Legal Writing

First Draft

Submitted By- Naveen Kumar Vashisht

 Article 21 of the Constitution and its Judicial
Interpretation

Article 21 is one of the most important fundamental rights guaranteed by the constitution of
India. Article 21 deal with right to life, the article states that- No person shall be deprived of
his life or personal liberty except according to the procedure established by law. The right
protects any encroachment upon the personal liberty of a person and deprivation of his life.
Article 21 protects the life and liberty of a person from any deprivation on the hands of the
state or acts under the authority of the state.

Justice Mahajan in the case of Maneka Gandhi said that-

"Article 21 in my opinion, lays down substantive law as giving protection to' life and liberty
in as much as it says that they cannot be deprived except according to the procedure
established by law; in other words, it means that before a person can be deprived of his life
or liberty as a condition precedent there should exist some substantive law conferring
authority for doing so and the law should further provide for a mode of procedure for such
deprivation., This articles gives complete immunity against the exercise of despotic power by
the executive. It further gives immunity against invalid laws which contravene the
Constitution. It gives also further guarantee that in its true concept there should be some
form of proceeding before a person can be condemned either in respect of his life or his
liberty. It negatives the idea of a fantastic arbitrary and oppressive form of proceedings." 1

Dicey on the matter of right to life said-

"The right to personal liberty as understood in England means in substance a person's
right not to be subjected to imprisonment, arrest or other physical coercion in any
manner that does not admit of legal justification." (Maneka Gandhi)2

In the case of Maneka Gandhi, the judgement of Chief Justice Ray was referred which said-

1
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
2
Ibid
"Article 21 is our rule of law regarding life and liberty. No, other rule of law can have
separate existence as a distinct right. The negative language of fundamental right
incorporated in Part III imposes limitations on the power of the State and declares the
corresponding guarantee of the individual to that fundamental right. The limitation and
guarantee are complimentary. The limitation of State action embodied in a fundamental right
couched in negative form is the measure of the protection of the individual."
Under the ambit of Article 21, various rights ranging from right to clean environment, right to
health, right to environment, surrogacy rights to right to privacy and many other such rights.
The following such rights have been discussed further in this research paper.

Right to Privacy

Privacy is an age-old conception which means a state of being away from company or
observation. It is a state of being away from public attention also known as ‘Right to be
alone.’ Privacy is a fundamental human right recognized in the United Nation’s Declaration
of Human Rights, The International Covenant on Civil and Political Rights and in several
other international and regional treaties. Right to privacy is natural right made available to
natural persons.

One has the right to safeguard the privacy of his own, his family, marriage, procreation,
motherhood, childbearing and education among other matters. In the absence of a guarantee
of privacy, the conduct of normal interpersonal relationships would be impossible. The right
to privacy has several aspects such as; right to be let alone, the right of reproductive
autonomy, the right to use condoms, the right of a woman to abort, all these come in the
purview of the right to privacy.

There are various other rights too which are not recognised legally but, they can be argued to
be within the ambit of privacy. Rights such as the right to secure the data across all digital
platforms, right against profiling, right to know which data is given access by these social
networking analytics, safeguard against data abuse, etc.

Changing political, economic and social conditions in India led to the recognition of bundle
of new rights. Post Maneka Gandhi era when Article 21 jurisprudence was no longer viewed
narrowly and extended view was given to right to life and liberty. Article 21 has proved to be
multi-dimensional through several judicial pronouncements.

In Justice K. S. Puttaswamy (Retd.) and Anr. Vs Union of India and Ors on 24 August 2017,
in a the landmark judgment of the Supreme Court of India, which holds that the right to
privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the
Constitution of India.

The nine-judge bench unanimously held that “The right to privacy is protected as an intrinsic
part of the right to life and personal liberty under Article 21 and as a part of the freedoms
guaranteed by Part III of the Constitution”.

It overrules previous judgements of the Apex Court in Kharak Singh vs. State of UP and M.P
Sharma vs. Union of India, which had held that there is no fundamental right to privacy under
the Indian Constitution.

KEY ELEMENTS OF THE JUDGEMENT

1. Right to privacy is natural right made available to natural persons.

2. Right to Privacy is not absolute right. It can be restricted by state and reasonable
restrictions can be imposed in the following manner.
3. It can be restricted through legislative law.
4. The restriction should be based upon a legitimate purpose.
5. The restriction should be proportionate that means the state should have tried all other
alternatives and this should the last resort for the state.
6. Certain standards were prescribed by the Apex Court.
7. Structural reforms to bring in transparency, openness, great care and sensitivity like
while dealing personal information of the citizen the government shall pay more attention.
8. Details of Aadhar are a matter of privacy and it should be mandatory for getting the
benefit of necessary services such as electricity, NPG for cooking.
9. Data Protection Act, 2018 came after this.

