P a g e | 39

CHAPTER - II
CONCEPTUAL DIMENSIONS OF
RIGHT TO LIFE AND PERSONAL
LIBERTY

 Synopsis

 Prologue

 Interpretation of Article 21 of the Constitution

 Nature of the Right

 Historical Background of Right to Life and Personal Liberty

 Constitutional Background of the Right

 Expanding Horizons of Right to Life and Personal Liberty

 Right to privacy is part and parcel of Right to Life

 Right to life and Euthanasia

 Right to Clean Environment

 Right to Health

 Right to live with human dignity

 Right to Livelihood

 Right to Education

 Protection against Honour Killing and Right to Have Life Partner of

One’s Choice

 Other rights included in Right to Life and Personal Liberty

 Remedy for violation of Right to Life and Personal Liberty

 Epilogue

P a g e | 40
2.1 Prologue

Life is the best reward of nature to the mankind. It is the basic and important
thing given by nature. As life is gift of Nature so it cannot be provided by any Statute
or Constitution but can only be recognized or protected and that same has been done
under our Constitution. It is the ethical right which each Individual have at all places
and at all times. Right to life and personal liberty is the contemporary
acknowledgment of the right which has been conventionally recognized as ‘Natural
Right’. In our Constitution it is the most important Right which recognizes the
Sanctity of Human life. PartIII of our Constitution contains a specific provision with
respect to Life and Personal Liberty in the form of Article21. This Right occupies a
dominant position among the hierarchy of rights and other rights and Liberties are
complimentary and subsidiary to this right, because only a living person will require
any other right whether it may be of equality, Speech & Expression etc. This right is
considered as vital and undeniable human right which facilitates an individual to live
his life in the way best suited to him. In short, it can be said that this right is the lays
the institution of Part-III of Constitution.

This right was initially emphasized in the British Magna Carta of 1215. Clause
39 of the magna Carta states that, “No free man shall be taken, or imprisoned, or
outlawed or exiled or in any way harmed, nor will we go upon him nor will we send
upon him, except by the legal judgment of his peers or by the law of the land”.

Right to life and personal liberty get Constitutional attention of the world as
basic right for the first time with the incorporation of this right under Constitution of
the United States which stipulates that; “No person shall be deprived of his life,
liberty or property without due process of law”. It paved the way for the constituent
body of different democratic countries to insert provision relating to life and liberty as
a fundamental right in their respective constitutions. Right to life and personal liberty
has also find mention under the Universal Declaration of Human Rights. Article3 of
UDHR stipulates that, “Everyone has the right to life, liberty and security of person”.
Apart from this Article9 of the Document stipulates that; “No one shall be subjected
to arbitrary arrest, detention or exile” 20 . It clearly indicates that the international

20
Universal Declaration of Human Rights, 10th December, 1948

P a g e | 41
community is also concerned about the protection of life and liberty of individuals.
However, the international instruments have considered individuals as a physical
entity only and tried to protect them from the intemperance of King and
administration. But Constitution of India does not consider individuals as a physical
entity only rather it visualize them entirety and endeavor for their complete progress
that is way a stringent provision relating to life and liberty has been provided under it.
Constitution tries to protect an individual from all type of aggression carried by
government or its agencies.

Taking the inspiration from Shanti Mantra which reads as follows:

“…Sarve bhavantu sukhinah

Sarve santu niraamayaah

Sarve bhadraani pashyantu

Maakaschit duhkha bhaag bhavet…”

the makers of our Constitution believed that individual is not a mere physical entity
and drafted Article-21 under PartIII of the constitution, which stipulates that; “No
person shall be deprived of his life or personal liberty except according to procedure
established by law”.

The Article is titled as Protection of Life and Personal Liberty, and this Right
is available to all persons whether having the citizenship of the country or not. The
Right has become an inexhaustible source of many other rights because this right has
been provided overriding position by judiciary and this right has underlined the
importance of Directive Principles while having a restraining effect on the Executive.

The main objective of this right is to avert infringement of liberty of an

individual and denial of right to life except according to procedure established by law
and to provide a society where justice shall prevail. “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 or deprivation of life of other
person; such violation would not fall under the parameters set for the Article 21”21.

21
Bombay Dyeing & Mfg. Co. v. Dy. EA Group, AIR 2006 SC 1489

P a g e | 42
 The scope and extent of this Right has been expended by the Apex Court over
the years by providing a broad interpretation to this right. In order to have a complete
knowledge of this Right, we have to travel a journey from the case of A.K. Gopalan to
Maneka Gandhi, which reveals two different proportions and horizon of this right.
But before that we will discuss the Article 21 in detail and examine as to how this
Article has been expanded by our judiciary by giving an elaborated meaning.

2.2 Interpretation of Article 21 of the Constitution

“No Person shall be deprived of his Life or Personal Liberty except according to
Procedure Established by Law”

-Article 21 of the Constitution

Right to life and personal liberty of an individual is one of the ancient thoughts
which have been guarded by Judiciary. In India, the concept of right to life and
personal liberty has been provided under Article21 of the Constitution and an
extensive interpretation has been provided to this Article by our Apex Court. It is
correct to mention that there would have been no fundamental rights worth
mentioning if literal interpretation has been provided to Article21. The smallest
Article of 18 words has received that extensive interpretation which no other Article
of the Constitution has received. Let us have a detailed interpretation of the words
used in this Article.

 No person

The Article relating to life and personal liberty starts with a negative
connotation but in spite of being clothed in negative terms this right has positive
overtone and positive outlook. “Though the phraseology of the Article starts with
negative word but the word ‘No’ has been used in relation to the word deprived. The
object of the right provided under this article is to prevent encroachment upon Liberty
and deprivation of life except according to procedure established by law”. As rights
provided by this Article are available to all individuals whether or not they are citizen
of India. The essence of Article21 lies in the words ‘no person shall be deprived’.
With respect to availability of this right to individuals who are not the citizen of the
Country; Apex Court has underlined that whosoever comes to India have right to live

P a g e | 43
as long as they are here and this right is available to them in the same sense as is
available to citizen of nation. State is under an obligation to protect life of every
person who is within the territory of India. Article21 shall be read with Article19 as it
is inappropriate to interpret Article-19 in isolation because both the provisions deal
with similar issue. However, there is slight difference in both the rights i.e. Article-19
is available only to the citizens while Article-21 is available to all without any
difference.

The term ‘Person’ as provided under Article 21 includes both citizens as well
as non citizens. The only rights which any non citizen can claim are given under
Articles 20 to 22 of Constitution. Article-21 is not applicable over corporate bodies
and is available to natural persons only. The right afforded by Article-21 are universal
without any distinction. As per this Article whatever distinction is there the same has
to be provided by Law. Limitations on the law making power of government are not
provided in this Article which is stipulated under Article 19 expressly. The only
limitation stipulated by this Article is of ‘Procedure established by law’. So this right
is available to all individuals and in spite of its negative language this right has been
provided a positive approach by the Apex Court.

 Shall be deprived of

The second component of Article21 is the compulsory obligation of

government of not taking away this right. Use of word ‘Shall’ indicates that it is
mandatory for the court to protect this right. It cast a mandatory duty upon the courts
that they cannot run away from this right. In this sense this Article makes Apex Court
as custodian and guardian of this right provided under Article 21 and other rights
which are incidental to this right. Further this Article comes into when life or liberty is
denied to an individual.

For the first time the phrase ‘Deprived’ was considered by Supreme Court in
the matter of A.K. Gopalan v. State of Madras22. Providing a narrow interpretation to
this phrase Apex Court expressed that this Article comes into picture when there is
complete and total deprivation of this right and no application of this Article is there if
the deprivation is partial in nature such as limitation on right of movement of a

22
AIR 1950 SC 27

P a g e | 44
person. Court declared that restriction on movement of a person is quite different from
total restraint, as movement is only one part of life of an individual while the term
deprivation as used in Article 21 means complete and total restraint which will
include number of rights such as right eat, work sleep etc. and complete restriction on
liberty is prohibited, while partial restriction is allowed. The Phrase deprivation which
is used under Article-21 does not have the same meaning as provided under Article-
19. This is also apparent from the bare reading of Chapter VIII of Code of Criminal
Procedure, 1972. Therefore, Article-19(5) has no applicability on a substantive
legislation which deprives an individual of his liberty. The word ‘deprivation’ will not
include ‘partial restraint’ within its ambit while interpreting Article-2123. However,
this interpretation has been modified by Apex Court in its later judgments. In Maneka
Gandhi v. Union of India24 Court held that even partial restraint will come under the
ambit of this Article. There a golden trinity of rights which makes life worth living.
Now the position is clear that the procedure which takes away life or liberty has to be
fair, just and reasonable and even the slightest deprivation will be covered under this
right and apex Court will grant protection.

 Right to Life

Right means a claim, a privilege and right to life connotes a claim to one’s
life. Every individual has right to life, liberty and safety of himself, this right is
implicit in every human being and it is provided by the nature itself. Constitution or
any other Statue can never provide this Right they can only stipulate a provision
which secures this Right. This right is certainly most important among the group of all
rights. Other rights attach worth to life and are dependent on the subsistence of life for
their utility. As rights can only be attached to living persons and others right will not
have any utility or value without this right. A number of Rights are provided under
Constitution of India but all of them are useless unless a person is living, so right to
Life is the most important right and other rights are incidental to this right.

“The Word ‘Life’ denotes the Life of a human being, unless the contrary
appears from the context”25. Similarly Life under Article 21 does not merely means

23
A.K. Gopalan v. State of Madras, AIR 1950 SC 27
24
AIR 1978 SC 597
25
Section 45 of Indian Penal Code

P a g e | 45
act of breathing or existence like an animal or continued drudgery through life. Thus,
this Article does not mean mere physical existence rather it provides for a life which
is worth living. This right has a much wider meaning and is elemental for the
subsistence of individual. Without which one can’t subsist as human being; it
comprises all facets of life which make the life meaningful and worth living.

While interpreting Article-21 of the Constitution it has to be kept in mind that

this Article is provided under PartIII of the Constitution so attempt of Judiciary
should be to expand the ambit of fundamental right rather than limiting it. The
Constitutional provision relating to fundamental right must be construed liberally in
the widest possible manner so that it can tackle the changing needs of society and the
constitutional stipulation doesn’t shrunk with the passage of time. So the provision
relating to life must be construed liberally and an extensive meaning should be
provided to it so that it can meet the challenges of coming time and continues to
enhance the dignity of person.

Following the judgment of U.S Supreme Court given in the matter of Munn v.
State of Illinois26 and supporting the above view J.Bhagwati, said

“Right to Life includes the right to live with Human Dignity

and that goes along with it, namely, the bare necessities 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
with fellow human beings”27

Widest possible meaning has been given to the phrase ‘Right to Life’ by the
Apex court and now this right does not only indicates the act of breathing or of
continued existence rather this right means and include all those things which makes
the life worth living.

26
94 U.S 113 (1876)
27
Francis Coralie Mullin v. Administration, Union Territory of Delhi, AIR 1981 SC 746

P a g e | 46
 Personal Liberty

The phrase which comes after ‘Right to Life’ is ‘Personal Liberty’. The usage
of this phrase indicates the importance of Personal Liberty. Further this phrase also
indicates that foremost thing is life and after life there comes personal liberty which is
of great importance. Liberty of individual is one of the ancient thought which has to
be protected by judiciary. The English Magna Carta provided that:

“No free man shall be taken, or imprisoned, or outlawed or

exiled or in any way harmed, nor will we go upon him nor
will we send upon him, except by the legal judgment of his
peers or by the law of the land”28.

Personal liberty is antithesis to the word ‘restraint’ or ‘coercion’. It is the right

of every individual to be free from restriction or encroachments whether directly or
indirectly. It is the inherent and birthright of every person to have safety of his limbs
and body which cannot be taken away from him. Further the phrase ‘Personal liberty’
doesn’t mean liberty of an individual only rather it indicates freedom of those rights
which are provided to an individual.

The term ‘Liberty’ has been used under the constitution of U.S. and an
extensive interpretation has been provided to this term. It takes within itself every
kind of freedom and privilege. But in our Constitution ‘Liberty’ has been qualified by
the phrase ‘Personal’. Therefore, the meaning given to the term ‘Personal Liberty’ in
India is narrower than the meaning given to term ‘Liberty’ in America. Even after
being qualified by the word Personal and the Article dealing with it is the smallest in
Constitution than also the notion of Personal Liberty has been accorded with a far
more extensive explanation.

According to Dictionary29, Personal Liberty “is the freedom of an individual to

do as he pleases limited only by the authority politically organized society to regulate
his action to secure public health, safety, or morals or of other recognized social
interests”.

