This article attempts to examine the standards adopted for protecting the Right to Life and Personal Liberty. It further explains Article 21, which had lain dormant for nearly three decades and was brought to life by the landmark judgement of the Supreme Court’s decision in Maneka Gandhi v. Union of India(1978). It also goes through how Article 21… Read More »

This article attempts to examine the standards adopted for protecting the Right to Life and Personal Liberty. It further explains Article 21, which had lain dormant for nearly three decades and was brought to life by the landmark judgement of the Supreme Court’s decision in Maneka Gandhi v. Union of India(1978). It also goes through how Article 21 has been on its journey to emerge as the Indian version of the American concept of due process and deals with the emanating judicial trends...

This article attempts to examine the standards adopted for protecting the Right to Life and Personal Liberty. It further explains Article 21, which had lain dormant for nearly three decades and was brought to life by the landmark judgement of the Supreme Court’s decision in Maneka Gandhi v. Union of India(1978). It also goes through how Article 21 has been on its journey to emerge as the Indian version of the American concept of due process and deals with the emanating judicial trends in the Right to Life and Personal Liberty.

Introduction: Right to Life & Personal Liberty

Right to life and personal liberty is the most cherished and pivotal fundamental human right around which other rights of the individual revolve and, therefore, the study assumes great significance. The study of the right to life is indeed a study of the Supreme Court as a guardian of fundamental human rights.

Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right. It guarantees the right to life and personal liberty to citizens and aliens and is enforceable against the State. The new interpretation of Article 21 in Maneka Gandhi’s case has led to a new era of expansion of the horizons of right to life and personal liberty.


The Fundamental Rights under Article 19 are conferred only on citizens, but the rights mentioned in clauses (a) to (f) are available to all persons whether citizens or not.

In a number of cases, the Supreme Court has held that foreigners are entitled to the protection under Articles 21 and 22.

On the question of applicability of Article 21 to non-citizens, the Supreme Court has emphasized that even those who come to India as tourists also “have the right to live, so long as they are here, with human dignity, just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.”

Protection of Life and Personal Liberty: Article 21

Article 21 lays down that,

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

Article 21 assures every person the right to life and personal liberty. The term ‘life’ has been given a very expansive meaning. The term ‘personal liberty’ has been given a very wide amplitude covering a variety of rights which goes on to constitute the personal liberty of a citizen. Its deprivation shall only be as per the relevant procedure prescribed in the relevant law, but the procedure has to be fair, just and reasonable.

I. Life

The expression ‘life’ under Article 21 has been interpreted by the Supreme Court rather liberally and broadly. Over time, the Court has been giving an expansive interpretation to the term ‘life’. The Court has often quoted the following observation of Field, J., in Munn v. Illinois, an American case :

“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 the amputation of an arm or leg….”

In Francis Coralie v. Union Territory of Delhi[1], the Supreme Court has held that the expression ‘life’ in Article 21 does not merely connote physical or animal existence but embraces something more.

“We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessity of life such as adequate nutrition, clothing and shelter over their head”.

A person’s reputation is a facet of his right to life under Article 21 of the Constitution.

In D.B.M. Patnaik v. State of Andhra Pradesh[2], some prisoners challenged some restrictions as violating their rights under Article 21. The Supreme Court stated that a convict is not denuded of all his Fundamental Rights. Imprisonment after conviction is bound to curtail some of his rights, e.g., freedom of speech or movement, but certain other rights, e.g., the right to hold property, could still be enjoyed by a prisoner. A convict could also claim that he should not be deprived of his life or personal liberty except according to the procedure established by law.

The Supreme Court has stated in R.M. Malkani v. State of Maharashtra[3], with reference to Article 21, that the telephonic conversation of an innocent citizen would be protected by Courts against wrongful or high-handed interference by tapping of the conversation, by the police. The protection is not for the guilty against the efforts of the police to vindicate the law.

