By Riya Jain, UILS Panjab University
Editor’s Note: It is very evident that the judiciary has evolved from a positivist institution to an activist in the 20th century. However, when it comes to Article 21 of the Constitution of India, the judiciary has not only been involved in judicial activism but also judicial creativity. This paper explains how the trend of interpreting Article 21 has changed over the years and the various rights that fall under it.
Article 21 reads as:
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws.
Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.
Article 21 secures two rights:
1) Right to life, and
2) Right to personal liberty.
The Article prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.
Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).
MEANING AND CONCEPT OF ‘RIGHT TO LIFE’
‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right to life as interpreted and applied by the Supreme Court of India.
Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.
Right to life is fundamental to our very existence without which we cannot live as a human being and includes all those aspects of life, which go to make a man’s life meaningful, complete, and worth living. It is the only article in the Constitution that has received the widest possible interpretation. Under the canopy of Article 21, so many rights have found shelter, growth, and nourishment. Thus, the bare necessities, minimum and basic requirements that are essential and unavoidable for a person is the core concept of the right to life.
In the case of Kharak Singh v. State of Uttar Pradesh[i], the Supreme Court quoted and held that:
By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
In Sunil Batra v. Delhi Administration[ii], the Supreme Court reiterated with the approval the above observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.
Right To Live with Human Dignity
In Maneka Gandhi v. Union of India[iii], the Supreme Court gave a new dimension to Art. 21 and held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi[iv], observed that:
“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”
Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti Morcha v. Union of India[v]. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.
“These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”
Following the above-stated cases, the Supreme Court in Peoples Union for Democratic Rights v. Union of India[vi], held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.
Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under various labor laws are clearly intended to ensure basic human dignity to workmen. He held that the non-implementation by the private contractors engaged for constructing a building for holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21[vii].
In Chandra Raja Kumar v. Police Commissioner Hyderabad[viii], it has been held that the right to life includes right to live with human dignity and decency and, therefore, holding of beauty contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The government is empowered to prohibit the contest as objectionable performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.
In State of Maharashtra v. Chandrabhan[ix], the Court struck down a provision of Bombay Civil Service Rules, 1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution.
Right Against Sexual Harassment at Workplace
Art. 21 guarantees the right to life right to life with dignity. The court in this context has observed that:
“The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.”
Sexual Harassment of women has been held by the Supreme Court to be violative of the most cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.
In Vishakha v. State of Rajasthan[x], the Supreme Court has declared sexual harassment of a working woman at her work as amounting to the violation of rights of gender equality and rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution. In the landmark judgment, the Supreme Court in the absence of enacted law to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment laid down the following guidelines:
- All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
- Where such conduct amounts to specific offenses under I.P.C, or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
- The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own transfer.
In Apparel Export Promotion Council v. A.K. Chopra[xi], the Supreme Court reiterated the Vishakha ruling and observed that:
“There is no gainsaying that each incident of sexual harassment, at the place of work, results in the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India….
“In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honor of a female and needs to be eliminated….”
Right Against Rape
Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right to life right to live with human dignity. Right to life, would, therefore, include all those aspects of life that go on to make life meaningful, complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty[xii], the Supreme Court 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 pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.
Right to Reputation
Reputation is an important part of one’s life. It is one of the finer graces of human civilization that makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis[xiii] in Smt. Kiran Bedi v. Committee of Inquiry[xiv] held that “good reputation was an element of personal security and was protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The court affirmed that the right to enjoyment of life, liberty, and property. The court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to human society.”
The same American Decision has also been referred to in the case of State of Maharashtra v. Public Concern of Governance Trust[xv], where the Court held that good reputation was an element of personal security and was protected by the constitution, equally with the right to the enjoyment of life, liberty, and property.
It has been held that the right equally covers the reputation of a person during and after his death. Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person would certainly come under the scope of Art. 21.
In State of U.P. v. Mohammaad Naim[xvi], succinctly laid down the following tests while dealing the question of expunction of disgracing remarks against a person or authority whose conduct comes in consideration before a court of law:
- whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself.
- whether there is evidence on record bearing on that conduct justifying the remarks.
- whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation, and reserve.
In State of Bihar v. Lal Krishna Advani[xvii], a two-member commission of inquiry appointed to inquire into the communal disturbances in Bhagalpur district on 24th October, 1989, made some remarks in their report, which impinged upon the reputation of the respondent as a public man, without affording him an opportunity of being heard. The Apex Court ruled that it was amply clear that one was entitled to have and preserve one’s reputation and one also had the right to protect it.
