Article 21

05-10-2023
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY
ARTICLE 21
JOURNEY FROM GOPALAN TO MANEKA
ATUL KUMAR TIWARI’S CLASS
21. Protection of life and personal liberty.—

No person shall be deprived of his life or

personal liberty except according to
procedure established by law.
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Early days: Little room for judicial creativity

• The framers of the Constitution wanted to use specific

words with definitive meaning - leaving little room for
judicial creativity
• The adjective ‘personal’ was used to qualify the noun
‘Liberty’
• ‘procedure established by law’ was borrowed from Article
31 of the Japanese constitution and
• was substituted in place of the original phrase ‘due process
of law’.
A K Gopalan vs State of Madras, AIR 1950 SC 27

• Fact: A K Gopalan was put behind bars under the

Preventive Detention Act 1950, which had just been
enacted by the parliament
• this detention order, along with the law under which it was
passed, was subject to examination before the Supreme
Court
• Issue: whether the Supreme Court, under the constitution,
was enabled to decide on the reasonableness of the
Preventive Detention Act?
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Supreme Court Held: (4:2)

• The counsel for the detenu wanted the procedure established by law should
be interpreted to mean fair and reasonable procedure established by law and
• not any procedure prescribed by a system of positive law irrespective of the
fact that it was wholly capricious and arbitrary.
Majority (Kania CJ etc.)
• refused to accept the aforesaid arguments
• - He read the expression ‘ procedure established by law’ to mean any
procedure prescribed by a piece of positive law.
• - He noted the fact that the framers designedly used the words ‘Procedure
established by law’, which carried a definitive meaning, in place of the vague
phrase ‘due process of law’.
JUSTICE MUKHERJEA
• held that law in Article 21 meant the state-enacted law and did not
carry with it any abstract notion of justice or fairness
• it would give no guarantee against possible legislative vagaries
• was a matter of constitutional policy which the courts could not
correct
• he referred to the provisions of the Japanese and the Iris constitution
in this respect
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Justice Das
• our constitution was a compromise between the notions of

Legislative supremacy and judicial supremacy, which are
respectively prevalent in the UK and in the USA
• subject to the limitations imposed by the Constitution, the
legislature was supreme in India
• Therefore, if within the sphere of its authority, the legislature
abused its power, the courts could not provide a remedy
• the court must take the Constitution as it finds it
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THE MAJORITY JUDGES (4)

• Were not ready to read articles 19 and 21 together
• Article 19 talked of restriction, whereas Article 21 provided for total
deprivation
• Article 19 applied only to citizens, whereas Article 21 applied to all persons
• Article 19 did not contain anything equivalent to the right to life guaranteed
under Article 21
• nor did it contain several aspects of personal liberty guaranteed under the
article, such as the right to eat, drink, work or play
• ‘Personal liberty’ would mean Liberty of the physical body and is quite different
from the freedom guaranteed under Article 19(1), including the freedom to move
throughout the territory of India
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Justice Fazal Ali (Minority view)

• He disagreed with the approach of the above four judges

• held that ‘ law’ meant valid law and procedure meant a certain definite rule of
proceeding and not something which was a mere pretence for the same.
• Referring to the book of Professor Willis on Constitutional law, he said that
such procedure should have four elements: 1. Notice 2. opportunity to be
heard 3. an impartial Tribunal 4. orderly course of procedure
• the provisions of articles 19, 21 and 22 were not mutually exclusive, and there
was considerable overlapping between them.
• In his view, the right to free movement was the essential part of the right to
personal liberty.
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POST GOPALAN DEVELOPMENT

H M Seervai :
• if the term personal liberty is interpreted so liberally as to
include the freedoms guaranteed under Article 19 (1),
• the whole purpose of restricting the scope of Article 19
(1) rights limited to citizens alone would get defeated
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(I) MEANING OF PERSONAL LIBERTY

• The developments eventually prepared the ground for total

repudiation of the Gopalan approach in the interpretation of
Article 21 in Maneka Gandhi v. Union of India.
• The cases are discussed under the following two heads:
1. Meaning of personal liberty
2. Applicability of Article 19
• The meaning of “procedure established by law” remained

undisputed until it was revised in Maneka Gandhi.
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KHARAK SINGH V. STATE OF UTTAR

PRADESH, AIR 1963 SC 1295

(6-judge bench)
FACTS:
The constitutionality of regulation 236 of UP Police Regulations ( executive instructions)
was challenged.
● Petitioner contended that right under Articles 21 and 19 (1)(a) and (d) were infringed
● Regulation authorised police surveillance of a history-sheeter involved-
○ domiciliary visits at night to find out where the person concerned was at home
○ secret picketing of the house of the person to see what kind of persons were visiting
him
○ shadowing the person when he went out of the house
○ inquiring about his association, conduct, income, occupation and means of
livelihood and a few other things
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…KHARAK SINGH
● unanimously held that part of the regulation which authorised domiciliary

visits at night was violative of personal liberty under Article 21.
● The majority judgement for four judges was delivered by justice Ayyangar
● liberty was qualified by the adjective personal
● the only function that the adjective served was to keep the scope of the
freedom under Article 19 (1) (a) separate from that of Article 21
● Personal liberty in Article 21 was used as a compendious term to include
within itself all the varieties of rights which go to make up the personal
liberties of men other than the rights separately guaranteed under several
clauses of article 19(1)
● the majority was not ready to interpret personal liberty to include the right
to privacy
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JUSTICE SUBBA RAO (MINORITY OPINION)

● Two judges (minority) - held that the rest of the regulation was also void for
violation of Articles 19 (1) (a) and (d)
● personal liberty is wide enough in its meaning so as to include the right to
privacy
● right to personal liberty under Article 21 had many attributes, some of which
were already guaranteed under article 19 (1)
● this would mean that a law interfering with some such aspect of personal liberty
must satisfy the requirements of both articles 19 and 21.
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SATWANT SINGH SAWHNEY V. D. RAMARATHNAM,

