WIDE INTERPRETATION OF THE RIGHT TO LIFE:

The question of enforceability*

INTRODUCTION

The Indian judiciary has time and time again interpreted article 21 of the Indian constitution in
new and innovative ways in order to bring relief to the oppressed. This research aims to review
the judicial interpretation of right to life and analyze the current trend.

The scope of this article is to research into the judicial enforcement of article 21 and to determine
whether such interpretation has always been effective and to provide solutions.

The Primary sources relied upon are select constitutions of the world, judgements and
Constituent Assembly Debates.

Secondary sources relied upon are legal commentaries, articles, websites and newspaper articles.

The article has been divided into 4 main parts. The first part deals with the expression “due
process of law” and its relation with article 21.Part 2 deals with the relation of article 21 with
human rights. Part three deals with the wide interpretation that has been given to article 21. The
final part deals with the effectiveness if said interpretation. It also aims to scrutinize whether this
zeal to interpret article 21 in new ways has led to lawyers extraversion. After that come the
conclusion and the solutions offered.

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 DUE PROCESS OF LAW

Article 21 of the Constitution says, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”

Maneka Gandhi v. Union of India1 is not only a landmark case for the interpretation of Article 21
but it also gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to
Maneka Gandhi‟s decision, Article 21 guaranteed the right to life and personal liberty only
against the arbitrary action of the executive and not from the legislative action. Broadly
speaking, what this case did was extend this protection against legislative action too.

The concept of „personal liberty‟ first came up for consideration of the Supreme Court in A.K.
Gopalan vs The State Of Madras2. In this case, the Petitioner had been detained under Preventive
Detention Act, 1950. The petitioner challenged the validity of his detention on the ground that it
was violative of his Right to freedom of movement under Art. 19(1)(d), which is the very
essence of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the words
„personal liberty‟ include the freedom of movement also and therefore the Preventive Detention
Act, 1950 must also satisfy the requirements of Art. 19(5). It was further argued that Art. 21 and
Art. 19 should be read together as Art. 19 laid out the substantive rights while Art. 21 provided
procedural rights. It was also argued that the words “procedure established by law” actually
meant “due process of law” from the American Constitution which includes principles of natural
justice and the impugned law does not satisfy that requirement.

Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to the
phrase „personal liberty‟ by Dicey, held that the phrase „personal liberty‟ in Art. 21 meant
nothing more than the liberty of the physical body, that is, freedom from arrest and detention
without the authority of law. According to majority, the term „liberty‟ was wider in meaning and
scope than „personal liberty‟. Hence, while „liberty‟ could be said to include Art. 19 within its
ambit, „personal liberty‟ had the same meaning as given to the expression “liberty of the person”

* Abhinav Pandey, Student, 4th year, Amity Law School, New Delhi.
1
Maneka Gandhi v. Union of India (1978) 2 S.C.R. 621
2
A.K. Gopalan v. The State Of Madras 1950 AIR 27

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under English law. Hence, the majority took the view that Art. 19 and Art. 21 deal with different
aspects of liberty. The Court further interpreted the term „law‟ as „State made law‟ and rejected
the plea that the term „law‟ in Art. 21 meant jus naturale or principles of natural justice.

It is pertinent to mention here that in A.K. Gopalan‟s case, the attention of the Supreme Court
was drawn to the legislative history of Art. 21 which showed why the expression “due process of
law” was replaced by “procedure established by law”. The constitution makers felt the original
expression imposed an “undue burden” on the judiciary. However, it is unfortunate that the
legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the substance of
“due process” was reintroduced, was not brought to the attention of the Supreme Court.

But this restrictive interpretation of the expression „personal liberty‟ has not been followed by
the Supreme Court in its later decisions. Like for example, in Kharak Singh‟s case, it was held
that “personal liberty” was not only limited to bodily restraint but was used as compendious term
including within itself all the varieties of rights which go to make up the personal liberty of man
other than those dealt within Art. 19(1).

In Maneka Gandhi‟s case, the meaning and content of the words „personal liberty‟ again came up
for the consideration of the Supreme Court. In this case, the petitioner‟s passport had been
impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Here, the Supreme
Court not only overruled A.K. Gopalan‟s case but also widened the scope of words „personal
liberty‟ considerably. Bhagwati, J. observed:

“The expression „personal liberty‟ in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.”