28
Clause 39 of the Magna Carta, 1215
29
Merriam Webster Dictionary

P a g e | 47
 Preamble to the Constitution states the aims and aspirations which the makers
of Constitution want to achieve. One of the major aims of Constitution is to ‘assure
the dignity to the individual’ and ensure complete development of individuals. It has
been held by Apex Court that Provisions of Constitution are to be interpreted in the
light of Preamble. So the phrase ‘Personal Liberty’ as provided under Article21 have
to construed in the light of Preamble providing it a meaning which would promote
and tries to achieve the objectives mentioned under Preamble. This phrase should not
be interpreted in a manner which go against Preamble or established constitutional
theories. Liberty finds a particular significance in the Preamble which declares that
every individual shall have the freedom of Speech, religion and faith. In our
Constitution the phrase ‘Personal liberty’ has been expressed in comprehensive
manner which comprises within itself the different kinds of rights which make
Personal Liberty worth mentioning.

For the first time the matter relating to Personal Liberty was considered by
Supreme Court in the matter of Kharak Singh v. State of UP30. This case challenges
the legality of UP Police Regulations which provides the power of Domiciliary Visits
to the house of habitual offenders to the Police in the name of prevention of crime. In
this case court was concerned with the interpretation of the term ‘Personal Liberty’
and Court has to decide whether this term means liberty of body only and it excludes
the invasion by Police or other authorities on other right of individual such as right to
sleep. Rejecting the narrow view that Liberty means freedom from physical restraint
the Apex Court declared that Liberty includes all those freedom which are necessary
for making the human life worth. Court held that the Regulation which allows the
Domiciliary Visits and deprives person of his liberty is void and unconstitutional as it
violates right to life of petitioner which can only be controlled by Law and not by any
executive orders which has been done in present case.

Explaining further Court stated that Personal Liberty as provided under

Article21 is a comprehensive expression which contains diverse range of rights which
in real sense constitute ‘Personal liberty’ of an individual. Article-21 also comprises
those liberties which are covered under Article-19. In simple words, only six kinds of
freedoms are explicitly provided and protected by Article 19, while Article-21

30
AIR 1963 SC 1295

P a g e | 48
protects all kind of freedom including those which are covered under Article19 but it
will not come in picture for remedying violation of those freedoms mentioned under
Article19 as there is an express provision for their protection. But otherwise this
article contains all the freedoms.

The explicit mentioning of phrase ‘Personal Liberty’ in the article which is of

eighteen words itself highlight the importance of liberty and the same importance and
worth has been provided to liberty by the apex court.

 Procedure established by Law

The most important phrase provided under Article-21 is “Procedure

Established by Law”. This expression can be founded under British Constitution and
the same has been incorporated in our constitution. According to this doctrine, there is
only condition for taking away the right of any individual and that is stipulated in its
name only. The condition is that there must be a legislation which stipulates the
procedure for taking away the right of the individual.

The major problem with this doctrine is that it simply states that procedure
established by law can take away the right of an individual the difficulty that creeps
up is what if the procedure is arbitrary or unjust can than also it has the power to take
away the right to life. From a bare reading of the provision we can say that a duly
enacted law can take away the right even if that law is in contravention to doctrine of
justice and morality. There are chances that there is enactment of unjust legislation by
government than there will be encroachment on liberty on liberty of individuals. Thus
this doctrine safeguards the individual only against the action of executive.

The Doctrine found under the Constitution of United States is “Due Process of
Law”. This principle performs dual function i.e. first it checks that there should be a
law through which life or liberty of a person can be taken and second it ensures that
the law is fair, just and reasonable. Apex Court can declare any law to be null and
void if it is unfair and arbitrary. This principle provides for reasonable restriction on
the rights of a person. It empowers the Court to adjudicate upon fairness and
impartiality of any law. Thus “Due Process” clause protects a person against arbitrary
action of government. However, no such clause has been integrated under Indian
constitution.
P a g e | 49
 Article21 clarifies that individual can be deprived of his life or personal liberty
according to “procedure established by law”. Use of the present expression is the
outcome intentional approach of Constituent Assembly. The phrase “Due process of
Law” was avoided by the assembly because this phrase has not been used by the Apex
Court of United States while interpreting reasonableness of any legislation and hence
whether any law is reasonable, fair and just would depend upon the views of the judge
adjudicating the matter. Because of use of word ‘Due’ all the legislations becomes the
subject matter of review of judiciary. This provides enormous power to judiciary and
results in uncertainty. However, some members of the Assembly were in the favour of
enacting this phrase under the constitution as they do not foresee any fear of abuse
and misuse of power by the legislature which exists in reality. So there was a need to
strike the balance between them. There were two questions before the Constituent
Assembly while enacting the provision; first to empower judiciary to adjudicate
whether the law made by legislature is good or not. Second, legislature should be
trusted that it do not enact any bad law31.

After observing the dangers of both sides different members of assembly have
different opinion regarding this provision. But the chief among them were of Dr.
Ambedkar, who advocated the incorporation of phrase “Procedure established by
Law” which was finally included in the Constitution. The final shape of this Article
took a broad sweep. Unlike Article-19 there are no exceptions or proviso’ to this right.
The article starts with negative terminology. Use of terminology ‘shall’ and ‘except’
makes this right absolute, which is fundamental in the governance of the nation.

After the enactment of the provision there was turn of interpretation of this
provision taking into account the changing circumstances so that constitutional
provisions doesn’t gets phased out rather it remains stringent enough to confront the
emerging challenges. This expression “has been subject matter of interpretation in a
catena of cases. An analysis of these cases reveals that the Court in this process of
judicial interpretation has enlarged the scope of the expression”. Immediately after the
formation of Constitution, the issue of analysis of this phrase comes before the Apex
Court in the matter of A.K. Gopalan v. State of Madras32 which challenges the legality
of the Preventive Detention Act, 1950. The issue which arises in this case was
31
Constituent Assembly Debates: Vol. VII P. 842-857
32
AIR 1950 SC 27

P a g e | 50
whether the phrase ‘procedure established by law’ as provided under Article 21 only
means that there should be a procedure for taking away the right how rigid and unfair
the procedure nay be or it means that the procedure should be just, fair and
reasonable. As attempt was made on behalf of petitioner to convince the court that
Court has the power to adjudicate the reasonableness of Preventive Detention Act or
any other law which takes away the liberty of any person.

Rejecting the plea of petitioner Apex Court held that the phrase ‘Law’ as
provided under Article21 is used in the connotation of law made by State and
nowhere is provided that it should be just. Further the phrase “Procedure established
by Law” signifies that there should be a procedure which is provided by legislation.
Thereby restating the Austinian concept, Apex Court held that procedure will be valid
if it has the backing of law and it is immaterial whether it is arbitrary or oppressive.
So Article-21 was interpreted in narrower sense which affords protection against
executive action only. However, the minority view which was expressed by Fazal Ali
J. was based on the concept of ‘Due Process of Law’. Expressing his dissenting
opinion he said that Principles of Natural Justice should be followed by Courts while
interpreting Article-21.

In Kharak Singh v. State of UP 33 , Apex Court provided some wider

explanation to phrase ‘Personal Liberty’ but it followed its earlier decision given in
Gopalan Case with respect to ‘Procedure established by the Law’ phrase.

It was only in Maneka Gandhi v. Union of India34 where Apex Court triggered
this Article. The compelling interpretation put forwarded in this case has facilitated in
deciding the future cases. A number of new facets have been included within the
scope of this right with the help of decision. Decision of this case showcased that the
interpretation of this Article as provided in Goplan’s Case is not sufficient in
affording protection to individual against law which takes away the right to life or
liberty of person. Dissent judgment of Justice Fazal Ali was adopted by Apex Court in
this case. Court showing compassion towards the right to life and personal liberty
overruled its verdict given in Goplan Case. Court reiterated that the proposition that
Articles14, 19 and 21 are not mutually exclusive; there is a nexus and relationship

33
AIR 1963 SC 1295
34
AIR 1978 SC 597

P a g e | 51
between them. Therefore, a law which prescribes a procedure for taking away the
right of an individual has to fulfill the requirements of not only of Article21 but also
of Article 14 and 19.

The important and innovative phase of this decision is to provide a wider

explanation to the phrase “Procedure established by Law”. Court provides a new and
liberal interpretation to this right especially this phrase. Now the right provided by
Article 21 cannot be taken away simply by a procedure which is arbitrary and unjust.
Now the procedure has to satisfy the requirements of being just, reasonable and fair.
Court held that it has the power to adjudicate upon the fairness and reasonableness of
procedure which deprives an individual from his personal liberty. Arriving at the
conclusion Court holds that Articles 14, 19 and 21 are inter-linked. Thus the
procedure as contemplated under Article21 should qualify the test of rationality of
Article 14 and it should be just and fair otherwise, it will not be treated as procedure
at all and the obligation imposed by Article21 would not be satisfied.

Now the position is quite clear that the Procedure even though it has been
established by law, cannot deprive an individual of his life or liberty unless it is just,
fair and reasonable and complying the principles of natural justice which are inherent
in Article21. Judgment of Maneka Gandhi case has been the turning point which has
shown the new dimension to personal liberty. Era after this judgment “has been the
most fertile in which the concept of personal liberty acquired newer heights and
experienced all side growth. Thus Article 21 whose potential was never discovered in
the Article was ultimately pulled out of its deep slumbers and harnessed to engineer
social justice which is one of the goals proposed to be attains by the Constitution”.

2.3 Nature of the Right

Right to life and personal liberty has been provided under Part III of the
constitution. Part III provides for Fundamental rights of an individual so this right is
undoubtedly a fundamental right and will have the nature and characteristics of
Fundamental right. Further in addition to being a Fundamental right this is also a legal
right so it will also have nature of legal right. Besides this the important aspects
relating to the nature of this right can be discussed in the following below mentioned
points:

P a g e | 52
2.3.1 A Negative Right

Article 21 has been framed in negative words as it begins with the terminology
“No person should be deprived of his life or personal liberty except according to the
procedure established by law” which raises a doubt in the mind of the reader that:
Does this article only guarantee a right? Because in case of other rights the individual
having that right can compel other individual to perform the correlative duty upon
whom it is imposed by law.

Jurisprudentially rights may be categorized into two categories Positive and

Negative right. By the term Negative right legislature want to imply that individual
have the right that should not be harmed. The main difference between these two is
that in negative right the State should not interfere in the life of people for the
enjoyment of these rights. On the other hand “in case of positive right the State shall
ensure the observance of such right by doing some positive Act”. In simple word this
right will have positive impact on its recipients.

It should be noted that Article 21 confers a negative right and it suggests that a
positive duty has been imposed on the State to take steps for protection of individual’s
liberty. Simply preventing encroachment of this right or enacting strong legislation for
preventing this right will not be sufficient. Rather State has a duty to take all those
actions which not only prevent this right but also promote the encouragement of this
right and provide fulfill the obligation of welfare State. A question arises in reader’s
mind that who is going to protect the rights of individuals belonging to weaker section
of society such as labors, prisoners etc. and those who are not in a position to protect
their right. This duty has been imposed on the State to provide the mechanism for
utilizing this right.

This matter relating to nature of this right comes for the consideration before
the Apex Court in the matter of A.K Gopalan v. State of Madras 35 where it was
expressed by court that Article21 confers a negative right which do not have any
obligation on the government. However, decision of this case was not adhered by
court in its later judgments. In Kharak Singh v. State of Uttar Pradesh36 Court was of

35
AIR 1950 SC 27
36
AIR 1963 SC 1295

P a g e | 53
the opinion that Article21 imposes responsibility on the State to preserve the Life and
Liberty of an individual. Thus court provided a positive interpretation to this Article.

In ADM Jabalpur v. Shivkant Shukla37, which is popularly known as Habeas

Corpus case in this case the main argument before the court was that Article21 has
been framed in negative words which indicated that it should be a negative right.
Rejecting the above view Bhagwati J. held that though Article 21 has been framed in
negative language but it conferred a positive right which is secured by Part III of the
Constitution.

Supporting the views of Bhagwati J. court said that it is correct that Article21
has been framed in negative words but it is not necessary that words used in the article
are discussed while interpretating any provision rather the whole spirit of law has to
kept in mind while interpreting any provision. Settling the Controversy the Apex
Court held that unlike British Constitution, Article21 of Indian Constitution provides
for a positive right relating to life and liberty. The observation of Apex Court that
Article 21 is a positive right has far reaching consequences which imposes obligation
on State to protect this right and provide for promotion of the same.

38
In Assad case Court, explained that if poor people are deprived of their
rights and benefits to which they are entitled than it will be deemed to be the
infringement of Article 21. Explaining further the court remarked that framers of our
Constitution did not use the positive terminology because they intended that concepts
such as liberty should acquire a meaning from understanding and understanding of
coming generation. Thus Court imposed positive duty upon State to protect personal
liberty of an individual.

