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The enrichment can be traced under 3 heads:
I) Gopalan’s era
II) The Maneka Gandhi case: a new dimension added
III) Post Maneka period: dynamic interpretation of
article 21.
Gopalan’s Era:
Interpretation of Article 21 of the Constitution came up before
the Supreme Court in the famous case of A.K. Gopalan v. State
of Madras1, where the petitioner attempted for better
procedural safe guards against preventive detention laws. The
decision given in this case, held the field for almost 3 decades.
The petitioner, in the instant case was sentenced to the term of
imprisonment under the ordinary criminal law but the
conviction was set aside in appeal. Thereafter, he was detained
under the provisions of local Act of Madras. During such
detentions he was served with an order made under section
3(I), Preventive Detentions Act, 1950. The petitioner challenged
the validity of the order on various grounds. The most
1
AIR 1950 SC27: 1950 SCR 88
important ground was that the Act violated the provisions of
Articles 19 and 21 of the Constitution, he prayed for the writ of
habeas corpus.
Rejecting the contentions of the petitioner, the SC held:
“The word “law” in Article 21 of the Constitution could not be read as
jus naturale or rules of natural justice and, therefore, the expressions
‘procedure established by law’ means procedure enacted by a law
made by Parliament. It rejected the contentions of the petitioner that
law is used in jus and lex, .i.e. abstract sense. These terms do not have a
definite meaning but are vague and indefinite. The constitution could
not be read as laying vague and an indefinite standard. It also rejected
the US Supreme Court analogy of due process of law.”
3.) In art 21, the word “law” has been used in the sense of
State-made or enacted law, and not as an equivalent to
law in abstract or general sense embodying the principle
of natural justice. The right guaranteed under Article 21
is not a substantive right, but it is a procedural right.
Therefore, the phrase “except according to the
procedure stabilized by the law” cannot be interpreted
to mean the same things as “the due process of law”
clause of the US Constitution i.e. to say that article 21
was a protection only against executive not legislature.
4.) Article 21 and 22 are not to be read together, and
Article 21 does not form a code in itself.
2
(1976) 2 SCC 521: AIR 1976 SC 1207
3
AIR 1963 SC 1294: (1964) I SCR 332
4
AIR 1967 SC 1836: (1967)3 SCR 525
softened. The doctrine of exclusivity was seriously
questioned in Rustom Cavasjee Cooper v. Union of India5
(bank nationalization case) by a majority. It was explained in
Sambhu Nath Sarkar v. State of West Bengal6, that is the
premise of the majority in the A.K. Gopalan case was held to
be incorrect in the bank nationalization case. Though a
preventive detention law may pass the test of Art21, it has
yet to satisfy the requirement of other fundamental right
such as Article 19.
5
(1970) 1 SCC 248: AIR 1970 SC 564
6
(1973) 1 SCC 856: AIR 1973 SC 1425
The “Maneka Gandhi Case”: a New Dimension Added:
Influences of emergency, in the post- Emergency period of
interpretation of fundamental rights especially Art 21 was
obvious. The decision showed liberal tendency and highly
activist attitude toward the protection of life and liberty. The
Maneka Gandhi Case7is a landmark case of post emergency
period vis-à-vis the interpretation of personal liberty, as
envisaged under Art 21 of the constitution.
The main point of the argument of petitioner was that
personal liberty under Art 21 includes the right to go abroad.
The case, due its importance, was heard by a seven judge
bench who delivered 5 separate opinions while Bhagwati J
gave the leading opinion along with Untwalia, Faisal Ali,
Chandrachud, khrishna Iyer JJ and Beg CJ. Kalilasam J
dissented. The court led down that:
1. Art 14, 19 and 21 were not mutually exclusive, meaning
thereby, that a law prescribing a procedure for depreving a
person of personal liberty has to meet the requirements of
Art 19. Also the procedure established by law in Art 21
must answer the requirements of Art 14 as well.
8
(1982) 3 SCC 235: AIR 1982 SC 1473
Employee’s Union v. Delhi Administration9. Supreme Court
observed that:
This country has so far not found it feasible to incorporate the
right to livelihood, as a fundamental right in the constitution. This
is because the country has so far not attained the capacity to
guarantee it and not because it considers it, no less fundamental
to life. Advisedly, therefore, it has been placed in the chapter on
directive principles, Art 41 which enjoins upon the State to make
effective provision for securing the same within the limits of its
economic capacity and development. Thus, even while giving the
direction to the Sate to ensure the right to work, the constitution
makers thought it prudent not to do so, without qualifying it.