The court further said that in case any authority, in the discharge of its duties fastened upon it under the law, transverse into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say in the matter. The court observed that the principle of natural justice made it incumbent upon the authority to give an opportunity to the person before any comment was made or opinion was expressed which was likely to prejudicially affect that person.
Right To Livelihood
To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include the right to livelihood. In Re Sant Ram[xviii], a case which arose before Maneka Gandhi case, where the Supreme Court ruled that the right to livelihood would not fall within the expression “life” in Article 21. The court said curtly:
“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”
But then the view underwent a change. With the definition of the word “life” in Article 21 in a broad and expansive manner, the court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni[xix], came to hold that “the right to life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation[xx], popularly known as the “Pavement Dwellers Case” a five-judge bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. That the court, in this case, observed that:
“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect if the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”
If the right to livelihood is not treated as 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[xxi].
In the instant case, the court further opined:
“The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.”
Emphasizing upon the close relationship of life and livelihood, the court stated:
“That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life[xxii].”
Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be according to procedure established by law which must be fair, just and reasonable. Therefore anyone who is deprived of the right to livelihood without a just and fair procedure established by law can challenge such deprivation as being against Art. 21 and get it declared void[xxiii].
In D.T.C. v. D.T.C. Mazdoor Congress[xxiv], a regulation conferring power on the authority to terminate the services of a permanent and confirm employee by issuing a noticing without assigning him any reasons and without giving him a hearing has been held to be a wholly arbitrary and violative of Art. 21.
In M. Paul Anthony v. Bihar Gold Mines Ltd[xxv]., it was held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasized that a government servant does not his right to life and other fundamental rights.
However, if a person is deprived of such a right according to procedure established by law which must be fair, just and reasonable and which is in the larger interest of people, the plea of deprivation of the right to livelihood under Art. 21 is unsustainable. In, Chameli Singh v. State of Uttar Pradesh[xxvi], it was held by the Hon’ble Supreme Court that when the land of a landowner was acquired by state in accordance with the procedure laid down in the relevant law of acquisition the right to livelihood of such a landowner even though adversely affected, his right to livelihood is not violated.
The Court opined that the state acquires land in exercise of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Art. 21 is unsustainable.
In M. J. Sivani v. State of Karnataka & Ors[xxvii]., the Supreme Court held that right to life under Article 21 does protect livelihood but added a rider that its deprivation cannot be extended too far or projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect on public moral or public order. It was, therefore, held that regulation of video games or prohibition of some video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the procedure unreasonable, unfair, or unjust.
HIV Not a Sound ground for Termination
In MX of Bombay Indian Inhabitants v. M/s. ZY[xxviii], it was held that a person tested positive for HIV could not be rendered “medically unfit” solely on that ground so as to deny him the employment. The right to life includes the right to livelihood. Therefore, the right to livelihood cannot hang on to the fancies of the individuals in authority. Even though the petitioner might have been a nuisance to others and conducted themselves either in a disorderly way or unbecoming on their profession but, that in itself, it is not sufficient for the executive to take away their source of livelihood by executive fiat.
Right to Work Not a Fundamental Right under Art.21
In Sodan Singh v. New Delhi Municipal Committee[xxix], the five-judge bench of the Supreme Court distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on trade or business is not included in the concept of life and personal liberty. Article 21 is not attracted in the case of trade and business.
The petitioners, hawkers doing business off the paved roads in Delhi, had claimed that the refusal by the Municipal authorities to them to carry on the business of their livelihood amounted to the violation of their right under Article 21 of the Constitution. The court opined that while hawkers have a fundamental right under Article 19(1) (g) to carry on trade or business of their choice; they have no right to do so in a particular place. They cannot be permitted to carry on their trade on every road in the city. If the road is not wide enough to be conveniently accommodating the traffic on it, no hawking may be permitted at all or may be permitted once a week.
Footpaths, streets or roads are public property and are intended to several general public and are not meant for private use. However, the court said that the affected persons could apply for relocation and the concerned authorities were to consider the representation and pass orders thereon. The two rights were too remote to be connected together.
The court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation[xxx] and held that “in that case the petitioners were very poor persons who had made pavements their homes existing in the midst of filth and squalor and that they had to stay on the pavements so that they could get odd jobs in the city. It was not the case of a business of selling articles after investing some capital.”
In Secretary, State of Karnataka v. Umadevi[xxxi], the Court rejected that right to employment at the present point of time can be included as a fundamental right under Right to Life under Art. 21.
Right to Shelter
In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited[xxxii], the right to shelter has been held to be a fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the state has to provide facilities and opportunities to build houses[xxxiii].
Upholding the importance of the right to a decent environment and a reasonable accommodation, in Shantistar Builders v. Narayan Khimalal Totame[xxxiv], the Court held that:
“The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.
