Right to Life and Personal Liberty

• We are all born free and equal then why we cannot live our life freely?? We need
• Right to life
• Right to life The right to life is a moral principle based on the belief that a human
being has the right to live and, in particular, should not to be unjustly killed by
another human being.
• The right to life is central to debates on the issue of Abortion Capital punishment
prostitution Slavery Right to freedom
• Abortion Every human being, even the child in the womb, has the right to life
directly from God and not from his parents, not from any society or human authority.
• Capital punishment Right to life is not always guaranteed Some peoples
believe that capital punishment is the worst violation of human rights, because the
right to life is the most important, and capital punishment violates it without
necessity and inflicts to the condemned a psychological torture.
Right to issues
• Death penality is one of such example HR law does not prohibit the use of the
death penality as a punishment for crimes but does encourage its abolition and
seek to limit its use
• prostitution Girls have their own life to live but some people forced them to
prostituion Some peoples traffickate them to prostituion slavery A person is
described as a slave if he or she is forced to work for another person A forced
marriage can be regarded as a form of slavery if one of the parties, usually the
female, is subject to violence, threats, or intimidation; Trafficking in human
beings is one of methods of obtaining slaves
• In india and in some other countries people forced their childrens into slavery for
money
• Right to freedom The rights to freedom is the most important fundamental
rights of human being. A birds or animals have their own right to freedom but
we put them under cage. This means that nobody - including the government -
can try to end your life
Right to life : India
• “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
• According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.”
Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
• This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living
constitution, the foundation of our laws.

• Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in
Article 12. Violation of the right by private individuals is not within the preview of Article 21.

• Article 21 secures two rights:

• 1) Right to life, and
• 2) Right to personal liberty.
• The Article prohibits the deprivation of the above rights except according to a procedure established by law. Article 21
corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the
Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.
• Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can
claim this right. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1)
(e).
Is there a right to life in the US Constitution?

• There is no mention of the right to life in the US

Constitution. In fact, there is only one instance of the word
“life” used in the entire document, under Article III Section 3: ...
So the statement was in the Declaration of Independence, not
in the US Constitution.
• Everyone's right to life shall be protected by law. No one shall
be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which
the penalty is provided by law
UK
• Article 2 of the Human Rights Act protects your right to life.
• This means that nobody, including the Government, can try to end your
life. It also means the Government should take appropriate measures to
safeguard life by making laws to protect you and, in some circumstances,
by taking steps to protect you if your life is at risk.
• Public authorities should also consider your right to life when making
decisions that might put you in danger or that affect your life expectancy.
• If a member of your family dies in circumstances that involve the state,
you may have the right to an investigation. The state is also required to
investigate suspicious deaths and deaths in custody.
• The courts have decided that the right to life does not include a right to
die.
• Separately, Protocol 13, Article 1 of the Human Rights Act makes the
death penalty illegal in the UK.
 MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

• Everyone has the right to life, liberty and the security of person.’ The right to life
is undoubtedly the most fundamental of all rights. All other rights add quality to
the life in question and depend on the pre-existence of life itself for their
operation. As human rights can only attach to living beings, one might expect the
right to life itself to be in some sense primary, since none of the other rights would
have any value or utility without it. There would have been no Fundamental
Rights worth mentioning if Article 21 had been interpreted in its original sense.
• ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing.
It does not connote mere animal existence or continued drudgery through life. It has
a much wider meaning which includes right to live with human dignity, right to
livelihood, right to health, right to pollution free air, etc.
Cont…
• Right to life is fundamental to our very existence without which we
cannot live as a human being and includes all those aspects of life,
which go to make a man’s life meaningful, complete, and worth living.
It is the only article in the Constitution that has received the widest
possible interpretation. Under the canopy of Article 21, so many rights
have found shelter, growth, and nourishment. Thus, the bare
necessities, minimum and basic requirements that are essential and
unavoidable for a person is the core concept of the right to life.
• In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that:
By the term “life” as here used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an
eye, or the destruction of any other organ of the body through which the soul communicates with the
outer world.

• In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval the above
observations and held that the “right to life” included the right to lead a healthy life so as to enjoy all
faculties of the human body in their prime conditions. It would even include the right to protection
of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the
right to live in peace, to sleep in peace and the right to repose and health.
Right To Live With Human Dignity

