1

GUJARAT NATIONAL LAW

UNIVERSITY

SEMESTER 1

LEGAL HISTORY

CONTINUOUS
EVALUATION

SUBMITTED TO: SUBMITTED BY:

Dr. RICHA SHARMA RAMACHANDRAN (19B200)

MURUGESAN
YASH AGARWAL (19B195)
NATASHA MATANGE(19B191)
MEGHA MEHTA (19B194)
ANSHA BHAGAT (19B198)
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Legal History of Article 21 and the concepts of right to life,

liberty, and due process

Index

S. No. Topic Page no.

1 Concept of Right to Life and Liberty in the ancient world 3

2 Under Hindu Legal System 4

3 Under Muslim Legal System 7

4 British Era 10

5 Legislative History of Article 21 11

6 Evolution of the various interpretations of Article 21 12

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Concept of Right to Life and Personal Liberty in Ancient

World

Right to life and personal liberty wasn’t a guarantee in ancient India, and for that matter, most
of the ancient world. Most of the time, it was in the hands of rulers to introduce human rights
in their policies. According to natural law theory, life is natural, and hence, sacrosanct and
sacred. In the very stages of the evolution of man, people lived more or less like untrained
animals and the supreme law of the jungle ,that is, survival of the fittest, persisted. All this
changed when organized society was evolved , a people realized the importance of their rights
(including their right to life). The most significant reality of the societal structure is the
interconnectedness of individuals. It is nearly impossible for people to live alone, by
themselves, without any interaction with the rest of society. The acknowledgement of the
interconnectedness of human society led to man living in a society.
The origin of these concepts are found in historic Greek literature. They acknowledged the
difference between the freedoms of the individual versus that of the society at large (the latter
is superior to the former). Pericles, an ancient Greek politician, delivered a speech during the
the funeral of his warriors who died during fighting. He said that the idea of liberty was a
mixture of two other ideas; firstly, the need for defence of the group against other groups, and
the fundamental desire of the group to realize to its full potential.1 The Greeks were of the view
that the State is the ultimate upholder of their fundamental rights and freedoms.

1.Thusydides and Pericles Funeral Oration (byrneathens.wordpress.com)

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Under Hindu legal system

The concept of liberty existed in ancient India even before the proliferation of Western
perspectives (due to the Age of Enlightenment) .
The Rigveda, one amongst the four Vedas, throws considerable light on the structure of the
society and social and political institutions existing in that age. In this period law, religion and
justice were closely interconnected and there was no clear cut demarcation in the above fields.
. The Rig Vedas gave provisions for liberty of body (Tana), dwelling house (Skridhi) and life
(Jibasi). The Santi Parva in the Mahabharata likewise portrayed the common freedom of the
person in a State. In Mahabharata, Bhishma was of the opinion that there was no law and order
before the existence of the State. The Matsya Nyaya (the law of fish) gives the doctrine of the
survival of the fittest. Bhishma further portrayed the political State as the result of the longing
of man for security and social request where man can live in harmony and develop and
assemble the his rewards for so much hard work Later Manu Smriti has briefly expressed and
sufficiently shown about the presence of the popularity based type of Government, where ruler
was fairly chosen and where the individuals had rights and freedoms.
As indicated by Manu 'equity keeps wakeful, while all are snoozing'. The insightful man
realizes that 'danda' must compare with 'dharma'. The individuals are fulfilled uniquely by the
correct organization of equity. The legitimate way of thinking of life and individual freedom
in India had its premise in mysticism which credited four measurements as Artha (want), Kama
(desire), Dharma (moral worth) and Moksha (absence of limitations).
The legal philosophy embodied these dimensions in the law codes of ancient India. These aims
of life also affected the social system, the political system and consequently, the judicial
system. Dharma regulated the civil and political rights. Dharma was not religion in the
technical sense but a code of conduct which regulated the whole expression of life. Further, the
concept of Dharma can safely be equated to 'Rule of law'.2
Sanskrit textual sources reveal that every individual has the right to secure justice. This is
evident from Atrisamhita, which laid down the state that has five fundamental duties to
perform. These are- to punish guilty, protecting the god, collecting taxes at reasonable rates,
rendering impartial justice to the litigants and protecting the nation. Having made the right to
impartial justice as one of the fundamental human rights, guidelines were also laid down to

2. P.V. Mukherjee, Civil Liberties, Ramanand Lectures of the Calcutta Univ.,(1968)

3. Dhananjay Vasudeo Dwivedi, Thoughts for Human Rights in Vedic Tradition (2009)
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ensure the above ideals. Some of them are: Cases should be decided according to law
uninfluenced by anger or greed. Judges must eschew favouritism, greed, fear enmity and secret
meeting of litigant as these constitute the basis of levelling charges against a judge that he is
biased. The king should not delay and examining the witness and deciding cases. A serious
defeat, mainly, miscarriage of justice would result owing to delay in the examination of
witnesses.3

