ABSTRACT

Indian Judiciary though is restrained, in many ways has evolved itself as a savior of
mankind by applying its judicial activism. This article discusses few recent landmark
cases of India wherein it threw focus on how the Indian Supreme Court by taking the
resort of rticle !" of the Indian Constitution evolved itself as a savior of mankind. It
discusses in detail the traditional and modern approach, and the current trend of the
Supreme Court in interpreting rticle !" of the Constitution. #urther, it discusses the
need for such judicial activism and concludes by justifying the activist role played by the
Supreme Court.
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Right to life is an inalienable and inherent right of every human
being. -Thomas Jefferson [!
. "#TR$%&CT"$#
This paper is a study of judicial interpretation of rticle !" of the Indian Constitution and
judicial activism on the part of the Supreme Court of India. This article comprehensively
e&amines Supreme Court of India's judicial activism and thus the broad interpretation of
rticle !" of the Indian Constitution. It e&plores the reasons for such liberal interpretation
when there was no such mandate by the framers of the Constitution. It e&amines the
reasons for judicial creativity and justifies the role played by the Supreme Court of India
in protecting the fundamental rights of the citi(ens when the legislative and e&ecutive
failed in performing their duties. To some e&tent, judicial activism on the part of judiciary
derives from underlying weakness and failure on the part of other machineries of the
State to perform their duties.
)ight to life and personal liberty is the most cherished and pivotal fundamental human
rights around which other rights of the individual revolve and, therefore, the study
assumes great significance. The study of right to life is indeed a study of the Supreme
Court as a guardian of fundamental human rights. rticle !" is the celebrity provision of
the Indian Constitution and occupies a uni*ue place as a fundamental right. It guarantees
right to life and personal liberty to citi(ens and aliens+!, and is enforceable against the
State. The new interpretation of rticle !" in -aneka .andhi's case has ushered a new
era of e&pansion of the hori(ons of right to life and personal liberty. The wide dimension
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given to this right now covers various aspects which the founding fathers of the
Constitution might or might not have visuali(ed.
The above stated revolution in the basic concept makes it imperative that the concept of
right to life and personal liberty should be e&amined a new with reference to
development, meaning, width and depth, along with judicial interpretation, justification
for such liberal interpretation, and relation of rticle !" with the provisions of rticle /!
and 0irective $rinciples of the State $olicy and International 1uman )ights Istruments.
#urther, the protection of this right is burning topics of the day. 1ence an attempt has
been made in this essay to e&amine the modern day standards adopted for protecting the
right to life and personal liberty.
The Constitution said 2oodrow 2ilson, is 3not a mere lawyer's document.4 It is, he said,
3the vehicle of a nation's life.4+/, The Indian Supreme Court has created major reforms
in the protection of human rights. Taking a judicial activist role, the Court has put itself in
a uni*ue position to intervene when it sees violations of these fundamental rights.+5, 3+I,n
India the guardian of democracy is not the legislative wisdom but the wisdom of the
highest court of the land.4+6, 3+T,he court has acted as protector of the workers, and at
time played the role +of, legislator where labour legislation is silent or vague.4+7,
The Supreme Court, as the arbiter and interpreter of the Constitution, serves not merely
the negative purpose of checking e&cesses in judicial practice, but also the vital and
dynamic function of modulating the life of the nation. The Supreme Court is the guardian
of the Constitution under whose protective wings the nation has prospered and grown to
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greatness. Thus, the law as seen in the wordings of the enactment gets a dynamic and
wider scope in day to day events by the legal processes advanced by judicial creativity.+8,
9)ight to life' and 9personal liberty' is the modern name for what have been traditionally
known as 9natural 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 enable a man to chalk out his own life in the
manner he likes best. )ight to life and personal liberty is one of the rights of the people of
India preserved by the Constitution of India, ":6;+<, and enforced by the 1igh Courts
and Supreme Court under article !!7 and /! respectively. In this essay we will discuss
the modern and liberal interpretation given to the concept of right to life and personal
liberty by the Indian Judiciary. Chapter I deals with the introductory part of right to life
and personal liberty. In this chapter, an attempt is being made to trace the meanings of
9life', 9right to life', and 9personal liberty'. In Chapter II of the essay we will overlook the
provision of rticle /! of the Constitution to understand the power of the Supreme Court
of India to interpret rticle !" and a remedy for human beings+:, to approach the ape&
court when there is infringement of fundamental rights, particularly rticle !". In Chapter
III we will discuss in detail the facets which comprise rticle !" i.e. 9right to life',
9personal liberty', and 9procedure established by law'. #urther, we e&plore the relation
and interpretation given to rticle !" with special reference to 90irective $rinciples of the
State $olicy' and 9International 1uman )ights 0ocuments'. In Chapter I= we will have
an overlook on the traditional and narrow approach of the Indian judiciary in interpreting
rticle !" of the Constitution. #urther, in the ne&t part the discussion will focus on the
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modern approach of the Courts, by referring to a historical case which changed the
interpretation of right to life in India. In Chapter 5 it will be demonstrated how judicial
interpretation enhanced the ambit of right to life by discussing some selected cases. In the
ne&t section we will discuss the meaning of judicial activism and arguments for and
against judicial activism. 2e will also discuss the justification for judicial activism and I
would argue in favour of judicial activism. #urther, we will overlook the controversy
between judicial activism and separation of powers. >Judicial ctivism v 0octrine of
Separation of $owers? and discuss in detail the judicial restraint >self@restraint? necessary
for the judiciary while interpreting rticle !" by looking into the minds of the framers of
the Indian Constitution. The article concludes by justifying judicial activism as it is the
creativity of the Indian judiciary that has preserved the basic human rights of the citi(ens
of the largest democracy of the world.
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C'A(T)R --
*. +)A#"#, A#% C$#C)(T $- .R",'T T$ /"-)0
9Averyone has the right to life, liberty and the security of person.'+";, The right to life is
undoubtedly the most fundamental of all rights. ll other rights add *uality to the life in
*uestion and depend on the pre@e&istence of life itself for their operation.+"", s human
rights can only attach to living beings, one might e&pect 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 #undamental )ights worth mentioning if
rticle !" had been interpreted in its original sense.+"/, This chapter will e&amine the
right to life as interpreted and applied by the Supreme Court of India.
rticle !" of the Constitution of India, ":6; provides that, 3Bo person shall be deprived
of his life or personal liberty e&cept according to procedure established by law.4 9Cife' in
rticle !" of the Constitution is not merely the physical act of breathing.+"5, It does not
connote mere animal e&istence or continued drudgery through life. It has a much wider
meaning which includes right to live with human dignity,+"6, right to livelihood,+"7,
right to health,+"8, right to pollution free air,+"<, etc. )ight to life is fundamental to our
very e&istence without which we cannot live as human being and includes all those
aspects of life which go to make a manDs life meaningful, complete and worth living.+":,
It is the only article in the Constitution which has received the widest possible
interpretation. Ender the canopy of rticle !" so many rights have found shelter, growth
and nourishment.+!;, Thus, the bare necessities, the minimum and basic re*uirements
which are essential and unavoidable for a person is the core concept of right to life. In the
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ne&t part we will discuss the meaning and concept of personal liberty as interpreted by
the Supreme Court of India.
*.* +)A#"#, A#% C$#C)(T $- .()RS$#A/ /"B)RT10
Ciberty of the person is one of the oldest concepts to be protected by national courts. s
long as "!"6, the Anglish -agna Carta provided that,
Bo freeman shall be taken or imprisoned... but... by the law of the land.+!",
The smallest rticle +!!, of eighteen words has the greatest significance for those who
cherish the ideals of liberty. 2hat can be more important than libertyF In India the
concept of 9liberty' has received a far more e&pansive interpretation. The Supreme Court
of India has rejected the view that liberty denotes merely freedom from bodily restraintG
+!/, and has held that it encompasses those rights and privileges which have long been
recogni(ed as being essential to the orderly pursuit of happiness by free men. The
meaning of the term 9personal liberty' was considered by the Supreme Court in the
Hharak Singh's case, which arose out of the challenge to Constitutional validity of the E.
$. $olice )egulations which provided for surveillance by way of domiciliary visits and
secret picketing. Iddly enough both the majority and minority on the bench relied on the
meaning given to the term 3personal liberty4 by an merican judgment >per #ield, J.,? in
-unn v Illinois,+!5, which held the term 9life' meant something more than mere animal
e&istence. The prohibition against its deprivation e&tended to all those limits and faculties
by which the life was enjoyed. This provision e*ually 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
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other organ of the body through which the soul communicated with the outer world. The
majority held that the E. $. $olice )egulations authorising domiciliary visits +at night by
police officers as a form of surveillance, constituted a deprivation of liberty and thus,
unconstitutional.+!6, The Court observed that the right to personal liberty in the Indian
Constitution is the right of an individual to be free from restrictions or encroachments on
his person, whether they are directly imposed or indirectly brought about by calculated
measures.+!7,
The Supreme Court has held that even lawful imprisonment does not spell farewell to all
fundamental rights. prisoner retains all the rights enjoyed by a free citi(en e&cept only
those 9necessarily' lost as an incident of imprisonment.+!8, To understand broadly the
composition of rticle !" we will overlook one of the facets of rticle !" @ 9procedure
established by law' in the ne&t part.
