Right to Life and Personal Liberty

• Includes Important cases

• Special Class by – Adv Himanshu Kashyap

• Former Civil Servant

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About Me- Adv Himanshu Kashyap
• Studies
• Sainik School, Rewa, MP
• B. A. LL. B. (Hons.) National Law Institute University, Bhopal, MP,
• LLM, Human Rights, National Law Institute University, Bhopal, MP,
JRF
• Pursuing PhD in Law.

• Work Experience
• Ex Civil Servant- Chief Executive Officer, MP State Service, 2014
Batch
• Assistant Professor, Law, JLU, Bhopal, and Raffles University

• Advocate, Madhya Pradesh High Court , Jabalpur, M. P. and have

been teaching civil services aspirants and judiciary aspirants since
2014.
12/13/2021 Adv Himanshu Kashyap 2
 Important for

UPSC CSE Mains GS-II (Polity)

UPSC CSE LAW Optional Paper I

Constitutional and Administrative Law

MPPSC Mains Paper II

Constitution of India

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Class Structure
• DRAFT Article
• CAD
• Right to Life
• Cases
• Personal Liberty
• Procedure established by law
• Due process of law
• New Dimensions
• Right to Privacy
• Adhaar case
• Right to be forgotten
• Right to Education
• Cases
• Recap
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Article 15 – Draft Constitution
• Article 15, Draft Constitution of India,
• No person shall be deprived of his life or personal liberty except
according to procedure established by law, nor shall any person be
denied equality before the law or the equal protection of the laws
within the territory of India

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CAD- due process or procedure established by law
• Most members who took part in the debate proposed amendments that wanted to
replace ‘according to procedure established by law’ with ‘without due process of law’.
Members argued that this term was insufficient as the legislature of the day could pass
laws establishing procedures that can place civil liberties in danger; the judiciary could
only check if the established procedures were followed could not review the law itself for
adherence to fundamental rights. The inclusion of the ‘due process’ term into the
provision, therefore, would allow the judiciary to investigate if the law itself is consistent
with provisions of fundamental rights and would be in a position to protect civil
liberties.

• Other members that pointed out the dangers of ‘due process’ term argued that allowing
for judges, who are not immune to prejudices and biases, to sit in judgment of laws
passed by the legislature would be undermining the authority of the legislature and
hence, un-democratic.
• At voting, the Assembly passed the Draft article with the term ‘according to procedure
established by law’ intact.

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Kazi Syed Karimuddin

• Kazi Syed Karimuddin

• Sir, I beg to move-
• "That in article 15, for the words "No person shall be deprived of
his life or personal liberty except according to procedure established
by law" the words "No person shall be deprived of his life or liberty
without due process of law" be substituted.

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Dr. Ambedkar
• The 'due process' clause, in my judgment, would give the judiciary the
power to question the law made by the legislature on another
ground. That ground would be whether that law is in keeping with
certain fundamental principles relating to the rights of the individual.
• In other words, the judiciary would be endowed with the authority to
question the law not merely on the ground whether it was in excess
of the authority of the legislature, but also on the ground whether
the law was good law, apart from the question of the powers of the
legislature making the law.

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• There are dangers on both sides. For myself I cannot
altogether omit the possibility of a Legislature packed by party
men making laws which may abrogate or violate what we
regard as certain fundamental principles affecting the life and
liberty of an individual.
• At the same time, I do not see how five or six gentlemen
sitting in the Federal or Supreme Court examining laws made
by the Legislature and by dint of their own individual
conscience or their bias or their prejudices be trusted to
determine which law is good and which law is bad.

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Vice-President
• Vice-President
• : The question is--
• "That in article 15, for the words "except according to procedure
established by law" the words "due process of law" be
substituted."
• The amendment was negatived.

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Article 21
• No person shall be deprived of his life or personal liberty except
according to the procedure established by law.

• 1. No person- Available to both citizen and non citizen.

• 2. right to life
• 3. right to personal liberty
• 4. Except according to
• 5. Procedure established by law

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MCQ
• Q. Right to life means
• A. Right to remain alive
• B. Right to survive in the world
• C. Right to have all limbs and faculties intact
• D. Right to continue to breath

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MCQ
• Q. Right to life means
• A. Right to remain alive
• B. Right to survive in the world
• C. Right to have all limbs and faculties intact
• D. Right to continue to breath

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A.K. Gopalan vs The State Of Madras.Union Of India, on 19 May,
1950

• Personal liberty only means liberty relating to or concerning the

person or body of the individual.

• * preventive detention

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Kharak Singh v. State of Uttar Pradesh, 1962
• the Supreme Court quoted and held that:
• The term 'personal liberty' is used in Art. 21 as a compendious term to include
within itself all the varieties of rights which go to make up the 'personal liberties'
of man other than those dealt with in the several clauses of Art. 19 (I ). While Art.
19 (1) deals with particular species or attributes 'of that freedom, 'personal liberty'
in Art. 21 takes in and comprises the residue.

