1

DISSERTATION
ON
(A CRITICAL ANALYSIS OF ARTICLE 21 UNDER THE CONSTITUTION
OF INDIA)

Submitted to GGSIPU in partial fulfillment of the requirement for the degree of

Bachelor of Law (BALLB)

Batch: 2019-2024

Submitted To Submitted by

DR.SAKSHI JANGRA SHUBHAM

SUPERVISOR 11190103819
FIMT SCHOOL OF LAW BA.LLB

Fairfield Institute of Management and Technology

Affiliated to Guru Gobind Singh Indraprastha University, NewDelhi
 2

ACKNOWLEDGMENT

I am thankful to Fairfield Institute of Management and Technology (School of Law),

G.G.S.I.P.U for providing me an opportunity to write a dissertation and providing me
with the appropriate guidance and material to convert my ideas into this dissertation.

I am fortunate to be provided with an opportunity to write my dissertation under the

kind supervision of DR.SAKSHI JANGRA ASSISTANT PROFESSER Fairfield
Institute of Management and Technology-School of Law. This dissertation would not
have been possible without her valuable inputs, honest remarks, and earnest efforts
and support to guide me throughout the drafting of the dissertation. I would like to
extend my sincere gratitude to her for giving me her valuable time to view my
research.

I would like to thank my family, whose life-long love and support, encouragement,
patience, and belief in me ultimately made this dissertation possible. I owe my loving
and caring parents who always stood by me to recognize my potential. Their silent
prayers, aesthetic love, and affection, support, and steel belief in my capabilities have
enabled me to make this endeavor successful one.

I would like to extend my sincere thanks to my friends and seniors for their review
and honest remarks given to me regarding the dissertation.

Above all, I sincerely acknowledge my gratitude to almighty God for his compassion
and his bountiful blessings to complete this venture.

Working on the dissertation has been one of the most enriching experiences for me
and has resulted in the amassment of the bulk of highly relevant and functional
information.

Dated: SHUBHAM
11190103819
 3

Fairfield Institute of Management and Technology, Bijwasan Road

Kapa Shera, New Delhi- 110037 Phone No. 011-25063208/10

Email,[email protected],www.fimt-ggsipu.org

FORWARDING CERTIFICATE

Whereas, under B.A.LL.B., Degree Course of study and examination, a student is

required to write a Dissertation carrying 100 marks on the subject approved in partial
fulfillment of the requirement for the degree of B.A.LL.B. Of the FAIRFIELD
INSTITUTEOF MANAGEMENT AND TECHNOLOGY, NEW DELHI;

And whereas, SHUBHAM has been permitted to write a Dissertation on “A

CRITICAL ANALYSIS OF ARTICLE 21 UNDER THE CONSTITUTION OF
INDIA” for B.A. LL.B. examination of 5th year of the FAIRFIELD INSTITUTE
OF MANAGEMENT AND TECHNOLOGY, NEW DELHI;

Now there upon, DR.SAKSHI JANGRA has submitted the said dissertation which is
being forwarded to the CONTROLLER OF EXAMINATION, FAIRFIELD
INSTITUTE OF MANAGEMENT AND TECHNOLOGY, NEW DELHI for
necessary action.

DATED

SUPERVISOR- DR.SAKSHI JANGRA

 4

DECLARATION
I, SHUBHAM, Enrollment No. 11190103819 hereby declare that dissertation on the
Topic: A CRITICAL ANALYSIS OF ARTICLE 21 UNDER THE
CONSTITUTION OF INDIA is an original work done by me under the supervision
of DR.SAKSHI JANGRA, Fairfield Institute of Management and Technology, New
Delhi.

I further declare that to the best of my knowledge this B.A LL.B. Dissertation does
not contain any part which has been submitted for the award of any degree either in
this Institution or in any other Institution without proper citation. This Dissertation
work is done by me in allowance to the FIMT- Anti Plagiarism and Academic
Integrity Policy 2023-24.

Dated: SHUBHAM
 5

ABBREVIATIONS
All England Reporter All.E.R
All India Reporter A.I.R.
Appeal Cases. A.C.
Academy Journal of Comparative Law A.c.L.R.
Annual Survey of Indian Law A.J.C.L.
Banaras Law Journal Ban.L.J.
Cochin University Law Review C.U.L.R.
Criminal Law Journal Cr.L.J.
DelhiLaw Review Del.L.Rev.
Federal Court Reports F.C.R.
Harvard Law Review H.L.R.
Indian Bar Review I.B.R.
Indian Law Report I.L.R.
Indian Report I.R
Journal of the Bar Council of India J.B.C.I
Journal of Indian Law Institute J.I.L.I.
Kurukshetra Law Journal Kur.L.J
Law Reports L.R
Lawyers Edition (U.S.S.C.R.)
Lawyers Edition 2nd series L.E.d 2d.
Punjab Law Reporter P.L.R
Supreme Court Cases S.C.C.
Supreme Court Journal S.C.J.
United States Supreme Court Reports U.S.
 6

LIST OF CASES

1. A.K.Gopalanvs State of Madras

2. Ajab Singh v. State of UP
3. Attorney General v. Lachma Devi
4. AkhtariBi v. State of Madhya Pradesh
5. Bachan Singh v. State of Punjab
6. BegullaBapiRaju V. Andhra Pradesh
7. Bishnu Deo Shaw v. State of West Bengal
8. Consumer Education and Research Center v. UOI
9. CESC Ltd. vs. Subash Chandra Bose
10. Chairman, Railway Board v. ChandrimaDas
11. Dhananjoy Chatterjee v. State of West Bengal
12. D.K Basu v. State of West Bengal
13. Durgapur Projects Ltd. V. Shankar
14. Daryao v. State of U.P
15. Francis Coralie v. Union Territory of Delhi
16. Francis Coralie Mullin v The Administrator, Union
17. Govindav. State of Madhya Pradesh
18. Gian Kaur v. State of Punjab
19. GolakNath v. State of Punjab
20. HussainaraKhatoon v. State of Bihar
21. Intellectuals Forum,Tirupathi v. State of AP and others(2006)
22. Janardhan Reddy v. State of Hyderabad
23. J P Unnikrishnan vs. State of Andhra Pradesh
24. Joginder Kumar v. State of U.P
25. Kesavananda Bharati v. State of Kerala 1973
26. Keher Singh v. Union of India
27. Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding
case
28. Kharak Singh v. State of UttarPradesh
29. Maneka Gandhi v. Union of India
30. Munn v Illions
 7

31. Mohini Jain v. Union of India

32. M.P. Sharma v.Satish Chandra
33. M.C. Mehta v. Union of India
34. M. C. Mehta vs. Union of India &Ors. 1987
35. M C Mehta v. Union of India and others, 2006
36. Madhu Mehta v. Union of India
37. NandiniSatpati v. P.L Dani
38. Nelabati Behara v. State of Orissa
39. Olga Tellis V. Bombay Municipal corporation65and
Maneka Gandhi v. Union of India
40. Peoples Union for Democratic Rights v. Union of India
41. P.U.C.L v U.O.I
42. Peoples Union for Civil Liberties v. Union of India
43. Paschim Banga Khet mazdoor Samity&ors v. State of West Bengal
&ors
44. Paramanand Katara v Union of India
45. Raghbir Singh v. State of Haryana
46. Re Noise Pollution (V) {(2005)
47. Research Foundation for science Technology and Natural
resources Policy v.UOI and ARS,SC
48. R.C. Cooper v. Union of India
49. Ramsaran v. Union of India
50. State of U.P v. Ram SagarYadav
51. Secretary, Hailakandi Bar Association v. State of Assam
52. State of Punjab v Ram LubhayaBagga
53. Sunil Batra v. Delhi Administration
54. Sukhdas v. Union Territory of Arunachal Pradesh
55. State of Himachal Pradesh v. A Parent of Student of Medical
College Shimla
56. SubashKumarv. State of Bihar
57. Shanti Star Builders vs.Narayan Totame
58. Subhash Kumar vs. State. Of Bihar
59. Shantistar Builders vs. Narayan KhimalalTotame
 8

60. State of Maharashtra v. Prabhakar Panduran

61. Sher Singh v. State of Punjab
62. Tara Singh v State of Punjab
63. T.V.Vatheeshwaran v.State of Tamil Nadu
64. VikramDeo Singh Tomar v. State of Bihar
65. Vishaka v. State of Rajasthan
66. Zahira Habibullah Sheikh &Anrvs State of Gujarat
 9

TABLE OF CONTENT
NO. TOPIC PG.NO
1 ACKNOWLEDGMENT 2
2 FORWARDING CERTIFICATE 3
3 DECLARATION 4
4 ABBREVIATIONS 5
5 LIST OF CASES 6-8
6 CHAPTER 1 INTRODUCTION
1.1 CONCEPT OF FUNDAMENTAL RIGHTS 10
1.2 REVIEW OF LITERATURE 18
1.3 RESEARCH QUESTIONS 20
1.4 RESEARCH OBJECTIVE 20
1.5 HYPOTHESIS 21
1.6 METHODOLOGY 21
1.7 SCOPE OF RESEARCH 21
1.8 CHAPTERIZATION 21
7
CHAPTER 2 RIGHT TO LIFE AND PERSONAL LIBERTY: UNDER
ARTICLE- 21 OF CONSTITUTION OF INDIA
1.1Meaning & Concept of Right to Life. 27
1.2Meaning & Concept of Right to Personal Liberty. 31
1.3Thoughts of the pioneers. 33

1.4 Historical Background of Article-21 Of Indian Constitution. 35

8
CHAPTER 3 EXPANDING HORIZON OF RIGHT TO LIFE AND
PERSONAL LIBERTY UNDER ARTICLE – 21
1.1Expanding Horizon of Life and Personal LibertyWith Judicial Interpretation Of 39
Article-21.
1.2 Expanding Horizon of Life 42
1.3 EXPANDING HORIZONS OF PERSONAL LIBERTY RIGHT TO 86
9 CHAPTER 4 Comparative Study Of Right to Life andPersonal
Liberty
1.1United States of America 97
1.2 England 98
10 CHAPTER 5 Conclusion and Suggestions 100
11 BIBLIOGRAPHY 106
12 APPENDICES 108
 10

CHAPTER- I
INTRODUCTION

1.1 CONCEPT OF FUNDAMENTAL RIGHTS

Fundamental rights are a generally regarded set of legal safeguards in the relation to
legal system, wherein such system is itself based upon this same set of basic, fundamental,
inalienable rights. Such rights thus belong without deduction or cost of privilege to all human
beings under such jurisdiction. The concept of human rights has been promoted as a legal
notion in large part owing to the idea that human beings have such "fundamental" rights,
 11

such that transcend all jurisdictions, but are typically armoured in different ways and with
different emphasis within different legal systems.3
The concept of human basic rights can be traced back to the Natural law
philosophers, such as Locke and Rousseau. The Natural law philosophers gave philosophies
over such inherent human rights and sought to protect these rights by propounding the
theory of ‘Social Contract’. According to Locke, man is born “with a title to perfect freedom
and an uncontrolled enjoyment of all the rights and privileges of the Law of Nature.” and he
has by nature a power – “to preserve his property- that is, his life, liberty and estate against
the injuries and attempts of other men.”4
The Fundamental Rights, embodied in Part III of the Constitution, assured civil rights
to all Indians, and put a stop to the State from invading on individual liberty while
simultaneously placing upon it a duty to protect the citizens' rights from infringement by
society. Seven fundamental rights were initially provided by the Constitution – right to
equality, right to freedom, right against exploitation, right to freedom of religion, cultural
and educational rights, right to property and right to constitutional remedies. However, the
right to property was removed from Part III of the Constitution by the 44th Amendment in
1978.5
The purpose of the Fundamental Rights is to protect individual liberty and
democratic principles based on equality of all members of society. They act as restrictions on
the powers of the legislature and executive, under Article 13, and in case of any infringement
of these rights, the Supreme Court of India and the High Courts of the states have the power
to pronounce such legislative or executive action as unconstitutional and void. These
fundamental human rights are largely enforceable against the State, which as per the wide
definition provided in Article 12, includes not only the legislative and executive arms of the
central and state governments, but also local administrative authorities and other agencies
and institutions which discharge public functions or are of a governmental
character. However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 –
that are also available against private individuals. Further, certain Fundamental Rights –
including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon

3
http://en.wikipedia.org/wiki/Fundamental_rights
4
ibid
5
http://en.wikipedia.org/wiki/Fundamental_Rights,_Directive_Principles_and_Fundamental_Duties_of_India
 12

Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only
to citizens of India.3
The Fundamental Rights are not absolute and are subject to reasonable restrictions as
essential for the protection of public interest. In the Kesavananda Bharati v. State of
Kerala case in 1973, the Supreme Court, overruling a previous decision of 1967, held that
the Fundamental Rights could be amended but such amendment will not violate the basic
structure of the Constitution. The Fundamental Rights can be improved, removed or
otherwise altered through a constitutional amendment, passed by a two-thirds majority of
each House of Parliament. The imposition of a state of emergency may lead to a temporary
suspension any of the Fundamental Rights, excluding Articles 20 and 21, by order of the
President. The President may, by order, suspend the right to constitutional remedies as well,
thereby barring citizens from approaching the Supreme Court for the enforcement of any of
the Fundamental Rights, except Articles 20 and 21, during the period of the
emergency. Parliament may also restrict the application of the Fundamental Rights to
members of the Indian Armed Forces and the police, in order to ensure proper discharge of
their duties and the maintenance of discipline, by a law made under Article 33.

EARLIER RECOGNITION OF BASIC RIGHTS: -6

As early as in 1215, the English people exacted a guarantee from King John for respect of the
then ancient liberties. The MAGNA CARTA is the evidence of their achievement, which is a
written document. This is the first written document relating to the fundamental rights of
citizens. In 1689, the BILL OF RIGHTS was written consolidating all important rights and
liberties of the English people. The DECLARATION OF THE FRENCH REVOLUTION,
1789 provided that, “the aim of all political association is the conservation of the natural and
inalienable rights of man.”

6
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296804
 13

CONSTITUTIONAL RECOGNITION: -7

The course by which basic rights became fundamental rights is the fundamental idea in
entrenching certain basic rights is to take them out of the reach of the transitory political
majorities. It has therefore, come to be regarded as essential that these rights be deep-rooted
in such a way that they may not be sullied, tampered or interfered with by an oppressive
government. With this end in view, some written constitution’s guarantee a few rights to the
people and forbid governmental organs from with the same. In that case, a guaranteed right
can be limited or taken away only by the elaborate and formal process of the constitutional
amendment rather than by ordinary legislation. These rights are characterized as fundamental
rights.
FUNDAMENTAL RIGHTS IN INDIA- 8

Coming to India, a few good reasons made the enunciation of the fundamental rights in the
Constitution rather inevitable. Firstly, Congress has been for long demanding these rights
against the British rule. During the British rule in India, the human rights were infringed by
the rules on a very wide extent. Therefore, the framers of the Constitution, many of whom
had suffered imprisonment during the British rule, had a very optimistic attitude towards
these rights.
Secondly, the Indian society is fragmented into many religions, cultural and linguistic groups
and it was necessary to declare fundamental rights to give to the people a sense of security
and confidence.

IMPACT OF THE US CONSTITUTION- 9

The constitution of USA has been the source of inspiration for the insertion of fundamental
rights in the Constitution. The novel US Constitution did not contain any provision relating
to fundamental rights, however, in the year 1791 the Bill of Rights was included in the US

7
ibid
8
ibid
9
ibid
 14

Constitution in the form of ten amendments, and thus, the Americans became the first to give
the Bill of Rights a constitutional status.
When the Indian constitution was framed, the background for the incorporation of Bill of
Rights was already present. The framers took stimulation from this and incorporated a full
Chapter in the Constitution dealing with fundamental rights. However, the fundamental
rights contained in Part III of the Constitution of India vary from the US Bill of Rights.

DIFFERENCE BETWEEN PART III OF THE INDIAN CONSTITUTION AND THE

US BILL OF RIGHTS- 10

While the declarations in the American Bill of Rights are absolute and the power of the
state to impose restriction upon the fundamental rights of the individual in the collective
interests had to be evolved by the Judiciary.
In India, this power of imposing restrictions has expressly bestowed upon the legislature by
the Constitution itself, in the case of the major fundamental rights, of course, leaving a power
of judicial review in the hands of the judiciary to determine the reasonableness of the
restrictions imposed by the legislature.

NEED FOR FUNDAMENTAL RIGHTS- 11

Fundamental rights were deemed essential to protect the rights and liberties of the people
against the encroachment of the power delegated by them to their government. They are
limitations upon all the powers of the government, legislative as well as executive and they
are essential for the preservation of public and private rights.
These rights regarded as fundamental because they are most essential for the attainment by
the individual his full intellectual, moral and spiritual status. The negation of these rights will
keep the moral and spiritual rights stunted and his potentialities underdeveloped. Part III of
theConstitution serves, as remainder to the government in power that certain liberties assured
to the people by the Constitution needs to be respect. The object behind the inclusion of Part
III in the Constitution is to establish a government of law and not of man.

10
ibid
11
ibid
 15

NEED FOR FUNDAMENTAL RIGHTS AND OBSERVATION OF THE SUPREME

COURT12

In Daryao v. State of U.P.13the SC observed that, “the fundamental rights are

intended not only to protect individual’s rights but they are based on high public policy.
Liberty of the individual and the protection of his fundamental rights are the very essence of
the democratic way of life adopted by the Constitution…”
In GolakNath v. State of Punjab14, the SC held that, Part III of the Constitution of
India guarantees certain fundamental rights because they are considered necessary for the
development of human personality. These rights enable a man to chalk out his own life in the
manner he likes best.
In Maneka Gandhi v. Union of India,15SC observed that, “fundamental rights are
calculated to protect the dignity of the individual and creates conditions in which every
human being can develop his personality to the fullest extent”.

FUNDAMENTAL RIGHTS- TO WHOM AVAILABLE-

Part III of the Constitution of India deals with various fundamental rights in its Articles 12-
35. The fundamental rights in Articles 15, 16, 19, 29 and 30 are available only to citizens,
while the rights guaranteed by other Articles are available to the citizens and non-citizens
alike.

FUNDAMENTAL RIGHTS- AGAINST WHOM AVAILABLE-16

Generally, the fundamental rights in Part III of the Constitution of India are available against
the State only but some are also available against the private individuals. For example- the

12
ibid
13
AIR 1961 SC 1457
14
AIR 1967 SC 1643
15
AIR 1978 SC 597
16
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296804
 16

fundamental rights guaranteed in Articles 14, 15(1), 16, 18(1), 19, 20, 21, 22, 25, 26, 27, 28,
29 and 30 are available against the State only. While the fundamental rights guaranteed in
Articles 15(2), 17, 23(1) and 24 are available against the State as well as against the private
individuals.

CLASSIFICATION OR KINDS OF FUNDAMENTAL RIGHTS IN INDIA- 17

The fundamental rights guaranteed in Part III of the Constitution have been classified in the
following categories-
1. Right to Equality (Articles 14-18);
2. Right to Freedom (Articles 19-22);
3. Rights against Exploitation (Articles 23-24);
4. Right to Freedom of Religion (Articles 25-28);
5. Cultural and Educational Rights (Articles 29-30);
6. Right to Constitutional Remedies (Articles 32-35).
It is to be noted that, the Right to Property guaranteed by Article 31 has been excluded from
fundamental rights by the Constitution (Forty fourth Amendment) Act, 1978 with effect
from 20-06-1979.

The seven fundamental rights recognised by the Indian constitution are:1819

1. Right to equality: Which includes equality before law, prohibition of discrimination
on grounds of religion, race, caste, gender or place of birth, and equality of opportunity in
matters of employment, abolition of untouchability and abolition of titles.

2. Right to freedom: Includes right to speech and expression, assembly, association or

union or cooperatives, movement, residence, and right to practice any profession or
occupation (some of these rights are subject to security of the State, friendly relations with
foreign countries, public order, decency or morality), right to life and liberty, right to
education,

17
ibid
18
Constitution of India-Part III Fundamental Rights.
19
http://en.wikipedia.org/wiki/Fundamental_rights_in_India
 17

protection in respect to conviction in offences and protection against arrest and detention in
certain cases.

3. Right against exploitation: Prohibits all forms of forced labour, child labour and traffic
of human beings.

4. Right to freedom of religion: Which includes freedom of conscience and free

profession, practice, and propagation of religion, freedom to manage religious affairs,
freedom from certain taxes and freedom from religious instructions in certain educational
institutes.

5. Cultural and Educational rights: Preserve the right of any section of citizens to
conserve their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.

6. Right to constitutional remedies: Which is present for enforcement of

Fundamental Rights.

7. Right to life: Which gives the right to live with human dignity. This includes rights such
as right to education, health, shelter and basic amnesties that the state shall provide.
Fundamental rights for Indians have inserted to aim at overturning the inequalities of pre-
independence social practices. Specifically, they have used to abolish untouchability and thus
prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They
also forbid trafficking of human beings and forced labour. They also protect cultural and
educational rights of ethnic and religious minorities by allowing them to preserve their
languages and also establish and administer their own education institutions. 20
REMEDIES IN CASES OF VIOLATION OF FUNDAMENTAL RIGHTS
(ENFORCEMENT OF FUNDAMENTAL RIGHTS) –

20
http://en.wikipedia.org/wiki/Fundamental_rights_in_India
 18

In the case of violation of the fundamental rights, special remedy has provided. Articles 32-
35 deals with right to constitutional remedies in the cases of violation or infringement of
fundamental rights guaranteed in Part III of the Constitution.

1.2 REVIEW OF LITERATURE

S.P. Sathe - Constitutional Amendments 1950-1988 law & politics 1989. In this book research on
judicial Activism, judicial decisions in which the courts had articulated the basic structure limitation
on the power of parliament to amend the Constitution.

B.P.Dwivedi– The changing dimension of personal liberty in India–1993

Liberty is a dynamic concept. Each word of Article 21 has been subject to close
judicial scrutiny. The Indian judiciary has shown soft corner in administration of criminal justice &
justice to the poor & down trodden courts have shown great dynamism in the fields of right to bail,
legal aid, speedy trial & human conditions in prisons & homes for the custody of women & children,
& the capital punishment.

A.V. Dicey: - An introduction to the study of the law of the Constitution 10th Edition – 1998. This
book is case its title imports an introduction to the study of the law of the Constitution. It does not
pretend to be even a summary, much less a complete account of Constitutional law. It deals only with
two or there guiding principles which pervade the modern Constitution of England.
Shailaja Chandar Author – Justice V.R. Krishna Iyyer on Fundamental Rights & directive
principals – 1998 Indian Constitution has been particularly shaped & reshaped through the judicial
process. It is not doubt true that the apex court has played significant role in era of Constitutional
jurisprudence. In the field of Constitutional law, Fundamental Rights & directive principles occupy
subgenre’s position. It explained the relationship between the Fundamental Rights & directive
principles.

Asim Pandya – writs & other Constitutional remedies. First Edition 2009.
A greatdeal of confusion exists in judicial pronouncements due to the very wide interpretation given
to Article 14of the Constitution. As a result thereof the entire canon of the principles of administrative
law has become part of Article 14. in an obliteration of the dividing line between the case where
Article 14 in its true sense & spirit is violated & other cases where an action is challenged on the
ground of non-compliance of the fundamental principles of administrative law.