*.2 (R$C)%&R) )STAB/"S')% B1 /A3
The e&pression 3procedure established by law4 has been subject matter of interpretation
in a catena of cases.+!<, survey of these cases reveals that courts in the process of
judicial interpretation have enlarged the scope of the e&pression. The Supreme Court took
the view that 3procedure established by law4 in rticle !" means procedure prescribed by
law as enacted by the state and rejected to e*uate it with the merican 3due process of
law.4+!:, Jut, in -aneka .andhi v Enion of India+/;, the Supreme Court observed that
the procedure prescribed by law for depriving a person of his life and personal liberty
must be 3right, just and fair4 and not 3arbitrary, fanciful and oppressive,4 otherwise it
would be no procedure at all and the re*uirement of rticle !" would not be satisfied.+/",
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Thus, the 3procedure established by law4 has ac*uired the same significance in India as
the 3due process of law4 clause in merica.+/!, Justice =. ). Hrishna Iyer, speaking in
Sunil Jatra v 0elhi dministaration+//, has said that though 3our Constitution has no
due process clause4 but after -aneka .andhi's case+/5, 3the conse*uence is the same,
and as much as such rticle !" may be treated as counterpart of the due process clause in
merican Constitution.4+/6,
)ecently the Supreme Court has dealt with an increasing number of people sentenced to
death for 3bride@burning4. In 0ecember ":<6 the )ajasthan 1igh Court sentenced a man,
Jagdish Humar, and a woman, Cichma 0evi, to death for two separate cases of killing
two young woman by setting them on fire. In an unprecedented move the court ordered
both prisoners to be publicly e&ecuted. In a response to a review petition by the ttorney@
.eneral against this judgment the Supreme Court in 0ecember ":<6 stayed the public
hangings, observing that 3a barbaric crime does not have to be met with a barbaric
penalty.4+/7, The Court observed that the e&ecution of death sentence by public hanging
is violation of article !", which mandates the observance of a just, fair and reasonable
procedure. Thus, an order passed by the 1igh Court of )ajasthan for public hanging was
set aside by the Supreme Court on the ground inter alia, that it was violative of article !".
+/8, In Sher Singh v State of $unjab+/<, the Supreme Court held that unjustifiable delay
in e&ecution of death sentence violates art !".
The Supreme Court has taken the view that this article+/:, read as a whole is concerned
with the fullest development of an individual and ensuring his dignity through the rule of
law.+5;, Avery procedure must seem to be 9reasonable, fair and just.'+5", The right to life
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and personal liberty has been interpreted widely to include the right to livelihood, health,
education, environment and all those matters which contributed to life with dignity. The
test of procedural fairness has been deemed to be one which is commensurate to
protecting such rights.+5!, Thus, where workers have been deemed to have the right to
public employment and its concomitant right to livelihood, a hire@fire clause in favour of
the State is not reasonable, fair and just+5/, even though the State cannot affirmatively
provide livelihood for all. Ender this doctrine the Court will not just e&amine 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 e&ample the right to speedy trial+55, and
legal aid+56, 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.+57,
The Supreme Court of India in one of the landmark decision in the case of -urli S. 0eora
v Enion of India +58, observed that, the fundamental right guaranteed under rticle !" 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 prohibition of smoking in public places. It issued directions to the Enion of
India, State .overnments and the Enion Territories to take effective steps to ensure
prohibition of smoking in public places+5<, such as auditoriums, hospital buildings,
health institutions etc. In this manner the Supreme Court gave a liberal interpretation to
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rticle !" of the Constitution and e&panded its hori(on to include the rights of non@
smokers.
#urther, when there is inordinate delay in the investigation K 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. Jut, if the case is kept alive without any progress in any
investigation, then the provisions of rticle !" are attracted and the right is not only
against actual proceedings in court but also against police investigation.+5:, The Supreme
Court has widen the scope of 9procedure 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
3procedure established by law4 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.+6;, To
understand broadly the co@relation between rticle !" and 0irective $rinciples of the
State $olicy, in the ne&t section, we will overlook the interpretation given by the ape&
court to the said provisions.
*.4 ART"C/) * A#% %"R)CT"5) (R"#C"(/)S $- T') STAT) ($/"C1
The 0irective $rinciples of the State $olicy as enumerated in Chapter@I= are not
enforceable in a court of law. Bevertheless, they are fundamental in the governance of the
nation as the name itself implies 30irective $rinciples of the State $olicy4. The
Constitution makers evolved what was then a novel constitutional device which classified
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entitlements into 9fundamental rights' which were justiciable in a court of law and
9directive principles of state policy' which though not judicially enforceable, were
nevertheless fundamental in the governance of the nation.+6", In one of the historic
judgment in the case of Confederation of A&@Servicemen ssociation and Ithers v Enion
of India+6!, the ape& court observed that,
part from fundamental rights guaranteed by $art III of the Constitution, it is the duty of
the respondents +.overnment of India, to implement 0irective $rinciples of State $olicy
under $art I= of the Constitution.+6/,
In Jandhua -ukti -orcha v Enion of India+65, Justice Jhagwati referring to #rancis
Coralie -ullin v dministrator, Enion Territory of 0elhi,+66, statedG
It is the fundamental right of everyone in this country, assured under the interpretation
given to rticle !" by this Court in #rancis -ullenDs case, to live with human dignity, free
from e&ploitation. This right to live with human dignity enshrined in rticle !" derives its
life breath from the 0irective $rinciples of State $olicy and particularly Clauses >e? and
>f? of rticle /: and rticles 5" and 5! 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 re*uirements which must e&ist in order to
enable a person to live with human dignity and no State neither the Central .overnment
nor any State .overnment has the right to take any action which will deprive a person of
the enjoyment of these basic essentials. Since the 0irective $rinciples of State $olicy
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contained in Clauses >e? and >f? of rticle /:, rticles 5" and 5! 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 e&ecutive 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 re*uirements 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 rticle !".+67,
Thus the Court held that where a law has already been enacted to enforce rticle !" 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 "::/, 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 rticle !" in conjunction with rticle 5".+68, rticle 5" statesL 3The State
shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education...4 Thus, the Court has interpreted
the 0irective $rinciples of the State $olicy in conjunction with rticle !" and gave a
wider meaning to rticle !" so as to give life to that article.
In the ne&t part we will discuss in detail the relationship between rticle !" and
international human rights documents. 2e will elaborate and discuss the interpretation
given by the Supreme Court to rticle !" to interpret it in a manner so as to include
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within its ambit basic human rights recognised by various international human rights
instruments.
*.6 ART"C/) * A#% "#T)R#AT"$#A/ '&+A# R",'TS %$C&+)#TS
2hile international treaties do not automatically become part of domestic law upon
ratification,+6<, the Constitution provides, as 0irective $rinciples of Sate $olicy, that the
government 3shall endeavour to foster respect for international law and treaty obligations
in dealings of organi(ed people with one another,4+6:, and also authorises the central
government to enact legislation implementing its international law obligations without
regard to the ordinary division of central and state government powers.+7;, The Supreme
Court of India has fre*uently interpreted in light of India's international law obligations.
+7",
Justice .S. nand argues that any interpretation of a national law or constitution which
advances the cause of human rights and seeks to fulfil the purposes of international
instruments must be preferred to a sterile alternative.+7!, 1e further argues that it is a
proper part of the judicial process and a well established judicial function for national
courts to have regard to the international obligations undertaken by the country in
*uestion whether or not these have been incorporated into domestic law for the purpose
of removing ambiguity or uncertainty from national constitutions, legislation or common
law.+7/,
In Bilabati Jehera v State of Irissa +75, while justifying its award of compensation for
infringement of the right to life, the Court referred to the ICC$)+76,, which indicates that
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an enforceable right to compensation is not alien to the concept of enforcement of a
guaranteed right.
In $rem Shankar Shukla v 0elhi dministration +77, while dealing with the handcuffing
of prisoners and other humiliations inflicted on persons in custody, the Supreme Court of
India observedL
fter all, even while discussing the relevant statutory provisions and constitutional
re*uirements, court and counsel must never forget the core principle found in rticle 6 of
the Eniversal 0eclaration of 1uman )ights, ":5<+78,L 9Bo one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment'.
In 1ussainara Hhatoon cases,+7<, the Supreme Court not only advanced the prison
reform in favour of under@trials but also declared the right to speedy trial as an essential
ingredient of rticle !". )eaffirming as well as paving way for the implementation of
rticle "5, clause >/? >c? of the International Covenant on Civil and $olitical )ights+7:,
which lays down that everyone is entitled 3to be tried without delay4 and rticle "7 of the
0raft $rinciples on A*uality in the dministration of Justice which provides that
everyone shall be guaranteed the right to prompt and speedy hearing the Court directed
the release of all those under trials against whom the police had not filed charge sheets
within the prescribed period of limitation. Such persons were directed to be released
forthwith as any further detention of such under trials would be according to the court, a
clear violation of rticle !".
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In Sunil Jatra v 0elhi dministration+8;, the Supreme Court took note of rticle "; of
the ICC$) which states as that all persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person. The Court then
opined thatL
The State shall take steps to keep up to the Standard -inimum )ules for Treatment of
$risoners recommended by the Enited Bations, especially those relating to work and
wages, treatment with dignity, community contact and correctional strategies. In this
latter aspect, the observations we have made of holistic development of personality shall
be kept in view.+8",
The Court further emphasi(ed that the 0eclaration of the $rotection of ll $ersons from
Torture and other Cruel, Inhuman or 0egrading Treatment or $unishment adopted by
E.B. .eneral ssembly +8!, has relevance to our decision.+8/,
Thus, the Court has interpreted article !" with the widest possible amplitude so as to
include within its ambit basic human rights guaranteed by international human rights
instruments though that has not been incorporated in national legislation.+85, In the ne&t
part we will discuss the traditional and narrow approach of the Supreme Court in
interpreting right to life.
