DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

ARTICLE-21

SUBJECT

CONSTITUTIONAL LAW - 1

NAME OF THE FACULTY

A. NAGESHWARA RAO

Name of the Candidate

D.SUMANTH

Roll No.
2018LLB120

SEMESTER 3

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher A.

NAGESHWARA RAO sir who gave me the golden opportunity to do this wonderful
project on the topic of (ARTICLE 21) which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful to them.
Secondly I would also like to thank my friends who helped me a lot in finalizing this
project within the limited time frame.

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 TABLE OF CONTENTS

INTRODUCTION................................................................................................................................. 4
MEANING AND CONCEPT OF ‘RIGHT TO LIFE’ ...................................................................... 4
RIGHT TO LIVE WITH HUMAN DIGNITY :- ............................................................................... 5
DEVELOPMENT OF RIGHT TO LIFE WITH HUMAN DIGNITY :-......................................... 9
RIGHT AGAINST SEXUAL HARRASMENT AT WORK PLACE :- ........................................ 12
RIGHT AGAINST RAPE :- ............................................................................................................. 13
RIGHT TO REPUTATION :- ........................................................................................................... 13
RIGHT TO LIVELIHOOD :-............................................................................................................ 14
RIGHT TO WORK NOT A FUNDAMENTAL RIGHT UNDER ART.21................................... 15
RIGHT TO SHELTER....................................................................................................................... 15
RIGHT TO SOCIAL SECURITY AND PROTECTION OF FAMILY :- .................................... 16
PROCEDURE ESTABLISHED BY LAW :- ................................................................................... 16
ARTICLE 21 AND THE EMERGENCY ......................................................................................... 19
COMPENSATORY JURISPRUDENCE :- ...................................................................................... 22
CONCLUSION :- ................................................................................................................................ 23
BIBLIOGRAPHY :- ........................................................................................................................... 25

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 INTRODUCTION :-
Article 21 reads as: No person shall be deprived of his life or personal liberty except according
to a procedure established by law.”

According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance

in a democratic society 398.” Iyer, J., has characterized Article 21 as “the procedural magna
carta protective of life and liberty. This right has been held to be the heart of the Constitution,
the most organic and progressive provision in our living constitution, the foundation of our
laws.

Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by
the “State” as defined in Article 121. Violation of the right by private individuals is not within
the preview of Article 21.

Article 21 secures two rights:

1. Right to life, and

2. Right to personal liberty.

The Article prohibits the deprivation of the above rights except according to a procedure
established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment
to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI
of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right to
reside and settle in India, as mentioned in Article 19 (1) (e).

MEANING AND CONCEPT OF ‘RIGHT TO LIFE’

Everyone has the right to life, liberty and the security of person. The right to life is undoubtedly
the most fundamental of all rights. All other rights add quality to the life in question and depend
on the pre-existence of life itself for their operation. As human rights can only attach to living
beings, one might expect the right to life itself to be in some sense primary, since none of the
other rights would have any value or utility without it. There would have been no Fundamental

1
Article 12

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Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section
will examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21
of the Constitution is not merely the physical act of breathing. It does not connote mere animal
existence or continued drudgery through life. It has a much wider meaning which includes right
to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.

Right to life is fundamental to our very existence without which we cannot live as a human
being and includes all those aspects of life, which go to make a man’s life meaningful,
complete, and worth living. It is the only article in the Constitution that has received the widest
possible interpretation. Under the canopy of Article 21, so many rights have found shelter,
growth, and nourishment. Thus, the bare necessities, minimum and basic requirements that are
essential and unavoidable for a person is the core concept of the right to life.

In the case of Kharak Singh v. State of Uttar Pradesh2, the Supreme Court quoted and 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 those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
armoured 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.

In Sunil Batra v. Delhi Administration3, the Supreme Court reiterated with the approval the
above observations and held that the “right to life” included the right to lead a healthy life so
as to enjoy all faculties of the human body in their prime conditions. It would even include the
right to protection of a person’s tradition, culture, heritage and all that gives 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.

