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Article 21: The Omnibus

Article
Broadly speaking, the doctrine of separation of powers has not
been expressly provided for in the Constitution of India, the
Suprema Lex, but less to say it can be made out from the
scheme of the Constitution.
Doctrine of Separation of Powers asserts the division of powers
between the three wings of the state: the legislature, the
executive and the judiciary.
If the work of the legislature is to frame laws and the work of
the executive is to implement laws then the work of judiciary is
to interpret laws. The Supreme Court in all its magnificence is
the custodian of the Constitution.
There were several occasions when there was locking of the
horns when question was to be decided in regardswhether
judiciary comes under the meaning of state so far as article 12
of the constitution is concerned, this question was finally
settled with ruling in the case of
Prem Chand Garg
v.
Excise Commissioner(
where by it was held that judiciary is the third wing of the state
howsoever functionally independent, with no deterrence to
judicial activism which it enthrals.
Occasions have been there when the decisions rendered by the
apex court had been put in spotlight either to appreciate its
spirit of judicial activism or to criticise it for its judicial overreach.
No legal provision has attracted more controversy than Article
21 of the constitution, which provides for right to life and

personal libertythe article on pen and paper & in black and

white states: No person shall be deprived of hIs life or personal
liberty except according to procedure established by law
It is the judicial interpretation and judicial activism that has
given enormous dimensions to this article making it an omnibus
article.
One of the first time when the efficacy of this article was
explored beyond any reach and bound was in case of
Chairman, Railway Board
v.
Chandrima Das(1997)
where by the apex court went on record to state that even
though article 21 is in scheme of the fundamental rights
garnered by the constitution and these rights are available to
citizens only, article 21 is a mighty exception as it is applicable
even to foreigners. It is important to make a distinction over
here between a citizen and a non-citizen, as it is a question
devoid of any doubt that Article 14 of the constitution is
applicable even to non-citizens such as a company (Chiranjit
Lal Chaudary v. UOI), what to say of foreigners- Article 21
limits itself to citizens and so far as non-citizens are concerned
to foreigners, not to a company- whether foreign or indigenous.
Fundamental rights enshrined in part III of the Constitution form
the spirit of the Suprema Lex, protection to the same is offered
by article 32 and 226, the writ jurisdiction of the Supreme Court
and the High Court respectively. Here so far as article 21 is
concerned by way of judicial interpretation and activism a new
branch of rights have aroused over the decadereason for this
is that so far as the scheme of Indian Constitution is concerned
judicial decisions so rendered by the Supreme Court have the
force of being the law of the land.
Though the phraseology of Article 21 starts with negative word
but the word No has been used in relation to the word deprived.
The object of the fundamental right under Article 21 is to

prevent encroachment upon personal liberty and deprivation of

life except according to procedure established by law. It clearly
means that this fundamental right has been provided against
state only. If an act of private individual amounts to
encroachment upon the personal liberty or deprivation of life of
other person. Such violation would not fall under the
parameters set for the Article 21. in such a case the remedy for
aggrieved person would be either under Article 226 of the
constitution or under general law. But, where an act of private
individual supported by the state infringes the personal liberty
or life of another person, the act will certainly come under the
ambit of Article 21. Article 21 of the Constitution deals with
prevention of encroachment upon personal liberty or
deprivation of life of a person.

# Scope Of Article 21
The scope of Article 21 was a bit narrow till 50s as it was held
by the Apex Court in
A.K.Gopalan
v.
State of Madras(1950)
that the contents and subject matter of Article 21 and 19 (1) (d)
are not identical and they proceed on total principles. In this
case the word deprivation was construed in a narrow sense and
it was held that the deprivation does not restrict upon the right
to move freely which came under Article 19 (1) (d). at that time
Gopalans case was the leading case in respect of Article 21
along with some other Articles of the Constitution, but post
Gopalan case the scenario in respect of scope of Article 21 has
been expanded or modified gradually through different
decisions of the Apex Court and it was held that interference
with the freedom of a person at home or restriction imposed on
a person while in jail would require authority of law. Whether
the reasonableness of a penal law can be examined with
reference to Article 19, was the point in issue after Gopalans
case in the case of

