Acknowledgement
TABLE OF CONTENTS
[Link]. LIST OF TOPICS PAGE
NO.
1. Article 21 of Indian constitution
2. Life
Personal Liberty
4. Procedure established by law
5. Judicial Expansion of the article
I. Right to privacy
Ii. Right to travel abroad
III. Right to a safe and secure working environment
Iv. Right of prisoners
V. Right of inmates in protective homes
VI. Right to legal aid
VII. Right to speedy trial
VIII. Right against cruel and unusual punishments
IX. Right to release and rehabilitation of bonded labor
X. Right to know
XI. Right to choose marriage partner
XII. Right to fair trial
XIII. Right against custodial violence and immunity against
deaths in police-lockups and encounters
XIV. Right to livelihood
XV. Right to die with dignity
6 Violations of article 21 by private individuals
7 Conclusion
8 References
Article 21 of the Indian Constitution
21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to
procedure established by law.1
1
Article 21, Constitution of india
Life
The right to life which is the most fundamental of all, is also the most difficult to
define. We cannot just infer that guaranteeing the right to life here means to
guarantee against the taking away of life, it must be given wider perspective.
With reference to a corresponding provision in the 5th and 14th amendments of
the US constitution.- it says that no person shall be deprived of his “life, liberty or
property, without the due process of law”. in the case of Munn v. Illinois2, field J
explained that the term ‘life’ means something beyond just animal existence. The
inhibition against its deprivation extends to all those faculties by which life is
enjoyed. Including mutilation of the body, amputation of leg or arm, destruction to
organs, etc.
This inference was repeatedly used in various cases decided in India as well. This
perspective was broadened in the case of Francis Carolie Mullin v. UT of Delhi3,
when Bhagwati j held that, the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessaries of life such as
adequate nutrition, clothing, shelter, facilities of reading, writing and expressing
oneself in diverse forms, including commingling with fellow human beings.
Although he conceded that the magnitude of the components of right to life
depends upon the extend of the economic development in the country. The court
upheld the right of the detainee to have interviews with members of her family,
friends and lawyers.
Further discussion upon the expansion of the right has been given later in the
document.
2
94 US 113 (1877)
3
AIR 1984 SC 746
PERSONAL LIBERTY
The expression is not confined to mere freedom from bodily restraint and liberty
under law, but extends to the full range of conduct which the individual is free to
pursue.
In contrast to the US constitution article 21 qualifies “liberty” by “personal”, which
leads to an inference that the scope of liberty under our constitution is narrower
than in the US constitution. A Similar impression was drawn in the case of AK
Gopalan [Link] of Madras4 Learned judges looking at the difference in the
expression in the US and Indian constitution and relying upon the meaning given to
personal liberty by some English jurists concluded that “personal liberty” was
confined to freedom from detention or physical restraint.
For the first time, the meaning and scope of “personal liberty”came up for
consideration in Kharak Singh v. State of U.P5. Speaking for the majority, Ayyangar
J denied that “personal liberty” was confined to just freedom from physical
restraint or confinement within the bounds of prison. He held that the term was
used as a convenient term to include within itself all varieties of rights which go to
make up the personal liberties of human beings other than those dealt within the
several clauses of Article 19(1). In other words Article 19(1) deals with particular
species or attributes of that freedom, “personal liberty” in Article 21 takes in and
comprises the residue.
Further expansion of the term has been discussed later in the document.
4
AIR 1950 SC 27
5
AIR 1963 SUPREME COURT 1295
PROCEDURE ESTABLISHED BY LAW
The expression "procedure established by law" was initially interpreted as
procedure prescribed by the law of the State. Accordingly, it required, firstly, the
existence of an enacted law authorising interference with the life or personal
liberty, secondly, the law should be valid, and thirdly, the procedure laid down by
the law must be followed. In the absence of non-compliance of any of these
conditions any deprivation of life or personal liberty of a person by any authority
violates Article 21.
Compared to the "due process" clause of the Fifth Amendment of the US
Constitution, which engaged the Constituent Assembly intensely and for long, the
ambit of the right to life and liberty in Article 21 was tried to be more definite
leaving less scope for the courts to dabble in speculations about the ambit of "due
process" as against the "procedure established by law". In view of this difference it
is said that liberty under the US Constitution is wider or better protected than
under the Constitution of India. Besides the fact that the US Constitution does not
qualify "liberty" by "personal" it provides that a person cannot be deprived of his
liberty "without due process of law". The US Supreme Court has interpreted the
guarantee to mean that the court would examine a law to ascertain if it is a just
and fair law in its procedure as well as substance.
