by Vaibhav on October 29, 2010
Article 21 of the constitution says that: “No
person shall be deprived of his life or personal liberty except
according to procedure established by law.”
Prior to Maneka Gandhi’s decision, Article 21
guaranteed the right to life and personal liberty to citizens only
against the arbitrary action of the executive, and not from legislative
action. The state could not interfere with the liberty of citizens if it
could support its action by a valid law.
But after Maneka Gandhi’s decision Article 21
now protects the right to life and personal liberty of citizen not only
from the Executive action but from the Legislative action also. A
person can be deprived of his life and personal liberty if two
conditions are complied with, first, there must be a law and secondly,
there must be a procedure prescribed by that law, provided that the
procedure is just, fair and reasonable.
Article 21 is the celebrity provision of the
Indian Constitution and occupies a unique place as a fundamental right.
It guarantees right to life and personal liberty to citizens and aliens
and is enforceable against the State. The new interpretation of Article
21 in Maneka Gandhi’s case has ushered a new era of expansion of the
horizons of right to life and personal liberty. The wide dimension given
to this right now covers various aspects which the founding fathers of
the Constitution might or might not have visualized. ‘Right to life’ and
‘personal liberty’ is the modern name for what have been traditionally
known as ‘natural right.’ It is the primordial rights necessary for the
development of human personality. It is the moral right which every
human being everywhere at all times ought to have simply because of the
fact that in contrast with other beings, he is rational and moral. It is
the fundamental right which enables a man to chalk out his own life in
the manner he likes best. Right to life and personal liberty is one of
the rights of the people of India preserved by the Constitution of
India, 1950 and enforced by the High Courts and Supreme Court under
article 226 and 32 respectively.
PERSONAL LIBERTY: MEANING AND SCOPE
The smallest Article of eighteen words has
the greatest significance for those who cherish the ideals of liberty.
In India the concept of ‘liberty’ has received a far more expansive
interpretation. The Supreme Court of India has rejected the view that
liberty denotes merely freedom from bodily restraint; and has held that
it encompasses those rights and privileges which have long been
recognized as being essential to the orderly pursuit of happiness by
free men. The meaning of the words “personal liberty” came up for
consideration of the Supreme Court for the first time in A.K. Gopalan v. Union of India.
In this case, the Supreme Court by the majority held that the ‘personal
liberty’ in Article 21 means nothing more than the liberty of the
physical body, that is freedom from arrest and detention without
authority of law. this definition of the phrase ‘personal liberty’ given
by Prof. Dicey, according to whom personal liberty means freedom from
physical restrain and coercion which is not authorized by law. The word
‘liberty’ is a very comprehensive word and if interpreted it is capable
of including the rights mentioned in Article 19 of the Constitution. but
this restrictive interpretation of the expression ‘personal liberty’ in
Gopalan’s case has not been followed by the Supreme Court in its later
decisions. Finally, in Maneka Gandhi v. Union of India,
the Supreme Court has not only overruled Gopalan’s case but has widened
the scope of the words ‘personal liberty’ considerably.
“The expression ‘personal liberty’ in Article
21 is of widest amplitude and it covers a variety of rights which go to
constitute the personal liberty of man and some of them have raised the
status of distinct fundamental rights and given additional protection
under Article 19.”
It is true that Article 21 is worded in
negative terms but it is now well settled that Article 21 has both
negative and affirmative dimension. Positive rights are very well
conferred under Article 21 of the constitution. The following rights are
held to be covered under Article 21:
<!–[if !supportLists]–>· <!–[endif]–>Right to live with human Dignity
In Maneka Gandhi’s case the court gave a new
dimension to Article 21. It held that the right to live is not merely
confined to physical existence but it includes within its ambit the
right to live with human dignity. The right to live is not confined to
the protection of any limb through which life is enjoyed but it also
includes the right to live with human dignity and all that goes along
with it namely the bare necessity of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing
ourselves in diverse forms, freely moving about and mixing and
commingling with fellow human beings
<!–[if !supportLists]–>· <!–[endif]–>Right to livelihood
In Olga Tellis v. Bombay Municipal Corporation, popularly
known as the pavement dwellers case, the Supreme Court has finally
ruled out that the word ‘life’ in Article 21 includes the ‘right to
livelihood’. The court said that an equally important facet of right to
life is the right to livelihood because no person can live without 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.
