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Report No. 177

Chapter II

The relevant provisions of the Constitution of India, International Declarations/Covenants on Human Rights and their interpretation by the Supreme Court of India

Article 21 of the constitution of India declares that "no person shall be deprived of his life or personal liberty except according to procedure established by law". The heading of the said Article is "Protection of life and personal liberty". Article 20 contains three guarantees, namely, (a) not to be convicted of an offence which was not in force or punishable at the time of the commission of the offence, (b) not to be prosecuted or punished for the same offence more than once and (c) not to be compelled to be a witness against himself. These are all the rights guaranteed to a person accused of an offence.

Clause (1) of Article 22 declares that "No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice". Clause (2) of Article 22 is indeed more fundamental. It says "Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate".

Though Article 21 is worded in negative terms, it is well-established now that it has both a negative and an affirmative dimension. A Constitution Bench of the Supreme Court examined the content of the expression 'personal liberty' in Article 21 in Kharak Singh v. State of U.P. (1964 1 SCR 332 = AIR 1963 SC 1295). Rajagopala Ayyangar J., speaking for the majority, said:

"We shall now proceed with the examination of the width, scope and content of the expression 'personal liberty' in Article 21. We feel unable to hold that the term was intended to bear only this narrow interpretation but on the other hand consider that 'personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue."

The learned Judge quoted the dissenting opinion of Field, J. (one of those dissenting opinions which have outlived the majority pronouncements) in Munn v. Illinois ((1877) 94 US 113, 142) attributing a broader meaning to the word "life" in the fifth and fourteenth amendments to the US constitution, which correspond inter alia to Article 21 of our Constitution. The learned Judge held that the word 'personal liberty' would include the privacy and sanctity of a man's home as well as the dignity of the individual.

The minority opinion in the said decision, however, placed a more expansive interpretation on Article 21. They said:

"No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping.

There is no question of one being carved out of another. The fundamental right of life and personal liberty have many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned."

In Maneka Gandhi v. Union of India (1978 (1) SCC 248 = AIR 1978 SC 597), Bhagwati J. held that the judgment in R.C. Cooper v. Union of India (AIR 1970 SC 564) has the effect of overruling the majority opinion and of approving the minority opinion in Kharak Singh.



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