Article 21: Right to Life and Personal

Liberty
Afrin Khan.
Symbiosis Law School, Pune.
Article 21 and Life, Liberty, Law and
Procedure
 A. K. Gopalan’s Case and interpretation
 Maneka Gandhi’s Judgment and Dynamic Interpretation.

 Post Maneka interpretation of ‘Law’:

Does the word ‘law’ in Article 21 include an ‘Ordinance’?

Can an ordinance lay down procedure to deprive a person of
his personal liberty?

This question was raised in A. K. Roy v. Union of India, AIR

1982 SC 710… question was in relation to the National
Security Ordinance, 1980… petitioner contended that Article
21 does not cover an ordinance because it is not ‘law’…
 …Ordinance making power, which is executive power
can not be used to deprive a person of his liberty…
Article 14, 19 and 21 will be reduced to a dead letter if
the executive is permitted to take away the life and
liberty of the people by an ordinance.
 S.C. held that law includes ordinance for the purpose of
Article 21.

 The rules made by the Supreme Court under Article 145

are comprised within the term ‘law’ in Article 21.
 Rules made by the High Court under Article 225 fall
within the scope of Article 21.
 Rules made under the Police Act fall under Article 21.
 Departmental instructions made without any statutory
authority, and not having the force of law, do not
constitute ‘law’ for the purpose of Article 21 and they
cannot put restraints on an individual’s personal liberty.
 “Procedure”

 Procedure contemplated by Article 21 is that it must be

fair, just and reasonable, it must confirm to natural
justice.

 Indrajit Barua v. Assam, AIR 1983 Del 513… The Assam

Disturbed Areas Act, 1955 (Assam Act) and the Armed
Forces (Assam and Manipur) Special Powers Act, 1958 (
Central Act) were under challenge… Court uphold the
validity of both the Acts.
 Onus of Proof:
 From the point view of ‘Burden of Proof’, the court draw a
distinction between Article 14, on the one hand, and Article
19 and 21 on the other.
 In Deena Vs. Union of India, AIR 1983 SC 1155… SC clarified
that In case of Art. 14, the challenge is based on the allegation
that the impugned provision is discriminatory. In such matters,
the petitioner has to plead and prove that there are others
similarly situated as he and that he has been singled out and
subjected to unfavorable treatment. … as regards Article 19
and 21, in a challenge under these provisions, once the
petitioner shows that his right has bee taken away, it is for the
state to justify the impugned law by showing the restriction is
reasonable or that the procedure is not arbitrary but is just
fair and reasonable (Article 21)
Criminal Justice After Maneka Gandhi
 The judgment delivered in Maneka Gandhi has a
profound but beneficial impact on the administration of
criminal justice in India.
 An arbitrary law violates Article 14, Arbitrary procedure
would be no procedure at all and the requirements of
Article 21 would not be complied with.

