Article 21 - An Analysis

by Vaibhav on October 29, 2010

Article 21 of the constitution says that: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive, and not from legislative action. The state could not interfere with the liberty of citizens if it could support its action by a valid law.
But after Maneka Gandhi’s decision Article 21 now protects the right to life and personal liberty of citizen not only from the Executive action but from the Legislative action also. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.
Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right. It guarantees right to life and personal liberty to citizens and aliens and is enforceable against the State. The new interpretation of Article 21 in Maneka Gandhi’s case has ushered a new era of expansion of the horizons of right to life and personal liberty. The wide dimension given to this right now covers various aspects which the founding fathers of the Constitution might or might not have visualized. ‘Right to life’ and ‘personal liberty’ is the modern name for what have been traditionally known as ‘natural right.’ It is the primordial rights necessary for the development of human personality. It is the moral right which every human being everywhere at all times ought to have simply because of the fact that in contrast with other beings, he is rational and moral. It is the fundamental right which enables a man to chalk out his own life in the manner he likes best. Right to life and personal liberty is one of the rights of the people of India preserved by the Constitution of India, 1950 and enforced by the High Courts and Supreme Court under article 226 and 32 respectively.
The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of 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 which have long been recognized as being essential to the orderly pursuit of happiness by free men. The meaning of the words “personal liberty” came up for consideration of the Supreme Court for the first time in A.K. Gopalan v. Union of India. In this case, the Supreme Court by the majority held that the ‘personal liberty’ in Article 21 means nothing more than the liberty of the physical body, that is freedom from arrest and detention without authority of law. this definition of the phrase ‘personal liberty’ given by Prof. Dicey, according to whom personal liberty means freedom from physical restrain and coercion which is not authorized by law. The word ‘liberty’ is a very comprehensive word and if interpreted it is capable of including the rights mentioned in Article 19 of the Constitution. but this restrictive interpretation of the expression ‘personal liberty’ in Gopalan’s case has not been followed by the Supreme Court in its later decisions. Finally, in Maneka Gandhi v. Union of India, the Supreme Court has not only overruled Gopalan’s case but has widened the scope of the words ‘personal liberty’ considerably.
“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised the status of distinct fundamental rights and given additional protection under Article 19.”
It is true that Article 21 is worded in negative terms but it is now well settled that Article 21 has both negative and affirmative dimension. Positive rights are very well conferred under Article 21 of the constitution. The following rights are held to be covered under Article 21:
<!–[if !supportLists]–>· <!–[endif]–>Right to live with human Dignity
In Maneka Gandhi’s case the court gave a new dimension to Article 21. It held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. The right to live is not confined to the protection of any limb through which life is enjoyed but it also includes the right to live with human dignity and all that goes along with it namely the bare necessity of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely moving about and mixing and commingling with fellow human beings
<!–[if !supportLists]–>· <!–[endif]–>Right to livelihood
In Olga Tellis v. Bombay Municipal Corporation, popularly known as the pavement dwellers case, the Supreme Court has finally ruled out that the word ‘life’ in Article 21 includes the ‘right to livelihood’. The court said that an equally important facet of right to life is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part 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.