Right to Privacy is a very broad concept and includes various sets of sub-rights that are and
should be included with its ambit. These rights give altogether give a new outlook towards
Article 21.

In the world of social media were incidences of nasty trolling, harsh and abusive comments
are seen every single day. These should amount to infringement of one’s right to live with
dignity. As such statements hurt the dignity and reputation of the individual and cause mental
agony too.

Just like the physical world even, virtual world and cyberspace needs have to have strict
norms, rules, regulations about its abuse to avoid incidences of mob lynching, eve-teasing,
etc. Due to the overuse of social media various data such as personal information, work,
economic situation, health, personal preferences, interests, reliability, behaviour, location,
etc. is collected on daily basis.

All the information which is out there should not be abused by anybody without the person’s
consent and data protection laws should be stronger. There are several rights which need
legal recognition as rights. Infringement of those rights should be taken seriously and a
separate set of laws need to create to protect these rights.

Right to Reproduction and Surrogacy Rights

Under the constitution right to life provides right to reproductive rights under Article 21.The
Supreme Court in Suchitra Srivastava vs. Chandigarh Administration’ held that women’s
right to make reproductive choices is a part of personal liberty under Article 21 of the
constitution. The constitution provides women both the right to procreate and as well as the
right to abstain from procreation. The court further strongly held that “The crucial
consideration is that a woman’s right to privacy, dignity and bodily integrity should be
respected. This means that there should be no restriction whatever on the exercise of
reproductive choices such as a woman’s right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive methods.”
The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh
recognized reproductive rights as a fundamental right and upheld ‘the right to reproductive
autonomy’ of a person as a part of his right to privacy. When the concept of privacy is
extended to matters of reproduction, state’s interference or restrictions on reproduction
amount to an instantaneous encroachment on one’s privacy.
The personal choice of the individual concerning the birth and babies called ‘the right of
reproductive autonomy’ is a side of a ‘right of privacy.’ The American Supreme Court in
Skinner v. Oklahoma, 316 US 535, defined the right to reproduce as a “one of the basic civil
rights of man.”

Right to Peaceful Protest and against abuse of Police Power

Peaceful protest which are whether authorised or not holds significant importance in any
democratic country and should not buried by making security and antiterrorism as scapegoats
to justify it. Even the Indian Supreme Court has stated time and again that police and law
enforcement cannot use unreasonable force by employment of tear gas on civilians but it is
being widely used in different parts of the country particularly Kashmir. The liberty and
freedom of speech is being bogged down along with the right to peaceful assembly and
protest which is the basis of any democracy. In the Re Ramlila Maidan Incident
Dt.4/5.06.2011 v. Home Secretary, Union of India 3 case the Supreme court took suo moto
action against the Delhi Police for exceeding their authority by use of unreasonable force and
in a manner not prescribed under the procedures, by employing tear gas and lathi charge
against protestors at Ramlila Maidan in Delhi. The Supreme Court further reiterated that right
to peacefully and lawfully assemble together and express oneself under Article 19 is inherent
and is coupled with right to freedom and liberty under Article 21 of The Constitution of
India. The supreme further stated that liberty is subject to official intervention but such
regulations cannot be used to cripple down the liberty under the garb of it.

In Himat Lal K. Shah v. Commissioner of Police 4, the Supreme Court upheld the right to
protest and further held that the state must aid the fundamental assembly of citizens. The
citizens should be provided the right to protest against the government as it is a necessity of a
democracy and government of the people so that anarchy doesn’t rule them.

Right to Health

Right to Health and healthy environment has been enshrined as a fundamental right under
right to life under Article 21 and duty of the state to ensure it under Article 51A of the Indian
Constitution and by constitutions of all the other countries in a similar manner by adopting
United Nation Universal Declaration of Human Rights. In multiple cases this has been upheld
by the Indian constitution like in In REGIONAL DIRECTOR, E.S.I CORPN.AND ANR v.
Francis De Costa AND ANR5., it was said that Right to health, a fundamental

3
Re Ramlila Maidan Incident Dt.4/5.06.2011 v. Home Secretary, Union of India, Suo Moto Wp (Crl.) No. 122
of 2011
4
Himat Lal K. Shah v. Commissioner of Police, 1973 AIR 87, 1973 SCR (2) 266 (India)
5
Regional Director, E.S.I Corpn. and Anr v. Francis De Costa and Anr 1992 SCR (3) 23, 1993 SCC Supl. (4)
100 (India)
human right stands enshrined in socio-economic justice of our constitution and the Universal
Declaration of Human Rights.

