This article attempts to examine the standards adopted for protecting

the Right to Life and Personal Liberty. It further explains Article 21,
which had lain dormant for nearly three decades and was brought to
life by the landmark judgement of the Supreme Court’s decision
in Maneka Gandhi v. Union of India(1978). It also goes through how
Article 21 has been on its journey to emerge as the Indian version of
the American concept of due process and deals with the
emanating judicial trends in the Right to Life and Personal Liberty.
Introduction: Right to Life & Personal Liberty
Right to life and personal liberty is the most cherished and pivotal
fundamental human right around which other rights of the individual
revolve and, therefore, the study assumes great significance. The
study of the right to life is indeed a study of the Supreme Court as a
guardian of fundamental human rights.

Article 21 is the celebrity provision of the Indian Constitution and

occupies a unique place as a fundamental right. It guarantees the right
to life and personal liberty to citizens and aliens and is enforceable
against the State. The new interpretation of Article 21 in Maneka
Gandhi’s case has led to a new era of expansion of the horizons of
right to life and personal liberty.
Applicability
The Fundamental Rights under Article 19 are conferred only on
citizens, but the rights mentioned in clauses (a) to (f) are available to
all persons whether citizens or not.
In a number of cases, the Supreme Court has held that foreigners are
entitled to the protection under Articles 21 and 22.
On the question of applicability of Article 21 to non-citizens, the
Supreme Court has emphasized that even those who come to India as
tourists also “have the right to live, so long as they are here, with
human dignity, just as the State is under an obligation to protect the
life of every citizen in this country, so also the State is under an
obligation to protect the life of the persons who are not citizens.”

Protection of Life and Personal Liberty: Article 21

Article 21 lays down that,

“No person shall be deprived of his life or personal liberty except

according to a procedure established by law.”
Article 21 assures every person the right to life and personal liberty.
The term ‘life’ has been given a very expansive meaning. The term
‘personal liberty’ has been given a very wide amplitude covering a
variety of rights which goes on to constitute the personal liberty of a
citizen. Its deprivation shall only be as per the relevant procedure
prescribed in the relevant law, but the procedure has to be fair, just
and reasonable.

I. Life
The expression ‘life’ under Article 21 has been interpreted by the
Supreme Court rather liberally and broadly. Over time, the Court has
been giving an expansive interpretation to the term ‘life’. The Court
has often quoted the following observation of Field, J., in Munn v.
Illinois, an American case :
“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 the amputation of an
arm or leg….”

In Francis Coralie v. Union Territory of Delhi[1], the Supreme Court

has held that the expression ‘life’ in Article 21 does not merely
connote physical or animal existence but embraces something more.
“We think that the right to life includes the right to live with human
dignity and all that goes along with it, namely, the bare necessity of
life such as adequate nutrition, clothing and shelter over their head”.

A person’s reputation is a facet of his right to life under Article 21 of

the Constitution.
In D.B.M. Patnaik v. State of Andhra Pradesh[2], some prisoners
challenged some restrictions as violating their rights under Article 21.
The Supreme Court stated that a convict is not denuded of all his
Fundamental Rights. Imprisonment after conviction is bound to curtail
some of his rights, e.g., freedom of speech or movement, but certain
other rights, e.g., the right to hold property, could still be enjoyed by a
prisoner. A convict could also claim that he should not be deprived of
his life or personal liberty except according to the procedure
established by law.
The Supreme Court has stated in R.M. Malkani v. State of
Maharashtra[3], with reference to Article 21, that the telephonic
conversation of an innocent citizen would be protected by Courts
against wrongful or high-handed interference by tapping of the
conversation, by the police. The protection is not for the guilty against
the efforts of the police to vindicate the law.
II. Personal liberty
The expression ‘personal liberty’ used in Article 21 has also been given
a liberal interpretation. It does not merely mean the liberty of the body,
i.e., freedom from physical restraint or freedom from confinement
within the bounds of a prison or freedom from arrest or detention, from
false imprisonment or wrongful confinement, but means much more
than that. The term ‘personal liberty’ is not used in a narrow sense but
has been used in Article 21 as a compendious term to include within
it, all those varieties of rights of a person which go to make up with
the personal liberty of a man.