RIGHT TO LIVE WITH HUMAN DIGNITY :-

The right to life is the important and most valuable fundamental right of the citizen and aliens
of India. Everyone has the right to life, liberty and security of person. The concept of life is not
possible to define in specific way or in a single word. It is true that life can be defined

2
1963 AIR 1295, 1964 SCR (1) 332
3
1980 AIR 1579, 1980 SCR (2) 557

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scientifically, theoretically or even philosophically. It is also said that law has its inherent
jurisdiction over all these aspects of life. According to the Oxford Dictionary ‘Life’ is a
condition that distinguishes animals and plants from inorganic matter, including the capacity
for response, growth, reproduction, functional activity, and continual change preceding death.
Every society has different norms to protect the human life and dignity of individual. The right
to life denotes the significance of human existence for this reason. It is widely called the highest
fundamental rights. Our Indian Constitution ensures in part III fundamental rights which are
designed to protect and preserve the basic rights of individuals from the violation of right to
life with human dignity. The concept of right to life and liberty as enriched in Article 21 of the
Constitution of India, being a guaranteed number of fundamental rights to the citizen and
noncitizen of India. The main intention of Constitution framer is to promote individual welfare
as well as social welfare. Right to life is the most precious fundamental rights amongst all
human rights. Undoubtedly its scope and applicability and with the advent of their modern
strides in jurisprudence with revolutionary pronouncement by the various court so has assumed
wider connotations and amplifications. Under this noble concept every citizen has guaranteed
the right to life and liberty. Article 21 imposes an obligation on the state to safeguard the right
to life of every person and preservation of human life is thus of paramount importance. The
concept of dignity under the Indian Constitution is significant any form of violence against
women is violation of the fundamental right to live with human dignified life. State has primary
duty to protect the right to live with human dignity as fundamental rights of each citizen.
Constitution has not given any specific provision about human dignity. Article 21 of
Constitution of India the right to life it has wider meaning which includes the right to life with
human dignity. It is fundamental right without which we cannot live as human being and
includes all those aspects of life which go to make a man’s life meaningful worth of life. Life
is not simply life physical act of breathing, it does not mean merely animal existence it has a
much wider meaning which includes right to live with human dignity.4 Chief justice of India.
S. Verma absolutely expressed views about right to life with human dignity, as “the right to
life is a recognised as a fundamental right under Article 21 of the Constitution of India. It is a
basic human right inherent in human existence with is not gift of any law. The law merely
recognised an inherent right and is not its source. Human rights are those rights has derived
from the natural law which have evolved out of natural rights inherent to people by virtue of
their being human and being a moral and rational nature and having a common capacity of

4
http://www.legalserviceindia.com/articles/art222.htm

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reason. This comprises a core base of basic guarantees, including the right to life, freedom form
torture or inhuman or degrading treatment or punishment, freedom from slavery, servitude and
forced labour, the right to free movement and the right to food and shelter”. This Article gives
a constitutional importance of rights to the every citizen. Justice Krishna Iyer has stated that,
Article 21 is characterised as protective of life and liberty and corresponds to the Magna Carta
case. The Magna Carta became the first document proclaims that the crown had legal rights
and the law could bind the monarch, it grants legal rights to the all men. In India the judiciary
has first and nicely interpreted in A. K. Gopalan v. state of Madras right to life as it is nothing
but fundamental freedoms which is guaranteed under Article 19 of the Constitution of India. It
means that the right to life is not merely a fundamental right it also basic right to an individual
i.e. no one should withdraw the life without following process of law. The important landmark
decision which leads to the widening the concept of Article 21 of Indian Constitution was in
the case of Maneka Gandhi v. Union of India of the world personal liberty, it covers variety of
many more fundamental rights i.e., right to speedy trial , Right to bail, right to against torture,
right to live with human dignity etc., and has made it obligatory on part of the state to fulfil on
many accepts, the term Life and personal liberty was elaborated in expensive meaning to move
beyond mere animal existence. It means that life is not confine to the certain limit. Therefore
no one can deprive the life without just and fair process of law. This case gave a new dimension

to the Article 21 and apex court held that right to live is not merely confined to physical
existence but it includes within its ambit the right to live with human dignity.

In Maneka Gandhi v. Union of India5, the Supreme Court gave a new dimension to Art. 21
and held that the right to live is not merely a physical right but includes within its ambit the
right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v.
Union Territory of Delhi observed that:

The right to live includes the right to live with human dignity and all that goes along with it,
viz., the bare necessities 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 mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.

5
1978 AIR 597, 1978 SCR (2) 621

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Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India6. Characterizing Art. 21 as the heart of fundamental rights, the
Court gave it an expanded interpretation. Bhagwati J. observed:

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 the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the 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 neither the Central Government nor any State Government-has the
right to take any action which will deprive a person of the enjoyment of these basic essentials.”

Following the above-stated cases, the Supreme Court in Peoples Union for Democratic
Rights v. Union of India, held that non-payment of minimum wages to the workers employed
in various Asiad Projects in Delhi was a denial to them of their right to live with basic human
dignity and violative of Article 21 of the Constitution.

Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under
various labour laws are clearly intended to ensure basic human dignity to workmen. He held
that the non-implementation by the private contractors engaged for constructing a building for
holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of
the provisions of these laws was held to be violative of the fundamental right of workers to live
with human dignity contained in Art. 21.