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*.7 ART"C/) 2* $- T') "#%"A# C$#ST"T&T"$#8
A (R$5"S"$# T$ )#-$RC) ART"C/) *
The most uni*ue feature of the Indian Constitution is rticle /!. It is a fundamental right
guaranteed to citi(ens of India under $art@III of the Constitution. The provision of the
article states thatL
>"? The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this $art +$art@III, is guaranteed.
>!? The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, *uo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
$art. +86,
In the Constituent ssembly 0ebates 0r. Jabasaheb mbedkar once said, 9if I am asked
which is the most important provision of the Indian Constitution, without which the
Constitution would not survive I would point to none other than article /! which is the
soul of the Indian Constitution.+87,
The judicially enforceable 3fundamental rights4 provisions of the Indian Constitution are
set forth in part III in order to distinguish them from the non@justiciable 3directive
principles4 set forth in part I=, which establish the aspiration goals of economic justice
and social transformation.+88, Ivertime, case law has come to interpret rticle /! as
allowing for ordinary citi(ens to petition the Supreme Court in matters where the
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government is accused of infringing upon the 3fundamental rights4 +particularly rticle
!", of the constitution.+8<, In addition, the Constitution includes rticle !!7+8:, which
the Courts have interpreted as giving any claimant the opportunity to file suit on behalf of
the public in a 1igh Court, when there is a violation of fundamental right or a right
guaranteed by statute.+<;, Thus, rticle /! is the soul of the Indian Constitution. 2hen
there is infringement of rticle !" the aggrieved person can approach the Supreme Court
of India for enforcement of his fundamental rights.
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2. T') TRA%"T"$#A/ A((R$AC'
It is hard to appreciate fully the e&tent of development of right to life without an
overview of the traditional approach. In . H. .opalan v Enion of India, +<", the
traditional interpretation of rticle !" of the Constitution was that a procedure established
by law can deprive a person of his right to life. Thus, the earliest understanding of this
provision was a narrow and procedural one. The state had to demonstrate the interference
with the individual's right to life is accorded with the procedure laid down by properly
enacted law. It didn't matter whether the law was just M fair. -oreover, in .opalan case
the Court declined to infuse the guarantee of due process of law, contained in article !",
with substantive content, holding that as long as the preventive detention statutes had
been duly enacted in accordance with the procedures of article !!, the re*uirements of
due process were satisfied.+<!, The interpretation as made by the Court was nothing more
than the freedom from arrest and detention, from false imprisonment or wrongful
confinement of the physical body.+</, Thus, 3personal liberty4 said to mean only liberty
relating to person or body of individual and in this sense it was the antithesis of physical
restraint or coercion. In the ne&t Chapter it will be demonstrated how the traditional and
narrow approach of the Supreme Court in interpreting rticle !" changed with changing
time. )eference will be made to the -aneka .andhi's case and the dramatic change of
attitude by the Court in interpreting rticle !" in a manner so as to impliedly include 9due
process of law' into the contents of rticle !".
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2.* The -oundations of Change and the Beginning of #e9 )ra
In this section it will demonstrated how judiciary dramatically changed the traditional
interpretation of right to life to a modern and fle&ible interpretation. It was not until ":8<
that the Supreme Court breathed substantive life into rticle !" by subjecting state action
interfering with a person's right to life to a test of reasonablenessG re*uiring not only that
the procedures be authori(ed by law, but that they are 9right, just, fair and
reasonable.'+<5, This transformation paved the way for a substantive re@interpretation of
constitutional and legal guarantees and positive judicial intervention. In the case of
-aneka .andhi v Enion of India,+<6, the petitioners passport was impounded Din public
interestD by an order dated July !, ":88. The .overnment of India declined 9in the
interests of the general public' to furnish the reasons for its decision. Thereupon, the
petitioner filed a writ petition under rticle /!+<7, of the Constitution to challenge the
order. The petitioner contended before the Court that the order of the .overnment of
India does not prescribe DprocedureD within the meaning of rticle !" and if it is held that
procedure has been prescribed, it is unfair, unjust and unreasonable. The Supreme Court
held that the order passed against the petitioner was neither fair nor proper according to
the procedure established by law. The decision given by the Supreme Court in this case is
historic and landmark because it is the first of its kind which enhanced the scope of right
to life. Specifically, -aneka .andhi's case recogni(ed an implied substantive component
to the term 9liberty' in article !" that provides broad protection of individual freedom
against unreasonable or arbitrary curtailment.+<8, This paved the way for a dramatic
increase in constitutional protection of human rights in India under the mantle of the
$ublic Interest Citigation movement >$IC?.+<<,
$age % !;
s discussed above the ghost of .opalan+<:, was finally laid in -aneka .andhi's case.
+:;, Constitutional Jench of Seven judges >overruling .opalan? read into rticle !" a
new dimensionL it was not enough, said the Court, that the law prescribed some
semblance of procedure for depriving a person of his life or personal libertyG the
procedure prescribed by the law had to be reasonable, fair and justG if not, the law would
be held void as violating the guarantee of rticle !". This fresh look at rticle !" has
helped the ape& court in its new role as the institutional ombudsman of human rights in
India.+:", The decision in -aneka .andhi became the starting point, the springboard, for
a spectacular evolution of the law relating to judicial intervention in >individual? human
rights cases.+:!, Thus, the principle laid down by the ape& court in this case is that the
procedure established by law for depriving a person of his right to life must be right, just,
fair, and reasonable. In the ne&t part we will discuss some selected cases which enhanced
the scope and ambit of right to life and personal liberty in India and the current trend
>judicial activism? of judiciary in interpreting rticle !".
$age % !"
4. T') C&RR)#T TR)#%
-aneka .andhi's case +:/, demonstrates how judicial activism can e&pand the reach of
law with a view to curbing and controlling e&ecutive discretion and ensuring the basic
human rights of the citi(en. In this part it will be demonstrated how judicial interpretation
enhanced right to life and personal liberty in India with regard to the present scenario.
#ew landmark cases will be discussed which has drastically changed the interpretation of
rticle !". The modern interpretation of right to life is one of the historical developments
of constitutional law.
In the 0elhi $ollution Case,+:5, the Supreme Court held in ":<: that rticle !" of the
Constitution guaranteeing the right to life must be interpreted to include the 3right to live
in a healthy environment with minimum disturbance of ecological balance,4 and 3without
avoidable ha(ard to +the people, and to their cattle, house and agricultural land, and
undue affection >sic? of air, water, and environment.4+:6,
The subse*uent ruling in Charan /al Sahu v. &nion of "ndia[:7! e&panded upon this
decision when Justice Huldip Singh described the government's role in the protection of
fundamental rightsL 3+I,t is the obligation of the State to assume such responsibility and
protect its citi(ens.4 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 rticle !" 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 citi(ens of India
meaningful.+:8,
$age % !!
In #rancis Coralie -ullin v dministrator, Enion Territory of 0elhi,+:<, the 1onourable
Supreme Court stated that,
The right to life includes the right to live with human dignity and all that goes along with
it, namely, the bare necessaries of life such as ade*uate nutrition, clothing and shelter
over the head and facilities for reading, writing and e&pressing oneself in diverse forms,
freely moving about and mi&ing and commingling with fellow human beings.+::,
Thus, the Supreme Court interpreted rticle !" in a widest possible manner and included
within its ambit the right to live with human dignity.
The cases e&amined 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 rticle !" of the Constitution has been considerably e&panded
by the Indian Supreme Court, which has interpreted the right of life to mean the right to
live a civili(ed life. In the ne&t 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
rticle !".
4.* J&%"C"A/ ACT"5"S+
Judicial review +activism, means power of court of law to e&amine the actions of the
legislative, e&ecutive and administrative arms of the government and to determine
whether such actions are consistent with the constitution.+";;, ctions judged
inconsistent are unconstitutional and therefore, null and void.+";", ctivism means an
institution e&tending its mechanism of decision making into the domain of other
$age % !/
institution's tasks.+";!, The term judicial activism is e&plained as 3judicial philosophy
which motives judges to depart from strict adherence to judicial precedent in favour of
progressive and new social policies which are not always consistent with the restraint of
appellate judges.+";/,
9Judicial activism' is a term that, to the non@lawyer, has come to mean strident judicial
intervention that holds the e&ecutive to account for its sins of commission and, often,
omission. The reach of judicial activism is also believed to e&tend to filling in spaces of
silence where legislatures have not spoken K a belief reinforced by verdicts such as
=ishaka v State of )ajasthan+";5,, which set out a law of se&ual harassment at the
workplace till a law is enacted by $arliament. In this conte&t, it is judicial activism, as it
has emerged through $IC that has given the court vibrancy and relevance among social
factors beyond the rarefied confines of the legal community.+";6, S. $. Sathe argues that
judicial review +judicial activism, means overseeing by the judiciary of the e&ercise of
power by other co@ordinate organs of government with a view to ensuring that they
remain confined to the limits drawn upon their powers by the Constitution.'+";7,
Surya 0eva rightly argues that judicial activism refers to the phenomenon of the court
dealing with those issues which they have traditionally not touched or which were not in
he contemplation of the founding fathers... It is a state of mind, the origin of which lies in
the 9inactivism' of other two wings of the government.+";8, Justice =. .. $alshikar
asserts that judicial activism means 3an active interpretation of e&isting legislation by a
judge, made with a view to enhance the utility of legislation for social betterment.4+";<,
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2hereas Justice J. S. =erma has been more emphatic in laying down the e&act norms of
sufficient activist criterion. The learned judge has remarkedL
Judicial activism is re*uired only when there is inertia in others. $roper judicial activism
is that which ensures proper functioning of all other organs and the best kind of judicial
activism is that which brings about results with the least judicial intervention. If everyone
else is working, we don't have to step in.+";:,
It is, no doubt, true that the judge has to interpret the law according to the words used by
the legislature. Jut, as pointed out by -r. Justice 1olmesL 3 word is not a crystal,
transparent and unchangedG it is the skein of a living thought and may vary greatly in
colour and content according to the circumstances and the time in which it is used.4+"";,
It is for the judge to give meaning to what the legislature has said and it is this process of
interpretation which constitutes the most creative and thrilling function of the judge.+""",
The judge is re*uired not only to temper his role to the individual case, but to constantly
invent new rules to more justly handle recurrent fact situations that the law has not fully
anticipated. It is there that the judge takes part in the process of law@making@what -r.