• By the term “life” as here used something more is meant than mere animal
existence. The inhibition against its deprivation extends to all those limbs and
faculties by which life is enjoyed. The provision equally prohibits the mutilation
of the body by amputation of an armored leg or the pulling out of an eye, or the
destruction of any other organ of the body through which the soul communicates
with the outer world.
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 Right to Travel Abroad
• Maneka Gandhi v. Union of India, 1978

• Facts- The petitioner was issued a passport on June 1, 1976 under the Passport Act,
1967. On the 4th of July 1977, the petitioner received a letter dated 2nd July, 1977,
from the Regional Passport Officer Delhi intimating to her that it was decided by the
Government of India to impound her passport under s. 10(3)(c) of the Act "in public
interest".

• The petitioner was required to surrender her passport within 7 days from the receipt
of that letter. The petitioner immediately addressed a letter to the Regional Passport
Officer requesting him to furnish a copy of the statement of reasons for making the
order as provided in s.10(5). A reply was sent by the Government of India, Ministry
of External Affairs on 6th July 1977 stating inter alia that the Government decided
"in the interest of the general public" not to furnish her copy of the statement of
reasons for the making of the order.
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Issue
• Whether right to go abroad is part of personal liberty?

• Section 10(3)(c) in The Passports Act, 1967

• (c) if the passport authority deems it necessary so to do in the
interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country, or in the
interests of the general public;

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Held
• The expression 'personal liberty' in Art. 21 is of the widest amplitude
and covers a variety of rights which go to constitute the personal
liberty of man and some of them have been raised to the status of
distinct fundamental, rights and given additional protection under
Art. 19(1). Thus Articles 19(1) and 21 are not mutually exclusive.
• The impugned order must be quashed and Passport Authorities be
directed to return the passport to the petitioner.

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Francis Coralie v. Delhi Administration, 1981
• Right of detenu to meet family.

• Article 21 as interpreted in Maneka Gandhi's case requires that no one

shall be deprived of his life or personal liberty except by procedure
established by law and this procedure must be reasonable, fair and just and
not arbitrary, whimsical or fanciful and it is for the Court to decide in the
exercise of its constitutional power or judicial review whether the
deprivation of life or personal liberty in a given case is by procedure, which
is reasonable, fair and just or it is otherwise. The law of preventive
detention must, therefore, pass the test not only of Article 22 but also of
Article 21.
• Right to live includes right to live with human dignity.
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MCQ
• Q. Due process of law is
• A. Same as procedure established by law
• B. American concept
• C. Implemented in India by Supreme Court
• D. Both B and C

• * CAD

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MCQ
• Q. Due process of law is
• A. Same as procedure established by law
• B. American concept
• C. Implemented in India by Supreme Court
• D. Both B and C

• * CAD

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Procedure established by law and Due
process of law
• Procedure established by law means if a particular law is made by
competent legislature in proper manner than it a correct procedure.
(CPC, CrPC)
• even if it’s contrary to principles of justice and equity.

• Due Process of Law = Procedure Established by Law + The procedure

should be fair and just and not arbitrary.

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 Maneka Gandhi vs Union of India case (1978)
• In this case SC held that – ‘procedure established by law’ within the
meaning of Article 21 must be ‘right and just and fair’ and ‘not
arbitrary, fanciful or oppressive’ otherwise, it would be no procedure
at all and the requirement of Article 21 would not be satisfied. Thus,
the ‘procedure established by law’ has acquired the same significance
in India as the ‘due process of law’ clause in America.

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MCQ
• Q. Right to life includes
• A. Right to Legal Aid
• B. Right to livelihood
• C. Right to Privacy
• D. All of these

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MCQ
• Q. Right to life includes
• A. Right to Legal Aid
• B. Right to livelihood
• C. Right to Privacy
• D. All of these

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Expanding horizon of Article 21
• Right to Speedy Trial
• Right to Travel Abroad
• Right to clean environment
• Right to livelihood
• Right to Education
• Right to Legal Aid
• Right to Die
• Right to Privacy

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 Right to Speedy Trial and Free Legal Aid
• Hussainara Khatoon vs State of Bihar, 1979
• Under-trial prisoners
• The procedure under which a person may be deprived of his life or liberty should
be 'reasonable fair and just.' Free legal services to the poor and the needy is an
essential element of any ‘reasonable fair and just’ procedure.