In Chandra Raja Kumar v. Police Commissioner Hyderabad7, it has been held that the right
to life includes right to live with human dignity and decency and, therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends Article 21 of the Constitution
only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. The

6
(1997) 10 SCC 549
7
1998 (1) ALD 810, 1998 (1) ALD Cri 298, 1998 (1) ALT 329

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government is empowered to prohibit the contest as objectionable performance under Section
3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan8, the Court struck down a provision of Bombay

Civil Service Rules, 1959, which provided for payment of only a nominal subsistence
allowance of Re. 1 per month to a suspended Government Servant upon his conviction during
the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21
of the Constitution.

Protection of health Workers. In occupational Health and Safety Association v. Union of

India, the writ petitioner represented about 130 Coal Fired Thermal Power Plants in India,
spread over different States. The lack of proper health, delivery system, evaluation of
occupational health status of workers, their safety and protection caused serious health hazards.
The Supreme Court held Right to health i.e., right to live in a clean, hygienic and safe
environment is a right flowing from Article 21. Clean surroundings lead to healthy body and
healthy mind. Right to live with human dignity enshrined in Article 21 derives its life from
the Directive Principles of State Policy, particularly clauses (e) and (f) of Articles 39, 41
and 42. Protection of health and strength of workers and just and humane conditions of work
included in these Articles are minimum requirements which must exist to enable a person to
live with human dignity. Every State has an obligation and duty to provide at least the minimum
condition ensuring human dignity. When workers are engaged in such hazardous and risky
jobs, the responsibility and duty of the State is double-fold. Since it was not practicable for the
Supreme Court to examine whether CFTPPs were complying with the safety standards and the
rules and regulations relating to health of the employees working in various CFTPPs
throughout the country, the Supreme Court felt that these aspects could be better examined by
the respective high courts in whose jurisdiction those power plants were situated. The high
court should examine the matter after calling for necessary reports from the CFTPPs situated
in their respective states.

DEVELOPMENT OF RIGHT TO LIFE WITH HUMAN DIGNITY :-

Right to life strives towards human well-being from the British Magna Carta case in the year
1215 and provides that “No free man shall be taken or imprisoned or deceased or outlawed or
banished or any ways destroyed, nor will the king pass upon him or commit him to prison

8
1983 AIR 803, 1983 SCR (3) 327

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unless by the judgment of his peers or the law of the land”. In the year of 1948 Universal
Declaration of Human Rights provides the Article 3 saying “Everyone has the right to life,
liberty and security of person” as well as in Article 9 provides that, “No one shall be subjected
to arbitrary arrest, detention or exile”. In 1950, European Convention on Human Rights also
provides Article 2 saying that “Everyone’s right to life shall be protected by law. No one shall
be deprived of his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law”. All these have considered a
human being as a physical entity and attempted to safeguard him from the excesses by rulers
or State by itself or violators of law. However, it is only In India that has envisaged the human
being in totality and strived for his complete wellbeing, all round development, prosperity and
freedom from suffering and attempted to protect the life from any kind of external aggression.

Our Constitution makers perceived the human being beyond a mere physical entity and
incorporated Article 21 in Indian Constitution as- No person shall be deprived of his life and
personal liberty except according to procedure established by law”. In order to Protection and
promotion of Indian citizens, the right to life and personal liberty, has been guaranteed by a
Constitutional provision, which has received a widest possible interpretation under the canopy
of Article 21 of the Indian Constitution. Right to life and personal liberty is basic for the
development of individual’s personality. This right implies a reasonable standard of comfort
and decency. Supreme Court of India has incorporating many more new rights. Because of
these human rights jurisprudence has been developed in India. It has paved the way to common
people to have a dignified life. The Supreme Court did liberal and dynamic interpretation of
Article 21 of the Constitution, the apex court evolved number of new fundamental rights
available as part and parcel of right to life enriched in Article 21. 9

Apex court interpreted the ambit of right to life very narrowly for almost three decades
spanning between 1950 and 1977, wherein, in the landmark judgment of Supreme Court in A.
K. Gopalan v. State of Madras it was held that, the right to life under Article 21 was mutually
exclusive of the fundamental freedoms guaranteed under Article 19 of the Constitution. This
means that Article 19 was not applying to a law affecting personal liberty to which Article 21
would apply. It was further held in the A. K. Gopalan Case that a law affecting right to life and
personal liberty could not be declared unconstitutional on grounds of its failure to guarantee
natural justice or due procedure.

