ARTICLE 21 OF THE INDIAN CONSTITUTION
INTRODUCTION
The greatest heritage of democracy to mankind is the right to personal liberty and dignity. Most of the fundamental rights would pale into insignificance if an individual is denied the right to life and personal liberty. The 39th Chapter of the Magna Carta provides, “no free man shall be taken or imprisoned or seized or outlawed or exiled or in any manner destroyed; nor shall we go upon him nor send upon him but by the law of the land”. It is now equally well realized that the right to life also includes, right to dignity and all those attributes of human personality, which make the realization of full human personality possible.
All democratic constitutions recognize the fundamental right to life and personal liberty. In modern constitutions, like other freedoms this freedom too, is not recognized in absolute terms. It is now an established constitutional norm, that an individual can be deprived of life and personal liberty under a valid law and under a valid procedure.
Imprisonment of a person on his being sentenced for a term of imprisonment for the commission of a crime by a court of law is the commonest and well-recognized case of a valid deprivation of personal liberty. It is a well-recognized mode of deprivation of life when for the commission of a serious crime a person is sentenced to death. But, time and again, it has been asserted that the proper forum for bringing to book all offenders against law is the court of law where the veracity of allegation made against them can be objectively and fully looked into, enquired and examined by a proper appreciation of evidence adduced at the trial. It has been also asserted, time and again, that personal liberty can be sacrificed at the altar of national security. It is proclaimed that the individual liberty is sacrosanct only if the security and well-being of the state and society are not jeopardised and maintenance of public order is not threatened. In short, the assertion is that there cannot be freedom to destroy freedom and that the ideal of personal liberty cannot operate in vacuum. When danger lurks and serious consequences are apprehended, when the country is faced with external aggression or internal dissention and disaffection and violence, no govt. worth the name can risk the security of the state and the community. Thus, it is proclaimed that the claim of
personal liberty is to be judged against the community’s need for security. It is on this basis that preventive detention and other modes of deprivation of personal liberty is to be judged against the community’s need for security. It is on this basis that preventive detention and other modes of deprivations of personal liberty are justified. The proposition in modern law is personal liberty sobered by the need of national Security. This seems to be the proposition on which Articles 20, 21 and 22 are based upon.
Article 21 of the Indian Constitution guarantees the fundamental rights to life and personal liberty by laying down “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The article lays down that an individual can be deprived of his life and personal liberty under law passed by a competent legislature conferring authority for the deprivation of either or both, and by laying down the procedure for such deprivation. The court’s power of ordering the detaining authority release the detenu forthwith arises when an individual is deprived of his liberty without a proper procedure established by law. In such a case it is immaterial that an individual is detained preventively or punitively.
RIGHT TO LIFE
Right to life guarantees against taking away of life, but has a wider application. Right to life does not mean an animal existence but to live with human dignity.
In Munn v. Illinois, Field J. observed that, “by the term ‘life’ as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”
This statement was further extended in Francis Coralie v. U.T. of Delhi (1981), by the statement, “that any act which damages or injures or interferes with the use of any limb or faculty of a person, either permanently or even temporarily would be within the inhibition of Article. 21”.
Bhagwati, J., held “we think 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”.
In Ram Sharan Antyanuprasi v. Union of India (1989), the court has also observed, “that ‘life’ includes all that give meaning to a man’s life including his tradition, culture, and heritage and Protections of that heritage in its full measure.”
In Bandhua Mukti Morcha v. Union of India, Bhagwati, J., Held: “it is the fundamental right of everyone in this country to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article, 21 derives its life breath from directive principles of state policy and particularly Clause (e) & (f) of Article 39 and Article 41 and 42 and atleast, therefore, it must include protection of the health and strength of the workers men and women, and of 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 and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no state has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”
RIGHT TO PERSONAL LIBERTY
The word “liberty” suo moto, as expressed in 5th and 14th Amendment to the U.S. Constitution has a very wide meaning. The expression is not limited to mere freedom from bodily restraint and “liberty” under law, but extends to the complete conduct which the individual is free to pursue.
In Article 21, in contrast to the American Constitution, the word “liberty” is qualified by the word “personal”, which leads the courts to interpret the scope of liberty very narrowly.
∙ In A.K. Gopalan v. State of Madras (1950 SC), where the petitioner was detained under preventive detention, the Supreme Court held that the “personal liberty” in Article 21 means nothing more than the liberty of the physical body; i.e. freedom from arrest and
detention without the authority of law. The court further said the word “liberty” is a very comprehensive word and if interpreted, it is capable of including the rights mentioned in Article 19, but by qualifying the word “liberty” with “personal”, the import of the word “personal liberty” is narrowed down to the meaning given in English law to the expression “Liberty of the person” as defined by Prof. Dicey. According to him, “personal liberty”
means “freedom from physical restraint and coercion which is not authorised by law.” Furthermore, the majority have stated that Article 19 and 21 deals with different aspects of “liberty” as Article 21 is a guarantee against deprivation of personal liberty while Article 19 affords protection against unreasonable restrictions on the right of movement. However, Fazal Ali J, in his dissenting judgment held “that the Act was liable to be challenged as violating the provisions of Article 19”. He gave a wide and comprehensive meaning to the word Personal liberty as consisting of freedom of movement and locomotion. Therefore, any law which deprives a person of his personal liberty must satisfy the requirements of Article 19 and 21 both.