II. Personal liberty

The expression ‘personal liberty’ used in Article 21 has also been given a liberal interpretation. It does not merely mean the liberty of the body, i.e., freedom from physical restraint or freedom from confinement within the bounds of a prison or freedom from arrest or detention, from false imprisonment or wrongful confinement, but means much more than that. The term ‘personal liberty’ is not used in a narrow sense but has been used in Article 21 as a compendious term to include within it, all those varieties of rights of a person which go to make up with the personal liberty of a man.

Important Judgements

The Supreme Court held in Kharak Singh v. State of Uttar Pradesh,[4] that while night domiciliary visits by police (involving intrusion into his residence, knocking at his door and disturbing his sleep and ordinary comfort) constitute an infringement of personal liberty of an individual enshrined in Art. 21, secret picketing of the house by the police or shadowing of his movements do not fall under Art. 21 but under Art. 19(1) (d).

But the minority view expressed by Subba Rao, J., adopted a much wider concept of personal liberty. He differed from the majority view that Art. 21 excluded what was guaranteed by Art. 19. He pleaded for an overlapping approach, i.e., both Arts. 21 and 19 are not excluding, but overlapping, each other.

Agreeing with the approach of the minority in Kharak Singh, Bhagwati, J., observed in Maneka Gandhi:

“The expression ‘personal liberty’ in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct Fundamental Rights and given additional protection under Article 19”.

Preventive justice requires an action to be taken to prevent apprehended objectionable activities. But, at the same time, since a person’s greatest of human freedoms i.e. personal liberty, is deprived, the laws of preventive detention are strictly construed.

Further, a meticulous compliance with the procedural safeguard, however technical, is mandatory. Personal liberty protected under Art. 21 is so sacrosanct and so high in the scale of Constitutional values that it is the obligation of the detaining authority to show that the impugned detention, meticulously accords with the procedure established by law.

Procedure established by law

The most important words in this provision are procedure established by law. Immediately after the Constitution became effective, the question of interpretation of these words arose in the famous A.K.Gopalan case where the validity of the Preventive Detention Act, 1950, was challenged.

  1. K. Gopalan v. State of Madras[5]

Issue: Whether Art. 21 envisages any procedure laid down by a law enacted by a legislature, or whether the procedure should be fair and reasonable?

On behalf of Gopalan, an attempt was made to persuade the Supreme Court to hold that the Courts could adjudicate upon the reasonableness of the Preventive Detention Act, or for that matter, any law depriving a person of his personal liberty.


  1. The word ‘law’ in Art. 21 does not merely mean enacted law, but incorporates principles of natural justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these principles in the procedure laid down by it.
  2. The reasonableness of the law of preventive detention ought to be judged under Art. 19.
  3. The expression ‘procedure established by law’ introduces into India the American concept of procedural due process, which enables the Courts to see whether the law fulfils the requisite elements of a reasonable procedure.

Thus, in Gopalan, an attempt was made to win for a detenue better procedural safeguards than were available to him under the relevant detention law and Art. 22. But all the arguments were rejected by the Supreme Court.


The Supreme Court ruled by majority that the word ‘law’ in Art. 21 was used in the sense of lex (state-made law) and not jus. The expression ‘procedure established by law’ would, therefore, mean the procedure as laid down in an enacted law.


On the other hand, Fazl Ali, J., disagreeing with the majority view, held under the principle of natural justice that, ‘no one shall be condemned unheard’ was part of the general law of the land and the same should accordingly be read under Art. 21.

Gopalan settled two major points in relation to Art. 21.

  1. 19, 21 and 22 were mutually exclusive and independent of each other and that Art. 19 was not to apply to a law affecting personal liberty to which Art. 21 would apply.
  2. A ‘law’ affecting life or personal liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure. The legislature was free to lay down any procedure for this purpose.

Maneka Gandhi: The New Approach

Maneka Gandhi v. Union of India[6]is a landmark case which showcased that Art. 21, as interpreted in Gopalan, could not play any role in providing any protection against any harsh law, seeking to deprive a person of his life or personal liberty. It is the dissent of Fazal Ali J which is vindicated by the law, subsequently, developed by the Supreme Court culminating in Maneka.