9
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=2799

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Therefore, a law prescribing an unfair and arbitrary procedure could deprive a citizen of his
right to life and personal liberty as long as such law was enacted by a valid legislature. In
Gopalan case interpretation of Article 21 of the Constitution was that a procedure established
by law can deprive a person of his right to life. Earlier understanding of Article 21 was a narrow
and procedural one. It did not matter whether the law just and fair. It is observed that, the
expression personal liberty means only liberty relating to or concerning the person or body of
the individual. Justice Mukherjea observed that, personal liberty is the anti-thesis of physical
restrain or coercion. According to definition of Dicey ‘personal liberty means a personal right
not to be subjected to imprisonment, arrest or other physical coercion in any manner that does
not admit legal justification’. In 1963 apex court observed in Kharak Singh v. State of U.P. the
personal liberty was not only limited to bodily restraint or confinement to prisons only, but was
used as a compendious term including within itself all the verities of rights which go to make
up the personal liberty of a man other than those dealt within Article. In the year 1978 the
Supreme Court observed in Maneka Gandhi v. Union of India brought about a transformation
in judicial attitude attitude towards right to life and personal liberty guaranteed under the
Constitution of India.

Apex court not only overruled Gopalan’s case but widened the scope of the personal liberty
Justice Bhagwati observed ‘The expression personal liberty in Article 21 is widest amplitude
and it covers a variety of rights which go to constitute the personal liberty of man and some of
them have to the status of distinct fundamental rights and given additional protection under
Article 19’. The term ‘Life’ and ‘Personal Liberty’ were given an expansive meaning to move
beyond mere animal existence. The case also read in several fundamental rights into and as
part of right to life under Article 21 even though these rights were not expressly mentioned in
the Constitution of India.10

In 1981 Supreme Court gave expansion of the right to life was carried forward in subsequent
cases. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi the court held that,
‘the right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as adequate nutrition, clothing and shelter etc’. Apex
court in OligaTellis v. Bombay Muncipal Corporation wherein held that, the inhibition against
deprivation of life extends to those limits and faculties by which life is enjoyed. The Supreme
Court emphasized on point that, the right to life under Article 21 must be guarantee to Indian

10
http://www.voiceofresearch.org/doc/Sep-2013/Sep-2013_14.pdf

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citizen and aliens something beyond just the life of an animal to include the needs of a human
being. In case of P. Rathinam v. Union of India, that the term Life has been defined as ‘the
right to live with human dignity and the same does not connote continued drudgery, it takes
within its fold some of the graces of civilization which makes life worth living and that the
widened concept of life would mean the tradition, culture and heritage of the concerned’. One
of the most crucial development and expansion of the right to life under Article 21 of the
Constitution is the provision for inclusion of the social life of the person. Thus the fundamental
right to life guaranteed to all persons under the Constitution includes the right to live with
human dignity.

RIGHT AGAINST SEXUAL HARRASMENT AT WORK PLACE :-

Art. 21 guarantees the right to life right to life with dignity. The court in this context has
observed that:

The meaning and content of fundamental right guaranteed in the constitution of India are of
sufficient amplitude to encompass all facets of gender equality including prevention of sexual
harassment or abuse.”

Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan11, the Supreme Court has declared sexual harassment of a
working woman at her work as amounting to the violation of rights of gender equality and
rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution.
In the landmark judgment, the Supreme Court in the absence of enacted law to provide for
effective enforcement of basic human rights of gender equality and guarantee against sexual
harassment laid down the following guidelines:

All employers or persons in charge of workplace whether in the public or private sector should
take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this
obligation they should take the following steps:

Express prohibition of sexual harassment as defined above at the workplace should be notified,
published and circulated in appropriate ways.

11
AIR 1997 SUPREME COURT 3011

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The victims of Sexual harassment should have the option to seek transfer of perpetrator or their
own transfer.

In Apparel Export Promotion Council v. A.K. Chopra12, the Supreme Court reiterated the
Vishakha ruling and observed that:

There is no gainsaying that each incident of sexual harassment, at the place of work, results in
the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty
the two most precious Fundamental Rights guaranteed by the Constitution of India.

In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of
sufficient amplitude to encompass all facets of gender equality, including prevention of sexual
harassment and abuse and the courts are under a constitutional obligation to protect and
preserve those fundamental rights. That sexual harassment of a female at the place of work is
incompatible with the dignity and honour of a female and needs to be eliminated….”

RIGHT AGAINST RAPE :-

Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21.
Right to life right to live with human dignity. Right to life, would, therefore, include all those
aspects of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court held that:

Rape is thus not only a crime against the person of a woman (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the
victim’s most cherished of the fundamental rights, namely, the right to life with human dignity
contained in Art 21”.