“For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.”
In Chameli Singh v. State of U.P[xxxv]., a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. The Court observed that:
“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being[xxxvi].”
Right to Social Security and Protection of Family
Right to life covers within its ambit the right to social security and protection of family0. K. Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose[xxxvii], held that right to social and economic justice is a fundamental right under Art. 21. The learned judge explained that the right to life and dignity of a person and status without means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning the right to life and that Right to Social Security and Protection of Family were an integral part of the right to life.
In N.H.R.C. v. State of Arunachal Pradesh[xxxviii], (Chakmas Case), the supreme court said that the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit anybody or group of persons to threaten other person or group of persons. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.
In Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde[xxxix], it was held that right to economic empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to make their right of life and dignity of person meaningful.
In Regional Director, ESI Corporation v. Francis De Costa[xl], the Supreme held that security against sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of the Constitution of India.
In L.I.C. of India v. Consumer Education and Research Centre[xli], it was further held that right to life and livelihood included right to life insurance policies of LIC of India, but that it must be within the paying capacity and means of the insured.
Right Against Honour Killing
A division bench of Allahabad high court, In Surjit Kumar v. State of U.P.[xlii], took serious note on harassment, in ill-treatment and killing of a person who was a major, for wanting to get married to a person of another caste or community, for bringing dishonor to family since inter caste or inter-community marriage was not prohibited in law, the court said that such practice of “honor killing” was a blot on society. The court, therefore, directed the police to take strong measures, against those who committed such ‘honor killing’.
Right to Health
In State of Punjab v. M.S. Chawla[xliii], it has been held that- the right to life guaranteed under Article 21 includes within its ambit the right to health and medical care.
The Supreme Court in Vincent v. Union of India[xliv], emphasized that a healthy body is the very foundation of all human activities.Art.47, a Directive Principle of State Policy in this regard lays stress note on the improvement of public health and prohibition of drugs injurious to health as one of the primary duties of the state[xlv].
In Consumer Education and Research Centre v. Union of India[xlvi], the Supreme Court laid down that:
“Social justice which is a device to ensure life to be meaningful and livable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living. The health and strength of worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”
Right to Medical Care
In Parmananda Katara v. Union of India[xlvii], the Supreme Court has very specifically clarified that preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost, status quo ante cannot be restored[xlviii].’ It was held that it is the professional obligation of all doctors (government or private) to extent medical aid to the injured immediately to preserve life without legal formalities to be complied with the police.
Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. No law or state action can intervene to delay and discharge this paramount obligation of the members of the medical profession.
No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statute or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. The court also observed:
“Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment…. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.”
In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal[xlix], 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 of receiving emergency medical treatment[l].
It has been reiterated, time and again, that there should be no impediment to providing emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others[li], it was held that a hospital is duty bound to accept accident victims and patients who are in critical condition and that it cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the expenses or on the ground that there is no close relation of the victim available who can give consent for medical treatment[lii].
The court has laid stress on a very crucial point, viz., the state cannot plead lack of financial resources to carry out these directions meant to provide adequate medical services to the people. The state cannot avoid its constitutional obligation to provide adequate medical services to people on account of financial constraints.
But, in State of Punjab v. Ram Lubhaya Bagga[liii], the Supreme Court has recognized that provision of health facilities cannot be unlimited. The court held that it has to be to the extent finance permits. No country has unlimited resources to spend on any of its projects.
In Confederation of Ex-servicemen Association v. Union of India[liv], right to get free and timely legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A policy decision in formulating a contributory scheme for ex-servicemen and asking them to pay one-time contribution does not violate Art. 21 nor is it inconsistent with Part IV of the constitution.
No Right to Die
Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has been a difference of opinion on the justification of this provision to continue on the statute book.
This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the Hon’ble High Court struck down Section 309 of the IPC that provides punishment for an attempt to commit suicide by a person as unconstitutional.
In P. Rathinam v. Union of India[lv], 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 supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking.
The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued drudgery. Thus the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live a forced life. The court further emphasized that “attempt to commit suicide is in reality a cry for held and not for punishment.”
The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of Punjab[lvi]. The question before the court was that if the principal offense of attempting to commit suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having been declared unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of his fundamental right under Art. 21.
The Court overruled the decision of the Division Bench in the above-stated case and has put an end to the controversy and ruled that Art.21 is a provision guaranteeing the protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in the protection of life. The court observed further:
“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”
Euthanasia and Right to Life
Euthanasia is termination of the life of a person who is terminally ill or in a permanent vegetative state. In Gian Kaur v. State of Punjab[lvii], the Supreme Court has distinguished between Euthanasia and attempt to commit suicide. The court held that death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death that has already commenced.