14
(2012) 6 SCC 502
15
(1980) 3 SCC 526: AIR 1980 SC 1535
16
(1980) 3 SCC 488: AIR 1980 SC 1579
imposed on them. They are entitled to all fundamental
rights unless constitutionally curtailed. 17
In Sheela Barse v. State of Maharashtra18 the Supreme
Court expressed concern about ill treatment meted out to
the women suspects in police lockups and gave detailed
instruction to the authorities concerned for providing
adequate protection and security to them.
21
Murli S. Deora v, Union of India (2001) 8 SCC 765: AIR 2002 SC 40.
22
(1993) I SCC 645: AIR 1993 SC 2178
7) Right to Die: Most of the positive rights in the Constitution
include four negative rights also, within their ambit. The
question, under Art. 21 of the Constitution, therefore, arise
whether right to life includes the right to die also. This
question came up for consideration before the Bombay High
Court in State of Maharashtra v. Maruty Sripati Dubal23. The
Court held that the right to life guaranteed by Art 21 of the
constitution includes the right to die and consequently the
court struck down Section 309, which provided punishment
for attempt to commit suicide by a person, as
unconstitutional. On the other hand, contrary to the
decision, in Chenna Jagadeeshwae v. State of A.P.24, held
that the right to die is not fundamental right within the
meaning of Art 21 and therefore Sec 309 IPC was not
unconstitutional.
Delving into the controversy again, a Division bench of the
Supreme Court in P. Rathinam v. Union of India25, aggrieved
with the view of the Bombay High Court held that a person
has right to die, and declared sec 309 IPC unconstitutional.
Death Sentence: In Bachan Singh v. State of Punjab26, the
Supreme Court stated that the provision of death sentence
as an alternative punishment for murder in Section 302 IPC
is not unreasonable and it is in the public interest. The
23
1987 Cri LJ 743 (bom).
24
1988 cri LJ 549 (AP)
25
(1994) 3 SCC 394: AIR 1994 SC 1844
26
(1980) 2 SCC 684: AIR 1980 SC 898
impugned provision in Sec 302 violates neither letter nor the
ethos of Art 19 of the Constitution. The provision of death
sentence as an alternative punishment for murder does not
violates Art 21. In Mithu v. State of Punjab27, the legality and
constitutionality of Sec 303 IPC was challenged. The
Supreme Court has held that Sec 303 is unconstitutional, as
it violates Art 14 and 21 of the Constitution.
In Mohd. Ajmal Kasab v. State of Maharashtra, Supreme
Court opined that in this country, death as a penalty has
been held to be constitutionally valid though indeed to be
awarded in the “rarest of the rare case when alternative
option in unquestionably foreclosed”.
27
(1983) 2 SCC 277:AIR 1983 SC 473
Fundamental Rights and Parliament: Enrichment
of the content of Fundamental Rights
Subject: Constitutional Law II
Thank you to all those people who have been part of this project in any
manner.
Aartika Saini
Bibliography
6. Conclusion 18.
7. Bibliography 19.
Introduction
Fundamental rights are those inviolable and natural rights
which have been provided under part III of the Constitution.
Taking cue from the US Constitution, which is the first
example of a written Constitution; these rights have been given
a pride place in the Indian Constitution. However, balance has
been maintained in the constitution by not making these rights
absolute but by providing restrictions too along with the rights.
Some of the important rights are that of right to equality, right
to freedom, protection of life and liberty, right to education,
right against exploitation etc. these are inviolable in the sense
that state cannot abridge them. These rights imply the
existence of an organized society.
Fundamental rights guaranteed by the Indian Constitution have
been put on a very high pedestal. Art 13 provides all laws in
force in the territory of India immediately before
commencement of the constitution on 26th January 1950,
insofar as they are inconsistent with the fundamental rights,
shall be void.
Fundamental rights are available against the state and not
private individuals. In case of violation of fundamental rights
by private individuals, any remedy available under ordinary
law of the country is to be resorted to.
Conclusion
28
2017 SCC UTT 367