Maneka Gandhi
v.
Union of India(1978)
the Apex Court opened up a new dimension and laid down that
the procedure cannot be arbitrary, unfair or unreasonable one.
Article 21 imposed a restriction upon the state where it
prescribed a procedure for depriving a person of his life or
personal liberty.
This view has been further relied upon in a case of
Francis Coralie Mullin
v.
The Administrator, Union Territory of
Delhi and others (1981)
Article 21 requires that no one shall be deprived of his life or
personal liberty except by procedure established by law and
this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention
has therefore now to pass the test not only for Article 22, but
also of Article 21 and if the constitutional validity of any such
law is challenged, the court would have to decide whether the
procedure laid down by such law for depriving a person of his
personal liberty is reasonable, fair and just. In another case of
Olga Tellis and others
v.
Bombay Municipal Corporation and
others(1985)
it was further observed : Just as a mala fide act has no
existence in the eye of law, even so, unreasonableness
vitiates law and procedure alike. It is therefore essential that
the procedure prescribed by law for depriving a person of his
fundamental right must conform the norms of justice and fair
play. Procedure, which is just or unfair in the circumstances of a
case, attracts the vice of unreasonableness, thereby vitiating

the law which prescribes that procedure and consequently, the

action taken under it.As stated earlier, the protection of Article
21 is wide enough and it was further widened in the case of
Bandhua Mukti Morcha
v.
Union of India
# Rights Offered Under Article 21
A set of exhaustive rights that article 21 in matter and in spirit
is capable of offering is as follows:
1.Right to food- It was recognized under case
Peoples Union for Civil
Liberties
v.
UOI (2004)
2. Right to shelter - It was recognized under case Chameli Singh
v.
State of U.P.(1995)
3. Right to livelihood - It was recognized under case Olega Tellis
v.
Bombay Municipal
Corporation(1985)
4. Right to education - It was recognized under case Mohini Jain
v.
State of Karnataka(1992)

5. Right to clean environment- It was recognized under case

M.C.Mehta
v.
UOI(1987)
6. Right to privacy- It was recognized under case Govind
v.
State of M.P.(1975)
7. Right to marriage- It was recognized under case Lata Singh
v.
State of U.P.(2006)
8. Right to travel abroad & Right to live with human
dignity - It was recognized under case Maneka Gandhi
v.
UOI (1978)
9. Right against bondage- It was recognized under case Bandhu Mukti Morcha
v.
UOI (1984)
10. Right to emergency medical aid- It was recognized
under case Parmanand Katara
v.

UOI (1989)
12. Right, not to be driven out of a state- It was
recognized under case NHRC
v.
State of Arunachal Pradesh(1996)
# The rights so mentioned above are regal in sense and spirit.
Apart from these, this article empowered the apex court to
nomenclature few other rights by way of judicial interpretation.
These are as follows:
1) Right to speedy trial - It was recognized under case
Sheela Barse
v.
UOI(1986)
2) Right against prison torture and custodial death &
Right against solitary confinement - It was recognized
under case
Sunil Batra
v.
Delhi Administration(1978)
3) Right to compensation for illegal unlawful
detention- It was recognized under case
Rudal Shah
v.
State of Bihar(1983)
4) Right against handcuffing - It was recognized under
case
Prem Shankar Shukla
v.
Delhi Administration(1980)

5) Right against bar fetters - It was recognized under

case
Charles Sobhraj
v.
Suptd. Central Jail(1978)
It is very necessary to note that in a democracy no right is
absolute. All rights are subject to reasonable restrictions of:
morality, health, public order, state security, public safety &
public policy.
Justice Krishna Iyer while speaking for majority in the case of
Sunil Batra v. Delhi Administration made it constitutionally clear
that when a person gets arrested, he steps into the prison cell
with his fundamental rights intact and not in devoid of them, he
also made it amply clear that Article 21 is to be interpreted in
the widest possible sense because fundamental rights form the
spirit of the Constitution and Article 14, 19 and 21 are the spirit
of the fundamental rights- over and onto which all other
fundamental rights rest.
FACETS OF ARTICLE 21:
Is right to life inclusive of right to die? This question was
answered in great detail in case of
Gian Kaur
v.
State of Punjab(1986)
here it was held that word life is to be read in consonance
with word dignity so far as article 21 is concerned, but right to
life in no stretch on imagination shall include right to die. Right
to life means right to life with human dignity and not mere
animal existence, but it shall not include right to end life even
under medical supervision by way of administration of lethal
drugs or otherwise. Right to die shall not be available to anyone
even though the claimant of this right is suffering acute pain
and agony of all sorts, incapable of taking slightest care of