The court further held that this may fall within the ambit of Right to live with human dignity up to the end of natural life. This may include the right of a dying man to also die with dignity when his life is ebbing out. This cannot be equated with the right to die an unnatural death curtailing the natural span of life.
Sentence of death –Rarest of rare cases
The issue of abolition or retention of capital punishment was dealt with by the law commission of India. After collecting as much available material as possible and assessing the views expressed by western scholars, the commission recommended the retention of capital punishment in the present state of the country. The commission held the opinion that having regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country, India could not risk the experiment of abolition of capital punishment.
In Jagmohan v. State of U.P[lviii], the Supreme Court had held that the death penalty was not violative of Articles 14, 19 and 21. It was said that the judge was to make the choice between the death penalty and imprisonment for life on the basis of circumstances, facts, and nature of crime brought on record during trial. Therefore, the choice of awarding death sentence was done in accordance with the procedure established by law as required under article 21
But, in Rajindera Parsad v. State of U.P.[lix], Krishna Iyer J., speaking for the majority, held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society. The learned judge plead for the abolition of the death penalty and said that it should be retained only for “white collar crimes”
However, in Bachan Singh v. State of Punjab[lx], the leading case of on the question, a constitution bench of the supreme court explained that article 21 recognized the right of the state to deprive a person of his life in accordance with just, fair and reasonable procedure established by valid law. It was further held that the death penalty for the offense of murder awarded under section 302 of I.P.C did not violate the basic feature of the constitution.
Right to get Pollution Free Water and Air
In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the constitution. The court observed:
“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Right to Clean Environment
The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not checked.
The following are some of the well-known cases on the environment under Article 21:
In M.C. Mehta v. Union of India (1988)[lxii], the Supreme Court ordered the closure of tanneries that were polluting water.
In M.C. Mehta v. Union of India (1997)[lxiii], the Supreme Court issued several guidelines and directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation.
In Vellore Citizens Welfare Forum v. Union of India[lxiv], the Court took cognizance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. The Court issued several directions to deal with the problem.
In Milk Men Colony Vikas Samiti v. State Of Rajasthan[lxv], the Supreme Court held that the “right to life” means clean surrounding which leads to healthy body and mind. It includes the right to freedom from stray cattle and animals in urban areas.
In M.C. Mehta v. Union of India (2006)[lxvi], the Court held that the blatant and large-scale misuse of residential premises for commercial use in Delhi violated the right to salubrious sand decent environment. Taking note of the problem the Court issued directives to the Government on the same.
In Murli S. Deora v. Union of India[lxvii], the persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of the act of smokers. Right to Life under Article 21 is affected as a non-smoker may become a victim of someone smoking in a public place.
Right Against Noise Pollution
In Re: Noise Pollution[lxviii], the case was regarding noise pollution caused by obnoxious levels of noise due to bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of such noise making crackers and observed that:
“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It guarantees the right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person’s life meaningful, complete and worth living. The human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet within his house has a right to prevent the noise as pollutant reaching him.
“No one can claim a right to create noise even in his own premises that would travel beyond his precincts and cause the nuisance to neighbors or others. Any noise, which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man, is nuisance…. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others.
“Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21[lxix]”.
Right to Know or Right to Be Informed
Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the State.
In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link between Art.21 and Right to know, particularly where “secret government decisions may affect health, life, and livelihood.
Reiterating the above observations made in the instant case, the Apex Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who had been made responsible to protect the environment had a right to know the government proposal.
Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that,
No freeman shall be taken or imprisoned… but… by the law of the land.
The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty. What can be more important than liberty? In India, the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognized as being essential to the orderly pursuit of happiness by free men.
The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary visits and secret picketing. Oddly enough both the majority and minority on the bench relied on the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which the life was enjoyed.
This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorizing domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional. The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.
The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment
Right to Privacy
As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”
Although not specifically referenced in the Constitution, the right to privacy is considered a ‘penumbral right’ under the Constitution, i.e. a right that has been declared by the Supreme Court as integral to the fundamental right to life and liberty. Right to privacy 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. Although no single statute confers a crosscutting ‘horizontal’ right to privacy; various statutes contain provisions that either implicitly or explicitly preserve this right[lxx].
For the first time in Kharak Singh v. State of U.P.[lxxi] question whether the right to privacy could be implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the court. “Surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to be in violation of Article 21. A seven-judge bench held that:
“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this court in Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilization”
In a minority judgment in this case, Justice Subba Rao held that:
“the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his ‘castle’; it is his rampart against encroachment on his personal liberty”.
This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.
