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Introduction
The Constitution of India
provides Fundamental Rights under Chapter III. These rights are guaranteed
by the constitution. One of these rights is provided under article 21 which
reads as follows:-
Article 21.
Protection Of Life And
Personal Liberty: No person shall be deprived of his life or personal liberty
except according to procedure established by law.
Though the phraseology of
Article 21 starts with negative word but the word No has been used in relation
to the word deprived. The object of the fundamental right under Article 21 is to
prevent encroachment upon personal liberty and deprivation of life except
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 Article 21. in such a case the remedy for aggrieved
person would be either under Article 226 of the constitution or under general
law. But, 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 Article 21. Article 21 of the Constitution deals with
prevention of encroachment upon personal liberty or deprivation of life of a
person.
The state cannot be defined
in a restricted sense. It includes Government Departments, Legislature,
Administration, Local Authorities exercising statutory powers and so on so
forth, but it does not include non-statutory or private bodies having no
statutory powers. For example: company, autonomous body and others. Therefore,
the fundamental right guaranteed under Article 21 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 Article 21 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. Right to Life means the right to lead
meaningful, complete and dignified life. It does not have restricted meaning. It
is something more than surviving or animal existence. The meaning of the word
life cannot be narrowed down and it will be available not only to every citizen
of the country . As far as Personal Liberty 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 Article 19
of the Constitution. Procedure established by Law means the law enacted by the
State. Deprived has also wide range of meaning under the Constitution. These
ingredients are the soul of this provision. The fundamental right under Article
21 is one of the most important rights provided under the Constitution which has
been described as heart of fundamental rights by the Apex Court.
The scope of Article 21 was
a bit narrow till 50s as it was held by the Apex Court in
Gopalans case that the
contents and subject matter of Article 21 and 19 (1) (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 right to move freely which came under Article 19 (1) (d). at
that time
Gopalans case
was the leading case in respect of Article 21
along with some other Articles of the Constitution, but post
Gopalan case the
scenario in respect of scope of Article 21 has been expanded or modified
gradually through different decisions of the Apex 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 require authority of law. Whether the reasonableness
of a penal law can be examined with reference to Article 19, was the point in
issue after Gopalans case in
the case of
Maneka Gandhi v. Union of India , the Apex Court opened up a new
dimension and laid down that the procedure cannot be arbitrary, unfair or
unreasonable one. Article 21 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
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others
as follows:
Article 21 requires that no
one shall be deprived of his life or personal liberty except 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 Article 22, but also of Article 21 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
Olga Tellis
and others v. Bombay Municipal Corporation and others , it was further observed
: Just as a mala fide act has no existence 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. Procedure, 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 consequently, the action
taken under it.As stated earlier, the protection of Article 21 is wide enough
and it was further widened in the case of
Bandhua Mukti Morcha v. Union of India
and others in respect of bonded labour and weaker section of the society. It
lays down as follows:
Article 21 assures the right
to live with human dignity, free from exploitation. 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 exploiting him. Both the Central Government and the State
Government are therefore bound to ensure observance of the various social
welfare and labour laws enacted by Parliament 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 expanded scope of Article 21 has been explained by the Apex
Court in the case of
Unni Krishnan v. State of A.P. and the Apex Court itself
provided the list of some of the rights covered under Article 21 on the basis of
earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance.
It was observed in
Unni
Krishnans case
that Article 21 is the heart of Fundamental Rights and it has
extended the Scope of Article 21 by observing that the life includes the
education as well as, as the right to education flows from the right to life.
As a result of expansion of
the scope of Article 21, the Public Interest Litigations in respect of children
in jail being entitled to special protection, health hazards 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 Apex Court also included many of the non-justifiable Directive
Principles embodied under part IV of the Constitution and some of the examples
are as under:(a) Right to pollution free water and air.
(b) Protection of under-trial.
(c) Right of every child to a full development.
(d) Protection of cultural heritage.
Maintenance 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 expanded scope of Article 21. this scope further has
been extended even to innocent hostages detained by militants in shrine who are
beyond the
control of the state.
The Apex Court in the case
of
S.S. Ahuwalia v. Union of India and others it was held that in
the expanded
meaning attributed to Article 21 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 jeopardized 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 extinguished in clear
violation of Article 21 of the Constitution. While dealing with the provision of
Article 21 in respect of personal liberty, Hon'ble Supreme Court put some
restrictions in a case of
Javed and others v. State of Hariyana, AIR 2003 SC
3057 as follows: 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 context. The test of reasonableness is not a wholly subjective
test and its contours are fairly indicated by the Constitution. The requirement
of reasonableness runs like a golden thread through the entire fabric of
fundamental rights. The lofty ideals of social and economic justice, 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. Reasonableness 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 Apex 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 Fundamental Rights and Individual
Liberty, the ideals of social and economic justice cannot be given a go-by. Thus
it is clear that the provision Article 21 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.
New dimensions have been added to the scope of Article21 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 Apex 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 Article 21 of
the Constitution.
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Article
21 Of The Constitution Of India -
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