“Exploring the Legal and Social Implications of Declaring Right to Public Service as

a Fundamental Right under Article 21”

ABSTRACT
The debate surrounding the inclusion of the Right to Public Service as a fundamental
right under Article 21 of the Constitution has garnered significant attention from legal
scholars, policymakers, and social activists alike. This research paper aims to delve into
the multifaceted legal and social implications associated with such a declaration.
The paper begins by providing a comprehensive overview of Article 21, emphasizing its
pivotal role in safeguarding the fundamental rights to life and personal liberty. It then
scrutinizes the conceptual framework, elucidating its significance in ensuring efficient
and accountable governance, particularly in the context of service delivery to citizens.
Drawing from a plethora of legal precedents, constitutional provisions, and scholarly
analyses, the paper evaluates the feasibility and desirability of elevating Right to Public
Service to the status of a fundamental right. It assesses the potential ramifications on the
existing legal landscape, including the interplay with other fundamental rights and the
scope of governmental obligations.
Furthermore, the research explores the broader societal implications of recognizing RPS
as a fundamental right. It examines its implications on administrative efficiency,
transparency, and citizen empowerment, while also scrutinizing the possible challenges in
implementation, resource allocation, and enforcement mechanisms.
Moreover, the paper undertakes a comparative analysis of jurisdictions where similar
rights have been enshrined constitutionally, shedding light on best practices and lessons
learned. It also incorporates empirical evidence and case studies to illustrate the real-
world impact of such legal reforms on governance, public service delivery, and citizen-
state relations.
In conclusion, this research underscores the need for a nuanced understanding of the legal
and social implications associated with declaring RPS as a fundamental right under
Article 21. It advocates for informed discourse, evidence-based policymaking, and

1|Page
collaborative efforts towards enhancing access to public services and upholding the
principles of justice, equality, and dignity for all citizens.
KEYWORDS

Right to public service, Fundamental right, Article 21, Statistics, International

Conference

INTRODUCTION

Effective, efficient, and prompt service delivery has always been a concern of the
Government. Due to bureaucratic apathy and delays, the common man who is entitled to
avail hassle-free and timely services and information thereof has faced a lot of problems.
Furthermore, the Right to Public Service derives its moral and ethical basis from
Gandhian philosophy. Where Mahatma Gandhi in his speech in South Africa in 1890 said
–
“A customer is the most important visitor on our premises.
He is not dependent on us. We are dependent on him.
He is not an interruption of our work; he is the purpose of it.
He is not an outsider to our business; he is part of it.
We are not doing him a favor by serving him.
1
He is doing us a favor by giving us the opportunity to do so” is worth emulating by
governments.

RESEARCH METHODOLOGY

This paper is descriptive and the research is based on secondary sources for the deep
analysis of “Exploring the Legal and Social Implications of Declaring Right to Public
Service as a Fundamental Right under Article 21” in India.
Secondary sources of information like newspapers, journals, conferences, and websites
are used for the research.

1
Journal of positive school psychology 2022, Vol6, 2968-2975

2|Page
Article 21 and Right to Life

The sweep of the right to life conferred by Article 21 is wide and far reaching 2 that
judicial intervention keeps expanding its meaning and provides various rights to be
included in it which are necessary to complete the meaning of right to life and personal
liberty. The expression "Life", as observed by Field, J. in Munn v. Illinois3, means
something more than mere animal existence and the inhibition against the deprivation
of life extends to all those limits and faculties by which life is enjoyed. This
observation was quoted with approval by this Court in Kharak Singh v.The State of
U.P.4

Be it right to travel abroad as interpreted through Maneka Gandhi v. Union of India5 .

Prior to Maneka Gandhi‟s decision, Article 21 guaranteed the right to life and personal
liberty only against the arbitrary action of the executive and not from the legislative
action. Broadly speaking, what this case did was extend this protection against
legislative action too.

The concept of “personal liberty” first came up for consideration of the Supreme Court in
A.K. Gopalan v. The State of Madras. In this case it was argued that the words
“procedure established by law” actually meant “due process of law” from the
American Constitution which includes principles of natural justice and the impugned law
does not satisfy that requirement. This enhanced the scope Article 21.