Kautilya in his Arthashastra described political power as the combination of three forces
of shaktis, (i) the Mantra Shakti, (ii) the Prabhu Shakti, and (iii) the Utsaha Shakti, as the
fundamental governing principles of the State. Mantra Shakti involved the civil liberty of the
freedom of expression and participation in the process and policy of Governmental
decisions. Prabhu Shakti was the balance between civil liberty and administrative
control. Utsaha Shakti involved the civil liberty of equality before laws and access to and share
in public offices and administration. It is, therefore crystal clear from the study of Artha
Shastra that the State in India from its earliest times had an impression content which included
appreciation of the problems of civil liberty.4

In the Arthashastra, where miscarriage of justice was alleged to have taken place before a
Court, the king had threefold responsibility (a) he had to look into the matter himself and give
redress to the aggrieved party (b) he had to punish the officers and Sabhyas responsible for
miscarriage of justice and (c) if a suitor made an unfounded allegation that justice had not been
done to him, the king must punish him.5

Kautilya was an ardent supporter of espionage. He said: “When the king has set spies on the
officials, he should set spies on the citizens and the country people” (A.1.13.1,28). The list of
possible spies is overwhelming. “The administrator should station in the country (secret agents)
appearing as holy ascetics, wandering monks, cart-drivers, wandering minstrels, jugglers,

4.Roger Boesche, The First Great Political Realist: Kautilya and his Arthashastra (2002)
5. Ibid
6. Ibid
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tramps, fortune-tellers, soothsayers, astrologers, physicians, lunatics, dumb persons, deaf

persons, vintners, dealers in bread, dealers in cooked meat, and dealers in cooked rice.” 6

Some phrases in Manusmriti related to due process of law:

Neither king nor his servants instigate or suppress cases(Manusmriti VIII -43)- This rule was
applicable to civil matters and not criminal matters as it was the duty of the state to initiate civil
proceedings against the accused.

Neither innocent should be punished nor guilty should go unpunished(Manusmriti IX-249).7

In a case where Dharma has been injured and still the judges fail to remove injustice, such
judges are sure to suffer for their act or omission which is Adharma. (Manusmriti VIII-12).8

According to Manu Smriti, punishment cannot be enforced in a casual manner and the quantum
of punishment should be proportionate to the gravity of the crime committed.9

Harsha Vardhana was the last Emperor of Hindu India. He never forgot that the aim of the
Government was the welfare of the governed. He provided food and drinks and stationed
physicians with medicines for poor persons without any cost.. After the break of his empire,
that whole India was split up. The society too, in general, had degenerated. The philosophy of
human rights lost sight.10

7. Rama Jois, Ancient Indian Law: Eternal Values in Manu Smriti (2003)
8. Ibid
9. Ibid
9. John Keay, India: A History (2001)
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Under Muslim Legal System

The Muslim concept of the administration of justice is based on the teachings of the Holy
Qu’uran which may be described as the supreme legislative code of Islam which laid down
basic rules of justice. During Muslim rule over India, many significant changes were
introduced by Muslims in the Indian Legal system from time to time, the Islamic jurisprudence
was imported into India by Muslim Sultans and later on adopted by the Mughals with certain
modifications to suit the circumstances of the age and to satisfy the needs of the people of the
time. Under the Muslim Law, non-Muslim did not enjoy all the rights and privileges which the
Muslims did.

Firoz Shah establishes his theory of benevolence in the Fatuhat-i-Firoz Shahi, a book he is
supposed to have written, but only a portion of which is available. He said that previously,
much Muslim blood had been shed, and several inhumane methods of torture had been used
like dismembering limbs, ears, nose, eyes, breaking bones; burning, flaying people, etc.11

Firoz goes on to say that he had resolved that during his reign “no Muslim blood shall be shed
without just cause or excuse, that there shall be no torture, and that no human being shall be
mutilated.” 12

Firoz also wanted to impose Sharia law, which was ironic considering the fact the Sharia
include mutilation and dismembering in its repertoire of punishments. But Firoz mitigated the
severity of the criminal law by abolishing torture and mutilation as forms of punishment.13

11. Dr. A.K. Saxena, Society and State in Medieval India

12. Ibid

13. Ibid
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Criminal justice administration during the rule of Mohammad Tughlaq is of note. Al-Badayuni
says:
'The Sultan used to keep four Muftis to whom he allotted quarters in the precincts of his palace
so that when anyone was arrested upon any charge, he might in the first place argue with the
Muftis about his due punishment. He used to say 'be careful that you do not fail in the slightest
degree by defect in speaking that which you consider right because if anyone should be put to
death wrongfully the blood of that man will be upon your head.'
Sher-Shah improved his judicial system by appointing different officials
i.e. Shiqdar for the administration of criminal justice and Munsifs for the administration of
Civil Justice.14
The Mughal period is considered as the most important period of the Muslim rule in India.
The Mughal rulers especially with Akbar a new era began in the Mughal history of India in the
field of rights, with his policy of universal reconciliation and tolerance. He was earnestly
concerned with the welfare of his subjects. At one place, Akbar went to the extent of saying
that if he was guilty of an unjust act, he would rise in judgment against himself. This culture
was perpetuated by his son Jehangir as well. There was a popular legend that Jehangir arranged
a chain with bells to be hanged outside the palace to enable petitioners to approach him for the
redressal of their grievances. Strictly speaking, it was an easily accessible individual petition
system in comparison to our modern lengthy and expensive writ petition system.
The idea of justice of Akbar, the-Great, has been quoted by Vincent Smith from the 'Ain-I-
Akbari' the saying of Akbar, 'If I were guilty of an unjust act, I would rise in judgment against
myself'.
Jahangir banned dismemberment and allied inhuman punishments, and capital punishment was
to be inflicted only with prior permission. To afford easy and free access to justice, a box was
kept at the door of the Courthouse for lodging the complaints and key of the box used to remain
with the collector himself.
Aurangzeb introduced certain rules. He made such that nobody could be jailed without the
permission of a Qazi. An arrest warrant can’t be issued until and unless there was a prima-facie
case against the person in question. After their arrest, he should be brought to Court as soon as