REASONABLENESS of the procedure established by law-
While Bhagwati J in the Maneka Gandhi case6 established the requirement of
reasonableness of procedure in article 21 through article 14, some of the judges in
that case and in other subsequent cases have read such requirement in article 21
itself and particularly the word “law” the conversion of “procedure established by
law” into “due process of justice” in the US sense which the constitution makers
had intended to avoid by replacing the latter expression by the former. Thus, in
6
AIR 1978 SC 597
Maneka gandhi, chandrachud J said that the procedure in article 21 “has to be fair,
just and reasonable, not fanciful, oppressive or arbitrary”
JUDICIAL EXPANSION OF ARTICLE 21
RIGHT TO PRIVACY
In Gobind v. State of MP7, the court contemplated a right of privacy
included among others, in the right to personal liberty, but upheld
regulations similar to the one invalidated in Kharak Singh case.8
Explaining the right to privacy in [Link] v. State of TN9, the court held
that it is the right to be let alone and a citizen has the right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood, child
bearing and education among other matters.
Right to privacy includes telephonic conversation. Therefore telephone
taping, amounts to its violation unless it is permitted under procedure
established by law.[People’s Union for Civil Liberties v. Union of India10]
An HIV positive person does not have the right to privacy against the doctor
not to disclose his status. Nor does such patient has and absolute right to
7
1975 SCR (3) 946
8
AIR 1963 SUPREME COURT 1295
9
1994 SCC (6) 632
10
AIR 1997 SC 568
marry under Article 21. Right of others to healthy lives justifies a breach of
confidentiality in such a case.[‘X’ [Link] ‘Z’11]
Similarly, the right to privacy in Article 21 must give way to court orders for
medical examination in cases of divorce; On such grounds as unsoundness
of mind, impotency etc.[Sharda v. Dharmapal12]
The court had to a certain extent denied the existence of right to privacy in
the constitution, the claim for such right against the “Aadhar Card Scheme”
has been finally decided upon unanimously and it has been held that right
To privacy is the part of “personal liberty” guaranteed in Article 21.
[[Link] v. U.O.I.13]
The same is the case with LGBTQ rights.[Navtej Singh Johar v. U.O.I.14]
Right to Travel Abroad
In Satwant Singh Sawhney v. passport officer15, the court held that the right
to travel abroad is included within the expression “personal liberty” and ,
therefore, no person should be deprived of his right to travel except
according to the procedure established by law. Since a passport is essential
for the enjoyment of that right, denial of a passport amounts to deprivation
of personal liberty. in the absence of any procedure prescribed deny law
sustaining the refusal of a passport to a person, its refusal amounts to an
unauthorized derivation of personal liberty as in article 21. this decision
was accepted by parliament and its infirmity as removed by the passport
act, 1957.
11
AIR 1999 SUPREME COURT 495
12
2003 4 SCC 493
13
AIR 2017 SUPREME COURT 4161
14
AIR 2018 SUPREME COURT 4321
15
1967 AIR 1836
Right to a safe and secure working
environment
In the landmark judgment, Vishaka v. State of Rajasthan 16(1997), the
supreme court addressed the issue of sexual harassment at the workplace.
The court held that the right to a safe and secure working environment is a
fundamental right flowing from Article 21. It laid down guidelines to
prevent and redress sexual harassment at workplaces until appropriate
legislation was enacted.
Right of Prisoners
State of Maharashtra v. Prabhakar Pandurang Sanzgiri 17, has already been
mentioned in which the right of a detinue to send his book, written during
detention, for publication was recognised. In Sunil Batra v. Delhi Admn18.,
the solitary confinement of a prisoner, who was awarded the capital
sentence for having committed the offence of murder under Section 30(2),
Prisons Act, 1894, was held bad as it was imposed not as a consequence of
the violation of the prison discipline but on the ground that the prisoner
was one under sentence of death. Desai J pointed out that the conviction of
16
AIR 1997 SC 3011
17
1966 AIR 424
18
1978 AIR 1675
a person for a crime did not reduce him to a non-person vulnerable to
major punishment imposed by the jail authorities without observance of
procedural safeguards.