∙ This restrictive interpretation of the expression “personal liberty” in A.K. Gopalan v. State of Madras (1950 SC), was reviewed by the Supreme Court in Kharak Singh v. State of Uttar Pradesh, when for the first time the meaning and scope of “personal liberty” came up pointedly for consideration. In Kharak Singh v. State of Uttar Pradesh, the validity of certain police regulations which without any statutory basis, authorised the police to keep under surveillance persons whose names were recorded in the “history sheet” maintained by the police in respect of persons who are or are likely to become habitual criminals. The petitioner alleged that this regulation violated his fundamental right to movement enshrined in Article 19 (1) (d) and “personal liberty” in Article 21.
Speaking for the majority Ayyangar J., rejected that “personal liberty” was confined to “freedom from physical restraint or freedom from confinement within the bounds of a prison” and held that “personal liberty” is used in the Article 21 as a compendious term to include within itself all the varieties of rights which go to make up the “personal liberties”
of man other than those dealt with in the general clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, “Personal liberty” in Article 21 takes in and comprise the residue”. Ayyangar J., concluded that “an
unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated personal liberty enshrined in Article 21, and therefore the regulation was invalid in so far as it authorized domiciliary visits but the rest of it did not violate Article 19(1)(d) or Article 21.
∙ In Govind v. State of Madhya Pradesh (1975), the Supreme Court held that, “Right to privacy” is included in “Right to personal liberty”, but it has to go through a process of case by case development.
∙ In Satwant Singh Sawhney v. A P.O. (1967), it was held that, “Right to travel abroad” is a part of the right to personal liberty.
∙ State of Maharashtra v Prabhakar Pandurang (1966), the Court held that the right to write a book and get it publish is a part of right to personal liberty.
∙ Maneka Gandhi v. Union of India (1978 SC), overruled A.K. Gopalan v. State of Madras (1950 SC), and gave wide and liberal interpretation to the scope of “Personal liberty”.
Bhagwati J., observed: The expression “personal liberty” in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.
PROCEDURE ESTABLISHED BY LAW
The expression “procedure established by law” means procedure laid down by statute or procedure prescribed by the law of the state.
There are three main elements to tis part of the Article:-
1) There must be a law justifying interference with the person’s life or personal liberty, 2) The law should be a valid law,
3) The procedure laid down by the law should have been strictly followed.
The executive in the absence of any procedure prescribed by the law, sustaining the deprivation of personal liberty shall act in violation of Article 21 if it interferes with the life or personal liberty of the Individual.
The United States of America’s Constitution provides that a person cannot be deprived of his liberty “without due process of law”. The American Supreme Court has interpreted the guarantee to mean that the court would examine a law to ascertain if it is a just law, both as to the procedure and to the substantive provisions contained therein.
In A.K. Gopalan v. State of Madras (1950 SC), the petitioner A. K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950. The petitioner challenged the validity of the Preventive Detention Act, 1950, and his detention there under on the following grounds: –
1) That it violated his right to move freely throughout the territory of India which is the very essence of personal liberty guaranteed in Article 19. The detention under this Act was not a reasonable detention under Cl. (5) of Article 19 and hence the Act was void.
2) That the Act was in conflict with Article 21 of the constitution in as much as it provided for by law. It was argued that the word “law” in Article 21 should be understood not in the sense deprivation of the personal liberty of a man not in accordance with a procedure established of an enactment but as signifying the universal principle of natural justice and a law which did not incorporate these principles could not be valid.
3) That the expression “procedure established by law” meant the same thing as the phrase “due process of law” in U.S. Constitution.
Rejecting the contentions of the petitioner, the Supreme Court held, that the expression “procedure established by law” means procedure enacted by a law, made by the state, and the word “law” in Article 21 does not mean natural law based on principles of natural justice. That in effect means that Article 21 gives protection only against the executive and not against the legislature. The interpretation was taken to its logical conclusion in A.D.M., Jabalpur v. Shivakant Shukla (1976),
where the Supreme Court held that Article 21 was the sole repository of the right to life and personal liberty against its illegal deprivation by the executive and in case enforcement of Article 21 was suspended by a presidential order, under Article 359, the court could not enquire whether the executive action depriving a person of his life or personal liberty was authorised by law. As to the second contention regarding mutual relationship between Article 19 and 21, the court rejected the contention of the petitioner and held that the various fundamental rights are exclusive of each other i.e., the principle of exclusiveness of fundamental rights was propounded, which emphasised that each fundamental rights was independent of another. The court held that Article 19 has no application to laws depriving a person of his life and personal liberty enacted under Article 21 of the Constitution. It was further held that Article 19 and 21 dealt with different subjects.
This argument of exclusiveness of fundamental rights expounded in A.K. Gopalan v. State of Madras (1950 SC), was finally rejected in R. C Cooper v. Union of India (1970).
In Maneka Gandhi v. Union of India, the Supreme Court has overruled the view expressed by the majority in A.K. Gopalan v. State of Madras (1950 SC) and held that Article 21 is controlled by Article 19, i.e. it must satisfy the requirements of Article 19 also emphasizing the relationship between Article 19 and 21. Bhagwati, J. delivering the majority opinion held that the law must now be taken to be well settled that Article 21 does not exclude Article 19, and a law prescribing a procedure for depriving a person of “personal liberty” will have to meet the requirements of Article 21 and also of Article 19 as well as of Article 14.
Prior to Maneka Gandhi v. Union of India, Article 21 guaranteed the right to life and personal liberty to citizens, only against the arbitrary action of the executive, and not from legislative action. The state could interfere with the liberty of citizens if it could support its action by a valid law. But after the Maneka Gandhi v. Union of India, Article 21 now protects the right to life and personal liberty of citizen not only from the executive action but from the legislative action also. A person can be deprived of his life and personal liberty if two conditions are complied with:
1) there must be a law and
2) there must be a procedure prescribed by the law, provided that the procedure is just, fair and reasonable.