In Maneka Gandhi case, the Supreme Court has shown great sensitivity to the protection of personal liberty. The Court has re-interpreted Art. 21 and practically overruled Gopalan, which can be regarded as a highly creative judicial pronouncement on the part of the Supreme Court.

Facts: S. 10(3)(c) of the Passport Act authorises the passport authority to impound a passport if it deems it necessary to do so in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interest of the general public. Maneka’s passport was impounded by the Central Government under the Passport Act in the interest of the general public.

Maneka filed a writ petition challenging the order on the ground of violation of her Fundamental Rights 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.


The Court reiterated the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus has been established between these three Articles. There is a kind of mutual relationship between Arts. 21 and 19. 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 under 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.

The most significant and creative aspect of the Maneka Gandhi case, is the re-interpretation by the Court of the expression ‘procedure established by law’ used in Art. 21. The Court now gave a new orientation to this expression.

Article 21 would no longer mean that law could prescribe some semblance of procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that the procedure must satisfy certain requisites in the sense of being fair and reasonable.

The procedure “cannot be arbitrary, unfair or unreasonable”. The concept of reasonableness must be projected in the procedure contemplated by Art. 21. The Court has now assumed the power to adjudge the fairness and justness of procedure established by law to deprive a person of his personal liberty. The Court has reached this conclusion by holding that Arts. 21, 19 and 14 are not mutually exclusive, but are inter-linked.

The procedure contemplated by Art. 21 must answer the test of reasonableness in order to conform with Art. 14. Thus, the procedure in Art. 21, “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 Art. 21 would not be satisfied”.

According to Iyer, J.,

“procedure in Art. 21 means fair, not formal, procedure; ‘law’ is reasonable law and not any enacted piece. This makes the words “procedure established by law” by and large synonymous with the ‘procedural due process’ in the U.S.A. This makes the right of hearing a component part of natural justice.”

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.

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

It is thus, now well established that the “procedure established by law” to deprive a person of his life and personal liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or oppressive, that the procedure to be valid must comply with the principles of natural justice.


Ordinarily, the word ‘law’ in Art. 21 denotes an ‘enacted’ law, i.e. a law made by a Legislature. But that is not all. Art. 21 does not mean merely what is enacted by a Legislature. ‘Law’ may take several other forms as well. Some forms are given below,

  1. An ordinance is as much a law as an Act passed by a legislature and is subject to the same inhibitions. Thus, the word ‘law’ in Art. 21 would include an ‘ordinance’.
  2. Regulations made under the Police Act fall under Art. 21.
  3. The rules made by the Supreme Court under Art. 145 are comprised within the term ‘law’ in Art. 21. Rules made by the High Court under Art. 225 fall within the scope of Art. 21.

Extended view of Article 21

The right to life enshrined in Art. 21 has been liberally interpreted so as to mean something more than mere survival and mere existence or animal existence. It, therefore, includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.

The Supreme Court has taken the view that in order to treat a right as a Fundamental Right, it is not necessary that it should be expressly stated as a Fundamental Right. Accordingly, the Supreme Court has implied a whole bundle of human rights out of Art. 21, by reading the same along with some Directive Principles. Art. 21 is to be read not only with directive principles but also fundamental duties.

Article 21 is couched in negative phraseology. But by its creative interpretation of Art. 21 in various cases, the Supreme Court has come to impose a positive obligation upon the state to take steps for ensuring to the individual a better enjoyment of his life and dignity, e.g.,

  • maintenance and improvement of public health;
  • providing humane conditions in prisons and protective homes;
  • improvement of the environment etc.

However, the Court has been careful to point out that the individuals’ rights cannot be absolute in a welfare state. It has to be subservient to the rights of the public at large.

A few unenumerated rights under Article 21 have been discussed here.