• In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21
and held that the right to live is not merely a physical right but includes within its ambit the
right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v.
Union Territory of Delhi, observed that:
• “The right to live 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 self.”
•
Bandhua Mukti case
• Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti Morcha v.
Union of India. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an
expanded interpretation. 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.”
• the Supreme Court in Peoples Union for Democratic Rights v. Union of India, held that non-payment of
minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their
right to live with basic human dignity and violative of Article 21 of the Constitution.
• Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under various
labor laws are clearly intended to ensure basic human dignity to workmen. He held that the non -
implementation by the private contractors engaged for constructing a building for holding Asian Games in
Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was
held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21
• In Chandra Raja Kumar v. Police Commissioner Hyderabad, it has been held that the right to life includes
right to live with human dignity and decency and, therefore, holding of beauty contest is repugnant to dignity
or decency of women and offends Article 21 of the Constitution only if the same is grossly indecent,
scurrilous, obscene or intended for blackmailing. The government is empowered to prohibit the contest as
objectionable performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition
Act, 1956.
• In State of Maharashtra v. Chandrabhan, the Court struck down a provision of Bombay Civil Service Rules,
1959, which provided for payment of only a nominal subsistence allowance of Re. 1 per month to a
suspended Government Servant upon his conviction during the pendency of his appeal as unconstitutional
on the ground that it was violative of Article 21 of the Constitution.
Right Against Sexual Harassment At Workplace

• “The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient
amplitude to encompass all facets of gender equality including prevention of sexual harassment or
abuse.”
• Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.
Vishakha Case
• In Vishakha v. State of Rajasthan, the Supreme Court has declared sexual harassment of a working woman at her work as amounting
to the violation of rights of gender equality and rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the
Constitution. In the landmark judgment, the Supreme Court in the absence of enacted law to provide for effective enforcement of basic
human rights of gender equality and guarantee against sexual harassment laid down the following guidelines:
• All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent
sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
• Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in
appropriate ways.
• The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the
Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is
no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe
that she is disadvantaged in connection with her employment.
• Where such conduct amounts to specific offenses under I.P.C, or under any other law, the employer shall initiate appropriate action
in accordance with law by making a complaint with the appropriate authority.
• The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own transfer.
• In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court reiterated
the Vishakha ruling and observed that:
• “There is no gainsaying that each incident of sexual harassment, at the place of
work, results in the violation of the Fundamental Right to Gender Equality and the
Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the
Constitution of India….
• “In our opinion, the contents of the fundamental rights guaranteed in our
Constitution are of sufficient amplitude to encompass all facets of gender equality,
including prevention of sexual harassment and abuse and the courts are under a
constitutional obligation to protect and preserve those fundamental rights. That
sexual harassment of a female at the place of work is incompatible with the dignity
and honor of a female and needs to be eliminated….”
Right Against Rape

• Rape has been held to a violation of a person’s fundamental life guaranteed

under Art. 21. Right to life right to live with human dignity. Right to life, would,
therefore, include all those aspects of life that go on to make life meaningful,
complete and worth living.

• In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that:

• “Rape is thus not only a crime against the person of a woman (victim), it is a crime
against the entire society. It destroys the entire psychology of a woman and pushed
her into deep emotional crises. It is only by her sheer will power that she rehabilitates
herself in the society, which, on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated crime. It is a crime against
basic human rights and is also violative of the victim’s most cherished of the
fundamental rights, namely, the right to life with human dignity contained in Art 21”.
Right To Reputation

• Reputation is an important part of one’s life. It is one of the finer graces of human civilization that
makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis in Smt. Kiran
Bedi v. Committee of Inquiry held that “good reputation was an element of personal security and was
protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The
court affirmed that the right to enjoyment of life, liberty, and property. The court affirmed that the right to
enjoyment of private reputation was of ancient origin and was necessary to human society.”
• The same American Decision has also been referred to in the case of State of Maharashtra v. Public
Concern of Governance Trust, where the Court held that good reputation was an element of personal
security and was protected by the constitution, equally with the right to the enjoyment of life, liberty,
and property.
• It has been held that the right equally covers the reputation of a person during and after his death.
Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person would
certainly come under the scope of Art. 21.
Reputation

• In State of U.P. v. Mohammaad Naim, succinctly laid down the following tests while dealing the question of
expunction of disgracing remarks against a person or authority whose conduct comes in consideration before a
court of law:
• whether the party whose conduct is in question is before the court or has an opportunity of explaining or
defending himself.
• whether there is evidence on record bearing on that conduct justifying the remarks.
• whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally
depart from sobriety, moderation, and reserve.
• In State of Bihar v. Lal Krishna Advani, a two-member commission of inquiry appointed to inquire into the
communal disturbances in Bhagalpur district on 24th October, 1989, made some remarks in their report, which
impinged upon the reputation of the respondent as a public man, without affording him an opportunity of being
heard. The Apex Court ruled that it was amply clear that one was entitled to have and preserve one’s reputation
and one also had the right to protect it.
• The court further said that in case any authority, in the discharge of its duties fastened upon it under the law,
transverse into the realm of personal reputation adversely affecting him, it must provide a chance to him to have
his say in the matter. The court observed that the principle of natural justice made it incumbent upon the authority
to give an opportunity to the person before any comment was made or opinion was expressed which was likely to
prejudicially affect that person.
Right To Livelihood

