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Article 21 – Protection of life and liberty under the Indian Constitution: A bundle of Rights

Introduction 

Our Constitution framers made sure that the citizens of India enjoy some basic human rights, and thus, the fundamental rights enshrined under part III of the Indian Constitution have been borrowed from the U.S.A’s Bill of rights. It was also due to the adoption of the Universal Declaration of Human Rights by UN General Assembly in 1948, under which all the member state, including India, have pledged themselves to achieve, respect, and observance of human rights and fundamental freedoms; the constitutional framers wanted to protect the citizens from the arbitrary executive and legislative actions and to protect their dignity and liberty; thus, Part III was inserted in the Constitution.

 Article 21 is one of the supreme and extensive rights of all the Fundamental Rights. Almost every new right which emerges through the Supreme Court’s Judgments finds a place under Article 21. This article can take every new fundamental right under its ambit. The right to life and personal liberty is very essential for human dignity and contains all the rights without which a person cannot survive. 

The present article deals with the comprehensive analysis of Article 21 and includes all the landmark Judgments which added various new rights under this Article. 

What is Article 21? 

Article 21 is one of the fundamental rights guaranteed by the Indian Constitution. It is available to Foreigners too. It states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Thus, it comprises of

  1. Right to Life
  2. Right to Personal Liberty.

Right to life is a right that makes other fundamental rights exist; as, if a person does not have a right to life, how can other rights exist with him. The Judiciary time and again progressively interpreted the terms of this Article and through its Judgments added Right to Education, Right to clean environment, Right to shelter, Right to Food, Right to privacy, Right to reputation, Right to the Internet, Right to live with dignity, Right to information, Right to go abroad, Right to publicity, etc. under it.

In Munn v.Illinois, Justice Field elucidated that the term ‘life’ is very wide and is more than mere animal existence and the term ‘liberty’ is not just physical restraint but is more than that. In India, the same observations were made in Kharak Singh v. State of UP and again reiterated in Sunil Batra v. Delhi Administration.

In the case of Francis Coralie Mullin v. Union Territory Of Delhi, the Supreme Court held that right to live with human dignity, the right to necessities like nutrition, shelter, clothing, etc. comes under the right to life under Article 21. Through this Judgment, the real meaning of ‘right to life took rebirth in the form of ‘right to life with human dignity

The Supreme Court has strictly interpreted earlier right to personal liberty and in A.K Gopalan v. State of Madras the Court refused to do a liberal interpretation of the constitutional provisions and gave narrow constructions to the terms like “personal liberty” and “procedure established by law”.

However, in Kharak Singh v. State of UP, the Apex Court changed the narrower approach of interpretation and held that the term ‘Personal Liberty’ not just includes only freedom from physical restraint but all other aspects of liberty which are not included under Article 19.

Is procedure established by law the same as due process of law?

The right to life and personal liberty is not an absolute right and the state can impose reasonable restrictions through its adopted procedure. If the term “procedure established by law” is strictly interpreted then it means that a person’s life can be taken away and nobody can question that if the parliament by law approves it.

In the case of due process of law which is present in the U.S constitution, the procedure which has been established by law needs to be fair, just, and reasonable, i.e. it must not violate principles of natural justice. Principal of natural justice is a part of the basic structure of our constitution and cannot be compromised at any cost. Therefore, the procedure established by law under Article 21 is to be read the same as due process of law. Any law passed that curtails the right to life and liberty of an individual can be challenged if its not just, fair or reasonable. Therefore, it can be said that Procedure established by law under the Indian Constitution is the same as due process of law under the U.S Constitution.

Due Process of Law = Procedure established by Law + Principles of Natural Justice 

Thus, if the Parliament brings any law to restrict the right to life or personal liberty under Article 21 then it can very well pass such law; provided, such law must not violate the principles of natural Justice i.e. it must be reasonable, fair, and just, and cannot be arbitrary.

Different Rights which are subsumed under Article 21 

There are a plethora of rights that are added under Article 21 as they inherently fall under this Article and with every Judgment Supreme Court of India kept on increasing the ambit of Article 21.

Let’s observe every Judgment one by one.

A. Right to go abroad:

In Satwant Singh v Assistant Passport Officer, the Court included the right to go abroad under the right to personal liberty. The passport authorities have been insisted to adopt a fair procedure to regulate the issuance and denial of passports. After this Judgment, the Parliament enacted the Indian Passports Act,1967 to adopt a proper procedure for applying for passports and laying down the eligibility for applying for a passport.

In Maneka Gandhi v. Union Of India, the authorities have impounded her passport and did not provide her any hearing before such impounding. Thus, she approached the Court on the ground that her right to personal liberty has been violated. 

The Supreme Court broadly interpreted the word personal liberty and even read procedure established by law as due process of law. They gave a different view than before, that personal liberty includes all other rights not protected under article 19 and observed that the view needs to be, that when a law circumscribes personal liberty, it should be examined whether the restriction on personal liberty is restricting all other rights under Article 19.