AIR 1967 SC 1836
● It was held that personal liberty under Article 21 includes the right to travel
abroad.
● Chief Justice Subba Rao speaking for the majority, said that the essence of
personal liberty lay in the right of free movement.
● Since movement within the territory of India is covered under Article 19 (1)(d)
● the residue, i.e. the right to move outside the territory of India, must be understood
to be comprised of the guarantee of personal liberty under Article 21.
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(II) APPLICABILITY OF ARTICLE 19

• Question- can a petitioner call into question a law both under Article 19
(1) and Article 21 on the ground that the rights under the two provision
overlap?
• - in Gopalan, the majority refused to adjudge the constitutionality of the
preventive detention law on the touchstone of Article 19.
• - this has been construed as representing the thesis that each article
embodying a fundamental right was a separate Island, conceptually
separated from other fundamental rights.
• -this is one of the sins attributed to Gopalan decision, and the accusation
has been repeated in several cases, including in Maneka Gandhi
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RC COOPER V. UNION OF INDIA,

(1970) 1 SCC 248

• 11 judges bench held that all deprivation of the property was eligible for
the protection of Article 19 (1)(f)
• - indeed, the Cooper bench debunked the theory of non-application of
Article 19 in conjunction with another Article, 31 or 21.
• -It was held that most of the rights had overlapping dimensions, and it
was possible for a law to be impugned under more than one Article.
• - RC Cooper was a property right case, but the court did not care to
distinguish the nature of the relationship of Article 19 (1) (f) with Article 31
and that of Article 19 (1) (d) with Article 21.
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HARADHAN SAHA V. STATE OF WEST BENGAL,

AIR 1974 SC 2154
• The provisions of The Maintenance of Internal Security Act, 1971, were

examined for their conformity with Article 19
• on the assumption that after RC Cooper, a preventive detention law has
to satisfy the requirements of reasonableness under Article 19.
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MANEKA GANDHI V. UNION OF INDIA,

AIR 1978 SC 597
7 JUDGES
After the Supreme Court decision in Satwant Singh that personal liberty under article 21 included
within its fold the right to travel abroad, Parliament passed the Passport Act 1967, and clothed the
then existing executive authority of the Government of India with law in the matter of-
● Issue
● impounding and
● cancellation of passports
• Section 10 (3) (c ) - The passport officer as well as the Government of India have the power to
impound the passport for various reasons including the ‘interest of the general public’.
• Section 10 (5) - Reasons must be recorded for taking the decisions and supplied to the aggrieved
person if he demands. But this may be withheld for certain regions including the ‘interest of the
general public’.
• Section 11 - If the decision is of an authority other than the central government, an appeal can be
preferred to the central government under the Act.
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…MANEKA GANDHI
FACTS:
● Maneka Gandhi’s passport was impounded by the government
● When she asked the reasons for the decision, she was told that the same could not be disclosed
in the ‘interest of the general public.
● She filed a writ petition in the Supreme Court challenging the constitutionality of the order and
that of section 10 (3) (C), for violation of Article 14 because of their arbitrary nature.
● The petition was amended and it was also contended that the impugned order and the provisions
of the Passport Act, 1967 also violated her fundamental rights under Article 21 and Article 19
(1) (a) and (g).
● At the hearing, the attorney-general gave an undertaking that the government would consider
expeditiously any representation made by the petitioner, and that, in case the decision was finally
to impound the passport, it would not be for more than 6 months.
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…MANEKA GANDHI
1. The right to travel abroad was a part of the right under Article 21 and not that of Article 19 (1) (a) or 19
(1) (g)
2. If a citizen was prevented from going abroad so as to interfere with the exercise of his right under
Article 19 (1) (a) and (g), the action of the government will have to satisfy the requirements of not only
Article 21 but also of Article 19(2) or (6) as the case may be
3. Fundamental rights guaranteed under different articles overlapped with each other and did not
constitute exclusive separate zones
4. Content of personal liberty guaranteed under Article 21 to a large extent also partook of the rights
guaranteed under Article 19 (1)
5. The ‘procedure established by law’ under Article 21 meant ‘fair and reasonable procedure’ and not an
arbitrary procedure.
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[I] ‘PROCEDURE ESTABLISHED BY LAW’ MEANS

THE ‘FAIR AND REASONABLE PROCEDURE’

• Justice Bhagwati >>>
• since a law coming under Article 21 has to satisfy the requirements of Article 14, and
• since the right to equality guaranteed under Article 14 is antithetical to arbitrariness,
• the natural inference will be that fairness is an essential component of Article 21 itself.
• Chief justice Baig and Justice Krishna Iyer >>> Concurred but gave different reasons.
• Article 22 ensures minimum procedural fairness in matters of criminal trial and in preventive
detention cases.
• but when a person is deprived of personal liberty in other respects and in a form that neither
amounts to detention nor does it threaten imprisonment,
• Article 22 safeguards are not available >> denial of the right to travel comes in this category.
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[II] INTERRELATIONSHIP BETWEEN

ARTICLES 19 (1) AND 21
• Justice Bhagwati accepted the viewpoint of Justice Subba Rao in Kharak Singh, on the
meaning of personal liberty and the interrelationship between article 19 (1) and Article 21.
• Holding has some important implications:
1. A non-citizen like a corporation can invoke Article 21 for claiming the right to freedom of the
press under Article 19 (1) (a) and the right to freedom of trade and business under Article 19
(1)(g)
2. When Article 19 (1) (f) and Article 31 containing property rights have been deleted by the
Constitution (44th Amendment) Act 1978,
-it remains a practical possibility that the essence of the right to property may be held
to form part of personal liberty in Article 21.
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ARTICLE 21
EXPANSION OF THE RIGHT TO ‘LIFE’ AND ‘PERSONAL LIBERTY’
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RIGHT TO LIFE:
IT'S MEANING AND CONTENT
• Judges have generally borrowed the content either from

