By | September 15, 2016

Article 21: Protection of Personal Life and Liberty: – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21, though couched in negative language, confers on every person the fundamental right to life and personal liberty. The two rights have been given paramount position by our Courts. The right to life which is the most fundamental of all is also the most difficult to define. Certainly it cannot be confined to a guarantee against the taking away of life; it must have a wider application. With reference to a corresponding provision in the 5th and 14th amendments of the U.S. Constitution, which says that no person shall be deprived of his “life, liberty or property without due process of law”.

The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’, according to the judicial view. Due process has two aspects. Substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary. Procedural due process envisages a reasonable procedure, i.e., the person affected should have fair right of hearing which includes four elements;

  • notice,
  • opportunity to be heard,
  • an impartial tribunal and
  • an orderly procedure

The term ‘life’ as here used something more is meant than mere animal existence by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

For some time the Court held that the view that right of life in Art. 21 does not include right to livelihood. After some controversy on the issue the Court has clearly held that right to livelihood is included in the right of life “because no person can live without the means of living, that is, the means of livelihood.

The Court has also observed that life ‘includes all that give meaning to a man’s life including his tradition, culture and heritage and protection of that heritage in its full measure’. Again, the Court has held that right to life includes the right to ‘a reasonable accommodation to live in’ and right to shelter, includes the necessary infrastructure to live with human dignity. The offence of rape has also been held to be a violation of the right of life under Art. 21. Right to self-preservation has also been recognized under the Article. Art. 21 has also been invoked for the upliftment of and dignified life for the prostitutes.

More importantly, in Unni Krishanan V. State of A.P. the Court has recognized a fundamental right to education in the right to life under Art.21. Taking help from Article 41 and 45 it has held that ‘every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity and development of the State. But this right does not include the right to participate in the student union activities and to contest union elections.

In Article 21, in contrast to with the American Constitution, the word ‘liberty’ is qualified by the word ‘personal’, leading to an inference that the scope of liberty under our Constitution is narrower than in the U.S. Constitution. Seemingly that was the impression drawn by some of the judges in A.K. Gopalan V. State of Madras. Though that case was concerned about the constitutionality of preventive detention of the petitioner which in any case was an infringement of the ‘personal liberty’ even in the narrowest sense of the term and therefore it may be said that the scope of ‘personal liberty’ was not an issue in that case, yet some of the learned judges looking at the difference in the expression in U.S. and Indian Constitutions 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 restraints. “But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words ‘personal liberty’ as the inter-relation between Article 19 and 21.

For the First time the meaning and scope of ‘personal liberty’ came up pointedly for consideration in Kharak Singh V. State of U.P. In that case validity of certain police regulations which, without any statutory basis, authorized the police to keep under surveillance persons whose names were recorded in the ‘history-sheet’ maintained by the police in respect of persons who are or are likely to become habitual criminals. Surveillance as defined in the impugned regulation included secret picketing of the house, domiciliary visits at night, periodical inquiries about the person, an eye on his movements, etc. The petitioner alleged that this regulation violated his fundamental right to movement in Article 19(1) (d) and ‘personal liberty’ in Art. 21. For determining the claim of the petitioner the Court, apart from defining the scope of Art. 19(1) (d) had to define the scope of ‘personal liberty’ in Art. 21.

The Court rejected that ‘personal liberty’ was confined to “freedom from physical restraint or freedom from confinement within the bounds of a prison” and held that “personal liberty” is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberty’ of man other than those dealt with in several clauses of Art.19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Art. 21 takes in and comprises the residue. He concluded that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated ‘personal liberty’ enshrined in Art. 21 and therefore the regulation was invalid insofar as it authorized domiciliary visits but the rest of it did not violate either Article 1(91)(d) or Art. 21. He also held that “the right to privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right.

Right to Privacy

Subba Rao, J. held that right to privacy “is an essential ingredient of personal liberty” and that the right to personal liberty is “a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures”.

Right to Travel

In Satwant Singh Sawhney V. A.P.O., New Delhi, it was held that right to travel abroad is included within the expression ‘personal liberty’ and, therefore, no person can 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 by the law of land sustaining the refusal of a passport to a person, its refusal amounts to an unauthorized deprivation of personal liberty guaranteed by Art. 21. This decision was accepted by Parliament and the infirmity was set right by the enactment of the Passport Act.

In A.K. Gopalan V. State of Madras, it was held that the expression ‘procedure established by law’ means procedure enacted by a law made by the State. The Supreme Court, by a majority, rejected that the argument that the ‘law’ in Art. 21 is used in the sense of jus and lex, and that it means the principles of natural justice on the analogy of ‘due process of law’ as interpreted by American Supreme Court.

In Maneka Gandhi V. Union of India, the passport authorities impounded the passport of Maneka Gandhi under S. 10(3) of the Passport Act which provides authorizes if it deems it necessary to do so in the interest of the sovereignty and integrity of India. Maneka challenged the order on the ground of violation of her fundamental right under Art. 21. One of the major grounds of challenge was that the order impounding the passport was null and void as it had been made without affording her an opportunity of being heard in her defence.