In Govind v. State of Madhya Pradesh[lxxii], The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions holding that:
“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”
The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Mathew J. observed in the instant case,
“The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them that one can characterize as a fundamental right, we do not think that the right is absolute…..
…… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest.”
In R. Rajagopalan v. State of Tamil Nadu[lxxiii], The right to privacy of citizens was dealt with by the Supreme Court in the following terms:
“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.
If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.
We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being publicized in press/media.”
The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v. Union of India[lxxiv], the Supreme Court observed 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”.
Scope and Content of Right to Privacy:
Tapping of Telephone
Emanating from the right to privacy is the question of tapping of the telephone.
In R.M. Malkani v. State of Maharashtra, the Supreme Court held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.
Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885. The Section lays down the circumstances and grounds when an order for the tapping of a telephone may be passed, but no procedure for making the order is laid down therein.
The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the court issued procedural safeguards to be observed before restoring to telephone tapping under Section 5(2) of the Act.
The Court further ruled 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 court has further ruled that Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The procedure has to be just, fair and reasonable.”
Disclosure of Dreadful Diseases
In Mr. X v. Hospital Z[lxxv], the question before the Supreme Court was whether the disclosure by the doctor that his patient, who was to get married had tested HIV positive, would be violative of the patient’s right to privacy. The Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.
The court explained that the right to life of a lady with whom the patient was to marry would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since the right to life included right to healthy life so as to enjoy all the facilities of the human body in the prime condition it was held that the doctors had not violated the right to privacy.
Right to privacy and subjecting a person to medical tests
It is well settled that the right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crimes or disorder or protection of health or morals or protection of rights and freedom of others. In case there is a conflict between the fundamental rights of two parties that which advances public morality would prevail.
A three-judge bench in case of Sharda v. Dharmpal[lxxvi], ruled that a matrimonial court had the power to direct the parties to divorce proceedings, to undergo a medical examination. a direction issued for this could not be held to the violative of one’s right to privacy but court, however, said that for this there must be a sufficient material.
Right to Privacy- Woman’s Right to Make Reproductive Choices
A woman’s right to make reproductive choices includes the woman’s right to refuse participation in the sexual activity or alternatively the insistence on the use of contraceptive methods such as undergoing sterilization procedures woman’s entitlement to carry a pregnancy to its full term, to give birth and subsequently raise children.
Right to go abroad
In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi[lxxvii], the Supreme Court has included Right to travel abroad contained in by the expression “personal liberty” within the meaning of Article 21.
In Maneka Gandhi v. Union of India[lxxviii], the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered the government to impound the passport of a person, in the interest of the general public was challenged before the seven-judge Bench of the Supreme Court.
It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned section didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.
The court held that the procedure contemplated must stand the test of reasonableness in order to conform to Art.21 other fundamental rights. It was further held that as the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding passport under the Passport Act. BHAGWATI, J., observed:
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that It must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
Right against Illegal Detention
In Joginder Kumar v. State of Uttar Pradesh[lxxix], the petitioner was detained by the police officers and his whereabouts were not told to his family members for a period of five days. Taking the serious note of the police high headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines governing arrest of a person during the investigation:
An arrested person being held in custody is entitled if he so requests to have a friend, relative or other person told as far as is practicable that he has been arrested and where he is being detained.
The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.
In the case of D.K. Basu v. State of West Bengal[lxxx], the Supreme Court laid down detailed guidelines to be followed by the central and state investigating agencies in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures and held that any form of torture or cruel inhuman or degrading treatment, whether it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21.
Article 21 & Prisoner’s Rights
The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason of their conviction deprived of all the fundamental rights that they otherwise possess. Following the conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure established by law[lxxxi].
In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The Court has interpreted Article 21 so as to have widest possible amplitude. On being convicted of a crime and deprived of their liberty in accordance with the procedure established by law. Article 21, has laid down a new constitutional and prison jurisprudence[lxxxii]. The rights and protections recognized to be given in the topics to follow:
Right to Free Legal Aid & Right to Appeal
In M.H. Hoskot v. State of Maharashtra[lxxxiii], 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; this cannot be termed as government charity.
In other words, an accused person at lease where the charge is of an offense punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel for the accused must be given sufficient time and facility for preparing his defense. Breach of these safeguards of a fair trial would invalidate the trial and conviction.
Right to Speedy Trial
In Hussainara Khatoon v. Home Secretary, State of Bihar[lxxxiv], it was brought to the notice of the Supreme Court that an alarming number of men, women, and children were kept in prisons for years awaiting trial in courts of law. The Court took a serious note of the situation and observed that it was carrying a shame on the judicial system that permitted incarceration of men and women for such long periods of time without trials.
