PROGRESSION OF ARTICLE-21: THE FUNDAMENTAL RIGHT TO LIFE AND PERSONAL LIBERTY (By: Nitya Paliwal)
PROGRESSION
OF ARTICLE-21: THE FUNDAMENTAL RIGHT TO LIFE AND PERSONAL LIBERTY
By: Nitya Paliwal BBALLB(H)
“There isn’t anything that should ever be considered permanent, as everything is evolving or changing in some way.” ? Steven Redhead
INTRODUCTION
The Right to Life and Personal Liberty have a vast reach which has been
expanding over time. There has been
an increasing consciousness about the facets of a person?s life which would enhance the quality
of life of a person. The right to
life and personal liberty have been
called the “heart and soul” of the Constitution of India by the Supreme Court and beyond any doubt, it
proves to be so by representing the very basic essentialities of human life.
Rights evolve and gain importance over others based on circumstances, and
thus, the Supreme Law should try to
create space to accommodate such developments. The Indian Judiciary has shown its pro-activeness as the Courts now are using new strategies
to enforce the fundamental rights and transform the whole society with its changing
needs.
The broad scope given to Art. 21 safeguards a variety of issues that the
framers of the Constitution might or
might not have envisaged. The phrase “procedure established by law” bears a resemblance to the 5th
Amendment of the United States Constitution.1 Despite thefact that the term "due" is not mentioned
in Art.21, the Supreme Court has construed it in a broad and dynamic fashion
in several rulings.
The judgment of the Constitutional Bench in Maneka Gandhi?s Case, which
overruled Gopalan?s case, became the initial point, the springboard, for a magnificent development of the law relating
to judicial intervention in human rights
cases. The new interpretation of Article 21 in Maneka Gandhi?s case has ushered a
new era of expansion of the
horizons of the right to
life and personal liberty.
Following Maneka Gandhi's case,
the Supreme Court gave Article 21 new life by
subjecting state actions that interfere with a person's right to life
and liberty to a test of reasonableness,
requiring not only that the procedures be approved by law, but also that they are "just, fair, and
reasonable." This evolution
opened the door for a substantive
re- interpretation of constitutional and legal guarantees as well as positive judicial
intervention.2 The decision
given by the Supreme
Court, in this case, is historic
as for the first time the right to life and personal liberty received a wider interpretation.
Maneka Gandhi's case recognized that the phrase 'liberty' in Article 21 has an implied
substantive component that protects individual freedom from excessive or arbitrary
restrictions.3 The Indian judiciary's humanitarian approach to the interpretation
and application of Article 21, in this case, grew leaps and bounds, paving the way for a citizen's multi-faceted development. This also paved
the way for a significant rise in
the constitutional protection
of human rights in India under the aegis of the Public
Interest Litigation movement
(PIL).4
In the case of Unni Krishnan v.
State of A.P., the extended reach of Article 21 was further defined. It was noted in this judgement that Art 21 is the heart of the Fundamental Right. In this case, the scope
of Art 21 was broadened by noting that the right
to education stems from the right to life. The court published a list of some
of the rights that fall under Article 21's protection.
RIGHTS THAT FORM PART OF ARTICLE 21
Some of the rights which have emerged
as a result of the expansion of the scope of the right to life andpersonal liberty have been discussed in a nutshell:
1.
Right to Travel Abroad
The petitioner in Satwant Singh v.
Assistant Passport Officer, New Delhi,5 was ordered by the government to surrender his
passport since he travelled overseas frequently for business.
The government's decision
was contested because
it violated Article 21. In
this decision, the Supreme Court widened the scope of Article 21 by ruling that the "right to go abroad" was
a part of a person's "personal liberty" under Article
21 of the Constitution.
2. Right Against Sexual Harassment at Workplace
Sexual harassment at workplace is considered an infringement of women's
right to equality, life and
liberty. The Supreme Court has ruled that sexual harassment of women is
aviolation of one of the most precious fundamental rights, the Right to Life, as
enshrined in Art. 21.
In Vishakha v. State of Rajasthan6, the Supreme
Court ruled that sexual harassment of a working woman at her
employment is a clear violation of Articles 14,
15 and 21 of the Constitution, as it violates gender equality and the right to
life and liberty. The Supreme Court
issued exhaustive guidelines to prevent instances of sexual harassment at the workplace until legislation is
enacted for the purpose. For the
first time, the court acknowledged the need for legislation to confront the evil of workplace sexual harassment. As a
result of this, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was passed.