RIGHT TO REPUTATION :-

12
1997 IIAD Delhi 12, 66 (1997) DLT 327

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Reputation is an important part of one’s life. It is one of the finer graces of human civilization
that makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis in
Smt. Kiran Bedi v. Committee of Inquiry13 held that “good reputation was an element of
personal security and was protected by the Constitution, equally with the right to the enjoyment
of life, liberty, and property. The court affirmed that the right to enjoyment of life, liberty, and
property. The court affirmed that the right to enjoyment of private reputation was of ancient
origin and was necessary to human society.”

The same American Decision has also been referred to in the case of State of Maharashtra v.
Public Concern of Governance Trust, where the Court held that good reputation was an
element of personal security and was protected by the constitution, equally with the right to the
enjoyment of life, liberty, and property.

In State of U.P. v. Mohammaad Naim, succinctly laid down the following tests while dealing
the question of expunction of disgracing remarks against a person or authority whose conduct
comes in consideration before a court of law:

• 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.

RIGHT TO LIVELIHOOD :-

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not
include the right to livelihood. In Re Sant Ram, a case which arose before Maneka Gandhi
case, where the Supreme Court ruled that the right to livelihood would not fall within the
expression “life” in Article 21. The court said curtly:

13
1989 AIR 714, 1989 SCR (1) 20

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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.

RIGHT TO WORK NOT A FUNDAMENTAL RIGHT UNDER ART.21

In Sodan Singh v. New Delhi Municipal Committee14, the five-judge bench of the Supreme
Court distinguished the concept of life and liberty within Art.21 from the right to carry on any
trade or business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on
trade or business is not included in the concept of life and personal liberty. Article 21 is not
attracted in the case of trade and business.

The petitioners, hawkers doing business off the paved roads in Delhi, had claimed that the
refusal by the Municipal authorities to them to carry on the business of their livelihood
amounted to the violation of their right under Article 21 of the Constitution. The court opined
that while hawkers have a fundamental right under Article 19(1) (g) to carry on trade or
business of their choice; they have no right to do so in a particular place. They cannot be
permitted to carry on their trade on every road in the city. If the road is not wide enough to be
conveniently accommodating the traffic on it, no hawking may be permitted at all or may be
permitted once a week.

The court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation and held
that “in that case the petitioners were very poor persons who had made pavements their homes
existing in the midst of filth and squalor and that they had to stay on the pavements so that they
could get odd jobs in the city. It was not the case of a business of selling articles after investing
some capital.”

In Secretary, State of Karnataka v. Uma Devi, the Court rejected that right to employment at
the present point of time can be included as a fundamental right under Right to Life under Art.
21.

RIGHT TO SHELTER :-

14
1989 AIR 1988, 1989 SCR (3)1038

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In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited15 the right to shelter
has been held to be a fundamental right which springs from the right to residence secured in
article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to

Upholding the importance of the right to a decent environment and a reasonable

accommodation, in Shantistar Builders v. Narayan Khimalal Totame, the Court held that:

The right to life would take within its sweep the right to food, the right to clothing, the right to
decent environment and reasonable accommodation to live in. The difference between the need
for an animal and a human being for shelter has to be kept in view.

RIGHT TO SOCIAL SECURITY AND PROTECTION OF FAMILY :-

Right to life covers within its ambit the right to social security and protection of family0. K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash
Chandra Bose, held that right to social and economic justice is a fundamental right under Art.
21. The learned judge explained that the right to life and dignity of a person and status without
means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for
meaning the right to life and that Right to Social Security and Protection of Family were an
integral part of the right to life.

In N.H.R.C. v. State of Arunachal Pradesh, (Chakmas Case), the supreme court said that the
State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise,
and it cannot permit anybody or group of persons to threaten other person or group of persons.
No State Government worth the name can tolerate such threats by one group of persons to
another group of persons; it is duty bound to protect the threatened group from such assaults
and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.

In Muralitharan Dayandeo Kesekar v. Vishwanath Pande Barde, it was held that right to
economic empowerment of poor, disadvantaged and oppressed dalits was a fundamental right
to make their right of life and dignity of person meaningful.

PROCEDURE ESTABLISHED BY LAW :-

The expression “procedure established by law” has been the subject matter of interpretation in
a catena of cases. A survey of these cases reveals that courts in the process of judicial

15
1996 AIR 114, 1995 SCC Supl. (3) 456

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interpretation have enlarged the scope of the expression. The Supreme Court took the view that
procedure established by law in Article 21 means procedure prescribed by law as enacted by
the state and rejected to equate it with the American due process of law.