The Court held that the right to personal liberty comprises of a variety of rights including those guaranteed under Article 19 and the right to go abroad is also one of them. Thus, any law depriving a person of his liberty needs to pass the test of Article 21 and Article 19. A complete meaning to the term right to personal liberty is achieved through this Judgment.

This Judgment completely changes the interpretation of the Article 21 and subsequently fundamental rights were being interpreted in their true spirits. Now, the Courts started applying the concept of due process of law in reading procedures established by law.

B. Right to live in a healthy environment: In Vellore Citizens, Welfare Forum v Union of India the Apex Court applied precautionary principle and polluter pays principle and observed them be an indispensable part of the environment law of India. The Court held that the state is bound to protect the environment and every person has a right to live in a pollution-free environment.

Similarly, the Supreme Court in Rural Litigation and Entitlement Kendra, Dehradun v. the State of UP also called as Doon Valley case stopped the limestone mining in the hilly areas which was causing environmental damage . Further, they ordered the polluters to pay the price to the sufferers and safeguard the people’s right to live in a healthy environment by bearing the cost of reversing the damage.

C. Right to Education: Despite having a separate Article 21 A as the right to education, Article 21 also incorporates this right. In the case of Bandhua Mukti Morcha v. U.O.I. The Supreme Court held the right to education to be a part of the right to life.

In Mohini Jain v. State of Karnataka, the Supreme Court discussed the combined effect of Articles 21,38, 41,45 which binds the state to provide compulsory education to its citizens to assure them a dignified life.

In J.P Unnikrishnan v. the State of A.P, the Supreme Court limited the scope of the Mohini Jain’s Judgment and held that education is required to be provided according to the directive principles of state policy under Article 45 and 41 which requires state to provide free education up to the age of 14 years. Therefore, after 14 years, free education becomes subject to the state’s financial capacity.

D. Right to Privacy: This right was earlier not considered to be a fundamental right but with each passing Judgment it finally got a place under Article 21.

In the case of MP Sharma v. Satish Sharma, the Dalmia group was accused of doing malpractices, and Govt. order for investigation. The Company alleged that in this investigation their private documents are also been seen and thus, it is a violation of their right to privacy. The 8 Judge bench of the Supreme Court held that for public security the state has an overriding power of search and seizure. Further, the right to privacy is nowhere mentioned under the Indian Constitution like the U.S constitution. 

In Kharak Singh v. State of UP, the petitioner was arrested for dacoity and was acquitted due to no substantial evidence against him. The U.P police use UP Police surveillance regulations on him and under it anyone coming to his house can be assumed to be a suspect, the police can do domiciliary visits at any time and ask him to come to the police station and also track his movements. The petitioner filed a writ petition as his Fundamental right to movement and privacy were being violated.

The Supreme court 6 Judge bench held that domiciliary visits are unconstitutional and other regulations are valid and the right to privacy is not a fundamental right. Further, the Right to movement can only be violated when a physical restriction is imposed. Justice Subba Rao gave a dissenting opinion and said that if any movement of a person is being tracked then how come that will be a free movement.

Thus, both of these Cases did not recognize the right to privacy as a fundamental right.

Though, in Govind v. State of M.Pa small bench of the Supreme Court observed that the privacy and dignity claims are required to be examined with care and can only be denied when an important overriding interest is shown to be superior. Thus, the Right to privacy was recognized to be one of the basic human rights.

After this in the case of People’s Union for Civil Liberties v. U.O.I famously called as telephone tapping case, Section 5(2) of the Indian Telegraph Act,1885 was challenged which gives Govt. powers to phone tapping and interception for public safety and emergency, the Supreme Court held that wiretapping is regarded as a violation of privacy. 

A telephonic conversation is an intimate affair and lays down that telephone tapping will violate a person’s right to privacy if conducted without reasonable procedure established by law. The right to privacy was recognized as a fundamental right and is covered under Article 21. Rule 419(A)of the Indian Telegraph Rules was codified and lay down that only the union secretary or the home secretary can authorize phone tapping only under unavoidable circumstances. It is only allowed in case of a public emergency or security.

In the Landmark case of Justice K.S Puttaswamy v. U.O.I famously known as the Adhaar case, the 9 Judge bench of Supreme Court unanimously held that Indian Citizens have a fundamental right to privacy is covered under Article 21. To protect the right to privacy a separate declaration is not required and it is very well protected under Articles 14,19 and 21 of the Constitution.

E. Further, the Right to publicity, i.e., an individual’s right to prevent commercial use of his identity such as signature, name, voice, images, etc., is a built-in right to privacy under Article 19 and Article 21.

F. Right to life and Right to die: For the first time in the case of P. Rathinam v. Union Of India, the Supreme Court declared Section 309 IPC, 1860 which lays down the punishment for attempting to commit suicide as unconstitutional does not cause harm to other people.