Apparel Export Promotion Council
v. A.K. Chopra,7 was the first case in which the Supreme
Court used the law established in the Vishaka
Case.
3. Right Against Rape
Rape being the most hatred crime, is
a devastating blow to a woman's dignity
and
a crime against society. In several decisions of the court, rapehas been
held to be a violation of a person?s fundamental right guaranteed under Art.21.
In
Bodhisattwa Gautam v. Subhra Chakraborty8, the Supreme Court held that: “Rape
is thus not only a crime against a
woman, but it is also a crime against the entire society.
It destroys a woman's entire psychology and drives her into great mental
turmoil.”
4. Right to Education
Education is regarded as man's third eye, without which no one can live a
good, decent, or dignified life. Earlier right to education
was a part of directive
principles of state policy.9 However as per the changing
needs of society Supreme Court in Mohini Jain v. State of Karnataka10
and Unni Krishna v. State of Andhra Pradesh11 rule that the
right to education is a fundamental right because it directly flows from
right to life.
Earlier the courts interpreted the Right to Education under Art.21 but in
the year 2002 by a Constitutional Amendment,
Art.21A12 was inserted in the constitution and the right to
education was expressly made as a fundamental right.
5. Right to Livelihood
Right to livelihood is derived out of the right to life as no person can
live without the means of living that
is livelihood. Deprivation of livelihood would not only denude the life of his effective content and meaningfulness but
it would make life impossible to live.
In Re Sant Ram13, which was decided before Maneka Gandhi Case the Supreme
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Court
ruled that the right to livelihood would not fall within the expression “life” in Article 21. However, in the Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni14,
the court found that "the right to life" provided by Article 21 includes "the right to livelihood."
The Supreme Court in Olga Tellis v.
Bombay Municipal Corporation15 held that theconcept of “right to life and personal liberty” guaranteed under Article 21 of the Constitution includes the “right to
live with dignity” which in turn includes the
right to livelihood.
6. Right to Shelter
The right to shelter is a basic human need. All civil, political, social
and cultural rights enshrined in the
Universal Declaration of Human Rights and Convention or under the Constitution of any India cannot be exercised without
the basic human rights.
In Chameli Singh v. State of U.P.16,
it has been held that the right to shelter is
a fundamental right under Art.
21 of the Constitution. Shelter for a human being is not just protection of his life and limb or simply a roof over
one?s head, but it is home where he
has opportunities to grow physically, mentally, intellectually and spiritually as a human.
In
another case of U.P. Avas Vikas Parishad
v. Friends Coop. Housing Society Limited,17 the right to shelter has
been held to be a fundamental right which stems from the right to residence
secured in article
19(1)(e) and the right to life guaranteed by Article 21.
In
People’s Union of Civil Liberties v. UOI18
the Apex Court ruled that all shelter homes must be open and operational 24 hours a day, 365 days a year. To satisfy
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the essential requirements of the urban homeless, one shelter per 100,000
people should be given in every large
city.
7. Imposing Capital Punishment is not a violation of Article 21
The constitutionality of the death penalty has been questioned in several
Supreme Court cases. In Jagmohan Singh v. State of Uttar Pradesh19
the Constitutional impermissibility
of the death sentence was pleaded before the Apex Court. The Supreme Court held the death penalty to be
constitutionally permissible. Sections 401,
402, Cr.P.C., Entries 1 and 2 in List III of Seventh Schedule and Article 134 of the Constitution make it clear that the
framers of the Constitution were aware of the death sentence.173
In Bachan Singh v. State of Punjab,20
the Supreme Court again upheld the death
penalty under Sec. 302 as constitutional. In Vinay Sharma v. State of
NCT of Delhi21 the
review petition was filed submitting that the death penalty had been abolished
by the Parliament of the U.K. in 1966 and several American
Countries and the Australian States had also abolished death penalty and therefore t h e death
penalty in India needs to be abolished. The Court dismissed the petition and held - The submission for the abolition of the
death penalty because it has been abolished in other countries is no ground to
efface it from the statute book of our country. So far, the death penalty
remainsin the Penal Code, the Courts cannot be said to commit any
illegality in awarding the death penalty in
appropriate cases.