V.Parbrahma Sastri – Right to life & personal Liberty 2010 In Constitutional Jurisprudence, Right
to life & personal liberty is the most valuable among Fundamental Rights; Denuded of this there
cannot be a full fledged human personality at all. In this sense it looks that the shortest Article 21 has
countered the largest freedom. As pointed by the Supreme court in Unnikrishanan V. State of Andhra
Pradesh has been ever expending in to its sweep rights such as the right to go abroad right to privacy
right to medical assistance etc. Containment & right against custodial violence have expanded the
connotation of Personal liberty & its significance

The Right to Privacy in India: Concept and Evolution Paperback – by Ravinder Kumar and
Gaurav Goyal, Lightning Source Publication (Jan 2016) - Gaurav Goyal and RavinderKumar
argue
 19

that privacy laws in India are weak because politicians have failed to pass lawsto protect it. Even in
the West, it's not always clear what's protected in terms of privacy. Theyfurther argue that one's
private sphere is subjective and depends on one's culture, environment,and economic condition. For
instance, the media constantly infringe on the right to privacy offamous and even not-so-famous
individuals. In examining privacy in India, the authors highlight: - why certain classes of people enjoy
more privacy than others; - how technology is changing the way we approach privacy; and - why
people feel compelled to snoop into the personal space of others. While privacy may seem like a
simple concept, it's important to understand its historical context, the laws that govern it, and how it
continues to change if you want to have any chance of protecting it in India. The both legal scholars of
India examine privacy in India, how it is different from privacy in the West, and why it needs to be
protected are explained in this book.

Right to Life and Personal Liberty Hardcover by Dr. Shilpa Jain (Author), Satyam Law
International Publication (Jan 2017) –The Author stated that Article 21 of the Constitution
guarantees 'right to life' which is res integra to our Constitution. Article 21 has been subject of judicial
interpretation over years and its scope has been expanded by the judiciary so as to give rise to rights
which in a literal sense do not exist within the Constitution, or in other words un-enumerated rights.
Therefore, CASIHR undertook the work of a case digest on various facet of Article 21 with human
rights perspective in its hindsight to analyze upon the basic.

H.R. Khanna – Making of India’s Constitution 2018 edition – Eastern Book Company. The
subject of the Indian Constitution is of great interest to the people of India & justice khanna has traced
out the various changes made in the draft of the Constitution of India during its passage through the
constituent assembly & the final shape given to the Constitution.He is added his own comments on
various aspects of the Constitution.

Privacy & Data Protection Laws in India, USA & European Union by Javid Ahmad Dar,Walnut
Publication (Mar 2019) –The Author provides an insight of data protection laws keeping in mind the
global perspective of business, hence, covers multiple jurisdictions as professionals often are required
to know the laws of various regions. This is an effort to presentconsolidated information on the subject
and the content has been kept short & to the point soto help the readers to gain the knowledge without
spending the too much of time. This book will help to understand the evolution of right to privacy &
data protection laws in India, USA& European Union.

Justice B N Srikrishna committee report on data protection law 2019 - A committee headed by
retired Supreme Court Judge Justice BN Srikrishna has submitted its report on "Data Protection
Framework" to the Government on 28-Jul-2018. The report has emphasized that interests of the
citizens and the responsibilities of the state have to be protected, but not at the cost of trade and
industry. Upon the report of the Committee Central Govt drafted The Personal Data Protection
Bill, 2019 and introduced in Parliament. This draft bill introduced Data Protection Framework for
protection of privacy data.

H.M. Servai, Constitutional law of India fourth Edition 2021 – Volume 3 This book including
very full adenoma contains a critical discussion of several important judgments of the Supreme Court.
These include the Second judges case, S.R. Bommai V.Union of India (The Babari Masjid Case) Art.
Gen for India V. Amitlal prijvandas (The COFEPOSA case) Kartar Sing V. State of Punjab (The
TADA Case) sub committee on judicial accountability V. Union of India. Several recent & important
 20

English Judgments has also been noted & critically analyzed.

B.Shiva Rao, Dr. Subhash Kashyap The framing of India’s Constitution. A study volume (6)
2021 The work of the constituent Assembly & the drawing up of India’s Constitution occupies a pre-
eminent place in the recent history of India. A comprehensive & an objective study have been made of
this subject in all its facets.This volume is a rich store-house of source material for the study of
IndianConstitution. Our Constitution has adopted adult suffrage.
Article 21: The Code of Life, Liberty and Dignity in the Indian Constitution Hardcover – 1 January
2020 by S. Sivakumar and G. Kameswari, Generic Publication (Jan 2020) – Author demands that in
any democracy, it is the duty of the government to adopt appropriate measures to safeguard life by
making laws to protect the lives of the country’s citizens. Article 21 of the Constitution of India thus
embodies a value of supreme importance. Couched in negative language, the article states that no one
shall be deprived of his life or personal libertyexcept according to the procedure established by law.
From static, mechanical and purely literal interpretation of the article in A. K. Gopalan characterized
as a ‘high water mark of legal positivism’ in 1950, there has been a transformation in the attitude
of the apex court towards the protection of life and liberty especially after Maneka Gandhi in 1978.
After many Judicial pronunciations Article 21 is regarded as the core of fundamental rights, has
become a source of many substantive rights for the people. Article 21 is a detailed discussion of the
evolution of various facets of the eponymous article over the last 70 years.

Justice P.S.Narayana – Public Interest Litigation, 4th edition, Asha law house –Hyderabad
volume 6 2021 This book public interest litigation already had undergone three editions within a short
span of time. The subject public interest litigation. Undoubtedly is a subject of utmost public
importance. In the recent times the Apex court expressed displeasure over the nature of public interest
litigations which are being filed before the Constitutional courts.

1.3 RESEARCH QUESTIONS

1) What are the expanding horizon of right to life and personal liberty under the article 21 of
constitution of India?
2) Is the study of right to life and personal liberty are different in world?
3) What are the real concept of right to life and personal liberty in Indian constitution?

1.4 RESEARCH OBJECTIVE

1. Study the Article 21 according to various human Rights.

2. Study the scope of Article 2 with regarding civil laws and criminal laws.
3. To analyses important case laws pronounced by courts.
4. Study the rights comes under Article 21 except Fundamental Right for live better life.
5. Comparative study Article 21, Right to life with other Articles & section in Constitution of India.
 21

1.5 HYPOTHESIS
The study proposes to test the following hypotheses:
1) Concept of Right to Life And Personal Liberty and is there any correlation between them.
2) Article 21 covers the entire fundamental rights of Individuals or not.
3) Socioeconomic status of the Human being and Society is having a significant effect of Article-
21 on them or not?
4) Is there need to re-evaluate the position of right to life and personal liberty if so why?
5) Whether there is Article 21 of Indian Constitution is equally empowered in comparison with
developed Countries Bills of Rights?

1.6 METHODOLOGY

Research methodology is a systematized investigation to gain new knowledge about the phenomena or
problems after finalization of subject matter or study . Methodology to Be Used
There are two types of methodologies,
1) Doctrinal / Non-Empirical Legal Research.
2) Non - Doctrinal / Empirical Legal Research.
Empirical research is research using experiential, experimental and imperative evidence. It is a way of
gaining knowledge by means of direct and indirect observation or experience.
During the research we will take doctrinal research methodology approach.

1.7 SCOPE OF RESEARCH

Scope of fundamental rights is very wide and vast. We will study it in context of Article-21of
constitution .which deals with Right to Life and Personal liberty of an individual. We go through our
research as follows:
1) Understand the meaning of Concept Right to Life and Personal Liberty
2) Look at the trend of cases in Article 21
3) Examine in detail the different facets of Article 21 and related case laws.
4) Examine the views of Supreme Court in detail in respect of the Right to Life and Personal
Liberty in India.

1.8 CHAPTERIZATION

1 CHAPTER 1( CONCEPT OF FUNDAMENTAL RIGHTS): In this chapter first we see the

meaning and concepts The Fundamental Rights, embodied in Part III of the Constitution and
purpose of the Fundamental Rights is to protect individual liberty and democraticprinciples based
 22

on equality of all members of society. We all see the earlier recognition of basic rights,
constitutional recognition of fundamental right, fundamental right in india and impact of united
nation constitution in Indian constitution, difference between fundamental rights and US bills of
rights, need for fundamental right and supreme court observation in India and last is kind of
fundamental rights and remedies in India under article (12 to 35).

2 CHAPTER 2 (RIGHT TO LIFE AND PERSONAL LIBERTY: UNDER ARTICLE- 21 OF

CONSTITUTION OF INDIA): in this chapter we see the real meaning and concept of right to
life with landmark judgment of (Ram saran vs. union of India, keher singh vs. union of India) and
others. Then we see the meaning of personal liberty with judgement of (A.K. gopalan v.s state of
madras, Bachan singh vs state of Punjab) and others with historical background of Indian
constitution. In last we see the thoughts of the pioneers like St. Thomas aquimas and John locke
and etc.

3 CHAPTER 3 (EXPANDING HORIZON OF RIGHT TO LIFE AND PERSONAL

LIBERTY UNDER ARTICLE – 21): in this chapter we see the expanding horizon of life and
personal liberty with judicial interpretation of article 21. We see the brief meaning of right to
protection against torture, livelihood, agriculture, life insurance, healthcare, legal aid, fair trial, life
with human dignity, shelter, education, privacy and etc. in under personal liberty we see the right
to speedy trial and prisoners and accused, use of handcuffs and iron fetters, public hanging,
custodial death and etc.

4 CHAPTER 4 (Comparative Study Of Right to Life and Personal Liberty):

In this chaper we see the comparative study of right to life and personal liberty with Indian
constitution with United States of America and England laws.

5 CHAPTER 5(CONCLUSION AND SUGGESTIONS)

 23

CHAPTER-II
RIGHT TO LIFE AND PERSONAL LIBERTY:
UNDER ARTICLE- 21 OF CONSTITUTION OF INDIA

“Unlike a drop of water which loses its identity when it joins the ocean, man does not lose
his being in the society in which he lives. Man's life is independent. He is born not for the
development of the society alone, but for the development of his self.” – Dr.B. R.
Ambedkar.21

ARTICLE-21
RIGHT TO OF
RIGHT TO LIFE PERSONAL
LIBERTY INDIAN
CONSTITUTION

As well said above by Dr. B.R Ambedkar, Man’s life is not only for development of
society but for himself as well. For the development of human being, life and liberty are
two essential ingredients, which enshrined in constitution of India fundamental right under
Article-21.
Life and Liberty is the utmost civilization in the modern sense of the child. In an
organized and law-abiding society, turbulent wave raised stagnates. In society extend the
right to meaningful life and liberty is a sign of advancement, progress and development. It
inherited from generations.

21
http://www.brainyquote.com/quotes/authors/b/b_r_ambedkar.html#eSYeFVheiQAVrOsz.99
 24

Country’s culture and civilization can be measured by the current state of life and
liberty and all events for preservation and prosperity of individual human freedom, status of
that freedom prevailing in society. It is chained, so cribbed, cabined or assumed in society
independence plant becomes lifeless.
The founding fathers publicized the Indian Right to life and personal liberty clause,
when they draft the anxiety and fears of human being. Article - 21 of the Constitution study
the Magna Charta 'We the people of India. While study of the Constitutions of world we find
that Right to Life and Personal Liberty clause Constituent Assembly include in Indian
constitution found in world constitutions of the world as prime note.
We are like a frog in well and believer of Vasudhaivakutumbakam (world is our
home) so can’t close our eyes what’s going on at international level in particularly related to
the right to life and personal liberty under international law. We come within international
wavelength so that this study can make the section will broaden our vision. A new horizon of
life and personal liberty comes into existence as Supreme Court of India take cognizance of
these developments.
In India, the fundamental right to life and personal liberty that is commendable of a
detailed study of the British rule to Swaraj has a long history. Study of tug war between two
opposite interests: American and British structure motivates Constituent Assembly and give
a clear picture on life and personal liberty. Based on this we inspired to build a successful
model for tomorrow. Historical background pointed out an important aspect on right to life
and personal liberty and help us to understand its facets. It will further help us in giving
broad interpretations where life and personal liberty question arise.
A constitutional provision can work in isolation and is self-contained code. However,
as a part of the basic structure of the constitution contain fundamental rights, directive
principles, rights enforcement, suspension of enforcement of rights, including the right to
amend and other provisions of the Constitution, it is necessary to reveal the interrelation for
the proper functioning, enforceability and protection of one’s life and personal liberty.
Legislatures and Indian courts in relation to Right to Life and Personal Liberty did an
significant contribution to the field, but many times, they have constricted their development.
However, dynamics in judicial approach and activism more on some occasions expanding its
concept were there.
The current study will drop light on the changing state of affairs; Majority and
minority view were in isolated and consensus opinion and judicial test approaches is to
make
 25

these ideas. Aspects have yet their but did not reach the whole community as poor’s are still
struggling for their rights. Big question arises is there need to re-evaluate the position of
fundamental human right to life and liberty in India. Is it equally empowered as in other
constitutions of world.This aspect is examined in this research.
Fundamental Rights is a charter of rights contained in the Constitution of India. It
guarantees civil liberties for all Indians to lead their lives in peace and harmony as citizens of
India. Right to life and personal liberty is the most exquisite and essential fundamental
human rights around which other rights of the individual swivel and, therefore, the study
assume great significance. The study of Right to Life is in fact a study of the Supreme Court
role guardian of fundamental rights. Article 21 is the idol provision of the Indian
Constitution and occupies a distinctive place as a fundamental right. It guarantees right to life
and personal liberty to citizens and as well as aliens and is enforceable against the State.
Fundamental Rights are the pivotal rights guaranteed by constitution of India. There facets
are increasing day by day. When we specifically deals with expanding horizon of Article-21,
which provides the Right to Life and Personal Liberty to citizen as well as non-citizen. We
find that with expanding horizon new interpretations comes in the view. We need to study
and analyze the new interpretations given by Supreme Court of India to see what extent
succeed in protecting the human rights.
The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in
A.K.Gopalanvs State of Madras22 that the contents and subject matter of Article 21 and 19
(1) (d) are not identical and they proceed on total principles. In this case, the word
deprivation was interpreted in a narrow sense and it was held that the deprivation does not
restrict upon the right to move freely which came under Article 19 (1) (d). at that time
Gopalan’s case was the leading case in respect of Article - 21 along with some other Articles
of the Constitution. However, post Gopalan case the scenario in respect of scope of Article
21 has been expanded or modified gradually through different decisions of the Apex Court
and it was held that interference with the freedom of a person at home or restriction imposed
on a person while in jail would require authority of law. Whether the reasonableness of a
penal law can be examined with reference to Article 19, was the point in issue after
Gopalan’s case in the case of Maneka Gandhi v. Union of India23 , the Apex Court opened up

22
1950 AIR 27, 1950 SCR 88
23
1978 AIR 597, 1978 SCR (2) 621
 26

a new dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a
procedure for depriving a person of his life or personal liberty.24
The new interpretation of Article 21 in Maneka Gandhi’s case has leaded a new era
where right to life and personal liberty horizons expand. The broad and liberal facet came
into the view in respect of these rights, now covers various aspects, which the founding
fathers of the Constitution might or might not have foreseen.
The above stated revolution in the basic concept makes it essential that the concept of
right to life and personal liberty should be examined with their expanding horizons along
with judicial interpretation, justification for such liberal Interpretation, and relation of Article
21 with the provisions of Article 32 and Directive Principles of the State Policy and
International Human Rights Instruments. One of the burning topics of today is protection of
personal life and liberty of an individual. Horizon of right to personal liberty and meaningful
life extended in society is a sign of development and progress. The current study, judicial
interpretations, laws and other subject matter, articles and books written by intellectuals
brings out various aspects and opinions.
Studies of these aspects are necessary to see where our society is going. Is everybody
is benefited by right to life and personal liberty. With changing society and changing
concept of Right to life and liberty, we need to analyse through study is there need of more
dimensions came into the picture to serve its purpose to all. Article 21, provides Protection
of Life and Personal Liberty: No person shall be deprived of his life or personal liberty
except according to procedure established by law. Though the phraseology of Article 21
starts with 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. If an act of
private individual amounts to encroachment upon the personal liberty and deprivation of life
of other person. Such violation would not fall under the parameters set for the Article 21. in
such a case the remedy for aggrieved person would be either under Article 226 or 32 of the
constitution or under general law. However, where an act of private individual supported by

24
http://www.legalserviceindia.com/articles/art222.htm
 27

the state infringes the personal liberty or life of another person, the act will certainly come
under the ambit of Article 21. This article deals with encroachment upon personal liberty and
deprivation of life of a person.2526

The state cannot be defined in a restricted sense. It includes Government Departments,

Legislature, Administration, Local Authorities exercising statutory powers and so on so forth,
but it does not include non-statutory or private bodies having no statutory powers. For
example; company, autonomous body and others. Therefore, the fundamental right
guaranteed under Article 21 relates only to the acts of State or acts under the authority of the
State, which is not according to procedure established by law. The main object of Article 21
is that before a person is deprived of his life or personal liberty by the State, the procedure
established by law must be strictly followed.27

1.1 MEANING AND CONCEPT OF “RIGHT TO LIFE”

Right to Life means the right to lead meaningful, complete and dignified life. It does
not have restricted meaning. It is something more than surviving or animal existence. The
meaning of the word life can’t be narrowed down and it will be available not only to every
citizen of the country.28
“Life, liberty and security of each person is.", indisputably the most Fundamental
right of all is the rights in constitution part III. If Article 21 not interpreted in its original
meaning as a other fundamental right lost their worth. Supreme Court of India has
interpreted, applied and examines the right to life. Supreme Court as guardian of
fundamental rights come up with its different facets and expands its horizon and give new
meaning to Right to Life.

25
http://www.legalserviceindia.com/articles/art222.htm
26
http://www.meritnation.com/ask-answer/question/s-article-21-of-the-constitution-say/understanding-our-
criminal-justice-system/8988155
27
ibid
28
http://www.meritnation.com/ supra 23
 28

With constitution comes into the existence, Article 21comes into picture provides
that, "No person except according to procedure established by law shall be deprived of his
life or personal liberty."
Article 21 of the Constitution expanded and now meaning of “life" is not only the
physical act of breathing. Court often quoted the following observation in the Munn v
Illionsby Field, J. ,in an American case, “ by the term ‘life’ as here used something more is
meant than mere animal existence . The inhabitation against its deprivation extents to all
29
those limbs and faculties by which life is enjoyed.”
Supreme Court of India included in ‘Right to life’ so many dimensions. The right to
health, right livelihood, right to live with human dignity, which includes a very broad sense,
free air, and the right to pollution free environment. It has received of is the only article in the
Constitution broad interpretation.
KrishanIyer, J. while giving emphasis on right to life Said , “The plenitude of
possibilities and the fullness of faculties, if life is enriched propitious circumstances,
persuaded our founding fathers and the United Nations to accord the highest priority to the
right to life.”30
SabyasachiMukharjee .J., in Ramsaran v. Union of India said 31, “……Life in its
expanded horizons today includes all that give meaning to a man’s life including his
tradition, culture and heritage and protection of that heritage it in its full measure would
certainly come within the encompass of an expanded concept of Article 21 of the
Constitution.”
Pathak .J., in Keher Singh v. Union of India 32emphasised on right to life and
personal liberty in this case mentioned , “To any civilized society, there can be no attributes
more important than the life and personal liberty of its members. That is evident from the
paramount position given by the courts to Article 21 of the Constitution. These twin
attributes enjoy a fundamental ascendancy over all other attributes of the political and social
order and consequently the legislative, the executive and the judiciary are more sensitive to
these than to any other attributes of daily existence.”

29
M,P Jain , Indian constitutional law, page no. 1189
30
Krishna Iyer, J., The Dialectics and Dynamics of Human Rights in India, (Calcutta: Eastern Law
31
AIR 1989 SC 549 para 13.
32
AIR 1989 SC 653 para 7.
 29

InUnniKrishnanscase33 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.34
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
cuffing ght against custodial
35
death
Article 21 of the cover under the canopy so many rights, development and found
nourishment. In Maneka Gandhi case ‘individual freedom' means to expand the right to life.
In Francis Coralie Mullin v The Administrator, Union 36 , JusticeBhagwati
increase in the dimensions of Maneka Gandhi case. He said in relation to Article – 21, ‘the
right to life includes the right to live with human dignity and all that goes along with it.
Namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing one-self in diverse forms, freely moving about
and mixing and commingling with fellow human beings. Of course, the magnitude and
content of the components of this right would depend upon the extent of the economic
development of the country. But it must in any view of the matter, include the right to the
basic necessities of life and also the right to carry on such functions and activities as
constitute the bare minimum expression of the human-self.”37He also emphasised in this case
that the fundamental right to life is the most precious human right and forms the arc of all
other rights.
Francis ratio implemented in Asiad workers, concept of ' basic human dignity
developed. Supreme Court while consider about contract workers expand Right to Life

33
1993 AIR SC 217
34
http://www.lawctopus.com/academike/judicial-activism-article-21/
35
ibid
36
AIR 1981 SC 746.
37
http://indiankanoon.org/docfragment/78536/?formInput=%20right%20to%20life
 30

necessities compliance with the provisions of 'individual freedom' in the interpretation of

basic human dignity. Individual freedom and social welfare protection provided to workers
are provided under the different laws.
Livelihood under Article 21 included the word "life" as the question was for the first
time before the Supreme Court in Re Sant Ram's case38. Supreme court’s, Chief Justice
Sinha, the held, “Individual freedom cannot be suppressed, and this life into the concept of
“right livelihood” court did not rule out entirely the right was rejected.” The Chief Justice
Sinha was of the opinion that as "right livelihood" mentioned in Article 19, freedom or
Article 16 in the limited sense”
Right to life and personal liberty 'livelihood' is involved in? The question then fixing
the ceiling on agricultural holdings, land reform challenge was against the law where
BegullaBapiRaju V. Andhra Pradesh, was raised in. Sant Ram following the court again,
"life and personal liberty" in the "liveliness" of Maneka and Francis Coralie rejected and the
decision was not examined in the light of the above claims.39
However, in the case of street dweller Chandarchud, chief justice, the right to life
includes the right to livelihood.He will deny, cancel observed. As an aspect of life
underArticle 21 developed by the court's right to livelihood, so far "personal freedom" means
to extend the reach would result in40
Only one person has the right to protect the livelihood of the standard. The court in
Durgapur Projects Ltd. V. Shankar "decent housing" extended to include the right to live.
The standard of living of the petitioner was entitled. To ensure minimum standards of human
dignity for women and children in care homes "quality of life" was included in the.41
So many new meaning and interpretation of right to life comes in existence we will
discuss later in further chapter.

38
AIR 1960 SC 932
39
shodhganga.inflibnet.ac.in/handle/10603/13812
40
ibid
41
ibid
 31

1.2 MEANING OF PERSONAL LIBERTY

Personal liberty scope widened with time and era. General meaning of ‘personal liberty’ is
according to law dictionary, ‘The right of freedom of a person to behave as they would like.
Though following the conduct code of the society in which a person resides is important’.
However, in Indian constitution this liberty is not absolute but with reasonable restrictions.
The expression ‘personal liberty’ got its full meaning in Maneka Gandhi v.Union of
India.42 In this case the court has given the widest possible interpretation to personal Liberty.
It is only with the decision in Maneka’s case that a new phase of development has been
comes into picture. The decision stands as a beacon- lamp adding new horizon to the
interpretation of the fundamental rights. If Article 21 horizon expanded in accord with
interpretative principle pointed out in Maneka Gandhi as follows:, “No person shall be
deprived of his life and personal liberty except according to fair, just and reasonable
procedure established by valid law”.
Maneka Gandhi has overlaid the approach for realising new outlook of personal
freedoms like right to speedy trial, right to bail, right to appeal, right to humane treatment
inside prison, right against torture, right to live with basic human dignity and right to
compensation to the victims etc.These new dimensions came in as judiciary did the inclusion
of directive principles under Artticle-21. The impact of the decision in Maneka’s Case is
very important for introducing the concept of ‘reasonableness’ into ‘procedure established by
law’ in Article 21. It conveyed “due process” into the Article 21 by extends the application
of natural law in right to life and personal liberty.