The fundamental right to life guaranteed by Article 21 of the Indian Constitution imposes
corollary obligation on the State to safeguard the right to life of every person.

In the case of Justice Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, Justice
Bhagwati said that-

"It is the fundamental right of every one in this country, assured under the interpretation
given to Article 21 by this Court in Francis Mullen's case, 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. Since the Directive Principles of State Policy contained
in Clauses (e) and (f) of Article 39, Article 41 and 42 are not enforceable in a court of law, it
may not be possible to compel the State through the judicial process to make provision by
statutory enactment or executive fiat for ensuring these basic essentials which go to make up
a life of human dignity but where legislation is already enacted by the State providing these
basic requirements to the workmen and thus investing their right to live with basic human
dignity, with concrete reality and content, the State can certainly be obligated to ensure
observance of such legislation for inaction on the part of the State in securing
implementation of such legislation would amount to denial of the right to live with human
dignity enshrined in Article 21, more so in the context of Article 256 which provides that the
executive power of every State shall be so exercised as to ensure compliance with the laws
made by Parliament and any existing laws which apply in that State."6

Right to Social Justice and Livelihood

6
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
The right to social justice is a fundamental right. Right to livelihood springs from the right to
life guaranteed under Article 21. The health and strength of a worker is an integral facet of
right to life. The aid of fundamental rights is to create an egalitarian society to free all citizens
from coercion or restrictions by society and to make liberty available for all. Right to human
dignity, development of personality, social protection, right to rest and leisure as fundamental
human rights to common man mean nothing more than the status without means.

In LIC v. Union of India v. Consumer Education and Research Centre, (1995) 5 SCC 482, the
court said-

"Article 21 of the Constitution assures right to life. To make right to life meaningful and
effective, this court put up expansive interpretation and brought within its ambit right to
education, health, speedy trial, equal wages for equal work as fundamental rights.
Articles 14, 15 and 16 prohibit discrimination and accord equality. The Preamble to the
Constitution as a socialist republic visualises to remove economic inequalities and to
provide facilities and opportunities for decent standard of living and to protect the
economic interest of the weaker segments of the society, in particular, Scheduled Castes
i.e. Dalits and the Scheduled Tries i.e. Tribes and to protect them from "all forms of
exploitations". Many a day have come and gone after 26.1.1950 but no leaf is turned in
the lives of the poor and the gap between the rich and the poor is gradually widening on
the brink of being unbridgeable.
Providing adequate means of livelihood for all the citizens and distribution of the
material resources of the community for common welfare, enable the poor, the Dalits and
Tribes to fulfil the basic needs to bring about a fundamental change in the structure of the
Indian society which was divided by erecting impregnable walls of separation between
the people on grounds of caste, sub- caste, creed, religion, race, language and sex.
Equality of opportunity and State thereby would become the bedrocks for social
integration. Economic empowerment thereby is the foundation of make equality of status,
dignity to person and equal opportunity a truism. The core of the commitment of the
Constitution of the social revolution through rule of law lies in effectuation of the
fundamental right directive principles as supplementary and complementary to each
other. The Preamble, fundamental rights and directive principles - the trinity - are the
conscience of the Constitution. Political democracy has to be stable. Socio-economic
democracy must take strong roots and should become a way of life. The State, therefore,
is enjoined to provide adequate means of livelihood to the poor, weaker sections of the
society, the Dalits and Tribes and to distribute material resources of the community to
them for common welfare etc".7

7
LIC v. Union of India v. Consumer Education and Research Centre, (1995) 5 SCC 482
Right to Life with Human Dignity and Rape

Rape is the violation of the most crucial right of women which is right to life under Article 21
of the constitution. Rape is the most heinous crime committed to demolish the respect of a
woman and is a crime in the nature of bestiality. More often than not rape is committed by
known people rather than stranger. The major issue behind rising rape cases is the meagre or
low conviction rates. The rape cases like Hyderabad Rape case of 2019 and Nirbhaya Rape
case got the public uproar and attention which resulted in speedy process of justice and by
law enforcement authorities but the fact that majority of rape cases like that of Adivasi girls 8
are not even properly investigated is a grave concern even today.