The right to life and personal liberty is inherent in every individual. With the
passage of time and according to changing needs of the society Law grows in the
society to meet the needs of society so a Positive terminology is not preferred for the
same. Article-21 has been interpreted to include several rights such as right to
livelihood, food, shelter etc. A question arises in the mind of reader that whether State
is under an obligation to provide employment for all, to construct residence for all or

37
AIR 1978 SC 1207
38
People Union for Democratic Rights v. Union of India AIR 1982, SC 1473

P a g e | 54
to found an organization which is required by citizens? Due to financial constraints
Court has restrained itself from providing those rights which in the opinion of court
are not necessary whereas it has exceeded its limits in matters which it deems
necessary.

The Court finally cleared the dilemma relating to positive and negative nature
of this right in Unni Krishanan’s case39 where Apex Court held that Article21 has
both negative and positive elements. The view put forward by Apex court is
appropriate because this view helps the court in exercising its wisdom for issuing
guidelines in cases violation of this right at the end of State. Further it is submitted
that this Article has received that extensive interpretation that the distinction of
positive and negative right hardly matters. Thus, it can be said that “the
jurisprudential distinction between the positive & negative rights has no impact on the
nature of the right to personal liberty”.

2.3.2 Restrictive and Privative Right

The language of the Article implies that this Right is Restrictive and Privative
in nature. Restrictive right means a right which restrict or control something as this
right restricts all the person and authorities to take away life or liberty of any
individual so in this sense this right is Restrictive in nature. The question regarding
this has been raised before the Apex Court for the first time in the matter of A.K.
Gopalan v. State of Madras40.

In this case the question was regarding the restriction on movement that
whether restriction is included under the term deprivation or not, the court was of the
opinion that deprivation is not included within restriction; similar view was taken in
the matter of Kharak Singh v. State of U.P.41. But the decision of these cases was
turned down by Bhagwati, J. in Francis coralie v. Union of India42, where the Court
provided a broad interpretation to Article21 and held that term ‘deprivation’ includes
‘restriction’.

39
Unni Krishnan v. State of A.P, 1993 AIR 2178
40
AIR 1950 SC 27
41
AIR 1963 SC 1295
42
AIR 1981 SC 746

P a g e | 55
 Another issue which was decided by the court was whether the restrictions
which are to be treated as violation of liberty should be total or they can be partial
also. Prior to this judgment law was settled that only total loss is termed as violation
of liberty and partial restraint on liberty is not covered under Article 21. But this
position of law was changed and it was held that even the slightest loss of liberty will
be covered under Article 21 and court will provide protection to it. The position was
cleared in Maneka Gandhi case where it was held that actions having direct impact on
personal liberty would invite Article21.

In Gopalan’s case court was of opinion that restriction on physical freedoms is

covered under the aspect of Personal Liberty and psychological or emotional
sensitiveness are not covered within the scope of Article 21. However, In Kharak
Singh, Subba Rao, J. while delivering his dissenting views stated that psychological
restraints are more powerful than the physical restraints and they should also be
protected under Article 21. The dissenting view that psychological restraints comes
within the scope of personal liberty was adopted in this case. In Stone Quarries
Case43 where court declared that living in conditions which threaten or endanger the
life of inhabitant will be treated as denial of Personal liberty.

The term ‘Deprive’ implies taking away the thing which one has with him or
to stop him from obtaining, consuming or enjoying the same further this term also
implies taking away, end, injure or destroying the thing 44 . Even temporary or
provisional deprivation will be covered under Article 21. Therefore, the above
mentioned interpretation affords a complete protection on the deprivation of personal
liberty.

2.3.3 Procedural and Substantive Right

Marginal note appended to Article 21 provides the idea that this Article
stipulates a substantive right. This Article uses the term ‘Procedure’ which refers that
the article also gives procedural guarantee. One of the issues in Gopalan Case was
that whether the procedure which takes away life or liberty has to satisfy the condition
of Article-19. In Gopalan case court held that both the articles are in different domain

43
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802, 811
44
Manmath Nath Kayal v. District Manager, F.C.I. AIR 1996 Cal 316, 322

P a g e | 56
and one does not affect other. In other Article 19 is not violated if liberty is restricted.
But in later judgments court following the American Jurisprudence set asides the
distinction and held that Article 21 provides for both Procedural and Substantive
Right and there is a nexus between Article 14, 19 and 21 and if right provided any of
these article is affected than other rights will also be deemed to be violated.

From a simple reading of Article 21 it is clear that it prescribes two conditions

for taking away the right of an individual first, there should be legislation which
stipulates for taking away the liberty and second, that legislation should stipulate a
procedure which should be just, fair and reasonable. This view was expressed by
Bhagwati J. in Habeas Corpus case45was that this article provides substitutive and
procedural safeguards. This article provides for a procedure which is just, fair and
reasonable besides this it also guarantees right to life and liberty to each individual.
So both Procedural and Substantive Right is provided by this article.

2.4 Historical background of Right to Life & Personal Liberty

Whenever Scholars of Constitutional law start their study with respect to

Article-21, they start their discussion from the status of this right during British
regime but the fact is idea of this right existing even during ancient India. There are
facts which support the view that protection to liberty of person and house was in
46
existence during ancient time. Several Indian sculptures like Rig-Veda ,
47
Mahabharata etc are filled with various instances which clearly state that the
principle of liberty was there in the ancient India. We also find the mentioning of
privacy and liberty during the regime of Mauryan Dynasty, in Edicts of Ashoka there
are various instances which clearly stipulates about liberty and other rights connected
to it. The Constitution of contemporary Nations like Bangladesh, Nepal, India, and
Pakistan stipulate the concrete evidence of Buddhism which has been the preparator
of liberty and privacy. As per the edicts of Ashoka conversion to Buddhism was at its
peak during this period and it has reached till Mediterranean Sea and this can be
proved from the fact that many Buddhist monuments were found there 48.

45
ADM Jabalpur v. Shivkant Shukla, AIR 1978 SC 1207
46
Rig-Veda 8/38/12
47
Shantiparva Mahabharata, 359, 9
48
Wikipedia, the free Encyclopedia, edicts of Ashoka

P a g e | 57
 Let us have a glance at the historical background of this right starting from the
British period and till framing of the Constitution.

2.4.1 British Period

During the British regime the law relating to personal liberty was laying in
dormant condition. Several legislations were framed by the Britishers which
empowers the executive to disposes individual of his liberty that to in arbitrary
manner. In 1793 the East India Company empowered the Governor of Calcutta to
authorize death of an individual on the ground of performing activities which are
detrimental to British Government. Similar provision can also be found in The Bengal
State Prisoners Regulation 181849. This Regulation allows arrest of an individual on
the ground of Public interest and Security of Country. People wanted similar Rights
and Liberties which were enjoyed by the Britishers so in 1885 Indian National
Congress was formed to fulfill this demand. The Indian National Congress actively
propagated to incorporate the Fundamental Rights in the Constitution of India. The
logical demand for this right begins with the presentation of Nehru Report in 1928.
One of the Chapters of Report relates to Fundamental Rights which demands that “No
person shall be deprived of his liberty, or property, by law, to preserve his dwelling or
to be executed or entered foreclosure”. However, the demands of Indians were not
accepted by British government as Government of India Act, 1935 does not contain
any provision relating to Fundamental rights. It is significant to mention here that
Code of Criminal Procedure, 1898 provides remedy against illegal arrest and
detention in the name of writ of Habeas Corpus.

British Government has made several efforts to control the people of India by
not providing them right to liberty. An attempt was made to empower the detention
law and to keep it beyond the power of Judicial Review a provision regarding the
same was made under Government of India Act, 1939. However, the Federal Court in
Kesav Talpade v. Emperor50 declared this rule as invalid and void. In order to nullify
the outcome of this decision Governor General promulgated Government of India
(Amendment) Ordinance, 1943 which reverse the effect of judgment. But this

49
BP Dwiwedi, The transmuting dimension of personal liberty in India
50
6 F.L.J. 28

P a g e | 58
Ordinance was again challenged in King Emperor v. Sibnath Banerjee 51 , where
Federal Court held that order for making an arrest can only be made after satisfaction
of the local authorities. But in appeal Privy Council reversed this decision on the
ground of being an erroneous one. However, Privy Council rejected the contention
that it has no power to check the validity of Detention order passed under ordinance
of 1943. The provision relating to Detention was again amended in 1944 by passing
another Ordinance which empowers the authority to issue order of detention by rules
and restricts the power of High Court to issue writ in such matters52.

The legality of amended ordinance was again challenged in Basant Chandra

Ghosh v. King Emperor53 in this case the issue before the court was regarding legality
of Section 491 of the Code of criminal Procedure which deprive the Court to check
the validity of Ordinance. Declaring Section 10(1) of the ordinance as illegal and void
Court held that this section neither oust power of the court to check validity of
ordinance nor it repeal Section 491 of Code of criminal Procedure, 1898 which
empowers the Court to issue writ. It is stated that several attempts have been made by
the Executive to take away the power of judicial review from Court and to stop it
from any granting relief under Section 491 of Cr.PC, 1898. But court did not allow
the attempts of executive to succeed.

In 1925, Annie Beasant demanded for a strong right relating to liberty of

individual according to her seven basic rights should be provided to public and they
should not be taken away. Further in 1927, Indian National Congress following the
concept of Home Rule came forward to secure the right of Speech and Expression of
an individual. In 1928, 11-member group headed by Motilal Nehru insisted on
proposal of including Fundamental Rights in the Constitution of Nation.

Rights which were adopted after the First World War were influenced by the
American Constitution and several international instruments. Government of India
Act, 1930 replicates various provisions relating to Fundamental Right and Principles
of law from the constitution of various Nations. In its meeting at Karachi, the Indian
National Congress adopted a resolution which provides for land reforms and imposes

51
(1943) 6 F.L.J. 151
52
The transmuting dimension of personal liberty in India, B.P. Dwiwedi
53
(1944)7 F.L.J. 203

P a g e | 59
limitation on right to liberty on the ground of security and integrity of Nation. For the
first time the proposed resolution offered safety of the rights and land reforms. Other
group in the meeting proposed for the right of universal adult suffrage and abolition of
tax transmission of money.

Thus it can be said that the Scope and extent of liberty was controlled by
legislation and the government did not shows interest in the protection of liberty of an
individual. Judiciary ruled in the favor of Government and supported the actions of
government even those which deprives individual of their liberty or the right is
limited to such an extent that it is devoid of utility.

2.4.2 Framing of India’s Constitution

In 1946 the Constituent Assembly was formed to enact a Constitution for

independent India. In December 1946 the members of Assembly namely B.N. Rao
and K.T. Shah sent some recommendation which provide detailed provisions relating
to Fundamental right to the President of the Assembly. Clause 52 of K.T. Shah’s
recommendation stipulates that “no one shall be deprived of life, limb or property
except under the due process of law”. Shah was of opinion that in civilized society no
right can be absolute and unqualified even it is Fundamental Right.

The draft prepared by K.M Munshi contains a Chapter relating to freedom

which contains a clause relating to liberty which reads as “no person shall be deprived
of his life liberty or property.” Even the draft prepared by Dr. Ambedkar Contain a
provision with regards to this right it reads as: “The State shall not deprive any person
of life, liberty or property without the due process of law”. Thus, it can be said that
initially the draft of Constitution was dominated by American concept of liberty.

The drafts prepared by various members were considered by the Constituent

Assembly and two clauses were included in the initial report prepared by it. The
clauses which were included were numbered as 11 and 29, which shall be read as
follows: Clause-11 reads as “No person without proper process of law will be
deprived of liberty or property. Clause-29, reads as No person shall be subjected to
perpetuated detention preceding tribulation, to exorbitant bail or intransigent refusal
there of or to inhuman or cruel penalization”.

P a g e | 60
 Explaining the draft report B.N. Rao said that Clause11 had been enacted
following the Amendments of U.S. Constitution. Rao was aware about the experience
of America with respect to right to liberty expressing his concern he mentioned that
about 40 % of the cases which are pending before the American Supreme Court are
based on the interpretation of “Due Process” clause. Besides this he pointed out the
uncertainty in the meaning of the clause that there is no precise definition which can
be attached to it. In April 1947, Committee again reconsidered its recommendation
and in this meeting clause 29 of the draft was wiped out by the Advisory committee
because committee thinks that the phrase “Due Process of Law” is wide enough
which will cover the ambit of other rights. Further the Clause11 of the original draft
was renumbered as clause 12. While commenting on this clause Krishnaswami Ayyar
put forward certain suspicions with respect to interpretation of this phrase which
might come forward in the future. He put forward the problems faced the Supreme
Court of U.S. in the interpretation of this clause and mentioned the dangers that in
spite of being providing a right this provision may possess hazards of becoming a
legislation which takes away the right. He completed his views by stating that he is
not against incorporation of this phrase in the Constitution but he wanted that
committee should actively pay regards to his suggestions.