With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 is
controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The Court observed:

“The law must therefore now be settled that Article 21 does not exclude Article 19 and that even
if there is a law prescribing a procedure for depriving a person of personal liberty, and there is
consequently no infringement of the fundamental right conferred by Article 21 such a law in so

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far as it abridges or takes away any fundamental right under Article 19 would have to meet the
challenges of that Article.”

Thus a law “depriving a person of „personal liberty‟ has not only to stand the test” of Article 21
but it must stand the test of Art. 19 and Art. 14 of the Constitution.

The Supreme Court in the 2010 case, Selvi v. State of Karnataka3 asserted that substantive due
process is a „guarantee‟ under the Indian Constitution. In Union Of India v. R. Gandhi 4 opinion,
the Supreme Court has remarkably applied loose constitutional principles rooted in its
understanding of “fairness” or constitutional “basic structure” to ordinary law, much in the same
way as Justice Frankfurter would have done in the American due process cases.

DUE PROCESS IN U.S.A AND U.K.

The fifth and fourteenth amendments to the American Constitution provide that life, liberty and
property cannot be deprived without “due process of law.” This seemingly innocuous phrase,
borrowed, oddly, from per legem terre in the Magna Carta, acquired a nuanced meaning in the
American constitutional context, consequent to years of judicial exposition.

Over time, the phrase acquired “substantive” and “procedural” meanings, each of which
enhanced the powers of the judiciary. For example, in exercise of powers conferred by the “due
process” clause of the Constitution, American courts would create “new” or unenumerated
rights. Most notably, these were the rights to abortion, marriage, homosexuality, the use of
contraceptives, child-rearing, and so on. The “due process” clause mandated harmonious
constitutional interpretation, and enabled American courts to apply federal constitutional
standards against the States on principles of “fairness” or “ordered liberty.” Interestingly, in the
Magna Carta the phrase “due process of law” was meant to curb the powers of the royal judiciary
in favour of the feudal baronage, quite contrary to the spirit of judicial activism that is now
attributed to the clause.

3
(2010) 7 S.C.C. 263
4
(2010) 11 SCC 1

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ARTICLE 21 AND INTERNATIONAL HUMAN RIGHTS DOCUMENTS

While international treaties do not automatically become part of domestic law upon ratification, 5
the Constitution provides, as Directive Principles of Sate Policy, that the government “shall
endeavour to foster respect for international law and treaty obligations in dealings of organized
people with one another,”6 and also authorises the central government to enact legislation
implementing its international law obligations without regard to the ordinary division of central
and state government powers.7 The Supreme Court of India has frequently interpreted in light of
India‟s international law obligations.8

Justice A .S. Anand argues that any interpretation of a national law or constitution which
advances the cause of human rights and seeks to fulfil the purposes of international instruments
must be preferred to a sterile alternative.9 He further argues that it is a proper part of the judicial
process and a well established judicial function for national courts to have regard to the
international obligations undertaken by the country in question whether or not these have been
incorporated into domestic law for the purpose of removing ambiguity or uncertainty from
national constitutions, legislation or common law.10

In Nilabati Behera v State of Orissa11 while justifying its award of compensation for
infringement of the right to life, the Court referred to the ICCPR12, which indicates that an
enforceable right to compensation is not alien to the concept of enforcement of a guaranteed
right.

5
E.g., State of Madras v G. G. Menon, AIR 1954 SC 517.
6
Indian Constitution arts. 51(c), 253.
7
Ibid.
8
See, e.g., People‟s Union for Civil Liberties v Union of India, AIR 1998 SC 568; Kesavananda Bharati v State of
Kerala, AIR 1973 SC 1461; Jolly George Verhese v Bank of Cochin, AIR 1980 SC 470.
9
Justice Anand, „The Domestic Application of International Human Rights Norms‟ (1998).
10
Ibid.
11
AIR 1993 SC 1960, at 1970.
12
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force on 23 March
1976) 999 UNTS 171 (ICCPR).

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In Prem Shankar Shukla v Delhi Administration13while dealing with the handcuffing of prisoners
and other humiliations inflicted on persons in custody, the Supreme Court of India observed:

After all, even while discussing the relevant statutory provisions and constitutional requirements,
court and counsel must never forget the core principle found in Article 5 of the Universal
Declaration of Human Rights, 194814: „No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment‟.

