Professional Documents
Culture Documents
(1) Introduction
The Fundamental Rights under Article 19 are conferred on citizens of India, but the
rights under Article 20, 21 and 22 are available to all persons whether citizens or not. In
several cases, the Supreme Court of India has emphasized that tourists also have the right
to live with human dignity and the State is under an obligation to protect the life of the
persons who are not citizens, as it does for a citizen. The expression ‘personal liberty’ has
been given the widest amplitude. The extension in the dimensions of Article 21 has been
extended by giving broad interpretations to the words, ‘life’ and ‘liberty’. These words
should not be read in a narrow and restricted sense. The right to life enshrined in Art. 21
have been liberally interpreted so as to mean something more than mere survival or animal
existence. It includes all aspects of life which make a man’s life meaningful, complete and
worth living.
Health of Labour
Taking into consideration that Art. 21 includes ‘right to human dignity’, it has
been held that right of health, medical aid to protect the health and vigour of a
worker while in service is a fundamental right under Art. 21. The employer, be it
State or its undertaking or a private employer must strive to make the right to life
meaningful by preventing pollution of work place, protection of the environment,
protection of the health of the workman or to preserve free and unpolluted water
for safety and health of people. The employers are bound by the directions issued
by the Supreme Court of India under Articles 32 and 142 of the Constitution.
Right to Reputation
Right to reputation is a facet of the right to life of a citizen under Art. 21.
Right to Die
In a recent case of Common Cause (A Regd. Society) v. Union of India, the
Supreme Court of India has held that right to die with dignity is a fundamental right.
The Court issuing detailed guidelines held that passive euthanasia and a living will is
also legally valid. The right to life and liberty as envisaged under Art. 21 is
meaningless unless it encompasses within its sphere individual dignity. The right to
live with dignity has been recognised as a component of right to life and liberty and
right to live with dignity includes the smoothening of the process of dying in case of
terminally ill patient or a person in persistent vegetative state with no hope of
recovery. It was held that a failure to legally recognize advance medical directives
may amount to non-facilitation of the right to smoothen the dying process and the
right to live with dignity. Though the sanctity of life has to be kept on the high
pedestal yet in cases of terminally ill persons or PVS patients where there is no hope
for revival, priority shall be given to the advance directive and the right of self-
determination. The court held that when passive euthanasia as a situational palliative
measure becomes applicable, the best interest of the patient shall override the State
interest.
(3) Criminal Justice System vis-a-vis Article 21
Right to Fair Trial, Fair Procedure & Fair Investigation
Article 21 envisages fair trial, a fair procedure and a fair investigation.
Investigation
A person is not only to be informed about his fundamental right and
statutory rights but it is obligatory on the part of the authorities to place on
record the requisite materials before the designated judge. Fair
investigation and fair trial are concomitant to preservation of fundamental
rights of accused under Article 21 of the Constitution. Free and Fair Trial
is sine qua non of Art 21, the apprehension of denial must be reasonable
and not imaginary where reasonableness would depend on the facts and
circumstances of a case.
Arrest
The right to life of a citizen cannot be put in abeyance on his arrest. It
cannot be denied to convicts, undertrials, detenus and other prisoners in
custody, except according to the procedure established by law by placing
such reasonable restrictions as are permitted by law. Arrest can cause
incalculable harm to a person’s reputation and self-esteem. Arrest should
be made not merely on suspicion but only after reasonable satisfaction
reached after some investigation as to the genuineness and bona fides of
the complaint and a reasonable belief as to the person’s complicity and
even as to the need to effect arrest. The arrested man her certain rights
such as he has a right that a relative/friend of his be informed about his
arrest and the place of his detention and he has the right to consult a
lawyer privately.
Fair & Speedy Trial
A ‘fair trial’ is the heart of criminal jurisprudence and an important
facet of democratic polity and is the cornerstone of democracy. Grant of
fairest opportunity to the accused to prove his innocence is the object of
every fair trial. A Fair trial would mean a trial before an impartial judge
and a fair prosecutor. Fair trial means a trial in which bias or prejudice for
or against the accused, the witnesses or the cause which is being is
eliminated. Right to fair trial in a criminal prosecution is enshrined in Art.
21. The Evidence Act (S.142) restricts the prosecution to put leading
questions on the material part of the evidence which a witness intends to
give against the accused and doing so infringes the right of the accused to
have a fair trial under Art. 21. Right to have a fair trial strictly in terms of
the Juvenile Justice Act which would include procedural safeguard is a
Fundamental Right of the Juvenile.