Govind Vallabh Pant strongly opposed the inclusion of this phrase under the
constitution and said that this phrase should be avoided because this phrase is vague
and ambiguous which is capable of different and conflicting interpretation. The use of
this phrase indicates that the future of Nation will not be decided by the wisdom of
Constituent Assembly which is representatives of the individual rather it will be
decided by the unpredictable decisions of judiciary.

During his visit to America, B.N. Rao had a detailed conversation with the
Judges of Supreme Court of U.S regarding the incorporation of “Due Process” clause
in the Constitution of India. Justice FrankFuter explains B.N Rao that the power to
review and reject the legislation as provided to Judiciary makes it the most powerful
institution which is against the principle of separation of Power and undemocratic. He
suggested that in place of “Due Process of Law” the phrase “Process established by
law” should be used to maintain the division of power and democratic setup of
government.

P a g e | 61
 Committee considered the advice given by Justice FrankFuter and borrowed
the phrase ‘Except according to Procedure established by law’ from Article31 of the
Japanese Constitution to provide a smooth functioning to Constitution. So Article 15
of the draft Constitution was framed which read as “Except according to procedure
established by law that no person shall be deprived of life and personal liberty within
the territory of India”. After a lot of discussion on this provision the final form of this
right was drafted that exist today and reads as follows:

“No Person shall be deprived of his Life or Personal Liberty except according
to Procedure Established by Law”

2.4.3 The Constituent Assembly

The Constituent Assembly was formed in 1946 with a view to enact a

Constitution for independent India. The sub-committee relating to fundamental rights
was also formed under the leadership of Dr. B.R. Ambedkar. This committee after
studying the Constitutions of different Nations, decided to enact a provision relating
to protection of life and liberty of an individual. After studying the committee was
confused with respect to enactment of words which limits the right of life and liberty.
Committee was not able to decide which expression to be used i.e. whether to use the
phrase “due process of law” as provided under the Constitution of United States or to
use “procedure established by law” provided under Japanese Constitution.

This matter came for the consideration before the assembly in December 1948.
More than 20 changes were suggested by the members of Assembly with respect to
this provision in those changes most of them suggested to use the latter expression
over the former one. On the basis of suggestions given by the members of Assembly
we can divide these into three groups. The first group which was supported by
Karimuddin recommended the use of words “Without due process of law to any
person shall be deprived of his life or freedom”. While the second group which was
supported by Mahaboob Ali Baig, recommended the use of words “Procedure in
accordance with law”. The third group which was supported by many members such
as C.C. Shah, K.C. Sharma, H.V. Pataskar, K.M. Munshi etc. advocated for the phrase
“without due process of law”.

P a g e | 62
 However, the major discussion of the Assembly reveals around the phrases
used in American and Japanese Constitution. There was difference of opinion among
the members of Assembly. The expression used under American Constitution, which
ensures life and liberty of individual but it can be abridged by the Court, was opposed
by many members on several grounds.

Syed Karimuddin was of opinion that if this Article is included in Constitution

as it is than it will result in distress among people. He was of the opinion that there
should be no violation of individual liberty by the political parties. Pandit Bhargava
based his arguments on the general proposition of law which indicates that Act made
by legislature can take away the right to life and liberty on the other hand he was also
of the opinion that there is the phrase is complex and rigid and further it is difficult to
define but he also stated that Judiciary may be authorized to limit this right by
substantive as well as procedural law.

Supporting this clause Bhargava said if the legislation is passed after

incorporating the proposed amendment than the Judiciary will have the power to
review the working of legislation and to determine whether the legislation enacted by
legislature is just and fair and whether or not it prohibit the liberty an individual. He
further said that the term law includes both substantive law and procedural law.
Answering to the argument that this phrase is vague whose meaning is not defined, he
said that there are several words which are not defined in the constitution; for example
the word law which finds its mention in both the expression is not defined in
Constitution. His views were supported by other members of the committee.
Explaining further Bhargava said by virtue of this Article about 70% of the legislation
would come under the review of Judiciary for examining their rationality. On the
same analogy he suggested for incorporation of some strict provision relating to life
and liberty.

He said that the main motive of this amendment was to protect individual from
the cruelty of legislature and executive. Explaining this he said we have two
protectors of our liberty one is legislature and other is Judiciary. If sometimes
legislature fails to perform its duty than judiciary will prevent us from the cruelty.
Stating further he said that in democracy Judiciary is the supreme authority for the
protection of individual life and liberty. He was opinion of that judiciary should be on

P a g e | 63
the highest footing for providing protection so that people are assured that their right
is under the protection of judiciary.

This amendment was supported by some members of the Assembly such as

Chimanlal Chakkubhai who put forward two reasons for substitution of the clause.
According to whom under American Constitution most of the problems were the ‘Due
process clause’. Second, the liberty has been qualified by the term ‘personal’ which
distinguishes it from liberty of any kind such as of contract or other kind. Therefore
according to him it was wrong to say that ‘Due process of Law’ will lead to any doubt
or unnecessary interference by the judiciary. Krishna Chandra Sharma also supported
for the incorporation of this phrase on the basis of study of several decision of
American Supreme Court.

K.M. Munshi was in favor of incorporation of phrase “Due Process of Law”

because according to him there should be a balance between liberty of an individual
and sociable control over it. Agreeing with Mr. Shah he says that they have made
radical changes by removing the phrase property and limiting liberty to that of person.
According to him this clause will empower judiciary to examine Procedural and
Substantive legislation. According to him this was the best way to strike a balance
between liberty of an individual and its amiable control.

Another phrase of which was familiar or which was discussed at length by

Drafting Committee was ‘Procedure established by Law’. This phrase has been
provided under Japanese Constitution. There have been several provisions relating to
Fair trail and protection of liberty under Constitution of Japan. Mahaboob Ali
advocated for inclusion of all those rights which provide the opportunity of fair trail
and provide safeguard to individual54.

After a long discussion the two major perspectives relating to the article
emerged which were ‘Due process of Law’ and ‘Procedure established by Law’. Dr.
Ambedkar was in state of dilemma and was not able to choose which one should be
included in the Constitution. This was clear from examination of his words. It is very
to reach at one end as both side are at threat. I have scrutinized the American

54
The transmuting dimension of personal liberty in India B.P. Dwiwedi

P a g e | 64
Constitution and Japanese Constitution both has their benefits and demerits but we
have to choose one.

After elaborating both points it is evident that Ambedkar was not able to take
the decision so he decided to decide this matter by voting among the members of
assembly. When this article was put to vote the phrase ‘Procedure established by
Law’ won and the same was adopted by the assembly and incorporated under the
Constitution of India. This Article was finalized on 17th October, 1949 and was again
presented to the drafting committee for integrating the changes and for final reading.
At this stage the provision relating to equality was removed from Article15 and it was
renumbered as Article21 which now read as:

“No person shall be deprived of his life or personal liberty except according
to the procedure established by law”

Constituent Assembly completed third and final reading of the Constitution in

November 1949. At this stage no article to article discussion rather a general
conversation. No changes were effected in the revised draft Constitution. Dr. Rajendra
Prasad, the President of the Constituent Assembly expressed that the best Constitution
was ready for the Nation and its effectiveness would depend on talent, skill,
genuineness and honesty of individuals.

2.5 Constitutional Background

Article21 of the Indian Constitution provides for protection of life and

personal liberty of an individual is worded as “No person shall be deprived of his life
or personal liberty except according to procedure established by law”.

In March 1947, the drafts relating to fundamental rights were made by Dr.
Ambedkar and KM. Munshi. Both the drafts expressly stipulate the provision
regarding to protection of life, liberty and property of an individual. The report of
Sub-committee on fundamental rights contained the following clause:
“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.

P a g e | 65
 Provided that nothing herein contained shall prevent the Union Legislature
from legislating in respect of foreigners”.

This provision was based on the 5th and 14th Amendments of U.S.
Constitution. B.N. Rau depicts the attention of Constituent assembly towards the
number of cases which are pending before Supreme Court of United States which are
result of “Due Process of Law” phrase because this phrase is difficult to define and it
would be interpreted as per the meaning provided to it by the U.S. Supreme Court in a
particular case.

Several complications relating to “Due Process” which were faced by the

United States were put forward by Alladi Krishnaswami Ayyar in the Advisory
Committee. The problem arises due to diverse explanation of the phrase by the
judiciary. From limiting this phrase to procedure, judiciary has extended this phrase to
substantive rights. G.B. Pant also opposed this phrase by saying that this phrase is
ambiguous and is open to diverse interpretation. Further he says that using of this
phrase will 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 to the 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 also expressed his views on this matter and they were integrated in
the Clause9 of Report of the Advisory Committee, which was worded as:

“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”.

After some discussion the Constituent Assembly agreed to this provision but
no changes were made in this provision. B.N Rao replicated this provision as Clause
16 in the Draft Constitution but after adding the word ‘Personal’ before ‘Liberty’. He
was of the opinion that if liberty is not qualified by the word personal than it will be

P a g e | 66
interpreted to include all form of liberty such as price control, contracts etc. which
will result in misuse of this provision.

The Drafting Committee approved the change. Meanwhile, during his visit to
America B.N Rao met Justice Frankfurter, Judge of U.S. Supreme Court who warns
him that “Due Process” clause should not be used. “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”.

The phrase “Without Due process of Law” was removed from the draft of the
constitution and it was replaced by the phrase “Except according to procedure
established by Law” which was taken from Japanese Constitution. Article15 of the
Draft Constitution read as under:

“No person shall be deprived of his life or personal liberty except according to
procedure established by law nor shall any person be denied equality before the law or
the equal protection of the law within the territory of India”.

The draft of Article came for deliberation before Assembly on 6 December,

1948. There were member supporting both the clauses. Pros and Cons of this Article
were discussed in detail by the Constituent Assembly. K.M. Munshi supported by
some other members advocated for inclusion of “Due Process of Law” clause. Munshi
was of opinion that by exclusion of right relating to property and qualifying liberty by
term ‘Personal’ this Article has become unimpeachable and the same is not liable to
create problems which it has created in United States.

Munshi was fearful that parliament may enact law in hastily in order to attain
control over liberty by providing extensive supremacy to executive and police. He
wanted that Judiciary should have the authority to decide that whether any law
violates the liberty of an individual and according to him it can happen if ‘Due
Process’ Clause is provided in the Article.

On the other hand, Krishnaswamj Ayyar said that three or five judge sitting as
court of and reviewing legislation is not democratic and the same is against the wishes
of elected representatives of the people of Nation. He requested the assembly that in
the name of “the future progress of India, the well being and security of the State, the

P a g e | 67
necessity of maintaining a minimum of liberty, the need for coordinating social
control and personal liberty”.

There was heated argument in the meeting of Constituent assembly regarding

this Article and due to lack of consensus the meeting was deferred till further date. In
the next meeting Dr. Ambedkar put forward the different opinion regarding this
provision and said that the debate revolves around the fact that whether the nation can
rely on the Parliament that it will not enact the laws which abridges the liberty of an
individual. Explaining further he said:

“For myself I cannot altogether omit the possibility of a Legislature packed by

party men 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 don’t see how five or six Judges sitting in Court can examine the laws
enacted by parliament and who are not affected by their personal bias in determining
which legislation is good and which is not. It is an issue where one has to decide
between two equally hazardous alternatives and I therefore would say nothing.

About twenty amendments were proposed which suggested substitution of

phrase “Except in accordance with Law with without due process of Law” or some
like clause. These amendments were considered for voting but all of them were
negatiated by the assembly and the Article projected by Drafting Committee was
approved to be included in the Constitution. Even than the argument and
disagreement exists but the basic phrase of draft Article survive. As a curative and
remedial measure another stipulation affording safety to liberty of an individual
against arbitrary arrest and detention was added.

2.6 Expanding Horizons of Right to Life and Personal Liberty

The Term ‘Life’ as stipulated under Article21 has been provided an extensive
and broad meaning by the Apex Court. However, prior to Maneka Gandhi’s 55
judgment, Court declares that Article21 protects citizens from executive action only
and not from legislative action. So liberty of an individual can be taken away by the

55
Maneka Gandhi v. Union of India, AIR 1978 SC 597

P a g e | 68
government by enacting legislation. But after the judgment of Maneka Gandhi’s it is
clear that Article-21 protects individuals from both Executive and Legislative action.

As no right is absolute same is the case with right it is also not absolute and
this proposition is followed by this provision also and the judgment also clears that
even after this judgment an individual can be deprived of his life and liberty if the
following situations are satisfied: First: There should be legislation, and Second: A
procedure should be established by that law. Not only the procedure to be provided by
the law but the procedure should be just, fair and reasonable according to established
philosophy of law.