However, in Gian Kaur v. State of Punjab, the validity of Section 306 of the IPC i.e. abetment of suicide was in question. The Court overruled P.Rathinam’s case but the court observed that in the case of a terminally ill patient or one in the Permanent vegetative state, the right to die is not a termination of life in advance but rather accelerating the process of death which has already commenced. 

Further, it was also submitted that right to die is not included under the right to life, and the right to live with human dignity means the existence of such right up to the end of natural life.

In Aruna Ramchandra shaunbaug v. Union of India , the Apex Court legalized passive Euthanasia and recognized the right to die with dignity under Article 21. Under Article 226 the High Courts have powers to pass appropriate orders on the petition filed by the Relatives, Doctors, or hospital staff praying for permission to withdraw life support of a patient who is in a permanent vegetative state and cannot give consent. The Court also recognized the concept of living will i.e. an Advanced healthcare directive in the case of Common Cause v. U.O.I.

G. Right to Marry: This right has been recognized as a fundamental right under Article21 in the case of Lata Singh v. State of U.P. A major person has the right to choose and to live his/her life with whoever he/she wants.

H. Right to the Internet: In 2016, UNHRC has opined that the Right to the Internet should be made a fundamental right. In the case of Faheema Shirirn R.K. v.State of Kerala, the Kerala High Court held that the Right to access the Internet is a fundamental right and connected to the right to privacy under Article 21 the right to education under Article 21 and 21A.

In the other case of Anuradha Bhasin v. U.O.I, the Supreme Court held that Internet services cannot be disrupted for an indefinite period and a balance is required to be maintained between national security and human rights. Further, a temporary ban on services can be imposed due to any immediate threat or security concerns. After this 2G internet was allowed in J&K.

After this Judgment, in another case on the internet ban i.e. Foundation of Media Professionals v. U.O.I (4G case)held that such bans on the Internet violate the right to education, profession, health, and many more fundamental rights. Further, SC issued direction to resume 4G services in J&K. Central Government after many discussions, on a trial basis resumed 4 G services in limited areas of J&K.

Conclusion

The right to life and personal liberty under Article 21 is one of the most basic and important rights for the dignity and existence of human beings. It cannot be even suspended during the National Emergency. The meaning of the right to life and personal liberty is so wide that it can subsume every new fundamental right under it. Article 21 forms a golden triangle with Article 14 and Article 19, as these three rights are the most important ones and also the part of the basic structure of our constitution; thus, they cannot be amended and no law can be passed if they violate any of these three rights specifically. The following rights are also observed as fundamental rights under Article 21; Right to legal aid, Right to a speedy and fair trial, Right against Illegal detention, Right to reputation also Death by Hanging not is not violative of Article 21.

Endnotes

  1. INDIA CONST. art. 21.
  2. Munn v.Illinois, 94 U.S.113(1876).
  3. Kharak Singh v. State of UP,  AIR 1963 SC 1295.
  4. Sunil Batra v. Delhi Administration, AIR 1978SC 1675.
  5. Francis Coralie Mullin v. Union Territory Of Delhi, AIR 1981 SC 746.
  6. A.K Gopalan v.State of Madras, AIR 1950 SC 27.
  7. Supra  note 3 at 2.
  8. Satwant Singh v Assistant Passport Officer, AIR 1967 SC 1836.
  9. Maneka Gandhi v. Union Of India, AIR 1978 SC 597.
  10. Vellore Citizens, Welfare Forum v India, AIR 1996 SC 2715.
  11. Rural Litigation and Entitlement Kendra, Dehradun v. the State of UP, AIR 1989 SC 594  
  12. Bandhua Mukti Morcha v.U.OI,  AIR 1984 SC 802.
  13. Mohini Jain v. State of Karnataka,  AIR 1992 SC 1858.
  14. J.P Unnikrishnan v. the State of A.P, AIR 1993 SC 2178.
  15. MP Sharma v. Satish Sharma, (1954) 1 SCR 1077
  16. Supra note 3 at 2
  17. Govind v. State of M.P, 1975 AIR 1378
  18. People’s Union for Civil Liberties v. U.O.I, AIR 1997 SC 568.  
  19. Justice K.S Puttaswamy v. U.O.I, (2017) 10 SCC 1
  20. P. Rathinam v. Union Of India, AIR 1994 SC 1844 
  21. Gian Kaur v. State of Punjab, AIR 1996 SC 946.
  22. Aruna Ramchandra Shaunbaug v. Union of India, (2011) 4 SCC 454 
  23. Common Cause v. U.O.I, (2014) 5 SCC 338
  24. Lata Singh v. State of U.P,  AIR 2006 SC 2522.
  25. Faheema Shirirn R.K. v. State of Kerala, 2019(2) KHC 220
  26. Anuradha Bhasin v. U.O.I, 2020 SCC ONline SC 25
  27. Foundation of Media Professionals v. U.O.I, 2020 SCC online SC 453

This article has been written by Apoorva Goel, from Bharati Vidyapeeth University, Department of Law. 

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