• Directive Principles of State Policy or
• from International conventions to which India is a party, even though the convention
has not yet been made a part of domestic law by appropriate legislation.
• This way it cannot be alleged that the judges are translating their own
personal preferences as part of enforceable constitutional law.
• And in the process a large number of unenumerated rights have been
judicially created most of these rights are part of the right to life.
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Judicial creativity: two different ways

1. If the constitution uses a term which has the potential of having a very broad
meaning, for example,
• the right to freedom of expression in Article 19 (1) (a) or the right to personal liberty in
Article 21,
• it becomes a matter of pure policy and practicability regarding how much of it should be
earmarked as part of a legally or constitutionally protected right.
2. But the courts, at times, also resort to creating concomitant rights, rights which help
to make the expressly guaranteed rights more effective and meaningful.
• For example the right to life in its narrowest meaning will be the right to remain alive.
• Little broader meaning of the term will bring into its fold the right to the sanctity of bodily
Limbs and sense-organs as well.
• A concomitant meaning will add things which help to sustain life, like food, shelter and
clothing.
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RIGHT TO LIFE: GENERAL SCOPE

• All the rights, legal or constitutional, belong to the living.

• Therefore, the right to life must be accepted as the most important,
indeed the Paramount right of each individual.
• The right to self-preservation is the natural instinct.
• That it is an inherent right of each of us is exemplified by the fact that
criminal laws of all societies conceived the legitimate exercise of force of
self-defence.
• Therefore, it is in the fitness of things that the constitution of India
guarantees the right to life, which cannot be taken away except according
to procedure established by law.
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MUNN V. ILLINOIS, 94 U.S.113 (1877)

(FIELD, J. OF THE US SUPREME COURT IN A DISSENTING JUDGEMENT)

• “ By the term “life” as here used, something more is meant than mere animal existence.
• The inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed.
• The provision equally prohibits the mutilation of the body or amputation of an arm or leg or
the putting out of an eye or the destruction of any other organ of the body through which the
soul communicates with the outer world…”
• The above observations were made concerning the 14th amendment of the United States
Constitution which, among other things, provides that one shall not be deprived of his life,
liberty or property except by due process of law.
• IN KHARAK SINGH V. STATE OF UP, (1964) 1 SCR 332

• Both the majority and minority judges quoted it with approval and felt that it correctly defined the
scope of the ‘right to life’ under article 21 of our constitution as well.
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FRANCIS CORALIE V. UNION TERRITORY OF

DELHI, (1981) 1 SCC608

• Bhagwati, J. observed that
• the right to the sanctity and security of the limbs and sense faculties of the body would be
considered to have been violated whether the impairment was total or partial, permanent or
temporary.
• He stated:
• “The right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities
for reading, writing and expressing oneself in diverse forms, freely moving, about mixing and co-
mingling with fellow human beings”.
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EXPANSION OF FUNDAMENTAL RIGHTS

For the sake of clarity, we shall discuss the judicially recognised interests
related to the right to life by putting them into three categories:
1. Rights which are purely constitutional in character and possess an
element of legal sanction
2. Rights which are simultaneously ordinary legal rights and constitutional
rights and carry legal sanction at both the levels.
3. Interests which are judicially recognised but still fall short of the
standard required for calling them a right, legal or constitutional.
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EXCLUSIVELY CONSTITUTIONAL RIGHTS

In this category, we shall discuss two rights - the right to education and the right to
livelihood.
Right to Education:
• After the enactment of the Constitution (Eighty-Sixth Amendment) Act 2002 Article 21-A
has been inserted into the Constitution.
• It says that “The State shall provide free and compulsory education to all children
of the age of six to fourteen years in such manner as the State may, by law,
determine.”
• Article 45 in part IV now read that “the state shall endeavour to provide early childhood
care and education for all children until they complete the age of six years”. therefore,
now the right to education is no more unenumerated.
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MOHINI JAIN VS STATE OF KARNATAKA

(1992) 3 SCC 666
• A two-judge bench declared education as a concomitant

right related to the right to life because
• without it other rights would lose their vitality.
• the right was declared in a positive tone and apparently in
an absolute form.
• It was said that the right to education extended to all
stages, including Medical and Technical Education.
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…MOHINI JAIN
• The court held that to ask students admitted against a non-

government seat to pay Rs. 60000/- as a fee
• when a student admitted against a government seat was
required to pay only Rs. 2000/- amounted to imposition of
capitation fee.
• The court held that the prescribed fee structure was invalid
because it violated Articles 14 and 21 of the Constitution.
• The right to equality under article 14 was infringed because
the rule prescribing Rs. 60000/- per annum as fee was
arbitrary.
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…MOHINI JAIN
• Article 21 was violated because the right to life included the right to education, and
the same was violated
• Justice Kuldeep Singh conceded that the right to education was not guaranteed as
a fundamental right in the constitution.
• but he referred to the Preamble and articles 38, 39 (a) and (b), 41 and 45 in part IV
containing Directive Principles of State Policy.
• He argued that Article 21, read cumulatively with the above provision, left one in no
doubt that the framers of the Constitution made it obligatory for the state to provide
education for its citizens.
• the state could discharge its aforesaid obligation either directly through state
Institutions or indirectly through private institutions.
• the private institutions, after getting recognition from the state, were converted into
state agencies, and they could not be doing something which the state itself was
prohibited from doing.
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UNNI KRISHNAN V. ANDHRA PRADESH

