Judicial Activism under Article 21

By Divya Sharma, Symbiosis Law School, Pune

Greatness of the bench lies in creativity…

There are cases where a decision one way or the other will count for the future, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction. It is in these types of cases where the judge is to leap into the heart of legal darkness, where the lamps of precedent and common law principles flicker and fade, that the judge gets an opportunity to mold the law and to give it its shape and direction. This is what we have been trying to do in India.

  –         Justice P.N. Bhagwati


Judicial review means overseeing by the judiciary of the exercise of power by other co- ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution. Britain extended the practice of judicial review of legislation to colonies such as India whose constituent acts enacted by British Parliament laid down the limits of the legislative power vested in the colonial legislatures. India therefore experienced judicial review of legislations as well as executive acts since the days of British rule. Since there was no bill of rights in the constituent acts, the scope of judicial review was limited. The courts in India followed the policy of maximum judicial restraint. The judicial attitude in countries ruled by Britain was to interfere with legislative acts only if they clearly transgressed the limits drawn upon their powers. This attitude was influenced by the theory of parliamentary supremacy and the courts denied that they had anything to do with policy or principles beyond what was clearly laid down by the words. The judges in India were brought up in the British tradition of parliamentary supremacy and therefore rarely questioned the validity of the legislative action except on the ground of its being ultra vires.

The Indians demanded that their constitution should contain a declaration of fundamental rights but that demand was not conceded by the British government till the passing of Government of India Act, 1935. The traditional British distrust of such declarations was behind the rejection of such a demand. On the other hand, the Indians saw in a bill of rights an assurance to the minorities of their rights, and a safeguard against arbitrary rule. The Constitution of India of 1950 contained a bill of rights in Part III under the caption ‘Fundamental rights’ and declared that any law that takes away or abridges any of the fundamental rights shall be void.[1] However, while vesting such power of judicial review in the High Courts and Supreme Court, maximum care was taken to prevent the courts in India from being more than auditors of legality.

The rights were defined and restrictions upon them were also defined with precision so as to leave the least discretion with the courts. Unlike the Constitution of the United States, which gave rights in unqualified terms and left it to the courts to define their limits and legitimize restrictions on them, the Constitution of India enumerated the rights as well as the restrictions. The makers of the Indian Constitution were apprehensive of the wider role assumed by the Supreme Court of the United States through interpretation of the ‘due process of law’ clause of the Fifth Amendment to the Constitution of United States. They purposely avoided the use of the words ‘due process of law’ so as not to allow the courts to invalidate laws that might be disliked by the judges. They wanted a limited judicial review and therefore used the words ‘procedure established by law’.

Many Indian leaders who had made sacrifices for national independence were of the view that the legislature should be supreme and the courts should merely act as umpires to ensure that the parties played according to the rules of the game. The courts were supposed to interpret the Constitution not in terms of what it should be but in terms of what it is. The courts need not be concerned about what the effect of interpretation would be but should state what the law is. If the law was to be changed, it was the function of the legislature. This was the black letter law tradition in which law is divorced from morality and the function of the court is conceived as that of mere interpreter of the Constitution with emphasis on the letter rather than on the spirit of the Constitution. However, this view was not unanimously accepted. Persons representing the minorities were apprehensive of the majoritarian rule implicit in such an arrangement. They wanted greater say for the courts. Therefore, supported more judicial review.

There are two models of judicial review. One is technocratic model in which judges act merely as technocrats and hold a law invalid if it is ultra vires the powers of the legislature. In the second model, a court interprets the provisions of a constitution liberally and in the light of the spirit underlying it keeps the constitution abreast of the times through dynamic interpretation. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of the rights of the individual is said to be an Activist Court.

Judicial Review under a written constitution with a bill of rights cannot remain merely technocratic because the expression used in the bill of rights, such as ‘equality before law’, ‘equal protection of law’, ‘personal liberty’, ‘the procedure established by law’, are open textured and continue to acquire new meanings as society evolves and social change occurs. A court interpreting a bill of rights is bound to be activist in its interpretation and its decisions are bound to have political implications[2].


Black’s Law Dictionary defined judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions…” The flipside of judicial activism is Judicial Restraint, which is defined as “the philosophy of judicial decision-making whereby judges base their decisions on the doctrine of ‘stare decisis’ (relying on precedents) to maintain the status quo.

Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947[2].

