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Article 21 of the Indian Constitution: An In-Depth Analysis

Indian Constitution was constructed with the help of international documents, their experiences gained from the Behaviour and Rights of the Public. Universal Declaration of Human Rights (UDHR) 1948 greatly influenced and structured the drafting of the Indian constitution provides for ‘protection of life and personal liberty’ under Article 9 of UDHR. The Constituent Assembly of India being a signatory to the declaration adopted a similar provision as a fundamental right under Article 21.

Article 21 also corresponds to the Fifth Amendment of the American Constitution, Article XXXI of the Constitution of Japan, Article 40(4) of the Constitution of Eire 1937, and the 1946 Magna Carta of 1215. Article 21 is the procedural Magna Carta protective of life and liberty.[1]

Thus it occupies a unique place as a fundamental right in the Indian Constitution which guarantees the Right to Life and Personal Liberty to citizens and aliens which is enforceable against the state.

Introduction
Founders of the Constitution wanted it to be an adaptable document rather than a rigid one. If a law is made by the legislature and violates the provisions of the Constitution, the Court has the power to declare such a law ultra vires or invalid. Article 21 is the most pivotal fundamental human right around which other rights revolve. It is the most basic right spelled out as one of the fundamental rights, Right to Life and Personal Liberty, the provision of which is given under Article 21 of the Constitution.

Article 21 embodies a constitutional value of supreme importance in a democratic society[2]. It protects and entails many necessary rights under the two basic rights i.e. Right to Life and Personal Liberty. This right is the heart of the Constitution, the foundation of our constitution and if this Right is absent then it takes away the meaning of all the other rights as, without life, nothing would exist. In the entire constitution, the most interpreted and progressive article is article 21 because with the advent of time and the dynamic nature of the society the meaning and importance of it changes.

Article 21 - Protection of Life and Personal Liberty

According to Article 21 of the Indian Constitution, No person shall be deprived of his life or personal liberty except according to procedure established by law[3]
The object of this fundamental right is to prevent deprivation of life and encroachment of personal liberty except according to the procedure established by law. It is clearly envisaged that this right is provided against the State only.

Deprivation of life or encroachment of personal liberty if done by or on a Private Individual doesn’t fall under the ambit of Article 21. Here, the procedure established by law has a wide implication such as to the provisions related to Punishment or for Good. Preventive detention is the punishment which goes against this right but is sometimes necessary if done reasonably and the good may extend to including passive euthanasia.

This right is available not only to the citizens of India but also to the person who may not be a citizen of this country. Thus, those who are not citizens of India and come here as tourists or for some other reason will also be entitled to protection under this right. In Anwar v. State of J&K[4], it was held that the rights under Articles 20, 21, and 22 are available not only to citizens but also to persons which would include non-citizens. They also have a right to Life in this country Chairman, Railway Board v Chandrima Das[5]. However, this does not entitle the foreigners the right to reside and settle in India, according to Article 19 (1) (e).

Meaning of the word Life

With time the word life in Article 21 elongated itself and it does not only mean mere existence like an animal or just the right to breathe but to include the right to live a life with dignity and availing all the requirements to live a dignified life. Right to life is fundamental to our very existence without which we cannot live as human beings and includes all those aspects of life, which go to make a man's life meaningful, complete, and worth living.

In Chameli v State of Uttar Pradesh the court included shelter, food, water, clothing, clean environment, medical and education facilities as the requirements, basic facilities must be provided which helps a person live happily and in a manner that he/she adores. In totality, it may refer to the Right to livelihood and protection against inhumane treatment. In the case Kharak Singh v. State of UP[6] it was held that:
By the term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world.

It even includes the right to protection of a person's culture, tradition, heritage, and all the necessities which give meaning to a man's life. It includes the right to live in peace, to sleep in peace, and the right to repose and health. Thus, the bare necessities and basic requirements that are unavoidable and essential for a person are the core concept of the right to life.

Meaning of the word Liberty

Magna Carta, 1215 defines the liberty of the person and considers it as the most important aspect which in a nutshell provides that no person can be imprisoned until the procedure under the law of land. Dicey describes this right to personal liberty which prohibits arrest, physical coercion, or imprisonment.

Discussing the contemporary situations, the term liberty is widely interpreted by the Indian courts and widened its meaning through landmark judgments. The court emphasized that personal liberty is of wide amplitude covering a variety of rights and it is discussed further in the paper how the word liberty gained its essence and have a huge importance in the constitution of India.