• To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include the right to
livelihood. In Re Sant Ram, a case which arose before Maneka Gandhi case, where the Supreme Court ruled that the
right to livelihood would not fall within the expression “life” in Article 21. The court said curtly:
• “The right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited
sense. But the language of Art.21 cannot be pressed into aid of the argument that the word ‘life’ in Art. 21 includes
‘livelihood’ also.”
• But then the view underwent a change. With the definition of the word “life” in Article 21 in a broad and
expansive manner, the court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarn],
came to hold that “the right to life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court
in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge
bench of the Court now implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live
without the means of living, that is, the means of Livelihood. That the court, in this case, observed that:
• “The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot
be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according
to procedure established by law. That is but one aspect if the right to life. An equally important facet of the right to life
is the right to livelihood because no person can live without the means of livelihood.”
Cont…
• If the right to livelihood is not treated as a part and parcel of the
constitutional right to life, the easiest way of depriving a person of his right
to life would be to deprive him of his means of livelihood to the point of
abrogation[.
• In the instant case, the court further opined:

• “The state may not by affirmative action, be compelled to provide adequate

means of livelihood or work to the citizens. But, any person who is deprived of
his right to livelihood except according to just and fair procedure established
by law can challenge the deprivation as offending the right to life conferred in
Article 21.”
Cont…
Emphasizing upon the close relationship of life and livelihood, the court
stated:
• “That, which alone makes it impossible to live, leave aside what makes life
livable, must be deemed to be an integral part of the right to life. Deprive a
person from his right to livelihood and you shall have deprived him of his life.”
• Art. 21 does not place an absolute embargo on the deprivation of life or
personal liberty and for that matter on right to livelihood. What Art. 21
insists is that such deprivation ought to be according to procedure
established by law which must be fair, just and reasonable. Therefore
anyone who is deprived of the right to livelihood without a just and fair
procedure established by law can challenge such deprivation as being
against Art. 21 and get it declared void
HIV Not A Sound Ground For Termination

• In MX of Bombay Indian Inhabitants v. M/s. ZY, it was held that a person tested positive for HIV
could not be rendered “medically unfit” solely on that ground so as to deny him the employment. The
right to life includes the right to livelihood. Therefore, the right to livelihood cannot hang on to the
fancies of the individuals in authority. Even though the petitioner might have been a nuisance to
others and conducted themselves either in a disorderly way or unbecoming on their profession but,
that in itself, it is not sufficient for the executive to take away their source of livelihood by executive
fiat.
Right To Work Not A Fundamental Right
Under Art.21
• In Sodan Singh v. New Delhi Municipal Committee, the five-judge bench of the Supreme Court
distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or business, a
fundamental right conferred by Art. 19(1)(g) and held the right to carry on trade or business is not included
in the concept of life and personal liberty. Article 21 is not attracted in the case of trade and business.
• The petitioners, hawkers doing business off the paved roads in Delhi, had claimed that the refusal by the
Municipal authorities to them to carry on the business of their livelihood amounted to the violation of their
right under Article 21 of the Constitution. The court opined that while hawkers have a fundamental right
under Article 19(1) (g) to carry on trade or business of their choice; they have no right to do so in a particular
place. They cannot be permitted to carry on their trade on every road in the city. If the road is not wide
enough to be conveniently accommodating the traffic on it, no hawking may be permitted at all or may be
permitted once a week.

• Footpaths, streets or roads are public property and are intended to several general public and are not
meant for private use. However, the court said that the affected persons could apply for relocation and
the concerned authorities were to consider the representation and pass orders thereon. The two rights
were too remote to be connected together
• The court distinguished the ruling in Olga Tellis v. Bombay Municipal
Corporation and held that “in that case the petitioners were very poor
persons who had made pavements their homes existing in the midst of filth
and squalor and that they had to stay on the pavements so that they could
get odd jobs in the city. It was not the case of a business of selling articles
after investing some capital.”
• In Secretary, State of Karnataka v. Umadevi, the Court rejected that right to
employment at the present point of time can be included as a fundamental
right under Right to Life under Art. 21.
Right To Shelter

• In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the right to shelter has been held to be a fundamental
right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21. To make the
right meaningful to the poor, the state has to provide facilities and opportunities to build houses.
• Upholding the importance of the right to a decent environment and a reasonable accommodation, in Shantistar Builders v.
Narayan Khimalal Totame[, the Court held that:
• “The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable
accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.
• “For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow
him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child.
That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-
built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built
fireproof accommodation.”
• In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme Court had considered and held that the right to shelter is
a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its
ambit, the right to shelter to make the right to life more meaningful. The Court observed that:
• “Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow
physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure,
clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as
to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but
right to all the infrastructure necessary to enable them to live and develop as a human being].”
Right To Social Security And Protection Of
Family
• Right to life covers within its ambit the right to social security and protection of family0. K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose, held
that right to social and economic justice is a fundamental right under Art. 21. The learned judge
explained that the right to life and dignity of a person and status without means were cosmetic rights.
Socio-economic rights were, therefore, basic aspirations for meaning the right to life and that Right to
Social Security and Protection of Family were an integral part of the right to life.