14. Rama Jois, Legal and Constitutional History of India (1984)

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time permits and his case should be decided quickly. Indefinite detention without trial or
conviction was not allowed. Bail laws were also formulated in this time.15
Judicial corruption was made a crime by Aurangzeb. Any delay in justice resulting in loss of
the party could be compensated by the judge himself. Capital punishment was extremely rare.
The Shahi Firmans issued in 1772 to the Diwan of Gujarat illustrates the expediency of the
prevalent justice system . A few extracts:
“When a man is brought to the Chabutra (altar) of the Kotwal (Head of the city police) under
arrest by the Kotwals' man or revenue collectors, or an accusation by the private complaint
the Kotwal should personally investigate the charge against him. If he is found innocent release
him immediately. If anybody has a suit against him, tell the former to resort to a Court. If there
is any case of the crown land revenue Department against him, report the fact to the Subehdar,
take a stand as suggested by Subehdar and act accordingly. If a Qazi sends a man for detention
take the Qazi's signed order for his authority and keep the man in prison, if the Qazi fixes a
date for trial, sent the prisoner to the Adalat on that day otherwise send him there every day
so that his case may be quickly decided.”16

The extract shows the rights of the accused. There shouldn’t be any delay or lapses by the
officers.

The rights of the accused in some forms did exist during the Muslim rule of India, and they
illustrate how the liberties of a person can’t be taken away without any procedure established
by law.

15
A.B. Pandey, Society and Government in Medieval India (1965)
16. Ali Mohammed Khan, Mirt-i-Ahmadi, A Persian History of Gujarat
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British Era
With the beginning of the East India Company and its Government, the customary law
standards of England were step by step imported and applied alongside the precedent-based
law of the time in the organization of criminal equity without exasperating the prevalent legal
system. The English were smart enough to anglicize the current arrangement of justice
gradually and continuously. A major development in the development of rights was the drafting
of Mrs. Annie Besant's Common Wealth of India Bill, which contained seven fundamental
rights.

Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898 set the foundations for
the ‘procedure established by law’ aspect of Article 21;it gave rights likepresumption of
innocence, right to contest the charges, right to be produced in front of an officer, right to
know the grounds of arrest, right to a lawyer, right to sppedy trial right of authorization for
indictment, right of bail, and right of request and so on.

In 1928, Motilal Nehru was appointed as the Chairman of a Commission, which gave the Nehru
Report, the precursor of the Indian Constitution. Inalienable fundamental rights were
introduced in this report, including the right to life and personal liberty, and also the concept
of ‘procedure established by law’. This was continued in the Karachi session of the Indian
National Congress in 1931.
In 1945, the Sapru Committee made a recommendation for incorporating fundamental rights
in the future Constitution of India. The proposals made by the Sapru Committee were
recognized and rights were divided into justiciable and non-justiciable rights. It was for the
first time that the British Government through the cabinet mission conceded the demands for a
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Bill of Rights. Its proposal for constituting a Constituent Assembly for framing the Indian
Constitution also included recommendations for a Bill of Rights.17

Legislative history of Article 21

The administrative history illustrates the meaning and significance of Article 21.
Incorporated as article 15, as initially was article 21 for the present constitution as it stands
today. Article 15 recommended that " No person shall be deprived of his life and liberty
without due process of law.” Subsequently it was amended with regards to two aspects- 1)
The word 'personal' ought to be added before the word 'liberty' and 2) The term 'due process'
should be repealed and should be replaced by 'procedure established by law.' The
explanation given for the former change was that if the word 'personal liberty’ will not be
present then it may mean different kinds of liberties which are already mentioned under
article 13 (presently, article 19). In other words, it might be opened to various interpretations,
if not specified properly. That is why they, purposefully added the word 'personal' as the
Constitution never intended to provide extensive translation of the word 'liberty.' The latter
change was brought to clarify the fact that the substituted arrangement is progressively
explicit and gives lucidity as to what the Article needs precisely. However, the abuse of the
scope of the phrase 'due process' led to its substitution with the 'procedure established by
law'. Article 21 has been interpreted as far as its substance is considered and provides the
remedies to be made available.18

17John Keay, India: A History (2001)