2
Olga Tellis & Ors vs Bombay Municipal Corporation & Ors 1986 AIR 180, 1985 SCR SUPL. (2) 51
pg.05
3
Munn v. Illinois (1877) 94 U.S. 113
4
Kharak Singh v. The State of U.P., [1964] 1 S.C.R. 332
5
Maneka Gandhi v UOI 1978 AIR 597, 1978 SCR (2) 621

3|Page
Rights include the Right to livelihood (Olgatellis v. Bombay Municipal Corporation6),
the Right to Shelter (Chameli Singh v State of UP)7, the Right to a Clean
Environment (M C Mehta v Union of India Bhopal gas tretagy)8, the Right to
Education (Unni Krishnan v State of AP )9, Right to Travel Abroad ( Maneka
Gandhi v UOI )10, Right to free Legal Aid ( MH. Hoskot v. State of Maharashtra)11,
Right to Speedy Trail (Hussaina Ara Khatoon v state of Bihar)12 judiciary’s
intervention in the process of interpreting the rights included in Article 21 has made the
scope wider.

To ensure all the above rights there is a need to ensure to proper functioning of the
service provider which in this case is the State itself, and while having these rights as a
Fundamental Right it is very important to make the Right to Service a fundamental Right
as it is the root to guarantee the above-mentioned Fundamental Rights.

There can be no estoppels against the Constitution. The Constitution is not only the
paramount law of the land but, it is the source and sustenance of all laws. Its
provisions are conceived in the public interest and are intended to serve a public purpose.

“Any action taken by a public authority which is invested with statutory powers has,
therefore, to be tested by the application of two standards: The action must be within the
scope of the authority conferred by law and secondly, it must be reasonable.

If any action, within the scope of the authority conferred by law, is found to be
unreasonable it must mean that the procedure established by law under which that
action is taken is itself unreasonable. The substance of the law cannot be divorced
from the procedure which it prescribes, how reasonable the law is, depends upon
how fair is the procedure prescribed by it, Sir Raymond Evershad says that, from the
6
Supra2 pg.26
7
Chameli Singh v State of UP 1995 Supp(6) SCR 827
8
M C Mehta v Union of india Bhopal gas tretagy 1987 AIR 1086, 1987 SCR (1) 819
9
Unni Krishnan v State of AP 1993 AIR 2178, 1993 SCR (1) 594
10
Supra 5
11
MH. Hoskot v. State of Maharashtra 1978 AIR 1548, 1979 SCR (1) 192
12
Hussaina Ara Khatoon v state of Bihar 1979 AIR 1369, 1979 SCR (3) 532

4|Page
point of view of the ordinary citizen, it is the procedure that will most strongly weigh
with him. He will tend to form his judgment of the excellence or otherwise of the legal
system from his knowledge and experience in seeing the legal machine at work", [`The
influence of Remedies on Rights' (Current Legal Problems 1953, Volume 6.)].13

An individual citizen while applying for any of services does not have a legal right to
demand the fulfilment of the services, but depend upon the will of the concern officer for
example some of the important services provided by the state are safety and security of
the people through the police department. The police department is managed and
maintained by the state government, which not only maintains law and order, but also
provides numerous other service like clearance to hold a public event, character
certificate, arms licence , permission for public gathering, NOC for passport
verification, NOC for hotel restaurant, police verification etc., lack of legal
entitlement often resulted in corruption and delay in grant of service as these services
depends upon the will of the concerned police officers.14

The fundamental rights themselves have no fixed content, most of them are empty vessels
into which each generation must pour its content in the light of its experience 15. In order
to ensure all the above right there is need to ensure to proper functioning of the service
provider which is in this case is State itself, and while having these rights as a
Fundamental Right it is very important to make Right to Service as a fundamental Right
as it is the root to guarantee the above-mentioned Fundamental Rights.

13
Supra 2
14
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.nujs.edu/wp-content/uploads/
2022/11/File-25.pdf
15
Writ Petition (Civil) 135 of 1970)

5|Page
LIMITATION TO ARTICLE 21

The sweep of the right to life conferred by Article 21 is far-reaching that judicial
intervention keeps expanding its meaning and provides various rights to be included in it
which are necessary to complete the meaning of the right to life and personal liberty. On
the other hand, this honorable court also limits the scope of Right to Life through its
various Judgements.
Demand for Right to Employment (State of Karnataka v. Ummadevi) 2006 4 SCC 116 ,
Right to Vote (Anoop Baranawal v. UOI)17, Right of an accused to watch the
prosecution witness(Jayandra Vishnu Thakur v. State of Maharastra )18 deposed by
the Supreme court to be a part of the Right to Life under Article 21 of the
Constitution.