• In Regional Director, ESI Corporation v. Francis De Costa, the Supreme held that security against
sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of the
Constitution of India.
• In L.I.C. of India v. Consumer Education and Research Centre, it was further held that right to life and
livelihood included right to life insurance policies of LIC of India, but that it must be within the paying
capacity and means of the insured.
Right Against Honour Killing

• A division bench of Allahabad high court, In Surjit Kumar v. State of U.P., took serious note on
harassment, in ill-treatment and killing of a person who was a major, for wanting to get married to a
person of another caste or community, for bringing dishonor to family since inter caste or inter-
community marriage was not prohibited in law, the court said that such practice of “honor killing” was
a blot on society. The court, therefore, directed the police to take strong measures, against those who
committed such ‘honor killing’.
Right To Health

• In State of Punjab v. M.S. Chawla, it has been held that- the right
to life guaranteed under Article 21 includes within its ambit the
right to health and medical care.
• The Supreme Court in Vincent v. Union of India, emphasized
that a healthy body is the very foundation of all human
activities.Art.47, a Directive Principle of State Policy in this
regard lays stress note on the improvement of public health and
prohibition of drugs injurious to health as one of the primary
duties of the state
Right To Medical Care

• In Parmananda Katara v. Union of India, the Supreme Court has very specifically clarified that preservation of life is of
paramount importance. The Apex Court stated that ‘once life is lost, status quo ante cannot be restored.’ It was held that it
is the professional obligation of all doctors (government or private) to extent medical aid to the injured immediately to
preserve life without legal formalities to be complied with the police.
• Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are in charge of the health of
the community to preserve life so that the innocent may be protected and the guilty may be punished. No law or state
action can intervene to delay and discharge this paramount obligation of the members of the medical profession.

• No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of
the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statute or
otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.
The court also observed:

• “Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether he be an innocent person or
a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of
the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not
contemplate death by negligence to tantamount to legal punishment…. Every doctor whether at a Government hospital or
otherwise has the professional obligation to extend his services with due expertise for protecting life.”
Cont…
• In Pravat Kumar Mukherjee v. Ruby General Hospital & Others, it was held
that a hospital is duty bound to accept accident victims and patients who
are in critical condition and that it cannot refuse treatment on the ground
that the victim is not in a position to pay the fee or meet the expenses or on
the ground that there is no close relation of the victim available who can
give consent for medical treatment].
• The court has laid stress on a very crucial point, viz., the state cannot
plead lack of financial resources to carry out these directions meant to
provide adequate medical services to the people. The state cannot avoid
its constitutional obligation to provide adequate medical services to
people on account of financial constraints.
No Right To Die

• Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or
a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which
punishes a person convicted of attempting to commit suicide? There has been a difference of opinion
on the justification of this provision to continue on the statute book.
• This question came for consideration for the first time before the High Court of Bombay in State of
Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held that the right to life
guaranteed under Article 21 includes right to die, and the Hon’ble High Court struck down Section 309
of the IPC that provides punishment for an attempt to commit suicide by a person as unconstitutional.
• In P. Rathinam v. Union of India, a two-judge Division Bench of the Supreme Court, took cognizance
of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supported the
decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies
in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking.
Cont…
• The court argued that the word life in Art. 21 means right to live with human dignity and the same does
not merely connote continued drudgery. Thus the court concluded that the right to live of which Art. 21
speaks of can be said to bring in its trail the right not to live a forced life. The court further emphasized that
“attempt to commit suicide is in reality a cry for held and not for punishment.”
• The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of Punjab. The
question before the court was that if the principal offense of attempting to commit suicide is void as being
unconstitutional vis-à-vis Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860.
It was argued that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having
been declared unconstitutional, any person abetting the commission of suicide by another is merely
assisting in the enforcement of his fundamental right under Art. 21.
• The Court overruled the decision of the Division Bench in the above-stated case and has put an end to the
controversy and ruled that Art.21 is a provision guaranteeing the protection of life and personal liberty and
by no stretch of imagination can extinction of life’ be read to be included in the protection of life. The court
observed further:

• “……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction
of life and, therefore, incompatible and inconsistent with the concept of right to life”
Euthanasia And Right To Life