Procedure Established by Law

Article 21 clearly stands that a person can be deprived of his life and personal liberty
‘procedure established by law’. This expression in Article 21 is the result of deliberate
choice by the Constituent Assembly in place of the phrase ‘due process of law’. Initial set
back to the judicial protection of right to life and personal liberty as a human right was
suffered by

42
Maneka Gandhi v. Union of India ,AIR 1978 SC 597
 32

the interpretation of Article 21 by the Supreme Court in A. K. Gopalan v. State of

Madras.43
In Gopalan the Supreme Court was divided on the meaning of the phrase “procedure
established bylaw”. In that, case the Attorney General had reminded the Judges that the
Constituent Assembly had consciously rejected ‘due process’ in Article 21 and therefore the
unreasonableness of law (of Preventive Detention) could not be examined by the court,
whatever the procedure prescribed by enacted law (even if unfair or unreasonable), that itself
was sufficient justification for deprivation of life or liberty. 44The majority held that it must
mean that the procedure prescribed or enacted by the state-either Parliament or state
legislations. That means any procedure that has legislative sanction. Thus, Article 21was to
guarantee protection against executive action and possibly against judicial action and not
against the legislative action, unless legislature transgressed any other provisions of the
Constitution. Minority opinion was in favour of making principles of natural justice
applicable as under American Constitutional provisions of due process.
The decision of Gopalans case considerably inhibited judicial protection of human
rights in its first two decades of the working of the Constitution of India. It took the Supreme
Court more than twenty-five years to free itself from the shackles of Gopalan, which it
ultimately did in Maneka Gandhi’s case in 1978.45Till then Supreme Court did not include
principles of natural justice or implications of due process clause in Article 21 of the
Constitution. In Maneka the majority held that the mere prescribing of some procedure
cannot even meet the mandate of Article 21. The procedure prescribed by law has to be fair,
just and reasonable and not fanciful, oppressive or arbitrary, 46 thus substantially introducing
the principles of natural justice in procedural protection of right to life (and personal liberty).
Now procedure under Article 21 is fair procedure and reasonable law, not any procedure
under any enacted piece.47

43
AIR 1950 SC 27; 1950 SCR 88.138
44
FaliS.Nariman, “Protection of Personal Liberty in India”, in Reflections on Emerging
International Law - Essays in Memory of Late Subrata Roy Chowdhury, (Bangalore: National Law
School of India University), p.5.
45
Ibid., p.6.
46
Maneka Gandhi v. Union of India, supra no 23 , at.613
47
Ibid, per Krishna Iyer J., at p.659
 33

The decision in Maneka became the starting point, the springboard for a spectacular
evolution of law relating to judicial intervention of individuals human rights cases. This fresh
look at Article 21 has helped the Apex Court in its new role as the institutional ombudsman
of Human Rights in India.48The trend began with Manekagandhi case regarding “due
process” in context of right to life and personal liberty is further continued in Sunil Batra v.
Delhi Administration. Wherein it was observed that the expression the word ‘law’ in
‘procedure established by law’ under Article 21 has been interpreted in Maneka Gandhi’s
case that the ‘law’ must be right just and fair and not arbitrary, fanciful or oppressive but it
would be no procedure at all if the requirement of Article 21 would not be satisfied. If it is
arbitrary , it will be consider as violation of Article 14. It was again reiterated in Bachan
Singh v. State of Punjab , where the court by majority took the view that Article 21 after
Maneka would read to say that: “No person shall be deprived of his life of personal liberty
except according to fair, just and reasonable procedure established by valid law”.49 This view
makes it clear that reasonableness under Article 21 is of procedure as well as of law. Now
Article 21 not confined to procedure establish by law only but also covers substantive laws.

1.3THOUGHTS OF THE PIONEERS: 50

There were many important people throughout history that contributed to the notion and
understanding of human rights. These are some of the pioneers of the concepts.
Plato
Plato believed in universal truth and virtue. This idea has continued on to become
universalism that human rights are universal, and as such are above the laws of individual
states.

Aristotle

48
M.C. Mehta v. Union of India (1987) ISCC 395 at 406
49
A. N. Sen. J., endorses the view of Pathak J., but is less specific than Pathak J., in identifying the
special circumstances or exceptional cases. He takes it to be a matter of discretion of the Court
depending upon facts and circumstances of each case.
50
shodhganga.inflibnet.ac.in/handle/10603/13812
 34

Aristotle’s view of the world included the existence of different social classes, accepting that
there will always be an underclass and even a slave class and that this is perfectly normal.
St. Thomas Aquinas
He saw that basic human needs such as self-preservation require fundamental human rights.
Thomas Hobbes and Jeremy Bentham
Positive law is the idea that law and human rights come from the state. Hobbes and
Bentham were positive law theorists who believed that human rights needed strong laws to
protect them. One difference from previous viewpoints is that these rights can be given and
taken away by the state, they are not universal. Bentham believed in utilitarianism, that there
should always be the greatest amount of good for the greatest number of people.
John Locke
The positive law view was changed to include the idea that the state’s law stemmed from a
constitution, the legal framework of the society. The constitution however, was itself
basedon natural law, which includes a natural right to self-preservation. Therefore, the power
of the state was still subject to inalienable human rights. The state should protect individuals
from the actions of other that would impinge on their freedoms. Citizens should be
empowered to revolt if they felt that the state was abusing its power. This became the
underlying idea behind the French and American revolutions and their subsequent
development of new nations.
Jean-Jacques Rousseau
Rousseau came up with the social contract theory, that stated that all individuals in a society
had entered into a contract to form a civilized society in exchange for the government giving
them equality.
Immanuel Kant
In his book On Liberty, Mill strongly disagrees with utilitarianism, and sees it as a type of
tyranny by the majority. Liberties such as freedom of expression and association should not
be absolute, but that they should exist in such a way as not to deprive others of their ability to
achieve their own liberties.
 35

Karl Marx and Friedrich Engels

Marx and Engels, the fathers of communism, saw rights in an entirely different view, namely
that they were unconnected to the reality of the exploitation of the working class. Unlike
Mills, Marx had another definition for liberalism as something to be gained through
government, rather than as a freedom from interference. Equality was more important that
liberty, especially in the ownership of private property (fundamental tenet of communism).
Only one fundamental right existed under their system, that of revolution.

Ronald Dworkin

Dworkin’s philosophy disagrees with Bentham’s rejection of natural rights. He sees human
rights not as being absolute and universal, but as being a creation of politics that try to treat
all people equally. Therefore, all members of society have the same voice, which is not
dependent on their social status. Utilitarianism, with its idea of ignoring the rights of
minorities in the name of the greatest good for the majority threatens to destroy the entire
concept of individual human rights.

1.4 HISTORICAL BACKGROUND OF ARTICLE-21 OF

INDIANCONSTITUTION : 51

Article-21 provides protection of life and personal liberty.—No person shall be deprived of
his life or personal liberty except according to procedure established by law.
Genesis and Growth
Drafts on fundamental rights prepared by Dr.Ambedkar and KM. Munshi in March 1947,
both contained a provision to the effect that no person shall be deprived of life, liberty or
property without due process of law. The Sub-committee on fundamental rights, in its report
of 16 April 1947 contained the following clause:

51
Dr. SubashKashyap, constitutional law in india,vol I, page 669-71
 36

‘No person shall be deprived of his life, liberty or property without due process of
law nor shall any person be denied the equal treatment of the laws within the territories of
the Union:
Provided that nothing herein contained shall prevent the Union Legislature from legislating
in respect of foreigners.’
The clause was very largely adopted from the Fifth and the Fourteenth Amendments
of the U.S. Constitution. The Constitutional Adviser, B.N. Rau drew attention to the plethora
of litigation in the United States generated only by the “due process of law” provision
because “due process” could hardly he defined and ultimately meant what the U.S. Supreme
Court said it meant in a particular case.
In the Advisory Committee, AlladiKrishnaswamiAyyar pointed out the serious difficulties
that the “due process” clause had caused in the United States. Judges gave different
interpretations from time to time. From confining it to procedure, they had come to extend it
to substantive rights. G.B. Pant expressed his opposition to the use of the phrase “due process
of law” as he thought; it was ambiguous and amenable to different interpretations. Also, it
would mean that the future of the country was to be determined not by the representatives of
the people in the legislatures but by “the whims and vagaries of lawyers elevated tothe
judiciary”. He was particularly concerned about the adverse effect of the clause on social
legislation and land reforms, zamindari abolition, acquisition of property etc. As a way out,
K.M. Panikkar suggested the Omission of ‘right to property’ from the clause.
Panikkar’s suggestion was finally accepted and the Report of the Advisory
Committee reproduced the amended clause as its clause 9, which read as foIIows:
No person shall be deprived of his life, or liberty, without due process of law nor shall any
person be denied the equal treatment of the laws within the territories of the Union.
Provided that nothing herein contained shall detract from the power of the Union
Legislature in respect of foreigners.
The provision was adopted by the Constituent Assembly on 30 April 1947 after some
debate but without any amendment being moved. The Constitutional Adviser’s October 1947
Draft Constitution reproduced it as its clause 16 with the addition of the word ‘personal’
before ‘liberty’. Unless so qualified, he thought, liberty might he construed too widely to
include even matters like price control, contracts etc.
The Drafting Committee had accepted the Amendment. Meanwhile, the
Constitutional Adviser had met Justice Frankfurter of the U.S. Supreme Court who advised
 37

him not to adopt the “due process” clause. It gave a few judges the power to veto laws passed
by the representatives of the people, which was undemocratic. In addition, it put an unfair
burden on the judiciary.
In the February 1948 Draft Constitution prepared by the Drafting Committee, the
words “without due process of law” were substituted by the words “except according to
procedure established by law”. The latter phrase was borrowed from the Constitution of
Japan. Draft article 15 read as follows:
No person shall be deprived of his life or personal liberty except according to procedure
established by law nor shall any person bedenied equality before the law or the equal
protection of the law within the territory of India.
The draft article came for consideration of the Constituent Assembly on 6 December, 1948.
There were powerful protagonists of both the competing expressions. Their respective merits
and demerits came to be discussed in depth. K.M. Munshi, supported by Syed Karimuddjn,
Mehboob Ali Baig and Z.H. Lari, defended the “due process of law” provision.
Munshithought that with the omission of ‘property’ and adding of ‘personal’ before ‘liberty’,
the clause had become unexceptionable and no more prone to creating the difficulties it had
done in the United States. Munshi was afraid of the legislative majorities passing legislation
in haste to establish social control over individual liberty by giving sweeping powers to the
executive and the police. He wanted the courts to have the power to determine whether a law
infringed personal liberty of the individual and this, he said, could happen only if “due
process of law” was adopted.
On the other hand, Alladi KrishnaswamjAyyar said that three or five gentlemen sitting as a
court of law and deciding what was the due process of law in each case could not be
regarded a more democratic than the expressed wishes of the representatives of the people in
their Legislature. Alladi appealed to the House in the name of “the future progress of India,
the well-being and security of the State, the necessity of maintaining a minimum of liberty,
the need for coordinating social control and personal liberty”.’
In view of the strong disagreement on the floor of the Constituent assembly, consideration of
the draft article was deferred. When it was taken up, again on 13 December 1948,
Dr.Ambedkar referred to the sharply divergent views and said that the controversy largely
centered round the question whether the legislatures could be trusted not to make laws
trampling the personal liberties of the individual. He added:
For myself I cannot altogether omit the possibility of a Legislature packed by party men
 38

making laws which may abrogate or violate what we regard as certain fundamental principles
affecting the life and liberty of an individual. At the same time, I do not see how five or six
gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature
and by dint of their own individual conscience or their bias or their prejudices be trusted to
determine which law is good and which law is bad. It is rather a case where a man has to sail
between Charybdis and Scylla and I therefore would not say anything.
When the amendments — about 20 of them — seeking substitution of the words “except in
accordance with law” by “without due process of law” or some such expression were put to
vote, they were all negative by the Assembly and draft article 15 as proposed on behalf of the
Drafting Committee was adopted to stand part of the Constitution. Although, even thereafter,
the debate and the controversy continued, the basic text of draft article 15 with the “in
accordance with law” expression survived. As a corrective or compromise another provision
providing protection to personal liberty against arbitrary arrest and detention was later added.
 39

CHAPTER-III
EXPANDING HORIZON OF RIGHT TO LIFE AND
PERSONAL LIBERTY UNDER ARTICLE - 21

1.1 EXPANDING HORIZON OF LIFE AND PERSONAL LIBERTY

WITH JUDICIAL INTERPRETATION OF ARTICLE - 21.: 52

Article -21 provides Protection of life and personal liberty.—No person shall be deprived of
his life or personal liberty except according to procedure established by law.

No person: Rights guaranteed by article 21 are for all persons, citizens and aliens. This is the
import of article 21 saying ‘no person shall be deprived’ etc. It seems improper to read article
19 as dealing with the same subject as article 21. Article 19 gives the rights specified therein
only to the citizens of India while article 21 is applicable to all persons. The word citizen is
expressly defined in the Constitution to indicate only a certain section of the inhabitants of
India. The protection given by article 21 is very general. It is of “law” –whatever that
expression is interpreted to mean. The legislative restrictions on the law-marking powers of
the legislature are not here prescribed in detail as in the case of the rights specified in article
19. Therefore, article 19 should be read as a separate complete article. Article 21 extends the
53
protection of life and personal liberty to ‘all persons’ — citizens and non-citizens alike.’
Where deportation proceedings are started against a foreigner under the Citizenship Act, it is
not a case of depriving any person of his life or liberty. It is, therefore, not open to the Union
of India or the State of Assam or for that matter any one to contend that the procedure
prescribed in the aforesaid enactment is not just, fair and reasonable and thus violative of
article 21 of the Constitution. 54

52
Dr. SubashKashyap, constitutional law in india,volI,page no 671-78
53
AK. Gopalanv. State of Madras, AIR 1950 SC 27: (1950) SCR 88.; Chairman Railway Boarilv. Chandrima
Das, AIR 2000 SC 988: (2000) 2 SCC 465: 2000 (1) SCALE 279; N.H.R.C. v, Stat,’ of Arunachal Pradesh,
AIR 1996 SC 1234: (1966) 1 SCC 742: (1996) 1 SCR 278; V.D. Roy v. Stat,’ of Kerala, AIR 2001 SC 137.
54
SarbanandaSonowalv. Union of India, AIR 2005 SC 2920: JT 2005 (6) SC 9: (2005) 5 SCC 665.
 40

Shall be deprived of, Deprivation (total loss) of personal liberty, which inter alia includes
the right to eat or sleep when one likes or to work or not to work as and when one pleases
and several such rights sought to he protected by the expression “personal liberty” in article
21, is quite different from restriction (which is only a partial control) of the right to move
freely (which is relatively a minor right of a citizen) as safeguarded by article 19(1)(d).
Deprivation (it personal liberty has not the same meaning as restriction of free movement in
the territory of India. This is made clear when the provisions of the Criminal Procedure Code
in Chapter VIII relating to security of peace or maintenance of public order are read.
Therefore, article 19(5) cannot apply to a substantive law depriving a citizen of personal
liberty. The word “deprivation” would not include within its scope “restriction” when
interpreting article 21.55
Right to life: ‘Life’ in article 21 is not merely the physical act of breathing. Article
21 has given protection to life as a substantive right and the article properly understood does
not prescribe any particular procedure.56
While arriving at the proper meaning and content of the right to life, it has to be remembered
that it is a constitutional provision and moreover it is a provision enacting a fundamental
right and the attempt of the court should always be to expand the reach and ambit of the
fundamental right rather than to attenuate its meaning and content.This principle of
interpretation which requires that a constitutional provision must be construed, not in a
narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take
account of changing conditions and purposes so that the constitutional provision does not get
atrophied or fossilized but remains flexible enough to meet the newly emerging problems
and challenges, applies with, greater force in relation to a fundamental right enacted by the
Constitution.The fundamental right to life which is the most precious human right and which
forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come and
enhance the dignity of the individual and the worth of the human person.57

55
A.K. GopatanV. State of Madras, AIR 1950 SC 27: (1950) 5CR 88, Kania, J.
56
A.K. Gopalanv. State of Madras, AIR 1950 SC 27: (1950) SCR 88; Sarnathav. State of A.P., AIR
1997 SC 3297: 1997 (4) SCALE 746: (1997) 8 5CC 191: (1997) Supp 2 SCR 305.
57
Francis Coralie Mullin v. Administrato,. Union Territory of Delhi, AIR 1981 SC 746 (1981) 1 SSC 608.
 41

Personal liberty: “Personal liberty” is used in article 21 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 freedom, personal liberty in article
21 takes in and comprises the residue. ‘Life’ in article 21 means not merely the right to the
continuance of a person’s animal existence, but a right to the possession of each of his
organs—his arms and legs etc. Is then the word ‘personal liberty’ to be construed as
excluding from its purview an invasion on the part of the police of the sanctity of a man’s
home and an intrusion into his personal security and his right to sleep which is the normal
comfort and a dire necessity for human existence even as an animal? ((In the words of the
preamble, the Constitution is designed to “assure the dignity of the individual” and cherished
human values as the means of ensuring his full development and evolution.,)The concepts
underlying the Constitution would point to such vital words as ‘personal liberty’ having to be
construed in a reasonable manner and to be attributed that sense which would promote and
achieve those objectives and by no means to stretch the meaning of the phrase to square with
any preconceived notions or doctrinaire constitutional theories.”
Procedure established by law:The word “law” in article 21, referred to State made law and
‘procedure established by law’ means procedure established by law made by the State, that is
to say, by the Union Parliament or legislations of the States. It did not mean law in the
abstract or general sense embodying the principles of natural justice. It was not the same as
the due process clause in the American Constitution.58
Natural justice is implicit in article 21. Article 14 like a brooding omnipresence and the
procedure contemplated by article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be “right 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.

58
. Vidyaverma v. Shiv NarainVerma, AIR 1956 Cr LJ , 283: (1955) 2 SCR 983.
 42

1.2 EXPANDING HORIZON OF LIFE

RIGHT TO
HEALTH ,
SHELTER ETC.

RIGHT TO
LIVLIHOOD

LIFE WITH
DIGNITY

RIGHT TO LIFE

The onset of the democratic movements all over the world and emergence of the idea of
Human Rights led to the trend of guaranteeing basic human rights in the basic laws 59 namely
the Constitutions. Soon it was witnessed that mere incorporation of these rights would not
suffice, as, every country in the world faces the problem of human rights violation in some
form or the other. Most of the world’s population has been suffering from violation of human
rights.60

59
A.P.Singh, “Human Rights: The Indian Context” AIR 2000 Jour, p.8
60
N.V.Anandram, “Situating Human Rights in the Media”, in Human Rights in India Historical Social
and Political Perspectives. Chiranjivi J. Nirmal (Ed.), (New Delhi: Oxford University Press, 2000),
p.123.
 43

India is no exception. Statistically speaking, the Supreme Court or a High Court in the
country delivers at least one judgement everyday touching upon the human rights of the
people. The performance of the courts matches the rise in the violations of human rights. 61
When there is any discussion on human rights in the country, the role of judiciary in giving a
new dimension to these rights through its activism cannot be ignored.
Fundamental right under Article 21 of the object personal liberty except according to
procedure established by law is to prevent encroachment on and loss of life. Deprivation of
Personal liberty or to intrude on another person's life is an act of private individual amounts.
Such violations would not fall under Article 21 for the set parameters. Measures for victim
in such a case under article 226 of the Constitution or the common law will either. Article 21
of the Constitution, individual liberty or deprivation of a person's life is on the prevention of
encroachment.
The state cannot be defined in a restricted sense. Government departments,
legislature, administration, and therefore the exercise of jurisdiction over the local
authorities, but it is not statutory authority does not include non-statutory or private bodies,
including. For example: Company, autonomous bodies and others.
‘Life’ in article 21 is not merely the physical act of breathing. Article 21 has given
protection to life as a substantive right and the article properly understood does not prescribe
any particular procedure.62
While arriving at the proper meaning and content of the right to life, it has to be remembered
that it is a constitutional provision. Moreover, it is a provision enacting a fundamental right
and the attempt of the court should always be to expand the reach and ambit of the
fundamental right rather than to attenuate its meaning and content. This principle of
interpretation which requires that a constitutional provision must be construed, not in a
narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take
account of changing conditions and purposes so that the constitutional provision does not get
atrophied or fossilized but remains flexible enough to meet the newly emerging problems
and

61
M.J. Antony, “Annual Digest of Human Rights Judgments” (2002) p. (iii), cited in Furquan Ahmad.
“Compensation for Arbitrary Arrest and Custodial Death; A Basic Human Right” (2000) C.U.L.R.
Vol.XXIII.
62
A.K. Gopalanv. State of Madras, AIR 1950 SC 27: (1950) SCR 88; Sarnathav. State of A.P., AIR
1997 SC 3297: 1997 (4) SCALE 746: (1997) 8 5CC 191: (1997) Supp 2 SCR 305.
 44

challenges, applies with, greater force in relation to a fundamental right enacted by the
Constitution. The fundamental right to life which is the most precious human right and which
forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come and
enhance the dignity of the individual and the worth of the human person.63
Kidnapping is an offence against right to life under article 21 and against human
rights. It deserves deterrent punishment. 64 In Olga Tellis V. Bombay Municipal
corporation65and Maneka Gandhi v. Union of India66, Superme court conferred in relation
to right to lifethat 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 of life.
“By the term ‘life’ as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all these limits and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm
or leg or the putting out of an eye or the destruction of any other organ of the body through
which the soul communicates with the outer world.”67
Every limb or faculty through which life is enjoyed is protected by article 21 and a fortiorari,
this would include the faculties of thinking and feeling. The expression ‘life’ in this article on
does not connote mere animal existence or continued drudgery through life; it means
something much more than just physical survival. It has a much wider meaning, which
includes right to livelihood, better standard of living, hygienic conditions in the workplace

63
Francis Coralie Mullin v. Administrato,. Union Territory of Delhi, AIR 1981 SC 746 (1981) 1 SSC 608.
64
Tarun Bora v State of Assam, AIR 2002 SC 2926: (2002) 7 SCC 39: (2002) Supp I SCR 458
65
AIR 1986 SC 180: 1985 (2) SCALE 5: (1985) 3 SC
66
AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621.
67
Munn v Illinois, Field J., quoted with approval in Kharak Singh’s case, AIR 1963 SC 1295: 1963 Cri LJ 329:
(1964) I SCR 332; D.Bhuvan Mohan Patnaikv. State of Andhra Pradesh, AIR 1974 SC 2092: (1975) 3 SCC
185: (1975) 2 SCR 24; Govindv. State of Madhya Pradesh, AIR 1975 SC 1378: (1975) 2 5CC 148: (1975) 3
SCR 946; SunliBatrav. Delhi Administration AIR 1978 SC 1675’ (1978) 4 SCC 494: (1979) 1 SCR 392; Delhi
Transport Corporation v. D.T.C. MazdoorCongress.AIR 1991 SC 101: 1991 Supp (I) SCC 600: (1990) Supp I
SCR 142; Consumer Education &Research Centre v. Union of India, AIR 1995 SC 922: (1995) 3 SCC 42:
(1995) 1 SCR 626.
 45

and leisure68
A dynamic meaning must attach to life and liberty. Article 21 of the Constitution of India has
been interpreted to include the right to live with human dignity and all that goes along with it,
namely the bare necessaries of life such as adequate nutrition, clothing and shelter and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about
and mixing and commingling with fellow human beings.Of course, the magnitude and
content of the components of this right would depend upon the extent of the economic
development of the country, but it must, in any view of the matter, include the, right to the
basic necessities of life and also the right to carry on such functions and activities as
constitute the bare minimum expression of the human self,? very act which offends against or
impairs human dignity would constitute deprivation pro (onto of this right to live and it
would have to be in accordance with reasonable, fair and just Procedure established by law
which stands the test of other fundamental rights.69
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 last, 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. “Right to life” is the compendious expression for all