Article 21 is negative in nature. A person can claim his right under article 21 only after
the infringement; Rights such as the right to shelter do not resemble that the state will
provide shelter to all its citizens similar in the case of health and education.

Justice Nagarathna asserted that the duty of the state under Article 21 was negative in as
much as it was only required to not deprive a person of their right to life and liberty.
Held in Kaushal Kishor v. State of Uttar Pradesh and Ors.2023 4 SCC 1.

But in the case of the Right to Public Service, it can not be treated as a negative to Article
21. Services are involved in each work of the welfare state.

Inter-relationship between fundamental rights and DPSP with Public Service

16
State of Karnataka v. Ummadevi 2006 4 SCC 1
17
W.P.C 114 2015
18
2009 7 SCC 104

6|Page
A most remarkable feature of the expansion of Article 21 has been that many of the no
justifiable Directive Principles have been converted into enforceable Fundamental Rights
by the magical wand of judicial creativity. In the process of expanding the ambit of
Article 21, the Supreme Court has integrated many directive principles with Article 21.
The result of this judicial activism has been that not only many directive principles have
been activated but also many new Fundamental Rights have been implied by the Supreme
Court from Article 21. 19
The fundamental rights themselves have no fixed content , most of them are empty
vessels into which each generation must pour its content in the light of its experience. 20
As some of The Directive Principles of state policy is also became as the fundamental
rights which plays a significant role in order to fill that empty vessels such as Right to
Education in Article 41 and Article 45(Unni Krishnan v State of AP)21 , Right to free
Legal Aid in Article 39A ( MH. Hoskot v. State of Maharashtra) 22 , Right to Clean
environment in 48A (M C Mehta v Union of India Bhopal gas tragedy)23, Right to
Shelter (Chameli Singh v State of UP)24 become as fundamental right under Part III of
the Indian constitution.

Article 38. State to secure a social order for the

promotion of welfare of the people.
Article 39A Equal justice and free legal aid.

Article 40 Organisation of village panchayats.

Article 41 Right to work, to education and to public

assistance in certain cases
Article 42 Provision for just and humane conditions
of work and maternity relief.
Article 43 Living wage, etc., for workers.

19
M.P Jain Indian Constitutional Law eighth edition MPP House 2021 p.1208 para 1
20
Id.15
21
Supra 9
22
Supra 11
23
Supra 8
24
Supra 7

7|Page
 Article 46 Promotion of educational and economic
interests of Scheduled Castes, Scheduled
Tribes and other weaker sections
Article 47 Duty of the State to raise the level of
nutrition and the standard of living and
to improve public health.
Article 48 Organisation of agriculture and animal
husbandry.
Article 48A Protection and improvement of
environment and safeguarding of forests
and wild life.

Services in order to provide Right to education the Indian government’s focus on the
education sector has been growing, with the recent announcement of the largest-ever

Education Budget allocation of approximately $13.67 billion in February 2023.25

Legal aid clinics are set up in various parts of the country to provide legal assistance at

the grassroots level. These clinics are often run by lawyers and paralegal26.

Pradhan Mantri AwasYojana – Urban (PMAY-U), a flagship Mission of Government of

India being implemented by Ministry of Housing and Urban Affairs (MoHUA), was
launched on 25th June 2015. The Mission addresses urban housing shortage among the
EWS/LIG and MIG categories including the slum dwellers by ensuring a pucca house to
all eligible urban households by the year 2022.27

25
https://www.trade.gov/market-intelligence/india-education-budget-2023#:~:text=The%20Indian
%20government's%20focus%20on,and%20R%26D%20in%20the%20country
26
https://articles.manupatra.com/article-details/Legal-Aid-in-India-current-scenario-and-future-challenges
27
https://pmaymis.gov.in/

8|Page
 In order to achieve the above services, the service provider plays a very crucial role
therefore Right to Public Service should be a fundamental right in order to achieve the
other fundamental rights which became as a part of Article 21 of the Constitution.