• Euthanasia is termination of the life of a person who is terminally ill or in a permanent vegetative
state. In Gian Kaur v. State of Punjab, the Supreme Court has distinguished between Euthanasia and
attempt to commit suicide. The court held that death due to termination of natural life is certain and
imminent and the process of natural death has commenced. These are not cases of extinguishing life
but only of accelerating conclusion of the process of natural death that has already commenced.
• The court further held that this may fall within the ambit of Right to live with human dignity up to the
end of natural life. This may include the right of a dying man to also die with dignity when his life is
ebbing out. This cannot be equated with the right to die an unnatural death curtailing the natural span
of life.
Sentence Of Death –Rarest Of Rare Cases

• The issue of abolition or retention of capital punishment was dealt with by the law commission of India. After collecting
as much available material as possible and assessing the views expressed by western scholars, the commission
recommended the retention of capital punishment in the present state of the country. The commission held the opinion
that having regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the disparity in the
level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the
paramount need for maintaining law and order in the country, India could not risk the experiment of abolition of capital
punishment.

• In Jagmohan v. State of U.P, the Supreme Court had held that the death penalty was not violative of Articles 14, 19 and
21. It was said that the judge was to make the choice between the death penalty and imprisonment for life on the basis of
circumstances, facts, and nature of crime brought on record during trial. Therefore, the choice of awarding death sentence
was done in accordance with the procedure established by law as required under article 21
• But, in Rajindera Parsad v. State of U.P., Krishna Iyer J., speaking for the majority, held that capital punishment would not
be justified unless it was shown that the criminal was dangerous to the society. The learned judge plead for the abolition
of the death penalty and said that it should be retained only for “white collar crimes”
• However, in Bachan Singh v. State of Punjab, the leading case of on the question, a constitution bench of the supreme
court explained that article 21 recognized the right of the state to deprive a person of his life in accordance with just, fair
and reasonable procedure established by valid law. It was further held that the death penalty for the offense of murder
awarded under section 302 of I.P.C did not violate the basic feature of the constitution.
Right To Get Pollution Free Water And Air

• In Subhas Kumar v. State of Bihar, it has held that a Public Interest Litigation is maintainable for
ensuring enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the
constitution. The court observed:
• “Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of
enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that
quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for
removing the pollution of water or air which may be detrimental to the quality of life.”
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 following are some of the well-known cases on the environment under Article 21:

• In M.C. Mehta v. Union of India (1988), the Supreme Court ordered the closure of tanneries that were polluting water.
• In M.C. Mehta v. Union of India (1997), the Supreme Court issued several guidelines and directions for the protection of the Taj
Mahal, an ancient monument, from environmental degradation.
• In Vellore Citizens Welfare Forum v. Union of India[, the Court took cognizance of the environmental problems being caused by
tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. The Court issued several
directions to deal with the problem.
• In Milk Men Colony Vikas Samiti v. State Of Rajasthan, the Supreme Court held that the “right to life” means clean surrounding
which leads to healthy body and mind. It includes the right to freedom from stray cattle and animals in urban areas.
• In M.C. Mehta v. Union of India (2006), the Court held that the blatant and large-scale misuse of residential premises for
commercial use in Delhi violated the right to salubrious sand decent environment. Taking note of the problem the Court issued
directives to the Government on the same.
• In Murli S. Deora v. Union of India, the persons not indulging in smoking cannot be compelled to or subjected to passive
smoking on account of the act of smokers. Right to Life under Article 21 is affected as a non-smoker may become a victim of
someone smoking in a public place.
Right Against Noise Pollution

• In Re: Noise Pollution, the case was regarding noise pollution caused by obnoxious levels of noise due to
bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of
such noise making crackers and observed that:
• “Article 21 of the Constitution guarantees the life and personal liberty to all persons. It guarantees the right
of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person’s
life meaningful, complete and worth living. The human life has its charm and there is no reason why life should
not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet
within his house has a right to prevent the noise as pollutant reaching him.
• “No one can claim a right to create noise even in his own premises that would travel beyond his precincts
and cause the nuisance to neighbors or others. Any noise, which has the effect of materially interfering with the
ordinary comforts of life judged by the standard of a reasonable man, is nuisance…. While one has a right to
speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can
claim that he has a right to make his voice trespass into the ears or mind of others.
• “Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the
assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to
unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful,
comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service
for defeating the fundamental right guaranteed by Article 21
Right To Know Or Right To Be Informed

• the right to life has reached new dimensions and urgency the Supreme
Court in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt.
Ltd., observed that if democracy had to function effectively, people must
have the right to know and to obtain the conduct of affairs of the State.
• In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there
was a strong link between Art.21 and Right to know, particularly where
“secret government decisions may affect health, life, and livelihood.
• Reiterating the above observations made in the instant case, the Apex
Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, ruled that the citizens who had been made responsible to
protect the environment had a right to know the government proposal
 PERSONAL LIBERTY

• Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the
English Magna Carta provided that,

• No freeman shall be taken or imprisoned… but… by the law of the land.