68
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981)1 SCC 608; Con
sumer Education &Research Centre v. Union of India, AIR 1995 SC 922: (1995) 3 SCC 42: (1995) 1 SCR
626.
69
Sunil Batrav. Delhi Administration,, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392; Mohnijain,
v. State of Karnataka, AIR 1992 SC 1858: (1992) 3 SCC 666: (1992) 3 SCR 658; Consumer Education
&Research, Centre v. Union of India, AIR 1995 SC 922: (1995) 3 SCC 42: (1995)1 SCR 626; Francis coralie
Mullin,, v. Administrator, union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC (08.
 46

those rights, which the courts must enforce because they are basic to the dignified enjoyment
of life. It extends to the full range of conduct, which the individual is free to pursue.70
- Just because courts have relied upon some of the directive principles to locate
parameters of some of the rights implicit in article 21, it does not follow automatically that
each and every obligation referred to in Part IV get’s automatically included within the
purview of article 21. Some rights have been, held to be implicit in the right to life because
of its inherent fundamental importance, for example right to education by referring to articles
41, 45 and 41 The mere fact that the State as at present is not taking away a right implicit iii
right to life would not mean that right would not be read into article 21. The content of right
to life is not to be determined on the basis of existence or absence of threat of deprivation.
Hence the argument that article 21 is negative in character and is attracted only if and when
the State makes a law taking away the rights implicit in it is rejected. 71

A. Right to protection against torture:

Any punishment, which is too cruel, or torture some is unconstitutional. 72 Any form
of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and
constitute an inroad into this right to live and Article 21 would on this view, prohibit it.
unless it is in accordance with procedure prescribed by law, but no law which authorises and
no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever
stand the test of reasonableness and nun arbitrariness: it would plainly be unconstitutional
and void as being violative of articles 14 and 21. It would thus be seen that there is implicit
in article 21 the right to protection against torture or cruel, inhuman or degrading treatment
which is enunciated in article 5 of the Universal Declaration of Human Right and guaranteed

70
BandhuaMuktiMorcha v Union of India, AIR 1984 SC 802: (1984) 3 5CC 161: (1984) 2 SCR 67, Francis
Coralie Mullin v. Administrator. Union Territory of Delhi. AIR 1981 SC 746: (1981) 1 SCC 608; consumer
Education & Research Centre v. Union of India, AIR 1995 SC 922: (1995) 3 SCC 42: (1995) 1 SCR 626;
Samathav. State of AP., AIR 1997 SC 3297: 1997 (4) SCALE 746: (1997) 8 SCC 191: (1997) Supp 2 SCR 305;
Mohini Jain v. State’ of Karnataka, AIR 1992 SC 1858: (1992) 3 SCC 666: (1992) 3 SCR 658.
71
InderjeetV. State Of Uttar Pradesh, AIR 1979 SC 1867: (1979) 4 SCC 246: (1980) 1 SCR 255: (1979) 4 5CC
246: (1980) 3 SCR 255.
72
InderjeetV. State Of Uttar Pradesh, AIR 1979 SC 1867: (1979) 4 SCC 246: (1980) 1 SCR 255: (1979) 4 5CC
246: (1980) 3 SCR 255.
 47

by article 7 of the International Covenant on Civil and Political Rights. This right to live,
which is comprehended within the broad connotation of the right to life can concededly be
abridged according to procedure established by law and therefore when a person is lawfully
imprisoned, this right to live 19 bound to suffer attenuation to the extent to which it is
incapable of enjoyment by reason of incarceration.73
Article 7 of the ICCPR is reflected in Article 21 of the Indian Constitution, which is
a non- derogable right. Article 21 was a derogable right until the 44 th Amendment to the
Constitution, 1978. It includes right against torture and assault by State or other
functionaries. This right is even available to foreign citizens, under-trials, prisoners and
detenues in custody. In recent times there is an increasing concern of the international
community about the practice of torture of prisoners and detenues. Torture is a well
established tool used by the Indian Police for investigation.74
In tune with international human rights instruments against torture, the Constitution
also emphasizes respect and honour of human dignity and fundamental rights. Torture has
not been defined in the Constitution or in other penal laws. Article 21 of Constitutional only
provides “no person shall be deprived of his life or personal liberty except according to
procedure established by law”. Life or personal liberty has been held to include the right to
live with human dignity and includes within its ambit a personal guarantee against torture or
to cruel, inhuman or degrading treatment or punishment can move to the higher courts for
judicial remedies under Article 32 & 226 for deprivation of Fundamental Rights. Article
22 guarantees protection against arrest and detention in certain cases and declares that no
person who is arrested shall be detained in custody without being informed about the grounds
of such arrest and cannot be denied to consult and defend himself by legal practitioner of his
choice. A22 directs that person arrested and detained in custody shall be produced before
nearest Magistrate within 24 hrs of such arrest. Article 20(3) provides that accused shall not
be compelled to witness against himself as this would amount to self-incrimination.
In early eighties were investigative journalism which exposed the practice of torture.
The other was public interest litigation, based on press reports. The process of accountability

73
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 SCC 608;
Munsi Singh Gautam v. State of Madhya Pradesh, AIR 2005 SC 402: (2005) 9 SCC 631: 2004 (9) SCALE 390.
74
https://indialawyers.wordpress.com/2010/07/22/india%E2%80%99s-response-against-the-act-of-torture/
 48

was strengthened with the enactment of Protection of Human Rights Act, 1993. Sec 3 of
the Act set up National Human Rights Commission.75
The problem of police torture and violence is of universal nature. The concern
regarding the problem was one of the reasons leading to provisions against torture and
inhuman and degrading treatment and punishments in the Magna Carta and Constitutions of
U.S.A and other countries of the world. Though there is no separate and specific protection in
the Indian Constitution against torture, the combined effect of rights against self
incrimination and of life and liberty is too evident.76
In NandiniSatpati v. P.L Dani (AIR 1978 SC 1025), the Court held that not only
physical threats or violence but psychological torture, atmospheric pressure, environmental
coercion, tiring interrogation by police are violation of law.
The clear case of prohibition against torture was delivered by the Court in Sunil
Batra v. Delhi Administration(1978 (4) SCC 494). The Supreme Court did not find itself
handicapped by absence of specific provisions against torture in the Constitution and
gathered support from Article 14 & 19 in holding against the permissibility of torture vis-à-
vis persons suspected and accused of crime.77
In Raghbir Singh v. State of Haryana (1980 ( 3) SCC 70), where the violence
employed by the police to extract a confession resulted in death of a person suspected of
theft, the court observed that the lives and liberty of citizens are at peril when the guardians
of law stab human rights to death. Vulnerability of human rights assumes a traumatic,
torturesomepoignancy, the violent violence is perpetrated by the police arm of the State
whose function is to protect the citizen and not to commit gruesome offences against them.
The court awarded life sentence to the police officer responsible for the death of the suspect
in police lock up.
Khatri v. State of Bihar (AIR 1981 SC 928)/ Bhagalpur Blinding case, was an
example of cruel and inhuman treatment to the prisoners which are insolating the spirit of
Constitution and human value as well as Article 21. Supreme Court in this case tackled the
blinding of under-trial prisoners by the police by piercing their eyeballs with needle and

75
ibid
76
ibid
77
ibid
 49

pouring acid in them. This case shows the pattern of torture, the sanction of torture by state
and local judicial authorities, the routine concealment of torture.
Formidable problem in an alleged case of police torture is to establish the guilt of the
perpetrators of violence. The wrongdoers may either be able to escape conviction due to lack
of required degree of proof or maybe found guilty of lesser offence than the one warranted by
the actual facts. This is primarily due to the situation that the warranted by the actual facts.
This is primarily due to the situation that the offenders are the comrades and colleagues of
the prosecutors and the complete lack of neutral witness.
State of U.P v. Ram SagarYadav(1985 (1) SCC 552 ), is a case indicative of extreme
limits to which police violence and highhandedness may extend. The victim made a
complaint against a policeman who demanded bribe from him. He was arrested for his
‘audacity’ and shortly afterwards while in custody was found in a serious condition with 19
injuries on his body eventually causing his death. The Supreme Court while affirming the
punishment of 7years rigorous punishment for culpable homicide not amounting to murder
under Sec 304, expressed his regret that the trial judge did not find policeman guilty of
murder as indicated by the facts.78
In D.K Basu v. State of West Bengal (AIR 1997 SC 610), the Court laid down 11
guidelines (procedural measures) to be followed while, during and after arrest of person till
he is in the custody of police. This case came up before the Court through a petition under
art 32 of the Constitution by an NGO. The Executive Chairman of this NGO had written to
Chief Justice of India drawing his attention to news items published in a newspaper,
regarding deaths in police lock up and in jail in the State of West Bengal. Here the Court
observed that Custodial Torture is a naked violation of human dignity and degrading which
destroys individual personality. It is a calculated assault on human dignity and whenever
human dignity is wounded, the Civilization takes a step backward.
However, mere formulation of guidelines and safeguards would not be sufficient,
therefore Supreme Court in D.K Basu case warned that:
Failure to comply with the requirements mentioned shall apart from rendering the
concerned official liable for departmental action liable to be punished for contempt of Court

78
ibid
 50

may be instituted in any High Court of the country, having territorial jurisdiction over the
matter.
In Joginder Kumar v. State of U.P (1994 (4) SCC 260), Joginder Kumar was called
to the police station in connection with a case. Thereafter, his whereabouts became unknown
to his family members. His family members filed a writ of habeas corpus before the
Supreme Court, pursuant to which he was produced before the court.
Alarming increase in cases of torture, assault and death in police custody and non
availability to punish the culprits in such cases have been an vexed problem as the
investigation into such matters have been by the custodians themselves. It is therefore, of
utmost necessity that an objective and independent enquiry should be made. Keeping it in
view, the Supreme Court in Secretary, Hailakandi Bar Association v. State of Assam (1995)
Supp (3) SCC 736, directed the CBI to register and investigate the instant case of custodial
death. Again in Supreme Court in Ajab Singh v. State of UP (2000) 3 SCC 521, where the
police examination of a custodial death was a concocted story, directing the CBI to register
the case and conduct an investigation into the circumstances of custodial death. It also
directed the CBI to complete investigation expeditiously and file a copy of the investigation
report in the court.
The UN Convention against Torture provides for redress and compensation to the
tortured victim. Article 14 of the convention categorically emphasizes that every State party
to the Convention must ensure that the tortured victim is provided fair & adequate
compensation and rehabilitation. If death results in the event of torture, the family is to be
provided with compensation. In Nelabati Behara v. State of Orissa (1993 (2) SCC 746); the
principle of state liability and the need for state to make reparations for such liability was
recognized. It was highlighted that court under Art 32 and 226 of the Constitution has wide
amplitude to provide any remedy under Public Law for any contravention of Fundamental
Rights.79

79 ibid
 51

B. Right to livelihood:

An important facet of right to life 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.
Such deprivation would not only denude the life of its effective content and meaningfulness
but it would make life impossible to live. Yet, such deprivation would not have to be in
accordance with the procedure established by law, if the right to livelihood is not regarded as
a part of the right of life. That, which alone makes it possible to live, leave aside what makes
life liveable, must be deemed to be an integral component of the right to life. Deprive a
person of his right to livelihood and you shall have deprived him of his life. Indeed that
explains the massive migration of the rural population to big cities. They migrate because
they have no means of livelihood in the villages. The motive force which propels their
desertion of their hearths and homes in the village is the struggle for survival, that is, the
struggle for life. So unimpeachable is the evidence of the nexus between life and the means
of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat.
That they can do, namely, eat, only if they have the means of livelihood.80
Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that
the State shall, in particular, direct its policy towards securing that the citizens, men and
women equally, have the right to an adequate means of livelihood. Article 41, which is
another Directive Principle, provides, inter alia, that the State shall within the limits of its
economic capacity, and development, make effective provision for securing the right to work
in cases of unemployment and of undeserved want. Article 37 provides that the Directive

80
Olga Tellisv. Bombay Municipal Corporation, AIR 1986 SC 180: 1985 (2) SCALE 5: (1985) 3 SC 545; Delhi
Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 Supp 1 SCC 600: (1990) Supp I SCR 142;
Consumer Education & Research Centre v. Union of India 1995 SC 922: (1995) 3 SCC 42: (1995) I SCR 626;
Unni Krishna,, JP, v. State of ,Andharapradesh AIR 1993 Sc 2178: JT (1993) 1 Sc474: (1993) 1 SCC 645;
MadhuKasihwar v State of Bihar AIR 1996 Sc 1864: (1996) 5 SCC 125: (1996) Supp 1 SCR 442; L.l.C. of
India v Consumer education & Research Centre, AIR 1995 SC 1811: (1995) 5 SCC 482; Narender Kumarv
State Of Haryana JT (1994) 2 Sc 94: (1994) 4 SCC 460.
 52

Principles, though not enforceable by any court, are nevertheless fundamental in the
governance ii the country. The principles in articles 39(a) and 41 must be regarded as equally
fundamental in the understanding and interpretation of the meaning and content of
fundamental rights. If there is an obligation upon the State to secure to the citizens an
adequate means of livelihood and the right to work, it would be sheer pedantry to exclude
the right to livelihood from the content of the right of life.The State may not by affirmative
action, be compellable to provide adeqai.ite means of livelihood or work to the citizens. But,
any person, who is deprived it 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 under article 21. People lived in slums and pavements because they had small jobs
to nurse in the city and there is nowhere else to live. Evidently, they choose a pavement or a
slum in the vicinity of their place of work, the time otherwise taken in commuting and its
cost being forbidding. To lose the pavement or the slum is to lose the job. The conclusion,
therefore, in terms of the constitutional phraseology is that their eviction will lead to
deprivation of their livelihood and consequently to the deprivation of life.81
Right to livelihood as contemplated under article 21 of the Constitution cannot be so widely
construed as to result in defeating the purpose sought to hr achieved by the aforesaid article.
It is also true that the right to livelihood would include all attributes of life but the same
cannot be extended to the extent that it may embrace or take within its ambit all sorts of
claims relating to the legal or contractual rights of parties completely ignoring the person
approaching the court and the alleged violation of the said right.82
Right to life would include right to continue in permanent employment which is not a bounty
of the employer nor can its survival be at the volition or mercy of the employer. Income is
the foundation to enjoy many fundamental rights and when work is the source of income, the
right to work would became a much a fundamental right. Fundamental rights can ill afford to
consign to the limbo of undefined premises and uncertain application. That will be mockery
of them. 83

81
Supra note 76
82
State of HiinachalPradeshv. Raja Mahendra Pal, AIR 1999 SC 1786: 1999 (2) SCALE 381 : 1991 4 SSC 43
83
Delhi Transport Corporation v. D.T.C. MazdoorCongress.AIR 1991 SC 101: 1991 Supp (I) SCC 600: (1990)
Supp I SCR 142, Samantha v. State of AndhraPradesh, AIR 1997 SC 3297: 1997 (4) SCALE 746: (1997) 8
SCC 191: (1997) Supp 2 SCR 305
 53

C. Agriculture:

Agriculture is not a singular vocation. It is, more often II in in it, a joint venture, mainly of
the tiller’s family members. Some of them have to wink hard mid the others harder still.
Everybody, young or old, male or female has chores allotted to perform; a share in the
burden of toil. Traditionally and historically, the agricultural family is identified by the male
head. Their light to livelihood a right constitutionally recognised a right which the female
enjoyed in common with the last male holder of the tenancy. It is in protection of that right
to livelihood , that the immediate female relatives of the last male tenant have the
constitutional remedy to stay on holding the land so long as they remain dependent on it for
earning their livelihood, for otherwise it would render them destitute . It is on exhaustion of,
or abandonment of land by, such female descendent can the males in the line of descent take
- over the holding exclusively.84

D. Life insurance:

Life insurance coverage is against disablement or in the event of the insured economic
support for the dependents, social security to livelihood to the insured or the dependents. The
appropriate life insurance policy within the paying capacity and means of the insured to pay
premium one of the social security measures envisaged under the Constitution to make right
to life meaningful, worth living and right to livelihood a means for subsistence.85

E. Right to health care: 86

The enjoyment of the highest attainable standard of health is one of the fundamental rights of
every human being without distinction of race, religion, political belief, economic or social

84
MadhuKishwarv. State of Bihar, AIR 1996 SC 1864: (1996) 5 SCC 125: (1996) SUPP 1 SCR 442
85
L.1.C. of India v. Consumer Education & Research Centre, AIR 1995 SC 1811: (1995) 5 SSC 482
86
Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of HumanRights in India Through
Public Interest Litigation with special Reference toRight to Life”, thesis PhD, Saurashtra University
 54

condition.87 The very existence of human beings who are prone to sickness and diseases, very
often depends on availability of efficient health care services at affordable cost. Right to live
with dignity and the philosophy behind all human rights laws will be meaningless, unless
medical services are made available to all. It is conceivable that there can not be an absolute
right to enjoy all fruits of modern medical technology. But what can be considered as part of
humanright element is reasonable provision for medical services which is free from
deficiency.88 Availability of basic medical facilities are part of individuals human rights.

Article 25 of Universal Declaration of Human Rights provides as under: (1)Every one has the
right to a standard of living adequate for the health and wellbeing of himself and of his
family including ... medical care...89
Article 12 of International Covenant on Economic, Social and Cultural Rights in para(2)
provides that :
The steps to be taken by the State Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:
a) The provision for the reduction of the stillbirth-rate and infant mortality and for the
healthy development of the child.

b) The improvement of all aspects of environmental and industrial hygiene;

c) The prevention, treatment and control of epidemic, endemic, occupational and

other diseases;
d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness. 90

The Constitution of India requires the State to raise the level of nutrition andthe standard of
living of its people and the improvement of public health.91

87
Preamble to the Constitution of World Health Organisation (WHO).
88
A.M.Verkey, “Deficiency in Health Services: Human Rights Law Approach,” (2000) C.U.L.R. vol. XXIV,
p.78.
89
Article 25 of Universal Declaration of Human Rights.
90
Article 12(2) of International Convention on Civil and Political Rights.
91
Article 47(1) of Constitution of India.
 55

Health is thus a state of complete physical, mental and social wellbeing. Article 21 of the
Constitution imposes an obligation on the state to safeguard the right to life of every
citizen.92 Of late, the right to health and access to medical treatment has been included in the
plethora of rights brought under the ambit of Art.21. The attitude of the judiciary in
expanding the horizons of Article 21 has been analysed with special reference to the right to
health and medical assistance as a right under Article 21. 93

But the Constitution does not confer an enforceable fundamental right to medical assistance
to have better health. This is achieved by judicial interpretation in public interest litigation
and it is Article 47 under Part IV of the Constitution which imposes a primary duty upon the
state to raise the level of nutrition and the standard of living and to improve public health,
and by harmonious construction of the fundamental rights and directive principles has
prescribed the modality of access to medical treatment. 94.
The Supreme Court, in Paschim Banga Khet mazdoor Samity&ors v. State of West Bengal
&ors,9596 while widening the scope of art 21 and the government’s responsibility to provide
medical aid to every person in the country, held that in a welfare state, the primary duty of
the government is to secure the welfare of the people. Providing adequate medical facilities
for the people is an obligation undertaken by the government in a welfare state. The
government discharges this obligation by providing medical care to the persons seeking to
avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to
life of every person. Preservation of human life is thus of paramount importance. The
government hospitals run by the state are duty bound to extend medical assistance for
preserving human life. Failure on the part of a government hospital to provide timely
medical treatment to a person in need of such treatment, results in violation of his right to life

92
Dr A. Raghunandh Reddy, “Liability of the Government Hospitals and Breach of Right To Life.” AIR 1998
Jour.153.
93
C Manickam and S Sajith, “Right to health And Access to Medical Treatment under the Indian
Constitution,”AIR 1997 Jour 104.
94
Ibid.
95
(1996) 4 SCC 37
96
http://www.legalindia.com/right-to-health/
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guaranteed under Article21. The Court made certain additional direction in respect of
serious medical cases:9798
1. Adequate facilities be provided at the public health centers where the patient can
be given basic treatment and his condition stabilized.
2. Hospitals at the district and sub divisional level should be upgraded so that
seriouscases be treated there.
3. Facilities for given specialist treatment should be increased and having regard to
the growing needs, it must be made available at the district and sub divisional level
hospitals.
4. In order to ensure availability of bed in any emergency at State level hospitals, there
should be a centralized communication system so that the patient can be sent immediately
to the hospital where bed is available in respect of the treatment, which is required.
5. Proper arrangement of ambulance should be made for transport of a patient from
the public health centre to the State hospital.
6. Ambulance should be adequately provided with necessary equipments and
medical personnel.

The Supreme Court in its landmark judgment in Paramanand Katara v Union of

99 100
India ruled that every doctor whether at a Government hospital or otherwise has the
professional obligation to extend his services with due expertise for protecting life. 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 statutes or otherwise which would interfere with
the discharge of this obligation cannot be sustained, and must, therefore, give way. The
Court laid down the following guidelines for doctors, when an injured person approaches
them:
I. Duty of a doctor when an injured person approaches him: Whenever, on such occasions,
a man of the medical profession is approached by an injured person, and if he finds that
whatever assistance he could give is not really sufficient to save the life of the person, but
some better assistance is necessary, it is the duty of the man in the medical profession so

97
Ibidem, at 47-48
98
Supra note 91
99
AIR 1989 SC 2039
100
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 57

approached to render all the help which he could, and also see that the person reaches the
proper expert as early as possible.
II. Legal protection to doctors treating injured persons: A doctor does not contravene the law
of the land by proceeding to treat an injured victim on his appearance before him, either by
himself or with others. Zonal regulations and classifications cannot operate as fetters in the
discharge of the obligation, even if the victim is sent elsewhere under local rules, and
regardless of the involvement of police. The 1985 decision of the Standing Committee on
Forensic Medicine is the effective guideline.
III. No legal bar on doctors from attending to the injured persons: There is no legal
impediment for a medical professional, when he is called upon or requested to attend to an
injured person needing his medical assistance immediately. The effort to save the person
should be the top priority, not only of the medical professional, but even of the police or any
other citizen who happens to be connected with the matter, or who happens to notice such an
incident or a situation.