Procedure Established by Law

The procedure established by law means that a law laid down and duly enacted by the statute or legislature is valid if it has followed the correct prescribed procedure followed by the Executives. By this doctrine, a law can be made which infringes and deprives a person’s right to life or personal liberty according to the procedure established by law.

So, if the Parliament passes a law, the courts cannot declare it unconstitutional, unless it is passed without the procedure established by law. This doctrine protects individual against the Executive actions only, it does not protect from the arbitrary legislative actions and whether the laws made by them is fair, just, reasonable and not arbitrary.

Procedure established by law
though, on the other hand, is a speedy mechanism as there are no checks and balances or any pressure from the judiciary, legislation is passed quickly without the extra process that is needed in due process of law but due to such expeditious process, it sometimes goes against the principles of equity and justice. It risks the life and personal liberty of individuals due to unjust laws made by the legislatures. To avoid such a situation courts stressed more on the due process of law.

Due Process of Law

Due process of law doctrine protects the person not only from the right to life and personal liberty but also see if the law made is fair, just, reasonable, and not arbitrary. According to Due Process of Law, the courts have the power to control the actions of both legislative as well as executive. If courts find out any law which is not fair and just from the point of view of Natural Justice, it will declare it as null and void.

Courts can question the Substantive laws i.e. what laws should be and the procedural laws i.e. how these laws will be implemented. Courts checks that if the legislature has the power to make the laws and that the laws are compliant with the natural justice principles. So if a law is passed by the legislature which is negative and causing an anomaly then the courts can nullify it and make it void. It gives the judiciary access to justice, equality, and fundamental fairness.

Procedure Established by Law vs Due Process of Law in India

Indian constitutional doctrine mentions the term Procedure Established by Law whereas American documents follow the Due Process of Law doctrine, but over time the boundaries became narrow between them. Earlier the original constitution used the words No person is to be deprived of his life or liberty without due process of law.

Then it is changed to No person shall be deprived of his life or personal liberty except according to procedure established by law by the drafting committee because firstly that liberty should be accompanied by the word personal, so that unnecessary interpretation and confusion may be avoided and secondly the statement Procedure established by law is more definite and is also mentioned in the Japanese Constitution of 1946.

Due Process of Law has gained much wider importance, but it is not explicitly mentioned in the Indian Constitution and framers of the constitution purposefully left it out. Dr. B. R. Ambedkar wanted the phrase Due Process of Law to be added within the meaning of article 21 of the Indian Constitution but on the contrary, Sir Alladi Krishnaswamy Aiyar proposed the idea of Procedure Established by Law and gave it much more relevance because according to him it will be difficult and cumbersome to bring a social legislations in future and due process of law will create a hindrance to it. But in the recent judgments of the Supreme Court, the due process is given much more significance than the procedure established by law.

After 1978 an interpretation is made by the judiciary and tries to inculcate ‘Due process of law’ as synonymous with the term ‘Procedure established by law’ to protect the rights of the individual. It was held that procedure established by law must be right, fair, just and reasonable and not arbitrary, oppressive or fanciful. Thus, the ‘procedure established by law’ has acquired the same importance in India as the due process of law in America.

Interpretation of Article 21 according to Traditional Approach

The scope and interpretation of Article 21 were a bit narrow till the 1950s, it takes us back to the famous case of A.K. Gopalan vs. State of Madras[7]. In this case, it was brought to attention that there was no provision in our Constitution against arbitrary legislation that deprives the right to life and personal liberty and it didn’t matter whether the law was just, fair and reasonable.

The phrase procedure by law was questioned and the contention was that if the legislature makes a law that infringes with the rights of the people and because of this clause its validity could not be challenged in a court of law if it is unjust, and unfair and unreasonable. The Preventive Detention Act was the gist of the case and Article 21 did not provide any protection against the law made by the legislature.

Thus in this case Supreme Court declined to infuse due process of law in Article 21 and held that the preventive detention act in accordance with article 22 fulfills the requirements of due process. It was also propounded that the significance of the American Due Process clause was embodied in the expression procedure established by law. The interpretation made by the Court was only for the protection against the infringement of personal liberty from wrongful confinement or false imprisonment of the physical body. Also personal liberty is related only to the body of a person or an individual. Thus, the earliest understanding of this provision was a narrow and procedural one. In due course of time, this traditional and narrow approach in interpreting Article 21 has been changed.