2.6.1 Status Prior To Maneka Gandhi Case

For the first time the term Personal Liberty come for the Consideration before
Apex Court in the matter of A.K. Gopalan v. The State of Madras56 in this case the
validity of Preventive Detention Act, 1950 was challenged by the Petitioner who was
detained under the provisions of this Act. This Act was challenged on the grounds that
it restricts the Freedom of Movement of petitioner a necessary component of liberty.
According to petitioner Preventive Detection Act should fulfill the conditions of
Article-19(5) as the phrase Personal Liberty as provided under Article21 incorporates
freedom of movement.

In simple words, there were two main contentions of the petitioner first,
limitation imposed by the detention law must be reasonable which satisfies the
conditions of Article 19(2). Second, Article-19(1) and Article21 should be read
together as the former Article provides substantive rights and later one provides the
procedural one. It was stated that the phrase “Procedure Established by Law” and
“Due process of Law” means one and same thing and principles of natural justice are
inherent in it. Since this legislation does not fulfill the conditions of due process hence
it is void.

Refusing both the Arguments, Apex Court adjudicated that the term Personal
Liberty as provided under Article 21 signify liberty of body only and provides
freedom from arrest and detention without sanction of law. Defining the phrase Prof.

56
AIR 1950 SC 27

P a g e | 69
Dicey says Personal Liberty freedom from physical restraint and compulsion without
the authority of law. And this definition was followed by the Apex Court in the instant
case. Apex Court said that the phrase liberty is broad and complex term and if it is
construed liberally it will include all the right of individual including those which are
specified under Article 19. In our Constitution liberty has been prefixed by term
personal and explaining it the Court said, by using the phrase Personal; the meaning
of phrase now means liberty of individual only and not that meaning which has been
provided under English Law. Court was of opinion that Articles 19 and 21 are in
different domain and deals with diverse effect of Liberty. Article 21 protects
individual against complete deprivation of liberty while Article19 provides safety
against irrational restrictions which are partial in nature such as restriction on
movement of individual.

Rejecting the plea that the phrase ‘Law’ as provided under Article 21 includes
principles of natural justice court held that the phrase ‘Law’ only means ‘State made
Law’. Fazal Ali, J. was of opinion that legislation can be challenged on the ground
that it contravenes the freedom of an individual and he expressed his opinion in his
dissent judgment. He provided a broad interpretation to the term ‘Personal Liberty’
which incorporate freedom of movement. Therefore, legislation which deprives an
individual of his liberty has to fulfill the conditions of both Articles-19 and 21. So in
short it can be said that in beginning the Apex Court gave a narrow and restrictive
interpretation to this right.

But this interpretation was not followed by Apex Court in its later judgment.
In Kharak Singh v. State of Uttar Pradesh57 court declared that “Personal Liberty” is
not restricted to bodily restraint rather it is a compendious term which includes all
kinds of rights which combines to form the personal liberty of an individual. Further
this Article includes the rights other than those which are provided under Article
19(1). In other words, Article 19(1) protects only specific kind of freedom enumerated
under it whereas the term “Personal liberty” as stipulated under Article21 includes the
rest. Further, it was also held that the term ‘Life’ does not mere animal existence but
something more than that means life of human being.

57
AIR 1963 SC 1295

P a g e | 70
 In that case petitioner was charged and arrested for the offence of dacoity but
was released after some time as there was no evidence against him. A history-sheet
was created against him under the U.P. Police Regulations and he was kept under
observation and domiciliary visits and secret picketing of his home was conducted.
All these activities of police were authorized by the Regulations which were
challenged by petitioner in this case. Apex court deciding in favor of Petitioner held
that domiciliary visits by police are against the principle of personal liberty. ‘Life’ as
provided under Article 21 “does not mere animal existence. The inhibition against its
deprivation extends to all those things and facility by which life can be enjoyed. The
provision equally prohibits the mutilation of the body or amputation of an arm or leg”.
Court explaining further remarked that it is correct that phrase ‘liberty’ as used under
Article 21 is qualified by term ‘Personal’ but this term has been used to differentiate
between provisions of liberty which are stipulated under Article-19. An unauthorized
disturbance is the violation of his liberty guaranteed to an individual. Hence, the
Regulations were held to be violative of Article 21 and the same was declared void
and unconstitutional.

But in Govind v. State of M.P58, Apex Court upheld the validity of M.P. Police
Regulations which also authorizes domiciliary visits as the same have force of law.
These Regulations were passed under the M.P. Police Act. It was challenged by
petitioner on the ground that they violates ‘Right to Privacy’ of an individual. Apex
Court declared that the Regulations are legal as they have the force of law. With
regards to ‘Privacy’ Court explained that it has to follow the route of case by case
development. Therefore, even assuming that right of privacy is a fundamental right
than also this right is not absolute. “Depending upon the character and antecedents of
the person subject to surveillance and the object and limitations under which
surveillance is made, it cannot be said that surveillance by domiciliary visits would
always be unreasonable restriction upon the right of privacy. The impugned
Regulation empowers surveillance only of persons against whom reasonable material
exists to include the opinion that they show a determination to lead a criminal life.
The petitioner was shown to be a dangerous criminal whose conduct showed that he
was determined to lead a criminal life. The Regulations imposed reasonable

58
1975 SCC (2) 148

P a g e | 71
restrictions on the fundamental right of petitioner guaranteed in Article 21 and
therefore, they are valid”.

2.6.2 Turning Point which leads to Expansion of Right to Life

Judgment of court in Maneka Gandhi v. Union of India59 was turning point for
Article 21 which provided a dimension to this Right. Providing a new aspect to
Article 21 Supreme Court declared that “right to live is not merely a physical right but
includes within its ambit the right to live with human dignity”.

In brief, the facts of case are that on 4th July, 1977; Maneka Gandhi received a
notice from Passport Office, Delhi, which directed her to deposit her Passport in the
Passport office within 7 days from the receiving the notice. The notice states that her
passport has been seized by the authority under Section 10(3)(c) of the Passport Act,
1967. The notice mentioned Public Policy as the reason for taking action against her.

In response to the above notice the Petitioner sent a reply to the Authority,
asking for the reasons for seizing her Passport. She further requested the Authority for
providing a copy of notice stating reasons for issuing the notice and confiscating her
passport. In reply to that the Ministry stated that it is power of authority to seize the
Passport of any individual in the interest of public. Further, Ministry explained that
there were request from Passport authority to not to state the reasons for providing
duplicate copy of notice stating the reasons for seizing her Passport. The present case
was filed by petitioner against the orders of Ministry, challenging the order of
ministry and Section 10 of Passport Act.

It was argued that the Section 10 is violative of fundamental right of petitioner

and the same should be declared as void and unconstitutional. After considering the
matter in detail court declared that Section 10(3)(c) of the Passport Act provides
indefinite powers to the Passport authority and same is violative of principles of
Natural Justice as it does provide an opportunity of being heard to both parties. This
section is violative of Article 14 of constitution and hence void and unconstitutional.
Further, court declared this provision to be violative of Article-21 as it does not

59
AIR 1978 SC 597

P a g e | 72
provide the procedure to take away the Passport of an individual, and the procedure
followed in this case is vague and unlawful.

Article 14 of the Constitution provides equity before the law. Section10(3)(c)

of the Act is violative to the extent that it provides unbridled powers to the Passport
authorities. Since the words used in the Act are ambiguous so the proposition that it
has been provided under the Act would not be sufficient. Words used in this section
are confusing and liable to different interpretation which allows the authority to
interpret it in the way which suits them and there are chances that this can be misused
under the pretext of interpretation.

The words used in the Act intervenes the activities of Authority. This
argument emanates from the fact that it is completely within the regime of Passport
authority to proceed in the way they like. The phrase ‘deems it important’ empowers
the Passport Authority to precede in the way they desire. Besides this there is no
consistency and transparency in the activities of authority and their activities vary
from case to case.

Following the principle laid down in E.P Royappa v. State of Tamil Nadu and
another60, Apex Court held that Article 14 is a significant Fundamental right provided
under Constitution and a narrow and restricted meaning cannot be accorded to this
Article. Article-14 should be interpreted in an extensive way including sensibility and
aspirations of the Constitution. Accordingly Section 10(3)(c) of the Act was declared
to be violative of Article 14 and hence is void and unconstitutional.

The Section 10 of Passport Act was declared to be unconstitutional and the

passport authority was ordered to return back the passport of the petitioner and
petitioner was allowed to move freely declaring it fundamental right as provided by
Article 21 of Constitution. Before moving further let us have a look the major
implications of this judgment.

 Violation of Principles of Natural Justice

There are two principles of natural justice one is Rule against bias i.e. no one
should be judge in his own case and the second principle is Audi Alteram Partem.

60
(1974) 2 SCR 348

P a g e | 73
Both these Principles play a significant role in deciding the legality and
reasonableness of any procedure. Audi Alteram Partem means to “hear the other
party”. In simple words this term implies that both the parties should be provided an
opportunity to present their case before the designated authority. In this case,
petitioner was not provided with reasons for seizing her passport, “which is not valid
as every individual has the right to know the grounds on which an action is taken
against her. Further, she was not allowed to present her case before the authority”.

The Rule of Audi Alteram Partem mandates that before passing the final
direction of seizing of her Passport she must have been allowed to approach the
authority and to present her case with the plea that her Passport must not be seized.
There is a possibility of landing at an irregular judgment if only one party has been
heard. So with the ultimate objective to keep the decision free from biasness it is
necessary that both the parties must be heard.

In this case, after the intervention of court the passport authority accepted that
they have not provided opportunity to the petitioner to present her case and agreed to
provide an opportunity to present her case before the authority. In this case, it is
important to mention that authority had been held to be at fault and to correct their
fault they had accepted to provide her opportunity to present her case. It court have
not interrupted than the authority was unquestionably even it is at fault and even when
judiciary had declared their activity as being discretionary and opposed to the
Principles of Natural Justice.

 Section10(3)(c) not Violate of Article19(1)(a) and 19 (1) (g) of the

Constitution

Article 19(1)(a) of Constitution assure freedom of speech to all citizens of

India. Petitioner claims that seizure of her Passport has violated her two important
fundamental rights. She claimed that the right to personal liberty incorporates the
right to move abroad to different countries. Similarly this right also provides to have
communication throughout and out of the country. Since her passport has been
confiscated and she has been denied right to move out of the country her right to
speech has been infringed.

P a g e | 74
 Court held that the above mentioned argument were right and confiscation of
her passport has lead to the infringement of Article-19, there is no evidence which
shows that petitioner has scheduled a visit which has been canceled due to
confiscation of Passport. Nor there was evidence to show that there was genuine
requirement of going to other nation and making use of her fundamental right of
speech, for e.g. debate, moving, writing, etc. Thus the prayer for the damages was not
rejected and no damages were given to the petitioner.

 The order is violation of Article 21 of the Indian Constitution

In Satwant Singh Sawhney v. D. Ramarathnam61 Apex Court declared that the

expression “Personal Liberty” includes the right to travel in a foreign country and
individual cannot be deprived of this right except according to procedure established
by law. This right has been acknowledged by the Parliament and the same cannot be
denied by issuing notice by the executive.

The petitioner claims that her right to travel abroad has been violated by the
Authority. Petitioner challenged that there has been violation of principle of natural
justice i.e. Audi Alteram Partem. The action of authority was discretionary in nature
as she was not informed about the reasons for appropriating her Passport. Further
there was violation of her right to travel abroad as her passport was seized without
assigning genuine reasons.

As far as inconsistency relating to procedure was concerned, the

administration agreed there have been activities which were self-assertive and
subsequently she was allowed to present her case. The peculiarity was dealt with to
the extent of her right and it was declared that her basic right has been infringed.
Judiciary provided a liberal interpretation to Article-21 and extended the scope of this
significantly.

Historically this case is very important as it provides an overwhelmingly

explanation to the significance of ‘Life and Personal liberty’. Further, it extended the
horizons of Freedom of Speech in a way that this right never confined in the regional
boundaries of the country. It stretches out nearly to the whole world. In this way the

61
1967 SCR (2) 525

P a g e | 75
case saw a high level of legal activism, and introduced another era of increasing
skylines of major rights as a rule, and Article 21 specifically.

Expressing a similar view, Francis Coralie v. Union Territory of Delhi 62 ,

Court held that “The right to life includes the right to live with human dignity and all
that goes along with it, viz., the bare necessities 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 mingling with fellow
human beings and must include the right to basic necessities the basic necessities of
life and also the right to carry on functions and activities as constitute the bare
minimum expression of human being”.

Another extended interpretation to the expression Life was formulated in

Bandhua Mukti Morcha v. Union of India 63 . Describing Article21 as the spirit of
fundamental rights, judiciary provided an extensive explanation to this Article.
Bhagwati J. observed: “It is the fundamental right of everyone in this country 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 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”. In Justice KS Puttaswami v. Union of India64
Court has further fortified this right and held that eminence of rationality is attached
not only to the procedure established by law rather also to the content of the law.