In Hussainara Khatoon cases15, the Supreme Court not only advanced the prison reform in favour
of under-trials but also declared the right to speedy trial as an essential ingredient of Article 21.
Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the
International Covenant on Civil and Political Rights which lays down that everyone is entitled
“to be tried without delay” and Article 16 of the Draft Principles on Equality in the
Administration of Justice which provides that everyone shall be guaranteed the right to prompt
and speedy hearing the Court directed the release of all those under trials against whom the
police had not filed charge sheets within the prescribed period of limitation. Such persons were
directed to be released forthwith as any further detention of such under trials would be according
to the court, a clear violation of Article 21.

In Sunil Batra v Delhi Administration16 the Supreme Court took note of Article 10 of the ICCPR
which states as that all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person. The Court then opined that:

13
AIR 1980 SC 1535, at 1537.
14
See Universal Declaration of Human Rights, (adopted 10 December 1948, UNGA Res.217.
15
Hussainara v Home Secretary, AIR 1979 SC 1360 at 1364.
16
AIR 1980 SC 1579.

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The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners
recommended by the United Nations, especially those relating to work and wages, treatment with
dignity, community contact and correctional strategies. In this latter aspect, the observations we
have made of holistic development of personality shall be kept in view.

The Court further emphasized that the Declaration of the Protection of All Persons from Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by U.N. General
Assembly17 has relevance to our decision.

Thus, the Court has interpreted article 21 with the widest possible amplitude so as to include
within its ambit basic human rights guaranteed by international human rights instruments though
that has not been incorporated in national legislation.

The Court, from time to time, injects flesh, blood and vitality into the skeleton of the words used
in Article 21 of the Constitution in consonance and harmony with international human rights
instruments, and gives colour and content to the expressions made therein, and also provides it
with the skin of living thought. Thus, in the wake of all the above cited cases it is becoming
evident that the Indian Judiciary has evolved itself as a saviour of mankind by interpreting
Article 21 of the Constitution in the widest possible manner. The Supreme Court has interpreted
right to life in the lights of international documents to include right to pollution free
environment, right to livelihood, freedom from noise pollution etc. The Court day-by-day is
enhancing the ambit of right to life and personal liberty. There is considerable scope for further
expansion of the content of Article 21 by the judiciary with the objective of taking India forward
towards a modern industrial society.

WIDE INTERPRETATION OF ARTICLE 21

Article 21 is the cornerstone for natural justice in the Indian constitution. The following rights
have been incorporated into the right to live.

1) A Right to live with human Dignity

17
Resolution 3452 of 9 December, 1975

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In Maneka Gandhi vs. Union of India,18 the court gave a new dimension to Article 21. It held
that the right to live is not merely confined to physical existence but it includes within its ambit
the right to live with human dignity. The right to live is not confined to the protection of any
limb through which life is enjoyed but it also includes the right to live with human dignity and all
that goes along with it namely the bare necessity of life such as adequate nutrition, clothing and
shelter and facilities for reading, writing and expressing ourselves in diverse forms, freely
moving about and mixing and commingling with fellow human beings

2) Right to livelihood

In Olga Tellis v. Bombay Municipal Corporation,19 popularly known as the pavement dwellers
case, the Supreme Court has finally ruled out that the word „life‟ in Article 21 includes the „right
to livelihood‟. The court said that an equally important facet of right to life is the right to
livelihood because no person can live without the means of livelihood. If the right to livelihood
is not treated as a part of the constitutional right to life, the easiest way of depriving a person of
his right to life would be to deprive him of his means of livelihood.

3) Right to shelter

Right to shelter is a fundamental right under Article 21 of the Constitution.20 In any organized
society, the right to live as a human being is not ensured by meeting only the animal needs of
man. It is ensured only when he is assured of all the facilities to benefit himself. Right to live
guaranteed in any civilized society implies the right to food, water , decent environment,
education, medical care and shelter. Right to shelter therefore, does not mean a mere right to a
roof over one‟s head but right to all the infrastructure necessary to enable them to live and
develop as a human being.

