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Report No. 223

Chapter III

Expanse of Article 21 of The Constitution

3.1 Article 21 of our Constitution deals with protection of life and personal liberty and reads thus:

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

3.2 This article, drafted in clear and simple language, has been the subject matter of extensive litigation. Its scope has been expanded over the last 50 years and life and liberty now include education, health and even roads in hilly areas. The article prohibits deprivation of life or personal liberty except according to procedure established by law. In a sense, it corresponds to the Fifth and Fourteenth Amendments to the United States Constitution, the relevant portions of which read:

"Nor be deprived of life, liberty or property without due process of law..." and "... nor shall any State deprive any person of life, liberty or property without due process of law."

3.3 In A.K. Gopalan v. State of Madras, AIR 1950 SC 27, the Supreme Court had given a literal and narrow interpretation to article 21 and refused to infuse the procedure with the principles of natural justice. Three decades later, this view was overruled and it was held that the procedure contemplated under article 21 must answer the test of reasonableness.1 Such a procedure should be in conformity with the principles of natural justice. This is an example of the expansive interpretation of the fundamental right.

1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

3.4 Thus, article 21 not only protects life and personal liberty but also envisages a fair procedure.

3.5 The initial view was that article 21 did not include the right to livelihood. The later decisions have categorically held that the right to life includes the right to livelihood. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, it was held that the sweep of the right to life conferred by article 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 the death sentence, except according to procedure established by law.

That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part 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. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life.

3.6 The right to reputation is a facet of right to life under article 21. Adverse remarks by a Commission of Inquiry about a person without hearing him violates principles of natural justice and renders the action non est as well as the consequences thereof.1

3.7 Economic empowerment through distributive justice for the poor, dalits and tribes is an integral part of the right to life, equality and of status and dignity to the poor, weaker sections, dalits and tribes. Bonded labourers have to be identified and released and rehabilitated in terms of article 21 read with articles 39, 41 and 42.2 Women have right to work with dignity and without sexual harassment. A reasonable residence is an indispensable necessity for fulfilling the constitutional goal in the matter of development of man and should be taken as included in the right to life under article 21.3 For residence on hilly areas, access to road is access to life itself.4

3.8 National Human Rights Commission (NHRC) has been formed under the Protection of Human Rights Act 1993. The scheme of this Act is to protect and implement human rights including those envisaged under article 21 and international law.

3.9 The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. This is an area where the Court has been most strict and scrupulous in ensuring observance of the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention.

3.10 The expression "personal liberty" in article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under article 19 of the Constitution. The said expression includes the right to go abroad and no person can be deprived of this right except according to the procedure prescribed by law.5

1. State of Bihar v. Lal Krishan Advani, (2003) 8 SCC 361; State of Maharashtra v. Public Concern for Governance Trust, 2007 (1) SCALE 72.

2. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

3. Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630.

4. State of Himachal Pradesh v. Umed Ram Sharma, AIR 1986 SC 847.

5. Satwant Singh v. Passport Officer, [1967]3 SCR 525.

3.11 Personal liberty of a person in preventive detention is curtailed. Beyond a point, it would be violative of article 21. The law depriving such liberty, after the judgment in Maneka Gandhi,1 must be right, just and fair and not arbitrary, fanciful or oppressive. The Court did not uphold solitary confinement of a prisoner sentenced to death under section 30(2) of the Prisons Act 1894 on the ground that articles 14, 19 and 21 are as much available to a prisoner in a jail, and the liberty to move, mix, mingle, talk and company with coprisoners cannot be substantially curtailed.2

3.12 The right to a speedy trial has been held by the Supreme Court to form part or as one of the dimensions of the fundamental right to life and personal liberty guaranteed by article 21.3 This right is not confined to any particular category of offences. The importance of a speedy trial has been repeatedly emphasized by the Supreme Court in many cases.

In Abdul Rehman Antulay v. R.S. Nayak, AIR 1992 SC 1701, the Supreme Court examined consequences of denial of the right to a speedy trial and laid down 11, but in-exhaustive, propositions to serve as guidelines. This decision was held to be correct in P. Ramachandra Rao v State of Karnataka, 2002(4) SCC 578. The Court, however, held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.

3.13 Unnecessary handcuffing of under-trial prisoners would be against article 21.4 In Sheela Barse v. Union of India, AIR 1986 SC 1773, the Supreme Court deprecated detention of children in jails.

1. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

2. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

3. Hussainara Khatoon v. State of Bihar, 1979 Cri.L.J. 1036 (SC); Raghubir Singh v. State of Bihar, 1987 Cri.L.J. 157 (SC).

4. Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

3.14 The right to education also flows from article 21. Article 21A was, however, inserted in the Constitution by the Constitution (Eighty-sixth Amendment) Act 2002 specifically making the right to education as a fundamental right. However, this is not an absolute right. Its content and parameters should be determined in the light of the directive principle contained in article 41 of the Constitution. The right to education in the context of the said directive principle means:

(a) Every child has a right to free and compulsory education until the age of 14 years;

(b) After the age of 14 years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.

3.15 In Malak Singh v. State of Punjab, 1981(1) SCC 420, the Supreme Court held that the right to privacy is implicit in article 21. It has been held that surveillance, if intrusive, so seriously encroaches on the privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by article 21 and the freedom of movement guaranteed by article 19(1) (d). Surveillance must be to prevent crime. The right to privacy in terms of article 21 has been discussed in various other cases.

3.16 In Mr. "X" v. Hospital "Z",(2003) 1 SCC 500, the Supreme Court held that disclosure by the hospital or the doctor concerned to the persons related to the girl who intended to marry, of information that her fiancée had been suffering from HIV (+) did not involve violation of article 21 in the context of his right to privacy. Right to privacy is not absolute.1

1. Mr. "X" v. Hospital "Z", (1998) 8 SCC 296.

3.17 Illegal detention and custodial torture are recognized as violation of the fundamental rights of life and personal liberty guaranteed under article 21. To begin with, only the following reliefs were being granted in the writ petitions under article 32 or 226:

(a) Direction to set at liberty the person detained, if the complaint was one of illegal detention;

(b) Direction to the Government concerned to hold an inquiry and take action against the officers responsible for the violation;

(c) If the enquiry or action taken by the department concerned was found to be not satisfactory, to direct an inquiry by an independent agency, usually, the Central Bureau of Investigation.

3.18 Compensation for violation of article 21 or "constitutional tort" was for the first time awarded by the Supreme Court in Rudul Shah v. State of Bihar, (1983) 4 SCC 141, and later in Sebastian M. Hongray v. Union of India, AIR 1984 SC 1026, and Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494. The law was crystallized in Nilabati Behera v. State of Orissa, 1993(2) SCC 746, and D.K. Basu v. State of W.B., 1997(1) SCC 416, where the Court observed that the award of compensation is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply.

3.19 Construction of dams results in dislocation of thousands of persons. Rehabilitation of people who have been ousted from their homes is a logical corollary to article 21. Rehabilitation is not only about providing food, clothes and shelter, but includes support to rebuild means of livelihood and ensuring necessary amenities of life.

3.20 Our Supreme Court is one of the first courts to develop the concept of the right to healthy environment as a part of the right to life under article 21. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating from within one's own territories.

This responsibility is clearly enunciated in the Stockholm Declaration of the United Nations Conference on the Human Environment (1972), to which India is a party. Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area.1 Hygienic environment is an integral facet of the right to a healthy life and it would be impossible to live without a humane and healthy environment.2



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