Judicial activism can be positive as well as negative. A court engaged in altering the power relations to make them more equitable is said to be positively activist and a court using its ingenuity to maintain the status quo in power relations is said to be negatively activist.


The words `Public Interest’ mean “the common well being also public welfare[4] and the word ‘Litigation’ means “a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy.” Thus, the expression `Public Interest Litigation’ means “some litigations conducted for the benefit of public or for removal of some public grievance.” In simple words, public interest litigation means ‘any public spirited citizen can move/approach the court for the public cause (or public interest or public welfare) by filing a petition in the Supreme Court under Art.32 of the Constitution or in the High Court under Art. 226 of the Constitution or before the Court of Magistrate under Sec. 133 of the Code of Criminal Procedure, 1973’.

Public interest litigation or social interest litigation today has great significance and drew the attention of all concerned. The traditional rule of “Locos Standi” that a person, whose right is infringed alone can file a petition, has been considerably relaxed by the Supreme Court in its recent decisions. Now, the court permits public interest litigation at the instance of public spirited citizens for the enforcement of constitutional o- legal rights. Now, any public spirited citizen can move/approach the court for the public cause (in the interests of the public or public welfare) by filing a petition:

  1. in Supreme Court under Art32 of the Constitution;
  2. In High Court under Art.226 of the Constitution; and
  3. in the Court of Magistrate under Sec 133 Cr. P.C.

Justice Krishna Iyer in Fertilizer Corporation Kamgar Union vs. Union of India, (1981) enumerated the following reasons for liberalization of the rule of Locus Standi.

  1. Exercise of State power to eradicate corruption may result in unrelated interference with individuals’ rights.
  2. Social justice wan ants liberal judicial review administrative action.
  3. Restrictive rules of standing are antithesis to a healthy system of administrative action.
  4. “Activism is essential for participative public justice”.

Therefore social service minded citizen must be given an opportunity to move the court in the interests of the public. Further, the Supreme Court in S.P. Gupta vs. Union of India[5], popularly known as “Judges’ Transfer Case”, Bhagwati J., firmly established the validity of the public interest litigation. Since then, a good number of public interest litigation petitions were filed in the Court.


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

Though Article 21 starts with a negative word but the word ‘No’ has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only.

According to Dicey, “The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.” In other words, ‘personal liberty’ means freedom from physical restraint and coercion which is not authorized by law.

 The post-emergency period (1977-98) is known as the period of Judicial Activism because it was during this period that the Court’s jurisprudence blossomed with doctrinal creativity as well as processual innovations.

A great transformation in the judicial attitude towards the safeguard of personal liberty has been noticed after the horrible experiences of the infamous 1975 national emergency. A.K. Gopalan v. Union of India and Maneka Gandhi v. Union of India, are the two landmark cases which decided and expanded the horizon of rights under Art. 21. The judicial pronouncement before the case of Maneka Gandhi Vs Union of India (1978) were not satisfactory in providing adequate protection to the ‘right to life and personal liberty’ guaranteed under Article 21 of the constitution of India. Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty only against the arbitrary action of the executive and not from the legislative action. Tabular information about both the cases is stated below-

  A.K. Gopalan v. Union Of India,

AIR 1950 SC 27

Maneka Gandhi v. Union of India,

AIR 1978 SC 597

  In this case, the Petitioner had been detained under Preventive Detention Act, 1950. The petitioner challenged the validity of his detention on the ground that it was violative of his Right to freedom of movement under Art. 19(1)(d), which is the very essence of personal liberty guaranteed by Art. 21 of the Constitution. He argued that-

  • The words ‘personal liberty’ include the freedom of movement also and therefore the Preventive Detention Act, 1950 must also satisfy the requirements of Art. 19(5).
  • 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights while Art. 21 provided procedural rights.
  • The words “procedure established by law” actually meant “due process of law” from the American Constitution which includes principles of natural justice and the impugned law does not satisfy that requirement.



In this case, the petitioner’s passport had been impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Maneka Gandhi then filed a writ petition under Article 32 of the constitution in the Supreme Court challenging the order of the government of India as violating her fundamental rights guaranteed under Article 21 of the constitution. It issues raised were:

  • Whether right to go abroad is a part of right to personal liberty under Article 21.
  • Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a person from the right guaranteed under the said Article.
  • Whether section 10(3) (c) of the Passport Act is violative of Article 14, 19(1) (a) and 21 of the constitution.
  • Whether the impugned order of the regional passport officer is in contravention of the principles of natural justice.