4) Right to privacy

18
AIR 1978 SC 597
19
AIR 1986 SC 180
20
Shantistar Builders Vs. Narayan Khimalal Totame (1990) 1 SCC 520: AIR 1990 SC 630, In Chameli Singh V.
State of U.P.[(1996) 2 SCC 549, Ahmedabad Municipal Nagarpalika Vs. Nawabkhan (1997) 11 SCC 121

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The Supreme Court held that a citizen has right to safeguard the privacy of his own,21 his family,
marriage, procreation, motherhood, child bearing, and education among other matters. None can
publish anything concerning the above matters without his consent whether truthful or otherwise.
This rule is subject to an exception that if any publication of such matters is based on public
record including court record it will be unobjectionable. The second exception is that the right to
privacy or the remedy of action for damage is simply not available to public officials as long as
the criticism concerns the discharge of their public duties.

5) Right to health and medical assistance

In Parmananda Katara v. Union of India22, it has been held that it is the professional obligation
of all doctors, whether government or private, to extend medical aid to the injured immediately
to preserve life without waiting legal formalities to be complied with by the police under Cr.P.C.
Article 21 of the constitution cast the obligation on the state to preserve life. it is the obligation
of those who are incharge of the health of the community to preserve life so that the innocent
may be protected and the guilty may be punished.

6) Right to get pollution free water and air

In Subhash Kumar v. Bihar23, the Apex Court has held that enjoyment of pollution free
environment is included under right to life under Article 21 of the Constitution.

7) Right to free legal aid

Right to free legal aid and speedy trial are guaranteed fundamental rights under Article 21. 24 In a
democratic policy, governed by rule of law, it should be the main concern of the state to have a
proper legal system. The crucial words are to provide free legal aid by suitable legislations or by
schemes or in any other way so that opportunities for securing justice are not denied to any
citizen by reason of economic or other diabilities.

7) Right to Education

21
R. Rajagopal v. State of T.N (1994) 6 SCC 632
22
Parmanand Katara V Union of India AIR 1989 SC 2039
23
AIR 1991 SC 420
24
Hussainara Khatun vs. State of Bihar AIR 1979 SC 1369

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The Fundamental Right to Education has been incorporated in our Constitution under Article
21A, on April 1, 2010. From now onwards all the children in the age group of 6-14 years will be
provided 8 years of elementary education in an appropriate classroom in the vicinity of his/her
neighborhood. The cost of facilitating school education to a child will be borne by the State. The
government will be responsible for the enrollment and regular attendance of children. All schools
will have to prescribe to norms and standards laid out in the Act and no school that does not
fulfill these standards within 3 years will be allowed to function. Unrecognized private schools
operating in the country will have to apply for recognition, failing which they will be penalized
to the tune of Rs 1 lakh and if they still continue to function will be liable to pay Rs 10,000 per
day as fine.

The recent trends in the interpretation of right to life include:

1) The incorporation of right to sleep under article 21.

The Supreme Court has held “The citizens/persons have a right to leisure; to sleep; not to hear
and to remain silent. The knock at the door, whether by day or by night, as a prelude to a search
without authority of law amounts to be police incursion into privacy and violation of
fundamental right of a citizen."25

2) The rising and the first case of right to food is the Kishen Pattnayak v State of Orrisa26. In this
case the letter by the social worker was considered as the petition by the supreme court. It was
mentioned in the petition that the people of kalahandi and district of Orrisa are so poor that in
order to survive and to get food they are forced to sell off their land and they are even selling
their children. It was mentioned that there are many people dying due to hunger there.

The court made enquiries and found that the government has taken measures to tackle this
problem but the court also ordered various further relief measure like formation of committees
and holding of meetings in every 2 months etc.

25
Ramlila Maidan Incident v. Home Secretary, Union of India , 2012 (2) SCALE 682
26
(1989) AIR 677

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The latest case dealing with this problem is the P.U.C.L v Union of India27. On April 16, 2001,
the PUCL submitted a “writ petition” to the Supreme Court of India asking three major
questions:

1. Starvation deaths have become a National Phenomenon while there is a surplus stock of food
grains in government go downs. Does the right to life mean that people who are starving and
who are too poor to buy food grains free of cost by the State from the surplus stock lying with
the State particularly when it is lying unused and rotting?

2. Does not the right to life under Article 21 of the Constitution of India include the right to
food?

3. Does not the right to food which has been upheld by the apex Court imply that the State has a
duty to provide food especially in situations of drought to people who are drought effected and
are not in a position to purchase food.