The Court held that detention of under-trial prisoners, in jail for a period longer than what they would have been sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in jail for a longer period than what they could have been sentenced had they been convicted
In A.R. Antulay v. R.S. Nayak[lxxxv], a Constitution Bench of five judges of the Supreme Court dealt with the question and laid down certain guidelines for ensuring speedy trial of offenses some of them have been listed below[lxxxvi]:
Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily.
Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, appeal, revision, and retrial.
The concerns underlying the right of the speedy trial from the point of view of the accused are:
The period of remand and pre-conviction detention should be as short as possible.
The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
Undue delay may well result in impairment of the ability of the accused to defend him.
While determining whether the undue delay has occurred, one must have regard to all the attendant circumstances, including nature of offense, a number of accused and witnesses, the workload of the court concerned. Each and every delay does not necessarily prejudice the accused. An accuser’s plea of denial of the speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial
In the case of Anil Rai v. State of Bihar[lxxxvii], the Supreme Court directed the Judges of the High Courts to give quick judgments and in certain circumstances, the parties are to submit an application to the Chief Justice to move the case to other bench or to do the needful at his discretion.
Right to Fair Trial
Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat[lxxxviii] said that right to free and fair trial not only to the accused but also to the victims, their family members and relatives, and society at large.
Right to Bail
The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day unsatisfactory and irrational rules for bail, which insists merely on financial security from the accused and their sureties. Many of the undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to languish in prisons awaiting their trials.
But incarceration of persons charged with non-bailable offenses during the pendency of trial cannot be questioned as violative of Article 21 since the same is authorized by law. In the case of Babu Singh v. State of Uttar Pradesh[lxxxix], the Court held that right to bail was included in the personal liberty under Article 21 and its refusal would be the deprivation of that liberty which could be authorized in accordance with the procedure established by law.
No right to Anticipatory Bail
Anticipatory bail is a statutory right and it does not arise out of Article 21. Anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of Article 21.
Right against Handcuffing
Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.
In Prem Shankar v. Delhi Administration[xc], the Supreme Court struck down the Rules that provided that every under-trial who was accused of a non-bailable offence punishable with more than three years prison term would be routinely handcuffed. The Court ruled that handcuffing should be resorted to only when there was “clear and present danger of escape” of the accused under -trial, breaking out of police control.
Right against Solitary Confinement
It has been held that a convict is not wholly denuded of his fundamental rights and his conviction does not reduce to him into a non – person whose rights are subjected to the whims of the prison administration. Therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguard.
In Sunil Batra v. Delhi Administration[xci], the petitioner was sentenced to death by the Delhi session court and his appeal against the decision was pending before the high court. He was detained in Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement.
It was contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the argument of the petitioner and held that imposition of solitary confinement on the petitioner was violative of Article 21.
Right against Custodial Violence
The incidents of brutal police behavior towards persons detained on suspicion of having committed crimes are a routine matter. There has been a lot of public outcry from time to time against custodial deaths.
The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under Article 21 secure life with human dignity and the same are available against torture.
Death by hanging not violative of Article 21
In Deena v. Union of India[xcii], the constitutional validity of the death sentence by hanging was challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21. Referring to the Report of the UK Royal Commission, 1949; the opinion of the Director General of Health Services of India, the 35th Report of the Law Commission; and the opinion of the Prison Advisers and Forensic Medicine Experts, the Court held that death by hanging was the best and least painful method of carrying out the death penalty, and thus not violative of Article 21.
Right against Public Hanging
The Rajasthan High Court, by an order, directed the execution of the death sentence of an accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity through the media.
On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma Devi[xciii] held that the direction for execution of the death sentence was unconstitutional and violative of Article 21. It was further made clear that death by public hanging would be a barbaric practice. Although the crime for which the accused has been found guilty was barbaric it would be a shame on the civilized society to reciprocate the same. The Court said, “a barbaric crime should not have to be visited with a barbaric penalty.”
Right against Delayed Execution
In T.V. Vatheeswaram v. State of Tamil Nadu[xcv], the Supreme Court held that delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence would be commuted to life imprisonment. The cause of the delay is immaterial, the accused himself may be the cause of the delay.
In Sher Singh v. State of Punjab[xcvi], the Supreme Court said that prolonged wait for execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo that is through Article 21. But the Court held that this cannot be taken as the rule of law and applied to each case and each case should be decided upon its own faces.
Right to Write a Book
In State of Maharashtra v. Prabhakar Pandurang[xcvii], the petitioner while under detention in jail wrote a book on science and sought the permission from the Government to send the manuscript of the book to his wife for publication, to which the Government refused. The Court held that this was an infringement of personal liberty and that Article 21 included the right to write the book and get it published.