Personal Liberty Rejecting this contention, Supreme Court, held that the phrase ‘personal liberty’ in Art. 21 meant nothing more than the liberty of the physical body, that is, freedom from arrest and detention without the authority of law. According to majority, the term ‘liberty’ was wider in meaning and scope than ‘personal liberty’.

  • Hence, while ‘liberty’ could be said to include Art. 19 within its ambit, ‘personal liberty’ had the same meaning as given to the expression “liberty of the person” under English law.
  • Hence, the majority took the view that Art. 19 and Art. 21 deal with different aspects of liberty.
The Supreme Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal liberty’ considerably.

  • Bhagwati, J. observed:“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”
  • With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 is controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19.
Procedure Established by Law The SC rejected the aforesaid contention & held that it did not mean ‘due process of law’ as understood in America.

  • There was no justification for adopting the meaning of the word ‘Law’ as interpreted by the SC of America in the expression ‘due process of law’ merely because the word ‘law’ is used in Art.21.
  • It was held that the expression ‘procedure established by law’ must mean procedure prescribed by the law of the State. The court interpreted the term ‘law’ as ‘State made law’.
  • The Report of the Drafting Committee shows that the Constituent Assembly deliberately dropped ‘due process of law’ in favor of ‘procedure established by law’. If they wanted to preserve in India the same protection as given in America there was nothing preventing them to do so.
The court overruled the A.K. Gopalan Case and held that Art. 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law but that does not mean that a mere semblance of procedure provided by law will satisfy the Article.

  • The procedure should be just, fair and reasonable & not fanciful, oppressive and arbitrary.
  • A procedure to be fair and just must embody the principles of natural justice.
  • One of the significant interpretation in this case is the discovery of inter connections between Article 14, 19 and 21. Thus a law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Article 14 and 19 also.
  • Moreover the ‘procedure established by law’ as required under Article 21 must satisfy the test of reasonableness in order to conform to Article 14.
Natural Justice

(jus naturale)

SC rejected this plea & held that the ‘law’ in Art. 21 must mean a law enacted by the Legislature and not the law in the abstract or general sense embodying the principles of natural justice as interpreted by the U.S. Supreme Court. Natural Justice is intended to invest law with fairness and to secure justice. The Court said:

  • “‘Law’ should be reasonable law, and not enacted piece of law.”
  • It must be just, fair and reasonable.


 Maneka Gandhi Vs Union of India (AIR 1978 SC 597) was a landmark judgment and played the most significant role towards the transformation of the judicial view on Article 21 of the constitution of India so as to imply many more fundamental rights from Article 21. Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal liberty makes for the worth of the human person” and “travel makes liberty worthwhile”.

The court finally held that the right to travel and go outside the country is included in the right to personal liberty guaranteed under Article 21. Section 10(3) (c) of the Passport Act is not violative of Article 21 as it is implied in the provision that the principles of natural justice would be applicable in the exercise of the power of impounding a passport . The defect of the order was removed and the order was passed in accordance with procedure established by law.

Unni Krishnan v. State of A.P.: It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life. The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to livelihood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Supreme Court in the case of Unni Krishnan v. State of A.P. and the Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements such as the right to go abroad; the right to privacy; the right against solitary confinement; the right against hand cuffing; the right against delayed execution; the right to shelter; the right against custodial death; the right against public hanging and Medical assistance.[6]

It is true that Art.21 is worded in negative terms but it is now well settled that Art.21. has both negative and affirmative dimension. Positive rights are very well conferred under Art.21 of the Constitution. Some of the rights recognized through judicial activism are as follows:

  1. Right to live with Human Dignity

 In Maneka Gandhi case, the Supreme Court gave a new dimension to Art. 21. It held that the right to live is not merely confined to physical existence but it 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[7], said that the right to live is not restricted to mere animal existence. It means something more than just physical survival. In this case, the Supreme Court struck down Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as violation of Article 14 and 21. The impugned Section 3 provided that a detune could have interview with his legal adviser only one time in a month and that too only after obtaining prior permission of the district magistrate, Delhi and to take place in the presence of customs officer. [8]The right to live is not confined to the protection of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes “the right to live with human dignity”, and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilitates for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human beings.

