ARTICLE    21 OF THE CONSTITUTION- PROTECTION OF LIFE AND PERSONAL

LIBERTY

      No person shall be deprived of his life or personal liberty except according to procedure

established by law.The object of the fundamental right under Article 21 is to prevent

encroachment upon personal liberty and deprivation of life except according to procedure

established by law,ie ,article 21 imposed a restriction upon the state where it prescribed a

procedure for depriving a person of his life or personal liberty.

                                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.

RESTRICTVE INTERPRETATION –PRE    MANEKA GANDHI    POSITION

In A.K.Gopalan vs State of Madras ,the petitioner was detained under the preventive detention

law.he challenged the detention on the ground that the law is not reasonable as contemplated

under art 19. (It took away the freedom of movement u/art 19.)It was held that, the contents and

subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles.

A procedure established by law can deprive a person of his right to life. It was not necessary that

the law was just & fair. Moreover, the Court declined to infuse the guarantee of due process of

law,( it is a concept in U.S constitution some what similar to naturaljustice) in Article 21, with

substantive content, holding that as long as the preventive detention statutes had been duly

enacted in accordance with the procedures of article 22, the requirements of due process were
satisfied. The interpretation of personal liberty as made by the Court was nothing more than the

freedom from arrest and detention, from false imprisonment or wrongful confinement of the

physical body. Thus, “personal liberty” said to mean only liberty relating to person or body of

individual and in this sense it was the antithesis of physical restraint or coercion.( lawneed not be

fair)

    

In Maneka Gandhi v. Union of India, AIR 1978 SC 597 the Apex Court opened up a new

dimension     to article 21 and laid down that the procedure laid down by law cannot be arbitrary,

unfair or unreasonable one. The court gave the widest possible interpretation of article 21 so as to

include the due process or the principles of natural justice in to art 21. The new interpretation of

Article 21 in Maneka Gandhi’s case has started a new era of expansion of the horizons of right to

life and personal liberty.

In 1978, the 44th amendment of the Constitution took place, article 359 was amended, and

it provided that article 20 and 21 could not be suspended even during declaration of an

emergency. 

                                                        DIFFERENT DIMENSIONS OF ART 21

RIGHT TO DIGNITY

In  Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others ,it washeld

that ,Article 21 requires that no one shall be deprived of his life or personal liberty except by

procedure established by law and this procedure must be reasonable, fair and just and not

arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the
test not only for Article 22, but also of Article 21 and if the constitutional validity of any such

law is challenged, the court would have to decide whether the procedure laid down by such law

for depriving a person of his personal liberty is reasonable, fair and just. The word life in article

21 means a life of dignity and not just mere animal survival“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 the human self.” 

LABOUR WELFARE

In  Bandhua Mukti Morcha v. Union of India and others while dealing with the inhuman

conditions of    bonded labour and weaker section of the society, it was observed that ,Article 21

assures the right to live with human dignity, free from exploitation. The state is under a

constitutional obligation to see that there is no violation of the fundamental right of any person,

particularly when he belongs to the weaker section of the community and is unable to wage a

legal battle against a strong and powerful opponent who is exploiting him. Both the Central

Government and the State Government are therefore bound to ensure observance of the various

social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen

a life of basic human dignity in compliance with the directive principles of the state policy.

RIGHT TO EDUCATION

Earlier right to education was a part of Directive Principles of State Policy. In Mohini Jain v.
 State Of Karnataka and Unni Krishna v. State of Anddhra Pradesh supreme court ruled

that right to education is a    fundamental right because it directly flows from right to life.

 RIGHT TO DIE & ART 21

              In Bachan Singh v. State of Punjab, the Supreme Court settled the question by declaring

that the death penalty is a necessary evil that does not violate the Constitution. It further held that

the death penalty must be provided in the rarest of rare cases to restrict arbitrary use of the power

to sentence convicts to death. 

In the case of P.Rathinam ,it was held that right to live includes right not to live, that means right

to die.

In Gian Kaur v. State of Punjab    while deciding the validity of Sec.309 of I.P.C, the Court

overruled the earlier view which was taken in P. Rathinam’s case and held that “right to life”

does not include “right to die” and the “extinction of life” is not included in “protection of life”

thus provision penalizing attempt to commit suicide is not violative to Art. 21 of the

Constitution.

RIGHT TO LIVELIHOOD

    A 5 judge bench of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation held

that the right to life includes the right to livelihood. Thereby, the court recognized the rights of

the pavement dwellers and the hawkers in Bombay. However, this does not mean that the State

can be held accountable for not providing livelihood through affirmative action programs and

policy. This recognition of the right to livelihood only bars the state from denying the right to

livelihood to any individual without any procedure established by law. 