"In recent years, we have noticed that crime against women are on the rise. These crimes are
an affront to the human dignity of the society. Imposition of grossly inadequate sentence and
particularly against the mandate of the legislature not only is an injustice to the victim of the
crime in particular and society as a whole in general, but also at times encourages a
criminal. The Courts have an obligation while awarding punishment to impose appropriate
punishment so as to respond to the society's cry for justice against such criminals."9

The right to life enshrined under Article 21 of the Indian Constitution includes the right to
live with human dignity. Both men and women have the right to life with human dignity in
India. It says that no person shall be deprived of his right to life or personal liberty except y
the procedure established by law. The Supreme Court has widened the ambit of this article by
Judicial Activism in various mentioned cases to include the right of a woman on her body.
The right to life now does not means mere animal existence but a right to life with personal
liberty. It has included positive dimensions and human rights into the sphere of Article 21 and
has widened its scope to include various rights required for a life with personal liberty or
dignity.

8
ETB Sivapriyan, Adivasi girl gang-raped; dies, DHNS, Chennai, NOV 11 2018, 21:13 IST
9
STATE OF A.P. v. BODEM SUNDARA RAO (A.I.R.1996 S.C.530)
The right of a rape victim comes under the Article 21, who has been subjected to non-
consensual sexual intercourse by a person which is a sheer violation of her right to life, right
to her body10, right to human dignity11 and a serious violation of her right to privacy. The
Supreme Court in the case of Bodhisattawa Gautham v. Subhira Chakroborthy 12, held that the
crime or offence of rape is not only against one person but it is against the whole society. In
this case a student was raped on the pretext of marriage by her professor. Later she got
pregnant and the baby was aborted twice. The relationship between the professor and student
continued with the promise of marriage. The Supreme Court in this case stated that the
offence of rape is not against one person but it affects the entire society at large. It ends up
destroying the entire psychology of the victim or woman. It pushes the victim into severe
emotional crisis and is a violation her human rights, which in turn is violative of her right to
life under the Article 21 of the Indian Constitution13.

The Supreme Court in the case of Bodhisattva Godhwa vs. Subhra Chakraborty, said that-

"The jurisdiction to pay interim compensation shall be treated to be part of the overall
jurisdiction of the Courts trying the offences of rape which is an offence against basic human
rights as also the Fundamental Rights of Personal Liberty and life. "14

In the case of Chairman, Railway Board V. Chandrima Das 15, a writ petition was filled by an
advocate in the Calcutta High Court on behalf of a Bangladeshi National named Hanufa
Khatoon. It was filled against the eastern railway authorities for compensation. The victim
was raped at the Howrah Station. The High Court in this matter held the railway authority
had to pay her a compensation of 10 lacs. The railway authorities filled an appeal in the
Supreme Court stating that they were not liable to pay her the compensation and she should

10
K.I. Vibhute, VICTIMS OF RAPE AND THEIR RIGHT TO LIVE WITH HUMAN DIGNITY
AND TO BE COMPENSATED: LEGISLATIVE AND JUDICIAL RESPONSES IN INDIA, Journal
of the Indian Law Institute
Vol. 41, No. 2 (April-June 1999), pp. 222-236
11
Vikram Deo Singh v. State of Bhiar, AIR 1988 SC 1782
12
Bodhisattva Godhwa vs. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
13
Ibid
14
Ibid
15
The Chairman, Railway Board vs Mrs. Chandrima Das, (2000) 2 SCC 465
have approached the civil court for damages. The railway authority stated that compensation
is in the ambit of private law and not public law, therefore the damages should be claimed in
the Civil Court and not the High Court.

When the matter reached the Supreme Court, it held that the victim can be provided relief on
the ground of domestic jurisprudence and Human Rights Jurisprudence under the Universal
Declaration of Human Rights, 1948 adopted India at the General Assembly of the United
Nations.

The Supreme Court further said that-

"Where public functionaries are involved and the matter relates to the violation of
fundamental rights or the enforcement of public duties, the remedy would be avoidable under
public law. It was more so, when it was not a mere violation of any ordinary right, but the
violation of fundamental rights was involved- as the petitioner was a victim of rape, which a
violation of fundamental right of every person guaranteed under Article.21 of the
Constitution.".16

In the case of Parhlad V. State of Haryana 17, the Supreme said that rape is an offense on the
basic human rights of the victim. It is a violation of the fundamental rights of the victim. It
creates a incurable effect on the victim’s body, mind, rights, free will and her sovereignty. It
creates a scar on the mind of the rape victim. The Supreme Court said that a crime of rape is a
violation of Article 14 and Article 21 of the Indian Constitution.