Justice 1olmes called 3interstitial legislation.4+""!,
Judicial ctivism is nothing but court's move to reach at the doorstep of the 9lowly and
lost' to provide them justice. Cord 1ewart has asserted, 3It ... is of fundamental
importance that justice should not only be done, but should manifestly and undoubtedly
be seen to be done.4+""/, Judicial activism is the response to this reaction. It is
worthwhile to mention the observations of the Supreme Court of India in one of the
landmark decision +""5, that the function of the court is not merely to interpret the law
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but to make it imaginatively sharing the passion of the Constitution for social justice.
+""6, I would describe judicial activism as a form of 3creative constitutional
development.4 1aving discussed briefly what constitutes judicial activism, it is important
to understand the legitimacy of judicial activism. In the ne&t section the discussion will
focus on one of the most important and debatable *uestion K how far judicial activism is
justifiedF
4.2 '$3 -AR J&%"C"A/ ACT"5"S+ "S J&ST"-")%;
If all the institutions established by the Constitution the higher judiciary seems to have
ac*uitted itself in the last 7; years as the best in a relative sense. The most respected
public institution in India is the Supreme Court, respected by the elite and the illiterate
alike. If the Court has come increasingly effective in its role as the final arbiter of justice,
it is because of the confidence the common man has placed in it. The Court has no army
at its command. It does not hold any purse strings. Its strength lies largely in the
command it has over the hearts and minds of the public and the manner in which it can
influence and mould public opinion. s the distinguished #rench author le&is de
To*uevulle describes the power wielded by judges is the power of public opinion.+""7,
1amilton called the court system the weakest organ of government because it had control
over neither the sword nor the purse.+""8, court becomes strong only when it identifies
itself with the disadvantaged minorities and they see the court as an independent
institution, a bulwark against oppression and tyranny. court gains strength only by
carving a niche for itself in the minds of the people. court must appear to the people as
their protector. It must not only be, but also must appear to be impartial, principled, and
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capable of achieving results.+""<, There would have been no #undamental )ights worth
mentioning if rticle !" had been interpreted in its original sense.+"":,
Judges participating in judicial review of legislative action should be creative and not
mechanistic in their interpretations. ccording to Justice Cardo(o, a written constitution
3states or ought to state not rules for the passing hour but principles for an e&panding
future.4+"!;, Judges who interpret a written constitution cannot merely apply the law to
the facts that come before them. The scope of judicial creativity e&pands when a
constitution contains a bill of rights. It is one thing to consider whether a legislature has
acted within its powers and another to consider whether its acts, although within its
plenary powers, are violative of any of the basic rights of the people. Therefore, judges
who interpret a bill of rights must e&pound upon the philosophy and ideology that
underlies the bill of rights.+"!", 2hen judges interpret the law or a constitution by not
merely giving effect to the literal meaning of the words, but by trying to provide an
interpretation consistent with the spirit of that statute or constitution, they are said to be
activist judges.+"!!, In this sense, the judges who developed the common law were also
activist.+"!/,
Justice Hrishna Iyer, in his own vivid terms, e&plained that 9 Bineteenth Century te&t,
when applied to Twentieth@Century conditions, cannot be construed by signals from the
grave.+"!5, Justice Hrishna Iyer in the landmark decision of )ajendra $rasad v State of
E.$.+"!6, observed that,
2hen the legislative te&t is too bald to be self@acting or suffers (ig(ag distortion in
action, the primary obligation is on $arliament to enact necessary clauses by appropriate
$age % !8
amendments to S. /;! I.$.C. Jut if legislative under taking is not in sight, judges who
have to implement the Code cannot fold up their professional hands but must make the
provision viable by evolution of supplementary principles, even if it may appear to posses
the flavour of law@making. +1e further went on to *uote, Cord 0ennings' observationsL
3-any of the Judges of Angland have said that they do not make law. They only interpret
it. This is an illusion which they have fostered. Jut it is a notion which is now being
discarded everywhere. Avery new decision @ on every new situation @ is a development of
the law. Caw does not stand still. It moves continually. Ince this is recognised, then the
task of the Judge is put on a higher plane. 1e must consciously seek to mould the law so
as to serve the needs of the time. 1e must not be a mere mechanic, a mere working
mason, laying brick on brick, without thought to the overall design. 1e must be an
architect @ thinking of the structure as a whole, building for society a system of law which
is strong, durable and just. It is on his work that civilised society itself depends.4+"!7,
The Supreme Court of India in Charles Sobhraj's case+"!8, observed that a constitution is
not to be interpreted by reference to the wishes or opinions of its framers, but by
consideration of 9the evolving standards of decency and signify that mark the progress of
a mature society'.+"!<,
The e&tension of judicial review over constitutional amendments was itself an e&ercise in
judicial activism on the part of the Supreme Court of India. The Supreme Court, in the
leading case of 1is 1oliness Hesavananda Jharati v State of Herala,+"!:, held by a
process of judicial interpretation that though there are no e&press words in rticle /7< of
the Indian Constitution limiting the power conferred by that rticle on $arliament to
$age % !<
amend the Constitution, that power is not an unlimited or unrestricted power and it does
not entitle $arliament to amend the Constitution in such a way as to alter or affect the
basic structure of the Constitution.+"/;, This is undoubtedly a most remarkable instance
of judicial activism, for that has gone to the farthest e&tent in limiting the constituent
power of $arliament.+"/",
-. $. Jain argues that judicial interpretation of article !", which provides that 3Bo person
shall be deprived of his life or personal liberty e&cept according to procedure established
by law,4 has led to a vast e&tension of substantive rights.+"/!, Jain rightly depicts this
interpretation as 3the Indian version of the merican concept of due process of law,4 but
the scope of the e&pansion into the substantive domain engineered by the Indian Court far
e&ceeds that of its merican counterpart.+"//, The Indian Court has emerged relatively
unscathed in recent decades as a leading actor in the ordering of domestic priorities
within the polity can be attributed in no small measure to a constitutional ethos that
encourages all institutions, including the judiciary, to become active participants in the
reali(ation of particular ideological aspirations. In effect there e&ists a constitutional
mandate for judicial activism.
Justice -. H. -ukherjee while restraining the use of judicial activism observed 3...to
invoke judicial activism to set at naught legislative judgment is subversive of the
constitutional harmony and comity of instrumentalities.4+"/5, $ratap Jhanu -ehta
argues that the evidence of judicial overreach is now too overwhelming to be ignored. 1e
concludesL 3It has to be admitted that the line between appropriate judicial intervention
and judicial overreach is often tricky... courts are doing things because they can, not
$age % !:
because they are right, legal or just.4+"/6, Ine may *uestion the wisdom of employing
the judicial power to achieve a desirable social or economic end in the absence of an
e&plicit constitutional mandate to do so. John .ava in his commentary titled 3The )ise of
the 1ero Judge4 has cautioned the use of judicial activism. 1e fears that the worst result
of activism is that the judges may end up losing the public's faith in their most important
attribute K the perception that they are impartial referees deciding according to the rule of
law.+"/7,
Bevertheless it is obvious that unless the A&ecutive and the Cegislature begin to respond
to the needs of the citi(ens and discharge their responsibilities, public interest litigation
and judicial activism are bound to remain centre stage as long as courts continue to
respond the way they do now. s Justice $andiyan, a former judge of the Supreme Court
has said on judicial creativityL+"/8,
In a country like ours +India, more than eighty percent of people are economically
backward and they are subjected to discrimination as a rule. In such an e&plosive
situation causing adverse effect on society, when the e&ecutive and legislature are
apathetic and fail to discharge their constitutional duties an
$age % /;
C'A(T)R-*-
Arti<le * of the Constitution of "ndia -
The )=>anding 'ori?ons
"ntrodu<tion
The Constitution of India provides #undamental )ights under Chapter III. These rights
are guaranteed by the constitution. Ine of these rights is provided under article !" which
reads as followsL@
rticle !". $rotection If Cife nd $ersonal CibertyL Bo person shall be deprived of his
life or personal liberty e&cept according to procedure established by law.
Though the phraseology of rticle !" starts with negative word but the word Bo has been
used in relation to the word deprived. The object of the fundamental right under rticle
!" is to prevent encroachment upon personal liberty and deprivation of life e&cept
according to procedure established by law. It clearly means that this fundamental right
has been provided against state only. If an act of private individual amounts to
encroachment upon the personal liberty or
deprivation of life of other person. Such violation would not fall under the parameters set
for the rticle !". in such a case the remedy for aggrieved person would be either under
rticle !!7 of the constitution or under general law. Jut, where an act of private
individual supported by the state infringes the personal liberty or life of another person,
the act will certainly come under the ambit of rticle !". rticle !" of the Constitution
deals with prevention of encroachment upon personal liberty or deprivation of life of a
person.
$age % /"
The state cannot be defined in a restricted sense. It includes .overnment 0epartments,
Cegislature, dministration, Cocal uthorities e&ercising statutory powers and so on so
forth, but it does not include non@statutory or private bodies having no statutory powers.