Prisoners have no fundamental right to escape from lawful custody, and
hence, the presence of armed police guards causes no interference with the
right to personal liberty.
Prisoners cannot complain of the installation of the live wire mechanism
with which they are likely to come in contact only if they attempt to escape
from the prison.
The denial of amenities or their poor maintenance do not necessarily
constitute an encroachment on the right to personal liberty. If a prisoner
demands that he should have better companions in jail or should be
removed to a ward with more relaxation and resents keeping convict cooks
or having wardens as jail mates in his cell, the Superintendent of Jail may
justifiably turn down such requests in view of the prisoner's record and
potential.
A prisoner has the fundamental right to be protected from the co-prisoners.
In case a prisoner is killed by his co-prisoner, the State may be compelled to
compensate the dependants of the deceased.
Similar rights of the arrested and persons in police custody have also been
recognised.
Right of Inmates of Protective homes
Courts have also directed the authorities for protective remand homes for
women and children to provide suitable human conditions in the homes
and to provide appropriate machinery for maintaining effective safeguard
of their interests.
Right to Legal Aid
Right to free legal aid at the cost of the State to an accused who cannot
afford legal services for reasons of poverty, indigence or incommunicado
situation is part of fair just and reasonable procedure under Article 21.
Not only that ,the trial court is under an obligation to tell an accused who
fails to afford legal representation that he is entitled to be represented by a
lawyer at the cost of the State
Right to Speedy trial
This right came up in a series of cases involving people under- trials, who
were in jail for a period longer than the maximum sentence that could be
imposed on conviction.
Right against cruel and unusual punishment
In Jagmohan Singh v. State of U.P19 the constitutionality of imposing the
death sentence was challenged. The Court held that if the entire procedure
of criminal trial under the CrPC for arriving at a sentence of death is valid,
then the imposition of the death sentence in accordance with the
procedure established by law cannot be said to be unconstitutional.
19
1973 AIR 947
In Bachan Singh v. State of Punjab20, it was argued that the Supreme Court
in Maneka Gandhi v. Union of India21 has given a new interpretative
dimension to Articles 14, 19 and 21, and their interrelationship in every law
of punitive detention both in its procedural and substantive aspects must
pass the test of all the three article. This argument was not accepted by the
court.
Right to Release and Rehabilitation of
bonded labour
Article 21 read with the directive principles of State policy enshrined in
Articles 39, 41 and 42 as well as the Bonded Labour System (Abolition) Act,
1976 obliges the State to identify, release and suitably rehabilitate the
bonded labourers. The bonded labourers also have the right to live with
human dignity enshrined in Article 21
Right to Know
The courts have also recognized the right to know in Article 21 as a
necessary ingredient of participatory democracy. [Reliance Petro Chemicals
Ltd. V. Proprietors of India Express Newspaper Bombay 22]
20
1980 2 SCC 684(10)
21
AIR 1978 SC 597
22
1989 AIR 190
Right to choose Marriage Partner
Besides the choice of same sex marriage, an individual has the liberty of
choosing one’s partner irrespective of traditional restrictions on inter caste
marriages, marriages within same gotra etc.[Navtej Singh Johar vs Union Of
India23 ]
Right to Fair trial
Right to fair trial is not expressly mentioned in any article of the
Constitution but is very much an important aspect of life and liberty
protected in article 21. "The fair trial for a criminal offence", the court has
observed, "consists not in technical observance is the frame, and forms of
law, but also in recognition and just application of its principles in
substance, to find out the truth and prevention and miscarriage of justice"
Right against custodial violence and death in
police lockups or encounters
Relying upon the right to life and personal liberty under Article 21 the court
has given detailed directions to be observed by the police authorities
23
(2017) 9 SCC 1
against custodial violence and death of the accused in lockups as well as
encounter deaths[D.K Basu v. State of WB]24
Right to livelihood
In Olga Tellis v. Bombay Municipal Corporation 25(1985), the court recognized
the right to livelihood as an integral part of the right to life under Article 21.
It held that the eviction of pavement dwellers without providing alternative
arrangements would violate their right to life and personal liberty.
Right to die with dignity
In Common Cause v. Union of India (2018),26 the court legalized passive
euthanasia and recognized the right to die with dignity as a fundamental
right under Article 21. The court held that individuals have the right to
refuse medical treatment or life support and can make an advance directive
specifying their wishes in case of terminal illness.