F. Right to health: 101

The Directive principles of state policy are only the directives to the State. These are non-
justifiable. No person can claim for non-fulfilling these directives. But the Supreme Court
has brought the right to health under the preview of Article 21. The scope of this provision is
very wide. It prescribes for the right of life and personal liberty. The concept of personal
liberty comprehended many rights, related to indirectly to life or liberty of a person. Now a
person can claim his right of health. 102 Thus, the right to health, along with numerous other
civil, political and economic rights, is afforded protection under the Indian Constitution.
The debate surrounding the implementation of the human right to health is fresh and full of
possibility for the developing world. In fact, Indian has been able to create a legal
mechanism whereby right to health can be protect and enforced. The early of 1970s,
witnessed a watershed in human rights litigation with the Keshvanandbharti v. State of
kerela103 ushering in a unprecedented period of progressive jurisprudence following the

101
http://www.legalindia.com/right-to-health/
102
SheerajLatif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-34, at 30.
103
(1973) 4 SCC 225.
 58

recognition fundamental rights. At the same time, standing rules were relaxed in order to
promote PIL and access to justice. So there were two developments in 1980’s, which led to a
marked increase in health related litigation. First was the establishment of consumer courts
that made it cheaper and speedier to sue doctors for medical negligence. Second, the growth
of PIL and one of this offshoots being recognition of health care as a fundamental right.
Through PIL the Supreme Court has allowed individual citizen to approach the court directly
for the protection of their Constitutional human rights.104
The Constitution guarantees the some fundamental rights having a bearing on health care.
Article 21deal with “No person shall be deprived of his life or personal liberty except
according to procedure established by law.”105 Right to live means something more than
mere animal existence and includes the right to live consistently with human dignity and
decency.
In 1995, the Supreme Court held that right to health and medical care is a fundamental right
covered by Article 21 since health is essential for making the life of workers meaningful and
purposeful and compatible with personal dignity. The state has an obligation under Article 21
to safeguard the right to life of every person, preservation of human life being of paramount
importance. The Supreme Court has in the case of ParmanandKatravs Union of
India,106 held that whether the patient be an innocent person or be a criminal liable to
punishment under the law, it is the obligation of those who are in charge of the health of the
community to preserve life so that innocent may be protected and the guilty may be
punished.107
Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is
well known that traffic in women leads to prostitution, which in turn is to major factor in
spread of AIDS. Article 24 is relating to child labour it deal with “No child below the age of
14 years shall be employed to work in any factory or mine or engaged in any other hazardous
employment.”108 Thus this article is of direct relevance to child health.

104
Kumar Avanish “Human Right to Health” satyam law pub. 2007 at 171
105
Constitution of India.
106
AIR 1989 SC 2039
107
ibid
108
Constitution of India
 59

In addition to constitutional remedies, sensitizing of the relevant ordering law towards later
health for all adds to the of right to health. Legal prohibition of commercialized
transplantation of human organ and effective application of consumer protection act to deal
with deficient medical services have animated right to health. 109
With the recognition that both the Indian Constitution and the fundamental right of life
emphasize human dignity, began to address the importance of health to Indian citizen. In the
Directive principles of state policy, Art.47 declares that the State shall regard the level of
nutrition and the standard of living of its people and the improvement of public health as
among its primary duties. Since Directive principles of state policy are not enforceable by the
court, implementation of the guarantee has remained illusory.110 However, in a series of cases
dealing with the substantive content of the right to life, the court has found that the right live
with human dignity including right to good health. 111 In Consumer Education and Research
Center v. UOI,112 the Court explicitly held that the right to health was an integral factor of a
meaningful right to life. The court held that the right to health and medical care is a
fundamental right under Article 21. The Supreme Court, while examining the issue of the
constitutional right to health care under arts 21, 41 and 47 of the Constitution of India
in State of Punjab v Ram LubhayaBagga,113 observed that the right of one person correlates
to a duty upon another, individual, employer, government or authority. Hence, the right of a
citizen to live under art 21 casts and obligation on the state. This obligation is further
114
reinforced under art 47; it is for the state to secure health to its citizens as its primary duty.
No doubt the government is rendering this obligation by opening government hospitals and
health centers, but to be meaningful, they must be within the reach of its people, and of
sufficient liquid quality. Since it is one of the most sacrosanct and valuable rights of a citizen,
and an equally sacrosanct and sacred obligation of the state, every citizen of this welfare state
looks towards the state to perform this obligation with top priority, including by way of
allocation of sufficient funds. This in turn will not only secure the rights of its citizens to

109
Spring Meadow Hospital VsHarijolAhluwaliya, AIR 1998 SC180
110
BandhuaMuktiMorcha AIR 1984 SC 812
111
Ibid at 811
112
AIR 1995 SC 636
113
1998) 4 SCC 177: AIR 1998 SC 1703.
114
 60

their satisfaction, but will benefit the state in achieving its social, political and economic
goals.
In CESC Ltd. vs. Subash Chandra Bose115, the Supreme Court relied on international
instruments and concluded that right to health is a fundamental right. It went further and
observed that health is not merely absence of sickness: “The term health implies more than
an absence of sickness. Medical care and health facilities not only protect against sickness
but also ensure stable manpower for economic development. Facilities of health and medical
care generate devotion and dedication to give the workers’ best, physically as well as
mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him
physically fit and mentally alert for leading a successful economic, social and cultural life.
The medical facilities are, therefore, part of social security and like gilt edged security, it
would yield immediate return in the increased production or at any rate reduce absenteeism
on grounds of sickness, etc.

G. Right to legal aid: 116

Humanism, which is the source and strength of legality, is writ large in the theme of
legal services to the poor in that part of our planet where backwardness and indigence have
struck the hardest blows through the legal process itself on the lowly and the lost. “Pre-
British India had practiced “constitutional monarchy” and the days of the Hindu and Muslim
rulers had witnessed unsophisticated methodology of dispensing justice to the poor,
inexpensively and immediately. In short, justice to the citizens-high and low-has been an
Indian creed of long ago.117
“After Independence schemes of legal aid was developed under the aegis of Justice
N.H. Bhagwati, then of Bombay High Court and Justice Trevore Harris of Calcutta High
Court. The matter of legal aid was also referred to the Law Commission to make
recommendations for making the legal aid program an effective instrument for rendering
social justice. Coming up with recommendation in its XIV report, under the leadership of
leading jurist M.C. Setalvad, the Commission opined that free legal aid is a service, which

115
AIR 1992 SC 573,585
116
http://www.legalserviceindia.com/article/l340-Legal-Aid-In-India.html
117
ibid
 61

should be provided by the State to the poor. The State must, while accepting the obligation,
make provision for funds to provide legal aid. The legal community must play a pivotal role
in accepting the responsibility for the administration and working of the legal aid scheme. It
owes a moral and social obligation and therefore the Bar Association should take a step
forward in rendering legal aid voluntarily. These would include representation by lawyers at
government expenses to accused persons in criminal proceedings, in jails, and appeals. “The
Commission also recommended the substitution in Order XXXIII, Civil Procedure Code of
the word ‘pauper’ with ‘poor persons’. Acting on the recommendations of the Law
Commission, the Government of India in 1960 prepared a national scheme of legal aid
providing for legal aid in all courts including tribunals. It envisaged the establishment of
committees at the State, District and Tehsil level. However, due to the inability of States to
implement the scheme because of lack of finances the scheme did not survive.
Meanwhile the judicial attitude towards legal aid was not very progressive.
In Janardhan Reddy v. State of Hyderabad118and Tara Singh v State of Punjab119,[ the
court, while taking a very restrictive interpretation of statutory provisions giving a person the
right to lawyer, opined that this was, “a privilege given to accused and it is his duty to ask for
a lawyer if he wants to engage one or get his relations to engage one for him.the only duty
cast on the Magistrate is to afford him the necessary opportunity (to do so). ”Even in capital
punishment cases the early Supreme Court seemed relentless when it declared that “it cannot
be laid down in every capital case where the accused is unrepresented the trial is vitiated.”
Thus it can be pointed out that newly Independent India was not clear about the broad
perspective of its legal aid programme.
For again trying to revive the programme, the Government of India formed an expert
committee, the Krishna Iyer Committee, in 1973 to see as to how the states should go about
devising and elaborating the legal aid scheme. The committee came out with the most
systematic and elaborate statement regarding establishment of legal aid committees in each
district, at state level and at the Centre. It was also suggested that an autonomous corporation
be set up, law clinics be established in Universities and lawyers be urged to help. The
Government of India also appointed a committee on judicature under the chairmanship of
Justice P.N. Bhagwati to effectively implement the legal aid scheme. It encouraged the

118
AIR 1951 SC 217
119
AIR 1951 SC 411
 62

concept of legal aid camps and Nyayalayas in rural areas. The committee in its
report recommended the introduction of concept of legal aid in the Constitution of
India.
Accepting this recommendation in the 1976, Article 39-A was introduced in the
Directive Principles of State Policy by 42nd Amendment of the Constitution. With the object
of providing free legal aid, the Government of India had, by a resolution dated 26th
September, 1980 appointed a Committee known as “Committee for Implementing Legal Aid
Schemes” (CILAS) under the chairmanship of Chief. Justice P.N. Bhagwati to monitor and
implement legal aid programs on a uniform basis in all the States and Union Territories.
‘CILAS’ evolved a model scheme for legal aid programs applicable throughout the country
by which several legal aid and advice Boards were set up in the States and Union Territories.
Although legal aid was recognized by the Courts as a fundamental right under Article
21 reversing their earlier stance, the scope and ambit of the right was not clear till this time.
The step was taken in Sunil Batra v. Delhi Administration120, where the two situations in
which a prisoner would be entitled for legal aid were given. First to seek justice from the
prison authorities and second, to challenge the decision of such authorities in the court. Thus,
the requirement of legal aid was brought about in not only judicial proceedings but also
proceedings before the prison authorities which were administrative in nature. The court has
reiterated this again in HussainaraKhatoon v. State of Bihar121 and said: “it is an essential
ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation
through the court’s process that he should have legal services available to him. Free legal
service to the poor and the needy is an essential element of any reasonable, fair and just
procedure.” The court invoked Article 39-A which provides for free legal aid and has
interpreted Article 21 in the light of Article 39-A. The court upheld the right to free legal aid
to be provided to the poor accused persons ‘not in the permissive sense of Article 22(1) and
its wider amplitude’ but in the peremptory sense of article 21 confined to prison situations’
Two years thereafter, in the case of Khatri v. State of Bihar122, Justice P.N.
Bhagwati while referring to the Supreme Court’s mandate in the aforesaid Hossainara
Khatun’s case, made the following comments, in paragraph 4 of the said judgment:

120
(1978) 4 SCC 494
121
(1980) 1 SCC 98
122
Khatri v. State of Bihar AIR 1981 S.C. at page 926 (Bhagalpur Blinded Prisoners’ case)
 63

“It is unfortunate that though this Court declared the right to legal aid as a
fundamental right of an accused person by a process of judicial construction of Article 21,
most of the States in the country have not taken note of this decision and provided free legal
services to a person accused of an offence. The State is under a constitutional mandate to
provide free legal aid to an accused person who is unable to secure legal services on account
of indigence, and whatever is necessary for this purpose has to be done by the State.”
In 1986, in another case of Sukhdas v. Union Territory of Arunachal Pradesh123 ,
Justice P.N. Bhagwati, while referring to the decision of HossainaraKhatun’s case and
some other cases had made the following observations in paragraph 6 of the said
judgment:-
“Now it is common knowledge that about 70% of the people living in rural areas are
illiterate and even more than that percentage of the people are not aware of the rights
conferred upon them by law. Even literate people do not know what are their rights and
entitlements under the law. It is this absence of legal awareness which is responsible for the
deception, exploitation and deprivation of rights and benefits from which the poor suffer in
this land. Their legal needs always stand to become crisis oriented because their ignorance
prevents them from anticipating legal troubles and approaching a lawyer for consultation
and advice in time and their poverty because magnifies the impact of the legal troubles and
difficulties when they come. Moreover, of their ignorance and illiteracy, they cannot become
self-reliant; they cannot even help themselves. The Law ceases to be their protector because
they do not know that they are entitled to the protection of the law and they can avail of the
legal service programs for putting an end to their exploitation and winning their rights. The
result is that poverty becomes with them a condition of total helplessness. This miserable
condition in which the poor find themselves can be alleviated to some extent by creating
legal awareness amongst the poor. That is why it has always been recognized as one of the
principal items of the program of the legal aid movement in the country to promote legal
literacy. It would be in these circumstances made a mockery of legal aid if it were to be left
to a poor, ignorant and illiterate accused to ask for free legal service, legal aid would become
merely a paper promise and it would fail of its purpose.”
It was in the above backdrop that he Parliament passed the Legal Services Authorities
Act, 1987, which was published in the Gazette of India Extraordinary Part II, Section I No.

123
AIR 1986 S.C. 991
 64

55 dated 12th October, 1987. Although the Act was passed in 1987, the provisions of the Act,
except Chapter III, were enforced with effect from 9.11.1995 by the Central Government
Notification S.O.893 (E) dated 9th November 1995. Chapter III, under the heading “State
Legal Services Authorities” was enforced in different States under different Notifications in
the years 1995-1998.

H. Right To Fair Trial:

Right to fair trial is sine qua non of article 21 of the Constitution. It is trite the justice
should not only be done but it should also be seen to have been done. Denial of a fair trial is
as much injustice to the accused as it is to the victim and the society. Fair trial obviously
would mean a trial before an impartial Judge a fair prosecutor and an 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. The State has a definite role to play in
protectingthe witnesses, to start with at least in sensitive cases involving those in power. who
have political patronage and could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty.124
There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the
case of Zahira Habibullah Sheikh &Anrvs State Of Gujarat ((2004) 4 SCC 158) has
held that, “ the principle of fair trial now informs and energizes many areas of the law. It is
reflected in numerous rules and practices 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.” Most of these safeguards to ensure a fair trial are contained under the
Code of Criminal Procedure, 1973, which contains and defines the procedure, which has to
be followed in criminal cases.125

124
K. Anbazhaganv. Suptd. Police, AIR 2004 SC 524; ZahirnHabibulla H Sheikh v. State of Gujarat, AIR 2004
SC 3114.
125
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The concept of a fair trial cannot be limited to a statute and the Courts have gradually
expanded it to include various aspects of criminal procedure. For instance, the Supreme
Court has also in the past transferred cases from one state to another when it is reasonably
anticipated that the accused will not be afforded a fair trial or the court process may be
interfered with by extraneous considerations.126

I. Right To Life With Human Dignity:

The preamble of the International Covenant on Civil and Political Rights mentions
that “recognition of the inherent dignity and of the equal and inalienable rights of all the
members of the human family is the foundation of freedom, justice and peace in the world”
and recognizes “that these rights derive from the inherent dignity of the human person.”
Everyone – including those deprived of their liberty-has a right to be treated with respect for
the inherent dignity of the human person. The Constitution of India has not expressly
enumerated this right as a fundamental right, but the Supreme Court has recognized this right
to dignity as emanating from Article 21 read with Articles 14 and 19. 127128
In Francis Coralie v. Union Territory of Delhi,129 the Supreme Court enunciated
the law that the right to life guaranteed under Article 21 of the Constitution is not confined
merely to right to physical existence, but also included within its fold, the right to the use of
every faculty or limb through which life is enjoyed as well as the right to live with basic
human dignity. This decision of the Supreme Court upheld the human right guaranteed under
the International Covenant on Civil and Political Rights, to the status of fundamental right
under Article 21 of the Constitution. The Court observed that no one can be deprived of his
right to live with basic human dignity except by just, fair and reasonable procedure
prescribed by law. Indeed no procedure, which deprives a person of his right to live with
human dignity, can possibly be reasonable, fair and just. Therefore, the State cannot by law
or otherwise deprive any person of the right to live with basic human dignity. Such a law and

126
ibid
127
See Article 10 (1) of International Covenant on Civil and Political Rights.
128
Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of Human Rights in India Through
Public Interest Litigation with special Reference to Right to Life”, thesis PhD, Saurashtra University
129
AIR 1981 SC 746.
 66

the action of the State, which encroaches human dignity,is not permitted under Article 21 of
the Constitution. Thus judicial decisions of the Apex Courts and different High Courts,
which are judge made laws have added to a new vista and dimension to the protection of
human rights against their possible encroachment and infraction, even from inconceivable
quarters.130131
In Peoples Union for Democratic Rights v. Union of India,132 the Supreme Court
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. Bhagwati, J.,
speaking for the majority held that the rights and benefits conferred on workers employed by
a contractor under various labour laws are “clearly intended to ensure basic human dignity to
workmen and if the workmen are deprived of any of these rights and benefits, that would
clearly be a violation of Article 21.” Thus non-implementation by the private contractors and
non-enforcement by the State Authorities of various labour laws was held violative of the
fundamental right of workers to live with human dignity. The Court has held that everyone in
this country has a right to live with human dignity, free from exploitation. This right
enshrined in Article 21 derives its life breath from the Directive Principles in Articles 39 (a)
and (f), 41 and 42.133 Even failure to rehabilitate the bonded labourer, the Court held, would
amount to violation of Article 21 which guarantees the right to a dignified life. 134
In State of Himachal Pradesh v. A Parent of Student of Medical College
Shimla,135in a letter by a parent to the Shimla High Court, it was complained of rampant
ragging of freshers in the Campus of Medical College, Shimla. High Court pressed the Chief
Secretary to pass a law to prevent ragging. State of Himachal Pradesh preferred an appeal.
The Supreme Court in this case observed that ragging is subversive of human dignity and
prejudicially affects the students.136

130
HridayaBallab Das, “Human Rights-A Dicta of Civilized Society,” AIR 2004 Jour p.60 at 61-2.
131
Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of Human Rights in India Through
Public Interest Litigation with special Reference to Right to Life”, thesis PhD, Saurashtra University
132
AIR 1982 SC 1473.
133
BandhuaMuktiMorcha v. Union of India, AIR 1984 SC 802; (1984) 3 SCC 161; also MuktiMorcha v. State
of TamilNadu,1986 supp. SCC 541
134
Neeraja Chaudhary v. State of Madhya Pradesh, AIR 1984 SC 1099; (1984) 3 SCC 243.
135
(1985) 3SCC 169.
136
Supra note 128
 67

In VikramDeo Singh Tomar v. State of Bihar,137 it was brought to the notice of the
court that the female inmates of the ‘Care home, Patna’ were compelled to live in inhuman
conditions in an old ruined building. They were ill treated and provided insufficient and poor
quality food and no medical attention was provided to them. The Supreme Court held that,
‘the right to live with human dignity is the fundamental right of every citizen and the State is
under a duty to provide at least the minimum conditions ensuring human dignity’.
Accordingly the court directed the state to take immediate steps for the welfare of the
inmates of the care home. The Court also directed that until a new building is constructed,
the existing building must be renovated and sufficient necessary amenities must be
provided.138
In Vishaka v. State of Rajasthan139 also, the court emphasized on the right to live
and right to work with dignity. It held that each incident of sexual harassment results in the
violation of fundamental right to life. Right to life means the right to live with human dignity
and an indignified life at one’s workplace means deprivation of one’s precious right to life,
freedom to choose one’s profession. In Vishakha a writ petition was filed by Vishakha a
nongovernmental organization by way of public interest litigation seeking enforcement of
fundamental rights of working women under Articles 14,19 and 21 of the Constitution. Court
relying upon International Conventions and norms which are significant in interpretation of
rights held that rightto life with human dignity as well as right to work with human dignity as
included in Article 21.140

J. RIGHT TO SHELTER141:

Today, India is still grappling with unmet basic housing needs of hundreds of
thousands of its citizens. While we represent the world's largest democracy and have a truly
remarkable Constitution, millions of people are still living in sub-human conditions on
pavements, in squatter settlements, bastis, jhuggies or unauthorised slums and are under
constant threat of being evicted.

137
AIR 1988 SC 1782
138
Supra note 128
139
AIR 1997 SC 3011
140
Supra note 128
141
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'…The eviction of the pavement or the slum-dweller not only means his removal from
the house but the destruction of the house itself. And the destruction of a dwelling house is
the end of all that one holds dear in life.'

(J. Chandrachud in Olga Tellis v. Bombay Municipal Corporation, 1985 (3)SCC 545)
In view of the acute need for housing and the frequent and forceful evictions of so
many slum-dwellers, it is important to understand how our Constitution and courts have
interpreted the enforceability of social rights, especially the right to adequate housing. The
Supreme Court has elaborated at great length on the right to adequate housing, shelter and
livelihood as part of the all-encompassing Right to Life under Article 21 of the Constitution
in the landmark case of Olga Tellis v. Bombay Municipal Corporation (BMC) 142, as also in
some of the judgements following Olga Tellis.

Our Fundamental Rights are listed in Part III of the Constitution, and consist mainly
of civil and political rights. Part IV, on the other hand, houses the Directive Principles of
State Policy. While these are not enforceable rights, they do provide guiding principles for
the working of the Constitution. They cover all the socio-economic rights, such as
education, right to work, equal pay for equal work, etc. These rights were considered non-
enforceable or non-justifiable, as they are dependent on resources available with the state.

During the 1970s and 1980s, India witnessed a very interesting phenomenon: due to
strong judicial activism, several socio-economic rights were brought within the sphere of the
fundamental rights. Therefore, while earlier there existed merely the negative duty not to
interfere with the life or liberty of an individual without the sanction of law, activist judges
now imposed a positive obligation upon the state to take steps for ensuring to the individual a
better enjoyment of life and dignity.

One of the first, and perhaps most important, housing rights cases to go up to the
Supreme Court in India was the Olga Tellis case in 1985. This petition to the Bombay High

142
1985 (3)SCC 545
 69

Court was in the form of a public interest litigation by thousands of pavement dwellers of
Bombay city. The petitioners argued that they could not be evicted from their squalid shelters
without being offered alternative accommodation. They further argued that they had chosen a
pavement or slum to live in only because it was nearest to their place of work, and that
evicting them would result in depriving them of their livelihood. The petitioners (living in
around more than 10,000 hutments) were to be evicted under the Bombay Municipal
Corporation Act, which empowered the Municipal Commissioner to remove encroachments
on footpaths or pavements over which the public have a right of passage or access.

The judgement handed down in this case expanded the right to life guaranteed under
Article 21 of the Constitution to include within its scope, the right to livelihood, which in this
context translated into the right to be allowed to remain on the pavements. And although the
final orders in Olga Tellis found that the BMC Act was valid and that pavement dwellers
should be evicted, the Supreme Court also laid down that this could be done only after
arranging alternative accommodation for them. In a sense, therefore, by imposing this strong
condition of providing alternate accommodation before eviction, the Supreme Court was in
fact upholding the right of the pavement dwellers to shelter. More interesting is the fact that
more than 15 years after the Supreme Court judgement in 1985 was passed, due to the strong
activism and pressure from NGOs and the pavement dwellers themselves, most of them have
still not been evicted by the BMC.
However, after this remarkable judgement, later decisions of the Supreme Court and
some High Courts of the country have not been very consistent. While many judgements
have vigorously upheld this ruling, there have been some rulings which have completely
disregarded the basic right to housing and shelter that has been interpreted to be a crucial
part of an individual's right to life.
Afterwards ,there was a whole spate of cases that upheld the Olga Tellis judgement,
the most important ones being Shantistar Builders v. Narayan K. Totame143, Chameli Singh
v. State of UP144 and Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan145. In
all these cases, the Supreme Court reiterated the right to adequate housing as a distinct

143
(1985) 3SCC 545
144
AIR 1996 SC 1015; (1996) 2SCC 549.
145
(1997) 11 SCC 121
 70

constitutional obligation of the state, both under the right to life and under Article 19(1)(e),
which guarantees the right of every citizen to reside and settle in any part of the country.
These judgements particularly upheld the housing rights of the weaker sections of the
population, such as dalits and scheduled castes. They also referred to the provisions
regarding housing and shelter in the Universal Declaration of Human Rights (UDHR) and the
International Covenant on Economic Social and Cultural Rights (ICESCR).

The courts, however, have not been very consistent in interpreting housing as a
fundamental human right of all citizens. In some recent judgements, not only have they failed
to uphold this right, but have actually regressed on their earlier rulings.

A case in point is the petition filed in 1995 in the Bombay High Court. Filed by the
Bombay Environmental Action Group (BEAG), the petition was to 'remove forthwith'
informal settlement dwellers (described as 'encroachers') adjacent to the Sanjay Gandhi
National Park, to ensure protection of 'the environment and all its aspects'. In its judgement
on 7 May 1997, the Bombay High Court directed the relevant authorities to evict persons
from their homes, pursuant to various wildlife protection and conservation laws, effectively
depriving them of their livelihood.

