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Report No. 223

3.21 The right to life under article 21 has been interpreted to also include the right to health of workmen.3 The health and strength of a worker is an integral facet of his right of life. In Murli S. Deora v. Union of India, 2001(8) SCC 765, the Supreme Court after considering the harmful effects that smoking has on non-smokers, gave directions to ban smoking in public places, namely,

(1) auditoriums,

(2) hospital buildings,

(3) health institutions,

(4) educational institutions,

(5) libraries,

(6) court buildings, (7) public offices, and (8) public conveyances, including railways.

The language used gives the impression that the list of places is exhaustive. Airports, for example, are not included, although they are impliedly included.

3.22 An accused who cannot afford legal assistance is entitled to free legal aid at the cost of the State. This right is part of the fair, just and reasonable procedure under article 21. The court must inform the accused of his right to be represented by a lawyer through legal aid and at the expense of the State. Failure to do so will vitiate his trial and his conviction can be set aside.4

1. Intellectuals Forum v. State of A. P., AIR 2006 SC 1350.

2. T. N. Godavarman Thirumalpad v. Union of India, (2002) 10 SCC 606

3. C.E.S.C. Limited v. Subhash Chandra Bose, (1992) 1 SCC 441.

4. Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401.

3.23 In Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470, the question of putting a person in prison in execution of a money decree, who did not have the necessary means to pay the debt, was considered by the Supreme Court. The Court while dealing with the issue harmonized section 51 of the CPC with the International Covenant on Civil and Political Rights. Article 11 of the Covenant provides that "no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation".

The Court held that a simple default to discharge the debt is not enough to detain a person in prison. There must be some element of bad faith beyond mere indifference to pay. If the judgment-debtor once had the means but now has not or if he has money now on which there are other pressing claims, he should not be cast in prison as the same would be violative of the spirit of article 11 of the Covenant as well as article 21 of the Constitution.

3.24 Public interest litigation is a strategic arm of the legal aid movement, intended to bring justice within the reach of the poor masses, who fall within the low-visibility area of humanity. Public interest litigation is brought before the court not for the purpose of enforcing the rights of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantageous position should not go unnoticed and un-redressed.

3.25 In Bandhua Mukti Morcha v. Union of India 1984(3) SCC 161, the Supreme Court held that the writ petition under article 32 by way of public interest litigation by a public-spirited organization on behalf of persons belonging to socially and economically weaker sections complaining violation of their human rights on being forced to serve as bonded labourers, was maintainable.

According to the Court, a public interest litigation is not in the nature of an adversary litigation 34 (1984) 3 SCC 161 but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. Certain directions were given by the Court to the governments and other authorities with a view to improve the life conditions of the poor workers of the stone quarries and ensure social justice to them so that they may be able to breathe the fresh air of social and economic freedom.

3.26 Though article 24 of the Constitution prohibits employment of children below the age of 14 years in any factory or mine or in any other hazardous employment, it is a hard reality that due to poverty child is driven to such employment. The Supreme Court in another case bearing the above title1 directed the Government of India to, inter alia, evolve the principles and policies for progressive elimination of employment of the children below the age of 14 years in all employments.

3.27 Conceptually, parens patriae theory is the obligation of the State to protect and take into custody the rights and privileges of its citizens for discharging its obligation. The Constitution makes it imperative for the State to secure to its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to assert and secure their rights, the State must come into picture and protect and fight for the rights of the citizens.

Therefore, the State can be activated and approached to effectively come on the scene 35 Bandhua Mukti Morcha v. Union of India, AIR 1997 SC 2218 and take over the claims of the victims of a disaster to protect their human rights.2

3.28 A newspaper carried a report about the non-payment of wages to a large number of employees in different public undertakings. The report also indicated that several employees died due to starvation or committed suicide owing to acute financial crisis. A writ petition was filed by a lawyer on the basis of the said news.