Justice Deepak Misra further said-

“The Constitution of India, an organic document, confers rights. It does not condescend or
confer any allowance or grant. It recognises rights and the rights are strongly entrenched in
the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity
16
Ibid
17
Parhlad V. State of Haryana
of every citizen flows from the fundamental precepts of the equality clause engrafted under
Articles 14 and right to life under Article 21 of the Constitution, for they are the fon juris of
our Constitution. The said rights are constitutionally secured.”18

For a very long time the victims of rape were no awarded compensation and such
discretionary powers were not getting invoked. The Law Commission of India said that it was
regrettable that the courts of the country were not exercising their statutory power freely and
liberally as desired19. The courts have directed compensation to be paid to the victim by the
accused and the same should be cautiously calculated. The Supreme Court has said that there
is a need for social justice with heavy fines20 being imposed on the accused of rape21.

The Supreme Court has the power under Article 32 with writ jurisdiction to award
compensation for any violation of the fundamental right of right to life and personal liberty 22.
It also allows the exception to the doctrine of locus standi to allow public spirited person to
file a writ on behalf of someone else, who himself cannot approach the court on account of
poverty, disability, social or economic disadvantaged person.

After these cases and judicial activism of the Supreme Court, the victims of rape are entitled
to claim compensation from the accused for the violation of human rights and right to life
with human dignity23.

The Supreme Court has time and again state rape to be a crime against the basic fundamental
rights of a woman and for which she needs to be adequately compensated by the accused.
The legislature, courts and various NGO’s have paved the way forward for the protection and

18
Ibid
19
Law Commission of India, Forty-First Report: The Code of Criminal Procedure, Vol 1, p. 356
(1969)
20
N. B. Pant V. State, AIR 1977 SC 892
21
P.P. Sah V. Bihar, AIR 1977 SC 704
22
Rudal Shah V. State of Bihar, AIR 1983 SC 1086
23
Bodhisattva Godhwa vs. Subhra Chakraborty, 1996 AIR 922, 1996 SCC (1) 490
compensation of the victims of rape and have evolved the criminal jurisprudence with
compensatory jurisprudence24.

Right to Compensation

The principle of compensating victims of crime has become a part of the modern
jurisprudence for quite some time. However, it needs to be seen that this compensation for
the most part is only supposed to be a nominal one rather than an actual compensation based
on the damage caused by the violent crime against the victim. There is no comprehensive
legislation or a test established or propounded for calculating any such compensation to
which the victim might be entitled. The state makes payments to the victim ex-gratia (out of
graciousness of the state) which is actually humiliating not forgetting the fact that is
completely inadequate to the damages cause. At the same time, there is no logical reasoning
by which the court is bound to test the damages. As such, the entire act is completely
arbitrary and on total discretion of the judge. This kind of compensation is also ad-hoc and
there is no institutionalised format for the same.

Even the Law Commission of India did not favour the payment of compensation to the victim
of the crime as an additional punishment. 25 Our country is a signatory under the Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the
United Nations General Assembly in 1985 and accordingly is bound by the treaty to bring in
place a legislation for the compensation of such damages to be put in place to ensure that
victims of crime get compensation. The Declaration also says that when compensation is not
fully available from the offender or other sources, State should provide financial
compensation at least in violent crimes, resulting in bodily injury for which national funds
should be established.

24
K.I. Vibhute, VICTIMS OF RAPE AND THEIR RIGHT TO LIVE WITH HUMAN DIGNITY
AND TO BE COMPENSATED: LEGISLATIVE AND JUDICIAL RESPONSES IN INDIA, Journal
of the Indian Law Institute
Vol. 41, No. 2 (April-June 1999), pp. 222-236
25
Law Commision of India, 42nd Report, Indian Penal Code 52 (1971).
With regard to the compensation to the victim of crimes, we have provisions like section 357
of the Cr.P.C, 1973, section 5 of the Probation of offenders Act, 1958, and Article 21 of the
Constitution of India. These provisions however, have their shortcomings.

Firstly, the Constitution of India provides compensation if the fundamental right is violated
by the state.

Secondly provisions under the statutory laws are very narrow. They can hardly provide
adequate compensation to the women victims of rape. Section 357 of the Criminal Procedure
Code, 1973 is not a complete and substantive provision by which every victim may get
compensation. The provision of sub-section (1) of section 357 is subject to some inherent
limitations.

Thirdly the quantum of compensation is limited to the fine levied and not in addition to it.
Furthermore, compensation can be ordered only out of the fine realized and if no fine is
realized compensation to the victim cannot be directed to be realized.

Fourthly in very rare cases under the Indian Penal Code, 1860 the maximum amount of fine
is imposed. It is important to take a note here that the IPC was brought into effect in 1860,
ever since then there have been many amendments however, the law against compensation
has not been amended extensively and as such compensation described in these provisions
are wholly untenable and impractical today. Compensation under the above section can be
allowed by the court if it is of the opinion that the compensation is recoverable by such
person in a civil court.