Article 21 also prohibits arbitrary or unlawful detention. It ensures that no
person can be detained without proper legal justification or without
following the due process of law. It safeguards against arbitrary arrests and
protects individuals from being unlawfully deprived of their freedom. It also
encompasses the right to a fair trial. It guarantees that every person
accused of an offense shall have the right to a fair and impartial trial,
24
AIR 1997 SUPREME COURT 610
25
1986 AIR 180
26
AIR 2018 SUPREME COURT 1665
including the right to legal representation, the right to be heard, and the
right to present evidence in their defense.
Right to live in a healthy environment
In the case of MC Mehta v. UNION OF INDIA27, also known as Oleum Gas Leak III,
the Court found the right to live in a healthy environment to be a fundamental
right under Article 21 of the Indian Constitution and heightened the liability for
corporations engaged in dangerous or inherently dangerous activities.
27
1987 AIR 1086
VIOLATION OF RIGHT TO LIFE OR PERSONAL
LIBERTY BY PRIVATE INDIVIDUALS
Under the common view that the fundamental rights are available only against the
State, for long time it was believed that Article 21 could not be invoked against the
violation of life or personal liberty by non-State entities or private persons.
Accordingly, the court held that a per- son whose right to personal liberty is
infringed by a private individual must seek his remedy under the ordinary law and
not under Article 21. But as we have noted under Article 12, the commonly held
view about fundamental rights does not exactly fit with the language and scheme
of fundamental rights under our Constitution. Accordingly, the notion that Article
21 is available only against the State is in the process of dilution for some time.
Instances are available where it has been invoked against private persons. It is also
argued that the language of article 21 is not restricted to State action. Therefore it
should be given the widest possible interpretation.[MC Mehta v. UOI28; ‘X’ v.
Hospital ‘Z’]
28
1987 SCR (1) 819
Conclusion
In conclusion, the analysis of Article 21 and its judicial expansion underscores its
vital role in safeguarding fundamental rights and liberties in society. Through
progressive interpretation and application by the judiciary, Article 21 has evolved
to encompass a wide array of rights, ensuring protection and dignity for all
individuals. This expansion not only reflects the dynamism of the legal system but
also reinforces the commitment to upholding human rights principles in a rapidly
changing world.
References
[Link]
%20personal,of%20life%20and%20personal%20liberty.
(Book) VN Shukla’s Constitution of India, Author- MP Singh, Publication- EBC
Munn v. Illinois 94 US 113 (1877)
Carolie Mullin v. UT of Delhi AIR 1984 SC 746
AK Gopalan [Link] of Madras AIR 1950 SC 27
Kharak Singh v. State of U.P AIR 1963 SUPREME COURT 1295
Maneka Gandhi case AIR 1978 SC 597
Gobind v. State of MP 1975 SCR (3) 946
[Link] v. State of TN 1994 SCC (6) 632
'X’ [Link] ‘Z’ AIR 1997 SC 568
People’s Union for Civil Liberties v. Union of India AIR 1999 SUPREME COURT 495
Sharda v. Dharmapal 2003 4 SCC 493
[Link] v. U.O.I. AIR 2017 SUPREME COURT 4161
Navtej Singh Johar v. U.O.I. AIR 2018 SUPREME COURT 4321
Satwant Singh Sawhney v. passport officer 1967 AIR 1836
Vishaka v. State of Rajasthan AIR 1997 SC 3011
State of Maharashtra v. Prabhakar Pandurang Sanzgiri 1966 AIR 424
Sunil Batra v. Delhi Admn 1978 AIR 1675
Jagmohan Singh v. State of U.P 1973 AIR 947
Bachan Singh v. State of Punjab 1980 2 SCC 684(10)
Reliance Petro Chemicals Ltd. V. Proprietors of India Express Newspaper Bombay
1989 AIR 190
Navtej Singh Johar vs Union Of India (2017) 9 SCC 1
D.K Basu v. State of WB AIR 1997 SUPREME COURT 610
Olga Tellis v. Bombay Municipal Corporation 1986 AIR 180
Common Cause v. Union of India (2018) AIR 2018 SUPREME COURT 1665
MC Mehta v. UNION OF INDIA 1987 AIR 1086
MC Mehta v. UOI 1987 SCR (1) 819