But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure
prescribed by law for depriving a person of his life and personal liberty must be right, just and
fair” and not “arbitrary, fanciful and oppressive, otherwise it would be no procedure at all and
the requirement of Article 21 would not be satisfied. Thus, the “procedure established by law”
has acquired the same significance in India as the “due process of law” clause in America.

Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has said that though
our Constitution has no due process clause but after Maneka Gandhi’s case “the consequence
is the same, and as much as such Article 21 may be treated as counterpart of the due process
clause in American Constitution.”

Recently the Supreme Court has dealt with an increasing number of people sentenced to death
for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish
Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young
women by setting them on fire. In an unprecedented move, the court ordered both prisoners to
be publicly executed.

In a response to a review petition by the Attorney General against this judgment, the Supreme
Court in December 1985 stayed the public hangings, observing that “a barbaric crime does not
have to be met with a barbaric penalty.” The Court observed that the execution of death
sentence by public hanging is a violation of Article 21, which mandates the observance of a
just, fair and reasonable procedure.

Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the
Supreme Court on the ground inter alia, that it was violative of article 21. In Sher Singh v State
of Punjab, the Supreme Court held that unjustifiable delay in execution of death sentence
violates art 21.16

The Supreme Court has taken the view that this article read as a whole is concerned with the
fullest development of an individual and ensuring his dignity through the rule of law. Every
procedure must seem to be ‘reasonable, fair and just.’ The right to life and personal liberty has

16
http://www.academia.edu/1192854/10._RIGHTS_OF_PRISONERS

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been interpreted widely to include the right to livelihood, health, education, environment and
all those matters that contributed to life with dignity.

The test of procedural fairness has been deemed to be one that is commensurate to protecting
such rights. Thus, where workers have been deemed to have the right to public employment
and its concomitant right to livelihood, a hire-fire clause in favor of the State is not reasonable,
fair and just even though the State cannot affirmatively provide a livelihood for all.

Under this doctrine, the Court will not just examine whether the procedure itself is reasonable,
fair and just, but also whether it has been operated in a fair, just and reasonable manner. This
has meant, for example, the right to speedy trial and legal aid is part of any reasonable, fair and
just procedure. The process clause is comprehensive and applicable in all areas of State action
covering civil, criminal and administrative action.17

The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora
union of India observed that the fundamental right guaranteed under Article 21 of the
Constitution of India provides that none shall be deprived of his life without due process of
law. The Court observed that smoking in public places is an indirect deprivation of life of non-
smokers without any process of law. Taking into consideration the adverse effect of smoking
on smokers and passive smokers, the Supreme Court directed the prohibition of smoking in
public places.

It issued directions to the Union of India, State Governments and the Union Territories to take
effective steps to ensure prohibition of smoking in public places such as auditoriums, hospital
buildings, health institutions etc. In this manner, the Supreme Court gave a liberal interpretation
to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers.

Further, when there is an inordinate delay in the investigation – it affects the right of the
accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the
investigating authority pursues the investigation as per the provisions of the Code, there can be
no cause of action. But, if the case is kept alive without any progress in any investigation, then
the provisions of Article 21 are attracted and the right is not only against actual proceedings in
court but also against police investigation.

The Supreme Court has widened the scope of ‘procedure established by law’ and held that
merely a procedure has been established by law a person cannot be deprived of his life and

17
http://www.lawprofiles.co.in/article.aspx

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liberty unless the procedure is just, fair and reasonable. It is thus now well established that the
“procedure established by law” to deprive a person of his life and personal liberty, must be just,
fair and reasonable and that it must not be arbitrary, fanciful or oppressive, that the procedure
0to be valid must comply with the principles of natural justice.

ARTICLE 21 AND THE EMERGENCY

In A.D.M. Jabalpur v. S. Shukla18, Popularly known as habeas corpus case, the supreme court
held that article 21 was the sole repository of the right to life and personal liberty and therefore,
if the right to move any court for the enforcement of that right was suspended by the
presidential order under Article 359, the detune would have no locus standi to a writ petition
for challenging the legality of his detention.

Such a wider connotation given to article 359, resulted in the denial of the cherished right to
personal liberty guaranteed to the citizens. Experience established that during the emergence
of 1975, the fundamental freedom of the people had lost all meanings.

In order that it must not occur again, the constitution act, 1978, amended article 359 to the
effect that during the operation of the proclamation of emergency, the remedy for the
enforcement of the fundamental right guaranteed by article 21 would not be suspended under
a presidential order.

In view of the 44th amendment, 1978, the observation made in the above-cited judgments are
left merely of academic importance.