  1. Quality of life

The Court expanded the scope of Art. 21 that ‘life’ in Art. 21 does not mean merely ‘animal existence’ but living with ‘human dignity’. Art. 21 has come to be regarded as the heart of the Fundamental Rights.

Art. 21 has enough of positive content in it and it is not merely negative in its reach. Over time, since Maneka Gandhi, the Supreme Court has been able to imply, by its creative interpretation, several Fundamental Rights out of Art. 21. This has been possible by reading Art. 21 along with some Directive Principles. Art. 21 has thus emerged into a multi-dimensional Fundamental Right.

Right to reputation is a facet of the right to life of a citizen under Art. 21. It takes within its sweep,

  1. right to reputation,
  2. right to breathe unpolluted air
  3. personal liberty
  4. right to livelihood
  5. right to privacy.

It has been reiterated that since the right to reputation is a person’s valuable asset and is a facet of his right under Article 21, the court has inherent power to grant interim bail pending the disposal of the regular bail.

  1. Right to travel abroad

In Satwant Singh v. A.P.O.[7]the right to travel abroad was held to be an aspect of ‘personal liberty’ of an individual 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. Hence, a passport for travel cannot be denied except according to procedure established by law.

  1. Right to procreate

A woman’s right to make reproductive choices has been held to be a dimension of “personal liberty” within the meaning of Art. 21. The court has said that,

“There is no doubt that a women’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Art. 21 of the Constitution of India. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”[8]

  1. Right to Free Legal Aid and Right to Appeal

Right of the accused to be defended by a legal practitioner of his choice is protection, and any interference herein, would be a violation of Art. 21.

In M.H. Hoskot v. State of Maharashtra[9], the Supreme Court said while holding free legal aid as an integral part of fair procedure the Court explained that “ 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.

  1. Right against custodial violence

Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Torture, assault and death in custody raise serious questions about the credibility of the rule of law and administration of the criminal justice system.

The Apex Court has stated in D.K. Basu v. State of West Bengal[10]:

“Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law”.

The Supreme Court has stressed that police torture is “disastrous to our human rights awareness and humanist constitutional order.” The Court has squarely placed the responsibility to remedy the situation on the State.

  1. No right to trade and commerce under article 21

The Supreme Court has ruled in Sodan Singh v. New Delhi Municipal Committee[11] that, Art. 21 does not cover freedom of trade or commerce. “The right to carry on any trade or business and the concept of life and personal liberty within Art. 21 are too remote to be connected together”.

  1. Right to write a Book

In the State of Maharashtra v. Prabhakar Pandurang[12], the petitioner while detained in preventive detention wrote a scientific book, but the government refused permission to him to send it to his wife for publication. The Supreme Court held it to be an infringement of the detenu’s personal liberty as under Art. 21 and prohibiting a person from writing a book without there being any legal provision to that effect would be unconstitutional.

  1. Right to livelihood

If the right to livelihood is not treated as a 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. The Court has observed on this point:

“The State may not by affirmative action, be compellable 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 by Article 21.”

The court has observed that there exists a close nexus between ‘life’ and ‘livelihood’. Deprivation of livelihood would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet such deprivation of life would not be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life.

  1. Right to a healthy environment

Apart from several personal rights, which the Supreme Court has spelt out of Art. 21, as stated above, the Supreme Court has made a signal contribution to the welfare of the people by using Art. 21 for the improvement of the environment.

Right to live being a Fundamental Right under Art. 21, includes the right to 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 a right to take recourse to Art. 32 or 226 of the Constitution for removal of pollution of water or air which may be detrimental to the quality of life.

On the question of the relationship between ecology and Art. 21, the philosophy of the Court is that, since the right to life is a Fundamental Right under Art. 21, and since the right to life connotes “quality of life”, a person has a right to the enjoyment of pollution-free water and air to enjoy life fully.

Hygienic environment is an integral facet of a healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment.

