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Enrichment of fundamental rights through

The enrichment can be traced under 3 heads:
I) Gopalan’s era
II) The Maneka Gandhi case: a new dimension added
III) Post Maneka period: dynamic interpretation of
article 21.

Gopalan’s Era:
Interpretation of Article 21 of the Constitution came up before
the Supreme Court in the famous case of A.K. Gopalan v. State
of Madras1, where the petitioner attempted for better
procedural safe guards against preventive detention laws. The
decision given in this case, held the field for almost 3 decades.
The petitioner, in the instant case was sentenced to the term of
imprisonment under the ordinary criminal law but the
conviction was set aside in appeal. Thereafter, he was detained
under the provisions of local Act of Madras. During such
detentions he was served with an order made under section
3(I), Preventive Detentions Act, 1950. The petitioner challenged
the validity of the order on various grounds. The most

AIR 1950 SC27: 1950 SCR 88
important ground was that the Act violated the provisions of
Articles 19 and 21 of the Constitution, he prayed for the writ of
habeas corpus.
Rejecting the contentions of the petitioner, the SC held:
“The word “law” in Article 21 of the Constitution could not be read as
jus naturale or rules of natural justice and, therefore, the expressions
‘procedure established by law’ means procedure enacted by a law
made by Parliament. It rejected the contentions of the petitioner that
law is used in jus and lex, .i.e. abstract sense. These terms do not have a
definite meaning but are vague and indefinite. The constitution could
not be read as laying vague and an indefinite standard. It also rejected
the US Supreme Court analogy of due process of law.”

Article 22 was self- contained code and, thus, a law of

preventive detention need not satisfy Articles 14, 19, and 21 of
the Constitution. Article 19 and 21 deals with different sphere
although personal liberty has a content sufficiently
comprehensive to include the freedoms enumerated in articke
19(I) and its deprivation would result in the extinction of those
freedoms. The constitution appears to have treated these civil
liberties as distinct fundamental rights and made separate
provisions in Art 19, 21 and 22 along with the limitations and
conditions subject to which they alone could be taken or
Thus, in the important case of A.K. Gopalan, the important
principles of judgment maybe summarized as under;
1.) Article 19 has no application to a legislation dealing with
preventive or punitive detention. Therefore a law with
reference to Art.21 cannot be challenged on the ground
that it violates Article 19.

2.) It is not correct to read article 19(I)(d) as dealing with

the same subject as Art 21. The concept of right to move
freely throughout the territory of India 19(I)(d) is
entirely different. From the right to personal liberty,
referred to in Art. 21. Hence, Art19 is not controlled by
Art 21.

3.) In art 21, the word “law” has been used in the sense of
State-made or enacted law, and not as an equivalent to
law in abstract or general sense embodying the principle
of natural justice. The right guaranteed under Article 21
is not a substantive right, but it is a procedural right.
Therefore, the phrase “except according to the
procedure stabilized by the law” cannot be interpreted
to mean the same things as “the due process of law”
clause of the US Constitution i.e. to say that article 21
was a protection only against executive not legislature.
4.) Article 21 and 22 are not to be read together, and
Article 21 does not form a code in itself.

Fazal Ali J gave a dissenting judgment and agreed that the

law should be interpreted as meaning natural law. In ADM
Jabalpur v. Shivakant Shukla2 (Habeas Corpus Case) the
Supreme Court held that Art 21 was the sole repository of
the right to life and personal liberty against illegal
deprivation by the executive. In case, Art 21 was suspended
under Art 359, the Court could not enquire whether the
executive action depriving a person of his life or personal
liberty was authorized by law.
The view taken by the majority opinion given restricted
interpretation however, was not accepted in the later cases
by the Supreme Court. Interference of person’s freedom at
home, for example, domiciliary visits by police at night were
held to be in violation of Art21 if constitution in Kharak
Singh3. In Satwant Singh Sawhney v. D. Ramanathnam4
extending the scope of Art21 in contrast of to A.K. Gopalan
held to right to travel to abroad a part of person’s liberty.
In relation to Articles 19, 21 and 22 the judgment of A.K.
Gopalan, which was an epitome of strict judicial view,