Right against Bar Fetters
In Sunil Batra v. Delhi Administration, the Supreme Court gave Right against Bar Fetters and held that treatment that offended human dignity and reduced man to a level of the beast would certainly be arbitrary and could be questioned under Article 21, but the right is not absolute.
PROCEDURE ESTABLISHED BY LAW
The expression “procedure established by law” has been the subject matter of interpretation in a catena of cases. A survey of these cases reveals that courts in the process of judicial interpretation have enlarged the scope of the expression. The Supreme Court took the view that “procedure established by law” in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American “due process of law.”
But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the “procedure established by law” has acquired the same significance in India as the “due process of law” clause in America.
Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that though “our Constitution has no due process clause” but after Maneka Gandhi’s case “the consequence is the same, and as much as such Article 21 may be treated as counterpart of the due process clause in American Constitution.”
Recently the Supreme Court has dealt with an increasing number of people sentenced to death for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young women by setting them on fire. In an unprecedented move, the court ordered both prisoners to be publicly executed.
In a response to a review petition by the Attorney General against this judgment, the Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime does not have to be met with a barbaric penalty.” The Court observed that the execution of death sentence by public hanging is a violation of Article 21, which mandates the observance of a just, fair and reasonable procedure.
Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of article 21. In Sher Singh v State of Punjab, the Supreme Court held that unjustifiable delay in execution of death sentence violates art 21.
The Supreme Court has taken the view that this article read as a whole is concerned with the fullest development of an individual and ensuring his dignity through the rule of law. Every procedure must seem to be ‘reasonable, fair and just.’ The right to life and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters that contributed to life with dignity.
The test of procedural fairness has been deemed to be one that is commensurate to protecting such rights. Thus, where workers have been deemed to have the right to public employment and its concomitant right to livelihood, a hire-fire clause in favor of the State is not reasonable, fair and just even though the State cannot affirmatively provide a livelihood for all.
Under this doctrine, the Court will not just examine whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a fair, just and reasonable manner. This has meant, for example, the right to speedy trial and legal aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State action covering civil, criminal and administrative action.
The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v. Union of India observed that the fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law. The Court observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Taking into consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed the prohibition of smoking in public places.
It issued directions to the Union of India, State Governments and the Union Territories to take effective steps to ensure prohibition of smoking in public places such as auditoriums, hospital buildings, health institutions etc. In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers.
Further, when there is an inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not only against actual proceedings in court but also against police investigation.
The Supreme Court has widened the scope of ‘procedure established by law’ and held that merely 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.
ARTICLE 21 AND THE EMERGENCY
In A.D.M. Jabalpur v. S. Shukla[xcviii], Popularly known as habeas corpus case, the supreme court held that article 21 was the sole repository of the right to life and personal liberty and therefore, if the right to move any court for the enforcement of that right was suspended by the presidential order under Article 359, the detune would have no locus standi to a writ petition for challenging the legality of his detention.
Such a wider connotation given to article 359, resulted in the denial of the cherished right to personal liberty guaranteed to the citizens. Experience established that during the emergence of 1975, the fundamental freedom of the people had lost all meanings.
In order that it must not occur again, the constitution act, 1978, amended article 359 to the effect that during the operation of the proclamation of emergency, the remedy for the enforcement of the fundamental right guaranteed by article 21 would not be suspended under a presidential order.
In view of the 44th amendment, 1978, the observation made in the above-cited judgments are left merely of academic importance.
Formatted on March 16th, 2019.
Cases as appearing in the article:
[i]AIR 1963 SC 1295
[ii]AIR 1978 SC 1675
[iii]1978 AIR 597, 1978 SCR (2) 621
[iv]1981 AIR 746, 1981 SCR (2) 516
[v] 1984 AIR 802, 1984 SCR (2) 67
[vi]1982 AIR 1473, 1983 SCR (1) 456
[vii] J.N. Pandey, Constitutional Law of India, Central Law Agency, 42nd Ed. (2005), p. 222
[viii]AIR 1998 AP 302
[ix]983 AIR 803, 1983 SCR (3) 327
[x]AIR 1997 SC 3011 : (1997) 6 SCC 241
[xi]AIR 1999 SC 625
[xii]1996 AIR 922, 1996 SCC (1) 490
[xiii]55 American LR 171
[xiv] 1989 AIR 714, 1989 SCR (1) 20
[xv]AIR 1989 SC 714.