RIGHT TO    CLEAN ENVIRONMENT

The Penal Code    contained provisions making pollution a crime.

Ø Section 277 relates to water pollution.

Ø Section 278 relates to water pollution

Ø Section 426, 430, 431 and 432 relates to pollution in general.

Ø Section 368 talks about public nuisance where under noise pollution can inter alia be

controlled.

                          The Constitution of India, 1950, did not include any specific provision relating to

environment protection .Constitution (Forty-second Amendment) Act, 1976, inserted    certain

provisions    .

 Part IV: Directive Principles of State Policy (Article 48A): Protection and improvement and

safeguarding of forests and wild life: The State shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the country.

Part IV-A: Fundamental Duties (Article 51-A): It shall be the duty of every citizen of India - (g)

to protect and improve the natural environment including forests, lakes, rivers and wild life, and

to have compassion for living creatures.

Seventh Schedule (Article 246) List III - Concurrent List Item no. 17 Prevention of cruelty to

animals, Item no. 17A Forests, Item no. 17B Protection of wild animals and birds.

  

The Supreme Court has recognized that the Right to clean environment, sanitation, pollution-free

air, and water are the fundamental rights under Article 21 of the Constitution. This right under

Article 21 of the Indian constitution covers a wide variety of rights not just for humans but also
for wildlife, forests, lakes, ancient monuments, fauna-flora, unpolluted air, water, and

maintenance of the ecological balance

In     Charan lal sahu v. UOI AIR 1990 SC1480 , the Supreme Court interpreted the right to life

guaranteed by article 21 of the Constitution to include the right to a wholesome environment.

                    In M.C Mehta v. Union of India, and Vellore Citizens Welfare Forum v. Union of India

the Court Cognized the pollution caused to the water bodies because of tanneries.

                                  In Subhas Kumar v. State of Bihar, the Court recognized that pollution-free air

and water are essential for the enjoyment of the right to life.  If anything endangers or impairs

that quality of life in derogation of laws a citizen has recourse to Art.32 of the Constitution for

removing the pollution of water or air which may be detrimental to life.

                                  In M. C. Mehta vs. Union of India (the Oleum Gas Leak case), the Supreme

Court established a new concept of managerial liability - 'absolute and non-delegable' - for

disasters arising from the storage of or use of hazardous materials from their factories. The

enterprise must ensure that no harm results to anyone irrespective of the fact that it was negligent

or not.

                                            In Vellore Citizens Welfare Forum vs. Union of India, AIR 1996 SC 2715,

the Supreme Court held that industries are vital for the country's development, but having regard

to pollution caused by them, principle of 'Sustainable Development' has to be adopted as the

balancing concept.It says that there must be a balance between development and

ecology. Pollution control is of greater significance for sustainable development. The basic

principles of sustainable development ARE    AS    FOLLOWS;

  Inter-Generation Equity which talks about the right of every generation

 The Precautionary Principle: It means-

o Environmental measures by the state government and the local authority must

anticipate, prevent and attack the causes of environmental degradation.

o Where there are threats of serious and irreversible damage, lack of scientific

certainty should not be used as a reason for postponing measures to prevent

environmental degradation.

o The ‘onus of proof’ is on the actor or the developer to proof that his action is

environmentally benign.

 Polluter pays principle: it is quite obvious that the object of the above principle was to

make the polluter liable not only for the compensation to the victims but also for the cost

of restoring of environmental degradation. Once the actor is proved to be guilty, he is

liable to compensate for his act irrelevant of the fact that whether he is involved in

development process or not

In Indian Council of Enviro-Legal Action vs. Union of India, 1996 3 SCC 212 , following the

decision in the Oleum Gas leak case and based on the polluter pays principle, the polluting

industries were directed to compensate for the harm caused by them to the villagers in the

affected areas, specially to the soil and to the underground water

.                        Enunciating the doctrine of 'Public Trust' in  M. C. Mehta vs. Kamal Nath  (1997) 1

SCC 388, the SC held that resources such as air, sea, waters and the forests have such a great
importance to the people as a whole that by leasing ecologically fragile land to the Motel

management, the State Government had committed a serious breach of public trust.

                        In, Noise Pollution (V), In Re, Article 21 guarantees right to life and includes all

those aspects which make a person’s life meaningful, complete and worth living. In the

above case, it was held that any one who wishes to live in peace, no one can claim a right to

create noise even though he does so in his own premises. Any noise, which materially

interferes with the ordinary comforts of the life of the other, judged by an ordinary prudent

man is nuisance.

                                            Rural litigation and entitlement Kendra v. State of U.P ,Limestone

mining which denuded mussoorie hills of trees and forests cover and accentuated soil

erosion resulting in blockage of underground water channels were banned.