8. Right Against Delayed Execution
In T.V. Vatheeswaran v. State of Tamil Nadu22 the Supreme Court evolved another
principle that prolonged
delay (2 years)
in executing the death sentence
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In Madhu Mehta v. Union of India24,
the mercy petition of the petitioner who was sentenced
to death was pending before the President of India for about 8 or 9 years. The Court converted
the death into life imprisonment as there were insufficient
reasons to justify such a long delay in the disposal of the convict's mercy petition. The Court held that the
speedy trial in criminal cases is implicit in
the broad sweep and content
of Art. 21 and this principle equally applies to the disposal of mercy petitions
too.
9. Right to Die- Not a fundamental right under Article 21.
Human life is a precious one. The Supreme Court's outlook has shifted
greatly. In State of Maharashtra v. Maruti Sripati
Dubal25 the Bombay High Court considered for the first time whether the right to die is incorporated in Article 21 of
the Constitution. The Court held that the right to life guaranteed by Art.21 includes
a right to die as everyone should have the freedom to dispose of his
life as and when he desires, and
consequently, the court struck down Section 309, IPC which provides punishment for attempt to commit suicide
by a person as unconstitutional.
However, the Andhra Pradesh High Court in Chenna Jagadeeswar v. State of A.P.,26
held that the right to die is not a
fundamental right within the meaning of Art. 21 and hence Section 309, I.P.C. is not
unconstitutional.
In P. Rathinam v. Union of India27 the Court agreed with the view of the Bombay
High Court in the Maruti Sripati Dubal case28 and held that a person has a "right to die" and declared Section 309 of the IPC violative of Art. 21 and
hence void. It was said that a person
cannot be forced to enjoy the right to life to his detriment, disadvantage or disliking.
Finally, in Gian Kaur v. State of
Punjab29 the Constitution Bench of the Supreme Court has now overruled P. Rathinam’s case30 and,
rightly, held that "right to life"
under Art. 21 of the Constitution does not encompass the "right to
die" or "right to be
killed". "The right to die", is essentially incompatible with
the "right to life" as is "death with life". Thus, the provisionpenalizing an attempt to commit suicide31 is not
violative of Art. 21 of the Constitution.
10. Euthanasia
Euthanasia is the act or practice of injecting or suspending
extraordinary medical care to end the
life of a person suffering from a terminal illness, to relieve him of terrible
pain or terminal illness.
In Gian Kaur vs State of Punjab32
the Court held that both assisted suicide and euthanasia were illegal because Article 21 speaks of life with
dignity, and only components of life
that make it more dignified can be read into it, implying that the right
to die was incompatible with it.
However,
later in the landmark judgment of Aruna
Ramchandra Shanbaug vs Union of India33,
the Supreme Court allowed passive euthanasia in India under exceptional circumstances and strict
monitoring of the court.
The
Supreme Court in Common Cause (A Regd.
Society) vs. Union of India34 recognized and gave sanction
to passive euthanasia and living will/ advance directive.
11. Right to Choose Life Partner
In November 2020, Allahabad High Court in its decision in Salamat Ansari vs. State of UP35 observed that “The right to live with whomever one chooses, regardless of their religion, is
fundamental to one's right to life and personal liberty.”
The Court ruled "We do not see the parties to the marriage as
Hindus and Muslims, but rather as
two mature adults who have lived peacefully and happily together for over a
year of their own free will and
choice."
Also, the Supreme Court in the decision of Shakti Vahini v. Union of India36, observed that the consent of the family or the community or
class is not necessary once two adult individuals agree to enter into a wedlock.
12. Article 21 guarantees Freedom from Police Atrocities
In cases of prisoner mistreatment, the Supreme Court has expressed
its deep concern. In Prem Shankar v Delhi
Administration37 the Supreme Court stated that handcuffing is prima facie inhumane in
nature and that it should only be used as a last resort because there are better ways to ensure security.
Similarly, the Supreme Court decided in D.K Basu v State of West Bengal38
that any type of torture or cruel,
inhuman, or humiliating treatment, whether during an investigation, interrogation, or otherwise, is a violation
of Article 21 of the Constitution.
13. Right to Reputation
The
US judgment in D.F. Marion v. Minnie was
referred to in the case of Stateof Maharashtra v. Public Concern of
Governance Trust206 wherein the Court held that good reputation was an element of
personal security and was protected by the constitution,equally with the right to
the enjoyment of life, liberty, and property.
It has been held by the Supreme Court that the right protects the
reputation of a person during and after his death. So, any mistake of the state or agencies that soil the
reputationof a righteous person would surely be covered within the ambit of Art.
21 of
the Constitution.