RIGHT AGAINST HONOUR KILLING :-

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P., took serious note
on harassment, in ill-treatment and killing of a person who was a major, for wanting to get
married to a person of another caste or community, for bringing dishonour to family since inter
caste or inter-community marriage was not prohibited in law, the court said that such practice
of “honour killing” was a blot on society. The court, therefore, directed the police to take strong
measures, against those who committed such ‘honour killing’.

RIGHT TO HEALTH :-

18
1976 AIR 1207, 1976 SCR 172

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In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India , emphasized that a healthy body is the very
foundation of all human activities.Art.47, a Directive Principle of State Policy in this regard
lays stress note on the improvement of public health and prohibition of drugs injurious to health
as one of the primary duties of the state.

In Consumer Education and Research Centre v. Union of India, the Supreme Court laid
down that: Social justice which is a device to ensure life to be meaningful and liveable 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.”

RIGHT TO MEDICAL CARE

In Parmanand Katara v. Union of India, the Supreme Court has very specifically clarified
that preservation of life is of paramount importance. The Apex Court stated that ‘once life is
lost, status quo ante cannot be restored.’ It was held that it is the professional obligation of all
doctors (government or private) to extent medical aid to the injured immediately to preserve
life without legal formalities to be complied with the police.

Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are
in charge of the health of the community to preserve life so that the innocent may be protected
and the guilty may be punished. No law or state action can intervene to delay and discharge
this paramount obligation of the members of the medical profession.19

No law or State action can intervene to avoid/delay the discharge of the paramount obligation
cast upon members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure whether in statute or otherwise which would interfere with the
discharge of this obligation cannot be sustained and must, therefore, give way. The court also
observed:

Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether
he be an innocent person or a criminal liable to punishment under the laws of the society, it is

19
http://www.cehat.org/rthc/paper3.htm

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the obligation of those who are in charge of the health of the community to preserve life so that
the innocent may be protected and the guilty may be punished. Social laws do not contemplate
death by negligence to tantamount to legal punishment…. Every doctor whether at a
Government hospital or otherwise has the professional obligation to extend his services with
due expertise for protecting life.”

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal, a person
suffering from serious head injuries from a train accident was refused treatment at various
hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide
treatment.

In this case, the Supreme Court further developed the right to emergency treatment and went
on to state that the failure on the part of the Government hospital to provide timely medical
treatment to a person in need of such treatment results in the violation of his right to life
guaranteed under Article 21. It acknowledged the limitation of financial resources to give effect
to such a right but maintained that it was necessary for the State to provide for the resources to
give effect to the entitlement of the people of receiving emergency medical treatment[l].

It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others,
it was held that a hospital is duty bound to accept accident victims and patients who are in
critical condition and that it cannot refuse treatment on the ground that the victim is not in a
position to pay the fee or meet the expenses or on the ground that there is no close relation of
the victim available who can give consent for medical treatment.20

The court has laid stress on a very crucial point, viz., the state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the
people. The state cannot avoid its constitutional obligation to provide adequate medical
services to people on account of financial constraints.

20
http://www.lawyersclubindia.com/articles/Honour-Killing-A-heinous-crime-4985.asp#.UzXD3KiSySo

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But, in State of Punjab v. Ram Lubhaya Bagga, the Supreme Court has recognized that
provision of health facilities cannot be unlimited. The court held that it has to be to the extent
finance permits. No country has unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India, right to get free and

timely legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A
policy decision in formulating a contributory scheme for ex-servicemen and asking them to
pay one-time contribution does not violate Art. 21 nor is it inconsistent with Part IV of the
constitution.

COMPENSATORY JURISPRUDENCE :-

Compensation in case of fundamental rights. State has to provide rigorously and damage
shouldn’t be done. Compensation to victims is a recognised principle of law being enforced
through the ordinary civil courts. Under the law of torts the victims can claim compensation
for the injury to the person or property suffered by them. It is taking decades for the victims to
get a decree for damages or compensation through civil courts, which is resulting in so much
hardship to them. The emergence of compensatory jurisprudence in the light of human rights
philosophy is a positive signal indicating that the judiciary has undertaken the task of protecting
the right to life and personal liberty of all the people irrespective of the absence of any express
constitutional provision and of judicial precedents.

RUDUL SHAH v. STATE OF BIHAR :

He was unnecessarily detained in Bihar jail for 12 years though court ordered for release in
1868 yet he was detained till 1980. Writ of habeus corpus is filed. Court awarded compensation
amounting to 35000. His freedom was taken away against Art-21.

SEBASTIAN M. HUNGARY V. UOI

Two villagers were taken away by army for interrogation. Writ of habeus corpus was filed.
Govt. couldn’t find where abouts. Liberties were taken away.