18
Sukriti Yagyasen, Right To Life In India: A Conceptual Analysis and the Legislative History,The
Jurisprudential Essence Of Right To Life
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Evolution of the various interpretations of Article 21

Meaning and Concept of Right to life:

1. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted “By the term
“life” as here used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an armored
leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.”19
2. In the case of Sunil Batra v. Delhi Administration , the Supreme Court repeated with
the endorsement the above perceptions and held that the "right to life" incorporated the
right to lead a healthy life to enjoy all faculties of the human body in their prime
conditions. It would even incorporate the privilege to the assurance of an individual's
custom, culture, legacy, and everyone that offers significance to a man's life. It
incorporates the right to live in peace, to rest in harmony and the right to sleep and well
being.20

Right to life with dignity:

1. Maneka Gandhi v. UOI- The supreme court extended the scope of Article 21 by stating
that the right to life also includes human dignity and is not merely a physical right. The

19
AIR (1963) SC 1295, 1964 SCR (1) 332
20
AIR (1978) SC 1675, 1979 SCR (1) 392
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Court has deciphered Article 21 to have most stretched out conceivable abundancy. On
being indicted for wrongdoing and denied their freedom as per the technique set up by
law. Article 21, has set out another sacred and jail law. In Maneka Gandhi v.
Association of India, the legitimacy of Sec. 10(3)(c) of the international ID Act 1967,
which enabled the administration to seize the visa of an individual, in light of a
legitimate concern for the overall population was tested under the steady gaze of the
seven-judge Bench of the Supreme Court.

It was battled that, right to travel abroad being a piece of the right to "individual freedom" the
upbraided segment didn't endorse any system to deny her of her freedom and thus it was
violative of Art. 21. 21

1. This view was further formulated in the case of Bandhua Mukti Morcha v Union of
India]. It characterized Article 21 as the heart of fundamental rights, the court gave it
an expanded interpretation.22

2. Peoples Union for Democratic Rights v. Union of India – in this case, it was held that
non-payment of minimum wages in various ASIAD projects in Delhi was a denial to
them of the basic fundamental right to live with basic human dignity. 23

3. In Chandra Rajakumari v. Police Commissioner Hyderabad the Andhra Pradesh High

Court stated that Article 21 includes the right to live with human dignity and decency
hence beauty contests are repugnant to dignity or decency of women and violates
24
Article 21.

Right Against Sexual Harassment at Workplace:

21
AIR (1978) SC 597, 1978 SCR (2) 621
22
AIR (1984) SC 802, 1984 SCR (2) 67
23
AIR (1982) SC 1473, 1983 SCR (1) 456
24
AIR (1988) AP 302
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In the case of Vishaka v. State of Rajasthan- the Supreme Court has pronounced lewd
behavior of a working lady at her work as adding up to the infringement of rights of sexual
orientation balance and rights to life and freedom which is an unmistakable infringement
of Articles 14, 15 and 21 of the Constitution.25

Right against handcuffing:

Handcuffing has been held to be by all appearances cruel and in this manner irrational,
unreasonable and from the outset flush, self-assertive. It has been held to be outlandish and
violative of Article 21.

1. In Prem Shankar v. Delhi Administration, the Supreme Court struck down the Rules
that gave that each under-preliminary who was blamed for a non-bailable offense
culpable with over three years jail term would be routinely bound. The Court decided
that binding ought to be depended on just when there was "obvious risk of getaway" of
the blamed under - preliminary, breaking out of police control

Right to speedy trial:

The Supreme Court has analyzed the underlying driver for long pre-preliminary imprisonment
to wash present-day inadmissible and unreasonable guidelines for bail, which demands only
on budgetary security from the charged and their sureties. A significant number of the
undertrials being poor and poverty-stricken can't give any monetary security. Thus, they need
to grieve in jails anticipating their preliminaries.

1. In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice
of the Supreme Court that an alarming number of men, women, and children were kept
in prisons for years awaiting trial in courts of law. The Court held that detention of
under-trial prisoners, in jail for a period longer than what they would have been
sentenced if convicted, was illegal as violating Article of 21. The Court, thus, ordered

25
AIR (1997) SC 3011
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the release from jail of all those under-trial prisoners, who had been in jail for a longer
period than what they could have been sentenced had they been convicted26

2. In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme
Court dealt with the question and laid down certain guidelines for ensuring speedy
trial.27

3. In the case of Anil Rai v. State of Bihar, the Supreme Court directed the Judges of the
High Courts to give quick judgments and in certain circumstances, the parties are to
apply to the Chief Justice to move the case to other bench or to do the needful at his
discretion.28

Right to go abroad:
In Satwant Singh Sawhney v. D. Ramanatham, the Supreme Court has included the Right
to travel abroad contained in by the articulation "individual freedom" inside the importance
of Article 21. 29

Right to privacy:
1. In Govind v. State of Madhya Pradesh, The Supreme Court took a progressively
detailed examination of the right to privacy. For this situation, the court was
assessing the sacred legitimacy of Regulations 855 and 856 of the Madhya
Pradesh Police Regulations, which accommodated police observation of
ongoing wrongdoers including domiciliary visits and picketing of the suspects.
The Supreme Court halted from striking down these intrusive arrangements
holding that:

"It can't be said that reconnaissance by domiciliary visit would consistently be an outlandish

26
AIR (1979) SC 1369, 1979 SCR (3) 532

27
AIR (1988) SC 1531, 1988 SCR Supl. (1) 1

28
AIR (2001) SC 3173
29
AIR (1967) SC 1836, 1967 SCR (2) 525
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confinement upon the right of privacy. It is just people who are suspected to be routine culprits
and the individuals who are resolved to have a criminal existence that is exposed to
reconnaissance." 30

2. In R. Rajagopalan v. State of Tamil Nadu, The right to privacy of natives was managed
by the Supreme Court in the accompanying terms:

"(1) the right to privacy is certain morally justified to life and freedom ensured to the residents
of this nation by Article 21. It is a 'right to be not to mention'. A resident has an option to shield
the security of his own, his family, marriage, reproduction, parenthood, childbearing and
instruction among different issues. None can distribute anything concerning the above issues
without his assent – regardless of whether honest or generally and whether commendatory or
basic.

If he does as such, he would abuse the right to privacy of the individual concerned and would
be at risk in an activity for harm. Position may be that as it may, be extraordinary if an
individual wilfully pushes himself into discussion or intentionally welcomes or raises a
contention.

(2) The standard aforementioned is dependent upon the exemption that any production
concerning the previously mentioned perspectives ends up unobjectionable if such distribution
depends on open records including court records. This is for the explanation that once an issue
turns into a matter of open record, the right to privacy never again subsists and it turns into a
real subject for input by press and media among others.

We are, in any case, of the conclusion that in light of a legitimate concern for conventionality
[Article 19(2)] an exemption must be cut out to this standard, viz., a female who is the casualty
of a rape, seize, kidnapping or alike offense ought not further be exposed to the outrage of her
name and the episode being broadcasted in press/media." 31

30
AIR (1975) SC 1378, 1975 SCR (3) 946

31
1995 AIR 264, 1994 SCC (6) 632
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Degree and Content of Right to Privacy:

Radiating from the privilege of security is the subject of tapping of the phone.
In R.M. Malkani v. Province of Maharashtra, the Supreme Court held that the telephonic
discussion of a guiltless resident will be ensured by Courts against unfair or oppressive'
impedance by tapping the discussion. The assurance isn't for the liable resident against the
endeavors of the police to vindicate the law and forestall debasement of community workers.
Phone tapping is passable in India under Section 5(2) of the Telegraph Act, 1885. The Section
sets out the conditions and grounds when a request for the tapping of a phone might be passed,
however, no methodology for making the request is set down in that. 32
The Supreme Court in PUCL v. Association of India held that without just and reasonable
methodology for controlling the activity of intensity under Section 5(2) of the Act, it is
unimaginable to expect to shield the basic privileges of natives under Section 19 and 21. In like
manner, the court gave procedural shields to be seen before re-establishing to phone tapping
under Section 5(2) of the Act.
The Court additionally decided that the "right to security is a piece of the privilege to "life" and
"individual freedom" revered under Article 21 of the Constitution. When the realities in a given
case establish a privilege to protection; Article 21 is pulled in. The said right can't be
diminished "aside from as indicated by methodology set up by law". The court has additionally
decided that Telephone discussion is a significant feature of a man's private life. Ideal to
protection would positively incorporate phone discussion in the security of one's home or
office. Phone tapping would, in this way, infract Article 21 of the Constitution of India except
if it is allowed under the technique set up by law. The methodology must be simple, reasonable
and sensible." 33

Right to Reputation:

Reputation is an important aspect of a person’s life. It is an intricate and subtle part of a person’s
life yet quite indispensable. A worthwhile life cannot be lived without protection of one’s
reputation from harm.

32
1973 AIR 157, 1973 SCR (2) 417
33
AIR 1997 SC 568
 18

In the case of State of Maharashtra v. Public Concern of Governance Trust34, it was held that
good reputation was a very relevant element to a person’s life and that it game under the ambit
of personal security, a right protected by the constitution of India along with the right to enjoy
liberty and right to enjoyment of property.

The supreme court in reference to a landmark American case, of D.F. Marion v. Minnie Davis,
held that “the right to enjoyment of private reputation was of ancient origin and was necessary
to human society. The court affirmed the right to enjoyment of life, liberty, and property”35

This case was referred to in cases of State of Maharashtra v. Public Concern of Governance
Trust36, and in Smt. Kiran Bedi v. Committee of Inquiry37.

It has been held that the right to protection of reputation under Article 21 covers the reputation
of a person both during life as well as post death. Thus, any wrong that defames or hurts the
reputation of a right minded and respected person would fall within the ambit of Article 21
even if it were done posthumously.