Important Judgements

The Supreme Court held in Kharak Singh v. State of Uttar Pradesh,

[4] that while night domiciliary visits by police (involving intrusion into
his residence, knocking at his door and disturbing his sleep and
ordinary comfort) constitute an infringement of personal liberty of an
individual enshrined in Art. 21, secret picketing of the house by the
police or shadowing of his movements do not fall under Art. 21 but
under Art. 19(1) (d).
But the minority view expressed by Subba Rao, J., adopted a much
wider concept of personal liberty. He differed from the majority view
that Art. 21 excluded what was guaranteed by Art. 19. He pleaded for
an overlapping approach, i.e., both Arts. 21 and 19 are not
excluding, but overlapping, each other.
Agreeing with the approach of the minority in Kharak Singh, Bhagwati,
J., observed in Maneka Gandhi:
“The expression ‘personal liberty’ in Art. 21 is of the widest amplitude
and it 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
Article 19”.

Preventive justice requires an action to be taken to prevent

apprehended objectionable activities. But, at the same time, since a
person’s greatest of human freedoms i.e. personal liberty, is deprived,
the laws of preventive detention are strictly construed.
Further, a meticulous compliance with the procedural safeguard,
however technical, is mandatory. Personal liberty protected under Art.
21 is so sacrosanct and so high in the scale of Constitutional values
that it is the obligation of the detaining authority to show that the
impugned detention, meticulously accords with the procedure
established by law.
Procedure established by law
The most important words in this provision are procedure established
by law. Immediately after the Constitution became effective, the
question of interpretation of these words arose in the famous
A.K.Gopalan case where the validity of the Preventive Detention Act,
1950, was challenged.
1. K. Gopalan v. State of Madras[5]
Issue: Whether Art. 21 envisages any procedure laid down by a law
enacted by a legislature, or whether the procedure should be fair and
reasonable?
On behalf of Gopalan, an attempt was made to persuade the Supreme
Court to hold that the Courts could adjudicate upon the
reasonableness of the Preventive Detention Act, or for that matter, any
law depriving a person of his personal liberty.

Contentions:
1. The word ‘law’ in Art. 21 does not merely mean enacted law,
but incorporates principles of natural justice so that a law to
deprive a person of his life or personal liberty cannot be valid
unless it incorporates these principles in the procedure laid
down by it.
2. The reasonableness of the law of preventive detention ought to
be judged under Art. 19.
3. The expression ‘procedure established by law’ introduces into
India the American concept of procedural due process, which
enables the Courts to see whether the law fulfils the requisite
elements of a reasonable procedure.
Thus, in Gopalan, an attempt was made to win for a detenue better
procedural safeguards than were available to him under the relevant
detention law and Art. 22. But all the arguments were rejected by the
Supreme Court.

Holding:
The Supreme Court ruled by majority that the word ‘law’ in Art. 21
was used in the sense of lex (state-made law) and not jus. The
expression ‘procedure established by law’ would, therefore, mean the
procedure as laid down in an enacted law.
Dissent:
On the other hand, Fazl Ali, J., disagreeing with the majority view,
held under the principle of natural justice that, ‘no one shall be
condemned unheard’ was part of the general law of the land and the
same should accordingly be read under Art. 21.
Gopalan settled two major points in relation to Art. 21.