In M.C. Mehta v. Union of India[13], the Supreme Court issued several guidelines and directions for the protection of the Taj Mahal, an ancient monument, form environmental degradation. The Court has further observed that,

“The ‘polluter pays’ principle, as interpreted by this Court, means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.”

This means that the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area.

Noise pollution

The Supreme Court has recognized that noise constitutes a real and pertinent danger to people’s health and laid down certain tests for permissible limits. The Court observed that the concept of noise pollution standards was relative and must relate and be dependent upon the person concerned and the place of occurrence. The law will not take care of a super-sensitive person but the standard is of an average and rational human being in society.

  1. Right to medical care

In Parmanand Katara v. Union of India[14], the Supreme Court has considered a very serious problem existing at present: in a medico-legal case (such as an accident) the doctors usually refuse to give immediate medical aid to the victim till legal formalities are completed. In some cases, the injured die for want of medical aid pending the completion of legal formalities.

The Supreme Court has now very specifically clarified that preservation of life is of paramount importance. Once life is lost, the status quo ante cannot be restored. It is the duty of the doctors to preserve life whether the concerned person is a criminal or an innocent person. Art. 21 casts on the State an obligation to preserve life.

The Court has also observed:

“Art. 21 of the Constitution casts an obligation on the State to preserve life. The patient whether he be an innocent or be a criminal, liable to punishment under the laws of the society, it is the responsibility of those who are incharge 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 be tantamount to be 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.”

The Court has ruled that the Constitution envisages the establishment of a welfare state, and in a welfare state, the primary duty of the government is to provide adequate medical facilities for the people. The Government discharges this obligation by running hospitals and health centres to provide medical care to those who need them.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal[15], a person suffering from serious 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.

In this case, the Supreme Court further developed the right to emergency treatment and went on to state 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 but maintained that it was necessary for the State to provide for the resources to give effect to the entitlement of the people to receiving emergency medical treatment.

11. Right to shelter

In Shantisar Builders v. Narayan Khimlal Totame[16], the Supreme Court has ruled that the right to life is guaranteed in any civilized society. This would take within its sweep the right to food, the right to clothing, the right to decent environment and a 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. For an 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.

In several other cases, the Court has observed that the protection of life guaranteed by Art. 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The right to residence and settlement is regarded as a facet of inseparable meaningful right to life under Art. 21. Food, shelter and clothing are minimal human rights.

  1. Right against sexual harassment

The Supreme Court has made a novel use of Art. 21 viz., to ensure that the female workers are not sexually harassed by their male co-workers at their places of work.

In Vishaka v. State of Rajasthan[17], the Supreme Court has declared sexual harassment of a working woman at her place of work, as amounting to a violation of rights of gender equality and right to life and liberty which is a clear violation of Arts. 14, 15 and 21 of the Constitution.

  1. Right against rape

Rape has been held to be a violation of a person’s Fundamental Right guaranteed under Art. 21. “Right to Life” means “the Right to live with human dignity”. Right to ‘life’ would, therefore, include all those aspects of life which go to make life meaningful, complete and worth living.”

Rape 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 contained in Art. 21.

In Bodhisattwa Gautam v. Subhra Chakraborty[18], the Supreme Court held that,

“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 pushes 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”.

The Supreme Court has ruled that it has the power to award interim compensation to the victim of rape before the final conviction of the offender. It can be seen that the Court has used Art. 21 against private parties.

  1. Right to privacy

Right to privacy is not enumerated as a Fundamental Right in the Constitution. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the Constitution read with the Directive Principles of State Policy.

Important cases:

A. In Kharak Singh case[19], a question was raised whether the right to privacy could be implied from the existing Fundamental Rights, such as, Arts. 19(1)(d), 19(1)(e) and 21. The majority of the Judges participating in the decision said of the right to privacy that “Our Constitution does not in terms confer any like constitutional guarantee.”