1993 SC 2178
• A constitution bench of the court slightly modified the
scope of this right and Limited it to education at the primary
level.
• whether limited to the primary stage or extended to the
stage of Higher Education,
• the right remained a judicially created un-enumerated right
• Until The Constitution (86th Amendment) Act made primary
education an enumerated right in Article 21A of the
Constitution.
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… UNNI KRISHNAN
• Unni Krishnan did not reverse the creative advance made by the Supreme Court in Mohini Jain.
HELD:
• while the right to primary education including upper primary was a fundamental right,
• the right to education at other levels was dependent on the states resources, its financial capacity and the
comparative priority given to it in the midst of other basic demand.
• Though the court was not ready to equate private educational enterprise with private commercial
Enterprise, it, nevertheless, could not ignore the basic fact that an unaided institution have to find
resources somewhere.
• in the absence of any better alternative, the court could not say that the institution should be disabled
from charging extra fees from the candidate to be admitted, especially when there were many who
were willing to pay,
• But, then, education could not be allowed to go to the highest bidder.
• The court created a judicially enforceable right to education in a limited sense as part of the right to life
under article 21 of the constitution.
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RIGHT TO LIVELIHOOD
OLGA TELLIS V. BOMBAY MUNICIPAL
CORPORATION, (1985) 3 SCC 545

• The Bombay Municipal Corporation (BMC) was going to evict pavement dwellers and slum dwellers.
• It contended that they caused obstruction to the exercise of the ‘right of passage’ and ‘re-passage’ by the
pedestrian and also created difficulties in repair and other work.
• Writ petitions were filed contending that this threatened action amounted to unwarranted interference with
the ‘right to life’ of the pavement dwellers.
• It was argued that the pavement dwellers comprised poor people who had migrated to Bombay in search
of some work to earn their livelihood.
• They lived on the pavements because they had no other place to go to and also because their place of
work was nearby.
• Their eviction was tantamount to depriving them of their livelihood which was part of the ‘right to life’
guaranteed under Article 21.
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CHIEF JUSTICE CHANDRACHUD,

DELIVERING THE JUDGEMENT OF THE UNANIMOUS CONSTITUTION BENCH
• Held the ‘right to life’ included ‘right to livelihood’.

• He pointed out that none could live or survive without the means
of livelihood.
• The easiest way to deprive a person of his right to life would be to
deprive him of his means of livelihood to the point of abrogation.
• Therefore, to ensure that constitutional protection was not
indirectly breached it would be necessary to recognise this
realistic and pragmatic preposition as a principle of law that the
right to life included the right to livelihood.
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ARTICLES 39(A) AND 41

• The Chief Justice also referred to Articles 39(a) and 41 in the chapter on Directive
Principles of State Policy.
• The former provision provides that the state shall direct its policy towards securing that
all citizens, both men and women, have the right to adequate means of livelihood.
• The latter provision directs the state within the limits of economic capacity and
development to make effective provisions for securing the right to work.
• He conceded that given the constraints of Article 37 the directives are not specifically
enforceable by a court of law. But they are fundamental in the Governance of the country
and they are to be kept in view in the making of laws.
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…OLGA TELLIS
• “The state may not, by affirmative action, be compelled to provide

adequate means of livelihood or work to the citizens. But any person who
is deprived of his right to life would, except according to just and fair
procedure established by law, can challenge the deprivation as offending
the right to life conferred by Article 21”
• The court agreed that the pavement dwellers were trespassers and were
in unauthorised occupation of the pavements.
• However, it did not consider the plea that the corporation could evict them
without notice. It interpreted the relevant section of the Bombay Municipal
Corporation Act, 1888 to permit the corporation to evict without notice
only in rare and exceptional cases.
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…OLGA TELLIS
• Considering everything the Court asked the corporation not to evict any
pavement dweller until one month after the end of the monsoon season.
• The Court strongly recommended that the State government and the
corporation do their utmost to find some suitable place where the
petitioners could take shelter and that such place should not be too far off
from their place of work or occupation.
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RIGHTS WHICH ARE SIMULTANEOUSLY

CONSTITUTIONAL AND ORDINARY LEGAL RIGHTS
• In this category, one is the right to the sanctity of life and limbs.
• The other is the right to live in a pollution-free environment.
• These rights are constitutionally guaranteed, but they already had their existence in
ordinary law.
• At the constitutional level the rights have been guaranteed against the state while
ordinary legal rights were expected to be claimed against private parties.
• the practical differentiation between the two levels or categories of rights is noticed
chiefly at the remedial level.
• It is guaranteed that the constitutional rights shall be enforced by public law remedies,
and
• these remedies are not available for the enforcement of ordinary legal rights if an equally
effective alternative remedy is available.
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THE DISTINCTION BETWEEN CONSTITUTIONAL RIGHTS AND

ORDINARY RIGHTS: APPROACH OF THE COURTS
• To start with the courts were very particular in maintaining the distinction between constitutional
rights and ordinary rights. But we shall see that their attitude is visibly relaxed now.
• In the cases dealing with anti-pollution laws or constitutional guarantees against environmental
pollution, private parties and public authorities are together joined as respondents.
• Similarly, despite the availability of remedy in ordinary law in a rape case, the Supreme Court has
dealt with some such cases, involving the infringement of article 21.
• the Supreme Court appears to have thought it fit to entertain complaints in suitable cases to
highlight the importance of the right involved, and in the process has also given a lead to the lower
courts.
• Moreover, the Supreme Court has evolved a noble remedy against sexual harassment the kind of
which did not exist earlier in the law.
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Right to compensation for

false imprisonment or loss of life

• Where the culprits are the state functionaries, the aggrieved party has a traditional remedy in the
law of tort simultaneously and also a constitutional law remedy of recovering damages as part of
the writ of habeas corpus.
• While seeking the private law remedy in tort, the plaintiff has to face the insurmountable difficulty
of meeting the defence of sovereign immunity.
• Consequently, the Supreme Court has been quite liberally awarding the public law remedy.
• Now it is clear that the Supreme Court has not created any new right as such.
• What it has done is that the benefit of public law or constitutional law has been made liberally
available even in those cases where the litigants were private parties or where private law remedy
was earlier usually sought.
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SANCTITY OF LIFE AND LIMBS

There is no doubt that the right to life includes the right not to be killed
except in accordance with the law and in this right the discussion is divided
into three parts:
1. award of damages for loss of life or limbs or for being subjected to
torture
2. award of damages in rape cases and
3. protection against sexual harassment
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AWARD OF DAMAGES FOR LOSS OF