1. 19, 21 and 22 were mutually exclusive and independent of each

other and that Art. 19 was not to apply to a law affecting
personal liberty to which Art. 21 would apply.
2. A ‘law’ affecting life or personal liberty could not be declared
unconstitutional merely because it lacked natural justice or due
procedure. The legislature was free to lay down any procedure
for this purpose.
Maneka Gandhi: The New Approach
Maneka Gandhi v. Union of India[6]is a landmark case which
showcased that Art. 21, as interpreted in Gopalan, could not play any
role in providing any protection against any harsh law, seeking to
deprive a person of his life or personal liberty. It is the dissent of Fazal
Ali J which is vindicated by the law, subsequently, developed by the
Supreme Court culminating in Maneka.
In Maneka Gandhi case, the Supreme Court has shown great
sensitivity to the protection of personal liberty. The Court has re-
interpreted Art. 21 and practically overruled Gopalan, which can be
regarded as a highly creative judicial pronouncement on the part of the
Supreme Court.
Facts: S. 10(3)(c) of the Passport Act authorises the passport
authority to impound a passport if it deems it necessary to do so in the
interest of the sovereignty and integrity of India, the security of India,
friendly relations of India with any foreign country, or in the interest of
the general public. Maneka’s passport was impounded by the Central
Government under the Passport Act in the interest of the general
public.
Maneka filed a writ petition challenging the order on the ground of
violation of her Fundamental Rights under Art. 21. One of the major
grounds of challenge was that the order impounding the passport was
null and void as it had been made without affording her an opportunity
of being heard in her defence.

Holding:
The Court reiterated the proposition that Arts. 14, 19 and 21 are not
mutually exclusive. A nexus has been established between these
three Articles. There is a kind of mutual relationship between Arts. 21
and 19. This means that a law prescribing a procedure for depriving a
person of ‘personal liberty’ has to meet the requirements of Art. 19.
Also, the procedure established by law under Art. 21 must answer the
requirement of Art. 14 as well.
According to K. Iyer, J., no Article in the Constitution pertaining to a
Fundamental Right is an island in itself.
The most significant and creative aspect of the Maneka Gandhi case,
is the re-interpretation by the Court of the expression ‘procedure
established by law’ used in Art. 21. The Court now gave a new
orientation to this expression.
Article 21 would no longer mean that law could prescribe some
semblance of procedure, however arbitrary or fanciful, to deprive a
person of his personal liberty. It now means that the procedure must
satisfy certain requisites in the sense of being fair and reasonable.

The procedure “cannot be arbitrary, unfair or unreasonable”. The

concept of reasonableness must be projected in the procedure
contemplated by Art. 21. The Court has now assumed the power to
adjudge the fairness and justness of procedure established by law to
deprive a person of his personal liberty. The Court has reached this
conclusion by holding that Arts. 21, 19 and 14 are not mutually
exclusive, but are inter-linked.
The procedure contemplated by Art. 21 must answer the test of
reasonableness in order to conform with Art. 14. Thus, the procedure
in Art. 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 Art. 21 would not be satisfied”.

According to Iyer, J.,

“procedure in Art. 21 means fair, not formal, procedure; ‘law’ is
reasonable law and not any enacted piece. This makes the words
“procedure established by law” by and large synonymous with the
‘procedural due process’ in the U.S.A. This makes the right of hearing
a component part of natural justice.”
As the right to travel abroad falls under Art. 21, natural justice must be
applied while exercising the power of impounding a passport under the
Passport Act. Although the Passport Act does not expressly provide for
the requirement of hearing before a passport is impounded, yet the
same has to be implied therein.

The Supreme Court has widened the scope of ‘procedure established

by law’ and held that merely if a procedure has been established by
law, a person cannot be deprived of his life and liberty unless the
procedure is just, fair and reasonable.
It is thus, now well established that the “procedure established by
law” to deprive a person of his life and personal liberty, must be just,
fair and reasonable and that it must not be arbitrary, fanciful or
oppressive, that the procedure to be valid must comply with the
principles of natural justice.

Law
Ordinarily, the word ‘law’ in Art. 21 denotes an ‘enacted’ law, i.e. a law
made by a Legislature. But that is not all. Art. 21 does not mean
merely what is enacted by a Legislature. ‘Law’ may take several other
forms as well. Some forms are given below,

1. An ordinance is as much a law as an Act passed by a

legislature and is subject to the same inhibitions. Thus, the
word ‘law’ in Art. 21 would include an ‘ordinance’.
2. Regulations made under the Police Act fall under Art. 21.
3. The rules made by the Supreme Court under Art. 145 are
comprised within the term ‘law’ in Art. 21. Rules made by the
High Court under Art. 225 fall within the scope of Art. 21.
Extended view of Article 21
The right to life enshrined in Art. 21 has been liberally interpreted so
as to mean something more than mere survival and mere existence or
animal existence. It, therefore, includes all those aspects of life which
go to make a man’s life meaningful, complete and worth living.