When we study the progress of law we come across the fact that various
aspects of individual personality have emerged as prominent feature with the passage

62
1981 SCR (2) 516
63
1984 SCC (3) 161
64
(2017) 10 SCC 1

P a g e | 76
of time, evolution of person’s thinking and change in priorities demand instantaneous
attention. After Maneka Gandhi, Article21 has been construed liberally and
extensively so as to fabricate more rights. “They are not only ancillary to the basic
right to life but are the inalienable limbs of life without which one will not be able to
achieve best of oneself”.

“Right to life was there when man took birth on earth. The laws of gravitation
were not formed on the day when Newton saw an apple falling on the ground, but it
was always there. Man recognized it after that event. Same is the case with right to
life. It was always there but man is slowly recognizing the same. Thus the liberal
interpretation given to the word right to life and personal liberty has great impact on
social life of human being”.

2.7 Right to Privacy: Part and Parcel of Right to Life

“Privacy originates from the word ‘Privi’ which meant something very secret.
This showed that there were certain actions or moments in man's life which he wished
to discharge them without any interference from any one”. Privacy is one of the
indispensable and apparent rights which every individual should enjoy but this right
was not acknowledged as a distinctive right by the administration for a long time
because it was not stipulated under the Constitution. With the passage of time the
acknowledgment of liberty has increased and due importance to this has been given
by Judiciary.

India is the world’s biggest and vibrant democracy whose social background is
rising up continuously. Following this growth there has been rise in the interference in
the individual’s personal freedom which is apparent from the working of media. In
India the law relating to Privacy is old, obsolete which do not suits the intricacy of
modern India. Indian legislation does not provide what privacy is; rather it only
stipulates instances of privacy that will be provided legal shelter. Right to Privacy is
not explicitly provided in the Constitution but it has been declared as fundamental
right as part of “Right to life and personal liberty”. This right has been accorded to
individual through the decisions of Apex Court. The advancement of technology has
resulted in great apprehension to rights relating to privacy, this risk increases further
due to easy availability and transferability of individual information.

P a g e | 77
 As there is absence of legislation relating to privacy and primarily judiciary
did not recognize privacy as a right. For the first time this right was discussed by
judiciary in M.P. Sharma v. Satish Chandra 65 where it was clarified by court that
when the framers of Constitution did not bothered to incorporate privacy as a separate
right than they have no reasons to declare privacy as right hence, they decline to
acknowledge right to privacy.

For the first this right was acknowledged by Supreme Court in the matter of
Kharak Singh v. State of Uttar Pradesh66 where it was held by court that though this
right is not expressly provided under the Constitution but the basis can be found in
right to life, thereby associating the right with Article 21. In this case court declared
that “nothing is more deleterious to a man’s physical happiness and health than
calculated interference with his privacy”. In Gobind v. State of M.P.67 Apex Court
qualified this right and held that a intrusion into individual’s privacy is feasible under
the authority of law, wherein Mathew, J. expected continuing development of this
right and remarked that this right will have to follow the procedure of case by case
expansion.

Further Privacy was the chief consideration for Supreme Court in R. Rajagopal v.
State of Tamil Nadu68, where the privacy of prisoner was in question. In this case a
publication namely ‘Nakheeran’ was pressurized to discontinue the publication of the
biography of prisoner as the same will insult the concerned officials. Apex Court
permitted ‘Nakheeran’ and advised that the public servants having any objections can
file the case for defamation if there is any but that too only after publication. Court
said that matter founded upon public records falls in the domain of public and the
same cannot be prevented from being published. This is significant decision of Apex
Court because if this decision has not been there than several publications about
Government and its events would not have been possible.

In Amar Singh v. Union of India 69 , a politician challenged the tapping of

phones of himself and of his relatives and obtained an injunction order from court

65
AIR 1954 SC 300
66
AIR 1963 SC 1295
67
AIR 1975 SC 1378
68
1994 SCC (6) 632
69
(2011) 7 SCC 90

P a g e | 78
prohibiting the media from publishing the same as some media houses have obtained
the access to tapings. However, court rejected both the claims of petitioner i.e. of
privacy and free speech mainly on the two grounds. Firstly, any person coming before
the court must disclose the source of information from which he has obtained the
knowledge. Secondly, all persons must come before the court with clean hands. In this
case court has right refused the claim of Petitioner as he has not approached the court
with clean hands.

The issue of privacy was coming before the court again and again in several
cases where Apex Court has also declared privacy as a specific right but this was
specifically reiterated in K.S Puttaswamy case. In 2017 Court declared this right as
fundamental and accorded the same status and protection as is available to any other
right.

In K.S. Puttaswamy v. Union of India70, the Constitutional validity of Aadhar

Act was challenged by retired Justice of High Court. Through this Act government
has made it mandatory to have bio-metric Aadhar card for availing the benefits of
government sponsored and government funded schemes. He argued that this Act
violates the Privacy of an individual and as there are no personal data protection laws
in the country so the information can be misused. It was argued on behalf of the
government that there is absence of any explicit provision for protection of Privacy in
our constitution. Apex court unanimously held that privacy is a component of
person’s Right to Life as guaranteed under Article21 of the constitution and through
this provision one has the right to keep his information personal. However, Court
upheld the validity of Aadhar Act but struck down some provisions of the Act.
Declaring Privacy as fundamental right court declared that this right is not absolute
and it may be constrained by government on certain grounds.

This right has been declared as a fundamental right by Apex Court and any
unlawful invasion this right is not acceptable. This “right has been extended even to
woman of easy virtues as she has been held to be entitled to her right to privacy.
However, right of privacy may not be absolute and in exceptional circumstance
particularly surveillance in consonance with the statutory provisions may not violate
such a right”.
70
(2017) 7 SCC 1

P a g e | 79
 In the landmark Judgment Court has declared Privacy as a Fundamental Right
originating from Article 21. A detailed analysis about this judgment and about right to
Privacy has been made in the Chapter III of this study. Chapter III deals with various
issues relating to Privacy such as its meaning, definition, evolution and present status,
etc. So for an in depth knowledge reading this right Chapter III of this study can be
approached.

2.8 Right to Life and Euthanasia

Euthanasia is the practice of terminating one’s life so as to alleviate his pain

and anguish which is certainly the most controversial topic across the globe.
Euthanasia has been a matter of debate for a long time. It is doubtful that doctors will
kill their cognizant/autonomous patients even if the patients ask for because it will
confront the Hippocratic Oath. This Oath casts a duty upon the doctors and Para-
medical staff that they should treat and serve their patients. Considering the fact that a
patient continuously and repetitively asks that he should be killed than also relatives,
doctors and judges should not be compelled to decide whether or not to continue the
life of their patient. As it is patient’s life and when he is capable of reaching an
informed decision none other than the patient himself should decide whether his life is
worth living or not. But when the patient wants to end life and he asks the doctor for
help and the doctor after detailed examination finds that it is better to end the life of
patient than to let him suffer till he dies than a question arises that should legislation
come in the way and should the Parliament not legislate a legislation which will
afford protection to incurably ill patients to end their life and recognizing their right to
die with dignity.

In recent times the problem relating to Euthanasia has become the topic of
debate for many nations of the world. “The right to die with dignity and euthanasia
and assisted suicide are emerging issues which concern human rights”. It is not lawful
for a doctor to carry out an encouraging act which brings about death of a patient,
however, withdrawal of life support system may be legal if the treatment is of no use
useless and discontinuing the same is in agreement with the medical ethics. With the
advancement of technology relating to medical science now death is not considered
with breathing and doctors declares a person to be dead only when his brain dies
particularly when his brain stem cells have destroyed. The discussion on removal of

P a g e | 80
life support system is also viewed from the angle of healthcare business which
imposes useless expensive treatment on patients.

Euthanasia is legal in several Nations but in India euthanasia is against the law
and the same is prohibited by IPC. A doctor who gives toxic drugs to the patient so
that he can terminate his life will be charged for the offence of abetment for helping
the patient in committing suicide. Like US and UK suicide is no more an offence in
India but the abetment to suicide will certainly be an offence under IPC. Further, a
physician who tries to take the life of a patient even at his demand will be liable under
Exception5 to Section300 of IPC and he will be punished under Section304 of Indian
Penal Code. Cases of non-voluntary and involuntary euthanasia will be covered under
Section92 of the Indian Penal Code. However, Law Commission of India in its
Report 71 had suggested the abolition of this section declaring it as cruel and non
justifiable.

As the law relating to Euthanasia was covered intrinsically by Indian Penal

Code and there is absence of direct provision relating to Euthanasia so this matter
came before Apex Court in various cases for checking the constitutional validity of
Euthanasia. Apex Court in P. Rathinam v. Union of India72 affirmed the legality of
Euthanasia and declared this as a right. But this decision could not stand for long and
the same was overruled by Court in Gian Kaur v. State of Punjab73 where euthanasia
and assisted suicide were declared illegal and court adjudicated that Life as provided
by Article21 does not include the Right to Die. Following the verdict of House of
Lords in Airedale’s case74 court mentioned that euthanasia can only be legalized by a
proper Statute. Even the physician assisted suicide is prohibited in India and physician
will be liable for the offence of abetment to suicide. Now even when suicide and
attempt to suicide has been decriminalized by the Parliament than also the abetment to
suicide is an offence.

Even though active euthanasia is unlawful in Nation but the position regarding
passive euthanasia was not clear in India. In Aruna Shanbaug v. Union of

71
42nd Report Law Commission of India, 1971
72
AIR 1994 SC 1846
73
AIR 1996 SC 1997
74
1993 A.C. 789

P a g e | 81
India75 Apex Court allowed passive euthanasia which includes removal of life support
system for the persons who are in persistent vegetative state. This verdict is the
outcome of a petition made by an advocate requesting Euthanasia for her friend who
was lying in a vegetative state for 37 years. Apex Court stated that in absence of
legislation relating to euthanasia the judgment of court act as law until legislature
enacts proper legislation. Though court rejected the plea of petitioner but court issued
the guidelines relating to passive euthanasia. Recently Apex Court has cleared the
position relating to Euthanasia as Active Euthanasia is illegal and punishable whereas
Passive euthanasia is legal as emanating from Right Life.

In Common Cause v. Union of India76 the matter relating to passive euthanasia

and living will again came before the Apex Court. This case was filled through Public
Interest Litigation requesting Court to declare living will and passive euthanasia as
lawful. The petitioner asserted that right to have a dignified death is also a part of
right to life but the recent technology has caused unnecessary delay in individual’s
death and is only causing distress to him and his relatives. Thus, living will by a
Person when the person was in fit state of mind can empower his relatives and the
hospital to end his suffering.

“In this case five-judge Constitution bench has undertaken the Herculean task
of declaring right to death with dignity as a fundamental right, an integral part of the
right to dignified life under Article 21 of the Indian Constitution. The Apex Court in
the instant case has dealt with the fundamental distinction between the ‘right to life’
being considered as a natural right and right to death being presumed as ‘unnatural’
and ruled that Right to Life also includes a person’s Right to Die with dignity, and
thus allowed Passive Euthanasia i.e. the will of patients to withdraw medical support
in case of slipping into an irreversible state of coma. The court has also validated
advanced medical directives along with attorney for healthcare, and has culled out
guidelines to give effect to passive euthanasia, which shall remain in force till the
Parliament brings legislation on the subject”.

Now the position regarding Euthanasia is clear and guidelines issued by the
court will be followed till any legislation is enacted by the government. Only a brief

75
(2011) 4 SCC 454
76
(2018) 5 SCC 1

P a g e | 82
idea of Euthanasia has been provided here, detailed analyses of this right has been
done under Chapter-IV of this work. For further clarification that chapter can be
looked, Chapter-IV provides an in depth idea of Euthanasia besides this chapter also
covers Meaning, conceptual and Historical dimension, Current position and this right
as to how this right come into existence. Thus at present like most of nations Active
Euthanasia is unlawful in our Nation whereas, passive euthanasia is lawful in our
nation but only after following a strict procedure.

2.9 Right to Clean Environment

God has blessed mankind with several presents since the establishment of this
era, and these contributions operate as the basis of individual subsistence. “A clean,
healthy and harmonious environment is one of the necessities for the true enjoyment
of life, and thus, it comes as no surprise that our right to live in a pollution-free
environment is included in the expansive Right to Life”.

“The rapid growth of technology beginning with the Industrial Revolution and
growing over the centuries has, however, not helped the environment at all”. The
foundation of new factories and increase in the requirement of stuff created by them
has amplified the waste produced by them. “Where does all this waste go?
Unfortunately, it ends up in the land, water, and air”.