<!–[if !supportLists]–>· <!–[endif]–>Right to shelter
Right to shelter is a fundamental right under
Article 21 of the Constitution. In any organized society, the right to
live as a human being is not ensured by meeting only the animal needs of
man. It is ensured only when he is assured of all the facilities to
benefit himself. Right to live guaranteed in any civilized society
implies the right to food, water , decent environment, education,
medical care and shelter. Right to shelter therefore, does not mean a
mere right to a roof over one’s head but right to all the infrastructure
necessary to enable them to live and develop as a human being.
<!–[if !supportLists]–>· <!–[endif]–>Right to privacy
The Supreme Court held that a citizen has
right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing, and education among other
matters. None can publish anything concerning the above matters without
his consent whether truthful or otherwise. This rule is subject to an
exception that if any publication of such matters is based on public
record including court record it will be unobjectionable. The second
exception is that the right to privacy or the remedy of action for
damage is simply not available to public officials as long as the
criticism concerns the discharge of their public duties.
<!–[if !supportLists]–>· <!–[endif]–>Right to health and medical assistance
In Parmananda Katara v. Union of India,
it has been held that it is the professional obligation of all doctors,
whether government or private, to extend medical aid to the injured
immediately to preserve life without waiting legal formalities to be
complied with by the police under Cr.P.C. Article 21 of the constitution
cast the obligation on the state to preserve life. it is the obligation
of those who are incharge of the health of the community to preserve
life so that the innocent may be protected and the guilty may be
punished.
<!–[if !supportLists]–>· <!–[endif]–>Right to get pollution free water and air
In Subhash Kumar v. Bihar,
the Apex Court has held that enjoyment of pollution free environment is
included under right to life under Article 21 of the Constitution.
<!–[if !supportLists]–>· <!–[endif]–>Right to free legal aid
Right to free legal aid and speedy trial are
guaranteed fundamental rights under Article 21. In a democratic policy,
governed by rule of law, it should be the main concern of the state to
have a proper legal system. The crucial words are to provide free legal
aid by suitable legislations or by schemes or in any other way so that
opportunities for securing justice are not denied to any citizen by
reason of economic or other diabilities.
<!–[if !supportLists]–>· <!–[endif]–>Right to Education
The Fundamental Right to Education has been
incorporated in our Constitution under Article 21A, on April 1, 2010.
From now onwards all the children in the age group of 6-14 years will
be provided 8 years of elementary education in an appropriate classroom
in the vicinity of his/her neighborhood. The cost of facilitating
school education to a child will be borne by the State. The government
will be responsible for the enrollment and regular attendance of
children. All schools will have to prescribe to norms and standards laid
out in the Act and no school that does not fulfill these standards
within 3 years will be allowed to function. Unrecognized private schools
operating in the country will have to apply for recognition, failing
which they will be penalized to the tune of Rs 1 lakh and if they still
continue to function will be liable to pay Rs 10,000 per day as fine.
ARTICLE 21 AND DIRECTIVE PRINCIPLES OF THE STATE POLICY
The Directive Principles of the State Policy as enumerated in
Chapter-IV are not enforceable in a court of law. Nevertheless, they are
fundamental in the governance of the nation as the name itself implies
“Directive Principles of the State Policy”. The Constitution makers
evolved what was then a novel constitutional device which classified
entitlements into ‘fundamental rights’ which were justifiable in a court
of law and ‘directive principles of state policy’ which though not
judicially enforceable, were nevertheless fundamental in the governance
of the nation. In one of the historic judgment in the case of
Confederation of Ex-Servicemen Association and Others v Union of India
the apex court observed that,
Apart from fundamental rights guaranteed by Part III of the
Constitution, it is the duty of the respondents [Government of India] to
implement Directive Principles of State Policy under Part IV of the
Constitution.
In Bandhua Mukti Morcha v Union of India , Justice Bhagwati referring to Francis Coralie Mullin v Administrator, Union Territory of Delhi, stated;
It is the fundamental right of everyone in this country, assured
under the interpretation given to Article 21 by this Court in Francis
Mullen’s case, to live with human dignity, free from exploitation. 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 least, 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 etc. 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. Since the
Directive Principles of State Policy contained in Clauses (e) and (f) of
Article 39, Articles 41 and 42 are not enforceable in a court of law,
it may not be possible to compel the State through the judicial process
to make provision by statutory enactment or executive fiat for ensuring
these basic essentials which go to make up a life of human dignity but
where legislation is already enacted by the State providing these basic
requirements to the workmen and thus investing their right to live with
basic human dignity, with concrete reality and content, the State can
certainly be obligated to ensure observance of such legislation for
inaction on the part of the State in securing implementation of such
legislation would amount to denial of the right to live with human
dignity enshrined in Article 21.