The Supreme Court has taken the view that in order to treat a right as
a Fundamental Right, it is not necessary that it should be expressly
stated as a Fundamental Right. Accordingly, the Supreme Court has
implied a whole bundle of human rights out of Art. 21, by reading the
same along with some Directive Principles. Art. 21 is to be read not
only with directive principles but also fundamental duties.
Article 21 is couched in negative phraseology. But by its creative
interpretation of Art. 21 in various cases, the Supreme Court has come
to impose a positive obligation upon the state to take steps for
ensuring to the individual a better enjoyment of his life and dignity,
e.g.,
 maintenance and improvement of public health;
 providing humane conditions in prisons and protective homes;
 improvement of the environment etc.
However, the Court has been careful to point out that the individuals’
rights cannot be absolute in a welfare state. It has to be subservient to
the rights of the public at large.

A few unenumerated rights under Article 21 have been discussed

here.

1. Quality of life
The Court expanded the scope of Art. 21 that ‘life’ in Art. 21 does not
mean merely ‘animal existence’ but living with ‘human dignity’. Art. 21
has come to be regarded as the heart of the Fundamental Rights.
Art. 21 has enough of positive content in it and it is not merely
negative in its reach. Over time, since Maneka Gandhi, the Supreme
Court has been able to imply, by its creative interpretation, several
Fundamental Rights out of Art. 21. This has been possible by reading
Art. 21 along with some Directive Principles. Art. 21 has thus emerged
into a multi-dimensional Fundamental Right.
Right to reputation is a facet of the right to life of a citizen under Art.
21. It takes within its sweep,
1. right to reputation,
2. right to breathe unpolluted air
3. personal liberty
4. right to livelihood
5. right to privacy.
It has been reiterated that since the right to reputation is a person’s
valuable asset and is a facet of his right under Article 21, the court has
inherent power to grant interim bail pending the disposal of the
regular bail.
2. Right to travel abroad
In Satwant Singh v. A.P.O.[7]the right to travel abroad was held to be
an aspect of ‘personal liberty’ of an individual and, therefore, no person
can be deprived of his right to travel except according to the
procedure established by law. Since a passport is essential for the
enjoyment of that right, denial of a passport amounts to deprivation of
personal liberty. Hence, a passport for travel cannot be denied except
according to procedure established by law.
3. Right to procreate
A woman’s right to make reproductive choices has been held to be a
dimension of “personal liberty” within the meaning of Art. 21. The
court has said that,
“There is no doubt that a women’s right to make reproductive choices
is also a dimension of “personal liberty” as understood under Art. 21 of
the Constitution of India. It is important to recognize that reproductive
choices can be exercised to procreate as well as to abstain from
procreating. The crucial consideration is that a woman’s right to
privacy, dignity and bodily integrity should be respected.”[8]
4. Right to Free Legal Aid and Right to Appeal
Right of the accused to be defended by a legal practitioner of his
choice is protection, and any interference herein, would be a violation
of Art. 21.

In M.H. Hoskot v. State of Maharashtra[9], the Supreme Court said

while holding free legal aid as an integral part of fair procedure the
Court explained that “ the two important ingredients of the right of
appeal are; firstly, service of a copy of a judgement to the prisoner in
time to enable him to file an appeal and secondly, provision of free
legal service to the prisoner who is indigent or otherwise disabled
from securing legal assistance. This right to free legal aid is the duty
of the government and is an implicit aspect of Article 21 in ensuring
fairness and reasonableness.
5. Right against custodial violence
Life or personal liberty includes a right to live with human dignity.
There is an inbuilt guarantee against torture or assault by the State or
its functionaries. Torture, assault and death in custody raise serious
questions about the credibility of the rule of law and administration of
the criminal justice system.