(1976) 2 SCC 521: AIR 1976 SC 1207
AIR 1963 SC 1294: (1964) I SCR 332
AIR 1967 SC 1836: (1967)3 SCR 525
softened. The doctrine of exclusivity was seriously
questioned in Rustom Cavasjee Cooper v. Union of India5
(bank nationalization case) by a majority. It was explained in
Sambhu Nath Sarkar v. State of West Bengal6, that is the
premise of the majority in the A.K. Gopalan case was held to
be incorrect in the bank nationalization case. Though a
preventive detention law may pass the test of Art21, it has
yet to satisfy the requirement of other fundamental right
such as Article 19.

(1970) 1 SCC 248: AIR 1970 SC 564
(1973) 1 SCC 856: AIR 1973 SC 1425
The “Maneka Gandhi Case”: a New Dimension Added:
Influences of emergency, in the post- Emergency period of
interpretation of fundamental rights especially Art 21 was
obvious. The decision showed liberal tendency and highly
activist attitude toward the protection of life and liberty. The
Maneka Gandhi Case7is a landmark case of post emergency
period vis-à-vis the interpretation of personal liberty, as
envisaged under Art 21 of the constitution.
The main point of the argument of petitioner was that
personal liberty under Art 21 includes the right to go abroad.
The case, due its importance, was heard by a seven judge
bench who delivered 5 separate opinions while Bhagwati J
gave the leading opinion along with Untwalia, Faisal Ali,
Chandrachud, khrishna Iyer JJ and Beg CJ. Kalilasam J
dissented. The court led down that:
1. Art 14, 19 and 21 were not mutually exclusive, meaning
thereby, that a law prescribing a procedure for depreving a
person of personal liberty has to meet the requirements of
Art 19. Also the procedure established by law in Art 21
must answer the requirements of Art 14 as well.

2. Personal liberty in Art 21 was given an expensive

interpretation. The court emphasized that the expressions
(1978) 1 SCC 248: AIR 1978 SC 597
personal liberty was of wide amplitude covering a variety
of rights which go on to constitute the personal liberty of
man. Some of these attributes have been raised to the
status of distinct fundamental rights and given additional
protection under Art 19. The expression ought not to be
read in a narrow and restricted sense to exclude those
attributes of personal liberty which were specifically dealt
within Art 19. The attempt of court was to expand the
reach and ambit of fundamental rights rather than
attenuate their meaning and content by a process of
judicial construction. The right to travel abroad falls under
Article 21 as travel makes liberty worthwhile.
3. The court interpreted the expression “procedure
established by law”in Article 21 and gave it a new
orientation. Article 21 would no longer mean that law
could prescribe procedure, however, arbitrary or fanciful
to deprive a person of his personal liberty. It would now
mean that the procedure must satisfy certain requisites in
the sense of being fair and reasonable.

In A.K. Gopalan, the expression procedure established by law

was considered in detail. The court held that the procedure
established by law means procedure enacted by a law made by
the State. Therefore, so long would not be within the terms of
Art 21 and it would not be required to meet challenges of
Article 19.
The Maneka Gandhi case, laid very clear terms that the
procedure cannot be arbitrary, unfair, or unreasonable. The
concept of reasonableness must be projected in procedure
contemplated by Art. 21. The court now has power to judge the
fairness and justness of procedure established by law to
deprive a person of his personal liberty. In other words, it can
be said that under Art. 21, there was not only substantive due
process but also procedural due process. The court laid:
The principle of reasonableness which, legally as well as
philosophically, is an essential element of equality or non-arbitrariness,
pervades Article 14 like brooding omnipresence. Thus, the procedure
under Article 21 must be right, just, and fair, otherwise, it would be no
procedure at all and the requirements of Art 21 would not be satisfied.
In order that the procedure is right, just and fair, it should confirm to
the principles of natural justice, i.e. fair play in action. Any procedure
which permits impairment of constitutional right to go abroad without
giving reasonable opportunity to show cause, cannot but be
condemned as unfair and unjust.