Analysis: It is claimed that this right has neither been granted by the state nor created by the person himself or herself but exists irrespectively of sex, race and nationality, as well as from life style. Every human being has been provided with it. Dignity is related to human subsistence itself; no one can take this right to dignity away. This right is owned not only by the honest, but also by dictators, children molesters or other asocial individuals. Even an unborn life in the body of a mother, mortally ill have the matter-of-course dignity. Thus, an individual himself or herself is not involved in creation of his or her dignity, that dignity is put into the person like a ready-made conformation from aside, that it is like a biological human property that may neither be given, nor created or lost, that is characteristic even to the “unborn life in the body of a mother”. Therefore, in my view the SC court was undoubtedly correct in pronouncing this right.

In People’s Union for Democratic Rights v UOI[9], also known as Asiad Workers Case, the Court held that non- payment of minimum wages to the workers employed in various Asiad projects in Delhi was denial to them to their right to live with basic human dignity and violative of art 21. Bhagwati J., (as he then was) speaking for the majority held that the rights and benefits conferred on the workmen employed by a contractor under various labor laws are “clearly intended to ensure basic human dignity to workmen and if the workmen are derived of any of these rights and benefits, that would be violation of Art. 21.

This decision has heralded a new legal revolution. It has clothed millions of workers in factories, fields, mines and project sites with human dignity. They had fundamental right to maximum wages, drinking water, shelter crèches, medical aid and safety in their respective occupations covered by the various welfare legislations.

  1. Right to Livelihood

In 1960, the Apex Court was of the view that Article 21 of Indian Constitution does not guarantee right to livelihood. In Re Sant Ram[10], a case which arose before Maneka Gandhi, the Supreme Court ruled that the right to livelihood would not fall within the expression “life” in Article 21. The Court said curtly: “The argument that the word “life” in Article 21 of the Constitution includes “livelihood” has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21.”

But in Olga Tellis v. Bombay Municipal Corporation[11], popularly known as the “Pavement Dwellers Case” a five judge bench of the Court has finally ruled that the word “life” in Article 21 includes the right to livelihood also. The court said: “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.” The court further opined: “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 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.

Analysis In my opinion, the right to livelihood conferred by the Court is correct. A person’s livelihood refers to their “means of securing the basic necessities -food, water, shelter and clothing- of life”. Livelihood is defined as a set of activities, involving securing water, food, fodder, medicine, shelter, clothing and the capacity to acquire above necessities working either individually or as a group by using endowments (both human and material) for meeting the requirements of the self and his/her household on a sustainable basis with dignity[12]. It is a basic necessity for a human being. 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. Thus, I agree with the court’s decision. However, these are second generation human rights, which consist of social and economic rights of a positive nature and have to be backed up by political action. The right to livelihood can be a reality only when the state allocates resources for providing education or jobs to people.

  1. Right to Shelter

In Olga Tellis Case[13], the court said that Art. 21 provides that a person can be deprived of life by a procedure established by law, which meant, a fair, just and reasonable procedure. Justice Chandrachud observed that after anxious consideration, the Court came to the conclusion that Section 314 of the BMC Act for removal of encroachments on footpaths could not be regarded as unreasonable, unfair or unjust. However, while holding that Section 314 was constitutional, the Supreme Court order also laid down that the eviction of the slum and pavement dwellers could be done only after arranging alternative accommodation for them and not before that.

Upholding the importance of the right to a decent environment and a reasonable accommodation, in Shantistar Builders v. Narayan Khimalal Totame[14] 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 a reasonable accommodation to live in. The difference between the need of 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 mud-built thatched house or a mud-built fireproof accommodation.”

Analysis: Shelter for a human being, is not a mere protection of his life and limb. It is 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. Keeping this view in mind, Right to shelter is an appropriate decision. But, this right can be misused. People, in the shadow of right to shelter can cause nuisance to others. They may make their dwelling on footpaths, roads, pavements and other public property. To prevent this, alternative place should be provided by the govt. for such people because it’s not by choice they dwell on pavements. Living on footpath is like a very hell on earth. But court cannot provide shelter to people. It is in the hands of the Govt. to make such policies and allocate land to the needy.

        4. Right to Privacy

It is now a settled position that right to life and liberty under Art. 21 includes right to privacy. Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.

Right to privacy is not an absolute right: Right to life includes right to privacy. In Kharak Singh v. State of UP[15], the court held that police surveillance of a person by domiciliary visits would be violative of Article 21 of the Constitution. The majority judgment in the impugned case was of the opinion that our constitution does not in terms confer any constitutional guarantee like right to privacy. But, Subba Rao, J. in his minority judgment opined that though the constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of ‘personal liberty’ in Art. 21. The right to personal liberty takes in not only the right to be free from restrictions placed on his movements but also free from encroachments on his private life.