Finally, as stated above, compensation to the victim under section 357 Cr.P.C is at the
discretion of the court and not compulsory. A victim is awarded compensation on proof of
loss and injury. The loss or injury must be of such a magnitude to justify a civil action, which
is actually a rule of tort aw which shouldn’t have been hastily applied to such grave offences,
for tort law is in fact compoundable in nature and rape is not a compoundable offence and the
damages asked by the victim aren’t a part of wrongful restraint or malicious prosecution but
for mental and physical agony of the highest order.. It is rather unfortunate that in recent
times, there has been an increase, in violence against women causing serious concern. Rape
does indeed pose series of problems for the criminal justice system. There are cries for
harshest penalties, by often times such crimes eclipse the real plight of the victim.

Rape is an experience which sakes the foundations of the lives of the victims. For many, its
effect is a long-term one, impairing their capacity for personal relationships, altering their
behaviour values and generating and less fears. In addition to the trauma of the rape itself,
victims have had to suffer further agony during legal proceedings. Observing this, the
Supreme Court in Bodhisattwa Gautam v Subhra Chakraborty26 awarded interim
compensation to the tune of Rs. 1000/- per month to the victim during the pendency of the
criminal case holding that

“if the Court has jurisdiction to award compensation at the final stage, similarly it has also
power to award interim compensation.”

Facts of the instant are quite peculiar as there was a serious allegation that Bodhisattwa
Gautam had married Subhra Chakraborty before the God he worshipped by putting Vermilion
on her forehead and accepting her as his wife and also impregnated her twice resulting in
abortion on both the occasion. But the wicked accused forgetting the consequences of his all
fraudulent activities in total disregards of their marriage and their relationship refused to
accept the complainant as his wife and abandoned the complainant asking her to forget all her
dream. The complaint was registered under Sections 312/420/493/496/498-A of Indian Penal
Code and Bodhisattwa Gautam was summoned. However, the Accused filed a petition under
section 482 of CrPC in front of the High Court to quash the order of summons contending
that on perusal of the facts of the case, there was no case against him. The High Court
however, quashed this petition. The Accused then plead his case in front of the Supreme
Court. However, to no avail as the Supreme Court did not interfere with the judgement of the
High Court. In the instant case the Court took suo motu notice to the facts of this case as

26
AIR 1996 SC 922
narrated in the complaint and issued notice to the petitioner as to way he should not be asked
to pay reasonable maintenance per month to the respondent during the pendency of the
prosecution proceedings against him. The court finally observed that:

"The jurisdiction to pay interim compensation shall be treated to be part of the overall
jurisdiction of the Courts trying the offences of rape which is an offence against basic human
rights as also the Fundamental Rights of Personal Liberty and life. "

The above trend set by the Apex Court is a welcome step towards the recognition of the
victim's agony in a practical way. Compensation to the victim in the Indian criminal justice
system, would help the women victims of rape. The compensation to the victims of rapes
either from the person who committed the crime or the state would provide them economic
stability and they would be in a better position to respond to the legal proceedings.

Compensation to be given to the victim should include both, interim as well as final
compensation. Giving adequate statutory power to. the courts to pay compensation to the
victims of crime would therefore be a good measure in this regard. Towards this end
introduction of a new chapter under the head 'Compensation to the victims of crime' in the
Code of Criminal Procedure, 1973 is therefore, suggested. The Apex Court in a number of
cases has held that rape is a violation of fundamental right contained in Article 21 of the
Constitution. In spite of these no reprieve in the form of legislation awarding compensation to
the victims of rape is coming from the government.

Right to Speedy Trial

The Indian Constitution under the Article 21 provides the Right to life with liberty and also
provides the right to a speedy and fair trial under this Article in the Constitution27.

27
Kartar Singh V. State of Punjab, Hussainara Khatoon v. Home Secretary, State of Bihar
The right to speedy trial is an essential of the article 21 under the right ot life and liberty, as
also stated by the Supreme Court in the case of Kartar Singh V. State of Punjab28 and
Hussainara Khatoon v. Home Secretary, State of Bihar29.

In the case of State of Karnataka v/s Shivanna @ TarkariShivanna30, the Supreme Court of
India took notes of the disturbing feature of consistent recurrence of the heinous crime of
rape and gang rape in the country. It issued certain guidelines for a fast track procedure of
investigation and removing the delay attached to such cases.
It said that a Fair and effective investigation by means of a fast track mode in each case of
rape, along with media reporting at all necessary stages of it, would play a crucial role in
securing speedy and fair justice in cases of rape.