Thus, was established the requirement of reasonableness of

procedure in Art21 through Art14 and here a dynamic role was
played by Bhagwati J.
Post Maneka Period: Dynamic Interpretation of Article

The dynamic decision of Supreme Court in Maneka Gandhi case

gave a new dimension to Art21 and herealded a new era of
judicial revolution with natural justice as a great humanizing
principle. Colours were added to a colourless article which
finally had lots of shades. Art21 developed jurisdiction of its
1) The Right to Live with Human Dignity: the Supreme Court
in a number of cases held that right to live is not merely
confined to physical existence but included within its
sphere, right to live with dignity. In People’s Union for
Democratic Rights v. Union of India8 it was states that if
minimum wages are not paid to the workers, it was denial
of right to live with human dignity, therefore, violating Art
21 of the Constitution.

2) Right to Livelihood: Art 21 of the constitution takes within

its sweep, the right to livelihood so that person can earn
and live with dignity. In Delhi Development Horticulture

(1982) 3 SCC 235: AIR 1982 SC 1473
Employee’s Union v. Delhi Administration9. Supreme Court
observed that:
This country has so far not found it feasible to incorporate the
right to livelihood, as a fundamental right in the constitution. This
is because the country has so far not attained the capacity to
guarantee it and not because it considers it, no less fundamental
to life. Advisedly, therefore, it has been placed in the chapter on
directive principles, Art 41 which enjoins upon the State to make
effective provision for securing the same within the limits of its
economic capacity and development. Thus, even while giving the
direction to the Sate to ensure the right to work, the constitution
makers thought it prudent not to do so, without qualifying it.

3) Right to Speedy, Fair Trial and Free Legal Aid: Article 21

provides that no person shall be deprived of his life or
liberty except in accordance with a procedure established
by law which should be reasonably just and fair. A
procedure which does not make available legal services to
an accused person who is too poor to afford a lawyer and
who would , therefore, have to go through the trial
without legal assistance cannot possibly be regarded as
reasonable, fair and just. It is an essential ingredient of
reasonably fair and just procedure to a prisoner who is
seeking his liberation through the court process, that he
(1992)4 SCC 99:AIR 1992 SC 789
would be provided legal aid and services. This was held in
Hussainara Khatoon v. State of Bihar10.
The entitlement of the accused to speedy trials has been
repeadtedly emphasized by the Supreme Court. Thought it
is not enumerated as a fundamental right in the
constitution, the Supreme Court has recognized the same
to be implicit in the spectrum of Art 21. The right of
speedy trial is the right of the accused. The Supreme Court
has issued broad guidelines and parametres for speedy
disposal of criminal cases against accused.11
In Kadra Pahadiya v. State of Bihar12, the court held that a
speedy trial is a fubdamental right implicit in the
guarantee of life and liberty enshrined in Art 21 of the
constitution. In the landmark case of Abdul Rehman
Anthulay v. R.S. Nayak13 the Supreme Court held that right
of speedy trial with reference to the accused includes the
period of remand and pre-conviction period of accused,
the duration of investigation should be minimal and undue
delay in trial may impair the ability of the accused to
defend himself on account of death, disappearance, or
non- availability of witnesses etc.
Financial constraints upon the State cannot be a ground to
deny fundamental rights to citizens. It was held in Brij
(1980) SCC 81: AIR 1976 SC 1360
Raj Deo Sharma v. State of Bihar, (1998) SCC 507: AIR 1998 SC 3281
(1983)2 SCC 104: AIR 1982 SC 1167
(1992) I SCC 225: AIR 1992 SC 1701
Mohan Lal v. Union of India14 that State cannot be
permitted to deny fundamental rights to speedy trial to
the accused on ground that State does not have adequate
financial resources to incur necessary expenditure needed
for improving administrative and judicial apparatus to
ensure speedy trial.