Mathew, J. in his classic judgment in Govind v. State of MP[16], accepted the right to privacy as an emanation from Arts. 19 (a), (d) and 21, but right to privacy is not an absolute right. “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 restriction on the basis of compelling public interest. “Surveillance by domiciliary visits need not always be an unreasonable encroachment on the privacy of a person owing to the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made. The right to privacy deals with ‘persons, not places’.

Analysis: Right to privacy is one right in India which does not have proper recognition but has been given a place through judicial activism under Article 21 of the Constitution. It is not a right against physical restrains but it is a right against psychological restrain or encroachment of right. It can have both positive and negative consequences. It protects sanctity of women (disclosure of personal problems (menstruation, pregnancy) would lead to violation of her right to privacy[17]. Supreme Court also uses the Right to Privacy to increase punishment of crime against women), Telephone tapping[18], disclosure of dreadful disease and personal affair like restriction of what one is eating is a violation of right to privacy[19]. It is not absolute because in some situations like doping test of athletes, cricketers; for state security and for public welfare right to privacy does not stand. The courts can order this right with reasonable restrictions. It is might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

  1. Sexual harassment of working women: violative of Art 14 and 21.

In case of Vishakha v. state of Rajasthan[20], the SC has made it clear that the sexual harassment of working women amounts to violation of right of gender equality and right to life and personal liberty. As a logical consequence it also amounts to the violation of right to practice any profession, occupation or trade. The SC laid down certain guidelines to be observed at all work place or other institutions until legislation is enacted for the purpose. These guidelines would be treated as the law declared by SC under Art 141. This case law provided relief to millions of working women who were compelled to remain silent at their working place even though they face sexual comment, harassment etc. In fact this case fills the lacuna in law to deal with this kind of problem facing by working women at their working place.

Analysis: Sexual harassment in India is termed “Eve teasing” and is described as: unwelcome sexual gesture or behavior whether directly or indirectly as sexually colored remarks; physical contact and advances; showing pornography; a demand or request for sexual favors; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature and/or passing sexually offensive and unacceptable remarks. The critical factor is the unwelcomeness of the behavior, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator[21]. Thus, in my view, this was an appreciable initiative by the courts to pronounce such decision against sexual harassment. It definitely benefitted the working women and helped to enshrine their personal liberty.

  1. Right to Health & Medical Aid

In Parmananda Katara v. Union of India[22], 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.

Analysis: This is another example of positive judicial activism. Right to preserve life of its citizens is the ultimate duty of a State. This decision helped many people to get immediate medical aid and thus, saved their lives. It is said that health is wealth, without proper health one cannot earn his livelihood and live a normal life. Hence, right to health and medical aid was a very good decision by the judiciary.

  1. Right to live in a Pollution Free Environment

The judiciary expanded the meaning and scope of art. 21 and included the right to a healthy, clean environment; in other words, the right to life includes a pollution-free environment including water and air, because in the absence of a pollution-free environment the right to life will be meaningless. The right to a clean and wholesome environment was brought under the umbrella of Article 21. Doon Valley Case[23]: This case is the first example or first indication of the right to a healthy environment. In this case a letter sent by and NGO to the Supreme Court was treated as a writ petition under Article 32 of the Constitution. It was alleged in that letter that the illegal limestone mining in the Doon Valley was destroying the fragile eco-system. The Supreme Court held that even if the limestone quarry contractors have invested large sums of money and expended considerable time and effort, the right of people around to live in a healthy environment must be protected and safeguarded.

M.C. Mehta V/s Union of India (Ganga Pollution Case)[24]: This case relates to the prevention of nuisance caused by the pollution of river Ganga. This nuisance, treated as a public one, was wide in its range and indiscriminate in its effect. The Supreme Court issued specific directions for all the municipalities of the towns situated on the river Ganga. It was observed by the Court that Article 21 of the Constitution includes a right to clean and wholesome environment.

Analysis: Clean, green and pollution free environment is the need of the hour. With increasing technology and modernization, our environment is also degrading. But, in my view, it is really not in the power of courts to provide clear air, water & environment to the people. This can be achieved by everyone’s initiative not solely by the courts. However, courts can order removal of industries or factories away from residential area. Thus, an important interpretation of Art 21 to an extent.