The Apex Court has stated in D.K. Basu v. State of West Bengal[10]:
“Custodial violence, including torture and death in the lock-ups,
strikes a blow at the rule of law, which demands that the powers of
the executive should not only be derived from law but also that the
same should be limited by law”.
The Supreme Court has stressed that police torture is “disastrous to
our human rights awareness and humanist constitutional order.” The
Court has squarely placed the responsibility to remedy the situation on
the State.
6. No right to trade and commerce under article 21
The Supreme Court has ruled in Sodan Singh v. New Delhi Municipal
Committee[11] that, Art. 21 does not cover freedom of trade or
commerce. “The right to carry on any trade or business and the
concept of life and personal liberty within Art. 21 are too remote to be
connected together”.
7. Right to write a Book
In the State of Maharashtra v. Prabhakar Pandurang [12], the
petitioner while detained in preventive detention wrote a scientific
book, but the government refused permission to him to send it to his
wife for publication. The Supreme Court held it to be an infringement
of the detenu’s personal liberty as under Art. 21 and prohibiting a
person from writing a book without there being any legal provision to
that effect would be unconstitutional.
8. Right to livelihood
If the right to livelihood is not treated as a part and parcel of the
constitutional right to life, the easiest way of depriving a person of his
right to life would be to deprive him of his means of livelihood to the
point of abrogation. The Court has observed on this point:

“The State may not by affirmative action, be compellable to provide

adequate means of livelihood or work to the citizens. But, any person
who is deprived of his right to livelihood 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 has observed that there exists a close nexus between ‘life’
and ‘livelihood’. Deprivation of livelihood would not only denude the
life of its effective content and meaningfulness but it would make life
impossible to live. And yet such deprivation of life would not be in
accordance with the procedure established by law, if the right to
livelihood is not regarded as a part of the right to life.
9. Right to a healthy environment
Apart from several personal rights, which the Supreme Court has spelt
out of Art. 21, as stated above, the Supreme Court has made a signal
contribution to the welfare of the people by using Art. 21 for the
improvement of the environment.
Right to live being a Fundamental Right under Art. 21, includes the
right to enjoyment of pollution-free water and air, for full enjoyment of
life. If anything endangers or impairs that quality of life in derogation
of laws, a citizen has a right to take recourse to Art. 32 or 226 of the
Constitution for removal of pollution of water or air which may be
detrimental to the quality of life.

On the question of the relationship between ecology and Art. 21, the
philosophy of the Court is that, since the right to life is a Fundamental
Right under Art. 21, and since the right to life connotes “quality of life”,
a person has a right to the enjoyment of pollution-free water and air to
enjoy life fully.

Hygienic environment is an integral facet of a healthy life. Right to

live with human dignity becomes illusory in the absence of humane
and healthy environment.
In M.C. Mehta v. Union of India[13], the Supreme Court issued several
guidelines and directions for the protection of the Taj Mahal, an
ancient monument, form environmental degradation. The Court has
further observed that,
“The ‘polluter pays’ principle, as interpreted by this Court, means that
the absolute liability for harm to the environment extends not only to
compensate the victims of pollution but also the cost of restoring the
environmental degradation.”

This means that the polluting industries are “absolutely liable to

compensate for the harm caused by them to villagers in the affected
area.

Noise pollution
The Supreme Court has recognized that noise constitutes a real and
pertinent danger to people’s health and laid down certain tests for
permissible limits. The Court observed that the concept of noise
pollution standards was relative and must relate and be dependent
upon the person concerned and the place of occurrence. The law will
not take care of a super-sensitive person but the standard is of an
average and rational human being in society.

10. Right to medical care

In Parmanand Katara v. Union of India[14], the Supreme Court has
considered a very serious problem existing at present: in a medico-
legal case (such as an accident) the doctors usually refuse to give
immediate medical aid to the victim till legal formalities are
completed. In some cases, the injured die for want of medical aid
pending the completion of legal formalities.
The Supreme Court has now very specifically clarified that
preservation of life is of paramount importance. Once life is lost, the
status quo ante cannot be restored. It is the duty of the doctors to
preserve life whether the concerned person is a criminal or an
innocent person. Art. 21 casts on the State an obligation to preserve
life.
The Court has also observed:

“Art. 21 of the Constitution casts an obligation on the State to

preserve life. The patient whether he be an innocent or be a criminal,
liable to punishment under the laws of the society, it is the
responsibility of those who are incharge of the health of the
community to preserve life so that the innocent may be protected and
the guilty may be punished. Social laws do not contemplate death by
negligence to be tantamount to be legal punishment. Every doctor
whether at a government hospital or otherwise has the professional
obligation to extend his services with due expertise for protecting
life.”