Speedy trial is not mentioned as a specific Fundamental Right, neither
has it been specifically guaranteed by the Cr.PC. However, the Supreme
Court has recognised the same to be implicit under the wide ambit of
Article 21. It is an inalienable right and sine qua non of Art. 21 of the
Constitution. This is applicable not only to the actual proceedings in court
but also includes the proceeding police investigations as well.
Legal Aid
Humanising the administration of criminal justice, the Supreme Court
suggested that free legal aid be provided by the State to poor prisoners
facing prison sentence. An accused is entitled to appeal against the verdict
and he can claim legal aid, of he is indigent and is not able to afford a
counsel; the State must provide a counsel to him. A lawyer’s service
constitutes a necessary ingredient of fair procedure to a prisoner who is
seeking his liberation through the Court’s procedure.
Right against Handcuffing of Under-Trials
Imprisonment does not by fact mean that fundamental rights desert the
prisoner. The Supreme Court has held ‘handcuffing’ to be inhuman,
unreasonable and arbitrary. The Court has held a rule requiring every undertrial
person accused of a non-bailable offence punishable with more than 3 years’
prison term to be routinely handcuffed during transit from prison to Court for
trial violates Arts. 14, 19 and 21. The only circumstance validating handcuffing
is that there is no other reasonable way of preventing his escape in the given
circumstances. There must be clear material such as record of reasons, judicial
oversight or summary hearing and direction by the trial Court where the victim
is produced. It has been declared to be a constitutional mandate that no prisoner
is to be handcuffed or fettered routinely or merely for the convenience of the
custodian or the Courts.
Right against Police Torture & Custodial Violence
The law is well-settled that the State or its functionaries cannot deprive any
person of his life which includes right to live with human dignity except in
accordance with law. There is an inbuilt guarantee against torture or assault by
the State or its functionaries. Torture, assault and death in custody raise serious
questions about the credibility of the rule of law and administration of the
criminal justice system.
Supreme Court has given several instructions to ensure protection against
torture and maltreatment of women. For example, there should be separate lock-
ups for female suspects guarded by female constables; interrogation of females
should be carried out in the presence of female constables.
Long Pre-Trial Confinement & Right against Delayed Death Sentence
There are poor persons who have to languish in prisons awaiting trial because
there is no one to post bail on their behalf. This pertains great injustice on the
accused person and jeopardizes his personal liberty. Sometimes, an undertrial
may remain in prison for much longer than even the maximum prison sentence
which can be awarded to him on conviction for the offence of which he is
accused. This adversely affects the rights of the undertrials who are presumed to
be innocent till proven guilty. One reason for this is the irrational law regarding
bail which insists on financial security from the accused and their sureties and,
hence, the poor and deprived persons cannot be released on bail as they may are
not able to provide with the same. They have to remain in prison awaiting their
trial as a consequence. The Supreme Court has declared that any procedure
which keeps such large numbers of people behind bars without trial so long
cannot possibly be regarded as reasonable, just and fair so as to be in conformity
with Art. 21.
Prolonged delay in the execution of death sentence is dehumanizing and
deprives a person a person of his life is an unjust, unfair and unreasonable way
so as to offend Art. 21. The delay which could be considered in considering the
question of commutation of death sentence into one of life imprisonment could
only be from the date of judgment by the apex Court in pronounced. While
considering the question of delay after the final verdict is pronounced, the time
spent on petitions for review and repeated mercy petitions at the instance of the
convicted person himself, shall not be considered. The only delay which would
be material for consideration will be delay in disposal of mercy petitions or
delays occurring by the Executive. There is a presumption that the mercy
petitions are expeditiously disposed off by the concerned authorities. The court
may consider whether the execution of the sentence should be carried out, or
should be altered into imprisonment for life.
(4) Article 21A – Right to Education
The Eighty-Sixth Constitutional Amendment Act, 2002 inserted Art. 21-A in
the Constitution of India provide free and compulsory education of all children in the
age group of 6-14 years as a fundamental right. The amendment gave effect to
enactment of the Right of Children to Free and Compulsory Education Act, 2009. It
casts an obligation on the appropriate authorities to provide and ensure admission,
attendance and completion of elementary education for children in 6-14 years age
group. It mandates admission of a non-admitted child to be admitted to an age
appropriate class. The Act provides norms and standards relating to Pupil Teacher
ratios, buildings and infrastructure, school working days and teacher working hours
etc. The act prohibits physical punishment and mental harassment, screening
procedures for admission of children, capitation fee, private tuition by teachers and
running of schools without recognition.