#or e&ampleL company, autonomous body and others. Therefore, the fundamental right
guaranteed under rticle !" relates only to the acts of State or acts under the authority of
the State which are not according to procedure
established by law. The main object of rticle !" is that before a person is deprived of his
life or personal liberty by the State, the procedure established by law must be strictly
followed. )ight to Cife means the right to lead meaningful, complete and dignified life. It
does not have restricted meaning. It is something more than surviving or animal
e&istence. The meaning of the word life cannot be narrowed down and it will be available
not only to every citi(en of the country . s far as $ersonal Ciberty is concerned , it
means freedom from physical restraint of the person by personal incarceration or
otherwise and it includes all the varieties of rights other than those provided under rticle
": of the Constitution. $rocedure established by Caw means the law enacted by the State.
0eprived has also wide range of meaning under the Constitution. These ingredients are
the soul of this provision. The fundamental right under rticle !" is one of the most
important rights provided under the Constitution which has been described as heart of
fundamental rights by the pe& Court.
The scope of rticle !" was a bit narrow till 6;s as it was held by the pe& Court in
.opalans case that the contents and subject matter of rticle !" and ": >"? >d? are not
identical and they proceed on total principles. In this case the word deprivation was
construed in a narrow sense and it was held that the deprivation does not restrict upon the
$age % /!
right to move freely which came under rticle ": >"? >d?. at that time .opalans case was
the leading case in respect of rticle !"
along with some other rticles of the Constitution, but post .opalan case the scenario in
respect of scope of rticle !" has been e&panded or modified gradually through different
decisions of the pe& Court and it was held that interference with the freedom of a person
at home or restriction imposed on a person while in jail would re*uire authority of law.
2hether the reasonableness of a penal law can be e&amined with reference to rticle ":,
was the point in issue after .opalans case in
the case of -aneka .andhi v. Enion of India , the pe& Court opened up a new
dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable
one. rticle !" imposed a restriction upon the state where it prescribed a procedure for
depriving a person of his life or personal liberty. This view has been further relied upon in
a case of
#rancis Coralie -ullin v. The dministrator, Enion Territory of 0elhi and others as
followsL
rticle !" re*uires that no one shall be deprived of his life or personal liberty e&cept by
procedure established by law and this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to
pass the test not only for rticle !!, but also of rticle !" and if the constitutional validity
of any such law is challenged, the court would have to decide whether the procedure laid
down by such law for depriving a person of his personal liberty is reasonable, fair and
just. In another case of Ilga Tellis and others v. Jombay -unicipal Corporation and
$age % //
others , it was further observed L Just as a mala fide act has no e&istence in the eye of law,
even so, unreasonableness
vitiates law and procedure alike. It is therefore essential that the procedure prescribed by
law for depriving a person of his fundamental right must conform the norms of justice
and fair play. $rocedure, which is just or unfair in the circumstances of a case, attracts the
vice of unreasonableness, thereby vitiating the law which prescribes that procedure and
conse*uently, the action taken under it.s stated earlier, the protection of rticle !" is
wide enough and it was further widened in the case of Jandhua -ukti -orcha v. Enion
of India and others in respect of bonded labour and weaker section of the society. It lays
down as followsL
rticle !" assures the right to live with human dignity, free from e&ploitation. The state is
under a constitutional obligation to see that there is no violation of the fundamental right
of any person, particularly when he belongs to the weaker section of the community and
is unable to wage a legal battle against a strong and powerful opponent who is e&ploiting
him. Joth the Central .overnment and the State .overnment are therefore bound to
ensure observance of the various social welfare and labour laws enacted by $arliament
for the purpose of securing to the workmen a life of basic human dignity in compliance
with the directive principles of the state policy.
The meaning of the word life includes the right to live in fair and reasonable conditions,
right to rehabilitation after release, right to live hood by legal means and decent
environment. The e&panded scope of rticle !" has been e&plained by the pe& Court in
the case of Enni Hrishnan v. State of .$. and the pe& Court itself provided the list of
$age % /5
some of the rights covered under rticle !" on the basis of earlier pronouncements and
some of them are listed belowL
>"? The right to go abroad.
>!? The right to privacy.
>/? The right against solitary confinement.
>5? The right against hand cuffing.
>6? The right against delayed e&ecution.
>7? The right to shelter.
>8? The right against custodial death.
><? The right against public hanging.
>:? 0octors assistance.
It was observed in Enni Hrishnans case that rticle !" is the heart of #undamental )ights
and it has e&tended the Scope of rticle !" by observing that the life includes the
education as well as, as the right to education flows from the right to life.
s a result of e&pansion of the scope of rticle !", the $ublic Interest Citigations in
respect of children in jail being entitled to special protection, health ha(ards due to
pollution and harmful drugs, housing for beggars, immediate medical aid to injured
persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in
aftercare home have found place under it. Through various judgments the pe& Court
also included many of the non@justifiable 0irective $rinciples embodied under part I= of
the Constitution and some of the e&amples are as underL>a? )ight to pollution free water
and air.
>b? $rotection of under@trial.
$age % /6
>c? )ight of every child to a full development.
>d? $rotection of cultural heritage.
-aintenance and improvement of public health, improvement of means of
communication, providing human conditions in prisons, maintaining hygienic condition
in slaughter houses have also been included in the e&panded scope of rticle !". this
scope further has been e&tended even to innocent hostages detained by militants in shrine
who are beyond the Control of the state.
The pe& Court in the case of S.S. huwalia v. Enion of India and others it was held that
in the e&panded meaning attributed to rticle !" of the Constitution, it is the duty of the
State to create a climate where members of the society belonging to different faiths, caste
and creed live together and, therefore, the State has a duty to protect their life, liberty,
dignity and worth of an individual which should not be jeopardi(ed or endangered. If in
any circumstance the state is not able to do so, then it cannot escape the liability to pay
compensation to the family of the person killed during riots as his or her life has been
e&tinguished in clear violation of rticle !" of the Constitution. 2hile dealing with the
provision of rticle !" in respect of personal liberty, 1onDble Supreme Court put some
restrictions in a case of Javed and others v. State of 1ariyana, I) !;;/ SC /;68 as
followsL at the very outset we are constrained to observe that the law laid down by this
court in the decisions relied on either being misread or read divorced of the conte&t. The
test of reasonableness is not a wholly subjective test and its contours are fairly indicated
by the Constitution. The re*uirement of reasonableness runs like a golden thread through
the entire fabric of fundamental rights. The lofty ideals of social and economic justice,
$age % /7
the advancement of the nation as a whole and the philosophy of distributive justice@
economic, social and political@ cannot be given a go@by in the name of undue stress on
fundamental rights and individual liberty. )easonableness and rationality, legally as well
as philosophically, provide colour to the meaning of fundamental rights and these
principles are deducible from those very decisions which have been relied on by the
learned counsel for the petitioners.
The pe& Court led a great importance on reasonableness and rationality of the provision
and it is pointed out that in the name of undue stress on #undamental )ights and
Individual Ciberty, the ideals of social and economic justice cannot be given a go@by.
Thus it is clear that the provision rticle !" was constructed narrowly at the initial stage
but the law in respect of life and personal liberty of a person was developed gradually and
a liberal interpretation was given to these words. Bew dimensions have been added to the
scope of rticle!" from time to time. It imposed a limitation upon a procedure which
prescribed for depriving a person of life and personal liberty by saying that the procedure
which prescribed for depriving a person of life and personal liberty by saying that the
procedure must be reasonable, fair and such law should not be arbitrary, whimsical and
fanciful. The interpretation which has been given to the words life and personal liberty in
various decisions of the pe& Court, it can be said that the protection of life and personal
liberty has got multi dimensional meaning and any arbitrary, whimsical and fanciful act
of the State which deprived the life or personal liberty of a person would be against the
provision of rticle !" of the Constitution.
$age % /8
C'A(T)R -2-
Right to life i.e. Right not to die or Se<tion 2@:A ".(.C.;
"ntrodu<tion
Indian democracy wedded to rule of law aims not only to protect fundamental rights of its
citi(ens but also to establish an egalitarian order. Caw being an instrument of social
engineering obliges the judiciary to carry out the process established by it.
Cord Chancellor Sankey once said amidst the cross currents and shifting sands of public
life the law is like a great ark upon which a man may set his foot and be safe. In this
remark, he has emphasi(ed on the importance of law. It is needless to say that life of an
individual in a society would become a continuing disaster if not regulated.
The first decision given to interpret the scope and meaning of life and personal liberty
under article !" of the Indian constitution wasL
A.B.,o>alan 5S. State $f +adras >air ":6; sc !8?
The ape& court interpreted that the words Nprocedure established by lawN in article !" are
to be given a wide and fluid meaning of the e&pression Ndue process of lawN as given
under the u.s. constitution but it refers to only state made statues laws. if any statutory
law prescribed procedure for deprieving a person of his rights or personal liberty it should
meet the re*uirements of article !"
$age % /<
1owever, after ! decades this was over ruled in the case of R.C.Coo>er 5S. &nion $f
"ndia >I) ":8; SC 675? after this there where a series of decisions by the ape& court
including that of maneka gandhi vs. Enion of India in this case it was held that any law
that deprives the life and liberty must be just and fair krishna iyer j. rightly said that
NprocedureN in article !" means fair , not formal procedure law is reasonable law not any
enacted piecesN Bow it is settled that That article !" confers positive rights to life and
liberty The word life in article !" means a life of dignity and not just mere animal
survival >this was also upheld in the case of #rancis caralieO>"::/?" scc 756P The
procedure of depriving a person of his life and liberty must be reasonable, air and just In
the ":8<, the 55th amendment of the constitution took place, article /6: was amended,
and it provided that article !; and !" could not be suspended even during declaration of
an emergency. In the case of $.)athinam case held that right to live includes right not to
live. $hysical as well as mental health both are treated as integral part of right to live
upholding that without good health , neither civil nor political rights which constitution
confers cant be enjoyed. Judiciary has played a vital role in the interpretation and correct
use of article !".