On the other hand, the minority opinion ( Subba Rao, J.) was in favour of inferring the right to privacy from the expression ‘personal liberty’ in Art. 21. In the words of Subba Rao, J.:

“Further, 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…….”

B. In Govind v. State of Madhya Pradesh[20], the Supreme Court undertook a more elaborate appraisal of the right to privacy.

In the Govind case, the Court considered the constitutional validity of a regulation which provided for surveillance by way of several measures indicated in the said regulation. The Court upheld the regulation by ruling that Art. 21 was not violated as the regulation in question was “procedure established by law”, in terms of Art. 21. The Court also accepted a limited Fundamental Right to privacy “as an emanation” from Arts. 19(a), (d) and 21. The right to privacy is not, however, absolute; reasonable restrictions can be placed thereon in public interest under Art. 19(5).

C. In R. Rajagopal v. State of Tamil Nadu[21], the Supreme Court has asserted that in recent times the right to privacy has acquired constitutional status; it is “implicit in the right to life and liberty guaranteed to the citizens” by Art. 21. It is a “right to be let alone.”

D. The Supreme Court has observed in People’s Union for Civil Liberties v. Union of India[22] and held that,

“We have, therefore, no hesitation in holding that 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 right to privacy has now become established in India, but as a part of Art. 21, and not as an independent right in itself, as such a right, by itself, has not been identified under the Constitution. The Court has, however, refused to define privacy saying,

“As a concept, it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case”.

This means that whether the right to privacy can be claimed or has been infringed in a given situation would depend on the facts of the said case, and the view, the Court takes of the matter.

E. Navtej Singh Johar v. Union of India[23], proved to be another milestone in the development of the right to privacy and an important precedent delivered by five-judge Bench. The Section 377 of the Indian Penal Code has been partially struck down by decriminalizing same-sex relations between consenting adults. Now, LGBT individuals are legally allowed to engage in consensual intercourse. The Apex Court has upheld provisions in Section 377, IPC, that criminalize non-consensual acts or sexual acts performed on animals.

Disclosure of diseases

In Mr X v. Hospital Z[24], the Supreme Court was called upon to decide a very crucial question in 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 observed that the “right to 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.”

The Bombay High Court has in MX of Bombay v. M/s. ZY[25], considered the important question of whether the state can deny job opportunities to an HIV Positive person. In the instant case, a casual labourer was denied work because he tested HIV Positive.

The High Court has ruled in the instant case, that it is not arbitrary to deny the job of a casual worker to an HIV positive person because such a person can discharge his normal duties and he poses no risk to any fellow worker.

No Right to Die

Art. 21 confers on a person the right to live a dignified life. Does it also confer a right not to live or a right to die if a person chooses to end his life?

In P. Rathinam v. Union of India[26], a two-judge Division Bench of the Supreme Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court held that the right to life embodied in Art. 21 also embodies in it a right not to live a forced life, to his detriment disadvantage or disliking.

The Rathinam ruling came to be reviewed by a Full Bench of the Court in Gian Kaur v. State of Punjab[27].

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”

Constitutional validity of death sentences

The question of constitutional validity of the death sentence has been raised before the Supreme Court several times vis-a-vis Arts. 14, 19 and 21. Art. 19 deals with several freedoms but not directly with the freedom to live.

The Supreme Court upheld the constitutional validity of the death penalty in Rajendra Prasad v. State of Uttar Pradesh[28]. The Court did agree with the proposition that, as death penalty finally deprives the accused of his right to life and other Fundamental Rights, the validity of such a punishment can be tested with reference to Arts. 14, 19 and 21.

Art. 21 guarantees fair procedure; Art. 19 is based on reasonableness of deprivation of freedom to live and exercise the seven liberties guaranteed therein; Art. 14 is an assurance of non-arbitrary and civilized punitive treatment. Art. 14 ensures that principled sentences of death, not arbitrary or indignant capital penalty, shall be imposed.