Interpretation of Article 21 according to Modern Approach

Till 1978, Article 21 protects the people against arbitrary executive actions but there was no protection against the arbitrary legislative actions which were not just, fair and reasonable. However, the case of Maneka Gandhi vs. Union of India[8] sheds its light on the question regarding the reasonability of the law enacted and provides for the procedure established by law.

There was a dramatic change in the attitude of the court and this case became the landmark judgment in interpreting the concept of Article 21. It impliedly included the phrase due process of law into the contents of Article 21. In this case, Maneka Gandhi was asked to surrender her passport under Section 10(3)(c) of the Act in the public interest. Later, a writ petition was filed by Maneka Gandhi under Article 32 of the Constitution in the Supreme Court challenging the order of the government of India as violating her fundamental rights guaranteed under Article 21 of the Constitution.

The Supreme Court stated the act of confiscating the passport was arbitrary and against the personal liberty of her. The judgment in the Gopalan case was overturned in Maneka Gandhi v. Union of India. The expression of personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights that constitute the personal liberty of a person and is given additional protection under Article 19. The right to live is not confined only to physical existence but also includes the right to live with human dignity.

Thus, a law coming under Article 21 must also satisfy the requirements of Art 19. In other words, a law made by legislation that deprives a person of his personal liberty must prescribe a procedure for such deprivation and infringement which must not be unfair, arbitrary, or unreasonable. Once the test of reasonableness is done to determine the validity of a law depriving and infringing a person of his liberty, such laws shall be void if it violates the principles of natural justice. By linking Art.21 with Art.19, the concept of ‘reasonableness’ and fairness is applied.

The concept of personal liberty began to be liberally interpreted by the Supreme Court in Kharak Singh v. State of UP[9] held that Personal Liberty used in Article 21 include within itself all the varieties of rights which go to make up the Personal Liberties of a person other than those dealt in Article 19(1).

In the case of Francis Coralie Mullin v. Union Territory of Delhi[10], it was enunciated that the procedure established by the law must be fair, reasonable, just, and not arbitrary, fanciful, or whimsical. And if any such laws are challenged then the court must look upon whether the procedure laid down by such law for depriving a person of his personal liberty is fair, just, and reasonable.

It was further observed in the case of Olga Tellis vs. Bombay Municipal Corporation[11] that just as a mala fide act has no existence in the eye of law then unreasonableness also vitiates law and procedures. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform to the norms of natural justice.

Provisions available under Article 21 at the time of Emergency
In A.D.M. Jabalpur v. S. Shukla[12], which is popularly known as habeas corpus case, there were contentions raised by the Supreme Court that due to the condition witnessed when a National Emergency is proclaimed under Article 359, the president can suspend the enforcement of all or any of the Fundamental Rights and it was seen that the reasonableness of preventive detention act under Article 21 was gravely misused, so to safeguard the personal liberty the 44th Amendment Act, 1976 declared that the Right to Protection in respect of conviction for offenses (Article 20) and Right to life and personal liberty (Article 21) not suspended even during Emergency, under Art. 352 and Art. 358.

The Extended Dimensions of Article 21

Under the canopy of Article 21, many rights have found their shelter and brought the importance which they carry with themselves. The expression of the right to life and personal liberty due to continuous scrutiny by various courts of law in the country and in numerous way has given an expansive interpretation. Article 21 in Maneka Gandhi’s case has ushered a new era of expansion of the horizons of the right to life and personal liberty.

The Supreme Court gave extended dimension to this article which now covers various aspects. It does not only connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes the right to live with human dignity, the right to pollution-free and clean air, the right to livelihood, etc. The expanded interpretation of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P.[13] and provides with itself the list of some of the rights covered under Article 21 which is now considered as the fundamental rights, some of them are given below:

Right to Livelihood

Initially, the Right to Livelihood was not considered to be included in Article 21[14]. The Supreme Court viewed that the right to livelihood would not fall within the expression of Right to Life in Art. 21. But after Maneka Gandhi’s case, Supreme Court reiterated this proposition and underwent a change. With the defining of the word life in Article 21 being extensively interpreted and in an expansive manner, the Court held that the right to life guaranteed by Art. 21 includes the right to livelihood[15].