The following are some cases on Nright to lifeN through judicial activism
C +asilamani +udaliar 5s. "dol $f Sri S9ami #athas9ami ThruColl O>"::7?
<scc6!6Q$r!!P
rticle !" of the Indian constitution reinforces Nright to lifeN. A*uity, dignity of a person
and the right to development are the inherent rights of every human being. Cife in its
$age % /:
e&panded hori(on includes everything that gives meaning to a personDs life including
culture, heritage and tradition with dignity of a person.
#oise (ollution D5EA "n ReA O>!;;6? 6 Scc 8//Q$r ";P
rticle !" guarantees right to life and includes all those aspects which make a persons
life meaningful, complete and worth living. In the above case, it was held that any one
who wishes to live in peace, no one can claim a right to create noise even though he does
so in his own premises. ny noise, which materially interferes with the ordinary comforts
of the life of the other, judged by an ordinary prudent man is nuisance.
Bartar Singh vs. State of (unFab O>"::5? / scc 67:P
Speedy trail is an essential part of the fundamental rights guaranteed by article !" of the
Indian constitution.
&nni Crishnan vs. State of Andhra >radesh
the ape& court has widened the scope of article !" and has provided with the rights article
!" embraces within itself. They are
)ight to go abroad
)ight to privacy
)ight against solitary confinement
)ight against delayed e&ecution
)ight to shelter
)ight against custodial death
$age % 5;
)ight against public hearing
0octorDs assistance
long with all these above@mentioned rights, it was also observed that the right to
education would also be included as apart of right to life.
A.C. bindal vs. &nion of "ndia >!;;/? 6 SCC "7/
It was held that no person should be deprived of his life and personal liberty e&cept
according to the procedure established by law.
Thus with the above brief preview of article !" it is clear that it has a multidimensional
interpretation. ny arbitrary, whimsical and fanciful act of the part of any state depriving
the life or personal liberty would be against article !" of the Indian constitution.
$age % 5"
C'A(T)R -4-
An "ntrodu<tion of -undamental Rights in "ndia
DPart III - Fundamental Rights' is a charter of rights contained in the Constitution of
India. It guarantees civil liberties such that all Indians can lead their lives in peace and
harmony as citi(ens of India. These include individual rights common to most liberal
democracies, such as e*uality before law, freedom of speech and e&pression, and
peaceful assembly, freedom to practice religion, and the right to constitutional remedies
for the protection of civil rights by means of writs such as habeas corpus. =iolation of
these rights result in punishments as prescribed in the Indian $enal Code, subject to
discretion of the judiciary. The #undamental )ights are defined as basic human freedoms
which every Indian citi(en has the right to enjoy for a proper and harmonious
development of personality. These rights universally apply to all citi(ens, irrespective of
race, place of birth, religion, caste, creed, color or .ender. They are enforceable by the
courts, subject to certain restrictions. The )ights have their origins in many sources,
including AnglandDs Jill of )ights, the Enited States Jill of )ights and #ranceDs
0eclaration of the )ights of -an.
The si= fundamental rights re<ognised by the <onstitution are8
[!
"? )ight to e*uality, including e*uality before law, prohibition of discrimination on
grounds of religion, race, caste, se& or place of birth, and e*uality of opportunity in
matters of employment, abolition of untouchability and abolition of titles.
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!? )ight to freedom which includes speech and e&pression, assembly, association or
union or cooperatives, movement, residence, and right to practice any profession or
occupation >some of these rights are subject to security of the State, friendly relations
with foreign countries, public order, decency or morality?, right to life and liberty, right
to edu<ation, protection in respect to conviction in offences and protection against arrest
and detention in certain cases.
/? )ight against e&ploitation, prohibiting all forms of forced labour, child labour and
traffic in human beingsG
5? )ight to freedom of religion, including freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain ta&es and freedom from religious instructions in certain educational institutes.
6? Cultural and Aducational rights preserving )ight of any section of citi(ens to conserve
their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.
7? )ight to constitutional remedies for enforcement of #undamental )ights. #undamental
rights for Indians have also been aimed at overturning the ine*ualities of pre@
independence social practices. Specifically, they have also been used to abolish
untouchability and hence prohibit discrimination on the grounds of religion, race, caste,
se&, or place of birth. They also forbid trafficking of human beings and forced labour.
They also protect cultural and educational rights of ethnic and religious minorities by
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allowing them to preserve their languages and also establish and administer their own
education institutions.
Right to >ro>erty 9as originally a fundamental rightA but is no9 a legal right.
The development of constitutionally guaranteed fundamental human rights in India was
inspired by historical e&amples such as AnglandDs Jill of )ights >"7<:?, the Enited States
Jill of )ights >approved on "8 September "8<8, final ratification on "6 0ecember "8:"?
and #ranceDs 0eclaration of the )ights of -an >created during the revolution of "8<:, and
ratified on !7 ugust "8<:?.
+!,
Ender the educational system of Jritish )aj, students were
e&posed to ideas of democracy, human rights and Auropean political history. The Indian
student community in Angland was further inspired by the workings of parliamentary
democracy and Jruisers political parties.
In ":":, the )owlatt ct gave e&tensive powers to the Jritish government and police, and
allowed indefinite arrest and detention of individuals, warrant@less searches and sei(ures,
restrictions on public gatherings, and intensive censorship of media and publications. The
public opposition to this act eventually led to mass campaigns of non@violent civil
disobedience throughout the country demanding guaranteed civil freedoms, and
limitations on government power. Indians, who were seeking independence and their own
government, were particularly influenced by the independence of Ireland and the
development of the Irish constitution. lso, the directive principles of state policy in Irish
constitution were looked upon by the people of India as an inspiration for the independent
IndiaDs government to comprehensively tackle comple& social and economic challenges
across a vast, diverse nation and population.
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In ":!<, the Behru Commission composing of representatives of Indian political parties
proposed constitutional reforms for India that apart from calling for dominion status for
India and elections under universal suffrage, would guarantee rights deemed
fundamental, representation for religious and ethnic minorities, and limit the powers of
the government. In ":/", the Indian Bational Congress >the largest Indian political party
of the time? adopted resolutions committing itself to the defense of fundamental civil
rights, as well as socio@economic rights such as the minimum wage and the abolition of
untouchability and serfdom.
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Committing themselves to socialism in ":/7, the Congress
leaders took e&amples from the constitution of the erstwhile ESS), which inspired the
fundamental duties of citi(ens as a means of collective patriotic responsibility for national
interests and challenges.
2hen India obtained independence on "6 ugust ":58, the task of developing a
constitution for the nation was undertaken by the Constituent ssembly of India,
composing of elected representatives under the presidency of )ajendra $rasad. 2hile
members of Congress composed of a large majority, Congress leaders appointed persons
from diverse political backgrounds to responsibilities of developing the constitution and
national laws.
+5,
Botably, Jhimrao )amji mbedkar became the chairperson of the
drafting committee, while Jawaharlal Behru and Sardar =allabhbhai $atel became
chairpersons of committees and sub@committees responsible for different subjects.
notable development during that period having significant effect on the Indian
constitution took place on "; 0ecember ":5< when the Enited Bations .eneral
ssembly adopted the Eniversal 0eclaration of 1uman )ights and called upon all
member states to adopt these rights in their respective constitutions.
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The fundamental rights were included in the #irst 0raft Constitution >#ebruary ":5<?, the
Second 0raft Constitution >"8 Ictober ":5<? and final Third 0raft Constitution >!7
Bovember ":5:? prepared by the 0rafting Committee.
Signifi<an<e and <hara<teristi<s
The fundamental rights were included in the constitution because they were considered
essential for the development of the personality of every individual and to preserve
human dignity. The writers of the constitution regarded democracy of no avail if civil
liberties, like freedom of speech and religion were not recogni(ed and protected by the
State.
+6,
ccording to them, NdemocracyN is, in essence, a government by opinion and
therefore, the means of formulating public opinion should be secured to the people of a
democratic nation. #or this purpose, the constitution guaranteed to all the citi(ens of India
the freedom of speech and e&pression and various other freedoms in the form of the
fundamental rights.
+7,
ll people, irrespective of race, religion, caste or se&, have been given the right to move
the Supreme Court and the 1igh Courts for the enforcement of their fundamental rights.
It is not necessary that the aggrieved party has to be the one to do so. $overty stricken
people may not have the means to do so and therefore, in the public interest, anyone can
commence litigation in the court on their behalf. This is known as N$ublic interest
litigationN.
+8,
In some cases, 1igh Court judges have acted on their own on the basis of
newspaper reports.
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These fundamental rights help not only in protection but also the prevention of gross
violations of human rights. They emphasi(e on the fundamental unity of India by
guaranteeing to all citi(ens the access and use of the same facilities, irrespective of
background. Some fundamental rights apply for persons of any nationality whereas others
are available only to the citi(ens of India. The right to life and personal liberty is
available to all people and so is the right to freedom of religion. In the other hand,
freedoms of speech and e&pression and freedom to reside and settle in any part of the
country are reserved to citi(ens alone, including non@resident Indian citi(ens.
+<,
The right
to e*uality in matters of public employment cannot be conferred to overseas citi(ens of
India.
+:,
#undamental rights primarily protect individuals from any arbitrary state actions, but
some rights are enforceable against individuals.