The death sentence should be imposed only if otherwise public interest, social defence and public order would be smashed irretrievably. “Special reasons” necessary for imposing death penalty must relate, not to the crime, as such, but to the criminal. The crime may be shocking and yet the criminal may not deserve a death penalty. The extreme penalty can be invoked only in extreme situations.

This Article clearly brings out the implication that the founding fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. The procedure provided in the Criminal Procedure Code for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust.

The Court, however, emphasized that the death penalty is an exception rather than the rule and it ought to be imposed only in the ‘gravest of cases of extreme culpability’, or in the ‘rarest of rare’ cases when the alternative option is unquestionably foreclosed.

In Machhi Singh v. State of Punjab[29], the Supreme Court has emphasized that death penalty need not be inflicted except in the “gravest of cases of extreme culpability” and that “life imprisonment is the rule and death sentence is an exception”.

Right against public hanging

In Attorney General of India v. Lachma Devi[30], the Supreme Court has ruled that execution of a death sentence by public hanging would be a barbaric practice and it clearly contravenes Art. 21. The Court has made it crystal clear that a barbaric crime attracting death sentence does not have to be visited with a barbaric penalty such as public hanging. If any Jail Manual of any State prescribes public hanging then the Supreme Court would declare such provision as void, unconstitutional and violative of Art. 21 of the Constitution.

Delayed execution of death sentence

Another principle evolved by the Supreme Court in relation to death sentences is that if there is a prolonged delay in execution of a death sentence then it would be an “unjust, unfair and unreasonable” procedure to execute the sentence. Prolonged delay in the execution of a death sentence is dehumanizing and deprives a person of his life and is an unjust, unfair and unreasonable way so as to offend Art. 21.

Important Cases

In Vatheeswaran v. State of Tamil Nadu[31], the Court opined that the delay of two years would make it unreasonable to execute a death sentence. The cause of delay was immaterial. The accused himself may be responsible for the delay. In such a case, the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead.

But, in Sher Singh v. State of Punjab[32], the Supreme Court observed that, the implication of Art. 21 is that a prisoner who has experienced living death for years on end is entitled to come to the Court requesting it to examine the question whether, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed.

The Court, in this case, differed from the Vatheeswaran view and now ruled that “no hard and fast rule” can be laid down as regards how much delay should be there in executing the death sentence before it can be commuted.


M.P. Jain, Indian Constitutional Law, Ed. 6th (2010)

[1] 1981 AIR 746, 1981 SCR (2) 516

[2] 1974 AIR 2092, 1975 SCR (2) 24

[3] 1973 AIR 157

[4] AIR 1963 SC 1295

[5] 1950 AIR 27

[6] 1978 AIR 597, 1978 SCR (2) 621

[7] 967 AIR 1836, 1967 SCR (2) 525

[8] Neelam Choudhary v. Union Of India, Writ Petition No. 6430 of 2018

[9] 1978 AIR 1548

[10] (1997) 1 SCC 416

[11] AIR 1989 SC 1988

[12] AIR 1966 SC 424

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

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

[15] 1996 SCC (4) 37, JT 1996 (6) 43

[16] AIR (1990) SC 630

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

[18] 1996 AIR 922, 1996 SCC (1) 490

[19] AIR 1963 SC 1295

[20] 1975 AIR 1378, 1975 SCR (3) 946

[21] 1995 AIR 264, 1994 SCC (6) 632

[22] 1982 AIR 1473, 1983 SCR (1) 456

[23] W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

[24] AIR 1995 SC 495

[25] AIR 1997 Bom 406.

[26] 1994 AIR 1844, 1994 SCC (3) 394

[27] 1996 AIR 946, 1996 SCC (2) 648

[28] 1979 AIR 916

[29] 1983 AIR 957

[30] 1986 AIR (SC) 467

[31] AIR 1981 SC 643

[32] AIR 1983 SC 465

  1. Right To Constitutional Remedies | Explained
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Updated On 6 Jun 2020 11:52 AM GMT
Aparna Ramamoorthy

Aparna Ramamoorthy

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