Thus the Court held that where a law has already been enacted to
enforce Article 21 with reference to the directive principles of the
state policy it can compel the state to implement the said legislation
in letter and spirit.
In 1993, relying on the directive principle of the state policy, the
Court ruled that the right to education until the age of fourteen is a
fundamental right and therefore falls under the protection of Article 21
in conjunction with Article 41.Article 41 states: “The State shall,
within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education…” Thus,
the Court has interpreted the Directive Principles of the State Policy
in conjunction with Article 21 and gave a wider meaning to Article 21 so
as to give life to that article.
In the next part we will discuss in detail the relationship between
Article 21 and international human rights documents. We will elaborate
and discuss the interpretation given by the Supreme Court to Article 21
to interpret it in a manner so as to include within its ambit basic
human rights recognised by various international human rights
instruments.
ARTICLE 32: A PROVISION TO ENFORCE ARTICLE 21
The most unique feature of the Indian Constitution is Article 32. It
is a fundamental right guaranteed to citizens of India under Part-III of
the Constitution. The provision of the article states that:
(1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part [Part-III] is
guaranteed.
(2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part.
In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said,
‘if I am asked which is the most important provision of the Indian
Constitution, without which the Constitution would not survive I would
point to none other than article 32 which is the soul of the Indian
Constitution.
The judicially enforceable “fundamental rights” provisions of the
Indian Constitution are set forth in part III in order to distinguish
them from the non-justifiable “directive principles” set forth in part
IV, which establish the inspirational goals of economic justice and
social transformation. Overtime, case law has come to interpret Article
32 as allowing for ordinary citizens to petition the Supreme Court in
matters where the government is accused of infringing upon the
“fundamental rights” [particularly Article 21] of the constitution. In
addition, the Constitution includes Article 226 which the Courts have
interpreted as giving any claimant the opportunity to file suit on
behalf of the public in a High Court, when there is a violation of
fundamental right or a right guaranteed by statute. Thus, Article 32 is
the soul of the Indian Constitution. When there is infringement of
Article 21 the aggrieved person can approach the Supreme Court of India
for enforcement of his fundamental rights.
CONCLUSION
Maneka Gandhi’s case demonstrates how judicial activism can expand
the reach of law with a view to curbing and controlling executive
discretion and ensuring the basic human rights of the citizen. Few
landmark cases will be discussed which has drastically changed the
interpretation of Article 21. The modern interpretation of right to life
is one of the historical developments of constitutional law.
In the Delhi Pollution Case,the Supreme Court held
in 1989 that Article 21 of the Constitution guaranteeing the right to
life must be interpreted to include the “right to live in a healthy
environment with minimum disturbance of ecological balance,” and
“without avoidable hazard to [the people] and to their cattle, house and
agricultural land, and undue affection (sic) of air, water, and
environment.”
The subsequent ruling in Charan Lal Sahu v. Union of India
expanded upon this decision when Justice Kuldip Singh described the
government’s role in the protection of fundamental rights: “It is the
obligation of the State to assume such responsibility and protect its
citizens.” The Court held that the government’s obligation to protect
fundamental rights forces it to protect the environment. Thus, from time
to time the Supreme Court interpreted Article 21 broadly so as to
infuse real life in the said article. It also waived the rule of locus
standi so as to make the life of the citizens of India meaningful.
Thus, the Supreme Court interpreted Article 21 in a widest possible
manner and included within its ambit the right to live with human
dignity.
The cases examined in this part primarily relate to the modern
approach of the Indian judiciary which demonstrated the enhanced
interpretation of right to life and personal liberty. Thus, the scope of
Article 21 of the Constitution has been considerably expanded by the
Indian Supreme Court, which has interpreted the right of life to mean
the right to live a civilized life. In the next part of the essay we
will discuss briefly the meaning of judicial activism so as to
understand the creativity of the Indian judiciary in interpreting
Article 21.
Thus, in the wake of all the above cited cases it is becoming evident
that the Indian Judiciary though is restrained in many ways has evolved
itself as a savior of mankind by applying its judicial activism. The
key chosen for widening the scope of application of provisions of law is
Article 21. The Supreme Court conquered the faith of the millions of
Indian people by these people friendly decisions mainly on this
constitutional provision though there is delay in delivery of the
decision. Let us all welcome the evolution of this neo – jurisprudence
of Indian Constitution.
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