Right to speedy trial was again held to be essential of Fundamental Right under Article 21 in
the case of A. R. Antulay 31 and in the case of P. Ramachandra Rao32 . The court in these
cases held that the constitution does not declare right to speedy trial as a fundamental right
under Article 21 but it is implicit in the broad reading and understanding of the Article 21.
Also, reasonably expeditious trial is an integral and essential part of the fundamental right
enshrined under Article 21 of the constitution which is right to life and liberty.

The court in the case of Hussainara Khatoon v. Home Secretary, State of Bihar33 said that

“it is the constitutional obligation of the State to dispense speedy justice more so in the field
of criminal law and paucity of funds or resources is no defense for denial of right to justice
emanating from Article 21,19 and 14 and the preamble of the Constitution as also from the
directive principles of State Policy”.

This same principle was relied and reiterated in the case of Ranjan Dwivedi vs Union of India
34
.

28
Ibid
29
Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
30
State of Karnataka v/s Shivanna @ TarkariShivanna, SLP (CRL.) NO. 5073/2011
31
A.R. Antulay vs R.S. Nayak & Anr, 1988 AIR 1531, 1988 SCR Supl. (1) 1
32
P. Ramachandra Rao vs State Of Karnataka, Appeal (crl.) 535 of 2000
33
Hussainara Khatoon v. Home Secretary, State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
34
Ranjan Dwivedi vs Union Of India, 1983 SCR (2) 982, 1983 SCC (3) 307
The Constitutional Bench in the case of Abdul Rehman Antulay v. R.S. Nayak (1992) 1
S.C.C. 225, held the following and laid down the following guidelines in the present case-

“1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a
right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The
fact that a speedy trial is also in public interest or that it serves the social interest also does
not make it any the less the right of the accused. It is in the interest of all concerned that the
quilt or innocence of the accused is determined as quickly as possible in the circumstances.

2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage
of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has
understood this right and there is no reason to take a restricted view.

3) The concerns underlying the right to speedy trial from the point of view of the accused
are :-

(a) the period of remand and pre-conviction detention should be as short as possible. In other
words, the accused should not be subjected to unnecessary or unduly long incarceration
prior to his conviction;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself,
whether on account of death, disappearance or non-availability of witnesses or otherwise.

4) At the same time, one cannot ignore the fact that it is usualy the accused who is interested
in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since
the burden of proving the quilt of the accused lies upon the prosecution, delay ordinarily
prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse
of time really work against the interest of the prosecution. Of course, there may be cases
where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every
case, where the right to speedy trial is alleged to have been infringed, the first question to be
put and answered is - who is responsible for the delay? Proceedings taken by either party in
good Maith to vindicate their rights and interest, as perceived by them, cannot be treated as
delaying tactics nor can the time taken in pursuing such proceedings be counted towards
delay. It goes without saying that frivolous proceedings or proceedings taken merely for
delaying the day of rockoning cannot be treated as proceedings taken in good faith. The more
fact that an application/petition is admitted and an order of stay granted by a superior court
is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained
on ex-parte representation.

5) While determining whether undue delay has occurred (resulting in violation of Right to
Speedy Trial) one must have regard to all the attendant circumstances, including nature of
offence, number of accused and witnesses, the workload of the court concerned, prevailing
local conditions and so on - what is called, the systemic delays. It is true that it is the
obligation of the State to ensure a speedy trial and State includes judiciary as well, but a
realistic and practical approach should be adopted in such matters instead of a pedantic one.

6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed
work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how
long a delay is too long in a system where justice is supposed to be swift but deliberate". The
same idea has been stated by whitel, J. in U.S. V. Ewell in the following words:

... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with
delays, and has orderly expedition, rather than more speed, as its essential ingredients; and
whether delay in completing a prosecution amounts to an unconstitutional deprivation of
rights depends upon all the circumstances'. However, inordinately long delay may be taken
as presumptive proof of prejudice. In this context, the fact of incarceration of accused will
also be a relevant fact. The prosecution should not be allowed to become a persecution. But
when does the prosecution become persecution, again depends upon the facts of a given case.

7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot
try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea
of denial of speedy trial cannot be defeated by saying that the afccused did at no time demand
a speedy trial. If in a given case, he did make such a demand and yet he was not tried
speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial
cannot be put against the accused. Even in USA, the relevance of demand rule has been
substantially watered down in Barker and other succeeding cases.

8) Ultimately, the court has to balance and weigh the several relevant factors - balancing test
or 'balancing process' - and determine in each case whether the right to speedy trial has been
denied in a given cases.