A number of tests were laid down regarding the justification and defense of such disparaging
words or actions for a person whose conduct is to be judged before a court of law. In the case
of State of U.P. v. Mohammaad Naim, three tests were laid down:

 whether the party whose conduct is in question is before the court or has an opportunity
of explaining or defending himself.
 whether there is evidence on record bearing on that conduct justifying the remarks.
 whether it is necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognized that judicial pronouncements
must be judicial in nature, and should not normally depart from sobriety, moderation,
and reserve.38
The Supreme court held in a case, that a person has the right to his reputation and had the right

34
AIR 1989 SC 714
35
D.F. Marion v. Minnie Davis ,55 American LR 171
36 AIR (1989) SC 714
37
AIR (1989) SC 714
38 1964 SCR (2) 363
 19

to protect it, especially when it concerned authorities. It was made clear that in any case where
the authorities impugned upon the personal rights and reputation of a person in the discharge
of state duties, then he or she were to be a given a reasonable chance to defend themselves. It
was observed that the principles of natural justice made it mandatory for the person to get an
opportunity to speak before any further action.39

Right To Livelihood:

The apex court held that the right to livelihood does not form part of the right to life as ordained
under Article 21. In one of its judgements, the court stated that:
“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in
Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument
that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”40
This view initially underwent a change as in subsequent cases, it was held the definition of the
word “life” in Article 21 could not be contained and was expansive with no definite bounds,
and thus the scope of right to life did in fact include the right to livelihood.41
In one of its landmark judgements, the supreme Court held that the right to life directly implies
the right to livelihood as it is unreasonable to assume that a person can live life without having
means of livelihood. Thus, the Supreme Court in the case of Olga Tellis Vs. Bombay Municipal
Corporation held:
“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean,
merely that life cannot be extinguished or taken away as, for example, by the imposition and
execution of death sentence, except according to procedure established by law. That is but one
aspect if the right to life. An equally important facet of the right to life is the right to livelihood
because no person can live without the means of livelihood. The state may not by affirmative
action, be compelled to provide adequate means of livelihood or work to the citizens. But, any
person who is deprived of his right to livelihood except according to just and fair procedure
established by law can challenge the deprivation as offending the right to life conferred in
Article 21.”42
The fact that Article 21 implies a right to livelihood does not imply that livelihood must be

39
AIR (2003) SC 3357
40 AIR (1960) SC 932
41
AIR (1983) SC 109
42 AIR (1986) SC 180
 20

state provided. It means that a person’s livelihood cannot be threatened, taken away or
otherwise harmed unless done according to procedure established by law. In fact taking away
a person’s livelihood would be the easiest way to violate the right to life.
In a major case, it was held by the courts that a legislation or a rule providing power to an
authority to fire an employee who was hired on a permanent basis, without the provision of
any justification or any reasons to said employee was arbitrary and was in direct violation of
the right to life conferred under Article 21.43
In another case the courts held that an employee working for a public office on suspension
pending a departmental enquiry must be paid subsistence allowance. Not doing so would be
violative of his right to livelihood and by extension his right to life.44
On a similar note, a person can be deprived of such right if it is done for an act of public
importance and carried out by following due process in a just and reasonable manner. In such
a scenario no suit may lie. For example, the Supreme court held that land acquired by the State
by following due process, then even though the landowner suffers some loss, right life in this
scenario has not been violated. The justification for this is that the land acquired is for the
public domain. Moreover, the landowner is compensated for said land. Hence no plea lies.45

Right against torture:

The landmark case is D.K Basu vs. State of Bengal. Dilip K. Basu, a legal aid worker in Bengal,
filed a Public Interest Litigation regarding custodial deaths and torture at the hands of law
enforcement authorities. The Supreme Court heavily came down on these issues, and framed
policies regarding the same (the Court even came up with a pecuniary compensation
mechanism for the aggrieved). While custodial deaths are obviously an infringement of Article
21, torture was held to be falling within the category of violation of right to live life with
dignity, which is a part of Article 21.46

Right to Health:

Every person has the right to have access to decent living standards that is required for the

43
AIR (1991) SC 101
44 AIR 1999 SC 1416
45
AIR (1996) SC 1051
46 AIR (1997) 1 SCC 416
 21

maintenance of his or her family’s health such as food, shelter, access to clean drinking water
as well as medical supplies along with any other basic services such as sanitation and a hygienic
environment.
Article 21 includes the right to health as a direct extension of the right to life. It goes without
saying that to live a full life, health is paramount. A wholesome life is not possible only if a
person is in good health, both physically as well as mentally. There even are Directive
Principles of State policy that are based on the health of the citizens. These policies seek to
mandate the maintenance and improvement of the level of health and standard of living In the
community. One of the policies talks about provision of nutritious food, one about the health
of babies and children and another about the health of the workforce. The enforcement and
importance of the same is reinforced in the case of Vincent v. Union of India.47
It was held by the courts in the case of State of Punjab v. M.S. Chawla that the scope of right
to life under Article 21 of the Indian constitution extends to the right to health.48
In a landmark judgement in the case of Consumer Education and Research Centre v. Union of
India, the Supreme Court held that:
“Social justice which is a device to ensure life to be meaningful and livable with human dignity
requires the State to provide to workmen facilities and opportunities to reach at least minimum
standard of health, economic security and civilized living. The health and strength of worker,
the court said, was an important facet of right to life. Denial thereof denudes the workmen the
finer facets of life violating Art. 21.”49