<!–[if !supportLists]–>· <!–[endif]–>Right to shelter
Right to shelter is a fundamental right under Article 21 of the Constitution. In any organized society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is ensured only when he is assured of all the facilities to benefit himself. Right to live guaranteed in any civilized society implies the right to food, water , decent environment, education, medical care and shelter. 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.
<!–[if !supportLists]–>· <!–[endif]–>Right to privacy
The Supreme Court held that a citizen has right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing, and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise. This rule is subject to an exception that if any publication of such matters is based on public record including court record it will be unobjectionable. The second exception is that the right to privacy or the remedy of action for damage is simply not available to public officials as long as the criticism concerns the discharge of their public duties.
<!–[if !supportLists]–>· <!–[endif]–>Right to health and medical assistance
In Parmananda Katara v. Union of India, it has been held that it is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life without waiting legal formalities to be complied with by the police under Cr.P.C. Article 21 of the constitution cast the obligation on the state to preserve life. it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.
<!–[if !supportLists]–>· <!–[endif]–>Right to get pollution free water and air
In Subhash Kumar v. Bihar, the Apex Court has held that enjoyment of pollution free environment is included under right to life under Article 21 of the Constitution.
<!–[if !supportLists]–>· <!–[endif]–>Right to free legal aid
Right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21. In a democratic policy, governed by rule of law, it should be the main concern of the state to have a proper legal system. The crucial words are to provide free legal aid by suitable legislations or by schemes or in any other way so that opportunities for securing justice are not denied to any citizen by reason of economic or other diabilities.
<!–[if !supportLists]–>· <!–[endif]–>Right to Education
The Fundamental Right to Education has been incorporated in our Constitution under Article 21A, on April 1, 2010. From now onwards all the children in  the age group of 6-14 years will be provided 8 years of elementary education in an  appropriate classroom in the vicinity of his/her neighborhood. The cost of facilitating school education to a child will be borne by the State. The government will be responsible for the enrollment and regular attendance of children. All schools will have to prescribe to norms and standards laid out in the Act and no school that does not fulfill these standards within 3 years will be allowed to function. Unrecognized private schools operating in the country will have to apply for recognition, failing which they will be penalized to the tune of Rs 1 lakh and if they still continue to function will be liable to pay Rs 10,000 per day as fine.
The Directive Principles of the State Policy as enumerated in Chapter-IV are not enforceable in a court of law. Nevertheless, they are fundamental in the governance of the nation as the name itself implies “Directive Principles of the State Policy”. The Constitution makers evolved what was then a novel constitutional device which classified entitlements into ‘fundamental rights’ which were justifiable in a court of law and ‘directive principles of state policy’ which though not judicially enforceable, were nevertheless fundamental in the governance of the nation. In one of the historic judgment in the case of Confederation of Ex-Servicemen Association and Others v Union of India the apex court observed that,
Apart from fundamental rights guaranteed by Part III of the Constitution, it is the duty of the respondents [Government of India] to implement Directive Principles of State Policy under Part IV of the Constitution.
In Bandhua Mukti Morcha v Union of India , Justice Bhagwati referring to Francis Coralie Mullin v Administrator, Union Territory of Delhi, stated;
It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen’s case, 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 etc. 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. Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21.
Thus the Court held that where a law has already been enacted to enforce Article 21 with reference to the directive principles of the state policy it can compel the state to implement the said legislation in letter and spirit.
In 1993, relying on the directive principle of the state policy, the Court ruled that the right to education until the age of fourteen is a fundamental right and therefore falls under the protection of Article 21 in conjunction with Article 41.Article 41 states: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education…” Thus, the Court has interpreted the Directive Principles of the State Policy in conjunction with Article 21 and gave a wider meaning to Article 21 so as to give life to that article.
In the next part we will discuss in detail the relationship between Article 21 and international human rights documents. We will elaborate and discuss the interpretation given by the Supreme Court to Article 21 to interpret it in a manner so as to include within its ambit basic human rights recognised by various international human rights instruments.
The most unique feature of the Indian Constitution is Article 32. It is a fundamental right guaranteed to citizens of India under Part-III of the Constitution. The provision of the article states that:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part [Part-III] is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said, ‘if I am asked which is the most important provision of the Indian Constitution, without which the Constitution would not survive I would point to none other than article 32 which is the soul of the Indian Constitution.
The judicially enforceable “fundamental rights” provisions of the Indian Constitution are set forth in part III in order to distinguish them from the non-justifiable “directive principles” set forth in part IV, which establish the inspirational goals of economic justice and social transformation. Overtime, case law has come to interpret Article 32 as allowing for ordinary citizens to petition the Supreme Court in matters where the government is accused of infringing upon the “fundamental rights” [particularly Article 21] of the constitution. In addition, the Constitution includes Article 226 which the Courts have interpreted as giving any claimant the opportunity to file suit on behalf of the public in a High Court, when there is a violation of fundamental right or a right guaranteed by statute. Thus, Article 32 is the soul of the Indian Constitution. When there is infringement of Article 21 the aggrieved person can approach the Supreme Court of India for enforcement of his fundamental rights.
Maneka Gandhi’s case demonstrates how judicial activism can expand the reach of law with a view to curbing and controlling executive discretion and ensuring the basic human rights of the citizen. Few landmark cases will be discussed which has drastically changed the interpretation of Article 21. The modern interpretation of right to life is one of the historical developments of constitutional law.
In the Delhi Pollution Case,the Supreme Court held in 1989 that Article 21 of the Constitution guaranteeing the right to life must be interpreted to include the “right to live in a healthy environment with minimum disturbance of ecological balance,” and “without avoidable hazard to [the people] and to their cattle, house and agricultural land, and undue affection (sic) of air, water, and environment.”
The subsequent ruling in Charan Lal Sahu v. Union of India expanded upon this decision when Justice Kuldip Singh described the government’s role in the protection of fundamental rights: “It is the obligation of the State to assume such responsibility and protect its citizens.” The Court held that the government’s obligation to protect fundamental rights forces it to protect the environment. Thus, from time to time the Supreme Court interpreted Article 21 broadly so as to infuse real life in the said article. It also waived the rule of locus standi so as to make the life of the citizens of India meaningful.
Thus, the Supreme Court interpreted Article 21 in a widest possible manner and included within its ambit the right to live with human dignity.
The cases examined in this part primarily relate to the modern approach of the Indian judiciary which demonstrated the enhanced interpretation of right to life and personal liberty. Thus, the scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, which has interpreted the right of life to mean the right to live a civilized life. In the next part of the essay we will discuss briefly the meaning of judicial activism so as to understand the creativity of the Indian judiciary in interpreting Article 21.
Thus, in the wake of all the above cited cases it is becoming evident that the Indian Judiciary though is restrained in many ways has evolved itself as a savior of mankind by applying its judicial activism. The key chosen for widening the scope of application of provisions of law is Article 21. The Supreme Court conquered the faith of the millions of Indian people by these people friendly decisions mainly on this constitutional provision though there is delay in delivery of the decision. Let us all welcome the evolution of this neo – jurisprudence of Indian Constitution.

1950 SC 27
AIR 1978 SC 597
AIR 1986 SC 180
AIR 1989 SC 2039
AIR 1991 SC 420
AIR 1984 SC 802
AIR 1981 SC 746

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