Apex Court has extended this harmful right in dual ways. First, the law which
affects liberty of an individual should be just, fair and reasonable. Secondly, Court
recognized various implicit rights which were not expressly provided by Article-21.
Through the later method Apex Court has declared that right to life comprises right to
clean environment. “The Right to Life under Article 21 means a life of dignity to live
in a proper environment free from the dangers of diseases and infection. Maintenance
of health, preservation of the sanitation and environment have been held to fall within
the purview of Article 21 as it adversely affects the life of the citizens and it amounts
to slow poisoning and reducing the life of the citizens because of the hazards created
if not checked. The environmental jurisprudence in India today is developed mostly
by the various interpretations given by the apex court involving different facets”.

P a g e | 83
 Study of precedents relating to environment entails that 1980s has been the
period when Apex Court has shown its liberal and creative attitude. In Rural
Litigation and Entitlement Kendra v. State of Uttar Pradesh 77, significance of air and
water and environment was discussed and it was expressed by the Apex Court that
these are essential gift of nature for the sustainment of human beings. Though court
did not talk about Article-48A and Article-21 but still, this judgment has been viewed
as the beginning of broad construction of Article-21 especially with regards to
environment.

Further in Subhash Kumar v. State of Bihar78, Supreme Court declared that

clean environment is compulsory for enjoyment of life and the same was declared as
Fundamental Right emerging from Article21. Court remarked that we have not spared
our water resources and hazard of contamination of water has raise to such level that
even water purified with chlorine is not healthy for consumption. Government has
enacted Water Act in 1974 recognizing the extent of water pollution but when there is
no seriousness among citizens what legislation can do and hence, the desired
improvement has not been accomplished. The Yamuna River has nearly become a
slush which fulfills the needs of drinking water for Delhi and the same has been
recycled again and again. While other rivers are slowly turning into petty pools which
remains active for dumping dangerous haze and deadly stuffs. The unprocessed
sewage and slurry of developed area is daily dumped in rivers which contaminate
water to such an extent that it cannot be retrieved.

In M.C. Mehta v. Union of India 79 , Apex Court expounded “Right to clean

environment as an element of Life” under Article-21. PIL has resulted in surge of
environmental proceedings. The actual development in the area of environment
occurs when Apex Court while exercising its powers under Article 32 declared clean
environment as part of the right to life.

The incident which shocked the whole country was Bhopal Gas tragedy80. The
biggest chemical leakage of world took place in India at Bhopal on 2nd December,
1982. An extremely poisonous gas namely Methyl Isocyanate escaped from Bhopal

77
(1985) 2 SCC 431
78
(1991) 1 SCC 591
79
AIR 1999 SC 1501
80
Union Carbide Corporation. v. Union of India, (1989) 2 SCC 540

P a g e | 84
unit of Union Carbide India Limited. This gas was so dangerous that it converted the
whole city of Bhopal into a gas chamber. India has not seen such a big and deadly
disaster till now. About 30 tons of gas escaped from the factory and mixed in the air
of Bhopal which resulted in death of around 15,000 people and about 6 Lakhs were
badly affected. Consequence of this incidence was not restricted to affected public
rather their coming generation was also affected. People who were affected in 1982
from this incident still have to face the bad effect of the gas. The gas has not only
affected human being but also the species of plants and animals of the area. A large
area of fertile land turned into barren and lakh of animal died due to the negative
effect of the gas. Till date scientists, doctors and physicians have not been successful
in finding the vaccine which can cure the affected people.

A petition was filed against the Union Carbide Indian Limited by the
government claiming the compensation for the affected people. This petition was filed
under “Bhopal Gas Leak Disaster (Processing of Claim) Act”, 1985 for loss of life
and injury to the environment. This case was heard and decided by the MP High
Court where court approved the provisional damages of 250 Million. But an appeal
was preferred before the Apex Court challenging this decision but before the decision
of the court a settlement was made between government of India and the Union
carbide Ltd. In this settlement an amount of $470 million was agreed as the final
amount for the loss caused and this settlement was agreed by court but beside this
several guidelines were laid by the court so that future incident like this could be
avoided and if occurs than an adequate amount can be provided to the affected person.

In M.C. Mehta v. Union of India81 the matter relating to working of industry in

residential area was discussed. In this case an Industry dealing with manufacturing of
harmful stuff and the same was situated in a highly peopled area of Delhi and there
was a leakage of dangerous Oleum gas due to which some person died and many were
injured who served severe injury and they have to be hospitalized for a long time.
This incident was more horrible because it occurred just after a year of Bhopal Gas
tragedy and in this case the factory was situated in densely populated area which
increases the chance of danger. In this court ordered for total elimination of factories

81
1987 SCR (1) 819

P a g e | 85
from residential area and for setting up of board for safety of employees besides this
court also issued several guidelines.

Has the incidents like above mentioned stopped from occurring. Well the
answer is in negative but these decisions have directed the attention of court towards
protection of environment and life of human being. However, the attention of court
was already focused on human being after the judgment of Maneka Gandhi. The
corresponding impression viewed from the declaration of principle of Sustainable
development. The goal of this principle was to accomplish the existing needs of
people in such a way that the coming generations have access to natural resources.

Vellore Citizens’ Welfare Forum v. Union of India82 is the foremost case in

which Apex court put forward three principle for protection of environment and these
were the “Sustainable development, Precautionary principle and Polluter pays”
Principle. This judgment is viewed as the matter which formalized the use of these
Doctrines in our Country. This case arises out of PIL filled by the petitioner society
under Article32 of Constitution. This case was filed against the pollution emitted by
the industries in Tamil Nadu. The unprocessed waste created by these factories
pollutes the river water, the major resource of water for the consumption of human
beings. The Court acknowledged that the above mentioned doctrines are element of
International Law and stated them as a part of Local law. Court imposes duty on
government to apply these Principles.

Though nation experience world’s biggest environmental crisis in 1982 but we

were not prepared to face it as at that time there was no legislation to conserve the
environment. But after that thing, we have travelled a long way in the field of
Environment protection. In the last 39 Years we have enacted Environment
(Protection) Act which is an umbrella legislation for the protection of environment;
our court have recognized several doctrines for protection of environment besides this
the biggest step which was taken by our courts was to declare the right to clean
environment as Fundamental Right under Article21. Our government has also created
special courts which will exclusively hear the matters relating to environment. The
progress of India can be seen from the various inciatives taken by it for protecting the

82
AIR 1996 SC 2715

P a g e | 86
environment not only at national level but also at global level and the International
Solar Alliance is the best example of this.

Our Constitution assurances “right to healthy environment, right to clean

air, right to clean water, enjoins government and its agencies to strictly enforce
environmental laws while disclosing information in respect of decisions which affect
health, life and livelihood and disallows inadequacy of funds and resources as a
pretext for the evasion of obligations by the State”. Major environmental doctrines
like “Polluter Pays, Precautionary Principle, Sustainable Development and Public
Trust Doctrine” are now well-established under Indian legal system without clear
integration of them in legal structure.

Indian Courts has not only providing relief for the damage caused to the
environment besides this it is also playing an important role for the protection of
environment as it has developed several principles for environment protection such as
Polluter pays Principle, Sustainable development etc. Only a marginal portion of
Right to life dealing with the aspect of environment has been discussed here. A
detailed examination of Environmental issues relating to Right to Life has been
discussed under Chapter V of this work. So for a detailed and in depth study Chapter
V of this work can be looked upon.

2.10 Right to Health

“The traditional notion of healthcare has tended to be individual-centric and

has focused on aspects such as access to medical treatment, medicines and
procedures. The field of professional ethics in the medical profession has accordingly
dealt with the doctor-patient relationship and the expansion of facilities for curative
treatment. In such a context, health care at the collective level was largely identified
with statistical determinants such as life expectancy, mortality rates and access to
modern pharmaceuticals and procedures. It is evident that such a conception does not
convey a wholesome picture of all aspects of the protection and promotion of health
in society. There is an obvious intersection between health care at the individual as
well as societal level and the provision of nutrition, clothing and shelter”. Furthermore
“the term public health has a distinct collective dimension and has an inter-
relationship with aspects such as the provision of a clean living environment,

P a g e | 87
protections against hazardous working conditions, education about disease prevention
and social security measures in respect of disability, unemployment, sickness and
injury”.

“There is a foundational logic for health concerns to be addressed through the

language of human rights. While professional ethics in the medical profession have
retained an individual-centric focus on curative treatment, the evolution of
international human rights norms pertaining to health has created a normative
framework for governmental action”.

In India, the assumption of the interrelationship among rights was prominently

expressed in the judgment of Maneka Gandhi83. This judgment turns out to be the
foundation for the consequent extension of the meaning of life and liberty under
Article21 of the Constitution. The Apex Court “further went on to adopt an approach
of harmonization between fundamental rights and directive principles in several
cases”.

In the time of global pandemic where people across the globe are suffering
from health hazard, it is necessary for the Nations across the globe to ensure effectual
commitment at global level. From the last two years, we are facing the problem of
COVID-19. As per government we have two waves of this pandemic but nobody
knows how much waves we have faced but the position of health care services has
been exposed and right to health is important in this Pandemic era. “The right to
health cannot be conceived of as a traditional right enforceable against the State.
Instead, it has to be formulated and acknowledged as a positive right at a global level-
one which all of us have an interest in protecting and advancing.”

2.11 Right to live with human dignity

Is it sufficient that an individual has right to life? Well the answer to this
question is in negative and this has been declared by the Apex Court several times on
various occasions. One of the indispensable elements of human life is dignity and
honor; therefore, it is right of every individual to reside with pride which signifies

83
Maneka Gandhi v. Union of India, AIR 1978 SC 597

P a g e | 88
having access to the requirements of life and having independence in taking his
decisions.

In Occupational Health and Safety Association v. Union of India 84 , the

physical wellbeing and potency of employees and providing them just and humane
circumstances of employment were declared as indispensable conditions to live with
human dignity. This case was filled by a Non-Profit Organization which requests the
court for issuing the guidelines for the job-related safety and wellbeing of the workers
working in several industries. This case arises because of the increase in the number
of workers who were suffering from skin and lung diseases due to unhealthy working
situations. Besides this the petitioner also demanded for the compensation to the
victims of industrial health problems. In this case, Apex Court declared that
government is under an obligation to protect workers from hazardous situations of
work and sent this subject to all the High Courts to look after the problem of thermal
plants in the area of their jurisdiction.

Further in Navtej Singh Johar v. Union of India85, court explained that “Right
to dignity signifies the right to full personhood, and includes the right to carry such
functions and activities as would constitute the meaningful expression of the human
self.” A significant characteristic of human dignity was discussed in this case which
relates to choice of partner for sexual relationship. This case comes before the Apex
court in the form of writ petition which was filled by the petitioner which challenges
the Section-377 of the IPC, 1860. The said section declares it a crime to have sexual
relation with and among LGBT people. The petition claims that this Section is
violation of Fundamental Rights of people. Court while maintaining the theory of
human dignity held that Section377 infringes “Articles-14, 15, 19, and 21 of the
Constitution that it criminalized consensual sexual acts of adults in private”. Hence,
Section 377 was struck down partially and sexual acts between two consenting adults
was declared as legal whether they are of LGBT community or they are of same sex
or they are performing carnal intercourse.

From the above mentioned facts it can be easily said that human dignity
cannot be restricted in a straightjacket formula. Rather, it comprises all those

84
(2014) 3 SCC 547
85
(2018) 10 SCC 1

P a g e | 89
privileges and liberties which facilitate an individual to live his life without intrusion
into self-esteem, satisfaction and security.

2.12 Right to Livelihood

The term Livelihood means a source of securing the necessities of Life. In

simple terms it means the money people need to pay for food, place to live, clothing,
etc. It is defined as set of activities performed to live for a given life span and the
ability to obtain those necessities functioning either separately or in a group. In Olga
Tellis v. Bombay Municipal Corporation 86 Apex Court declared that “Right to
Livelihood is product of the Right to Life”, as an individual cannot survive without
the source of income. Further Court mentioned that if right to livelihood is not
declared as an element of right to life than the simplest method of taking away right to
life of an individual will be to dispossess him of his sources of earning. Explaining
further court said that government cannot be forced to endow means of livelihood to
individuals. The thing which was said by court that if there is deprivation of right to
livelihood than it should be according to procedure established by law and the
procedure must be just, fair and reasonable. Therefore if an individual is dispossessed
of his right without fair procedure than he can move before the court and get it
declared as void. But if the deprivation is according to procedure in the greater
interest of society than the claim of denial of right is not sustainable.

2.13. Right to Education

“A well nurtured child is most likely to be good nurturing parent. A child

brought up without love or human emotional relationship is bound to be incomplete
and worse traumatized in later life. In the Indian Constitution, the provisions for child
protection were however not ignored. Article 24 prohibits the employment of children
of the age under fourteen years in mines and factories. Article 15(3) provides that
special provisions for women and children can be made by the State. Article 39
provides for the rights of health and growth with freedom and dignity. None can take
exceptions to the spirit of these declarations, what have been sadly lacking are the
implementation of all such laws and the tangible realization of far-seeing and well-
drafted ideas”.