• The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty.
What can be more important than liberty? In India, the concept of ‘liberty’ has received a far more expansive
interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily
restraint, and has held that it encompasses those rights and privileges that have long been recognized as being
essential to the orderly pursuit of happiness by free men.

• The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case,
which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for
surveillance by way of domiciliary visits and secret picketing. Oddly enough both the majority and minority on the
bench relied on the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v
Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition against its
deprivation extended to all those limits and faculties by which the life was enjoyed.
Cont…
• This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or
the putting of an eye or the destruction of any other organ of the body through which the soul
communicated with the outer world. The majority held that the U. P. Police Regulations authorizing
domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of
liberty and thus] unconstitutional. The Court observed that the right to personal liberty in the Indian
Constitution is the right of an individual to be free from restrictions or encroachments on his person,
whether they are directly imposed or indirectly brought about by calculated measures.

• The Supreme Court has held that even lawful imprisonment does not spell farewell to all
fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those
‘necessarily’ lost as an incident of imprisonment
Right To Privacy

• Right To Privacy
• As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person to be free from unwarranted
publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily
concerned.”
• Although not specifically referenced in the Constitution, the right to privacy is considered a ‘penumbral right’ under the
Constitution, i.e. a right that has been declared by the Supreme Court as integral to the fundamental right to life and liberty.
Right to privacy has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read
with the Directive Principles of State Policy. Although no single statute confers a crosscutting ‘horizontal’ right to privacy;
various statutes contain provisions that either implicitly or explicitly preserve this right.
• For the first time in Kharak Singh v. State of U.P. question whether the right to privacy could be implied from the existing
fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the court. “Surveillance” under Chapter XX of the
U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the
Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to be in violation of
Article 21. A seven-judge bench held that:
• “the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this court in Kharak Singh’s
case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right
to personal liberty expansively to include a right to dignity. It held that “an unauthorized intrusion into a person’s home and the
disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered
liberty, if not of the very concept of civilization”
• In a minority judgment in this case, Justice Subba Rao held that:
• “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments
on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential
ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of
mind and security. In the last resort, a person’s house, where he lives with his family, is his ‘castle’; it is his rampart against encroachment on his
personal liberty”.
• This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.

• In Govind v. State of Madhya Pradesh, The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the court
was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police
surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down
these invasive provisions holding that:
• “It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only
persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”
• The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Mathew J. observed in the instant
case,

• “The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the
right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy
as an emanation from them that one can characterize as a fundamental right, we do not think that the right is absolute…..
• …… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a
fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest.”
Ont…
• In R. Rajagopalan v. State of Tamil Nadu], The right to privacy of citizens was dealt with by the Supreme Court in the
following terms:
• “(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a
‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood,
childbearing and education among other matters. None can publish anything concerning the above matters without his
consent – whether truthful or otherwise and whether laudatory or critical.
• If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for
damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.
• (2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records including court records. This is for the reason that once a
matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for
comment by press and media among others.
• We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule,
viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the
indignity of her name and the incident being publicized in press/media.”
• The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v. Union of India, the Supreme Court
observed that:
• “We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty”
enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is
attracted. The said right cannot be curtailed “except according to procedure established by law”.
Right to go abroad

• In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, the Supreme Court has included Right
to travel abroad contained in by the expression “personal liberty” within the meaning of Article 21.
• In Maneka Gandhi v. Union of India, the validity of Sec. 10(3)(c) of the passport Act 1967, which
empowered the government to impound the passport of a person, in the interest of the general public was
challenged before the seven-judge Bench of the Supreme Court.
• It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned
section didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.

• The court held that the procedure contemplated must stand the test of reasonableness in order to
conform to Art.21 other fundamental rights. It was further held that as the right to travel abroad falls under
Art. 21, natural justice must be applied while exercising the power of impounding passport under the
Passport Act. BHAGWATI, J., observed:

• The principle of reasonableness, which legally as well as philosophically, is an essential element of

equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that It must be “‘right
and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.
Illegal detention
• In the case of D.K. Basu v. State of West Bengal, the Supreme Court laid down detailed guidelines to
be followed by the central and state investigating agencies in all cases of arrest and detention till
legal provisions are made in that behalf as preventive measures and held that any form of torture or
cruel inhuman or degrading treatment, whether it occurs during interrogation, investigation or
otherwise, falls within the ambit of Article 21.
• Article 21 & Prisoner’s Rights
• The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason
of their conviction deprived of all the fundamental rights that they otherwise possess. Following the
conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to
move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed
under Article 21 and he shall not be deprived of his life and personal liberty except by a procedure
established by law.
• In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article 21. The
Court has interpreted Article 21 so as to have widest possible amplitude. On being convicted of a
crime and deprived of their liberty in accordance with the procedure established by law. Article 21,
has laid down a new constitutional and prison jurisprudence
Right To Free Legal Aid & Right To Appeal