International Conference

In accordance with the Universal Declaration of Human Rights, the ideal of free
human beings enjoying civil and political freedom and freedom from fear and want
can only be achieved if conditions are created whereby everyone may enjoy his civil
and political rights, as well as his economic, social and cultural rights. 28.
Article 21 of Universal Declaration of Human Rights states “Everyone has the right
of equal access to Public Service in his country.” 29
Article 25 (c) of International Covenant on Civil and Political Rights provides “To
have access, on general terms of equality, to public service in his country”30.
India is one of the members of the Universal Declaration of Human rights. 31 As well
as the International Covenant on Civil and Political Rights This honourable court
adopted International Charter on Human Rights with a view to expand the ambit of
32
Article 21. For example, in PUCL v UOI the Court has implied the right of privacy
from Article 21 by interpreting it in conformity with Article 12 of the Universal
Declaration on Both of Rights and Article 17 of the International Covenant on Civil
and Political Rights, 1906 Bother these international documents provide for the right
of privacy.

Whenever injustice is meted out to a large number of people, the Court will not hesitate
in stepping in Articles 14 and 21 of the Constitution of India as well as the International
Conventions on Human Rights33

28
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-
rights
29
Supra 25
30
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-
rights
31
https://digitallibrary.un.org/record/670964?ln=en
32
PUCL v UOI AIR 1997 SC 568 Para 25
33
Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546

9|Page
1.1 Statistics on Public Service

Twenty-Two States participated in the National Conference on “Improving Public

Services Delivery ̶ Role of Governments” held at Nagpur on 21st& 22nd December. 2019
Jointly organized by DAR&PG, Govt. of India; Government of Maharashtra; and
Maharashtra Right to Public Services Commission The valedictory session was graced by
Hon’ble Union Ministers – Shri Nitin Gadkari ji and Dr. Jitendra Singh ji to guide the
participants. 34

Chief Commissioners of Maharashtra, Punjab, Haryana, Uttarakhand, West Bengal, and

other senior officials of the States and Government of India participated. There are almost
20 states and 2 union territories that have the Right to Public Service Act which are
almost similar in nature with some minor differences.

Right to Service Legislation ensures the delivery of time-bound services to the public. It
aims to reduce corruption among government officials and to increase transparency and
accountability.35 After the enactment of the Right to Service Act, the records that came
forward were very shocking as the following numbers of the cases came forward which
shows the lack of efficiency of the public service.36

STATE CASES RELATED TO PUBLIC

SERVICES (till 2019)
MAHARASHTRA 7.55 CRORE +
PUNJAB 13.18 CRORE
TAMIL NADU 1.5 CRORE PER YEAR
KARNATAKA 20 CRORES +
UTTARAKHAND 2 CRORES +

34
https://aaplesarkar.mahaonline.gov.in/pdf/Conference%20Proceedings%20Nagpur%202019.pdf
35
Amitabh shrivastava , Deputy Advisor ( Centre for knowledge management ), study of right to service
Acts of selected Indian State , Atal Bihari Vajpayee Institute of good governance and policy analysis
36
Supra32

10 | P a g e
 The above table represents the number of cases filed because of the lack of efficiency by
public servants.

Shri Supriyo Ghoshal, Secretary of WBRTPS Commission, West Bengal specifically

added the often-quoted line ‘justice delayed is justice denied’ similarly “service delayed
is service denied”37

1.2 Doctrine of Separation of Powers

The doctrine of separation of powers implies that each pillar of democracy – the
executive, legislature, and judiciary – performs separate functions and acts as separate
entities. The executive is vested with the power to make policy decisions and implement
laws. The legislature is empowered to issue enactments. The judiciary is responsible for
adjudicating disputes. The doctrine is a part of the basic structure of the Indian
Constitution.38

The Court laid down two crucial functions of judicial restraint:

To encourage equality among the three branches by minimizing inter-branch
interference by the judiciary.To protect the independence of the judiciary.39
Where one branch must be to a limited extent to interfere with the other branches.

The legislature represents the supreme will of the people, they are the representatives
of the people who are closely connected to them and know the people’s problems directly
to resolve the grievances the state government already came with the Right to Public
Service Act in the 22 states and also drafted Right to Public Service bill in 2013.
To ensure the Public Service, the following statistics represent the state's efforts to resolve
grievances in public services.