  1. Ban On Smoking In Public Places

Murali S.Deora Vs. Union of India[25]: The Congress leader Murali S.Deora filed a PIL in the Supreme Court seekingorders for banning smoking in public places and the Supreme Court seeing the ill effects of smoking held that public smoking is banned and it directed all States and Union Territories to immediately issue orders banning the smoking in public and this ruling of the Court is to boost the public health. Thus the Center has introduced an Anti-Smoking Bill in the parliament and it is being implemented in many parts of the Country but not effective at present.

Analysis: Smoking in public area not only causes harm to the person smoking but to others as well. In a research, it was found that even non- smokers are affected by the harmful effects of smoking because of other people smoking around them. Thus, to preserve life of the people from harmful effects of smoking this law came into view. It is considered as a boon by some people as it promotes smoke-free environment and healthy lifestyle.

  1. Compensation for Violation of Article 21

In Rudal Singh v. State of Bihar[26], the Supreme Court has held that the Court has the power to award monetary compensation in appropriate cases where there has been a violation in the constitutional right of the citizens. In this case the Supreme Court directed Bihar Government to pay “Compensation” of Rs. 30,000 to Rudal Singh who had to remain in jail for 14 years because of irresponsible behavior of the State Government Officers even after acquittal”.

Analysis: This is an appreciable example of judicial activism. Through this right, at least the people whom fundamental rights were violated under Art 21 will get compensation. This can be provided by the courts with no difficulty, unlike fresh air and potable water. It will keep the faith of getting justice and relief alive among those people whose fundamental rights have been violated.

      10.  Right of Prisoners

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 their fundamental rights which 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[27]. In Charles Sobraj[28] and Sunil Batra[29], it was held that a prisoner was not denuded of his fundamental rights such as right to equality or right to life or personal liberty beyond what has been taken away by the nature of the imprisonment itself.

Analysis: The right to prisoners was a big initiative for the human rights of prisoners. It covered Right to speedy trial[30], Right against prison torture and custodial death (Sunil Batra case), Right to compensation for illegal & unlawful detention[31], Right against handcuffing[32], Right against bar fetters (Charles Sobhraj case), Right against solitary confinement (Sunil Batra case).

Justice Krishna Iyer while speaking for majority in the case of Sunil Batra v. Delhi Administration made it constitutionally clear that when a person gets arrested, he steps into the prison cell with his fundamental rights intact and not in devoid of them, he also made it amply clear that Article 21 is to be interpreted in the widest possible sense because fundamental rights form the spirit of the Constitution and Article 14, 19 and 21 are the spirit of the fundamental rights- over and onto which all other fundamental rights rest. Thus, it is an important right safeguarding the right to life of prisoners.


While delivering a lecture on ‘Canons of Judicial Ethics’, Chief Justice of India SH Kapadia cautioned fellow judges against judicial overreach. The Judiciary, he said, should refuse to act as a “super-legislature”. Justice Kapadia’s observations, which he said were made as a student of law rather than as the country’s Chief Justice, speak for themselves. They also tell us that judges, irrespective of the popular view on matters they adjudicate on, should always remain good students of law: “We, judges, should remember that the validity of our decisions cannot rest on popularity. Resisting the pressure to please the majority is the strength of the Judiciary, not its weakness. Judges inevitably end up in the political arena in deciding controversial cases—whichever side they rule… We are not concerned with the wisdom, need or appropriateness of the legislation. We must refuse to sit as a super-legislature to weigh the wisdom of legislation,” he said.

Judicial Populism:

Activism can easily transcend the borders of judicial review and turn into populism and excessivism. Activism is populism when doctrinal effervescence transands the institutional capacity of the judiciary to translate the doctrine into reality, and it is excessivism when a court undertakes responsibilities normally discharged by other co-ordinate organs of the government.

Judicial process is essentially efficient in preventing encroachments on rights or liberties. But can it create new rights that require positive action in terms of allocation of resources? It is doubtlessly true that every person should be entitled to fresh water or should be able to breathe fresh air. But where water is so highly polluted and most of the cities in India are suffering from air pollution, can a normative judicial declaration that those rights are part of the guaranteed fundamental right help in mitigating the suffering of the people who are in fact denied those rights? It is submitted that the judicial process is suited essentially for the enforcement of first generation human rights, which consisted of don’ts against the government. If a person is illegally arrested, a court can set him free by issuing a writ of habeas corpus. If a person’s property is taken without the authority of law, a Court can order prohibition of such an act. But can a court by its order provide fresh potable water or fresh air? Can a court by its order say that everyone must have a shelter? When a Court tries to do so, it has to enter into contradictions.