The Indian People's Human Rights Tribunal on Sanjay Gandhi National Park,
determined that the BEAG petition clearly showed its vision of a 'clean environment'
excludes vast sections of the population who were 'unpropertied' and living in abject
poverty. Additionally, it held that the Court's summary eviction order would eventually
affect half a million slum-dwellers. Particularly disturbing was the fact that the Court not
only ordered this mass eviction, but it explicitly ordered the demolition of homes and the
destruction of all belongings and construction materials that, in the first wave of evictions,
were gathered and burnt by the demolition squad.

However, a judgement in 2000 that shows complete disregard for fundamental

human rights and international obligations, is the one by the Supreme Court in India in NBA
v.
Union of India. This case concerned the continued construction of the SardarSarovar Project
dam and its significant impact on both the environment and hundreds and thousands of
tribal people in the Narmada valley, who have been displaced with inadequate resettlement
and
 71

rehabilitation options. Despite full knowledge of the concerned authorities' failure to

determine the total number of people to be displaced or find adequate land for their
resettlement, and the incomplete resettlement of those already displaced, the Supreme Court
ruled that, '...displacement of the tribals and other persons would not per se result in the
violation of their fundamental or other rights…' and held that the construction of the dam
would continue. The judgement contradicted all previous Supreme Court rulings that have
upheld the right to shelter related to the right to life, as well as the decisions of the Narmada
Water Disputes Tribunal.

K. RIGHT TO EDUCATION : 146

The Right to Education legislation has a long and chequered history, having been subjected
to numerous rounds of heated debate and philosophical and semantic alterations. It was
tailored into existence in the period following the passage of the 86th Constitutional
amendment in 2002, which declared Education a fundamental right of all children in the age-
group of 6-14. A participatory process of inviting comments from members of the public
yielded several different drafts of the bill in the subsequent years until finally, in 2008, the
Union Cabinet stamped its seal of approval on it and it was placed before the RajyaSabha,
which passed it in July 2009. The bill then proceeded to the LokSabha, where it was passed
in August 2009.
The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) has a
long and chequered history. The right to education was discussed extensively during the
drafting of the Constitution. The Constituent Sub-Committee on Fundamental Rights
included the right to primary education asa fundamental right. However, the Advisory
Committee of the Constituent Assembly rejected this proposal and placed it in the category
of non-justifiable fundamental rights (later known as Directive Principles of State Policy).
The Acharya Ramamurti Committee made the first official recommendation for the inclusion
of a fundamental right to education in 1990. Thereafter, several political as well as policy
level changes influenced the course of free and compulsory education. The country witnessed
an increased international focus on its initiatives regarding free and compulsory education

146
http://www.azimpremjifoundation.org/Right_to_Education
 72

after its participation in the World Conference on Education for All in 1990. India also
ratified the United Nations Convention on Rights of the Child in 1992.
The Supreme Court first recognised the right to education as a fundamental right in
Mohini Jain v. Union of India (1992) 3 SCC 666. It was observed in this judgment that:
'Right to life' is the compendious expression for all those rights which the courts must
enforce because they are basic to the dignified enjoyment of life. It extends to the full range
of conduct which the individual is free to pursue. The right to education flows directly from
right to life. The right to life under Article 21 and the dignity of an individual cannot be
assured unless it is accompanied by the right to education. The State Government is under an
obligation to make endeavor to provide educational facility at all levels to its citizens. (para
12)
In 1993 the Supreme Court narrowed the ambit of the fundamental right to education
as propounded in the Mohini Jain case in the case of J P Unnikrishnan vs. State of
Andhra Pradesh, 1993 SCC (1) 645. The Court observed that:
The right to education which is implicit in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of the directive principles in Part IV
of the Constitution. So far as the right to education is concerned, there are several articles in
Part IV which expressly speak of it. Article 41 says that the "State shall, within the limits of
its economic capacity and development, make effective provision for securing the right to
work, to education and to public assistance in cases of unemployment, old age, sickens and
disablement, and in other cases of undeserved want". Article 45 says that "the State shall
endeavor to provide, within a period of ten years from the commencement of this
constitution, for free and compulsory education for all children until they complete the age of
fourteen years". Article 46 commands that "the State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in particular, of
the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice
and all forms of exploitation……. The three Articles 45, 46 and 41 are designed to achieve
the said goal among others. It is in the light of these Articles that the content and parameters
of the right to education have to be determined. Right to education, understood in the context
of Articles 45 and 41, meant: (a) every child/citizen of this country has a right to free
education until he completes the age of fourteen years and (b) after a child/citizen completes
14 years, his right to education is circumscribed by the limits of the economic capacity of the
state and its development. We may deal with both these limbs separately. (para 171)
 73

In 2002, the 86th amendment to the Constitution introduced Article 21-A making the
right to education a fundamental right. For the first time in independent India’s history a
fundamental right had been added to the Constitution. Unlike other fundamental rights the
right to education required an enabling legislation to become effective. The RTE Act is this
enabling legislation. The RTE Act came into force on April 1, 2010.

L. RIGHT TO KNOW:

Article 21 enshrines right to life and personal liberty. The expressions “right to life
and personal liberty” are compendious terms, which include within themselves variety of
rights and attributes. Some of them are also found in Article 19 and thus have two sources at
the same time . In R.P.Limited v Indian Express Newspapers,147 the Supreme Court read
into Article 21 the right to know. The Supreme Court held that right to know is a necessary
ingredient of participatory democracy. In view of transnational developments when distances
are shrinking, international communities are coming together for cooperation in various
spheres and they are moving towards global perspective in various fields including Human
Rights, the expression “liberty” must receive an expanded meaning. 148
The expression cannot be limited to mere absence of bodily restraint. It is wide
enough to expand to full range of rights including right to hold a particular opinion and right
to sustain and nurture that opinion. For sustaining and nurturing that opinion, it becomes
necessary to receive information. Article 21 confers on all persons a right to know which
include a right to receive information. The ambit and scope of Article 21 is much wider as
compared to Article 19(1) (a). Thus, the courts are required to expand its scope by way of
149
judicial activism. In P.U.C.L v U.O.I the Supreme Court observed that Fundamental
Rights themselves have no fixed contents, most of them are empty vessels into which each
generation must pour its contents in the light of its experience. The attempt of the court
should be to expand the reach and ambit of the Fundamental Rights by process of judicial
interpretation. There cannot be any distinction between the Fundamental Rights mentioned
in Chapter-III of the constitution and the declaration of such rights based on the judgments

147
AIR 1989 SC 190.
148
http://cic.gov.in/CIC-Articles/Praveen%20Dala-02-13052006.pdf
149
JT 2003 (2) 528.
 74

rendered by the Supreme Court. Further, it is well settled that while interpreting the
constitutional provisions dealing with Fundamental Rights the courts must not forget the
principles embodied in the international conventions and instruments and as far as possible,
the courts must give effect to the principles contained in those instruments. The courts are
under an obligation to give due regard to the international conventions and norms while
construing the domestic laws, more so when there is no inconsistency or conflict between
them and the domestic law.

N. RIGHT TO PRIVACY: 150

Respect for ones privacy is an inherent expectation of human being 151 as it is

important for the mental, spiritual and physical well being of the individual. Privacy secures
to protect relationships between individuals. Privacy is not just one possible means among
others to insure some other value, but that it is necessarily related to ends and relations of the
most fundamental sort, respect, love, friendship, and trust.152

However, there is no right to privacy in the Indian Constitution .Right to privacy

being an integral part of ones right to life and personal liberty has to be given due
importance
.The recognition of right to privacy as a part of our constitutional right to life and personal
liberty is considered as an illustration of progressive development. 153 In its present form the
right to privacy is commonly understood as the right to be let alone and is broadly described
as the right to an inviolable personality.154

Privacy is “a condition people maintain by controlling who receives information

about them and the terms on which others receive it. Importantly, privacy is a
subjective condition. One person cannot decide for another what his or her sense of
privacy should

150
Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of Human Rights in India Through
Public Interest Litigation with special Reference to Right to Life”, thesis PhD, Saurashtra University
151
DivyaBhardwaj , “Right to Privacy : Are We Ready for it,” AIR 2004 Jour 307.
152
Charles Fried , “Privacy”, 77 Yale L. J. 475, at pp. 477-478.
153
A.R. Desai, &Chidanand Reddy S. Patil, “Contours of Privacy and Defamation vis-à-vis Free Speech”,
(1996) C.U.L.R.., p 187.
154
Ibid p 188
 75

be.”155 The right to privacy is part of the right to human dignity and the public law on
information must frown on the violation of that intimacy of life which is the core of
individuality of being. 156 Thus, the constitutional right to life and personal liberty secures the
right to live in seclusion or in public gaze, as one chooses so long as one does not interfere
with the right of others.157 It can thus be deduced that privacy is a state of separateness from
others. The right to privacy encircles within it the concept of dignity and decency also. This
right has an element of secrecy or confidentiality. The right to privacy implies the right not
merely to prevent incorrect portrayal of private life but to prevent its being depicted at all.
The right has multi-pronged dimensions. In personal intimacies, it extends to home, family,
marriage, motherhood, procreation and child bearing, consistent with dignity and decency.158
However, the term privacy has not been specifically defined in the Constitution of India, or
under any other statutory provisions.

Privacy is claimed to be one of the fundamental human rights available to all human
beings. This is very much evident from the Universal Declaration of HumanRights, which
recognizes right to privacy as a fundamental human right. Further theInternational Covenant
on Civil and Political Rights also recognizes the right to privacy.

The right to privacy is directly spelt in Article 12 of the Universal Declaration of

Human Rights as follows, “No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, not to attack upon his honour and reputation.
Every one has the right to the protection of the law against such interference or attacks.’’
The International Covenant on Civil and Political Rights, 1966 provides for rights to privacy
in Article 17. It reads as follows:

155
www.privacilla.org, cited in supra n.121.
156
V. R. KirshnaIyer, “The Right to Know is Fundamental’’ in Salvaging Democracy, (Delhi: Konark
Publishers Pvt Ltd, 1990), p.119.
157
Chidananda Reddy, “Privacy Rights of the Citizens Vs Executive Government,’’ The Lawyers, (1990) Feb .
p. 22.
158
Raghavendra Kumar, “Right to Privacy: Juridical Vision”, AIR 2004 Jour p.195.
 76

(1) No one shall be subjected to arbitrary or unlawful interference with his

privacy, family, home, correspondence, not to unlawful attacks on his honour and
reputation.”
(2) Everyone has the right to protection of the law against such interference or
attacks.”

Constitution of India does not expressly provide for the right to privacy as a
fundamental right. However, it is protected as a legal right under different statutes under
different expressions like, privileged communication, matrimonial rights etc. However, the
Supreme Court has considered the right to privacy as part of the fundamental right to life
under Article 21. Although the Constitution does not expressly declare the right to privacy as
a fundamental right the said right is an essential ingredient of personal liberty. The object
behind Article 21 of the Indian Constitution is to prevent encroachments upon the personal
liberty by the executive except in accordance with law and in conformity with the provisions
thereof.159 The right to privacy is granted to the citizens of India as one of the unremunerated
rights read into the fundamental rights under the Constitution by the courts, in later decisions
on the subject.

Initially, the court did not recognize the right to privacy. In M.P. Sharma v.Satish
Chandra,160the Court made it clear that when the Constitution makers have thought fit not to
recognize a right to privacy, the court has no justification to import it, thereby refuse to
recognize the right to privacy. In Kharak Singh v. State of UttarPradesh,161the Supreme
Court by majority held that the right to privacy is not a guaranteed right under our
Constitution and therefore, the attempt to ascertain the movements of an individual, which is
merely a manner in which privacy is invaded is not an infringement of fundamental right

159
N. K. Raha, “Right to Privacy under Indian law,’’ AIR 2001 Jour, 51.

160
AIR 1954 SC 300.
161
AIR 1963 SC 1295.
 77

guaranteed by the Part III. It was in Govindav. State of Madhya Pradesh162that the Court
took a pioneering view and recognizedthe right to privacy as a fundamental right.

In Peoples Union for Civil Liberties v. Union of India,163 a public interest litigation
was filed by the Peoples Union for Civil Liberties under Article 32 of the Constitution,
highlighting the incidents of telephone tapping and citing from a CBI report published in the
Magazine “Mainstream”, the Court held that right to privacy which includes the right to hold
telephonic conversations in privacy is a fundamental right protected under Articles 14, 19 (1)
(a) and 21 of the Constitution as also under Article 14 of the Universal Declaration on
Human Rights and Article 17 of the

International Covenant on Civil and Political Rights. The Court also held that
Section5 (2) of the Telegraph Act permits the tapping of telephones – however it can only be
resorted to in conformity with fundamental rights. The Supreme Court further observed: “We
have, therefore, no hesitation in holding that right to privacy is a part of “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 National Commission to review the working of the Constitution in its report
has recommended the inclusion of a separate fundamental right to privacy in the
Constitution in the following pattern:
Article 21-B : “(1) Every person has a right to respect for his private and family life,
his home, and his correspondence. (2) Nothing in the clause (1) shall prevent the state from
making any law imposing reasonable restriction on the exercise of the right conferred by
clause (1), in the interest of security of the State, public safety or for prevention of disorder
or crime, or for the protection of health or morals or for the protection of the rights and
freedom of others.”

162
AIR 1975 SC 1378; while recognizing the right to privacy as fundamental right the Supreme Court of India
has often considered the US position on the subject like the decisions of American Courts. E.g. Roe v. Wade,
410 US 113.
163
(1997) I SCC 301; AIR 1997 SC 568.
 78

O. RIGHT TO POLLUTION FREE ENVIRONMENT: 164

A right to clean environment is fundamental to the very existence of humanbeing. Human

existence without clean air or water is injurious to his integralexistence. It is a risk to the
health of the person and is also violation of the right tohealth, (in turn right to life) of the
person. Often it is the poor and the underprivileged who are affected the most, as they lack
“purchasing power to attain access to environment that is relatively cleaner to live in.” 165
These people are forced to live in unhygienic and difficult living conditions and thus become
immediate victims of diseases. It becomes absolutely necessary to keep environment clean
and healthy to prevent pollution. The judiciary has played a very important role by giving
guidelines and directions for controlling and preventing pollution, for improving quality of
environment, for not disturbing the balance of ecological system, etc. And a majorrole in this
endeavour was by social activists, non-governmental organisations and public spirited
people who by public interest litigations enabled the courts to act in this regard.
In a country where the most serious cost of environmental damage falls upon impoverished
and illiterate groups with limited access to the courts, the new environmental right is
championed as a legal gateway to speedy and in expensive legal remedy.166
This right to environment came to be read as a fundamental right through a number of cases
most of which are public interest litigations. The judiciary has contributed to the attainment
of cherished goal set by the law and the Constitution to have a pollution free environment. A
careful examination of decisions handed down by the judiciary shows that “it stands for the
best things men stand for”. When opportunity came the Supreme Court offered non-
conventional interpretation of Article 21 for abating the pollution of the environment.167
A constitutional bench of the Supreme Court in the Charan Lal Sahu Case first addressed
link between environmental quality and the right to life in 1991, the Supreme Court

164
http://www.legalserviceindia.com/article/l399-A-Mandate-To-Pollution-Free-Environment.html
165
Handbook on Human Rights for Judicial Officers, (Bangalore: NLSIU, 2000), p.354.
166
Dr. J.L. Aparajit, et.al., “Judicial Response towards the Protection of Environment : A Critical
Evaluation,” Journal of Indian Legal Thought, Vol.1 2003,p.97.
167
Dr.Shahabuddin Ansari, “The Evolving Dimensions of Environmental Jurisprudence.” Ensym. A
Journal on Environmental Law, Vol.II&III Dec.2004, p.47.
 79

interpreted the right to life guaranteed by article 21 of the Constitution to include the right to
a wholesome environment.In SubashKumarv. State of Bihar (AIR 1991 SC 420/ 1991 (1)
SCC 598., the Court observed that ‘right to life guaranteed by article 21 includes the right of
enjoyment of pollution-free water and air for full enjoyment of life.’ Through this case, the
court recognized the right to a wholesome environment as part of the fundamental right to
life. This case also indicated that the municipalities and a large number of other concerned
governmental agencies could no longer rest content with unimplemented measures for the
abatement and prevention of pollution. They may be compelled to take positive measures to
improve the environment.
This was reaffirmed in M.C. Mehta v. Union of India.(1991) AIR SC 813
(Vehicular Pollution Case); (1992) Supp. (2) SCC 85; (1992) Supp. (2) SCC 86; (1992) 3
SCC 25. The case concerned the deterioration of the world environment and the duty of the
state government, under article 21, to ensure a better quality of environment. the Supreme
Court has held that life, public health and ecology have priority over unemployment and loss
of revenue. The Supreme Court ordered the Central government to show the steps they have
taken to achieve this goal through national policy and to restore the quality of environment.
In another case,[ the Supreme Court dealt with the problem of air pollution caused by motor
vehicle operating in Delhi.168

It was a public interest petition and the court made several directions towards the
Ministry of Environment and Forests. Decisions such as this indicate a new trend of the
Supreme Court to fashion novel remedies to reach a given result, although these new
remedies seem to encroach on the domain of the executive. In Shanti Star Builders vs.
Narayan Totame, the Supreme Court held that right to life is guaranteed in a civilized
society 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. In Subhash Kumar vs.
State. of Bihar- (1991) 1 SCC 598, the Supreme Court held that right to life is a
fundamental right under Art. 21 of the Constitution and it include the right to enjoyment of
pollution free water and air for full enjoyment of life. If anything endangers or impairs that
quality of life in

168
ibid
 80

derogation of laws a citizen has recourse to Art.32 of the Constitution for removing the
pollution of water or air which may be detrimental to life.
In M. C. Mehta vs. Union of India &Ors. 1987 SCR (I) 819 (the Oleum Gas Leak
case), the Supreme Court established a new concept of managerial liability – ‘absolute and
non-delegable’ – for disasters arising from the storage of or use of hazardous materials from
their factories. The enterprise must ensure that no harm results to anyone irrespective of the
fact that it was negligent or not. In Vellore Citizens Welfare Forum vs. Union of India, AIR
1996 SC 2715, the Supreme Court held that industries are vital for the country’s
development, but having regard to pollution caused by them, principle of ‘Sustainable
Development’ has to be adopted as the balancing concept. ‘Precautionary Principle’ and
‘Polluter Pays Principle’ has been accepted as a part of the law of the country.[13] In Indian
Council of Enviro-Legal Action vs. Union of India, 1996 3 SCC 212 (the Bichhri pollution
case), following the decision in the Oleum Gas leak case and based on the polluter pays
principle, the polluting industries were directed to compensate for the harm caused by them
to the villagers in the affected areas, specially to the soil and to the underground
water.Enunciating the doctrine of ‘Public Trust’ in M. C. Mehta vs. Kamal Nath (1997) 1
SCC 388, the SC held that resources such as air, sea, waters and the forests have such a great
importance to the people as a whole that by leasing ecologically fragile land to the Motel
management, the State Government had committed a serious breach of public trust.169

The changing trajectory of environmental rights in India, from a historical perspective

Active judicial intervention by NGOs, community groups, and others, have also set a series
of important precedence’s that go beyond what the bare laws provide. There are many
initiatives in Public Interest Litigation (PIL). Some of these include the cases against the
construction of the Tehri Dam (TehriBandhVirodhiSangharshSamiti vs. State of Uttar
Pradesh, 1992 SUP (1) SCC 44) and Narmada Dams (Narmada BachaoAndolan vs. Union of
India AIR 1999 SC 3345); against deforestation (T. N GodavarmanThirumulpad vs. Union of
India, 2000 SC 1636, a case that has since then spawned dozens orders pertaining to forests
in India); against mining in the Aravallis (Tarun Bharat Sangh, Alwar vs. Union of India
1992 SC 514, 516); against mining in the Dehra Dun hills (Rural Litigation and Entitlement

169
ibibd
 81

Kendra, Dehradun vs. State of Uttar Pradesh, 1985 SC 652); against mining in adivasi lands
of Andhra Pradesh (Samatha vs. State of Andhra Pradesh, 1997, a judgment with important
consequences for acquisition or use of adivasi lands elsewhere too); on implementation of the
Wild Life (Protection) Act 1972 (WWF vs. Union of India, WP No 337/95); on
implementation of Coastal Regulation Zone measures (Indian Council for Enviro-Legal
Action vs. Union of India, 1996(3) 579); on protection of the coastal area against destructive
practices (Prof.SergioCarvalho vs. The State of Goa and Others, 1989 (1) GLT 276); on the
right of citizens to inspect official records (this was before the Right to Information Act came
into force) (Goa Foundation and Ors. vs. North Goa Planning and Development Authority
and Ors. 1995(1) GLT 181); against forest logging and other environmental aspects of
Andaman and Nicobar Islands. The judgments in other cases have set important precedents
and directions for the further development of policy, law and practice. For instance, the
Godavarman and the WWF vs Union of India cases have led to the orders that no forest,
National Park or Sanctuary can be dereserved without the approval of the Supreme Court, no
non-forest activity is permitted in any National Park or Sanctuary even if prior approval
under the Forest (Conservation) Act, 1980 had been obtained, New authorities, committees
and agencies have been set up such as the Central Empowered Committee (CEC) and the
Compensatory Afforestation Management and Planning Agency.

Some judgments not directly related to environmental cases, also have significant
implications for the struggle to establish environment as a human right. Mention should
especially be made of a number of cases in which the Constitutional Right to Life (Article
21) has been interpreted widely to include a series of basic rights that include environment
and livelihoods. In Francis Coralie vs. Union Territory of Delhi (AIR 1981 SC 746),
Justice Bhagwati observed: “We think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare necessaries 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 co-mingling with
fellow human beings”.170

170
ibid
 82

” In Shantistar Builders vs. Narayan KhimalalTotame (AIR 1990 SC 630), the

Supreme Court said: “Basic needs of man have traditionally been accepted to be three –
food, clothing, and shelter. The right to life is guaranteed in any civilized society. That 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.” In Olga Tellis case (AIR 1986 SC 180) the
Supreme Court observed “An 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.” environmental
crisis is causing enormous disruption of lives and livelihoods, threatening the collapse of its
entire life-support system. The poor and under privileged classes of humans and the other
non- human species unfortunately have to bear the main brunt of these environmental
problems.
Ironically, the crisis is rooted deep in social, economic and political structures, more
specifically in relations of inequity of three kind’s Intra-generational inequity, Intra-
generational inequity, and Inter-species inequity. Inequities in the relations between people
and countries have also allowed the imposition of unsustainable and destructive models of
‘development’. The process of ‘development’ has been characterised by the massive
expansion of energy and resource-intensive industrial and urban activity, and major projects
like large dams, commercial forestry, and mining and chemical-intensive agriculture. The
resource demand for the economic progress of a minority of people has lead to the narrowing
of the natural resource base for the survival of the economically poor and powerless. This has
happened either by direct transfer of resources into cities and industrial complexes, or by the
destruction of life-support systems for rural communities everywhere.171

In Re Noise Pollution (V) {(2005) 5 SCC 733/Pr 10} the cries of a rape victim for
help went unheeded in the blaring noise of loudspeaker in the neighbourhood. The victim
committed suicide. Public interest litigation was filed. The court said that article 21 of the
constitution guarantees life and personal liberty to all persons… it guarantees a right of

171
Ibid
 83

persons to life with human dignity. Therein are included, all the aspects of life which go to
make a person’s life meaning full, complete and worth living. The human life has its charm
and there is no reason why the 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 which would travel beyond his precincts and cause nuisance to
neighbours 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. How and
when a nuisance created by noise becomes actionable has to be answered by reference to the
degree and the surrounding circumstances, the place and the time. 172

In Research Foundation for science Technology and Natural resources Policy

v. Union of India and Another,SC 2005, Dumping of hazardous waste, whether directions
shall be issued for destruction of consignments with a view to protect environment and, if
not, in what other manner consignments may be dealt with it was held, precautionary
principles are fully applicable to facts and circumstances of the case and only appropriate
course to protect environments is to direct destruction of consignments by incineration as
recommended by Monitoring Committee173

In Intellectuals Forum,Tirupathi v. State of AP and others(2006) 3 SCC 549,

Leave granted. The present matter raises two kinds of questions. Firstly, at a jurisprudential
level, it falls on this Court to lay down the law regarding the use of public lands or natural
resources. In this case the Court has reiterated the importance of the Doctrine of Public Trust
in maintaining sustainable development which has been declared as inalienable human right
by UN General Assembly.174

In M C Mehta v. Union of India and others, 2006 SC ,whether mining activity

carried out in Villages KhoriJamalpur and Sirohi in District Faridabad in Haryana are in
violation of the orders passed by this Court on 6th May, 2002 was in question. It was held, it

172
ibid
173
ibid
174
ibid
 84

does not appear that area in question falls under any category of prohibition for carrying out
mining activity. But another aspect that remains to be examined is about impact of mining in
the villages in question on environment, Merely on basis of photographs or plying of large
number of trucks per day, a direction can not be made for stopping mining activity
Monitoring Committee constituted in terms of directions in M.C. Mehta's case is directed to
inspect the mining activity being carried on in 75.05 hectares in village KhoriJamalpur and in
50.568 hectares in village Sirohi in Faridabad district and report the impact. In Karnataka
Industrial Areas Development Board v. C. Kenchappa and others [18] in consonance with the
principle of 'Sustainable Development', a serious endeavour has been made in the impugned
judgment to strike a golden balance between the industrial development and ecological
preservation.