• In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal aid as an
integral part of fair procedure the Court explained that “ the two important ingredients of the right of
appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an
appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise
disabled from securing legal assistance. This right to free legal aid is the duty of the government and
is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as
government charity.
• In other words, an accused person at lease where the charge is of an offense punishable with
imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel for the
accused must be given sufficient time and facility for preparing his defense. Breach of these
safeguards of a fair trial would invalidate the trial and conviction.
Right To Speedy Trial

• In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of the
Supreme Court that an alarming number of men, women, and children were kept in prisons for years
awaiting trial in courts of law. The Court took a serious note of the situation and observed that it was
carrying a shame on the judicial system that permitted incarceration of men and women for such long
periods of time without trials.
• The Court held that detention of under-trial prisoners, in jail for a period longer than what they would
have been sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus,
ordered the release from jail of all those under-trial prisoners, who had been in jail for a longer period
than what they could have been sentenced had they been convicted

• In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme Court dealt with
the question and laid down certain guidelines for ensuring speedy trial of offenses some of them have
been listed below:
• Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried
speedily
Cont…
• Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision, and retrial.

• The concerns underlying the right of the speedy trial from the point of view of the accused are:

• The period of remand and pre-conviction detention should be as short as possible.

• The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly
prolonged investigation, inquiry or trial should be minimal; and

• Undue delay may well result in impairment of the ability of the accused to defend him.

• While determining whether the undue delay has occurred, one must have regard to all the attendant
circumstances, including nature of offense, a number of accused and witnesses, the workload of the court
concerned. Each and every delay does not necessarily prejudice the accused. An accuser’s plea of denial of
the speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial
Fair trial, Bail and Anticipatory bail
• Right To Fair Trial
• Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in Zahira Habibullah Sheikh v.
State of Gujarat[] said that right to free and fair trial not only to the accused but also to the victims, their family members
and relatives, and society at large.
• Right To Bail
• The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day unsatisfactory
and irrational rules for bail, which insists merely on financial security from the accused and their sureties. Many of the
undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to languish in
prisons awaiting their trials.

• But incarceration of persons charged with non-bailable offenses during the pendency of trial cannot be questioned as
violative of Article 21 since the same is authorized by law. In the case of Babu Singh v. State of Uttar Pradesh, the Court
held that right to bail was included in the personal liberty under Article 21 and its refusal would be the deprivation of that
liberty which could be authorized in accordance with the procedure established by law.
• No Right To Anticipatory Bail
• Anticipatory bail is a statutory right and it does not arise out of Article 21. Anticipatory bail cannot be granted as a
matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of Article
21.
Right Against Handcuffing

• Handcuffing has been held to be prima facie inhuman and therefore unreasonable, over-harsh and
at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.
• In Prem Shankar v. Delhi Administration the Supreme Court struck down the Rules that provided
that every under-trial who was accused of a non-bailable offence punishable with more than three
years prison term would be routinely handcuffed. The Court ruled that handcuffing should be resorted
to only when there was “clear and present danger of escape” of the accused under -trial, breaking out
of police control.
Right Against Solitary Confinement

• It has been held that a convict is not wholly denuded of his fundamental rights and his conviction
does not reduce to him into a non – person whose rights are subjected to the whims of the prison
administration. Therefore, the imposition of any major punishment within the prison system is
conditional upon the observance of procedural safeguard.

• In Sunil Batra v. Delhi Administration, the petitioner was sentenced to death by the Delhi session
court and his appeal against the decision was pending before the high court. He was detained in Tihar
Jail during the pendency of the appeal. He complained that since the date of conviction by the session
court, he was kept in solitary confinement.
• It was contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to
solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the
Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to the whim
and caprice of the prison authorities. The Supreme Court accepted the argument of the petitioner
and held that imposition of solitary confinement on the petitioner was violative of Article 21
Custodial violence
• The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-
degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under
Article 21 secure life with human dignity and the same are available against torture.

• Death By Hanging Not Violative Of Article 21

• In Deena v. Union of India, the constitutional validity of the death sentence by hanging was challenged as being
“barbarous, inhuman, and degrading” and therefore violative of Article 21. Referring to the Report of the UK Royal
Commission, 1949; the opinion of the Director General of Health Services of India, the 35th Report of the Law Commission;
and the opinion of the Prison Advisers and Forensic Medicine Experts, the Court held that death by hanging was the best
and least painful method of carrying out the death penalty, and thus not violative of Article 21.
• Right Against Public Hanging
• The Rajasthan High Court, by an order, directed the execution of the death sentence of an accused by hanging at the
Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity through
the media.