Few Cases of Judicial populism or Excess of Judicial Activism:

  • Olga Tellis v. Bombay Municipal Corporation, the Court admitted at the abstract level that everyone had the right to shelter as part of his right to live. But the court was faced with persons who were living on footpaths and they had to be removed in order to clear footpaths for pedestrians. Therefore, the court said that the Bombay Municipal Corporation could evict them by issuing a notice and following the procedure laid down under the Bombay Municipal Corporation Act. So the right to shelter, as a fundamental right, turned out to be a platitude when it could be dispensed with by the corporation after following proper procedure. 
  • Mohini Jain v Karnataka[33]: In this case, the Supreme Court held that the right to education was included within right to life. The court realizing the impracticability of such a proposition, tried to narrow down the dictum in Unni Krishnan v. A.P.[34], where it said that the right to live included the right to primary education. Here again, we find that the court has verged on populism. The Constitution in one of the directive principles of state policy specifically enjoins on the state to provide within a period of ten years free and compulsory primary education for all children below the age of fourteen years[35]. It is not for the Court to convert a directive principle of State policy into a fundamental right. Where the literacy rate has been around fifty percent, to say that all Indian people have a fundamental right to primary education is an exercise of romanticism. These are second generation human rights, which consist of social and economic rights of a positive nature and have to be backed up by political action. The rights such as right to education or right to livelihood can be a reality only when the state allocates resources for providing education or jobs to people. This will depend on the economic policies the State pursues. 
  • Justice P.B. Sawant speaking in Delhi Development Horticulture Employees’ Union v. Delhi Administration[36] observed: “This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it and not because it considers it any the less fundamental to life. Advisedly, therefore, it has been placed in the chapter on Directive Principles”. 
  • Right to electricity is right to life: In K. Aacharya v C.M.D.W.B.S.E. Distribution Co. Ltd.[37], the Court held that the right to electricity is right to life and liberty in terms of Art.21. In modern days no one can survive without electricity. This is another example of judicial populism. How can the Court provide electricity to people? Providing electricity depends on the policies and measures taken by the State. It depends on the state policies and development in the area where such demand arises. 

    Right to Sleep: In Ram Lila Maidan Case[38], Justice B.S. Chauhan in his opinion wrote that when police disturbed the crowd in night at 1:00 AM their right to sleep was violated. He holds that right to sleep forms an essential part of Article 21 which guarantees personal liberty and life to all. It was observed: “Sleep is essential for a human being to maintain the delicate balance of health necessary for its very existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence of life itself would be in peril.” Undoubtedly, sleep is absolutely necessary; it is an essential requirement. But granting it the status of a right at par with right to food is stretching the concept of right to a preposterous level. Such a judgment can lead to Diwali revelers being jailed for infringing upon the right to sleep when they burst firecrackers closer to the midnight hour. It will have factory workers on night shift manufacture excuses like lack of sleep as reason for inefficient performance. As a society, we shall begin to discourage most nocturnal activities because those might interfere with our sleeping habit.

Article 21 and the Right to Honest and Efficient Governance

Article 21 has become the means by which to create new rights and entitlements. Questions regarding the constitutional validity of death sentences, a person’s liberty to die, whether personal liberty included the right to privacy, and whether freedom of speech included the right to information, were legitimate concerns of judicial activism because the Court was called upon to articulate the rights guaranteed by the Constitution. Similarly, a prisoner’s right to humane treatment, a prisoner’s right to a speedy trial, and an accused criminal’s right to legal aid emanated from the fundamental rights guaranteed by Articles 21 and 22 and the directive principles of state policy contained in Article 39-A of the Constitution. Even in regard to such rights, the Court can merely declare them part of the normative order, but cannot articulate them in reality, which is evident from the fact that a large number of people have obtained neither the right to speedy trial nor the right to legal aid.


Judicial activism is not an aberration. It is an essential aspect of the dynamics of a constitutional court. It is a counter-majoritarian check on democracy. Judicial activism, however, does not mean governance by the judiciary. It also must function within the limits of the judicial process. Within those limits, it performs the function of legitimizing or, more rarely, stigmatizing the actions of the other organs of government. The judiciary is the weakest organ of the State. It becomes strong only when people repose faith in it. Such faith of the people constitutes the legitimacy of the Court and of judicial activism. Courts have to continuously strive to sustain their legitimacy. They do not have to bow to public pressure, rather they have to stand firm against any pressure.