14. Right to Sleep
In Ramlila Maidan v. Home Secretary,
in the middle of night, the Police dispersed
the gathering by resorting to t h e use of tear gas and lathi- charge to disperse
the peaceful sleeping
crowd which caused injury to several people. Swatanter Kumar, J., held-The decision to forcibly
evict the innocent public sleeping in the midnight
was amiss and suffered from the element of arbitrariness and abuse of power to some extent. Thus, the right to
sleep was recognized as constitutional freedom acknowledged under Article 21 of the Constitution.
15. Right to Environment
Through judicial innovation, the right to a clean and healthy environment
has been elevated to the status of
a basic right. Pollution-free environment is indispensable for the inhabitants of this planet. In its
judicial ingenuity, the Supreme Court of India has elevated the right to live in a pollution-free environment to the status of a basic right under Article 21 of the Indian Constitution.
The entire environmental law jurisprudence has evolved under the shroud
of Article 21 of the Constitution of India. Health hazards, due to pollution, have also
been brought within its extended meaning.39 Indian Supreme
Court has said that any disturbance
of the basic environment elements, namely, air, water and soil, which are necessary for “life”, would be
hazardous to “life” within the meaning of Article 21.40 Right to water has also been recognized as a part of the right to life.
In Rural Litigation and Entitlement
Kendra v. State41(Dehradun Quarrying Case), the Supreme Court ordered the closure of
some limestone quarries on the ground that these were upsetting
the ecological balance.
The Rajasthan High Court held in N.
L. K. Koolwal v. State42, that
maintaining health, sanitation, and the environment falls under the purview of Article 21 of the Constitution because it adversely
affects the citizen's life and amounts to slow
poisoning and reducing the citizen's life because of the hazards created
if not checked.
The Constitution of India has functioned as a living tree, especially in
light of environmentalconcerns at a
time when pollution is rising at an alarming pace. The right to a healthy environmentis one such right which was not
recognized by the constituent
assembly at the time of formulation of the Constitution, yet, it has gained significance with time and space.
It can be concluded that the efforts of the highest Court in environment
pollution control through public
interest litigation are indeed
laudable particularly when the
legislature is lagging in bridging the lacuna in the existing legal system and the administration
is not well equipped to meet the challenge.
16. Right Against Noise Pollution
Noise is a type of atmospheric
pollution in the form of waves.
Noise pollution like other
pollutants is also a by-product of industrialization, urbanization and modern civilization or technological
advancement. Noise is a menace to human health and wellbeing.
In Re Noise Pollution,43 the
Supreme Court held that freedom
from noise pollution
is a part of the right to life under Article 21 of the
Constitution.
17. Right to Social Security and Protection of Family
The right to life includes the rights to social security
and family safety.
In Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra
Bose44, the Court held that the right to
social and economic justice is a fundamental right under Art. 21.
Also, the right to economic
empowerment of poor,
disadvantaged and oppressed
Dalits was a fundamental right
to make the right to life and dignity of a person
meaningful.45
Security
against sickness and disablement was ruled to be a basic right under Art. 21 read with Sec. 39(e) of the Indian
Constitution in Regional Director, ESI Corporation v. Francis De Costa.46
18. Right to Electricity- Right to Life
In M.K. Acharaya v. C.M.D., W.B.S.E.
Distribution Co. Ltd.47,
the Court has held that theright to electricity is the right to life and liberty in terms of Article 21 of the Constitution.
In modern days no one can survive without electricity.48
19. Eve-teasing
In Dy. Inspector-General of Police v. S. Samuthiram,49the respondent in a drunken state misbehaved and eve-teased a
married lady waiting along with her husband
to board a busat a bus stand. A criminal case was registered against him and he was dismissed from service.
The Supreme Court in the above case held that every citizen has the right
to live with dignity and honour which
is a fundamental right under Article 21, Sexual harassment, like eve-teasing of women amounts
to a violation of rights guaranteed under Articles 14 and 15 as well.
20. Bonded Labour System
In Neerja Chaudhari v. State of
M.P.,50 Bhagwati, J., held that under the Bonded Labor System (Abolition) Act, 1976, it is not enough to simply
identify and release bonded labourers; they must also be rehabilitated, because, without rehabilitation, they will be driven back
into poverty, helplessness, and despair, and
thus back into serfdom. The most basic need of Article 21 is that bonded
labourers be identified,
discharged, and appropriately rehabilitated. The Act was enacted to ensure basic human
dignity to the bonded labourers and any failure
of action on the
part of the State in implementing the provisions of this legislation would be
the clearest violation of Article 21
of the Constitution.