The Court has ruled that the Constitution envisages the establishment
of a welfare state, and in a welfare state, the primary duty of the
government is to provide adequate medical facilities for the people.
The Government discharges this obligation by running hospitals and
health centres to provide medical care to those who need them.
In Paschim Banga Khet Mazdoor Samity v. State of West
Bengal[15], a person suffering from serious head injuries from a train
accident was refused treatment at various hospitals on the excuse
that they lacked the adequate facilities and infrastructure to provide
treatment.
In this case, the Supreme Court further developed the right to
emergency treatment and went on to state that the failure on the part
of the Government hospital to provide timely medical treatment to a
person in need of such treatment, results in the violation of his right to
life guaranteed under Article 21. It acknowledged the limitation of
financial resources to give effect to such a right but maintained that it
was necessary for the State to provide for the resources to give effect
to the entitlement of the people to receiving emergency medical
treatment.
 11. Right to shelter
In Shantisar Builders v. Narayan Khimlal Totame[16], the Supreme
Court has ruled that the right to life is guaranteed in any civilized
society. This would take within its sweep the right to food, the right to
clothing, the right to decent environment and a reasonable
accommodation to live in. The difference between the need for an
animal and a human being for shelter has to be kept in view. For an
animal it is the bare protection of the body; for a human being, it has
to be a suitable accommodation which would allow him to grow in
every aspect-physical, mental and intellectual.
In several other cases, the Court has observed that the protection of
life guaranteed by Art. 21 encompasses within its ambit the right to
shelter to enjoy the meaningful right to life. The right to residence and
settlement is regarded as a facet of inseparable meaningful right to
life under Art. 21. Food, shelter and clothing are minimal human rights.
12. Right against sexual harassment
The Supreme Court has made a novel use of Art. 21 viz., to ensure that
the female workers are not sexually harassed by their male co-workers
at their places of work.

In Vishaka v. State of Rajasthan[17], the Supreme Court has declared

sexual harassment of a working woman at her place of work, as
amounting to a violation of rights of gender equality and right to life
and liberty which is a clear violation of Arts. 14, 15 and 21 of the
Constitution.
13. Right against rape
Rape has been held to be a violation of a person’s Fundamental Right
guaranteed under Art. 21. “Right to Life” means “the Right to live with
human dignity”. Right to ‘life’ would, therefore, include all those
aspects of life which go to make life meaningful, complete and worth
living.”

Rape is a crime against basic human rights and is also violative of the
victim’s most cherished of the Fundamental Rights, namely, the Right
to life contained in Art. 21.
In Bodhisattwa Gautam v. Subhra Chakraborty[18], the Supreme
Court held that,
“Rape is thus not only a crime against the person of a woman (victim),
it is a crime against the entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crises. It
is only by her sheer will power that she rehabilitates herself in the
society, which, on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated crime. It is a
crime against basic human rights and is also violative of the victim’s
most cherished of the fundamental rights, namely, the right to life with
human dignity contained in Art 21”.

The Supreme Court has ruled that it has the power to award interim
compensation to the victim of rape before the final conviction of the
offender. It can be seen that the Court has used Art. 21 against private
parties.

14. Right to privacy

Right to privacy is not enumerated as a Fundamental Right in the
Constitution. However, such a right has been culled by the Supreme
Court from Art. 21 and several other provisions of the Constitution read
with the Directive Principles of State Policy.

Important cases:
A. In Kharak Singh case[19], a question was raised whether the right
to privacy could be implied from the existing Fundamental Rights, such
as, Arts. 19(1)(d), 19(1)(e) and 21. The majority of the Judges
participating in the decision said of the right to privacy that “Our
Constitution does not in terms confer any like constitutional
guarantee.”
On the other hand, the minority opinion ( Subba Rao, J.) was in favour
of inferring the right to privacy from the expression ‘personal liberty’ in
Art. 21. In the words of Subba Rao, J.:
“Further, the right to personal liberty takes in not only a right to be
free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our constitution does not
expressly declare a right to privacy as a Fundamental Right, but the
said right is an essential ingredient of personal liberty. Every
democratic country sanctifies domestic life…….”