While it is imperative to exercise justifiable restraint and caution to ensure that judicial activism does not become judicial adventurism or tyranny, this power should be exercised only in exceptional circumstances and that too, only in public interest. Truly, judicial activism “is the oxygen of the rule of law”. The constitutional revolution, which was the vision of the Founding Fathers, was entrusted to the judiciary, giving it powers to enforce, through “writ power”, the socio economic liberation implicit in the fundamental rights and other avant-garde provisions of the Indian Constitution- the oasis of our democracy. “It is the courts, which have stood the test of time and served the cause of social-economic justice only to preserve the fundamental rights and duties of the citizen. When the executive violates these rights, the court cannot abdicate its responsibility or jurisdiction, oath bound as it is, to uphold the Constitution.”

Judicial philosophy which is to be adapted by the entire judicial community is reflected in the famous quotation of Ravindra Nath Tagore;

In to the mouths of these

Dumb, Pale and meek

We have to infuse the language of the soul.  Sorts of

In to the hearts of these

Weary and worn, dry and forlorn

We have to minstrel the language of humanity.

In order to preserve and protect the essence of our constitution, a creative judiciary is a must, and that sorts of judicial intervention should be with clear vision and intelligence.

Formatted on 28th February 2019.


[1] Article 13 (1) and (2).

[2] S.P. Sathe- Judicial Activism in India, Pg 4

[3] Kmiec, Keenan D. (2004). “The Origin and Current Meanings of ‘Judicial Activism'”. Cal. L. Rev. 92: 1441, 1447. “Schlesinger’s article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the ‘Judicial Activists’ and Justices Frankfurter, Jackson, and Burton as the ‘Champions of Self Restraint.’ Justice Reed and Chief Justice Vinson comprised a middle group.”

[4] Oxford English Dictionary 2nd Edn. Vol.Xll

[5] AIR 19S2 SC 149

[6] http://www.legalserviceindia.com/articles/art222.htm

[7] AIR (1981) 1 SCC 608

[8] Justice P.N. Bhagwati

[9] AIR 1982 SC 1473

[10] AIR 1960 SC 932

[11] AIR 1986 SC 180

[12] Oxford Dictionary of English. Oxford University Press, 2010. Oxford Reference Online. Oxford University Press. Malmo hogskola. 31 January 2011

[13] AIR 1986 SC 180

[14] (1990) 1 SCC 520: AIR 1990 SC 630

[15] 1963 AIR 1295, 1964 SCR (1) 332

[16] 1975 AIR 1378, 1975 SCR (3) 946

[17] Neera Mathur v LIC, (1992) 1 SCC 286: AIR 1992 SC 392

[18] In People’s Union for Civil Liberties (PUCL) v Union of India , Supreme Court held that telephone tapping is a  violation of right to privacy.

[19] Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat.

[20] AIR 1997 SC 3011

[21] Sexual Harassment and Rape Laws in India”. Legal Service India. Retrieved 2012-10-07.

[22] AIR 1989 SC 2039.

[23] Rural Litigation Entitlement Kendra Dehradun V/s State of U. P. AIR 1985 SC 652)

[24] AIR 1988 SC 111

[25] AIR 2002 SC 40

[26] (1983) 4 SCC 141.

[27] Pandey, J.N., The Constitutional Law of India, 47th  Ed., Central Law Agency, Allahabad, 2010, p. 269

[28] Charles Sobraj v. Superintendent, Central Jail AIR 1978 SC 1514

[29] Sunil Batra v. Delhi Administration AIR 1978 SC 1675.

[30] Sheela Barse v. UOI.

[31] Rudal Shah v. State of Bihar.

[32] Prem Shankar Shukla v. Delhi Administration.

[33] AIR 1992 SC 1858.

[34] (1993) 1 SC 645.

[35] Article 45

[36] AIR 1992 SC 789,795

[37] AIR 2008 Cal 47

[38] Suo Motu Writ Petition (Crl.) No. 122 of 2011-Decided on 23-02-2012

2 thoughts on “Judicial Activism under Article 21”

  1. Very well written article.properly elaborated and to the point.that needs lot of reading and a clear understanding of law.all relevant case laws cited very handy and useful.
    Ranjan Deshpande
    Law practitioner & trade union activists
    Mob: 7798188801


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