion:
○ Safeguards individuals against unwarranted surveillance and data collection by the
government.
● Technological Advances:
○ In the digital era, personal data is vulnerable, necessitating stronger privacy
protections.
Challenges and Concerns
● Balancing Rights:
○ Ensuring the right to privacy does not hinder transparency and accountability (e.g., in
the context of the Right to Information Act).
● Law Enforcement:
○ Defining the extent to which personal data can be used in criminal investigations
without violating privacy rights.
● Implementation:
○ Need for comprehensive data protection laws and regulations to enforce the right to
privacy effectively