[xvi]1964 AIR 703, 1964 SCR (2) 363
[xvii]AIR 2003 SC 3357
[xviii]AIR 1960 SC 932
[xix] AIR 1983 SC 109: (1983) 1 SCC 124
[xx] AIR 1986 SC 180
[xxiii]M.P. Jain, Indian Constitutional Law, Wadhwa, 5th Ed. (2003), p. 1315
[xxiv] AIR 1991 SC 101
[xxv] AIR 1999 SC 1416 : (1999) 3 SCC 679
[xxvi] Air 1996 SC 1051 : (1996) 2 SCC 549
[xxvii]AIR 1995 SC 1770, JT 1995 (4) SC 141, (1995) 2 MLJ 38 SC
[xxviii]AIR 1997 Bom. 406
[xxix] AIR 1989 SC 1988
[xxx] Supra Note (10 to be corrected.. olgatellis)
[xxxi] 2006) 4 SCC 1: AIR 2006 SC 1806.
[xxxii]AIR 1996 SC 114
[xxxiv]AIR (1990) SC 630 : (1990) 92 BOMLR 145 : JT 1990 (1) SC 106
[xxxv]1996 AIR 1051, 1995( 6 )Suppl. SCR 827, 1996( 2 )SCC 549
[xxxvii] AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)
[xxxviii] AIR (1996) 1234 :(1996) SCC (1) 742
[xxxix] (1995) Supp 2 SCC 549
[xl] AIR 1995 SC 1811
[xli] AIR (1995)1811 :(1995) SCC (5) 482
[xlii] AIR 2002 NOC 265
[xliii] AIR (1997) SC 1225
[xliv] 1987 AIR 990 : 1987 SCR (2) 468
[xlv] Supra note p.1639
[xlvi] AIR (1995) 922, (1995) SCC (3) 42
[xlvii] AIR (1989) 2039, (1989) SCR (3) 997
[xlviii] M.P. Jain, Indian Constitutional Law, Ed. 6th (2010), p. 1616
[xlix] 1996 SCC (4) 37, JT 1996 (6) 43
[li]II (2005) CPJ 35 NC
[lii] Supra note 41 paschim bagga case online like at end of paragraph
[liii] AIR 1998 SC 1703 : (1998) 4 SCC 117
[liv] AIR 2006 SC 2945 : (2006) 8 SCC 199
[lv]1994 AIR 1844, 1994 SCC (3) 394
[lvi]1996 AIR 946, 1996 SCC (2) 648
[lviii] AIR 1973 SC 947
[lix] AIR 1979 SC 916
[lx] AIR 1980 SC 898
[lxi] 1991 AIR 420, 1991 SCR (1) 5
[lxii]AIR 1988 SC 1037 : (1987) 4 SCC 463
[lxiii]AIR 1997 SC 734 : (1997) 2 SCC 353
[lxiv]AIR 1996 SC 2721 : (1996) 5 SCC 647
[lxv] (2007) 2 SCC 413
[lxvi](2006) 3 SCC 399
[lxvii]AIR 2002 SC 40 : (2001) 8 SCC 765
[lxviii]Writ Petition (civil) 72 of 1998
[lxix] Forum, Prevention of Environment & Sound Pollution v. Union Of India &Anr, AIR 2005 SC 3136 : (2005) 5 SCC 439
[lxxi]AIR 1963 SC 1295
[lxxii]1975 AIR 1378, 1975 SCR (3) 946
[lxxiii]1995 AIR 264, 1994 SCC (6) 632
[lxxiv] AIR 1997 SC 568
[lxxv] AIR 1995 SC 495
[lxxvi] AIR 2003 SC 3450
[lxxvii]967 AIR 1836, 1967 SCR (2) 525
[lxxviii]1978 AIR 597, 1978 SCR (2) 621
[lxxix]AIR 1994 SC 1349
[lxxx]AIR 1997 SC 610
[lxxxi]Pandey, J.N., The Constitutional Law of India 47thEd., Central Law Agency, Allahabad, 2010, p. 269
[lxxxii]See Kumar, Narender, The Constitutional Law of India, 1stEd., Allahabad Law Agency, Allahabad, 2009, p-158
[lxxxiii]AIR 1978 SC 1548
[lxxxiv]AIR 1979 SC 1360
[lxxxv]AIR 1992 SC 170
[lxxxvi]Jain, M.P., Indian Constitutional Law, 6thEd., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010, p.1200
[lxxxvii]AIR 2001 SC 3173
[lxxxviii]AIR 2006 SC 1367
[lxxxix]AIR 1978 SC 527
[xc]AIR 1980 SC 1535
[xci]AIR 1978 SC 1675
[xcii]AIR 1983 SC 1155
[xciii]AIR 1986 SC 467
[xciv]AIR 1983 SC 1155
[xcv]AIR 1981 SC 643
[xcvi]AIR 1983 SC 465
[xcvii] AIR 1966 SC 424
[xcviii] AIR 1976 SC 1207