 Supreme Court in has observed in Sunil Batra II that

thanks to Article 21, “human rights jurisprudence in India
has a Constitutional status and sweep… so that this
magna carta may well toll the knell of human bondage
beyond civilized limits.”
International Mandate
 India is signatory to the Universal Declaration of Human
Rights followed by two more International conventions on
Civil and Political Rights, and on Social, Economic and cultural
rights.
 The Universal Declaration of Human Rights under Article 5
and the International Covenant on Civil and Political Rights
under Article 7 had provided that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment.
 General Assembly on December 9, 1975 adopted a
Declaration on the Protection of all persons from being
subjected to torture and other cruel inhuman or degrading
treatment or punishment.
 No law laid down by the Parliament to safeguard the interest
of the Prisoners.
 Arrest: Supreme Court in Joginder Kumar’s Case, AIR 1994
issued directions as to arrest.
 Fair Trial: S. 142 of the Evidence Act does not give power to
the prosecution to put leading questions on the material part
of the evidence which a witness intends to given against the
accused. To do so infringes the right of the accused to have a
fair trial which is enshrined in Art. 21
 Speedy Trial : Quick Justice is regarded as sine qua non of
Article 21. Hussainara Khatoon’s Case,AIR 1979 SC 1360
 The SC observed: “No procedure which does not ensure a reasonably
quick trial can be regarded as ‘reasonable, fair or just’ and it would fall out of
Article 21. There can, therefore, be no doubt that speedy trial and by speedy
trial we mean reasonably expeditious trial, is an integral and essential part of
the fundamental right to life and liberty enshrined in Article 21”
 Long Pre-trial Confinement:
Poor persons have to languish in prison awaiting trial
because there is no one to post bail for them. This
perpetrates great injustice on the accused person and
jeopardizes his personal liberty. It was noticed that
thousands of accused persons languish in jails awaiting
trial for their offences. .. Because of the stringent bail laws
poor and indigent persons cannot be released on bail as
they are unable to provide financial security. .. Even
person accused of bailable offences are unable to secure
bail. ... Hussainara Khatoon’s Case.
 More Criminal Courts:
Further to recommendations of Law Commission in its
77th and 78th report in P. Ramchandra Rao vs. State of
Karnataka, (2002) 4 SCC 578, …SC reminded the State
Government/State Governments recently “of their
constitutional obligation to strengthen the judiciary-
quantatively and qulitatively – by providing requisites
funds, manpower and infrastructure.”
 Legal Aid:
In Khatri vs. State of Bihar, AIR 1981 SC 928, SC
emphasized that legal assistance to a poor or indigent
accused who is arrested and put in jeopardy of his life or
personal liberty is a constitutional imperative mandated
not only by Art. 39 A but also by Art. 14 and 21.
 Solitary Confinement: and Hand Cuffing:
 In Sunil Batra (I) vs. Delhi Administration, 1978 SC 1675 … SC
while commenting on to the validity of Section 30 of the
Prison Act declared that Solitary Confinement is a Substantial
Punishment and that can only be awarded by the court and
not the prison authorities… Further held that freedom of
talking, mixing, mingling and sharing company with the co-
prisoners are included, in the broad sweep and content of
article 21.
 Delhi Judicial Service Association vs. State of Gujrat, AIR 1991
SC 2176… Inspector of Nadial Police Station arrested,
assaulted and hand cuffed the Chief Judicial Magistrate of
Nadial town and tied him with a thick rope like an animal and
made a public exhibition of it… on the charges of having
consumed liquor in the breach of the prohibition of law
enforced in the state of Gujrat.
 Right to Bail:
 Babu Singh vs. State of UP, AIR 1978 SC 527... SC
recognised right to bail as a part of ‘personal liberty’
under Article 21.
Environment Jurisprudence
 42nd Constitutional Amendment, 1977 and Article 48-A.
 Similarly, Article 51-A (g) imposed duty on every citizen
of India to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have
compassion for living creatures.
 Ratlam Municipalty vs.Vardichand, AIR 1980 SC 1622

 Rural litigation and Entitlement Kendra vs. State of UP.,

(1985) 2 SCC 431… Sc ordered closure of certain lime
stones quarries on the ground that there were serious
deficiencies regarding safety and hazards in them.
 Polluter Pay Principle and Precautionary Principle.
 Absolute Liability Principle.
 M C Mehta’s Case
Compensatory Jurisprudence
 Section 357 of Criminal Procedure Code deals with
compensation to the victim of the crime, but that is a
discretionary provision.
 Ruthal Shah vs. State of Bihar, AIR 1983 SC 1086… For
Illegal arrest Rs. 30000 awarded by the the SC.
 Bhim Singh vs. State of Jammu and Kashmir, (1985) 4 SCC
677.
 Chairman Railway Board vs. Chandrima Das AIR 2000 SC
988.
 Delhi Domestic Working Women’s Forum vs. Union of
India (1995)1 SCC14.
Right to Health and Medical Assistance:

 Paramand Katata vs. Union of India, AIR 1989 SC 2039.

 Consumer Education and Research Center vs. Union of

India, (1995) 3 SCC 42. (Asbestosis Case)

 Murali S Deora vs. Union of India, AIR 2002 SC

40…Banning of Smoking at Public Places.
 Right to Livelihood:
 Olga Tellis vs. Bombay Municipal Corporation, AIR 1986
SC 180.
 State of Maharashtra vs. Chandrabhan AIR 1983 SC 803…
held that payment of subsistence allowance at the rate of
Rs. 1/- per month was held to be violative of Article 21.

 UCC in the Light of Daniel Latif’s Case.