• The State cannot avoid its constitutional obligation to provide speedy trial to the
accused by pleading financial or administrative inability. The State is under a
constitutional mandate to ensure speedy trial and whatever is necessary for this
purpose has to be done by the State.
• It is also the constitutional obligation of this Court, as the guardian of the
fundamental rights of the people to enforce the fundamental right of the accused
to speedy trial by issuing the necessary directions to the State which may include
taking of positive action, such as augmenting and strengthening the investigative
machinery, setting up new courts, building new court houses, appointment of
additional judges and other measures calculated to ensure speedy trial.
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Right to clean environment
• In Subhash Kumar vs. State. of Bihar- (1991) 1 SCC 598, the Supreme
Court held that right to life is a fundamental right under Art. 21 of the
Constitution and it include the right to enjoyment of pollution free
water and air for full enjoyment of life.

• https://unacademy.com/class/discussion-on-environmental-
laws/23IL0QAQ

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 Right to livelihood
• Olga Tellis & Ors vs Bombay Municipal Corporation & ... on 10 July,
1985

• Article 21, 19(1) (e) & (g) - Pavement and slum dwellers Forcible
eviction and removal of their hutments under Bombay Municipal
Corporation Act - Whether deprives them of their means of
livelihood and consequently right to life - Right to life - Meaning of -
Whether includes right to livelihood.

• The sweep of the right to life conferred by Article 21 is wide and far
reaching. It does not mean merely that life cannot be extinguished
or taken away as, for example, by the imposition and execution of
the death sentence, except according to procedure established by
law. That is but one aspect of the right to life. An equally important
facet of that right is the right to livelihood because, no person can
live without the means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the constitutional
right to live, the easiest way of depriving a person of his right to life
would be to deprive him of his means of livelihood to the point of
abrogation.

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Right to life includes Right to Die?
• P.Rathinam vs Union Of India on 26 April, 1994

• Right to live under article 21 includes right to not live that is right to
die.
• Gian Kaur v. State of punjab, 1996
• Supreme court overruled P. Rathinam case.

• Does not include right to die.

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Ethunasia
• Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March,
2011

• Markandey Katju, J.
• "Marte hain aarzoo mein marne ki Maut aati hai par nahin aati"--
Mirza Ghalib

• Passive ethunasia can be allowed under exceptional circumstances.

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Right to Die with dignity
• Common cause v. Union of India, 2018
• the Supreme Court of India held that a person in persistent vegetative state can
opt for passive euthanasia, and that a person can execute a living will to refuse
medical treatment in case of a terminal illness.
• the court also issued comprehensive guidelines on the procedure for execution of
an advance directive as well as for giving effect to passive euthanasia. The
guidelines will remain in force until Parliament enacts a legislation on the subject.
• We declare that an adult human being having mental
capacity to take an informed decision has right to
refuse medical treatment including withdrawal from life saving devices.
• A person of competent mental faculty is entitled to
execute an advance medical directive in accordance with
safeguards as referred to above.

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Right to Privacy
• Kharak Singh v. State of Uttar Pradesh, 1962
• The Supreme Court held that there is no fundamental Right to Privacy
under Article 21.

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MCQ
• Q. THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER
SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016 was introduced in
Parliament as
• A. Money Bill
• B. Constitutional Amendment Bill
• C. Normal Bill
• D. None of these

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Justice K.S.Puttaswamy(Retd) vs Union Of
India on 26 September, 2018

• Challenged as violative of right to privacy.

• Majority held THE AADHAAR (TARGETED DELIVERY OF FINANCIAL

AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016 Valid.

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Phone tapping
• People`S Union For Civil Liberties ... vs The Union Of India And Another on
18 December, 1996
• The Telegraph Act, 1885
• Section 5(2) of the Telegraph Act of 1885 provides the basis for
interception of telephone calls, or phone-tapping as it is colloquially called.
The constitutionality of this was challenged in the Supreme Court by the
People’s Union for Civil Liberties, and in a judgment dated December 18,
1996, the Supreme Court upheld the constitutionality of the provision,
subject to certain procedural safeguards which were later codified in Rule
419A of the Telegraph Rules, 2007.
• “Telephone conversation is an important facet of a man's private life. Right
to privacy would certainly include telephone-conversation in the privacy of
one's home or office. Telephone-tapping would, thus, infract Article 21 of
the Constitution of India unless it is permitted under the procedure
established by law.”
• Upheld by SC in puttaswamy case.
• * Pegasus spyware- recent controversy - 2021
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K L D Nagasree v. government of India, 2006
Andhra Pradesh HC
• The occurrence of any public emergency or the existence of a public
safety interest is the sine qua non under section 5(1) and (2) of
Telegraph Act, 1885.

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right to marry
• Shafin Jahan v. Asokan K.M. and others , 2018
• 21. The right to marry a person of one’s choice is integral to Article 21
of the Constitution. The Constitution guarantees the right to life.