B. In Govind v. State of Madhya Pradesh[20], the Supreme Court

undertook a more elaborate appraisal of the right to privacy.
In the Govind case, the Court considered the constitutional validity of
a regulation which provided for surveillance by way of several
measures indicated in the said regulation. The Court upheld the
regulation by ruling that Art. 21 was not violated as the regulation in
question was “procedure established by law”, in terms of Art. 21. The
Court also accepted a limited Fundamental Right to privacy “as an
emanation” from Arts. 19(a), (d) and 21. The right to privacy is not,
however, absolute; reasonable restrictions can be placed thereon in
public interest under Art. 19(5).

C. In R. Rajagopal v. State of Tamil Nadu[21], the Supreme Court has

asserted that in recent times the right to privacy has acquired
constitutional status; it is “implicit in the right to life and liberty
guaranteed to the citizens” by Art. 21. It is a “right to be let alone.”
D. The Supreme Court has observed in People’s Union for Civil
Liberties v. Union of India[22] and held that,
“We have, therefore, no hesitation in holding that right to privacy is a
part of the right to “life” and “personal liberty” enshrined under Article
21 of the Constitution. Once the facts in a given case constitute a
right to privacy, Article 21 is attracted. The said right cannot be
curtailed ‘except according to procedure established by law.’ “

The right to privacy has now become established in India, but as a part
of Art. 21, and not as an independent right in itself, as such a right, by
itself, has not been identified under the Constitution. The Court has,
however, refused to define privacy saying,

“As a concept, it may be too broad and moralistic to define it

judicially. Whether right to privacy can be claimed or has been
infringed in a given case would depend on the facts of the said case”.
This means that whether the right to privacy can be claimed or has
been infringed in a given situation would depend on the facts of the
said case, and the view, the Court takes of the matter.

E. Navtej Singh Johar v. Union of India[23], proved to be another

milestone in the development of the right to privacy and an important
precedent delivered by five-judge Bench. The Section 377 of the
Indian Penal Code has been partially struck down by decriminalizing
same-sex relations between consenting adults. Now, LGBT individuals
are legally allowed to engage in consensual intercourse. The Apex
Court has upheld provisions in Section 377, IPC, that criminalize non-
consensual acts or sexual acts performed on animals.
Disclosure of diseases
In Mr X v. Hospital Z[24], the Supreme Court was called upon to
decide a very crucial question in the modern social context, viz: can a
doctor disclose to the would-be wife of a person that he is HIV
positive? Does it infringe the right to privacy of the person concerned?
The Court has observed that the “right to life” guaranteed by Art.
21 “would positively include the right to be told that a person with
whom she was proposed to be married, was the victim of a deadly
disease, which was sexually communicable”.
Moreover, when two Fundamental Rights clash, viz., that of the person
concerned (right to privacy) and that of the would-be wife (to live a
healthy life also guaranteed by Art. 21), “the Right which would
advance the public morality or public interest, would alone be
enforced through the process of Court.”

The Bombay High Court has in MX of Bombay v. M/s. ZY[25],

considered the important question of whether the state can deny job
opportunities to an HIV Positive person. In the instant case, a casual
labourer was denied work because he tested HIV Positive.
The High Court has ruled in the instant case, that it is not arbitrary to
deny the job of a casual worker to an HIV positive person because
such a person can discharge his normal duties and he poses no risk to
any fellow worker.