                                         P.A. Jacob v. Suprintendent of police, Kottayam, the Kerela high Court

held that the freedom of speech does not include freedom to use loudspeakers or sound

amplifiers to cause noise pollution and risk to human health.

                                  Murali S. Deora v. Union of India ,The Supreme Court banned smoking in

public places by ruling that non-smokers cannot be compelled to be helpless victims of air

pollution.

RIGHT TO KNOW & ART 21

In R.P Limited v. Indian Express Newspapers,it was held by the Supreme Court that Article 21 is

wide enough to accommodate the essential features of a democracy such as the right to know and

the right to be informed. 

RIGHT AGAINST SOLITARY CONFINEMENT

                        In Sunil Batra v. Delhi Administration,the petitioner had complained about being

punished with solitary confinement since the day of his conviction by the Session Court. The

Supreme Court held that Solitary confinement is violative of the convict’s right to life under

Article 21 and that such kinds of punishments cannot be justified under the Prisoners Act. 

RIGHT AGAINST DELAYED EXECUTION

                      In  T. Vatheeswaram v. State of Tamil Nadu, held that delayed execution of death

sentence is contrary to the idea of life under Article 21 of the Constitution. Therefore, if the

execution is delayed 2 years after such a death sentence is finalized then such a sentence may be

commuted. The cause of the delay is immaterial.

 RIGHT TO PRIVACY

                          In Kharak Singh v State of Tamil Nadu    Justice Subba Rao in his minority

judgment said that the right to privacy flows from the expression personal liberty.

                                In R. Rajgopal v. State of Tamil Nadu ,the Supreme Court observed that right to

privacy is nothing but ‘right to be let alone and it is implicit in right to life and personal liberty

guaranteed under Art.21 of Indian Constitution.

                                In PUCL v. Union of India, it was held that the right to privacy is a part of the

right to life and personal liberty under Article 21 and therefore telephone tapping would violate

Article 21 unless due regard and just process are not followed. The Supreme Court recognized

procedural safeguards that are required for the exercise of Section 5(2) of the Telegraph Act.
                                  In Sharda v. Dharmpal it was ruled that a matrimonial court has the power to

direct parties to divorce proceedings can be compelled to undergo a medical examination. Such a

direction is not violative of Article 21 as long as material exists to order such medical tests. 

                                                      The Supreme Court in  State of Maharashtra vs. Madukar Narayan

Mandikar ,stated that every woman is entitled to privacy and no one can invade her privacy as an

when one likes. The Act of Rape against women is definitely a violation of her fundamental

rights especially violation of her right to life with liberty as provided under Article 21 of the

Indian Constitution.

                                  The three-judge bench in Sucheta Srivasata v. Chandigarh Administration, the

reproductive rights of women are part of the right to privacy, dignity and body integrity of a

woman. This view has been upheld by the Supreme Court in the landmark privacy judgment.

In K.S Puttaswamy v Union of India, the Court specifically recognized a woman’s right to make

reproductive choices as a part of the personal liberty covered under the Right to privacy under

Article 21 of the Constitution. 

RIGHT TO GO ABROAD

In Satwant Singh Sawhney v. Assistant Passport Officer, Delhi the right to go abroad was, for the

first time, recognized under Article 21 of the Constitution. This judgment only ensures that a

person qualified to travel abroad cannot be arbitrarily denied this right without any procedure of

law. 

RIGHT AGAINST SEXUAL HARASSMENT AT A WORKPLACE 

 In Vishaka v. State of Rajasthan observed that “The meaning and content of the
 Fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to

encompass all the facets of gender equality including the prevention of sexual harassment or

abuse”

RIGHT AGAINST CUSTODIAL DEATH

                      In D.K. Basu v State of West Bengal , the Supreme Court has observed that “Custodial

violence including torture and death in the lock-ups, strikes a blow at the rule of law, which

demands that the powers of the executive should not only be derived from the law but also that

the same should be limited by it”. 

RIGHT OF PRISONERS

    In State of Andhra Pradesh v. Challa Ramakrishna Reddy, the Supreme Court has    observed

that “A prisoner, be he a convict or an under trial or a detenu does not cease to be a human being.

Even when lodged in jail, he continues to enjoy all his fundamental rights including the right to

life guaranteed to him under the Constitution.” 

RIGHT TO FREE LEGAL AID

Article 21 includes Right to free legal aid .In M.H Hoskot v State of Maharashtra , the Supreme

Court has invoked Art. 39A and held that state under Article 21 should provide free legal aid to a

prisoner who is indigent and or otherwise disabled from securing legal assistance where the ends

of justice call for such service.