• On receipt of the above order, the Supreme Court in Attorney General of India v. Lachma Devi[held that the direction for
execution of the death sentence was unconstitutional and violative of Article 21. It was further made clear that death by
public hanging would be a barbaric practice. Although the crime for which the accused has been found guilty was barbaric
it would be a shame on the civilized society to reciprocate the same. The Court said, “a barbaric crime should not have to
be visited with a barbaric penalty.”
Contd…
• Right Against Delayed Execution
• In T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court held that delay in execution of
death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21
and the death sentence would be commuted to life imprisonment. The cause of the delay
is immaterial, the accused himself may be the cause of the delay.
• In Sher Singh v. State of Punjab, the Supreme Court said that prolonged wait for execution of a
sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo that
is through Article 21. But the Court held that this cannot be taken as the rule of law and applied to
each case and each case should be decided upon its own faces.
• Right To Write A Book
Right To Write A Book

• In State of Maharashtra v. Prabhakar Pandurang[xcvii], the petitioner while under detention in jail
wrote a book on science and sought the permission from the Government to send the manuscript of
the book to his wife for publication, to which the Government refused. The Court held that this was an
infringement of personal liberty and that Article 21 included the right to write the book and get
it published.
PROCEDURE ESTABLISHED BY LAW
• The expression “procedure established by law” has been the subject matter of interpretation in a catena of cases. A
survey of these cases reveals that courts in the process of judicial interpretation have enlarged the scope of the
expression. The Supreme Court took the view that “procedure established by law” in Article 21 means procedure
prescribed by law as enacted by the state and rejected to equate it with the American “due process of law.”

• But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure prescribed by law for depriving a
person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it
would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the “procedure established by
law” has acquired the same significance in India as the “due process of law” clause in America.
• Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that though “our Constitution has no
due process clause” but after Maneka Gandhi’s case “the consequence is the same, and as much as such Article 21 may
be treated as counterpart of the due process clause in American Constitution.”
• Recently the Supreme Court has dealt with an increasing number of people sentenced to death for “bride-burning”. In
December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for two
separate cases of killing two young women by setting them on fire. In an unprecedented move, the court ordered both
prisoners to be publicly executed.
Cont…
• In a response to a review petition by the Attorney General against
this judgment, the Supreme Court in December 1985 stayed the public
hangings, observing that “a barbaric crime does not have to be met
with a barbaric penalty.” The Court observed that the execution of
death sentence by public hanging is a violation of Article 21, which
mandates the observance of a just, fair and reasonable procedure.
• Thus, an order passed by the High Court of Rajasthan for public
hanging was set aside by the Supreme Court on the ground inter alia,
that it was violative of article 21. In Sher Singh v State of Punjab, the
Supreme Court held that unjustifiable delay in execution of death
sentence violates art 21.
Cont…
• The test of procedural fairness has been deemed to be one that is commensurate to protecting such
rights. Thus, where workers have been deemed to have the right to public employment and its concomitant
right to livelihood, a hire-fire clause in favor of the State is not reasonable, fair and just even though the
State cannot affirmatively provide a livelihood for all.

• Under this doctrine, the Court will not just examine whether the procedure itself is reasonable, fair and
just, but also whether it has been operated in a fair, just and reasonable manner. This has meant, for
example, the right to speedy trial and legal aid is part of any reasonable, fair and just procedure. The
process clause is comprehensive and applicable in all areas of State action covering civil, criminal and
administrative action.

• The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v. Union of India
observed that the fundamental right guaranteed under Article 21 of the Constitution of India provides that
none shall be deprived of his life without due process of law. The Court observed that smoking in public
places is an indirect deprivation of life of non-smokers without any process of law. Taking into
consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed
the prohibition of smoking in public places.
Cont..
• It issued directions to the Union of India, State Governments and the Union Territories to take effective
steps to ensure prohibition of smoking in public places such as auditoriums, hospital buildings, health
institutions etc. In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the
Constitution and expanded its horizon to include the rights of non-smokers.

• Further, when there is an inordinate delay in the investigation – it affects the right of the accused, as he is
kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the
investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive
without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not
only against actual proceedings in court but also against police investigation.

• The Supreme Court has widened the scope of ‘procedure established by law’ and held that merely a
procedure has been established by law a person cannot be deprived of his life and liberty unless the
procedure is just, fair and reasonable. It is thus now well established that the “procedure established by law”
to deprive a person of his life and personal liberty, must be just, fair and reasonable and that it must not be
arbitrary, fanciful or oppressive, that the procedure to be valid must comply with the principles of natural
justice.