+";,
#or instance, the Constitution
abolishes untouchability and also prohibits beggar. These provisions act as a check both
on state action as well as the action of private individuals. 1owever, these rights are not
absolute or uncontrolled and are subject to reasonable restrictions as necessary for the
protection of general welfare. They can also be selectively curtailed. The Supreme Court
has ruled
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that all provisions of the Constitution, including fundamental rights can be
amended. 1owever, the $arliament cannot alter the basic structure of the constitution.
#eatures such as secularism and democracy fall under this category. Since the
fundamental rights can only be altered by a constitutional amendment, their inclusion is a
check not only on the e&ecutive branch, but also on the $arliament and state legislatures.
+"!,
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state of national emergency has an adverse effect on these rights. Ender such a state,
the rights conferred by rticle ": >freedoms of speech, assembly and movement, etc.?
remain suspended. 1ence, in such a situation, the legislature may make laws which go
against the rights given in rticle ":. lso, the $resident may by order suspend the right
to move court for the enforcement of other rights as well.
Right to eGuality
)ight to e*uality is an important right provided for in rticles "5, "6, "7, "8 and "< of the
constitution. It is the principal foundation of all other rights and liberties, and guarantees
the followingL
)Guality before la9L rticle "5 of the constitution guarantees that all citi(ens
shall be e*ually protected by the laws of the country. It means that the State
+6,
cannot discriminate any of the Indian citi(ens on the basis of their caste, creed,
colour, se&, gender, religion or place of birth.
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So<ial eGuality and eGual a<<ess to >ubli< areas8 rticle "6 of the constitution
states that no person shall be discriminated on the basis of caste, colour, language
etc. Avery person shall have e*ual access to public places like public parks,
museums, wells, bathing ghats and temples etc. 1owever, the State may make any
special provision for women and children. Special provisions may be made for the
advancements of any socially or educationally backward class or scheduled castes
or scheduled tribes.
+"5,
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A*uality in matters of public employmentL rticle "7 of the constitution lays
down that the State cannot discriminate against anyone in the matters of
employment. ll citi(ens can apply for government jobs. There are some
e&ceptions. The $arliament may enact a law stating that certain jobs can only be
filled by applicants who are domiciled in the area. This may be meant for posts
that re*uire knowledge of the locality and language of the area. The State may
also reserve posts for members of backward classes, scheduled castes or
scheduled tribes which are not ade*uately represented in the services under the
State to bring up the weaker sections of the society. lso, there a law may be
passed which re*uires that the holder of an office of any religious institution shall
also be a person professing that particular religion.
+"6,
ccording to the Citizenship
(Amendment) Bill, !;;/, this right shall not be conferred to Iverseas citi(ens of
India.
+:,
Abolition of untou<hability8 rticle "8 of the constitution abolishes the practice
of untouchability. $ractice of untouchability is an offense and anyone doing so is
punishable by law.
+"7,
The Untouchability Offences Act of ":66 >renamed to
Protection of Civil Rights Act in ":87? provided penalties for preventing a person
from entering a place of worship or from taking water from a tank or well.
Abolition of Titles8 rticle "< of the constitution prohibits the State from
conferring any titles. Citi(ens of India cannot accept titles from a foreign State.
+"8,
The Jritish government had created an aristocratic class known as Rai Bahadurs
and han Bahadurs in India R these titles were also abolished. 1owever,
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-ilitary and academic distinctions can be conferred on the citi(ens of India. The
awards of Bharat Ratna and Padma !ibhushan cannot be used by the recipient as
a title and do not, accordingly, come within the constitutional prohibitionN.
+"<,
The
Supreme Court, on "6 0ecember "::6, upheld the validity of such awards.
Right to freedom
The Constitution of India contains the right to freedom, given in articles ":, !;, !" and
!!, with the view of guaranteeing individual rights that were considered vital by the
framers of the constitution. The right to freedom in rticle ": guarantees the following
si& freedomsL
+":,
#reedom of speech and e&pression, which enable an individual to participate in
public activities. The phrase, Nfreedom of pressN has not been used in rticle ":,
but freedom of e&pression includes freedom of press. )easonable restrictions can
be imposed in the interest of public order, security of State, decency or morality.
#reedom to assemble peacefully without arms, on which the State can impose
reasonable restrictions in the interest of public order and the sovereignty and
integrity of India.
#reedom to form associations or unions on which the State can impose reasonable
restrictions on this freedom in the interest of public order, morality and the
sovereignty and integrity of India.
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#reedom to move freely throughout the territory of India though reasonable
restrictions can be imposed on this right in the interest of the general public, for
e&ample, restrictions may be imposed on movement and travelling, so as to
control epidemics.
#reedom to reside and settle in any part of the territory of India which is also
subject to reasonable restrictions by the State in the interest of the general public
or for the protection of the scheduled tribes because certain safeguards as are
envisaged here seem to be justified to protect indigenous and tribal peoples from
e&ploitation and coercion.
+!;,
rticle /8; restricts citi(ens from other Indian states
and Hashmiri women who marry men from other states from purchasing land or
property in Jammu M Hashmir.
+!",
#reedom to practice any profession or to carry on any occupation, trade or
business on which the State may impose reasonable restrictions in the interest of
the general public. Thus, there is no right to carry on a business which is
dangerous or immoral. lso, professional or technical *ualifications may be
prescribed for practicing any profession or carrying on any trade.
The constitution guarantees the right to life and personal liberty, which in turn cites
specific provisions in which these rights are applied and enforcedL
$rotection with respect to conviction for offences is guaranteed in the right to life
and personal liberty. ccording to rticle !;, no one can be awarded punishment
which is more than what the law of the land prescribes at that time. This legal
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a&iom is based on the principle that no criminal law can be made retrospective,
that is, for an act to become an offence, the essential condition is that it should
have been an offence legally at the time of committing it. -oreover, no person
accused of any offence shall be compelled to be a witness against himself.
NCompulsionN in this article refers to what in law is called N0uressN >injury,
beating or unlawful imprisonment to make a person do something that he does not
want to do?. This article is known as a safeguard against self incrimination. The
other principle enshrined in this article is known as the principle of double
jeopardy, that is, no person can be convicted twice for the same offence, which
has been derived from nglo Sa&on law. This principle was first established in the
-agna Carta.
+!!,
$rotection of life and personal liberty is also stated under right to life and personal
liberty. rticle !" declares that no citi(en can be denied his life and liberty e&cept
by law.
+!/,
This means that a personDs life and personal liberty can only be disputed
if that person has committed a crime. 1owever, the right to life does not include
the right to die, and hence, suicide or an attempt thereof, is an offence. >ttempted
suicide being interpreted as a crime has seen many debates. The Supreme Court of
India gave a landmark ruling in "::5. The court repealed section /;: of the Indian
penal code, under which people attempting suicide could face prosecution and
prison terms of up to one year.
+!5,
In "::7 however another Supreme Court ruling
nullified the earlier one.
+!6,
? N$ersonal libertyN includes all the freedoms which are
not included in rticle ": >that is, the si& freedoms?. The right to travel abroad is
also covered under Npersonal libertyN in rticle !".
+!7,
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In !;;!, through the <7th mendment ct, rticle !">? was incorporated. It
made the right to primary education part of the right to freedom, stating that the
State would provide free and compulsory education to children from si& to
fourteen years of age.
+!8,
Si& years after an amendment was made in the Indian
Constitution, the union cabinet cleared the )ight to Aducation Jill in !;;<. It is
now soon to be tabled in $arliament for approval before it makes a fundamental
right of every child to get free and compulsory education.
+!<,
right of a person arrested under ordinary circumstances is laid down in the right
to life and personal liberty. Bo one can be arrested without being told the grounds
for his arrest. If arrested, the person has the right to defend himself by a lawyer of
his choice. lso an arrested citi(en has to be brought before the nearest magistrate
within !5 hours. The rights of a person arrested under ordinary circumstances are
not available to an enemy alien. They are also not available to persons detained
under the Preventive "etention Act. Ender preventive detention, the government
can imprison a person for a ma&imum of three months. It means that if the
government feels that a person being at liberty can be a threat to the law and order
or to the unity and integrity of the nation, it can detain or arrest that person to
prevent him from doing this possible harm. fter three months such a case is
brought before an advisory board for review.
+!:,
The constitution also imposes restrictions on these rights. The government restricts these
freedoms in the interest of the independence, sovereignty and integrity of India. In the
interest of morality and public order, the government can also impose restrictions.
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1owever, the right to life and personal liberty cannot be suspended. The si& freedoms are
also automatically suspended or have restrictions imposed on them during a state of
emergency.
Right against e=>loitation
Child labour and Beggar is >rohibited under Right against e=>loitation.
The right against e&ploitation, given in rticles !/ and !5, provides for two provisions,
namely the abolition of trafficking in human beings and Begar >forced labor?,
+/;,
and
abolition of employment of children below the age of "5 years in dangerous jobs like
factories and mines. Child labour is considered a gross violation of the spirit and
provisions of the constitution.
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Begar, practised in the past by landlords, has been
declared a crime and is punishable by law. Trafficking in humans for the purpose of slave
trade or prostitution is also prohibited by law. n e&ception is made in employment
without payment for compulsory services for public purposes. Compulsory military
conscription is covered by this provision.
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Right to freedom of religion
)ight to freedom of religion, covered in rticles !6, !7, !8 and !<, provides religious
freedom to all citi(ens of India. The objective of this right is to sustain the principle of
secularism in India. ccording to the Constitution, all religions are e*ual before the State
and no religion shall be given preference over the other. Citi(ens are free to preach,
practice and propagate any religion of their choice.