In Kapila Hingorani v. State of Bihar, 2003(6) SCC 1, the Supreme Court interfered with the matter in public interest and held that there is failure to perform the constitutional duties by the State in controlling the functions of the public sector companies. In such circumstances, the Court would not hesitate to lift the corporate veil when corporate personality is found to be opposed to justice, convenience and interest of the revenue or workman or against public interest.3

1. Bandhua Mukti Morcha v. Union Of India, AIR 1997 SC 2218.

2. Charan Lal Sahu v. Union of India, (1990) 1 SCC 613.

3. (2003) 6 SCC 19 (20).

3.29 To help the poor litigants, article 39A of the Constitution provides, inter alia, that the State shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Invoking the said article and the Universal Declaration of Human Rights, the Supreme Court held that it is the duty of the State to provide amicus curiae to defend an indigent accused.

The Court also held that he would be meted out with unequal defence, if, as is common knowledge, a youngster from the Bar who has either a little experience or no experience is assigned to defend him and, therefore, it is high time that senior counsel practising in the court concerned should volunteer to defend such indigent accused as a part of their professional duty.1

1. Kishore Chand v. State of Himachal Pradesh, (1991) 1 SCC 286.

3.30 Poverty is indisputably the most potent violation of all human rights and constitutes a threat to the survival of the greatest numbers of the human population. Dr. A. P. J. Abdul Kalam stated at the Human Rights Day function on 10.12.2002:

"People, who are economically or socially in the lower strata, are vulnerable to human rights exploitation by those who are in the higher strata. One way to reduce this exploitation is to narrow this divide. In our country, about 300 million people are below the poverty line. After five decades of progress, the aspirations of people are rightly mounting that India should become a developed country. This is the second vision for the nation."

3.31 Another former President of India, Mr. Zail Singh, had suggested that no person in the country should be allowed to have more than one house, as a measure of reducing economic disparities and ensuring proper distribution of prosperity. Permitting one house per person, the extra houses could be given to the needy who should be facilitated to pay for them in instalments. Equal protection of the laws is not a formal declaration but a dynamic actualization. So, to create conditions of life where social and economic disabilities do not deny equal justice in the enjoyment of basic facilities is the task of the legal system.

Articles 14, 15 and 39A, read together, mean nothing less, nothing else. The right to life, preserved in article 21, has the same broad élan, viewed in the benign light of the Preamble which assures to all citizens liberty, equal opportunity, fraternity and the dignity of the individual. There is need to brain-scan article 21 because judicial illusion raises false expectation and the Court, viewed as a whole, being stuffed with artists of the Establishment, may give a jolt when the right to life is pressed seriously, disturbing the status quo conscience of the robed brethren.

Article 21 which has incarnated as the last hope of the least and the lost of our countrymen, is a proud heritage of the judicial revolution midwifed by the Supreme Court in all innocence. Its anatomy is in two parts. First, a basic assumption that everyone has a right to life and personal liberty, too fundamental to be negotiable. Second, this basic postulate of liberty may be truncated or annihilated if the power to do so is duly legislated. No cannibal legislation can do away with life or personal liberty regardless of humanism and realism.

3.32 In the words of Justice V.R. Krishna Iyer, what is guaranteed by this fundamental right is not mere animal existence nor vegetable survival but rightful opportunity to unfold the human potential and share in the joy of creative living.

3.33 In Veena Sethy v. State of Bihar, 1982(2) SCC 583, the Supreme Court was considering the cases of mentally sick prisoners languishing in jail for nearly two or three decades. Some of them were acquitted being of unsound mind. Some under-trial prisoners of unsound mind regained sanity long before, but no steps were taken to commence proceedings against them. In view of the inordinately long incarceration already suffered by them without justification, the Supreme Court ordered all of them to be released forthwith by providing necessary funds for meeting expenses of their journey to their respective native places as also for maintenance for a period of one week.

The above case was filed by way of public interest litigation by the Free Legal Aid Committee, Bihar, by addressing a letter to a Judge of the Supreme Court, drawing the Court's attention to unjustified and illegal detention of certain prisoners in the Central Jail, Hazaribagh, for almost two or three decades.