Conclusion: Such wide interpretations of Article 21 by the Supreme Court have over
the years become the bedrock of environmental jurisprudence, and have served the cause of
protection of India’s environment (and to a lesser extent, of livelihoods based on the natural
environment). Adding to this is a large number of laws relating to environment, enacted over
the last few decades However, a number of groups have also pointed out that the
Constitution is deficient in that it does not explicitly provide for the citizen’s right to a clean
and safe environment. In a recent submission to the committee set up to review the
Constitution, these groups have proposed a number of amendments to the Constitution, for
ensuring environment protection and nature conservation. These include: Recognition and
incorporation of Environmental Rights as separate and independent Fundamental Rights in
the Constitution of India. These follow from the above-mentioned interpretation to the term
‘Right to Life’, as given by the Supreme Court.175

This could be further specified to include right to clean drinking water, and to a clean
and pollution-free environment. Replacement, within the Directive Principles of State Policy,
of the term ‘forest’ by the term ‘life supporting natural ecosystems’, The reason for this
suggestion is that the Courts and other authorities, including the forest departments, have
been interpreting the term forest to mean land with trees. As a result, land without trees is not

175
ibid
 85

considered as a forest and there is a lack of interest in protecting other important ecosystems
such as grasslands, deserts, marshes, mangrove, etc. With the better understanding of these
diverse ecosystems and their importance to humankind, there is a need to preserve them.
Incorporation, within the Fundamental Duties, the responsibility of panchayats and
municipalities to give due regard to ecological aspects and to protect the environment,
including life supporting natural ecosystems such as forests, rivers and lakes, and wild life, in
the preparation of plans for economic development and social justice. This would also
necessitate incorporation, into the Eleventh Schedule relating to the Panchayats, an item for
“protection of the environment and the promotion of ecological aspects”.

Thus a chronological analysis of environmental mission of the courts has been

undertaken in order to explicate the development of the ideology of environment as being
part of the right to life in the Indian context is justified from the above discussion.
Therefore it is evident that article 21 is mandate for life saving environment.

P. RIGHT OF WOMEN:176
Sexual harassment of women at workplace is a violation of articles 15 and 21. Directions
issued by the Court would have to be strictly observed until suitable legislation was enacted by
the Legislature.177
Denial of succession to Scheduled Tribe women amounts to deprivation of their right to
Livelihood under article 21. 178
While beauty contests as such may not be object ionable indecent representation of female body
or anything derogatory to women would be violative of article 21 and offend the indecent
Representation of Women Act, 1986. 179

176
Dr. Subhash c kashyap, constitutional law of India , vol I page no 681
177
Vishakha v. State of Rajasthan, A1R 1997 SC 3011: (1997) 6 SCC 241: 1997 (5) SCALE 453.
178
Madhu Kishwar v. State of BiJuar, AIR 1996 SC 1864: (1996) 5 SCC 125: (1996) SUPP I SCR 442,
179
Chandra Rajkumari v. Police Commissioner, Hyderabad. AIR 1998 AP 302.
 86

1.3 EXPANDING HORIZONS OF RIGHT TO PERSONAL LIBERTY : 180

“Personal liberty” is used in article 21 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 freedom, personal liberty in article 21 takes in and
comprises the residue. ‘Life’ in article 21 means not merely the right to the continuance of a
person’s animal existence, but a right to the possession of each of his organs—his arms and
legs etc. Is then the word ‘personal liberty’ to be construed as excluding from its purview an
invasion on the part of the police of the sanctity of a man’s home and an intrusion into his
personal security and his right to sleep which is the normal comfort and a dire necessity for
human existence even as an animal? ((In the words of the preamble, the Constitution is
designed to “assure the dignity of the individual” and cherished human values as the means
of ensuring his full development and evolution.,)The concepts underlying the Constitution
would point to such vital words as ‘personal liberty’ having to be construed in a reasonable
manner and to be attributed that sense which would promote and achieve those objectives
and by no means to stretch the meaning of the phrase to square with any preconceived
notions or doctrinaire constitutional theories.” 181
Even where a person is detained in accordance with the procedure prescribed by law, as
mandated by article 21, the protection conferred by the various clauses of article 19(1) does
not cease to be available to him and the law authorising such detention has to satisfy the test
of the applicable freedoms tinder article 19, clause (1). This would clearly show that articles
19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a
law depriving a person of personal liberty within the meaning of article 21 having to meet
the challenge of a fundamental right under article 19(1). Indeed, in that event, a law of
preventive detention which deprives a person of ‘personal liberty’ in the narrowest sense,

180
Dr. SubashKashyap, constitutional law in india,vol 1 .
181
Kharak Singli v. Stale of Uttar Pradesh, AIR 1963 SC 1295: 1963 Cr1 U 329: (1964) 1 SCR 332; Maneka
Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 scc 248: (1978) 2 SCR 621.
 87

namely, freedom from detention and thus falls indisputably within article 22 would not
require to be tested on the touchstone of clause (d) of article 19(1). It is indeed difficult to see
on what principle one can refuse to give its plain natural meaning to the expression ‘personal
liberty’ as used in article 21 and read it in a narrow and restricted sense so as to exclude those
attributes of personal liberty which are specifically dealt with in article 19. This would not be
a correct way of interpreting the provisions of the Constitution conferring fundamental
rights. The attempt of the Court should be to expand the reach and ambit of the fundamental
rights rather than attenuate their meaning and content by a process of judicial construction.
Each freedom has different dimension and these may be overlapping between different
fundamental rights and therefore it is not a valid argument to say that the expression
‘personal liberty’ in article 21 must be so interpreted as to avoid overlapping between that
article and article 19(1). 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 19.182

Surveillance may be intrusive and it may so seriously encroach on the privacy of a citizen as
to infringe his fundamental right to personal liberty guaranteed by article 21 of the
Constitution and the freedom of movement guaranteed by article 19(1) (d). That cannot be
permitted. This is recognised by the Punjab Police Rules themselves. Rule 23.7, which
prescribed the mode of surveillance, permits the close watch over the movements of the
person under surveillance but without any illegal interference. Permissible surveillance is
only to the extent of a close watch over the movements of the person tinder surveillance and
no more. So long as surveillance is for the purpose of preventing crime and is confined to the
limits prescribed by Rule 23.7 a person whose name is included in the surveillance register
cannot have a genuine cause for complaint.183
The expression “personal liberty” in article 21 takes in right of locomotion and travel abroad.
Personal liberty makes for the worth of 11w human person. Travel makes liberty worthwhile.

182
R.C. Cooper v. Union of India, AIR 1970 SC 1318; Maneka Gandhi v. Union of India, AIR 1978 SC 597:
(1978) 1 5CC 248: (1978) 2 SCR 621.
183
Malak Siugh v. Stale of Punjab, AIR 1981 SC 760: (1981) 1 SCC 420: (1981) 2 SCR 311.
 88

Life is a terrestrial opportunity for unfolding personality, rising to higher states, moving of
fresh woods and reaching out to reality, which makes our earthly journey a true fulfilment.184

A. RIGHTS OF PRISIONERS: 185

A detenu cannot be deprived of his ‘personal liberty’ of writing or publication of his books
while in detention. Refusal by jail authorities to allow a prisoner to send the Manuscript (Ms)
of his book for publication was contrary to law. On a plain reading of the article the meaning
seems to be that you cannot deprive a man of his personal liberty, unless you follow and act
according to the law which provides for deprivation of such liberty.’ Supreme Court states in
State of Maharashtra v. Prabhakar Panduran, AIR 1966 SC 424.

Convicts are not, by mere reason of the conviction, denuded of all the fundamental
rights which they otherwise possess. A compulsion under the authority of law, following
upon a conviction, to live in a prison-house entails by its own force the deprivation of
fundamental freedoms like the right to move freely throughout the territory of India or the
right to “practice” a profession. A man of profession would thus stand stripped of his right to
hold consultations while serving out his sentence. But even a convict is entitled to the
precious right guaranteed by article 21 of the Constitution that he shall not be deprived of his
life or personal liberty except according to procedure established by law. 186

Part III of the Constitution does not part company with the prisoner at the gates, and judicial
oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or
frozen by the prison authority. Judges, even within a - prison setting are the real, though
restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the
lifestyle within the careers. The operations of articles 14, 19 and 21 may be pared down for a
prisoner but not puffed out altogether. For example, public addresses by prisoners may 1w

184
Maneka Gandhi v. Union of India, AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621; Sawant Singh
Sawhney v. D. Ramarathnam, APO. MR 1967 SC 1836: (1967) 3 SCR 525: (1968) 70 Born LR 1.
185
Dr. SubashKashyap, constitutional law in india,vol 1 .page 686-88
186
D. Bhuvan Mohan Patnaik v. State’ of Andhra Pradesh. AIR 1974 SC 2092: (1975) 3 SCC 185: (1975) 2
SCR 24; Sunil Batra v. Delhi Administration, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392; State
of Maharashtra v. Prabhakar Pandurang’, AIR 1966 SC 424: 1966 Cri U 311: (1966) 1 SCR 702.
 89

put down but talking to fellow prisoners cannot. Vows of silence or taboos on writing poetry
or drawing cartoons are violative of article 19. So also, locomotion may be limited by the
needs of imprisonment but binding hand and foot, with hoops of steel, every man or woman
sentenced for a term, is doing violence to Part 1I1.187
A prisoner has a right to have his work published if it does not violate prison discipline.
Hussninara v. Home Secretary. State of Bihar, AIR 1979 SC 1377,Superme Court
discussed , An indegent person is entitled to be released on bail on personal bond without
surety if there is no substantial risk of his absconding.
From the point of view of the right to personal liberty enshrined in article 21, the right to
have interviews with members of the family and friends is clearly part of personal liberty
guaranteed under that article. The expression ‘personal liberty’ occurring in article 21 is of
the widest amplitude and it covers a variety of rights which go to constitute the personal
liberty of a man and it also includes rights which have been raised to the status of distinct
Fundamental Rights and given additional protection under article 19. There can therefore be
no doubt that ‘personal liberty’ would include the right to socialise with members of the
family and friends subject, of course, to any valid prison regulations and under articles 14
and 21, such prison regulations must be reasonable and non-arbitrary. If any prison
regulation or procedure laid down by it regulating the right to have interviews with members
of the family and friends is arbitrary or unreasonable, it would be liable to he struck down as
invalid as being violative of articles 14 and 2l188.

Use of (iron) bar fetters: 189

Article 21 must obey the prescriptions of natural justice. Reasonableness in this area also
involves some review of the action of an executive officer so that the prisoner who suffers
may be satisfied that a higher official has with detachment, satisfied himself about the
necessity to fetter him. Such administrative fairness is far more productive of order in prison
than the counterproductive alternative of requiring every security suspect to wear iron. Prison

187
Dr. SubashKashyap, constitutional law in india,vol 1 .page 688
188
Francis Coraiie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746: (1981) 1 5CC 608;
Prabha Duttt v. Union,, of India, AIR 1982 SC 6: (1982) 1 SCC 1: (1982) 1 SCR 1184; Sheela Barse v. State
of Maharashtra, AIR 1983 Sc 378: (1983) 2 SCR 96:(1983) 2 5CR 337.
189
Supra note 185
 90

disorder is the dividend from such reckless ‘discipline’ and violent administrative culture,
which myopic superintendents miss. Article 21 forbids deprivation of personal liberty
except in- accordance with the procedure established by law and curtailment of personal
liberty to such an extent as to be a negation of it would constitute deprivation. Bar fetters
make a serious inroad on the limited personal liberty which a prisoner is left with and,
therefore, before such erosion can he justified it must have the authority of law. 190
Section 56 of the Punjab Jail Manual empowers the Deputy Superintendent to put a prisoner
in irons only in.-situations of urgent necessity followed by a immediate report to the
Superintendent. Random decisions, freak impressions, mounting suspicions, subjective
satisfaction and well-grounded allergy to a particular prisoner may be insufficient. Even
though section 56 is a pre constitution measure, its application must be governed by the
imperatives of articles 14, 19 and 21. 191

Such a power, except in cases of extreme urgency difficult to imagine in a grim prison setting where
armed guards are obviously available at instant notice and watch towers vigilantly observe (save in
case of sudden riot or mutiny extraordinary), can be exercised only after giving notice and hearing
and in an unbiased manner. May be that the hearing is summary, may be that the communication of
the grounds is brief, may be that oral examination does not always take place; even so natural justice,
in its essentials, must be adhered to. It is essential that reasons must be assigned for such harsh action
and such reasons must be recorded in the history ticket of the prisoner as well as in the journal. Since
the reasons are intended to enable the petitioner to challenge, if aggrieved, the record must be in the
language of the petitioner or of the region, and not in English.’ 192
The infraction of the prisoner’s freedom by bar fetters is too serious to Interviewed lightly and the
basic features of ‘reasonableness’ must be built into the administrative process for constitutional
survival. Objectivity is essential when the shackling is prima facie shocking. Continuously keeping a
prisoner in fetters day and night reduces the prisoner from a human being to an animal, and that this
treatment is so cruel and unusual that the use of bar fetters is an anathema to the spirit of the
Constitution.193

190
Sunil Batra v. Delhi Administration. AIR 1978 SC 1675: (1978) 4 SCC 494. (1979) 1 SCR 392.
191
ibid
192
Sunil Batra v. Delhi Administration,, AIR 1978 Sc 1675: (1978) 4 SCC 494: (1979) 1 SCR 392; Mohinder
Singh Gill v. Chief Election Cornmr., AIR 1978 SC 851: (1973) 1 5CC 405; Maneka Gandhi v. Union of India,
AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621.
193
Sunil Batra v. Delhi Administration AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392
 91

Use of handcuffs : The indiscriminate resort to handcuffs when accused persons are
194

taken to and from court and the expedient of forcing irons on prison inmates are illegal and
shall be stopped forthwith save a small category of cases. Reckless handcuffing and chaining
in public degrades, puts to shame finer sensibilities and is a slur on our culture. Where an
under trial has a credible tendency for violence and escape a humanely graduated degree of
‘iron’ restraint t permissible if - only - if other disciplinary alternatives are unworkable. The
burden of proof of the ground is on the custodian. And if he fails, he will beliable in law.195

Government should frame rules or guidelines in regard to circumstance,. under which

handcuffing of the accused should be resorted to. It should be permitted only in extraordinary
circumstances.196

Solitary Confinement: 197

Solitary confinement has the severest sting and is awardable only by Court. Even a person
under death sentence has human rights which are non-negotiable and even a dangerous
prisoner, standing trial, has basic liberties which cannot be bartered away. Until decapitation,
a prisoner sentence to death is human and so should not be scotched in mind by draconian
cellular insulation or stripped of the basic fellowship which keeps the spirit flickering before
being extinguished by the swinging rope. Maneka Gandhi v. Union of india198 highlighted
this principle in the context of article 21 itself. True, our Constitution has no ‘due process’
clause or the VIII Amendment forbidding the State from imposing cruel and unusual
punishment, 199but, in this branch of law, after R.C. Cooper v. Union of India,200 and

194
Dr. SubashKashyap, constitutional law in india,vol 1 .page 686-88
195
Sunil Batra v. Delhi Administration AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392
196
. Sunil v. State of Madhya Pradesh, (1990) 3 SCC 119: (1990) 2 SC 409; Charles Sobhraj V. Suptd. Central
Jail. AIR 1978 SC 1514; Citizens for Democracy v. State of Assam; AIR 1996 SC 2193 Altimesh rein V.
Union of India, AIR 1988 SC 1768.
4. AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621.
197
Dr. SubashKashyap, constitutional law in india,vol 1 .page 686-88
198
.AIR 1978 SC 597: (1978) 1 SCC 248: (1978) 2 SCR 621
199
Jagmohan Singh v. State of UP., AIR 1973 SC 947: 1973 Cri U 370: (1973) 1 5CC 21) ()‘J’l) 2 5CR 541.
200
AIR 1970 SC 1318.
 92

Maneka Gandhi v. Union of India, the consequence is the same. For what is punitively
outrageous, scandalizingly unusual or cruel and rehabilitative counter-productive, is
unarguably unreasonable and arbitrary and is shot down by articles 14 and 19 and if inflicted
with procedural unfairness, falls foul of article 21. 201
Prisoners have a right under article 21 not to be subjected to physical or mental restraint or
any restrictions amounting to torture, pressure or infliction which is beyond that awarded by
the Court, is in excess of requirements of jail discipline or degrades human dignity.202

In Sunil Batra v. Delhi Adminislration, AIR 1978 SC 1675 Supreme Court discussed
solitary confinement at length. Solitary confinement of a prisoner tinder sentence of death on
the sole and solitary ground that the prisoner is a prisoner tinder sentence of death and total
deprivation of camaraderie amongst co-prisoners, commingling and talking and being talked
to, would offend article 21. Confinement inside a prison does not necessarily import cellular
isolation. Segregation of one person all alone in a single cell is solitary confinement. That is a
separate punishment which the Court alone can impose. Sections 73 and 74 of the Indian
Penal Code leave no room for doubt that solitary confinement is by itself a substantive
punishment which can be imposed by a Court of law. It cannot be left to the whim and
caprice of prison authorities. Sub-section (2) of section 30 of Punjab Jail Manual merely
provides for confinement of a prisoner under sentence of death in a cell apart from other
prisoners and he is to be placed by day and night under the charge of a guard. Such
confinement can neither be cellular confinement nor separate confinement and in any event it
cannot be solitary confinement. Even jail discipline inhibits solitary confinement as a
measure of jail punishment. It completely negatives any suggestion that because a prisoner is
under sentence of death therefore, and by reason of that consideration alone, the jail
authorities can impose upon him additional and separate punishment of solitary confinement.
They have no power to add to the punishment imposed by the Court which additional
punishment could have been imposed by the Court itself but has in fact been not so imposed

201
Sunil Batra v. Delhi Adminislration, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 CH 192
202
Sheela Barse v. StalL’ of Maharashtra, AIR 1983 SC 378: (1983) 2 SCR 96: (1983) 2 5CR 337 ; Sunil Batra
v. Delhi Administration, AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SR 392; Javed v State of
Mahnrashtra, AIR 1985 SC 231: 1985 (1) Crimes 913 (SC): 1984 (2) SCALE697; Sitaram v. Slate of Uttar
Pradesh AIR 1979 SC 745: (1979) 2 SCC 656: (1979) SCR 1083, Sher singh v.State of Punja1, AIR 1983 SC
465:
 93

Upon a true construction, sub-section (2) of section 30 does not empower a prison authority
to impose solitary confinement upon a prisoner under sentence to death. An analysis of the
provisions of the Penal Code and of the Prisons Act yields the clear inference that section
30(2) relates to separation without isolation, keeping apart without close confinement.

PUBLIC HANGING:

In case of Attorney General v. Lachma Devi, AIR 1986 SC 467, Supreme Court states
that , “ Execution of death sentence by public hanging is violative of article 21, which
mandates a fair, just and reasonable procedure”.

CUSTODIAL DEATH:

Custodial death has been described as one of the worst crimes in a civilized society,
governed by the rule of law.
Supreme Court Observed in ,D.K. Basu, v. State of West Bengal. AIR 1997 SC 610 that
Custodial torture is a naked violation of human dignity, the Supreme Court said. The
situation is aggravated when violence occurs within the four walls of a police station by those
who are supposed to protect citizens. The Court accepted that the police have a difficult task
in light of the deteriorating law and order situation; political turmoil; student unrest; and
terrorist and underworld activities. They agreed that the police have a legitimate right to
arrest a criminal and to interrogate her/him in the course of investigation. However, the law
does not permit the use of third degree methods or torture on an accused person. Actions of
the State must be right, just and fair; torture for extracting any kind of confession would
neither be right nor just nor fairî. (i) The Right to Life guaranteed by our Constitution
includes the right to live with human dignity. The State is not only obliged to prosecute those
who violate fundamental rights, it also has a duty to pay monetary compensation to repair the
wrong done by its agents in not being able to discharge their public duty of upholding
people’s rights. Compensation, the Court said, is not be paid by way of damages as in a civil
case [the victim is free to file a civil case to privately recover damages from the wrongdoer
for loss of earning capacity] but under public law for breach of duty by the State in not being
able to protect its citizens. However, there can be no strait-jacket formula as each case has its
 94

own peculiar facts and circumstances. (ii) The Court recognised that the worst violations of
human rights take place during investigation when the police use torture and third degree
methods to get confessions. In such instances, arrests are either disguised by not recording
them or showing detention as prolonged interrogation. The Court stressed that no matter what
the circumstances, the State or its agents are not allowed to assault or torture people. They
then laid down an elaborate set of guidelines in respect of arrest and interrogation. The Court
directed that the guidelines ñ which are given below ñ should be circulated to the Director
General of Police and the Home Secretary of every state and union territory and it shall be
their obligation to have them put up in every police station at a conspicuous place. 203

B. RIGTHT TO SPEEDY TRIAL: 204

“Every accused is entitled to a speedy trial. Unexplained and inordinate delay of the trial for
no fault of the accused is clearly a violation of article 21 of the Constitution. Expeditious trial
is a basic right of an accused which cannot be trampled upon unless it can be shown that the
accused was to blame for the delay in the trial”, stated by Supreme Court in case of Akhtari
Bi v. State of Madhya Pradesh, AIR 2001. A procedure is void if it does not provide for
speedy trial. Speedy trial is a component of personal liberty. In ordinate delay in
bringing an accused to trial or in preferring an appeal against his acquittal are violative of
article 21. Undue delay in execution of death sentence is also violative of article 21. 205

DELAYED EXECUTION:206

The rationale behind the right against delayed execution is that a prisoner who
has experienced living death for years is entitled to request the court to consider whether
after all the agony and torment he is subjected to is just and fair, to allow sentence of death
to

203
www.humanrightsinitiative.org/publications/.../humanrights_policing.pdf
204
Dr. SubashKashyap, constitutional law in india,vol 1 .page 688
205
Kartar Singh v. State of Punjab, (1994) 3 SCC 569
206
Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of Human Rights in India Through
Public Interest Litigation with special Reference to Right to Life”, Saurashtra University
 95

be executed. It is acknowledged that prolonged delay in executing a sentence of death can

make the punishment inhuman and degrading.
The right against delayed execution was recognized in T.V.Vatheeshwaran v.
State of Tamil Nadu, AIR 1983 SC 381 and developed through Sher Singh v. State of
Punjab, (1983) 2 SCC 344 and Triveni ben v. State of Gujarat, AIR 1989 SC 142 . Wherein
it was reaffirmed that long delay in execution of death sentence will entitle the condemned
prisoner to approach the court for conversion of death sentence into life imprisonment. Even
a person sentenced to death is entitled to procedural fairness. Article 21 requires that any
procedure which takes away the life and liberty must be just, fair and reasonable. Undue
delay in execution of death sentence due to delay in disposal of mercy petition would result
in mental agony to the condemned prisoner which would therefore, be violative of Article
21. This enabled public interest litigations to be brought before the court on behalf of
prisoners sentenced to death awaiting execution, in protection of the rights of such persons.