Bhagwati, J. in Maneka Gandhi case, established that the requirement of reasonableness of procedure in Art. 21 through Art. 14, some of the judges in that case and in some other subsequent cases have read it in Art. 21 itself and particularly in the word ‘law’ leading to the conversion of ‘procedure established by law’ into ‘due process of law’ in the American sense which the Constitution-makers had intended to avoid by replacing the latter expression by the former. Thus in Maneka Gandhi, it was said that the procedure in Art. 21 “has to be fair, just and reasonable, not fanciful, oppressive or arbitrary”. The ‘law’ in Art. 21 “is reasonable law, not any enacted piece”.

The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus has been established between these Articles. This means that a law prescribing a procedure for depriving a person of ‘personal liberty’ has to meet the requirements of Art. 19. Also, the procedure established by law in Art. 21 must answer the requirement of Art. 14 as well.

According to K. Iyer. J., no Article in the Constitution pertaining to a Fundamental Right is an island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic constitution have a synthesis.

Court held that as 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. Although the Passport Act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein.

Again in Sunil Batra V. Delhi Administration, it was held that “true our Constitution has no ‘due process’ clause but the consequence is same” and added that Art. 21 is the counterpart of the procedural due process in the U.S.

The Supreme Court has made a novel use of Art. 21 viz., to ensure that the female workers are nor sexually harassed by their male co-workers at their work. In Vishaka V. State of Rajasthan, the Supreme Court has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Art. 14, 15 and 21 of the constitution.

In Mithu V. State of Punjab, a constitutional bench, for the first time and unanimously invalidated a substantive law – Section 303 of the IPC – which provided for the mandatory death sentence for murder committed by a life convict.

After posing the question of reasonableness of Section 303 under Art. 21 the Court concluded that “it is difficult to hold that the prescription of the mandatory sentence of death answers the test of reasonableness” and added that “a provision of law which deprives the Court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair”. Relying exclusively on Art. 21 it was concurred that “so final, so irrevocable the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Thus not merely procedure but a substantive law was invalidated under Art. 21.
In Mr. X V. Hospital Z, the Supreme Court was called upon to decide a very crucial questioning the modern social context, viz., can a doctor disclose to the would be wife of a person that he is HIV positive? Does it infringe the right to privacy of the person concerned?
The Court has answered both of these question in the negative. The Court has argued that the lady proposing to marry such a person is also entitled to all the human rights which are available to any human being.

The ‘right of life’ guaranteed by Art. 21 “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”. Moreover when two Fundamental Rights clash, viz., that of the person concerned (right to Privacy) and that of the would be wife (to live a healthy life also guaranteed by Art. 21) “the Right which would advance the public morality or public interest would alone be enforced through the process of Court.

It has been noted that the impression of exclusiveness among different fundamental rights, particularly between Art. 19 and 21, which Gopalan had left has been removed by Maneka Gandhi. It has also been noted that by establishing a relationship among Art. 14, 19 and 21, particularly between Art. 14 and 21, a requirement of reasonableness of law providing for deprivation of life or liberty has been created. The creation of requirement of reasonableness is different thing, but otherwise no controversy apparently ever existed about the relationship between Art. 14 and 21.

It is only in respect of relationship between Art. 19 and 21 that the controversy has exited. The test is whether the law penalizes an activity protected by Art. 19. if it does, its validity shall have to be tested under Art. 19 though it may also be tested under Art. 21 if the reasonableness of procedure for penal sanctions is also questioned.

There are many more heads concerning the expansion of Art. 21 in different directions such as:
(i) Right of Prisoners:- In Sunil Batra V. Delhi Administration, the solitary confinement of a prisoner, who was awarded the capital sentence for having committed the offence of murder under the Prisons Act, was held bad as it was imposed not as a consequence of violation of the prison discipline but on the ground that the prisoner was one under sentence of death. Court pointed out that ground that the conviction of a person for a crime did not reduce him to a non-person vulnerable to major punishment imposed by jail authorities without observance of procedural safeguards.

(ii) Right of Inmates of Protective Homes: – Appropriate directions have been given by the courts to the inmates of protective and remand homes for woman and children for providing suitable human conditions in the homes and for providing appropriate machinery for effective safeguard of their interests.

(iii) 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 Art. 21.

(iv) Right to Speedy Trial:- In Hussainara Khatoon V. Home Secretary, Bihar, it was held that a procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded reasonable, just or fair so as to be in conformity with the requirement of Art. 21. Bhagwati, J. observed that although the right to speedy trial is not specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of Art. 21. The court re-emphasized the expeditious review for withdrawal of cases against under trial for more than two years. The court reiterated that the investigation must be completed within a time-bound program me in respect of under trials and gave specific orders to be followed for quick disposal of cases of under trials. It was held that continuance of such detention of under trials held by periods more than the maximum term imposable on them on conviction, is clearly illegal and in violation of that fundamental right under Art. 21.

(v) Right against Cruel and Unusal Punishment.

(vi) Right of Release and Rehabilitation of Bonded Labour: – Art. 21 read with the Directive Principles of State Policy and the Bonded Labour System (Abolition) Act 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 Art. 21.

(vii) Right of Compensation:- Right to claim monetary compensation for the violation of the right in Art. 21 has also been recognized in several cases.

(viii) Right to Know: – The courts have also recognized the right to know in Art. 21 as a necessary ingredient of particularly democracy.

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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