Professional Documents
Culture Documents
TABLE OF CONTENTS
Contents................................... 2
List of Abbreviations................................... 5
List of Law Reports................................... 6
Abstract................................... 7
CHAPTER 1
1.1 Introduction................................... 8
CHAPTER 2
2.1 Meaning and Concept of Right to life................................... 13
2.2 Meaning and Concept of Personal Liberty................................... 15
2.3 Procedure Established by Law................................... 17
2.4 Article 21 and Directive Principles of the State Policy................................... 22
2.5 Article 21 and International Human Rights Documents...................................
25
Article 32 of the Indian Constitution: A Provision to Enforce Article
21................................... 29
CHAPTER 3
3.1 The Traditional Approach................................... 32
3.2 The Foundations of Change and the Beginning of New
Era................................... 33
CHAPTER 4
4.1 The Current Trend................................... 36
4.2 Judicial Activism................................... 38
Conclusion................................... 67
BIBLIOGRAPHY
Legislation................................... 70
Cases................................... 72
Books................................... 73
Articles................................... 76
International Human Rights Instruments /
Declarations / Resolutions................................... 79
Selected Daily Newspapers and Other Sources................................... 80
ACRONYMS
CAD Constituent Assembly Debates
CONST Constitution of India, 1950
CR.P.C. Code of Criminal Procedure, 1973
ICCPR International Covenant on Civil and Political Rights, 1966
GA General Assembly of the United Nations
IPC Indian Penal Code, 1860
NHRC National Human Rights Commission, India
SC Supreme Court [Supreme Court of India]
SLP Special Leave Petition
UDHR Universal Declaration of Human Rights, 1948
WP Writ Petition
ABSTRACT
It is very evident that the judiciary has evolved from an positivist institution to an
activist on in the 20th century. However, when it comes to Article 21 of the
Constitution of India, the judiciary has not only been involved in judicial activism,
but also judicial creativity. This paper explains how trend of interpreting Article
21 has changed over the years and the various rights that fall under it.
Indian Judiciary though is restrained, in many ways has evolved itself as a
saviour 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 Article 21 of the Indian Constitution evolved itself as
a saviour of mankind. It discusses in detail the traditional and modern approach,
and the current trend of the Supreme Court in interpreting Article 21 of the
Constitution. Further, it discusses the need for such judicial activism and
concludes by justifying the activist role played by the Supreme Court.
1.1 INTRODUCTION
This paper is a study of constitutional jurisprudence of Article 21 of the Indian
Constitution. This article comprehensively examines the broad interpretation of
Article 21 of the Indian Constitution. It explores the reasons for such liberal
interpretation when there was no such mandate by the framers of the
Constitution. It examines the reasons for judicial creativity and justifies the role
played by the Supreme Court of India in protecting the fundamental rights of the
citizens when the legislative and executive failed in performing their duties. To
some extent, 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.
Right 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. Article 21 is
the celebrity provision of the Indian Constitution and occupies a unique place as
a fundamental right. It guarantees right to life and personal liberty to citizens
and aliens and is enforceable against the State. The new interpretation of Article
21 in Maneka Gandhis case has ushered a new era of expansion of the horizons
of right to life and personal liberty. The wide dimension given to this right now
covers various aspects which the founding fathers of the Constitution might or
might not have visualized.
The above stated revolution in the basic concept makes it imperative that the
concept of right to life and personal liberty should be examined a new with
reference to development, meaning, width and depth, along with judicial
interpretation, justification for such liberal interpretation, and relation of Article
21 with the provisions of Article 32 and Directive Principles of the State Policy
and International Human Rights Instruments. Further, the protection of this right
is burning topics of the day. Hence an attempt has been made in this essay to
examine the modern day standards adopted for protecting the right to life and
personal liberty.
The Supreme Court, as the arbiter and interpreter of the Constitution, serves not
merely the negative purpose of checking excesses 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 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.
Right to life and personal liberty is the modern name for what have been
traditionally known as natural right. It is the primordial rights necessary for the
development of human personality. It is the moral right which every human being
everywhere at all times ought to have simply because of the fact that in contrast
with other beings, he is rational and moral. It is the fundamental right which
enable a man to chalk out his own life in the manner he likes best. Right to life
and personal liberty is one of the rights of the people of India preserved by the
Constitution of India, 1950 and enforced by the High Courts and Supreme Court
under article 226 and 32 respectively. 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 life, right to
life, and personal liberty.