4) Rights of Prisoners: handcuffing of a person is prima facie

inhuman, harsh and, therefore arbitrary. The Supreme
Court in Prem Shankar Shukla v. Delhi Administration15,
held that handcuffing of the under trial prisoners in
unreasonable and arbitrary but maybe justified on the
ground that accused person attempted to resist the arrest
and made attemot to escape; or there is possibility of
some group of persons or mom attempting to free the
accused person from police or jail custody.
In Sunil Batra v. Delhi Administration16, the Supreme Court
held that the most important right of a prisoner is integrity
of his physical personality and mental personality. The
Court observed that “prisoners are persons not animals”,
as such their fundamental right does not cease to exist,
and however, certain reasonable restrictions may be

(2012) 6 SCC 502
(1980) 3 SCC 526: AIR 1980 SC 1535
(1980) 3 SCC 488: AIR 1980 SC 1579
imposed on them. They are entitled to all fundamental
rights unless constitutionally curtailed. 17
In Sheela Barse v. State of Maharashtra18 the Supreme
Court expressed concern about ill treatment meted out to
the women suspects in police lockups and gave detailed
instruction to the authorities concerned for providing
adequate protection and security to them.

5) Right to Environment: in its expansive interpretation, the

Supreme Court has included the right to clean
environment within ambit of Article 21 of the constitution.
In Rural Litigation and Entitlement Kendra v. State of U.P.19
(Dehradun Quarrying case), the Supreme Court dealt with
complaints regarding environment. It was alleged that
operations of limestone quarrying in the Himalayan valley of
Mussoorie resulted in the degradation of environment,
affecting the ecological balance. In this case, the Supreme
Court for the first time held that right to wholesome
environment is a part of fundamental right to life under Art 21
of the constitution without which life becomes miserable.
In M. C. Mehta20, the fact of leakage of oleum gas from one of
the units of Sri Ram Food and Fertilizers Ltd. As a result of
which several persons were affected and an advocate
State of A.P. v. Challa Ramkrishna Reddy, (2000) 5 SCC 712: AIR 2000 SC 2083
(1983) 2 SCC 96: AIR 1983 SC 378
(1985) 2 SCC 431:AIR 1985 SC 652
(1987) I SCC 395: AIR 1987 SC I086
practicing in the Tis Hazari Court, Delhi died, was highlighted.
The Supreme Court discussed the true scope of and ambit of
Articles of 21 and 32 of the Constitution. It held that chlorine
gas is dangerous to the life and health of the community and if
it escapes either from the storage tanks or from the filling
cylinders or from any other point in course of production, it is
likely to affect the health and well-being of the workmen and
people living in the vicinity.
The Supreme Court, considering the adverse effect of smoking
on smokers and other persons, directed the Central and State
Government and union territories immediately to ban smoking
in public places. 21

6) Right to Education: For dignified living, the Supreme Court

held that right to education is an inseparable part of Art 21
in Unni Krishnan, J.P. v. State of A.P.22 right to education was
held to be a fundamental right flowing directly from right to
life. The obligation was also created under the directive
principles of state policy to provide free and compulsory
education to children below the age of 14 years. After this
important judgment, Article 21- A was added to the
Constitution, vide Constitution (86th Amendment) Act,

Murli S. Deora v, Union of India (2001) 8 SCC 765: AIR 2002 SC 40.
(1993) I SCC 645: AIR 1993 SC 2178
7) Right to Die: Most of the positive rights in the Constitution
include four negative rights also, within their ambit. The
question, under Art. 21 of the Constitution, therefore, arise
whether right to life includes the right to die also. This
question came up for consideration before the Bombay High
Court in State of Maharashtra v. Maruty Sripati Dubal23. The
Court held that the right to life guaranteed by Art 21 of the
constitution includes the right to die and consequently the
court struck down Section 309, which provided punishment
for attempt to commit suicide by a person, as
unconstitutional. On the other hand, contrary to the
decision, in Chenna Jagadeeshwae v. State of A.P.24, held
that the right to die is not fundamental right within the
meaning of Art 21 and therefore Sec 309 IPC was not
Delving into the controversy again, a Division bench of the
Supreme Court in P. Rathinam v. Union of India25, aggrieved
with the view of the Bombay High Court held that a person
has right to die, and declared sec 309 IPC unconstitutional.
Death Sentence: In Bachan Singh v. State of Punjab26, the
Supreme Court stated that the provision of death sentence
as an alternative punishment for murder in Section 302 IPC
is not unreasonable and it is in the public interest. The
1987 Cri LJ 743 (bom).
1988 cri LJ 549 (AP)
(1994) 3 SCC 394: AIR 1994 SC 1844
(1980) 2 SCC 684: AIR 1980 SC 898
impugned provision in Sec 302 violates neither letter nor the
ethos of Art 19 of the Constitution. The provision of death
sentence as an alternative punishment for murder does not
violates Art 21. In Mithu v. State of Punjab27, the legality and
constitutionality of Sec 303 IPC was challenged. The
Supreme Court has held that Sec 303 is unconstitutional, as
it violates Art 14 and 21 of the Constitution.
In Mohd. Ajmal Kasab v. State of Maharashtra, Supreme
Court opined that in this country, death as a penalty has
been held to be constitutionally valid though indeed to be
awarded in the “rarest of the rare case when alternative
option in unquestionably foreclosed”.