9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of
an accused has been infringed the charges or the conviction, as the case may be, shall be
quashed. But this is not the only course open. The nature of the offence and other
circumstances in a given case may be such that quashing of proceedings may not be in the
interest of justice. In such a case, it is open to the court to make such other appropriate order

- including an order to conclude the trial within a fixed time where the trial is not concluded
or reducing the sentence where the trial has concluded - as may be deemed just and equitable
in the circumstances of the case.

10) It is neither advisable nor practicable to fix any time limit for trial of offences. Any such
rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden
of proving justification on to the shoulders of the prosecution. In every case of complaint of
denial of right to speedy trial, it is primarily for the prosecution to justify and explain the
delay. At the same time, it is the duty of the court to weigh all the circumstances of a given
case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly
refused to fix any such outer time limit in spite of the Sixth Amendment. Nor do we think that
not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.

11) An objection based on denial of right to speedy trial and for relief on that account, should
first be addressed to the High Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case of grave and exceptional
nature. Such proceedings in High Court must, however, be disposed of on a priority basis.”35

Further in the case of Kartar Singh versus State of Punjab (1994) 3 S.C.C. 569, the court
said that-
35
Abdul Rehman Antulay v. R.S. Nayak, 1992 1 S.C.C. 225
"The concept of speedy trial is read into Article 21 as an essential part of fundamental right
to life and liberty guaranteed and preserved under out Constitution. The right to speedy trial
begins with the actual restraint imposed by arrest and consequent incarceration and
continues at all stages, namely, the stage of investigation, enquiry, trial, appeal and revision
so that any possible prejudice that may result from impermissible and avoidable delay from
the time of the commission of the offence till it consummates into a finality, can be averted. In
this context, it may be noted that the constitutional guarantee of speedy trial is properly
reflected in Section 309 of the Code of criminal Procedure ................. Of course, no length of
time is per se too long to pass scrutiny under this principle nor the accused is called upon the
show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to
adopt a balancing approach by taking note of the possible prejudices and disadvantages to
be suffered by the accused by avoidable delay and to determine whether the accused in a
criminal proceeding has been deprived of his right of having speedy trial with unreasonable
delay which could be identified by the factors - (1) length of delay, (2) the justification for the
delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the
accused by such delay. However, the fact of delay is dependent on the circumstances of each
case because reasons for delay will very, such as delay in investigation on account of the
widespread ramification of crimes and its designed network either nationally or
internationally, the deliberate absence of witness or witnesses, crowded dockets on the file of
the court etc."36

Right against Police Exploitation

There is an urgent need to check and keep a tab on the police power so that no exploitation of
the victim or custodial crime take place. “How do we check the abuse of police power?
Transparency of action and accountability perhaps are two possible safeguards which this
Court must insist upon. Attention is also required to be paid to properly develop work culture,
training and orientation of police force consistent with basic human values. Training
methodology of the police needs restructuring. The force needs to be infused with basic
human values and made sensitive to the constitutional ethos. Efforts must be made to change
the attitude and approach of the police personal handling investigations so that they do not
36
Kartar Singh versus State of Punjab, 1994 3 S.C.C. 569
sacrifice basic human values during interrogation and do not resort to questionable form of
interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee
at some point of time during the interrogation may deter the police from using third degree
methods during interrogation.” 37

It further said-

“There is one other aspect also which needs out consideration, We are conscious of the fact
that the police in India have to perform a difficult and delicate task, particularly in view of
the deteriorating law and order situation, communal riots, political turmoil, student unrest,
terrorist activities, and among others the increasing number of underworld and armed gangs
and criminals, Many hard core criminals like extremist, the terrorists, drug peddlers,
smugglers who have organised gangs, have taken strong roots in the society.

It is being said in certain quarters that with more and more liberalisation and enforcement of
fundamental rights, it would lead to difficulties in the detection of crimes committed by such
categories of hardened criminals by soft peddling interrogation. It is felt in those quarters
that if we lay too much of emphasis on protection of their fundamental rights and human
rights such criminals may go scot-free without exposing any element or iota or criminality
with the result, the crime would go unpunished and in the ultimate analysis the society would
suffer. The concern is genuine and the problem is real. To deal with such a situation, a
balanced approach is needed to meet the ends of justice.”

The right to life guaranteed under the constitution means the right of a person to lead a
meaningful and dignified life. Article 21 has been time and again interpreted by the Supreme
Court and thus the scope of the same is extended by various landmark judgements over the
years. The Article 21 today is one of the most important and strongest rights under the
Constitution. This is the most important facet of the Indian Constitution.

37
CRIMINAL MISC. WRIT PETITION No. - 11158 of 2015