In Chapter II of the essay we will overlook the provision of Article 32 of the
Constitution to understand the power of the Supreme Court of India to interpret
Article 21 and a remedy for human beings to approach the apex court when
there is infringement of fundamental rights, particularly Article 21.
In Chapter III we will discuss in detail the facets which comprise Article 21 i.e.
right to life, personal liberty, and procedure established by law. Further, we
explore the relation and interpretation given to Article 21 with special reference
to Directive Principles of the State Policy and International Human Rights
Documents.
In Chapter IV we will have an overlook on the traditional and narrow approach of
the Indian judiciary in interpreting Article 21 of the Constitution. Further, in the
next part the discussion will focus on the modern approach of the Courts, by
referring to a historical case which changed the interpretation of right to life in
India. In Chapter 4 it will be demonstrated how judicial interpretation enhanced
the ambit of right to life by discussing some selected cases. In the next section
we will discuss the meaning of judicial activism and arguments for and against
judicial activism. We will also discuss the justification for judicial activism and I
would argue in favour of judicial activism. Further, we will overlook the
controversy between judicial activism and separation of powers. (Judicial
Activism v Doctrine of Separation of Powers) and discuss in detail the judicial
restraint (self-restraint) necessary for the judiciary while interpreting Article 21
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 citizens of the largest
democracy of the world.
CHAPTER 2
2.1 MEANING AND CONCEPT OF RIGHT TO LIFE
Everyone has the right to life, liberty and the security of person. The right to life is
undoubtedly the most fundamental of all rights. All other rights add quality to the life in
question and depend on the pre-existence of life itself for their operation. As human rights
can only attach to living beings, one might expect the right to life itself to be in some sense
primary, since none of the other rights would have any value or utility without it. There
would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted
in its original sense. This chapter will examine the right to life as interpreted and applied by
the Supreme Court of India.
Article 21 of the Constitution of India, 1950 provides that, No person shall be deprived of
his life or personal liberty except according to procedure established by law. Life in Article
21 of the Constitution is not merely the physical act of breathing. It does not connote mere
animal existence or continued drudgery through life. It has a much wider meaning which
includes right to live with human dignity, right to livelihood, right to health, right to pollution
free air, etc. Right to life is fundamental to our very existence without which we cannot live
as human being and includes all those aspects of life which go to make a man's life
meaningful, complete and worth living. It is the only article in the Constitution which has
received the widest possible interpretation. Under the canopy of Article 21 so many rights
have found shelter, growth and nourishment. Thus, the bare necessities, the minimum and
basic requirements which are essential and unavoidable for a person is the core concept of
right to life. In the next part we will discuss the meaning and concept of personal liberty as
interpreted by the Supreme Court of India.
CHAPTER 3
3.1 THE TRADITIONAL APPROACH
It is hard to appreciate fully the extent of development of right to life without an
overview of the traditional approach.
In A. K. Gopalan v Union of India, the traditional interpretation of Article 21 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
individuals right to life is accorded with the procedure laid down by properly
enacted law. It didnt matter whether the law was just & fair. Moreover, in
Gopalan case the Court declined to infuse the guarantee of due process of law,
contained in article 21, with substantive content, holding that as long as the
preventive detention statutes had been duly enacted in accordance with the
procedures of article 22, the requirements 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, personal liberty 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 next Chapter it will be demonstrated how the
traditional and narrow approach of the Supreme Court in interpreting Article 21
changed with changing time. Reference will be made to the Maneka Gandhis
case and the dramatic change of attitude by the Court in interpreting Article 21
in a manner so as to impliedly include due process of law into the contents of
Article 21.
3.2 The Foundations of Change and the Beginning of New Era
In this section it will demonstrated how judiciary dramatically changed the
traditional interpretation of right to life to a modern and flexible interpretation. It
was not until 1978 that the Supreme Court breathed substantive life into Article
21 by subjecting state action interfering with a persons right to life to a test of
reasonableness; requiring not only that the procedures be authorized by law, but
that they are right, just, fair and reasonable.This transformation paved the way
for a substantive re-interpretation of constitutional and legal guarantees and
positive judicial intervention. In the case of Maneka Gandhi v Union of India, the
petitioners passport was impounded 'in public interest' by an order dated July 2,
1977. The Government of India declined in the interests of the general public to
furnish the reasons for its decision. Thereupon, the petitioner filed a writ petition
under Article 32[86] of the Constitution to challenge the order. The petitioner
contended before the Court that the order of the Government of India does not
prescribe 'procedure' within the meaning of Article 21 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, Maneka Gandhis
case recognized an implied substantive component to the term liberty in article
21 that provides broad protection of individual freedom against unreasonable or
arbitrary curtailment.[87] This paved the way for a dramatic increase in
constitutional protection of human rights in India under the mantle of the Public
Interest Litigation movement (PIL).