(1983) 2 SCC 277:AIR 1983 SC 473
Fundamental Rights and Parliament: Enrichment
of the content of Fundamental Rights
Subject: Constitutional Law II

Submitted by- Submitted to-

Aartika Saini Prof. Vinod Shankar Mishra
Roll. No. 57
B.A.LL.B (Hons.)
Semester- IV
Through this acknowledgment, I would like to extend my gratuitous
thank to Prof. Vinod Shankar Mishra, who helped me in solving my
queries regarding this project. And cleared various doubts regarding the
subject as well.
I would also like to thank my mother for being there for me, and
helping me to finish this project on time, without her endless efforts, I
would not have been able to finish this given project on time.

Regards to my friends who have been a critic as well as a helper to me

during the completion of this project. Their criticism has always
motivated me to do better.

Thank you to all those people who have been part of this project in any

Aartika Saini

1. Seeravai, H. (1998). The Constitution of India. law publications .

2. Shukla, V. N. (1975). The Constitution of India. Lucknow: Eastern Book Co. .

3. M.P Jain (2014). Indian Constitutional Law.Lexis Nexis

4. Rao, Mamta (2013). Constitutional Law. Eastern Book Company.


S. No. Particulars Page No.

1. Introduction 1.
2. Three Different Era for Enrichment of 2.
Fundamental Rights
3. Gopalan’s Era 2.-6.

4. The Maneka Gandhi Case 7.-9.

5. Post Maneka Gandhi Case 10-17

6. Conclusion 18.

7. Bibliography 19.
Fundamental rights are those inviolable and natural rights
which have been provided under part III of the Constitution.
Taking cue from the US Constitution, which is the first
example of a written Constitution; these rights have been given
a pride place in the Indian Constitution. However, balance has
been maintained in the constitution by not making these rights
absolute but by providing restrictions too along with the rights.
Some of the important rights are that of right to equality, right
to freedom, protection of life and liberty, right to education,
right against exploitation etc. these are inviolable in the sense
that state cannot abridge them. These rights imply the
existence of an organized society.
Fundamental rights guaranteed by the Indian Constitution have
been put on a very high pedestal. Art 13 provides all laws in
force in the territory of India immediately before
commencement of the constitution on 26th January 1950,
insofar as they are inconsistent with the fundamental rights,
shall be void.
Fundamental rights are available against the state and not
private individuals. In case of violation of fundamental rights
by private individuals, any remedy available under ordinary
law of the country is to be resorted to.

The most important part of the Constitution, Part III,

incorporates the fundamental rights, and sets out an elaborate
declaration of human rights as compared to any other
constitution in the world. The provisions of Part III are
declared fundamental and most essential rights necessary for
the full development of personality of an individual.
Fundamental rights are being enriched by our Courts on a
regular basis. Recently, in Mohd. Salim v. State of Uttrakhand28
the Uttarakhand High Court declared the Ganga and Yamuna
living entities, bestowing on them same legal rights as that of a
Thus, the scope of fundamental rights is used in expansive way
by courts to protect the interest of the individuals from the
arbitrariness of the State. By stating various cases in this
project, I hereby conclude that rights of individuals are being
protected in every manner, not only rights of individuals, but
by using its power non-living things, which need to be saved
and protected are enshrined under fundamental rights.

2017 SCC UTT 367