A public interest litigation was filed in Madhu Mehta v. Union of India, AIR 1989 SC 2299
,by Ms. Madhu Mehta, President of the public interest organisation called Hindustan
Andolan. It was alleged that a person who had been condemned to death in 1981 had his
mercy petition pending before the President for more than eight years. In the mean time, his
mental condition had deteriorated to such an extent that it was feared that he may commit
suicide. The Supreme Court held that undue delay in the execution of death sentence would
entitle a condemned prisoner to invoke Article 21 of the Constitution which guarantees
speedy trial. And also, there was not sufficient reason to justify the long delay of over eight
years in the disposal of the mercy petition of the condemned prisoner. The court observed
that the time and the manner in which the matter of mercy petition pending before the
President was dealt with made a sad reading and spoke of the deplorable lack of speed and
promptitude which should have been there in the disposal of the issue. Considering the fact
that the convict had already suffered much mental agony of living under the shadow of death
for long, waiting for it, the Court held that he should not suffer any longer. Therefore it
directed that the death sentence should not be carried out and it was converted into life
imprisonment.
 96

CHAPTER –IV
COMPARATIVE STUDY OF RIGHT TO LIFE
ANDPERSONAL LIBERTY
Article-21 in Indian constitution expressly forbids the executive from interfering with the life
and liberty of the individuals without the authority of law. This article secures for Indian
citizens same rights which the British citizens derive from the famous Magna Carta. Art. 21
oblige the executive to observe the “forms and rules of law when depriving individuals of
their rights to life or liberty.” Besides Art 21 individual liberty is also protected by courts by
means of writ of Habeas Corpus issued under Arts 32 and 226.
But right to liberty can nowhere be absolute. In the U. S. A., the executive may impinge
upon individual liberty if it acts in accordance with “due process of law.” In the U. S. A. the
Supreme Court examines the constitutional validity of the law under which executive actions
are taken. Executive actions are valid only if the law is constitutional. Thus the “due process”
restrains both the executive and the legislature. But in India executive actions in encroaching
upon an individual’s liberty is to be confined only within the “procedure established by law.”
The Indian Courts do not exercise the right of judicial review over criminal laws. That was
the view taken by the Indian Supreme Court in the famous case of A. K. Gopalan vs. the
State of Madras. Under this view Indian Courts could restrain only arbitrary executive
action but not arbitrary legislation.
This view prevailed till 1978 when in the case of Maneka vs. Union of India; the Supreme
Court held that procedure for depriving individual liberty in a law must not be “arbitrary,
unfair or unreasonable.” The position today is, the courts not only restrain arbitrary action
of the executive, they also examine whether the laws providing for curtailment of liberty are
“arbitrary, unfair or unreasonable.”

Before we compare need to analyse life and personal liberty status in U.S.A and
England(U.K)
 97

1.1 UNITED STATES OF AMERICA:

"Life, Liberty and the pursuit of Happiness" is a well-known phrase in the United States
Declaration of Independence. The phrase gives three examples of the "inalienable rights"
which the Declaration says has been given to all human beings by their Creator, and for
which governments are created to protect.207
Right to liberty can nowhere be absolute. In the U. S. A., the executive may impinge upon
individual liberty if it acts in accordance with “due process of law.” In the U. S. A. the
Supreme Court examines the constitutional validity of the law under which executive actions
are taken. Executive actions are valid only if the law is constitutional. Thus the “due process”
restrains both the executive and the legislature.
Civil liberties are personal guarantees and freedoms that the government cannot abridge,
either by law or by judicial interpretation. Though the scope of the term differs amongst
various countries, some examples of civil liberties include the freedom from torture, freedom
from forced disappearance, freedom of conscience, freedom of press, freedom of religion,
freedom of expression, freedom of assembly, the right to security and liberty, freedom of
speech, the right to privacy, the right to equal treatment under the law and due process, the
right to a fair trial, and the right to life. Other civil liberties include the right to own property,
the right to defend oneself, and the right to bodily integrity. Within the distinctions between
civil liberties and other types of liberty, distinctions exist between positive liberty/positive
rights and negative liberty/negative rights.
These liberties are part of fundamental rights in countries. Right to life and personal liberty is
part of it. In America these Right to life and personal liberty included in civil liberties.
The United States Constitution, especially its Bill of Rights, protects civil liberties. The
passage of the Fourteenth Amendment further protected civil liberties by introducing the
Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. Human
rights within the United States are often called civil rights, which are those rights, privileges
and immunities held by all people, in distinction to political rights, which are the rights that
inhere to those who are entitled to participate in elections, as candidates or voters.[9] Before
universal suffrage, this distinction was important, since many people were ineligible to vote
but still were considered to have the fundamental freedoms derived from the rights to life,

207
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liberty and the pursuit of happiness. This distinction is less important now that Americans
enjoy near universal suffrage, and civil liberties are now taken to include the political rights
to vote and participate in elections. Because Indian tribal governments retain sovereignty
over tribal members, the U.S. Congress in 1968 enacted a law that essentially applies most
of the protections of the Bill of Rights to tribal members, to be enforced mainly by tribal
courts.208

1.2 ENGLAND
Civil liberties in the United Kingdom have a long and formative history. This is usually
considered to have begun with Magna Carta of 1215, a landmark document in British
constitutional history. Development of civil liberties advanced in common law and in statute
law in 17th and 18th centuries, notably with the Bill of Rights 1689. During the 19th
century, working-class people struggled to win the right to vote and join trade unions.
Parliament responded with new legislation, and attitudes to universal suffrage and liberties
progressed further in the aftermath of the first and second world wars. Since then, the United
Kingdom's relationship to civil liberties has been mediated through its membership of the
European Convention on Human Rights. The United Kingdom, through Sir David Maxwell-
Fyfe, led the drafting of the Convention, which expresses a traditional civil libertarian
theory. It became directly applicable in UK law with the enactment of the Human Rights Act
1998.

The relationship between human rights and civil liberties is often seen as two sides of the
same coin. A right is something you may demand of someone, while a liberty is freedom
from interference by another in your presumed rights. However, human rights are broader. In
the numerous documents around the world, they involve more substantive moral assertions
on what is necessary, for instance, for "life, liberty and the pursuit of happiness", "to develop
one's personality to the fullest potential" or "protect inviolable dignity". "Civil liberties" are
certainly that, but they are distinctly civil, and relate to participation in public life. As
Professor Conor Gearty writes,

208
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 99

Civil liberties is another name for the political freedoms that we must have available to us all
if it to be true to say of us that we live in a society that adheres to the principle of
representative, or democratic, government.
In other words, civil liberties are the "rights" or "freedoms" which underpin democracy. This
usually means the right to vote, the right to life, the prohibition on torture, security of the
person, the right to personal liberty and due process of law, freedom of expression and
freedom of association.209
Therefore, we can say that right to life and liberty are equally valued in both countries
constitution. These rights increased with time in these countries as in India, so many new
facets became part of these rights. Nevertheless, we find these rights very vastly in Indian
constitution. These rights are developing with new challenges faced by judiciary in India as
well as in America and England. These rights are in we found in England magna carta and in
America in bill of rights. These rights are equally cherished and nourished in these countries.
India as developing country still need to strengthen their application.

209
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CHAPTER-V
CONCLUSION AND SUGGESTIONS
Article 21 yarns an endless and doubtless saga of welfare piece of legislation; its extent with
time. It redefined and re-extended its meaning and scope. No fundamental right ever
interpreted widely and liberally as of article 21. Judicial activism saw as the key to public
welfare in all lines of action. We have seen vast role of judicial activism in Article -21
context. New interpretation and meaning of right to life and liberty came in picture expanded
its horizon.
No legal provision has ever more controversial than Article 21 of the constitution, which
provides for ‘right to life and personal liberty’ with so many colours hidden in it and it
interpreted widely as so many facets and new colour of life and personal liberty comes in.
As provided in constitution, ‘No person shall be deprived of his life or personal liberty
except according to procedure established by law.’ New judicial interpretation that has given
enormous dimensions to this article and give new meaning to each word and increased it
beyond its limited sense.
In case of ‘Chairman, Railway Board v. ChandrimaDas’.210, concept and meaning of life
and personal liberty was interpreted broadly. where by the apex court went on record and
stated that even though Article 21 is in scheme of the fundamental rights gathered by the
constitution and citizens of India avail these rights only, Article -21 is exceptionally
applicable even to foreigners. It is imperative to make a distinction between a citizen and a
non-citizen, as it is a question beyond any doubt that Article 14 of the constitution is
applicable even to non-citizens such as a ‘company’ , Article 21 restricts itself to citizens
and as far as non-citizens are concerned to foreigners, not to a company.
Right to life and personal liberty is the most exquisite and essential fundamental human
rights around which other rights of the individual swivel and, therefore, the study assume
great significance. The study of Right to Life is in fact a study of the Supreme Court role
guardian of fundamental rights. Article 21 is the idol provision of the Indian Constitution and
occupies a distinctive place as a fundamental right. It guarantees right to life and personal
liberty to citizens and as well as aliens and is enforceable against the State. The new

210
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interpretation of Article 21 in Maneka Gandhi’s case has leaded a new era where right to life
and personal liberty horizons expand. The broad and liberal facet came into the view in
respect of these rights, now covers various aspects which the founding fathers of the
Constitution might or might not have foreseen.
Fundamental rights enshrined in part III of the Constitution form the spirit of the Supreme
Law, protection to the same is offered by article 32 and 226, the writ jurisdiction of the
Supreme Court and the High Court respectively. Here so far as article 21 is concerned by
way of judicial interpretation and activism a new branch of rights have aroused over the
decade—reason for this is that so far as the scheme of Indian Constitution is concerned
judicial decisions so rendered by the Supreme Court have the force of being the ‘law of the
land’.211
A set of exhaustive rights that article 21 in matter and in spirit is capable of offering is
as follows:212
SERIAL NO. Rights offered under case laws in which the right got
Article 21. Recognised.
1. Right to food People’s Union for Civil Liberties
v.
UOI
2. Right to shelter Chameli Singh v. State of U.P.
3. Right to livelihood OlegaTellis v. Bombay Municipal
Corporation
4. Right to education Mohini Jain v. State of Karnataka;

Unni Krishnan v. State of A.P.

5. Right to clean environment M.C.Mehta v. UOI
6. Right to privacy Govind v. State of M.P.
7. Right to marriage Lata Singh v. State of U.P.
8. Right to travel abroad Maneka Gandhi v. UOI

211
http://www.legalservicesindia.com/article/article/article-21-the-omnibus-article-1196-1.html
212
ibid
 102

9. Right to live with human Maneka Gandhi v. UOI

Dignity
10. Right against bondage BandhuMuktiMorcha v. UOI
11. Right to emergency ParmanandKatara v. UOI
medical aid
NHRC
12. Right, not to be driven v.

out of a state State of Arunachal Pradesh

The rights so mentioned above are regal in sense and spirit. Apart from these, the apex
court to nomenclature few other rights by way of judicial interpretation. These are as
follows:213

Right to speedy trial (SheelaBarse v. UOI)

Right against prison torture and custodial death (Sunil Batra v. Delhi

Administration) Right to compensation for illegal – unlawful detention (Rudal Shah

v. State of Bihar) Right against handcuffing (Prem Shankar Shukla v. Delhi

Administration)

Right against bar fetters (Charles Sobhraj v. Suptd. Central Jail)

Right against solitary confinement (Sunil Batra v. Delhi Administration)

It is very necessary to note that in a democracy no right is absolute. All rights are subject to
reasonable restrictions of: morality, health, public order, state security, public safety & public
policy.

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

213
ibid
 103

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.214

Facets of Article-21 increased in above mentioned cases. Further add when question arises
‘Is right to life inclusive of right to die? In case of Gian Kaur v. State of Punjab, here it
was held that word ‘life’ is to be read in consonance with word ‘dignity’ so far as article 21 is
concerned, but right to life in no stretch on imagination shall include right to die. ‘Right to
life’ means ‘right to life with human dignity’ and not mere animal existence and in
ArunaShanbaug case where by the apex court for the first time legalise to the concept of
euthanasia or mercy killing in some form with conditions. A person in a persistent vegetative
state (PVC), deriving his existence from life support system can apply for euthanasia by
merely removing the life support system.
Hence, forth we can say that with social and psychosomatic development of the
society, Article 21 is witnessing remarkable development—truly, it is welfare legislation.
Article 21 and Sec. 377, IPCalso comes into the new facet of life and personal liberty when
in July 2009 that a judgement of Delhi High Court gave green signal to consensual sexual
intercourse between same sex adults but the judgement gathered a lot of fume and criticism.
Article 21 gets new judicial interpretation and was the crux of the judgement. Unfortunately,
Supreme Court bench reversed the Delhi High Court's 2009 decision and held sec-377 of
Indian penal code criminalised. As a three judge bench decision of the SC (comprising of
Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan) offered legality to live in
relationships and pre-marital sex, late in March 2010, stating that Article 21 is not only a
welfare piece of legislation but also a progressive piece of legislation. 215

Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be given only in rarest of rare cases;
whereby the facts and circumstances of the case are so grave that they intrinsically shock the
conscience of the court. In addition, this provision provides that-- the bench heading the
particular case needs to give ‘reasons’ for their decision in case the punishment rendered is

214
ibid
215
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 104

life imprisonment and ‘special reasons’ in case the punishment rendered is death penalty. In
case of Bishnu Deo Shaw v. State of West Bengal, Supreme Court held that ‘life
imprisonment is the rule and death penalty is an exception’ – also that death penalty is ultra
vires of the constitutional mandate- Article 21. However, there have been cases where by
death penalty had upheld as a matter to meet the ends of justice, cases ranging from Bachan
Singh v. State of Punjab to Machhi Singh v. State of Punjab and Dhananjoy Chatterjee
v. State of West Bengal. The ‘abolitionist’ argue that- crime breeds crime and murder breeds
murder, murder and capital punishment are not opposites that cancel out each other but are of
same kind.216 Great importance was given to Article 21 while deciding such cases.However,
all fundamental rights are subject to reasonable restrictions of public order, morality, health,
public safety and state security and Article 21 is no exception.

Facts on record indicate capital punishment needs to be retained, so far as ethicality of death
penin regards to Article21 is concerned- sec.354(3) of C.R.P.C., 1973 in matter and in spirit
is enough to take care of that, as words used in the section are farsighted and far-reaching.217
Therefore, we can say that with new judicial interpretation we can see direct correlation
between right to life and personal liberty. Where we talk about right of accused, prisoners’
rights, right to privacy,etc .We took both life and personal liberty in consideration as
fundamental human rights. Consequently,hypothesis one is right that there is relation
between right to life and personal liberty.
Second hypothesis ispositive, as Article 21 covers the entire fundamental rights of
Individuals is somewhat true. While we analyse all fundamental rights Article 12-35 find that
all somewhere promote right to life and personal liberty. As new horizons are coming in
soon it will cover fundamental rights of Individuals. InManeka Gandhi v union of Indiaand
A.KGopalan v state of Madras we discuss about right to life and liberty at length and in
further cases.
Third hypothesis is positive as under privileged (poor’s or weaker) was benefited by Article-
21. We find that right to legal aid, right to health, right to shelter etc add into the meaning
by new judicial interpretations in cases above mentioned benefitting the under privileged.

216
ibid
217
ibid
 105

Fourth hypothesis is also positive as there isneed to re-evaluate the position of right to life
and personal liberty is right. Still with expanding horizon so many facets of lifeand personal
liberty needs to camesinto the picture. Like gay rights, NARCO test analysis etc.
India is developing a country so position of right to life and personal liberty is widened but
not strong as in other countries in application. We need to strengthen its spirit.

SUGGESTIONS
On the basis of above information, there were some suggestions:
Article-21 is very strong fundamental right without which life is not possible even
new horizons are adding to it. We need to act with caution because it’s also crucial one. We
need to follow the rule of natural justice while giving new meaning to it. Reasonable
restrictions are there over them but we cannot deny principle of natural justice in shade of it.
Supreme Court in 2013 was criminalised Sec 377 of IPC as it isagainst public policy. We
cannot forget life and personal liberty meaning is very vast and extending further. It opens
new way for debate.

Poor and weaker section of society is get benefited by it but still not to the measure,
it needs to be in reality. There is reservation as right given to backward to uplift theirliving
and status.There is right to legal aid, shelteretc comes into ambit of article 21 but we also
need to checktheir effectiveness in reality.

Developing country like India needed to implement it effectively because welfare

and development of society is depending on the status of life and liberty in country. If life
and liberty will not protected by state, it will lead to anarchy and diminish the fundamental
human rights without which life is no life.
For the sake of psychological and social need of society life and personal liberty
horizon needs toexpand because society is going through changes so the need of it.
Therefore, legislation must be up to date for welfare.

Life and liberty somewhere covers all fundamental rights so they need to effective
and their expansion based on natural justice otherwise it will diminish the spirit of
constitution.
 106

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1. Bansal, V.K. Right to Life and Personal Liberty in India, (New Delhi: Deep
and Deep Publications, 1987).
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3. Jain , M.P , Indian constitutional law, 7th Edition,lexis-nexis,2014
4. Hidayatullah, M. (Ed.). Constitutional Law in India, Vol.I, (New Delhi:Arnold
Heinemann, 1984).
5. Chander, Shailaja. Justice V.R. Krishna Iyer on Fundamental Rights and
6. Directive Principles, (New Delhi: Deep And Deep Publications, 1992).
7. Basu, Durga Das. Human Rights in Constitutional Law, (New Delhi:
Wadhwa And Company Nagpur, 2003).
8. Gururajacharya, K. Supreme Court Selected Leading Cases, (Allahabad:
Wadhwa and Company, 1999).
9. Krishna Iyer, J., The Dialectics and Dynamics of Human Rights in India,
(Calcutta: Eastern Law
10. International Law - Essays in Memory of Late Subrata Roy Chowdhury,
(Bangalore: National Law School of India University)
11. FaliS.Nariman, “Protection of Personal Liberty in India”, in Reflections on
Emerging
12.M.J. Antony, “Annual Digest of Human Rights Judgments” (2002)
13.N.V.Anandram, “Situating Human Rights in the Media”, in Human
Rights in India Historical Socialand Political Perspectives. Chiranjivi J.
Nirmal (Ed.), (New Delhi: Oxford University Press, 2000)
14. “Compensation for Arbitrary Arrest and Custodial Death; A Basic
Human Right” (2000) C.U.L.R.Vol.XXIII.
15. Preamble to the Constitution of World Health Organisation (WHO).
 107

16. DivyaBhardwaj , “Right to Privacy : Are We Ready for it,” AIR 2004Journal.
17. Nirvani, Sharada T., 2005, “A Critical Study of Judicial Enforcement of Human
Rights in India Through Public Interest Litigation with specialReference to Right to
Life”, Saurashtra University.

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7. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296804
8. http://en.wikipedia.org/wiki/Fundamental_rights_in_India
9. http://www.brainyquote.com/quotes/authors/b/b_r_ambedkar.html#eSYeFVheiQAVr
Osz.99
10. http://www.legalserviceindia.com/articles/art222.htm
11. http://www.meritnation.com/ask-answer/question/s-article-21-of-the-constitution-
say/understanding-our-criminal-justice-system/8988155
12. http://www.meritnation.com/ supra 23
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15. shodhganga.inflibnet.ac.in/handle/10603/13812
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17. http://en.wikipedia.org/wiki/Civil_liberties#United_States
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%252C_Directive_Principles_and_Fundamental_Du ties_of_India.htm.
 108

APPENDIX
PART III FUNDAMENTAL RIGHTS

Definition.—In this Part, unless the context otherwise requires, “the State” includes the
Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of
the Government of India. 13. Laws inconsistent with or in derogation of the fundamental
rights.—(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to
the extent of such inconsistency, be void. (2) The State shall not make any law which takes
away or abridges the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void. (3) In this article, unless the context
otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of law; (b) “laws in
force” includes laws passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at
all or in particular areas. (4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368. Right to Equality 14. Equality before law.—The State
shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India. 15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on
grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to— (a) access to shops, public
restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing
ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to
the use of the general public. (3) Nothing in this article shall prevent the State from making any special
provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent
the State from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this
article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally backward classes of citizens
or for the
 109

Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission
to educational institutions including private educational institutions, whether aided or unaided by the
State, other than the minority educational institutions referred to in clause (1) of article 30. 16.

Equality of opportunity in matters of public employment.—(1) There shall be equality of opportunity

for all citizens in matters relating to employment or appointment to any office under the State. (2) No
citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the
State. (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to
a class or classes of employment or appointment to an office under the Government of, or any local or
other authority within, a State or Union territory, any requirement as to residence within that State or
Union territory prior to such employment or appointment. (4) Nothing in this article shall prevent the
State from making any provision for the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, is not adequately represented in the
services under the State. (4A) Nothing in this article shall prevent the State from making any provision
for reservation in matters of promotion, with consequential seniority, to any class or classes of posts
in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in
the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any provision for reservation
made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding
year or years and such class of vacancies shall not be considered together with the vacancies of the
year in which they are being filled up for determining the ceiling of fifty per cent.reservation on total
number of vacancies of that year. (5) Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of any religious or
denominational institution or any member of the governing body thereof shall be a person professing
a particular religion or belonging to a particular denomination. 17. Abolition of Untouchability.—
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of “Untouchability” shall be an offence punishable in accordance with law. 18.
Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the
State. (2) No citizen of India shall accept any title from any foreign State. (3) No person who is not a
citizen of India shall, while he holds any office of profit or trust under the State, accept without the
consent of the President any title from any foreign State. (4) No person holding any office of profit or
trust under the State shall, without the consent of the President, accept any present, emolument, or
office of any kind from or under any foreign State. Right to Freedom 19. Protection of certain rights
regarding freedom of speech, etc.— (1) All citizens shall have the right— (a) to freedom of speech and
expression; (b) to assemble peaceably and without arms; (c) to form
 110

associations or unions; (d) to move freely throughout the territory of India (e) to reside and
settle in any part of the territory of India; and * * * * * (g) to practise any profession, or to carry
on any occupation, trade or business.(2) Nothing in sub-clause (a) of clause (1) shall affect the
operation of any existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in relation to contempt of
court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause
shall affect the operation of any existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of the sovereignty and integrity of India or public
order, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (4)
Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so
far as it imposes, or prevent the State from making any law imposing, in the interests of the
sovereignty and integrity of India or public order or morality, reasonable restrictions on the
exercise of the right conferred by the said sub-clause
 111

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 113

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 115

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108. (1997) I SCC 301; AIR 1997 SC 568.
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118. Kharak Singli v. Stale of Uttar Pradesh, AIR 1963 SC 1295: 1963 Cr1 U 329: (1964) 1 SCR 332;
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 116

1
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