As discussed above the ghost of Gopalan was finally laid in Maneka Gandhis
case. A Constitutional Bench of Seven judges (overruling Gopalan) read into
Article 21 a new dimension: it was not enough, said the Court, that the law
prescribed some semblance of procedure for depriving a person of his life or
personal liberty; the procedure prescribed by the law had to be reasonable, fair
and just; if not, the law would be held void as violating the guarantee of Article
21. This fresh look at Article 21 has helped the apex court in its new role as the
institutional ombudsman of human rights in India. The decision in Maneka
Gandhi 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 apex 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 next 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 Article 21.
CHAPTER 4
4.1 THE CURRENT TREND
Maneka Gandhis case demonstrate how judicial activism can expand the reach
of law with a view to curbing and controlling executive discretion and ensuring
the basic human rights of the citizen. 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. Few landmark cases will be discussed which has
drastically changed the interpretation of Article 21. The modern interpretation of
right to life is one of the historical developments of constitutional law.
In the Delhi Pollution Case, the Supreme Court held in 1989 that Article 21 of the
Constitution guaranteeing the right to life must be interpreted to include the
right to live in a healthy environment with minimum disturbance of ecological
balance, and without avoidable hazard to [the people] and to their cattle,
house and agricultural land, and undue affection (sic) of air, water, and
environment.
The subsequent ruling in Charan Lal Sahu v. Union of India[96] expanded upon
this decision when Justice Kuldip Singh described the governments role in the
protection of fundamental rights: [I]t is the obligation of the State to assume
such responsibility and protect its citizens. The Court held that the
governments obligation to protect fundamental rights forces it to protect the
environment. Thus, from time to time the Supreme Court interpreted Article 21
broadly so as to infuse real life in the said article. It also waived the rule of locus
standi so as to make the life of the citizens of India meaningful.
In Francis Coralie Mullin v Administrator, Union Territory of Delhi, the Honourable
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 adequate nutrition,
clothing and shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings.
Thus, the Supreme Court interpreted Article 21 in a widest possible manner and
included within its ambit the right to live with human dignity.
The cases examined in this part primarily relate to the modern approach of the
Indian judiciary which demonstrated the enhanced interpretation of right to life
and personal liberty. Thus, the scope of Article 21 of the Constitution has been
considerably expanded by the Indian Supreme Court, which has interpreted the
right of life to mean the right to live a civilized life. In the next part of the essay
we will discuss briefly the meaning of judicial activism so as to understand the
creativity of the Indian judiciary in interpreting Article 21.
In Maneka Gandhi v. Union of India[iii], the Supreme Court gave a new dimension
to Art. 21 and held that the right to live the right to live is not merely a physical
right but includes within its ambit the right to live with human dignity.
Elaborating the same view, the Court in Francis Coralie v. Union Territory of
Delhi[iv], observed that:
The right to live includes the right to live with human dignity and all that goes
along with it, viz., the bare necessities of life such as adequate nutrition, clothing
and shelter over the head and facilities for reading writing and expressing
oneself in diverse forms, freely moving about and mixing and mingling with
fellow human beings and must include the right to basic necessities the basic
necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.
Following the above stated cases, the Supreme Court in Peoples Union for
Democratic Rights v. Union of India[vi], held that non-payment of minimum
wages to the workers employed in various Asiad Projects in Delhi was a denial to
them of their right to live with basic human dignity and violative of Article 21 of
the Constitution. Bhagwati J. held that, rights and benefits conferred on workmen
employed by a contractor under various labour laws are clearly intended to
ensure basic human dignity to workmen. He held that the non-implementation by
the private contractors engaged for constructing building for holding Asian
Games in Delhi, and non-enforcement of these laws by the State Authorities of
the provisions of these laws was held to be violative of fundamental right of
workers to live with human dignity contained in Art. 21[vii].