LIFE, LIMBS OR / AND TORTURE
• Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96
• Furnishes an example of custodial violence against women prisoners in police lock-up in the city of Bombay.
• The court directed the taking up of several measures including the putting up of women prisoners and
suspects in separate lockups manned by women constables and its surprise inspection by judicial officers.
• perhaps the most atrocious example of custodial violence and violation of the right to the protection of the
limbs of the body is the famous Bhagalpur blinding case ( Khatri vs State of Bihar (1981) 1SCC 627)
• several under-trial prisoners lodged in Bhagalpur jail had been blinded.
• The court in a series of hearings passed several orders with a view to ensuring proper treatment of the victims
and their possible rehabilitation in life.
• The court also proceeded to examine if it could grant compensation to the prisoners for violation of their
fundamental rights. This was contested by the state of Bihar.
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RUDAL SHAH VS STATE OF BIHAR

(1983) 4SCC 41
• Chief justice Chandrachud rejected the contention that a writ petition could not be used
for awarding compensation.
• He said that if compensation was demanded for a violation of a fundamental right the
court was competent to award the same.
• The petitioner had been kept in illegal detention for 14 long years.
• The court ordered the state to pay him rupees 30000 in addition to the rupees 5000 it
had already paid.
• But, the court called it palliative and not compensation and left it to the petitioner to bring
a regular suit for damages if he so desired.
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• In Bhim Singh v. State of Jammu and Kashmir, (1985) 4SCC 677

• the court asked the respondent state to pay Rs. 50000/- to the petitioner for
illegal detention,
• the court unhesitatingly characterized as compensation.
• In Nilabati Behera v. State of Orissa (1993) 2 SCC 746 While awarding Rs.
150000/- as compensation to the petitioner’s mother for the death of her son in
police custody,
• Justice Verma said that there was a basic distinction between the award of
compensation as a public law remedy under articles 32 and 226 of the
Constitution for violation of a fundamental right and the private law remedy of
damages in action for tort.
• The defence of sovereign immunity as decided in Kasturi Lal Ralia Ram Jain
v. State of Uttar Pradesh, (1965) 1 SCR 375 was not available in a public law
remedy.
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AWARD OF DAMAGES IN RAPE CASES

• Rape is a crime under the Indian Penal Code and no principled objection can be raised if
the victim of the crime simultaneously sought compensation.
• The Criminal Court itself is expected to award some compensation to the victim by
imposing on the offender fine as well.
• Rape is, obviously, the most serious affront to the dignity of a woman.
• It is also an atrocious way of violating the sanctity of the person of a lady.
• Therefore, there is no doubt that the right to life under Article 21 is violated.
• But, the violation appears to be taken care of so completely by the available ordinary law
remedies that, to a layperson, invocation of Article 21 may appear to be an avoidable
luxury.
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BODHISSATTWA GAUTAM V. SUBHRA CHAKRABORTY,

AIR 1996 SC 922
• a criminal case had been filed against Bodhissattwa Gautam in the court of magistrate by a girl
• she had been sexually exploited by the accused for many years, first with a promise of marriage
and then by undergoing the process of a secret, possibly fake, marriage.
• The allegation was that he impregnated her twice and both the times the pregnancies were
terminated at his instance and under his pressure.
• the accused had gone to the Gauhati High court under section 482 of The Criminal Procedure
Code, for the quashing of the complaint.
• There he lost the case and appealed to the Supreme Court where again he lost the case.
• In addition, the Supreme Court asked the magistrate to order that the accused should pay to the
complainant interim compensation at the rate of rs. 1000/- per month during the pendency of the
case, starting from the date the complaint was filed.
• The entire judgement of the court is thoroughly infused with the new emerging spirit of article 21.
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CHAIRMAN RAILWAY BOARD V. CHANDRIMA DAS,

AIR 2000 SC 988

• the decision was delivered by Justice Saghir Ahmad who spoke for a two-judge bench.
• A lone Bangladeshi woman was tricked by some railway employees at Howrah station and was
gang-raped.
• a practising lawyer of Kolkata approached the Calcutta High Court by way of PIL and the High
Court awarded Rs. ten lacs as compensation to that unfortunate woman.
• The appeal in the Supreme Court rested on such non consequential grounds such as that
• the petitioner was a stranger,
• the Bangladeshi women did not enjoy a fundamental right and
• the railway administration could not be held vicariously liable for the lawless and criminal act of its
employees.
• It is obvious that Article 21 rights are available to all persons including non-citizens,
• There is a meaningful observation in the judgement that public law remedies can be made
available even between purely private parties.
• However here the remedy was given against the State.
51
PROTECTION AGAINST SEXUAL HARASSMENT

VISHAKA V. STATE OF RAJASTHAN,

AIR 1997 SC 3011
• This is again a concomitant right and is meant to effectively protect the rights of working women
guaranteed under Articles 14, 19(1)(g) and 21.
• The occasion was the occurrence of an unfortunate incident in Rajasthan involving a female social
worker who was gang-raped by certain people who got annoyed with her work creating Social
awareness in women.
• In a class action brought before the Supreme Court Vishaka v. State of Rajasthan,
• A three-judge bench of the Supreme Court issued certain directions in the nature of guidelines
requiring both the public sector and the private sector employers to adopt strict measures against
acts of sexual harassment.
• Sexual harassment is defined as a suggestion expressed in any form, for a sexual favour.
• The guidelines also include the creation of a regular compliant mechanism consisting of enough
number of women for disposal of the complaints.
• Now Parliament has enacted a law to cover the subject (The Parliament has enacted The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 )
52
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RIGHT TO LIVE IN A POLLUTION-FREE ENVIRONMENT