himself and is living on life support system, this was the

majority judgement in this case.
A legal breakthrough came about with Aruna Shanbaug case
where by the apex court for the first time offered legality to the
concept of euthanasia or mercy killing in some form (with
conditions attached to it). A person in a persistent vegetative
state (PVC), deriving his existence from life support system can
apply for euthanasia, but here also his death shall not be
occasioned by administration of lethal injection or otherwise
but by merely removing the life support system from which he
(patient) draws his existence.
Hence forth it shall not be wrong to say that with sociological
and psychological development of the society, Article 21 is
witnessing tremendous developmenttruly it is a welfare piece
of legislation.
Article 21 and Sec. 377, IPC:
It was in July 2009 that a judgement of Delhi High Court gave
green signal to consensual sexual intercourse between same
sex adults. It was celebration time for gay rights activists
generally and for NAZ foundation in particular, but the
judgement gathered a lot of fume and criticism. Judicial
interpretation of Article 21 formed the crux of the judgement. In
no time an appeal to the Supreme Court was filed against the
decision rendered by the Delhi High Court. The case is still in
pending in the apex court, observations made by the SC and
articles published informing the same signal that its time for
sec.377, IPC to go.
As a three judge bench decision of the SC (comprising of Chief
Justice K G Balakrishnan, Deepak Verma and B S Chauhan)
offered legality to live in relationships and pre-marital sex, late
in March 2010, stating that Article 21 is not only a welfare piece
of legislation but also a progressive piece of legislation, may be
the same wisdom needs to be applied to settle scores between
the ongoing dispute between article 21 and sec.377, IPC.
Article 21 and the Death Penalty:

Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be

given only in rarest of rare cases; whereby the facts and
circumstances of the case are so grave that they intrinsically
shock the conscience of the court. Also, this provision provides
that-- the bench heading the particular case needs to give
reasons for their decision in case the punishment rendered is
life imprisonment and special reasons in case the punishment
rendered is death penalty.
In case of
Bishnu Deo Shaw
v.
State of West Bengal(1994)
it was held that life imprisonment is the rule and death
penalty is an exception also that death penalty is ultra vires
the constitutional mandate- Article 21.
The abolitionist argue that- crime breeds crime and murder
breeds murder, murder and capital punishment are not
opposites that cancel out each other but are of same kind.
The retentionist argue that all fundamental rights are subject to
reasonable restrictions of public order, morality, health, public
safety and state security and Article 21 is no exception.
So far as the criminal jurisprudence in regards to theories of
punishment is concerned the trend has been revolutionary in
nature- from retribution and deterrent theories of punishment
to preventive, reformatory & rehabilitative theory of
punishment.
Death penalty in India is given in the following cases:
1. An act of treason or waging war against Government of India
sec.121, IPC; abetment of mutinysec.132, IPC.
2. Perjury resulting in conviction & death of an innocent person
sec.194, IPC.
3. Murdersec.302 & 303, IPC.

4. Abetment of suicide of a minor, an insane person or

intoxicated personsec.305, IPC.
5. Attempted murder by a life convict (a person undergoing life
imprisonment)sec.307, IPC.
6. Dacoity with murdersec.396, IPC.
7. Kidnapping for ransomsec.364-A, IPC.
Article 21 and the narco-analysis test:
Article 20 speaks of three doctrines in particular: doctrine of ex
post facto law i.e. no one can be punished for law that is not
time being in force & no one can be given punishment more
than the statutory maximum; doctrine of self-incrimination i.e.
no one can be forced to be a witness against himself & doctrine
of double jeopardy i.e. no one can be punished twice for the
same crime or misdemeanour.
It was in the case of
Selvi
v.
State of Karnataka(2010)
in which SC for ever over turned the fortune of countrys expert
agencies specialised in conducting narco-analysis test, brain
mapping test & polygraph test. Relying on the language used in
Article 20(3) the apex court said that conducting such tests is
violative of the citizens right against self-incrimination. The
apex court went on record to further more declare narcoanalysis test violative of Article 21.
This decision of the SC attracted a lot of criticism on the
following grounds:
1. A test such as the narco-analysis test, brain mapping &
polygraph test are conducted under medical supervision under
a medical expert and hence is within the precincts of sec.45 of
the Indian Evidence Act, 1872.

2. Narco-analysis test is somewhat a full proof measure

because first narco-analysis test is conducted and then there by
its results are checked and scrutinised by way of conducting lie
detector test, polygraph test and brain mapping test.
3. Where the world is moving scientifically forward to decide
upon the evidential permissibility of PLR tests (past life
regression analysis), declaring that lie detector test or brain
mapping test is not a permissible piece of evidence is a step
backwards.
Point 1 & 2 are very much convincing but not point 3. Well
however the apex court did not answer any of these questions.
Attracting article 21 to the following case was also seen with
convincing eyes.
Conclusion:
Article 21 saga is endless and doubtless to say that article 21 is
a welfare piece of legislation; its extent is time and again
redefined and re-extended. No fundamental right was ever
interpreted with so much wisdom and acuteness as of article
21. Judicial activism and fair judicial interpretation of legal
provisions is the key to public welfare in all lines of action, this
is what article 21 saga is an example of- all legal and judicial
wisdom must be summarised in the following words Salus
populi est suprema lex, the spirit of pro bono publico.

THANK YOU