The court said that what is of utmost importance is to see that food is provided to the aged,
infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and
lactating women and destitute children, especially in cases where they or members oftheir family
do not have sufficient funds to provide food for them. as in this case Plenty of food is available,
but distribution of the same amongst the very poor and the destitute is scarce and non-existent
leading to mal-nourishment, starvation and other related problems. So, on September 3, 2001, the
court directed through interim orders that 16 states and union territories that had not identified
families below the poverty line must do so within two weeks, so that those families could be
provided with food assistance. Further, the court required that “the Food for Work Programme in
the scarcity areas should also be implemented by the various States to the extent possible”. The
case is still on going.

27
2000(5) SC ALE (30)

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 ANALYSIS OF JUDICIAL INTERPRETATION

The fundamental right to life and personal liberty has become a favourite provision for the
judiciary to experiment with. This has led to some rather impractical rulings by the Supreme
Court

It is not often that the Chief Justice of India takes swipes at sitting judges of the Supreme Court
over verdicts they have passed. So, when Chief Justice of India SH Kapadia remarked recently at
a function that “judges must apply the principle of enforceability before propounding legal
principles and passing orders”28, the statement generated a great amount of buzz. He was
referring to a ruling by Justice BS Chauhan that fundamental rights also included the „right to
sleep‟. Justice Chauhan and Justice Swatanter Kumar formed a two-judge bench which in its
verdict on February 23 had slammed Delhi Police for its brutal midnight action against followers
of Baba Ramdev who had gathered at Ramlila Maidan in Delhi. Justice Chauhan had said that a
citizen had the right to sound sleep because sleep is fundamental to life.

While not criticising the judge‟s interpretation that the right of a citizen to sleep is part of his
fundamental rights, Chief Justice Kapadia nevertheless said, “Right to privacy had been made a
fundamental right. Now we hear that right to sleep is also a fundamental right… If we lay down
a policy and the Government says it cannot implement it, can we enforce it by resorting to
contempt jurisdiction?” In making those remarks, the Chief Justice has re-opened a debate on the
extent to which the scope of the ‘right to life‟ and „personal liberty‟ as enshrined in Article 21
of the Constitution can be expanded. The matter of enforceability flows from that widening
canvas, because the larger and more broadbased the „right to life‟ gets, the more difficult it can
become for the new interpretations to be implemented effectively.

Interestingly, much the same apprehensions that Chief Justice Kapadia has expressed now were
raised by former Union Minister, commentator and author Arun Shourie more than a decade ago
in his book, Courts and their Judgments. Mr Shourie writes, “…If orders are of such sweep that

28
Dhananjay Mahapatra, TNN, How can judiciary enforce right to sleep? CJI asks, available at
http://articles.timesofindia.indiatimes.com/2012-08-26/india/33401705_1_human-rights-fundamental-rights-justice-
kapadia last visited on 19/10/12.

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they cannot be implemented, or if no one seriously follows them up to ensure that they are
implemented, the orders will boomerang on those who gave them.”29 It is almost as if the
author is referring to the February 23, 2012, ruling on the „right to sleep‟. 30 In any case, his
observations indeed were in the context of the growing ambit of the „right to life‟.

It is true that the Supreme Court has been constantly expanding the reach of fundamental rights,
but as Chief Justice Kapadia has pointed out, such expansion must always and necessarily
connect to the core constitutional philosophy of Article 21. Any deviation from that principle is
bound to result in verdicts that are not just non-enforceable but also legally suspect. In the
present case, for instance, what about the right of the homeless to sleep on pavements or in
public places? Justice Chauhan has said that such acts did not have the cover of the fundamental
right to sleep. The question is: If indeed the „right to sleep‟ is a fundamental right, why should
the homeless — who deserve the right as much if not more than the better-off — be deprived of
a sound sleep wherever they can afford to do so? Such tricky issues lay bare the difficulty of
enforceability that both Chief Justice Kapadia and Mr Shourie have referred to.

Eight years ago, the Supreme Court ruled on the legal enforcement of the „right to food‟ as a
fundamental right under Article 21. In response to a petition by the People‟s Union for Civil
Liberties,31 the apex court in various interim orders on a host of public welfare schemes related
to food such as the Mid-day Meals Scheme and the Antyodya Anna Yojana said that the „right to
food‟ and the „right to nutritious food‟ are the fundamental rights of every citizen of the country.
While there is nothing disputable about this contention, the fact of the matter is that the sweeping
scope of this verdict, even if interim, has made it difficult for authorities to enforce this. This is
despite the various panels that the apex court has set up to monitor the implementation of its
elaborate orders.