Treating this letter as a writ petition, the Supreme Court issued notice to the State of Bihar for the purpose of ascertaining facts and after giving opportunity to the State to file the counter affidavit, the Supreme Court held that if the poor are allowed to languish in jails without the slightest justification, the rule of law would become meaningless for the rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of the status quo which protects and preserves their dominance and permits them to exploit large sections of the community but it exists also for the poor and the down-trodden, the ignorant and the illiterate who constitute the large bulk of humanity in this country.

3.34 The Supreme Court thus held that it is the solemn duty of the Court to protect and uphold the basic human rights of the weaker sections of the society.

3.35 The case of Supreme Court Legal Aid Committee v. Union of India, 1998(5) SCC 762, arose under the Legal Services Authorities Act, 1987. Chapter III of the Act providing for constitution of High Court Legal Services Committee, etc. had not been extended to all the States and Union territories as rules under section 28 of the Act had not been framed by many States and Union territories nor were made regulations under section 29A. The Supreme Court directed the States and Union territories to make rules and regulations as well as constitute various Committees within two months.

3.36 The decision in Suthendraraja v. State, 1999(9) SCC 323, reflects difference of opinion amongst Judges in regard to the sentence of death awarded to Nalini in the Rajiv Gandhi assassination case. K. T. Thomas, J. partly dissented from the majority view and altered her sentence to life imprisonment. After referring to the Constitution Bench judgment in Bachan Singh v. State of Punjab, 1980(2) SCC 684, which narrowed down the scope for awarding death sentence to the extremely restricted radius of "rarest of rare cases" in which the alternative lesser sentence of imprisonment for life is unquestionably foreclosed, he observed:

"In a case where a Bench of three Judges delivered judgment in which the opinion of at least one Judge is in favour of preferring imprisonment for life to death penalty as for any particular accused, I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused. Such an approach is consistent with Article 21 of the Constitution as it helps saving a human life from the gallows and at the same time putting the guilty accused behind the bars for life.

In my opinion, it would be a sound proposition to make a precedent that when one of the three Judges refrains from awarding death penalty to an accused on stated reasons in preference to the sentence of life imprisonment that fact can be regarded sufficient to treat the case as not falling within the narrowed ambit of "rarest of rare cases when the alternative option is unquestionably foreclosed".

I may add as an explanatory note that the reasoning is not be understood as a suggestion that a minority opinion in the judgment can supersede the majority view therein. In the realm of making a choice between life imprisonment and death penalty the above consideration is germane when the scope for awarding death penalty has now shrunk to the narrowest circle and that too only when the alternative action is "unquestionably foreclosed".'

3.37 Zahira Habibulla H. Sheikh v. State of Gujarat, 2004(4) SCC 158, relates to the communal riots in Gujarat, popularly known as "Best Bakery Case". In this case, the Supreme Court observed:

"The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and atmosphere of judicial calm.

Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law."

3.38 The Supreme Court in Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde, 1995 Supp (2) SCC 549, observed:

"Article 21 of the Constitution assures right to life. To make right to life meaningful and effective, this Court put up expansive interpretation and brought within its ambit right to education, health, speedy trial, equal wages for equal work as fundamental rights. Articles 14, 15 and 16 prohibit discrimination and accord equality.

The Preamble to the Constitution as a socialist republic visualizes to remove economic inequalities and to provide facilities and opportunities for decent standard of living and to protect the economic interest of the weaker segments of the society, in particular, Scheduled Castes i.e. Dalits and the Scheduled Tribes i.e.

Tribes and to protect them from "all forms of exploitations". Many a day have come and gone after 26-1-1950 but no leaf is turned in the lives of the poor and the gap between the rich and the poor is gradually widening on the brink of being unbridgeable. Lest Fundamental Rights in Chapter III would remain teasing illusions to the poor, disadvantaged and deprived sections of the society, the disadvantaged cannot effectively exercise their fundamental rights. Society, therefore, must help them to enjoy freedom accorded in Chapter III on Fundamental Rights.'

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