CHALLA RAMAKRISHNA REDDY V. STATE OF AP

He was in jail. He sought security due to risks. They didn’t provide. He was killed then. His
wife filed a case Though a sovereign function , yet life was taken away. Compensation was
given.

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NAGENDRA RAO V. STATE OF AP

Rice grains were seized. But they were in consonance with law. Collected ordered to return.
Executive didn’t return. They were damaged. He filed a case. Govt. conducted search and
seizure. SC held that due to negligence it was happened and compensation was given.

PUDR V. DEPUTY COMMISIONER OF POLICE

A labourer was engaged by police to clean Police station who works from morning to evening.
In evening he asked for wages. Then he was succumbed to injuries. Later he died to injuries
after four days. PUDR files a PIL. State is liable to pay compensation

BOMA CHARAN ORAN V. STATE OF BIHAR.

Police authorities joined a person in lunatic asylum for treatment. After he was cured authorities
asked police to take back. They didn’t care. Due to that he was kept in lunatic asylum
unnecessarily for 6 years. Afterwards he was released. Due to police inaction he suffered from
mental agony for which SC granted 15000.

BHIM SINGH V. STATE OF JAMMU AND KASHMIR :

MLA was detained by police in guest house and was prevented from attending assembly
section. So he was awarded with 50,000 as damages.

SAHELI V. DEPUTY COMMISIONER OF POLICE, DELHI :

In Saheli v. Commissioner of Police', the Supreme Court directed the Delhi Administration to
pay Rs. 75,000/- as exemplary compensation to the mother of a 9 years old child who died due
to beating by the police officer.

CONCLUSION :-

In the Constitution. Along with the right to life and personal liberty guaranteed to live there. It
is with life and liberty, property, freedom from the capitalist point of view points, which was
included in the Constitution was the only American. 'Law' or 'due process and personal liberty
is the right to life, without exception, one of the exceptions enumerated in the Constitution.
The constitutional level, and thus the right to life and personal liberty to be filed initially in a
limited access. It is interesting to note that the life and freedom is the right of the Constitution.
Now coming to the international level. Forming part of the lives of individual freedom and

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human rights, the rights, the Constitution has not deviated from that experience was to enforce
human rights have been an effective and powerful instruments.21

Magna carta of human rights to life and personal liberty or personal freedom of action ride over
the operation of the misaction shows a concern. There is also a political "No person except in
accordance with procedures established by the law of his life or personal liberty shall not be
denied.": Article 21 of the Maneka Gandhi's decision earlier, in Section 21, only the citizens
against the arbitrary right to life and personal liberty, and is not guaranteed to legislative action.
This is a valid law can support his actions by the citizens of the state cannot interfere. Maneka
Gandhi, but later decided to Section 21 of Executive action and not only individual freedom
but protect the rights of citizens in the legislative process.

If the terms of a person can be deprived of his life or personal liberty, first, to be a law, and
secondly, the method, provided that the only fair and reasonable that, there is a procedure
prescribed by law. Celebrity provisions of Section 21 of the Indian Constitution, and as a basic
right to occupy a unique place. It is the right to life and liberty of citizens and aliens personal
guarantees and are enforceable against the state. Maneka Gandhi's case, a new interpretation
of Section 21 of the right to life and personal liberty of the horizon is the beginning of a new
era. The founding fathers of the Constitution to give the dimensions cannot be visualized or
that covers various aspects. 'Right to life' and 'personal freedom' of the modern name for what
traditionally has been known as a 'natural right.' It is necessary for the development of the
human personality is right primitive. Each of the other people all the time, because it is contrary
to the fact that the only rational and moral The right to life and personal liberty in this part of
the test case in the Indian judicial system, which is shown to improve the interpretation of the
latter method. Thus, 21 of the Constitution the right to life of a civilized considerably explains
the meaning of the right to life, which has been extended by the Indian Supreme Court. Section
21 of the next part of the composition of the Indian judiciary interpreters and creativity in order
to understand the meaning of judicial activism will be discussed.

21
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/

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 BIBLIOGRAPHY :-

• http://rshrc.nic.in/07%20Human%20Right%20Article-21.pdf
• http://www.legalserviceindia.com/articles/art222.htm
• http://www.voiceofresearch.org/doc/Sep-2013/Sep-2013_14.pdf
• http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=2799
• http://www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India
• http://www.academia.edu/1192854/10._RIGHTS_OF_PRISONERS
• http://www.lawyersclubindia.com/articles/Honour-Killing-A-heinous-crime-
• http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/
• M.P., Indian Constitutional Law, 6thEd., LexisNexis Butterworths Wadhwa Nagpur,
Gurgaon, 2010, p.1200

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