21. HIV- Not a ground for Termination from Employment
The very first case of HIV that came up before the Courts was the Lucy D’ Souzav
State of Goa51, where the petitioner contracted HIV and
was fired from his job and refused
treatment by doctors. Section 53(1) (vii) of The Goa Public Health Act, 1987, provided the government with
broad powers to deprive individuals of their liberty
on the basis that they were suffering from AIDS.
The MX of Bombay Indian Inhabitant
v. M/S. Zy & Anr Case52 on the other hand provideda
ray of hope for the HIV/AIDS community, where it has been held that a person cannot be regarded as medically
unfit and denied employment, merely on the
ground that he is found to be HIV positive.237
The court finally set the law straight on HIV in the workplace by
declaring that a government/ public sector employer
could not deny employment or terminate the service of an HIV-positive employee solely
because of their HIV-positive status,
and any act of discrimination towards an employee based on their HIV- positive status was a violation of
Fundamental Rights. The services of HIV- positive
employees could only be terminated if they posed a substantial risk of transmission to their co-employees or were unfit or unable to perform
the essential functions of their job.
The Bombay High Court's decision in G
v. New India Assurance Company53 confirms
the trend that denial of employment based on HIV status is not only discriminatory but also violates the right
to life. As a result, the MX Case can be considered a watershed decision in Indian HIV jurisprudence.
22. Homosexuality
Homosexuality is the desire to have sexual relations with people of one's
gender. Homosexuality, until very recently,
was considered to be an
aberrance or abnormality and for this very reason,
gay people were subjected to torture, discipline and even corrective rapes to cure them of it.
In Naz Foundation v. Govt. of NCT of Delhi,54 the constitutional validity
of
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Section 377 of the Indian Penal Code
was challenged on the ground that it violates
Articles 14,15,19 and 21 of the Constitution. In 2009, Delhi High Court decided
in favour of the LGBTs and declared
Section 377 of the IPC to be
„unconstitutional and violative of Articles 14, 15 and 21? and therefore, permitted
consensual sexual activity between two homosexuals above 18 years of
age.
However, in 2014, in the case of Suresh
Kumar Koushal v. Naz Foundation55, Supreme Court overturned the Delhi HC decision and struck down
the ruling of the High Court in the NAZ Foundation Case.56 The Court held that Section 377 is
not violative of Articles 14, 15 and 21 and that carnal intercourse must be punished.
In 2016, in the case of Navtej
Singh Johar v. Union of India,57 once again the validity
of Section 377 of IPC was challenged on the ground that it
violated the constitutional rights to
privacy, freedom of expression,
equality, human dignity and
protection from discrimination. The Five-Judge Bench of the Apex Court consensually held that Section
377 of IPC insofar as it applied
to consensual sexual conduct
between adults in private, was unconstitutional. With this, the Court overruled its decision in Suresh Kumar Koushal
v. Naz Foundation Case58 which had upheld the constitutionality of Section 377 in 2014.
Also, the court in K.S. Puttaswamy v. Union of India59 held that denying
the LGBT community
its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights.
REVIEW
As previously noted, the Supreme
Court of India played a pivotal role in interpreting Article 21 of the Constitution in various judgments. Through its
interpretative and activist judicial
procedure, the Supreme Court has increased the
liabilities, duties, and responsibilities of the State and its authorities in
this way. Because the idea of
dignified life provided by Article 21 appears to be inexhaustible in range and extent, the Court may be able to
infer certain further rights for the
people in the future while
interpreting this Article.
The challenge of the silence in the Constitution was a call for
re-understanding the application of
broad constitutional concepts. For this purpose, the onus is shifted
towards the judiciary and it can be said that the judicial activism has victoriously advanced the spirit of the
Constitution byinterpreting Article 21 of the Constitution in its widest sense.
Indian Judiciary provided outstanding explanation and interpretation of
the right to life and personal
liberty under Article 21 of the Constitution. The Apex Court not only analyzed the instinctive humane
qualities of Article 21 but also set certain
procedures to execute them. But the road does not end here as this Article will go on developing with the future
changes inthe need of society which cannot
be foreseen now.
In a democratic society like India, the sun of Article 21 will never set
entirely, and it will exist in all of
its sub-limits in perpetuity to assist the people of India anytime they are in agony over any problem
involving their lives and personal liberty.