Right to Medical Care:

The human right to medical care means that every person has access to at least some form of
medical coverage, the higher and more comprehensive the care, the better. What that means is
that everyone should have access to hospitals, clinics and medicines. More importantly people
should have ease of access to doctors’ services. These services should be available and of good
quality as well. Healthcare services should be distributed equitably as and when needed.
The Supreme Court clarifies, in its judgement, the importance of life as above all else. The
court stated that the preservation of life is that which takes precedence of all other motives,
reasons or factors at play because life once lost can never be recovered or brought back, thus

47 AIR (1987) SC 990

48
AIR (1997) SC 1225
49 AIR (1995) SC 922
 22

the status quo must be maintained. It is therefore the professional duty of all doctors and
medical officers whether working for the government or not to provide medical aid to the hurt
without any hassle or legal complications with the police.50
Article 21 puts the commitment on the state to safeguard life. It is the commitment of the
individuals who are responsible for the strength of the network to safeguard life with the goal
that the blameless might be protected and the guilty might be convicted. No law or state activity
can mediate to defer and release this vital commitment of the medical staff from their duty.
No law or State activity can intercede to maintain a strategic distance from/defer the release of
the principal commitment give occasion to feel qualms about individuals from the restorative
calling. The commitment being aggregate, supreme and fundamental, laws of methodology
whether in rule or generally which would meddle with the release of this commitment can't be
supported and should, thus, give way Every doctor whether working at a private hospital or
Government hospital or otherwise has the professional duty to provide his services with due
diligence for protecting and safeguarding life.
In the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal where the
victim of a train accident was suffering from multiple traumas to the head and torso and when
taken to the hospital he was denied treatment several times at different hospitals citing lack of
required facilities as a reason for refusing treatment.
In this case, the Supreme Court progressed the right to emergency treatment and proceeded to
state that the shortcomings with respect to the Government clinic to provide treatment to an
individual needing such treatment brings about the infringement of his right to life ensured
under Article 21. It recognized the constraint of finances to give power to such a right but it
mandated that it was necessary for the government to give the required resources for the benefit
of the people receiving urgent medical care.
In case after case, in courts and in form of legislations it has been stated that there should be
nothing in the way of provision of emergency medical care. In the case of Pravat Kumar
Mukherjee v. Ruby General Hospital & Others the courts held that a hospital has to accept
those that have been critically injured or have a vehicle related injury. Further the fact the
victim and/or their family being unable to meet the expenses is not a sufficient ground for
turning away victims. 51
An extremely crucial point to be noted here is that the Government is not allowed to shrug off

50
AIR (1989) SC 2039
51
(2005) CPJ 35 NC
 23

its constitutional duties just on the basis of insufficiency of funds. The court here is not allowing
the State to shy away from its duty to provide adequate medical facilities to the people.
However the court also holds that the medical facilities provided have to be within limits. As
it was held in the case of State of Punjab v. Ram Lubhaya Bagga the state does not have a
never-ending flow of money to spend which warrants the question of reasonableness i.e. the
amount the budget permits is to be spent.52

No Right to Die:

After the discussion of all these rights arises a complication. Whether the right to life includes
the right to die. It stands to reason that since Article 21 seeks to drive home the fact that the
life of a person belongs to them and that there can be no interference with said right, that would
mean a person should have the right to end it as well. But what about the fact that up until
recently attempting to commit suicide was a crime under Section 309 of the Indian Penal Code.
There always has been a huge difference of opinion behind the justification for each of these
sides. The courts and parliament both have had a difficult and a long winding history with this
very question.
This very issue was raised before a court for the first time in the year 1986. In the case of State
of Maharashtra v. Maruti Sripati Dubal, the court held that the scope of right to life under
Article 21 was broad enough to encompass the right to die as well. The decision was passed
and Section 309 of the IPC was struck down. Attempt to suicide had for the first time been
decriminalized.53
Soon, in the case of P. Rathinam v. Union of India a similar question was raised. In this case
the judges acknowledged the the judgement of the Mumbai High Court in the Dubal case which
held that the right to life also included the right to die. The court further stated that the right to
live does not simply mean surviving and that instilled in the right to live is the right to not live
a forced life that is not in someone’s wishes and that an attempt to suicide was not something
to be punished but a person asking for assistance.54
Next in line was a full court bench in the case of Gian Kaur V. State of Punjab. The issue
raised before the court was that if section 309 of the IPC had been struck down and attempt to

52
AIR (1998) SC 1703
53 1987 (1) Bom CR 499

54
AIR (1994) SC 1844
 24

suicide was no longer a crime then how could the act of abetting a suicide be a crime. In fact
the said act of abetting would actually be a person helping another person in his pursuit of
fundamental rights. The court in this case decided to overrule the earlier decision made by the
division bench in P. Rathinam v. Union of India and observed that the article of the constitution
giving rise to right of life could not be stretched and misconstrued to include extinction of life
in it. The court observed:
“……’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 right to life”55

Euthanasia and Right to Life:

Euthanasia is a completely different act than an attempt to commit suicide. Euthanasia is a way
out for a person who is dying, in pain or in a permanent vegetative state where the only
alternative is death, and where death is a kindness. This is because in these scenarios these
people are already at the end of their natural lives. In suicide however the natural span of a
person is shortened, i.e. the age they would have lived to if not for the suicide itself. Thus,
euthanasia seeks to speed up what has already happened.
Another justification for euthanasia is that the right to live with dignity also the right to die
with dignity. Thus, it pertains to a dying man being able to make his own choice as opposed to
an artificial death that reduces the lifespan of a person.
The Supreme Court allowed for passive euthanasia in Aruna Shanbaug v. Union of India.56

Sentence of death –Rarest of rare cases:

The debate on whether we should have capital punishment keeps on going. The issue however
was taken up by the Law Commission of India. After extensive research, carrying out of
surveys, analyzing views of other scholars and collection of any literature, the retention of
capital punishment was recommended by the Law Commission. The Law Commission in its
report stated that India as a country did not currently have the conditions necessary for such a
step. The population size, the culture, the way of life upbringing and community all pointed

55
AIR (1996) SC 946
56
AIR (2009) SC 115
 25

towards the fact that India was not ready to risk the ban of capital punishment i.e. the need for
maintenance of law and order took precedence.
The supreme Court in a landmark judgement in the case of Jagmohan v. State of U.P held
that awarding of death penalty was not against articles 14,19 or 21 it was on the judges to make
that choice. It was left to the judges whether a particular crime would warrant a life
imprisonment or the death penalty. This would only be done after the judges looked at the facts
and circumstances of the case and the nature of the crime that has been committed. Hence the
death penalty is only awarded in accordance with the procedure established by law and does
not contravene the provisions of Article 21.57
A dissenting judgement was passed in the case of Rajindera Parsad v. State of U.P in which
the court was of the opinion that the punishment of an individual with the death penalty would
not be justified unless and until it could be proved beyond reproach that said individual was a
threat to society.58
In the most important case on the topic though the Supreme court in Bachan Singh v. State
of Punjab held that it gives cognizance to the right of the state to take away from a person his
life in accordance to fair and reasonable procedure established by law. The court further stated
that the awarding of the death penalty for crimes like murder and rape was not violative of the
basic features of the constitution.59

Right to Clean Environment:

The ever evolving Indian jurisprudence has led to the declaration of a right to a clean
environment as a fundamental right under the ambit of Article 21. Violation of this right is
considered a violation of the right to life because it has immense potential to adversely affect
the way in which we live our lives. A few relevant cases are listed below:
Three M.C. Mehta vs. Union of India cases ( 1988, 1997 and 2006):
In the 1988 case, the Court ordered the closure of tanneries in Kanpur on the banks of the
Ganges, the effluents of which caused immense water pollution.60
In the 1997 case, the Court gave a policy structure to combat the acid rain (which reduced the
sheen of the Taj Mahal), which is caused by emission by factories in the Taj Trapezium Zone.61

57 AIR (1973) SC 947

58 AIR (1979) SC 916
59 AIR (1980) SC 898
60
AIR (1988) SC 1037
61
AIR (1997) SC 734
 26

In the 2006 case, the glaringly common misuse of housing complexes for commercial interests
was a violation Article 21 via this perspective.62
In Murli S. Deora v. Union of India, the Court held that non-smokers shouldn’t be exposed
to second hand smoke and its consequences by smokers. This adversely affects the life of non-
smokers without their consent and hence falls under a violation of right to life under this
category.63
In Milk Men Colony Vikas Samiti v. State Of Rajasthan, it was held that a right to clean
surroundings in fact does fall under the ambit of Article 21 as a clean environment is an
essential component of right to life. It also included the right against facing stray animals in
urban areas.64
In Vellore Citizens Welfare Forum v. Union of India the Court recognised the consequences
of the pollution caused by tanneries in the water supply chain. It issued directives to rectify the
same.65

Right to Know or Right to Be Informed:

In Reliance Petrochemicals Ltd. v. Proprietors, Indian Express Newspapers, Bombay Pvt.

Ltd., the right to know about the workings of the State falls under this interpretation of Article
21. Reliance had offered for public subscription, with permission from the Controller of Capital
Issues. This permission granted was challenged due to some legal issues, through writ petitions.
The Indian Express published a story that the Controller of capital issues hadn’t acted properly.
Reliance moved contempt proceedings. The court held that the aforementioned right is an
irreplaceable part of democratic functioning.66
In Essar Oil Ltd. v. Halar Utkarsh Samiti, the defendant, via PILs, managed to stop a few
oil companies drill in Gujarat, Essar oil one of them. They filed proceedings to ascertain the
rationale behind them being not allowed to drill. The Supreme court recognized the concrete
association between Article 21 and the right to know.67

62
(2006) 3 SCC 399
63
AIR (2002) SC 40: (2001) 8 SCC 765
64
(2007) 2 SCC 413
65
AIR (1996) SC 2721
66
AIR (1989) SC 190
67
Appeal (Civil) 352-353 of 2004
27