The Supreme Court in Olga Tellis v. Bombay Municipal Corporation[16], popularly known as the Pavement Dwellers Case clearly implied that the right to livelihood is defined out of the right to life and no person can live without the means of Livelihood. Also in Sunil Batra v. Delhi Administration[17], the Court reiterated the above observations and held that the Right to Life included the right to lead a healthy life to enjoy all faculties of the human body.

Right to Live with Human Dignity

In the case, Bandhua Mukti Morcha v. Union of India[18], dignity is established in the theme of the right to life under Article 21. In this case, Bhagwati J. observed that:
It is the fundamental right of everyone in this country to live with human dignity free from exploitation, therefore, it must include protection of the health of workers, men, women, and children against any kind of abuse and harassment, there should be proper educational and medical 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."

It was held in Peoples Union for Democratic Rights v. Union of India that non-payment of minimum wages to the workers employed in various projects was a violation of their fundamental right contained in Art. 21 and denial to them their right to live with basic human dignity.

In Chandra Raja Kumar v. Police Commissioner Hyderabad and Francis Coralie v. Union Territory of Delhi, it has been held that the right to life includes the right to life with human dignity and decency all that goes along together with the basic necessities and facilities of life being fulfilled.

Right to Shelter

The Right to Shelter was considered as a necessary fundamental right as it comes under the basic necessity of a human being to be given proper secured residence and accommodation. The human being, unlike an animal, will need shelter to protect themselves. For impoverished people, the state must take reasonable actions to make their life meaningful by providing facilities and opportunities to build houses.

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited[19] the right to residence is secured under Article 19(1) (e) and guaranteed under Article 21. Also, in the case, Shantisar Builders v. Narayan Khimlal Totame[20] and Chameli Singh v. State of Uttar Pradesh[21], the Right to shelter and suitable accommodation was considered as a fundamental right and was stated to arisen out of the Right to reside provided under Art. 19(1) (e).

Right against Sexual Harassment

The fundamental rights within the Indian constitution guarantee all the facets of gender equality which include prevention against any kind of sexual harassment or abuse in the workplace. It was held that this deplorable act is the most violative of the Right to Life in Article 21.

In Vishakha vs. the State of Rajasthan[22], the Supreme Court declared sexual harassment or abuse of a working woman in a workplace amounts to the clear violation of rights under Articles 14, 15, and 21 of the constitution. This case laid down the relation between Article 21 and Protection of Women against any kind of sexual harassment or abuse. It was after this case, the Sexual Harassment of Women at Workplace (prevention, prohibition, and Redressal) Act, 2013 was passed.

Right for Prisoners

Article 21 provides for all the rights available to the prisoners in jail. A prisoner shall not be deprived of his life or personal liberty except by a procedure established by law. In Madhav Hayawandan Rao Haskot v. State of Maharashtra[23], the supreme court held that the convicts have the Right of Free Legal Aid and it is an integral part of the fair and just procedure followed by law, it was held that:
Provision of free legal services must be present to the prisoner who isn’t able to provide for themselves legal assistance. This right to provide for free legal aid is the duty of the government and is a pivotal aspect of Article 21 which ensures fairness and reasonableness.

In Hussainara Khatoon v. Home Secretary, State of Bihar[24], the Supreme Court noticed an alarming number of men, children, and women were incarcerated for more than the reasonable time who are awaiting for their trial in courts. It was held that detaining a prisoner for a period longer than what they would have been, poses a serious violation of the right to life or personal liberty. Also, it shows the horrendous and deplorable situation of the under-trial prisoners.

Thus it was stated that the Right to Speedy Trial is a fundamental right which guarantees the rights enshrined in Art. 21 of the Constitution and any accused who is denied the right of speedy trial can approach Supreme Court under Article 32. In Sunil Batra vs. Delhi Administration[25], the prisoner was kept in solitary confinement, subsequently, he filed a petition in the Supreme Court and it was held that solitary confinement is a major punishment and only the Courts hold the authority to grant such deprivation.

In the case of A.R. Antulay v. R.S. Nayak[26], Supreme Court laid down certain guidelines for ensuring speedy trial and enunciated that if a prisoner is held for more time then it will deprive him of the Right to Life and Personal Liberty as he is not an animal but a human being whose rights have to be respected in all aspects. Thus they laid down certain guidelines for ensuring speedy trial. Also in the case of Anil Rai v. State of Bihar[27], the Supreme Court brought the attention of the Judges to give quick judgments and to do the needful.