• The right to live in a pollution-free environment can be considered to be one of the most
significant contributions of the Supreme Court of India to the human rights jurisprudence
of the country.
• First, group right which is enjoyed by the people collectively.
• Second, under ordinary law, pollution of the environment amounts to nuisance against
which remedies are available in the law of torts, environmental legislations and under
the Criminal Procedure Code.
• But now the right has acquired a constitutional dimension.
• One of the infirmities of the ordinary law remedy has been that legislation would legalise
the illegality.
• But that is not possible with regard to constitutional rights.
• In most of the cases that reached the Apex Court the alleged polluter is some private
party, and the public authorities are joined as parties mostly as co-respondents for failing
to prevent the private polluter from harming the ecology.
53
ENVIRONMENTAL LAW FRAMEWORK IN INDIA

• The Supreme Court has taken the view that the right to life also relates to the
quality of life and article 21 entitles every person to live in a pollution-free
environment.
• The insertion of Articles 48-A and 51-A(g) by the Constitution (42nd Amendment
Act 1976) has enabled the court to draw on these provisions to interpret the
scope of Article 21 in this respect.
• The Parliament has also enacted
1. the Water (Prevention and Control of Pollution) Act 1974,
2. the Air (Prevention and Control of Pollution) Act, 1981 and
3. the Environment (Protection) Act, 1986.
• Two International events also occurred which have impacted our Supreme Court
jurisprudence in this area. These are:
1. the declaration of the United Nations Conference on Human Environment, adopted at
Stockholm on 16th June 1972 and
2. the Rio declaration of 1992 on Environment and Development.
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CUSTOMARY INTERNATIONAL LAW

• One of the most important contributions of the Supreme Court in this area
has been that the law has become imbued with quite a few principles
which have been borrowed from the customary International law on the
point.
• Sustainable development,
• Polluter pays principle,
• Precautionary principle,
• Doctrine of Public trust and
• Concept of Intergenerational equity
-are the most important of such principles.
55
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA,

(1996) 3 SCC
• the polluter pays principle was defined by the Court:

“Once the activity carried on is hazardous or inherently
dangerous, the person carrying on such activity is liable
to make good the loss caused to any other person by his
activity, irrespective of the fact whether he took
reasonable care while carrying on his activity. The rule is
premised upon the very nature of the activity carried on”.
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VELLORE CITIZENS’ WELFARE FORUM V. UNION OF INDIA,

(1996) 5 SCC 647

• Justice Kuldeep Singh held, absolute liability for harm to the environment was not limited to compensating
the victims of the pollution but also extended to pay the cost of restoring the environmental degradation.
• quoting from Brundtland’s report on the point he said that sustainable development means -
• “development that meets the needs of the present without compromising the ability of the future
generations to meet their own needs” and
• was sure that this balancing concept between ecology and development had become part of the customary
International Law.
• In the same case, he defined the precautionary principle to mean that
• the state must anticipate prevent and attack the causes of environmental degradation and lack of
scientific certainty should not be used as a reason for postponing measures to prevent environmental
degradation.
• In all such cases the ‘onus of proof’ lay on the developer or Industrialist to show that his action was
environmentally benign.
57
M C MEHTA V, KAMAL NATH,

(1997) 1 SCC 388,
• The doctrine of public trust means that

• seashores, rivers, lakes, hills and other similar things are held by
the State as a public trustee for the benefit of the people.
• Consequently, it cannot be allowed to let them get converted into
private property or assets for private gain.
• The court quashed a lease under which a large area of
land on the bank of the Beas river in Himachal Pradesh
had been let out to Spans motel.
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SOME OTHER INTERESTS STRUGGLING

TO BE RECOGNISED AS RIGHTS
(THE PROBLEM OF SOCIAL SECURITY IN THE AREAS OF PUBLIC HEALTH AND SHELTER)
59
SHANTISTAR BUILDERS V. NARAYAN K. TOTAME,

1990 1 SCC 520

• Speaking for the three-judge bench of the Apex Court, Justice Rangnath
Mishra said that -
• clothing, food and shelter were the basic needs of a human being and
that the right to live would take within its sweep not only the right to food,
clothing and decent environment but also the right to reasonable
accommodation.
• By emphasizing on the element of reasonableness, he meant to draw a
distinction between the needs of an animal and that of a human being.
• These observations were made in the context of an appeal preferred
before the court which arose out of a writ petition alleging certain
malpractices by Builders.
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PARMANAND KATARA V. UNION OF INDIA,

(1989) 4 SCC 286

(PUBLIC HEALTH)
• The Supreme Court directed that in medico-legal cases the doctor who is
approached must treat the patient first to save his life even though the
case did not come within the jurisdiction of the hospital to which he
belonged.
• The court emphasized that rules and regulations demarketing the
respective jurisdiction of the hospitals could not override either the right to
life under article 21 of the Constitution or the ethical duty which the doctor
owed to humanity.
61
CERC V. UNION OF INDIA,

AIR 1995 SC 922

• a three-judge bench in the context of asbestos exposure held
that-
• every worker as a part of his right to health had the fundamental right
to get medical aid to protect his health and vigour during the period
when he was in service and also after his retirement.
• This right he had held under Article 21 read with such Directive
Principles as contained in articles 39, 41, 43, 48-A and other similar
provisions of the Constitution
• he had this right whether the employer was a private industrialist or a
public authority.
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PASCHIM BANGA KHET MAZDOOR SAMITY V. STATE OF WEST BENGAL,

AIR 1996 SC2426
• One Hakim Sheik had fallen from the train and was seriously injured.
• His injury included some serious head injuries, and he possibly needed neurological surgical
operations and care.
• Hospitals, where this facility was available, were limited and Sheik visited almost all of them but
was refused admission on the ground that at the time no beds were available.
• Thereafter, he was admitted to a private hospital which cost him rs. 17000/-. Accordingly, the
Supreme Court asked the state to compensate him by paying rs. 25000/-.
• In arriving at its decision, the court reasoned that the state in India being a welfare state was
under a duty to provide the necessary medical aid to the needy and
• for this it must improve and enlarge the necessary medical facilities.
• The two-judge bench which decided the case also insisted that the state could not take the plea of
the paucity of financial resources.
63
MEANING OF PERSONAL LIBERTY
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THE CORE MEANING OF PERSONAL LIBERTY:

RIGHT AGAINST UNLAWFUL ARREST AND DETENTION
HUSSAINARA KHATOON V. HOME SECRETARY, STATE OF BIHAR,
(1980) 1 SCC 81,

• the Supreme Court was presented with a shocking situation existing in the jails of Bihar.
• It was reported that several under-trial prisoners were languishing in jail for more than
three years and in quite a few cases for more than 10 years without the trial or the
investigation started and if the investigation had started, then, without it being
completed.
• The court was also informed that amongst the non-convict inmates of the jails there
were quite a few women and children who are kept in protective custody or with a view
to make them available for appearing as witnesses.
• Justice Bhagwati speaking for himself, and Justice Kaushal said that it was shameful
to keep persons in jail for such long periods without trial.
• He also adverted to the fact that there might be many prisoners who might have been
behind bars for longer periods than the maximum period of imprisonment described for
the crime they were charged with.
65
… HUSSAINARA KHATOON
• On the next date of the hearing the counsel for the state informed the court about the order
that had been issued by the state government. In terms of this order, the following categories of
internees were to be released forthwith:
1. Persons who had been charged with a petty offence under the forest Act, Exercise Act,
Police Act and Motor Vehicles Act, if they had already been imprisoned for six months or more;
2. Persons interned under section 109 of the Criminal Procedure Code who had been under
imprisonment for 6 months or more;
3. Persons suffering from leprosy or other dangerous infectious diseases, who had already
been under imprisonment for six months or more;
4. All persons who had been in jail for a period longer than the maximum period of
imprisonment that could be imposed in law for the offence they were charged with:
5. Persons who had been in jail for more than two years without the investigation of their
cases having been completed, except where the delay in the investigation was justified or
where the dropping of the investigation would not be in the Public Interest.
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05-10-2023
… HUSSAINARA KHATOON
• Held:
The court gave certain additional directions to the state government
which included the following:
1. To release the prisoners against whom a charge sheet has not been filed
and the period of limitation had expired as prescribed in the Criminal
Procedure Code and
2. To release the women and children who had been kept in the so-called
protective custody or who are required to appear as witnesses.
67
RIGHT TO GO ABROAD
MANEKA GANDHI V. UNION OF INDIA, AIR1978 SC 597
• Article 13(2) of the Universal Declaration of Human Rights states-
• Everyone has the right to leave any country including his own, and to return to his country.
• In the United States also the right to travel abroad does not find explicit mention in the
Constitution but it has been held to be included in the guarantee of the Vth amendment,
• The Supreme Court in Satwant Singh v. D. Ramrathnam, AIR 1967 SC 1836, interpreted the
term personal liberty to include this right and affirmed this view again in Maneka Gandhi .
• Justice Krishna Iyer answered such objection with finality when he said in Menaka that the
right to travel abroad meant that the Indian state would not hinder the movement if the
foreign state was willing to admit.
68
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05-10-2023
RESTITUTION OF CONJUGAL RIGHTS

T. SARITHA V. T. VENKATA SUBHAIAH,
AIR 1983 AP 356.

• constitutionality of section 9 of Hindu Marriage Act 1955 providing for restitution of conjugal rights, was
challenged.
• Justice P.A. Choudhary held the aforesaid section to be void for violation of articles 21 and 14 of the
Constitution.
• He held that privacy was a constitutionally protected right as a part of personal liberty under article 21 and that
the same could not be interfered with except to serve some compelling social or state interest.
• It was so because conjugal relationship did not mean mere living together of men and women; sex was an
inseparable part of married life.
• In this view of the matter, the decree for restitution of conjugal rights was definitely an interference with privacy.
• The next question was did it serve any compelling social or state purpose? The judge answered this question
in the negative.
• Thus, he found that section 9 of the Hindu Marriage Act violated article 21 of the constitution.
69
HARVINDER KAUR V. HARMANDER SINGH,

AIR 1984 DEL.66
• justice A. B. Rohatgi of the Delhi High Court characterized the invoking of constitutional
law principles into matrimonial matters as introduction of a bull in a China shop.
• He diferred from the Andhra Pradesh High Court decision basically on the meaning of
restitution of conjugal rights.
• In his view, tho sex was an important part of the matrimonial relations however it was
necessarily not an essential part.
• A decree for restitution of conjugal rights merely afforded an opportunity to the estranged
couple to reconcile and it did not amount to coercion to have sex with someone against
one’s will.
• In Saroj Rani v. Sudarshan Kumar (1984) 4 SCC 90, the Supreme Court endorsed the
view of the Delhi High Court.
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PRIVACY
• Privacy is a significant value which needs recognition in modern times.

• The Hustle and bustle of life in the modern competitive Industrial society
have put the men under so much pressure and strain that all the time he
longs for some respite and repose. For some time in the day, he wants to
be left alone, unbothered by the searching gaze, comments or intrusions
of others.
• At least there are some of the affairs of his life that he wants to treat as
purely private, with which neither his neighbours nor the state should
have any concern.
• Herein lies the need for legal recognition of privacy interests.
71
JUSTICE KS PUTTASWAMY V. UNION OF

INDIA (2017) 10 SCC 1

NINE JUDGES BENCH DELIVERED 6 CONQUERING OPINION
• The decision in M P Sharma and also Kharak Singh which holds that the right to privacy is not protected by the
Constitution stands overruled.
• it was held that the right to privacy is protected as a fundamental constitutional right under articles 14
19 and 21 of the constitution
• Privacy includes at its core the
• preservation of personal intimacies,
• the sanctity of family life,
• marriage,
• procreation,
• sexual orientation.
• Privacy also connotes a right to be left alone.
• Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her
life.
• Personal choices governing a way of life are intrinsic to privacy.
• Privacy is an essential facet of the dignity of the human being.
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THE RIGHT TO SEXUAL AUTONOMY