No Right to Die
Art. 21 confers on a person the right to live a dignified life. Does it
also confer a right not to live or a right to die if a person chooses to
end his life?
In P. Rathinam v. Union of India[26], a two-judge Division Bench of the
Supreme Court, took cognizance of the relationship/contradiction
between Sec. 309, I.P.C., and Art. 21. The Court held that the right to
life embodied in Art. 21 also embodies in it a right not to live a forced
life, to his detriment disadvantage or disliking.
The Rathinam ruling came to be reviewed by a Full Bench of the
Court in Gian Kaur v. State of Punjab[27].
The Court overruled the decision of the Division Bench in the above-
stated case and has put an end to the controversy and ruled that
Art.21 is a provision guaranteeing the protection of life and personal
liberty and by no stretch of imagination can extinction of ‘life’ be read
to be included in the protection of life. The court observed further:

“ …‘Right to life’ is a natural right embodied in Article 21 but suicide is

an unnatural termination or extinction of life and, therefore,
incompatible and inconsistent with the concept of right to life”

Constitutional validity of death sentences

The question of constitutional validity of the death sentence has been
raised before the Supreme Court several times vis-a-vis Arts. 14, 19
and 21. Art. 19 deals with several freedoms but not directly with the
freedom to live.
The Supreme Court upheld the constitutional validity of the death
penalty in Rajendra Prasad v. State of Uttar Pradesh[28]. The Court
did agree with the proposition that, as death penalty finally deprives
the accused of his right to life and other Fundamental Rights, the
validity of such a punishment can be tested with reference to Arts. 14,
19 and 21.
Art. 21 guarantees fair procedure; Art. 19 is based on
reasonableness of deprivation of freedom to live and exercise the
seven liberties guaranteed therein; Art. 14 is an assurance of non-
arbitrary and civilized punitive treatment. Art. 14 ensures that
principled sentences of death, not arbitrary or indignant capital
penalty, shall be imposed.
The death sentence should be imposed only if otherwise public
interest, social defence and public order would be smashed
irretrievably. “Special reasons” necessary for imposing death penalty
must relate, not to the crime, as such, but to the criminal. The crime
may be shocking and yet the criminal may not deserve a death
penalty. The extreme penalty can be invoked only in extreme
situations.
This Article clearly brings out the implication that the founding fathers
recognised the right of the State to deprive a person of his life or
personal liberty in accordance with fair, just and
reasonable procedure established by valid law. The procedure
provided in the Criminal Procedure Code for imposing capital
punishment for murder cannot be said to be unfair, unreasonable and
unjust.
The Court, however, emphasized that the death penalty is an
exception rather than the rule and it ought to be imposed only in
the ‘gravest of cases of extreme culpability’, or in the ‘rarest of rare’
cases when the alternative option is unquestionably foreclosed.
In Machhi Singh v. State of Punjab[29], the Supreme Court has
emphasized that death penalty need not be inflicted except in the
“gravest of cases of extreme culpability” and that “life imprisonment is
the rule and death sentence is an exception”.
Right against public hanging
In Attorney General of India v. Lachma Devi[30], the Supreme Court
has ruled that execution of a death sentence by public hanging would
be a barbaric practice and it clearly contravenes Art. 21. The Court
has made it crystal clear that a barbaric crime attracting death
sentence does not have to be visited with a barbaric penalty such as
public hanging. If any Jail Manual of any State prescribes public
hanging then the Supreme Court would declare such provision as void,
unconstitutional and violative of Art. 21 of the Constitution.
Delayed execution of death sentence
Another principle evolved by the Supreme Court in relation to death
sentences is that if there is a prolonged delay in execution of a death
sentence then it would be an “unjust, unfair and unreasonable”
procedure to execute the sentence. Prolonged delay in the execution
of a death sentence is dehumanizing and deprives a person of his life
and is an unjust, unfair and unreasonable way so as to offend Art. 21.
Important Cases
In Vatheeswaran v. State of Tamil Nadu[31], the Court opined that the
delay of two years would make it unreasonable to execute a death
sentence. The cause of delay was immaterial. The accused himself
may be responsible for the delay. In such a case, the appropriate relief
would be to vacate the death sentence and substitute life
imprisonment instead.
But, in Sher Singh v. State of Punjab[32], the Supreme Court observed
that, the implication of Art. 21 is that a prisoner who has experienced
living death for years on end is entitled to come to the Court
requesting it to examine the question whether, after all the agony and
torment he has been subjected to, it is just and fair to allow the
sentence of death to be executed.
The Court, in this case, differed from the Vatheeswaran view and now
ruled that “no hard and fast rule” can be laid down as regards how
much delay should be there in executing the death sentence before it
can be commuted.