Right to Life does not include Right to Die

In Gian Kaur v. State of Punjab[28], the question before the court was that if the offense of attempting to commit suicide is void as being unconstitutional, while deciding the validity of Sec.309 of I.P.C., 1860 and that the right to die having been included in Art.21, the Court overruled the decision of the Division Bench in its previous views which was taken in P. Rathinam v. Union of India[29] case and held that right to life does not include right to die and the extinction of life is not included in the protection of life thus penalizing attempt to commit suicide is not violative under Art. 21 of the Constitution. The court further observed that Right to life is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of the right to life.

But Supreme Court has distinguished between Euthanasia and Attempt to Commit Suicide. Euthanasia is the termination of the life of a person who is in a permanent vegetative state and on a life support machine. It approves passive euthanasia and upholds the right to die with dignity. The court held that death due to termination of natural life is certain and imminent and the process of natural death has commenced.

Right to Privacy

It was the first time in Kharak Singh v. State of U.P[30] when questions were raised whether the right to privacy could be implied from Article 21 of the Indian Constitution. It was held that:
An unauthorized intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of man.

Though in this case it was observed that the right to privacy is not a guaranteed right under the Constitution but it paved the way for later elaborations on the right to privacy using Article 21.

After years of observation, the Supreme Court in the case of PUCL v. Union of India finally held that once the facts are proven that there has been a violation of the right to privacy then Article 21 is automatically attracted to it. This right is considered to be protective of the interest of the public and one’s personal life.

Right to Clean Environment

Under Article 21 the Supreme Court has made a significant contribution for the improvement of the environment and proper sanitation facilities which will improve the welfare and health of the person. M. C. Mehta's cases acted as the pioneer and opened a new horizon by including a pollution-free and clean environment as a component of the right to life. In Subhash Kumar v. State of Bihar[31], the Court held that enjoyment of a pollution-free environment and to live in a healthy environment is considered to be necessary to sustain one’s life.

Also in the case of A.P. Pollution Control Board v. M.V. Nayudu[32], the Supreme Court suggests reforms to improve machinery under the various environmental laws and certain natural resources like air, soil, sea, water are means for general use as these resources are the gift of nature and cannot be only restricted to private ownership.

The general public is entitled to the beneficiary from such resources. The concept of sustainable development was propelled in Vellore Citizens Welfare Forum vs. Union of India[33] and it was realized that there must be a balance between industrial growth and pollution in the environment.

Conclusion
The Right to life has emerged as the most pivotal right because other rights revolve around it and without it, they don’t hold any importance. The ambit of this right has widened up to include various necessary rights from time to time. Article 21 is regarded and declared as the heart of the Fundamental Rights by the Apex Court in the Unni Krishnan’s case.

Though initially the provisions of Article 21 were narrowly defined but gradually over time it developed and a liberal interpretation was given to it. New dimensions and scope have been added to Article 21 from time to time with various important judgments. Article 21 has been given a wider interpretation to the Indian judiciary and a number of rights are found in it. Thus Article 21 protects the rights of the people as a potent weapon.

End-Notes:
  1. Iyer, J
  2. P.N. Bhagwati, J.
  3. Indian Constitution, Article 21
  4. AIR 1971 SC 337
  5. AIR 2000 SC 998
  6. 1963 AIR 1295
  7. AIR 1950 SC 27
  8. 1978 AIR 597
  9. 1963 AIR 1295
  10. 1981 AIR 746
  11. 1986 AIR 180
  12. AIR 1976 SC 1207
  13. 1993 AIR 2178
  14. Re Sant Ram, AIR 1960 SC 932
  15. Board of Trustees of the Port of Bombay v. Dilip Kumar R. Nadkarni, AIR 1983 SC 109
  16. 1986 AIR 180
  17. 1980 AIR 1579
  18. AIR 1984 SC 802
  19. AIR 1996 SC 114
  20. (1990) 1 SCC 520
  21. Air 1996 SC 1051
  22. (1997)6 SCC 241
  23. AIR 1978 SC 1548
  24. AIR 1979 SC 1369
  25. 1980 AIR 1579
  26. AIR 1992 SC 170
  27. AIR 2001 SC 3173
  28. (1996) 2 SCC 648
  29. AIR 1994 SC 1844
  30. AIR 1963 SC 1295
  31. AIR 1991 SC 420
  32. AIR 1999 SC 812
  33. 1996 AIR 2715

    Award Winning Article Is Written By: Mr.Somik Jindal
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