37
Supra 31 P.31
38
Keshavananda Bharti vs. State of Kerala AIR 1973 SC 1461
39
Divisional Manager, Aravali Golf v. Chander Hass & Anr. (2007)

11 | P a g e
 STATE CASES RELATED TO CASES
PUBLIC SERVICES RESOLVED
(till 2019)
MAHARASHTRA 7.55 CRORE + 7.39 CRORE+ (98 %)
PUNJAB 13.18 CRORE 13.15 CRORE (99.77%)
KARNATAKA 20 CRORES + 19.2 CRORE (96%)

The state government of Tamil Nadu distributed 16 Lakh laptops to encourage online
application and delivery of public services, there are more than 12000 common service
centres in Tamil Nadu.40

This shows that the State itself trying to provide public service to ensure effective and
efficient `services provided by the state. With a view to see that judicial activism does
not become judicial adventurism the courts must act with caution and proper restraint.
It needs to be remembered that courts cannot run the government. The judiciary should
act only as an alarm bell”.41

Here there is no alarming bell can be seen as the respective state already resolved more
than 95 % of the cases.

Overburden in Higher Judiciary

Independence, efficiency, accessibility, accountability and effectiveness are the main

characteristics of an effective judicial system. Efficiency is quantified in terms of an
input- output ratio where input is express in the terms of case institution and filing an
output is measured in terms of the number of cases disposed and the quality of the
judgement.
40
https://aaplesarkar.mahaonline.gov.in/pdf/Conference%20Proceedings%20Nagpur%202019.pdf P.23
41
Supra 4

12 | P a g e
The Indian judicial system has three levels the Supreme Court, the high court, and the
subordinate courts. The Law Commission of India 2014 noted that delay in justice
delivery have had negative implications for socio economic conditions in the country.
Increasing pendency, rising litigation cost and the slow pace of trial are major
problem being faced by the legal system.42

There is shortage of judges to decide cases as on September 01 2021 in the Supreme Court
had 1 vacancy out of the sanctioned strength of 34 judges43.
The Supreme Court currently has 34 judges but its increasing workload has had
implications for its efficiency both in terms of quantity and quality of cases disposed. The
major problem being faced by the Supreme Court is case pendency which has been
increasing with every passing year. In 1951, the pendency in the Supreme Court was
827 which rose to 57,346 cases in 201844 and 80221 in the year 2023.45

On September 29, 2020, the total number of pending cases in all the courts was
approximately 4 crores (Staff, 2019); almost a year earlier (on November 28, 2019),
59,867 cases were pending in the Supreme Court, while the corresponding figures in the
high court’s and subordinate courts were 44.75 lakh and 3.14 crore, respectively.46

The above statistics of pending cases in the higher judiciary of the country showcase the
already existing overburden of cases in the higher courts, and the number of cases related
to Public service is corers in number and if these cases also come under the scope of
Article 21 of Right to Life and Personal Liberty it will become very difficult to resolve
those grievances on time and effective manner.

42
Supra 20
43
https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary
44
Aashita dawer, analysing judicial efficient of Indian codes centre for social and economic progress
June2022
45
https://njdg.ecourts.gov.in/scnjdg/
46
On the basis of information given by Union Law Minister, Ravi Shankar Prasad, Supra 20

13 | P a g e
Therefore the alternative remedies given by the concerned states not only reduce the
burden on the higher judiciary but also help to get the effective and efficient
redressed on time to the public itself.

CONCLUSION
In conclusion, legally acknowledging the right to public service is pivotal within a welfare
state where the government serves as the primary provider. By codifying this right, we
ensure equitable access to vital services, cementing the state's duty to promote the welfare
of its citizens. This legal recognition bolsters governmental accountability, guaranteeing
that services are administered efficiently and fairly. It also establishes a legal avenue for
citizens to seek redress in cases of service denial or discrimination, upholding their rights
and fostering the rule of law. Essentially, from a legal perspective, recognizing the right to
public service strengthens the social contract between the state and its populace,
underpinning a just and cohesive society. In sum, enshrining this right into law is essential
for promoting equal access to essential services and ensuring that the government fulfills
its obligations to the public.

14 | P a g e