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Laxmibai Chandaragi B. v. State of Karnataka,
(2021) 3 SCC 360
• "Society is emerging through a crucial transformational period.
Intimacies of marriage lie within a core zone of privacy, which is
inviolable and even matters of faith would have the least effect on
them. The right to marry a person of choice is integral to Article 21 of
the Constitution. Autonomy of an individual inter alia in relation to
family and marriage is integral to the dignity of the individual."
• — Sanjay Kishan Kaul, J.,

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Right to be forgotten
• Zulfiqar Ahman Khan vs. Quintillion Business Media Pvt. Ltd. and Ors,
2019, Delhi HC
• Right to privacy, of which the `Right to be forgotten' and the `Right to
be left alone' are inherent aspects.
• Hence content related to plaintiff must be removed.

• Defamatory news published in paper.

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Subhranshu Rout v. State of Orissa, 2020, HC
• Girl and boy in relationship.
• After differences boy uploaded objectionable content of girl on fake
facebook id.

• Court held bail cannot be granted.

• Girl demanded that she has right to be forgotten which is implicit in
right to privacy provided under article 21 of the constitution.
• Court held that she has right.
• Content must be removed.
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JORAWER SINGH MUNDY v. Union of India,
2021, Delhi HC
• a case under the Narcotics Drugs and Psychotropic Substances Act, 1985,
was lodged against him. However, finally vide judgment dated 30th April,
2011, the trial court had acquitted him of all the charges. An appeal was
filed challenging this order of the trial court, and vide judgment dated 29th
January, 2013, a ld. Single Judge of this Court upheld his acquittal in Crl.A.
No. 14/2013 titled Custom v. Jorawar Singh Mundy.

• He then realised that he is facing a huge disadvantage due to the fact that
the judgment rendered by this Court was available on a google search to
any potential employer, who wanted to conduct his background
verification before employing him.
• Court asked google to remove that judgment from search.
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Right to Education
• Mohini Jain v. State of Karnataka, 1992
• Supreme Court held that every citizen has a right to education under
the constitution. The right to education is concomitant to the
fundamental rights. right to education is implicit in right to life
because of its inherent fundamental importance. The state is under a
constitutional mandate to provide education at all levels for citizens.

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Unni Krishnan, J.P. And Ors. Etc. ... vs State Of
Andhra Pradesh And Ors. ... on 4 February, 1993
• Articles 21, 41, 45 and 46-Right to education-Whether a
fundamental right-
• Held:Every child/citizen has a tight to free education up to the age
of 14 years and thereafter it is subject to limits of economic capacity
and development of the State-State obliged to follow directions
contained in Article 45-Article 21 to be construed in the
light of Articles 41, 45 and 46.

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MCQ
• Q. Article 21A came into force on
• A. 2002
• B. 2006
• C. 2008
• D. 2010

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Article 21A
• The Constitution (Eighty-sixth Amendment) Act, 2002 inserted Article
21-A in the Constitution of India to provide free and compulsory
education of all children in the age group of six to fourteen years as a
Fundamental Right in such a manner as the State may, by law,
determine. The Right of Children to Free and Compulsory Education
(RTE) Act, 2009, which represents the consequential legislation
envisaged under Article 21-A

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86th amendment, 2002
• Article 21A
• Right to Education
• 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.
• Inserted in 2002
• Came into force on 1-4-2010
• Article 51A(k)- who is a parent or guardian to provide opportunities
for education to his child or, as the case may be, ward between the
age of six and fourteen years.

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Society for Un-aided Private Schools of
Rajasthan v. Union of India, 2012
• Constitutional validity of RTE challenged.
• RTE vis a vis private unaided schools
• Court held that we need to interpret the fundamental rights in the
light of the directive principles.

• Article 19 is subject to restrictions while 21 is not subject to those

restrictions.
• Establishing educational institution is subject to 19(1)(g) and 19(6)
but right to education is subject to article 21.
• 21 will prevail and RTE is valid.
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Pramati Educational & Cultural trust vs Union
Of India & Ors on 6 May, 2014
• Constitutional validity of Article 21A of the Constitution inserted by
the Constitution (Eighty-Sixth Amendment) Act, 2002 with effect from
01.04.2010 was challenged in this case.
• 25 percent seats reserved for weaker section and government will
fund their fees to the school according to government school fees or
private fees whichever is less.
• Article 21A interferes with Article 19(1)(g)?

• Held valid. Trying to achieve objective of dpsp (article 45) and article
21A.

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Recap
• DRAFT Article
• CAD
• Right to Life
• Cases
• Personal Liberty
• Procedure established by law
• Due process of law
• New Dimensions
• Euthanasia
• Right to Privacy, Speed Trial, Safe environment
• Adhaar case
• Right to be forgotten
• Right to Education
• Cases
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