86
AIR 1986 SC 180

P a g e | 90
 Apex court has taken up this matter and endeavors to endow the child with
paramount situation and resources. In Mohini Jain v. State of Karnatka 87 court
declared that “Right to Education” comes within the domain of Article21 and
mentioned that this Article includes all those rights, which judiciary should inflict
because they are fundamental for the enjoyment of life. “The right to education flows
directly from the 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” and
government is under an obligation to provide educational facilities to its people. “The
fundamental rights guaranteed under Part III of the Constitution of India including
right to freedom of speech and expression and other rights under Article 19 cannot be
appreciated and fully enjoyed unless a citizen is educated and is conscious of his
individualistic dignity. The right to education, therefore, is concomitant to the
Fundamental Rights enshrined under Part III of the Constitution. The State is under an
obligation at all levels for the benefits of the citizens. The educational institutions
must function for advantage of the citizens”.

The view taken in above case was strongly condemned Unni Krishnan v. State
of Andhra Pradesh88, where the issue relating to education was in issue before the
Apex Court. In this matter Court declared that education up to primary level is only a
Fundamental Right. “This view was taken by referring to Articles 41, 45 and 46 of the
Constitution, particularly Article 45 which finds its place in Part IV of Directive
Principles explaining this Jeevan Reddy J speaking for self and Pandian J. observed
that a true democracy is where education is universal, in which people understand
what is good for them and the nation and know how to govern themselves. Paucity of
resources however stood in the way of enlarging the field of Fundamental Right to
Education, which was, therefore, kept confined up to primary stage”.

In 2002, Constitution (86th Amendment) Act was passed which supplemented

the constitution with a newly fangled Article namely 21A in Part III. The Article
stipulates as that “The State shall provide free and compulsory education to all
children of the age of six to fourteen years in such manner as the State may, by law,
determine”.

87
(1992) 3 SCC 666
88
(1993) I SCC 645

P a g e | 91
 The 86th amendment has incorporated the decision of Unni Krishnan Case.
This Amendment was however condemned on the basis that it stipulates nothing with
respect to higher education. This Amendment should at least amend the Article-45 to
such an extent that it provides for the economical and excellent higher education to all
individuals.

2.14 Protection against Honour Killing and Right to have Spouse of

one’s Choice

Honour killing is an evil in which the members of family kill their own
children for the sake of their reputation if the children marry against the wishes of
family or marry person of other caste. Our courts have taken a strict view against this
practice and held it against right to life. In Shakti Vahini v. Union of India89, Apex
Court declared that right to choose Spouse is Fundamental Right emanating from right
to life and Consent of family, Community, Clan is not required for Marriage of two
adults. Further interference of Khap Panchayat in marriage of two consenting adults is
absolutely illegal and paving way to choose partner of choice.

Earlier Courts through its judgments has also approved the concept of Live in
Relationship, where man and woman stays together and performs all marital
obligations. They have been granted all rights as are provided to any married couple.
This kind of relationship is done to check the compatibility of both persons as
husband and wife. Though our primitive society is completely against the whole
concept by same has been approved by Apex Court.

2.15 Other rights included in Right to Life and Personal Liberty

Some important rights which emanates from Article21 has been stated above
in this work. But are these exhaustive, the answer is clear no because life or its
elements can never be explained in one or two thesis. Some other rights which are
declared to be part of this right are right to free legal aid, speedy justice, protection
from sexual harassment etc. There are various rights which emanates from right to life
and many more rights will emanate from it with the passage of time. So only the
important and celebrated rights have been discussed in this work. An effort to include

89
Writ Petition (Civil) No. 231 of 2010

P a g e | 92
whole rights which emanates from Right to Life will be a futile one because this right
is very vast and still the scope of this right is expanding. There are chances that when
this work will be complete some new dimension of this right may emerge come up.
So this work incorporates only well-known and established rights.

2.16 Remedies for violation of Right to Life and Personal Liberty

A question arises in the mind of reader that what will be the consequence if
the right provided by Article 21 is violated and what it the use of declaring various
rights as fundamental when there is no legislative provision which provides
compensation or other such kind of relief. This issue also comes before the Apex
Court where court declared that Right to life is a sacrosanct right assured by the
Constitution and infringement of this right is actionable and there is no need of any
legislative provision for preservation of this right. Article21 has to be read into all
legislation dealing with protection of people because the main objective of these
statues is safety of individual and to provide damages if any loss is suffered by him.
There is high duty of care on government and its agencies who are working under
public safety legislation when compared to legislative powers.

In democratic form of government, State has to carry out several obligations

for the welfare of nation and individuals. Many times the rights of individuals are also
violated so such condition requires a proper system for fixing the liability of
government and providing damages to the victim. However, it is interesting to
mention here that government has not enacted any statute for deciding the claims of
individual against State rather the Judiciary has fulfilled the task by developing
various Standards for solving the above problems.

Court has been providing relief in the form of compensation in Rudul Sah v.
State of Bihar90 court granted the interim damages through public law remedy for
unlawful detention of petitioner. Court said that the current order of court will not
prevent the applicant from filing fresh suit to obtain suitable compensation from the
government and its officials. Further the court said that the order passed by it in the
instant case is palliative in nature and they will not leave the applicant skint till the

90
(1983) 4 SCC 141

P a g e | 93
conclusion of his case. A complete discussion on issue of fact and law taking place
very slowly will result in delay for securing damages to the poor Rudul Sah.

Further in Kasturi Lal v. State of Uttar Pradesh91, court differentiates between

sovereign and non-sovereign functions of state and rejected the statement that arrest is
a Sovereign function of State. Court declared that judgment of this case will work as
guideline in the cases where government delegates those powers for which it cannot
be prosecuted before Court. “The Court opined that the same principle would not be
available in large number of other activities carried on by the State by enacting a law
in its legislative competence”.

Article 300(1) of Constitution stipulates that “the Government may be sued in

relation to its affairs in the like case as the Dominion of India, subject to any law
which may be made by Act of Parliament”. Government has not enacted any
legislation in this regard so a question that needed to be answered was that whether
the Dominion of India could be sued in court of law before the enforcement of
Constitution.

On the issue the first case was P. & O. Steam Navigation Company v.
Secretary of State for India92, where court differentiated between sovereign and non-
sovereign functions of the government. The functions which can be done by a private
person were treated as non-sovereign functions whereas those which cannot be
performed by private person were treated as sovereign function for example
protection of Boarders of the Nation. In this case the Maintenance of harbor was in
issue which was declared as Non-sovereign function by the court as the same can be
performed by an individual also and the State was held liable for the tortuous acts
committed by its officials while maintaining the port. The decision and differentiation
made in this case was pursued by the Apex Court even after the framing of the
Constitution.

Post Maneka Gandhi93 decision, Article21 has been interpreted by court with a
wide and liberal approach so that this right becomes more meaningful. Right to
receive damages in case of contravention of fundamental right has also been

91
AIR 1962 SC 933
92
(1851) 5 Bom HCR App 1
93
Maneka Gandhi v. Union of India, AIR 1978 SC 597

P a g e | 94
acknowledged by the Apex Court in several cases without referring to Sovereign
protection.

In N. Nagendra Rao & Co. v. State of Andhra Pradesh94, Apex Court declared
that when an individual has to undergo any loss due to neglect of Officials of the
government than government is accountable for the loss and have to make good the
loss and compensate that individual and argument of Sovereign function cannot
release it from this responsibility. Court further held that in modern times the notion
of Sovereign Function is weak and difference between sovereign and non-sovereign
functions does not exist.

Thus the defense of Sovereign function does not afford protection to

government when a tort is committed by its officials against individual. The judgment
of Kasturi Lal has been overruled by the Court and the principle laid down in Rudal
Shah regarding liability of State is followed. The State is vicariously liable for the
torts committed by its officials while performing governmental functions and the
notion of awarding damages to victim has evolved with the passage of time. “The
remedy of getting damages can be availed both, through writ or through civil
litigation”.

Thus the acknowledgment of right to compensation by Apex Court in the

ambit of Article-21 and broadminded outlook of apex court in granting compensation
has huge impact on the quality of life. Apex Court has taken this right to next level by
awarding damages to the victims of rape on the basis that there is violation of Article-
21.

2.17 Epilogue

“All human beings are born with some unalienable rights like life, liberty and
pursuit of happiness. The importance of these natural rights can be found in the fact
that these are fundamental for their proper existence and no other right can be enjoyed
without the presence of right to life and liberty. Life bereft of liberty would be without
honour and dignity and it would lose all significance and meaning and the life itself

94
AIR 1994 SC 2663

P a g e | 95
would not be worth living. That is why ‘liberty’ is called the very quintessence of a
civilized existence”.

“Origin of ‘Liberty’ can be traced in the ancient Greek civilization. The Greek
distinguished between the liberty of the group and the liberty of the individual. In 431
BC, an Athenian statesman described that the concept of liberty was the outcome of
two notions, firstly, protection of group from attack and secondly, the ambition of the
group to realize itself as fully as possible through the self-realization of the individual
by way of human reason. Greeks assigned the duty of protecting their liberties to the
State. According to Aristotle, State was a means to fulfill certain fundamental
personality in association of fellow citizens so it was natural and necessary to man.
Plato found ‘Republic’ as the best source for the achievement of the self realization of
the people”.

Article 21 is coached in negative language as the constituent assembly wanted

positive Action on the component of the State. This was withal the initial
interpretation given by Judiciary in Gopalan’s case. But the judiciary in later years
interpreted the negative right as positive right as well. Thus Article 21 has two
dimensions protective action of the State and non interference in the enjoyment of
liberty. The Court further interpreted Article 21 to ensure two more dimensions of
procedural and substantive right.

Article-21 uses the word ‘deprived’ and Judiciary while literally interpreting
this term determined this Article with respect to deprivation of this right. But with the
help of judicial activism this term ‘deprived’ has given wider connotation which
imposes more restriction on State action. One of the finest points of Article 21 had
been the use of term ‘established’ which completely changed the entire position
relating to personal liberty. This has levied restrictions on the procedure which
encroach this right. It is interesting to note that the alone dissent in Gopalan, which
was not welcomed in 1950, gained firm ground in 1978. However, it is unfortunate
that the phrase ‘Law’ as provided under Article-21 did not receive that same treatment
as the Court wanted to give due consequentiality to the legislature. But it does not
denote that the judiciary did not dare to declare the ‘law’ unconstitutional under
Article-21.

P a g e | 96
 The guarantee of liberty is available to ‘Independent individual’ or a person in
chain or abaft the bars, a person of good or deplorable virtue, the affluent or poor,
high caste or low caste person, individual person or group of persons, organization,
association. This interpretation has given personal liberty to act as an umbrella right
which is available to each and every person living in the country.

Protection of Article 21 has been extended to all State action which includes
legislative and executive action. There is no concrete pronouncement against judicial
Action. The judiciary which has been power to preserve the Fundamental Right
cannot ordinarily act as violative of Fundamental Right. Further, judicial activism has
forced the State to prevent personal liberty exercising administrative function. The
Constitution of India has made a consequential improvement by making it a
fundamental right to enforce other Fundamental Rights. Further, Article-32 has gained
significant position in the Constitution. In most of the cases parties have preferred to
move the Supreme Court to get a final order in matters affecting their liberty and
Apex Court in majority of cases accepted these petitions.

Coming to the recent dimensions of this right, the right to education is one is
one of the basic right. Illiteracy is a sin for any democratic country. The judiciary has
to be congratulated to be congratulating to victual the Fundamental Right under
Article 21 through the nutrients under Article 41 of directive principles. The present
approach will activate the State which was lying in hibernation since the
commencement of the Constitution. The Mohini’s fragrance spread only for a year
and the Court restricted its Activist’s role in this area in Unni Krishnan’s case. Today
the position is that the primary inculcation is now secured through Article 21 but the
subsequent levels inculcation has been kept at the mercy of the State. Literacy in the
modern technological world does not mean rudimentary literacy but inculcation to
suit the modern age. The judicial verdict in Unni Krishnan’s case will now be an
implement with the State for a slow literacy drive in India and this will in turn give
elevate to shops where inculcation will be subject to sell and purchase, a scenario
subsisting in some of the State in India. If edification has to be transformed from
socialist to capitalist approach, the concern of the down trodden and the illiterates
would lose the ground. The commercialization of edification in the penuriousness
jurisprudence in India should not be sanctioned.

P a g e | 97
 Judiciary must be further congratulated for apperceiving the Fundamental
Right to live in a clean environment through Article-21. It is development which has
yet to reach to other leading countries of the world. In this development the
accommodations of some of the Judges had to be appreciated. Development and
environment are two competing intrigues arduous to be resolved and the India
judiciary could make contribution even in this perplexed issue.

P a g e | 98