The race to expand the meaning of Article 21 has its origin to a large extent in the Kharag Singh
versus State of UP32 case. Mr Shourie quotes in his book from the ruling of the Supreme Court in
that case to demonstrate how suddenly the meaning of life and personal liberty acquired larger
and even larger proportions. To begin with, Article 21 says, “No person shall be deprived of his

29
Arun Shourie, Courts and their Judgements (Fifth Edition Rupa Publications Pvt. Ltd. 2011 New Delhi) p. 20
30
Ramlila Maidan Incident v. Home Secretary, Union of India , 2012 (2) SCALE 682
31
2000(5) SC ALE (30
32
1963 AIR 1295

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life and personal liberty except according to procedure established by law”. In the Kharag Singh
case, Mr Shourie says, the judges held that personal liberty as in Article 21 is used as a
“compendious term to include within itself all the varieties of rights which go to make up the
personal liberties of man other than those within the several clauses of Article 19 (1).”

The author then goes on to say that soon after, „speedy trial of cases‟ came to be added to the
scope of Article 21. It did not end there; a succession of judgements — right to a protected (clean
and eco-friendly) environment, right against solitary confinement, right against delayed
execution, right against public hanging, and also the right to expeditious police investigation —
emphatically enlarged and gave a brand new interpretation to the matter of fundamental rights as
envisioned under Article 21.

But if we look back dispassionately and study the situation, very few of these rulings have been
effective in practice. For example, speedy trials are still a chimera and delayed executions
(especially of terrorists) are the norm.

The Supreme Court has concluded that it is not just the personal liberty and life that falls under
Article 21, but everything that is needed for them to be effectively implemented. Mr Shourie
remarks in the book, the state has progressively come to be “under a constitutional mandate to
provide facilities that are needed for citizens to be able to partake” the new expanded rights. Mr
Shourie puts it succinctly when he comments, “From what was intended to protect persons
against arbitrary arrest and restraint, against physical coercion by organs of the State, Article 21
has become the device… for requiring the state to provide in effect every thing that would make
a person‟s life a life of dignity and fulfillment… The point is about liability, about
enforceability.”33

Thus, we are back to square one. The „right to sleep‟ is destined to turn out to be as uneforceable
a ruling as the many others made by the Supreme Court in the preceding years to enlarge the
scope of fundamental rights. These interpretations, thus at times, take on the form of lawyers
extraversion.

33
Arun Shourie, Courts and their Judgements (Fifth Edition Rupa Publications Pvt. Ltd. 2011 New Delhi) p. 33

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 CONCLUSION

Article 21 has been given a wide interpretation by the Indian judiciary. A number of sub rights
have been included in the main right. Right to life has been used as tool to redress a variety of
injustices and social wrongs.

Interpreting right to life in such a way as to include due process has increased of the judiciary‟s
power. Right to privacy, right to shelter etc. have at times made up for lack of legislation on the
issue and thus the court has strived to protect the rights of the people using article 21 as a potent
weapon.

However the Supreme Court has started to declare rights which are difficult to enforce and may
be only be law for namesake. The Court should take into consideration the enforceability of a
right or else it will just remain an empty promise.

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 SOLUTIONS

To the problem of excessive extraversion by the judiciary, in the interpretation of right to life,
there are two solutions. They are the following:

1) First, the Supreme Court should issue guidelines, when a matter comes up before it, about the
need for restraint when it comes to interpretation. Granted it may be tempting to interpret the law
in such a manner to give maximum benefit to the masses. However the reality of the situation has
to be taken into account when deciding a case. If a universal right to food or right to sleep is
given, what must be considered are the consequences. Whether India has the capability to
enforce such a right has to be considered.

Can the executive truly enforce a right to sleep? Granting a right which is never enforced is akin
to giving an empty promise. Progress must be tempered with reality. A strong understanding of
this fact must be conveyed to the judiciary.

2) At the training stage, judges should be educated about the ramifications of giving decisions
which are impossible to enforce. During training itself budding judges must be made aware that
while making a judgement the enforceability aspect should not be ignored.

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