NAVTEJ SINGH JOHAR V. UNION OF INDIA,

AIR 2018 SC 4321
• Facts: Navtej Singh Johar who was a dancer and identified himself with the LGBT (Lesbian, Gay, Bisexual,
and Transgender) community filed a writ petition in the court seeking inclusion of the right to sexual autonomy
and right to choose the sexual partner within the ambit of right to life under article 21.
• He also sought the declaration of section 377 of the I.P.C. as unconstitutional.
• The court said that not granting privacy to LGBT community merely because they are a minority is violative of
the fundamental right to live with dignity.
• carnal intercourse between two people of same-sex in private is not derogatory to public morality.
• gender identity is intrinsic to a person’s identity and denying the same will be violative of one’s dignity.
• Due to section 377, LGBTs often find themselves stigmatized. Homosexuals also face a lot of pressure. So,
they often hide their identity. It has immense social ramifications.
• The 5-judge bench unanimously declared section 377 as unconstitutional insofar as it criminalises
consensual sexual acts of adults in private.
73
RIGHT TO DIE
COMMON CAUSE (A REGD.) SOCIETY V. UNION OF INDIA,
AIR 2018 SC 1665
THE 538 PAGE JUDGMENT WAS DELIVERED BY THE FIVE-JUDGES' CONSTITUTIONAL BENCH COMPRISING THE CHIEF JUSTICE OF INDIA, MR.
JUSTICE DIPAK MISRA, MR. JUSTICE, A.K. SIKRI, MR. JUSTICE A.M. KHANWILKAR, MR. JUSTICE D.Y. CHANDRACHUD AND MR. JUSTICE ASHOK
BHUSHAN.
• FACTS: To draw attention to the suffering of people with terminal illnesses whose
natural lifespan is being unnaturally stretched by unwelcome medical treatments,
Common Cause, a non-governmental organisation, filed a PIL
• This petition makes the case that it is inhumane to artificially extend life without
taking the patient’s wishes into consideration.
• Through this appeal, the Court is urged to legalise passive euthanasia.
• It declares that it is not attempting to legalise active euthanasia, which entails
taking steps like administering lethal medications to end a person’s natural life.
• When a patient’s natural life is approaching its end, passive euthanasia, on the
other hand, signifies that nothing will be done to artificially extend it.
• the petitioners asked the Court to establish rules for the execution of living wills
as well as passive euthanasia
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…COMMON CAUSE (A REGD.) SOCIETY

• Expressing the view on passive euthanasia and Article 21, the Court stated that –
• it recognises that the right of a person to live with dignity includes right to die with dignity by
executing a will during his/her life time as to the manner in which he/she would like to die
when he/she is terminally ill or is in a persistent vegetative state.
• Thus, under Article 21, a terminally sick individual or one who is in a permanent vegetative
condition might choose to have his life end prematurely.
• This is a fundamental human right.
• Article 21 permits only passive euthanasia.
• Additionally, the Bench issued guidelines to avoid any potential abuse of those directives
and provided for the manner in which those directives should be applied to ensure a
balance between law and bioethics.
--------------------
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05-10-2023

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ATUL KUMAR TIWARI’S CLASS

21. Protection of life and personal liberty.—

No person shall be deprived of his life or

ATUL KUMAR TIWARI’S CLASS

Early days: Little room for judicial creativity

• The framers of the Constitution wanted to use specific

A K Gopalan vs State of Madras, AIR 1950 SC 27

• Fact: A K Gopalan was put behind bars under the

Supreme Court Held: (4:2)

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

• our constitution was a compromise between the notions of

ATUL KUMAR TIWARI’S CLASS

THE MAJORITY JUDGES (4)

ATUL KUMAR TIWARI’S CLASS

Justice Fazal Ali (Minority view)

• He disagreed with the approach of the above four judges

ATUL KUMAR TIWARI’S CLASS

POST GOPALAN DEVELOPMENT

ATUL KUMAR TIWARI’S CLASS

(I) MEANING OF PERSONAL LIBERTY

• The developments eventually prepared the ground for total

• The meaning of “procedure established by law” remained

ATUL KUMAR TIWARI’S CLASS

KHARAK SINGH V. STATE OF UTTAR

PRADESH, AIR 1963 SC 1295

ATUL KUMAR TIWARI’S CLASS

● unanimously held that part of the regulation which authorised domiciliary

ATUL KUMAR TIWARI’S CLASS

JUSTICE SUBBA RAO (MINORITY OPINION)

ATUL KUMAR TIWARI’S CLASS

SATWANT SINGH SAWHNEY V. D. RAMARATHNAM,

AIR 1967 SC 1836

ATUL KUMAR TIWARI’S CLASS

(II) APPLICABILITY OF ARTICLE 19

RC COOPER V. UNION OF INDIA,

(1970) 1 SCC 248

ATUL KUMAR TIWARI’S CLASS

HARADHAN SAHA V. STATE OF WEST BENGAL,

AIR 1974 SC 2154

• The provisions of The Maintenance of Internal Security Act, 1971, were

ATUL KUMAR TIWARI’S CLASS

MANEKA GANDHI V. UNION OF INDIA,

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

ATUL KUMAR TIWARI’S CLASS

[I] ‘PROCEDURE ESTABLISHED BY LAW’ MEANS

THE ‘FAIR AND REASONABLE PROCEDURE’

ATUL KUMAR TIWARI’S CLASS

[II] INTERRELATIONSHIP BETWEEN

ARTICLES 19 (1) AND 21

ATUL KUMAR TIWARI’S CLASS

ATUL KUMAR TIWARI’S CLASS

IT'S MEANING AND CONTENT

• Judges have generally borrowed the content either from

ATUL KUMAR TIWARI’S CLASS

Judicial creativity: two different ways

ATUL KUMAR TIWARI’S CLASS

RIGHT TO LIFE: GENERAL SCOPE