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)eligious communities can set up charitable institutions of their own. 1owever, activities
in such institutions which are not religious are performed according to the laws laid down
by the government. Astablishing a charitable institution can also be restricted in the
interest of public order, morality and health.
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Bo person shall be compelled to pay ta&es
for the promotion of a particular religion.
+//,
State run institution cannot impart
education that is pro@religion.
+/5,
lso, nothing in this article shall affect the operation of
any e&isting law or prevent the State from making any further law regulating or
restricting any economic, financial, political or other secular activity which may be
associated with religious practice, or providing for social welfare and reform.
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Cultural and edu<ational rights
s India is a country of many languages, religions, and cultures, the Constitution
provides special measures, in rticles !: and /;, to protect the rights of the minorities.
ny community which has a language and a script of its own has the right to conserve
and develop it. Bo citi(en can be discriminated against for admission in State or State
aided institutions.
+/7,
ll minorities, religious or linguistic, can set up their own educational institutions to
preserve and develop their own culture. In granting aid to institutions, the State cannot
discriminate against any institution on the basis of the fact that it is administered by a
minority institution.
+/8,
Jut the right to administer does not mean that the State can not
interfere in case of maladministration. In a precedent@setting judgment in ":<;, the
Supreme Court held that the State can certainly take regulatory measures to promote the
efficiency and e&cellence of educational standards. It can also issue guidelines for
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ensuring the security of the services of the teachers or other employees of the institution.
In another landmark judgement delivered on /" Ictober !;;!, the Supreme Court ruled
that in case of aided minority institutions offering professional courses, admission could
only be through a common entrance test conducted by State or a university. Aven an
unaided minority institution ought not to ignore the merit of the students for admission.
Right to /ife
In recent judgement Supreme Court of India e&tended scope of right to life which was
mentioned earlier.
Right to <onstitutional remedies
)ight to constitutional remedies empowers the citi(ens to move a court of law in case of
any denial of the fundamental rights. #or instance, in case of imprisonment, the citi(en
can ask the court to see if it is according to the provisions of the law of the country. If the
court finds that it is not, the person will have to be freed. This procedure of asking the
courts to preserve or safeguard the citi(ensD fundamental rights can be done in various
ways. The courts can issue various kinds of #rits. These writs are habeas corpus,
mandamus, prohibition, $uo #arranto and certiorari. 2hen a national or state emergency
is declared, this right is suspended by the central government.
+/<,
Criti<al analysis
The fundamental rights have been revised for many reasons. $olitical groups have
demanded that the right to work, the right to economic assistance in case of
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unemployment, old age, and similar rights be enshrined as constitutional guarantees to
address issues of poverty and economic insecurity,
+/:,
though these provisions have been
enshrined in the 0irective $rinciples of state policy.
+5;,
The right to freedom and personal
liberty has a number of limiting clauses, and thus have been critici(ed for failing to check
the sanctioning of powers often deemed Ne&cessiveN.
+/:,
There is also the provision of
preventive detention and suspension of fundamental rights in times of Amergency. The
provisions of acts like the -aintenance of Internal Security ct >-IS? and the Bational
Security ct >BS? are a means of countering the fundamental rights, because they
sanction e&cessive powers with the aim of fighting internal and cross@border terrorism
and political violence, without safeguards for civil rights.
+/:,
The phrases Nsecurity of
StateN, Npublic orderN and NmoralityN are of wide implication. $eople of alternate
se&uality is criminali(ed in India with prison term up to "; years. The meaning of phrases
like Nreasonable restrictionsN and Nthe interest of public orderN have not been e&plicitly
stated in the constitution, and this ambiguity leads to unnecessary litigation.
+/:,
The
freedom to assemble peaceably and without arms is e&ercised, but in some cases, these
meetings are broken up by the police through the use of non@fatal methods.
+5",+5!,
N#reedom of pressN has not been included in the right to freedom, which is necessary for
formulating public opinion and to make freedom of e&pression more legitimate.
+/:,
Amployment of child labour in ha(ardous job environments has been reduced, but their
employment even in non@ha(ardous jobs, including their prevalent employment as
domestic help violates the spirit and ideals of the constitution. -ore than "7.6 million
children are employed and working in India.
+5/,
India was ranked << out of "6: in !;;6,
according to the degree to which corruption is perceived to e&ist among public officials
$age % 68
and politicians worldwide.
+55,
The right to e*uality in matters regarding public
employment shall not be conferred to Iverseas citi(ens of India, according to the
Citizenship (Amendment) Bill%%& '(()*
+,-
Amendments
Changes to the fundamental rights re*uire a constitutional amendment which has to be
passed by a special majority of both houses of $arliament. This means that an amendment
re*uires the approval of two@thirds of the members present and voting. 1owever, the
number of members voting should not be less than the simple majority of the house R
whether the Cok Sabha or )ajya Sabha.
The right to education at elementary level has been made one of the fundamental rights
under the Aighty@Si&th mendment of !;;!.
+!8,
Right to >ro>erty
The Constitution originally provided for the right to property under rticles ": and /".
rticle ": guaranteed to all citi(ens the right to ac*uire, hold and dispose of property.
rticle /" provided that Nno person shall be deprived of his property save by authority of
law.N It also provided that compensation would be paid to a person whose property has
been taken for public purposes.
The provisions relating to the right to property were changed a number of times. The
#orty@#orth mendment of ":8< deleted the right to property from the list of
fundamental rights
+56,
new provision, rticle /;;@, was added to the constitution
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which provided that Nno person shall be deprived of his property save by authority of
lawN. Thus if a legislature makes a law depriving a person of his property, there would be
no obligation on the part of the State to pay anything as compensation. The aggrieved
person shall have no right to move the court under rticle /!. Thus, the right to property
is no longer a fundamental right, though it is still a constitutional right. If the government
appears to have acted unfairly, the action can be challenged in a court of law by citi(ens.
+/:,
The liberali(ation of the economy and the governmentDs initiative to set up special
economic (ones has led to many protests by farmers and have led to calls for the
reinstatement of the fundamental right to private property.
+57,
The Supreme Court has sent
a notice to the government *uestioning why the right should not be brought back but in
!;"; the court rejected the $IC
+58,
s in !;;8 the supreme court unanimously said that the fundamental rights are a basic
structure of the constitution and cannot be removed or diluted on that time.
Right to )du<ation
rticle !" @ In " pril !;";, India joined a group of few countries in the world, with a
historic law making education a fundamental right of every child coming into force.
+5<,
-aking elementary education an entitlement for children in the 7@"5 age group, the )ight
of Children to #ree and Compulsory Aducation ct will directly benefit children who do
not go to school at present.
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$rime -inister -anmohan Singh announced the operationalisation of the ct. Children,
who had either dropped out of schools or never been to any educational institution, will
get elementary education as it will be binding on the part of the local and State
governments to ensure that all children in the 7@"5 age group get schooling. s per the
ct, private educational institutions should reserve !6 per cent seats for children from the
weaker sections of society. The Centre and the States have agreed to share the financial
burden in the ratio of 66L56, while the #inance Commission has given )s. !6,;;; crore to
the States for implementing the ct. The Centre has approved an outlay of )s."6,;;;
crore for !;";@!;"".
The school management committee or the local authority will identify the drop@outs or
out@of@school children aged above si& and admit them in classes appropriate to their age
after giving special training.
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS
". Constitution of India@$art III #undamental )ights.
!. Tayal, J.J. M Jacob, . >!;;6?, .ndian /istory& 0orld "evelopments and Civics,
pg. @!/
/. .andhi, )ajmohan. Patel1 A 2ife. p. !;7.
5. EBI. NSardar $atel was the real architect of the ConstitutionN. )ediff.com.
)etrieved !;;7@;6@"6.
6.
a

b
The term NStateN includes all authorities within the territory of India. It includes
the .overnment of India, the $arliament of India, the .overnment and legislature
of the states of India. It also includes all local or other authorities such as
-unicipal Corporations, -unicipal Joards, 0istrict Joards, $anchayats etc. To
avoid confusion with the term states and territories of India, State >encompassing
all the authorities in India? has been capitali(ed and the term state >referring to the
state governments? is in lowercase.
7. Caski, 1arold Joseph >":/;?. 2iberty in the 3odern 4tate. Bew Tork and CondonL
1arpers and Jrothers.
$age % 7;
8. NBodhisatt#a 5autam vs* 4ubhra Cha6rabortyG "::6 IC1)C 7:N. 2orld Cegal
Information Institute. )etrieved !;;7@;6@!6. This was the case where $ublic
interest litigation was introduced >date of ruling "6 0ecember "::6?.
<. Tayal, J.J. M Jacob, . >!;;6?, .ndian /istory& 0orld "evelopments and Civics,
pg. @!6
:.
a

b

c
NCitizenship (Amendment) Bill& '(()N >$0#?. )ajya Sabha. pp. 6. rchived
from the original on pril !6, !;;7. )etrieved !;;7@;6@!6.
";. NBodhisatt#a 5autam vs* 4ubhra Cha6rabortyG "::6 IC1)C 7:N. 2orld Cegal
Information Institute. )etrieved !;;7@;6@!6. This was the case where
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TJCA I# CIBTABTS
S.#.
C'A(T)R (. #$.
ABSTRACT 01
INTRODUCTION 2-5
1 MEANING AND CONCEPT OF RIGHT TO
LIFE
6-30
2 ARTICLE 21 OF CONSTITUTION OF INDIA 31-37
3 RIGHT TO LIFE NOT TO DIE 38-41
4 INTRODUCTION OF FUNDAMENTAL
RIGHTS
42-62
BIBLIO GRAPH
$age % 7/