GROUP 6: MINUTES OF THE CLASS
For Wednesday, 4th April, 2018.
Article 21: The Most Progressive and Evolved Provision of India’s Living Constitution
Article 21 states that there shall be no deprivation of a person’s life or personal liberty except “according to procedure established by law”. The right is considered at the heart of India’s constitution as the foundation of Indian laws. The rights secured by Article 21 are:
- Right to life
- Right to personal liberty
There is a prohibition on depriving an individual of above mentioned rights if it is not in accordance with procedure established by law. Article 21 is corresponding with the ‘Magna Carta of 1215, the Fifth Amendment to American Constitution, Article XXXI of Constitution of Japan, 1946, Article 40 (4) of Constitution of Eire, 1937. The article is applicable to every citizen, person or alien. Thus this right can be claimed even by a foreigner, though there is no entitlement of right to reside and settle in India as given in Article 19(1)(c). A person can claim article 21 only when there is a deprivation of his “life” or “personal liberty” by the “State” as enshrined in Article 12.
CONCEPT AND MEANING OF ‘RIGHT TO LIFE’
Right to life is essential to human beings’ existence and is inclusive of all the different aspects of life that make his life complete, meaningful and worthy of living. So, the basic and minimum requirements, bare necessities that are fundamental for a person’s life are included in the basic concept of right to life. In case of Kharak Singh v. State of Uttar Pradesh (1962), Supreme Court held that the term ‘life’ means more than a mere ‘animal existence’. This was reiterated further in case of Sunil v. Batra Delhi Administration (1979), in which the Supreme Court held that ‘right to life’ includes right to live a healthy life and enjoying ‘all faculties of human body in their prime conditions’. This even includes right to protection of an individual’s heritage, culture and tradition that give meaning to his life. The right to health and repose, live and sleep in peace are under the purview of Article 21. Similarly the court has included the right to live with dignity under Article 21 in the cases of Maneka Gandhi v. Union of India (1978) and Francis Coralie v. Union of India (1979). Right against Sexual Harassment at workplace, right against rape, right to reputation, right to livelihood are included within the concept of ‘right to life’ and the list of rights included is even more expansive.
MEANING OF PERSONAL LIBERTY
National courts protection of personal liberty is one of the oldest concept. The English Magna Carta, from as long as 1215, provides:
‘No freeman shall be taken or imprisoned….but…..by the law of the land.’
In Indian courts, an issue regarding right to privacy first came before the court in Kharak Singh v. State of Uttar Pradesh where the court looked into the question of whether fundamental rights such as Article 19(1)(d), 19(1)(e) and 21 imply the right to privacy to be in existence. The majority opinion though held that there is no explicit guarantee of the ‘right to privacy’, it expanded the right of personal liberty to include right to live with dignity. The court held that intrusion into a person’s house without any authorization and causing him disturbance as a result is a common law right’s violation of a man’s liberty.
Concept of Right to Privacy has been further extended in subsequent cases involving issues of woman’s right to make reproductive choices, right against illegal detention, prisoner’s rights, right to bail, right to fair and speedy trial etc.
PROCEDURE ESTABLISHED BY LAW
The expression of “procedure established by law” has been interpreted in a series of cases. An analysis of the cases brings forth how the scope of this expression is enlarged by courts in process of judicial interpretation. It is interesting to observe how the Supreme Court initially took a totally formalistic understanding of the expression stating that the expression means the law as is enacted by the state and rejected the “due process of law”. However, in Maneka Gandhi case (1978), there is a shift and the court looks at the fairness of the procedure established by law. The procedure as is prescribed by law for depriving a person of his personal liberty and life has to be ‘fair, just and right’ and not ‘arbitrary, fanciful and oppressive’. So, the expression also acquired the same importance in India as is the ‘due process of law’ clause in America. Interpretation of law by J. Iyer in above mentioned Sunil Batra’s case in which he adopted different standards of constitutional interpretation reflects the mark in this shift from understanding of the expression in its pure form to the test of procedural fairness. Now with the expansive and radical interpretation of the article, courts have focussed on the substantive understanding of the expression.
DISCUSSION
Tracing the trajectory of the expansive interpretation of Article 21, we realize that the article did not play much role in the 1950’s and 1960’s. Analysing from historical constitutional interpretation, one can observe that Indian courts had a formal understanding of rule of law and used the word ‘procedure established by law’ and not ‘due process’. Only when there is a shift from a formal to a substantive understanding of rule of law is when ‘due process’ is innovated and judicial activism steps in. So from 1980’s, with the beginning of judicial activism, a lot of Article 21 attracts a lot of focus. It is imperative to note that judiciary, in order to maintain public order and provide justice many times oversteps its boundaries in interpreting the law. In Vishakha v. State of Rajasthan (1997), Supreme Court in absence of any legislation that provided for enforcement of humans’ basic rights of protection against sexual harassment, laid down certain guidelines. It was necessary for judiciary in this case to lay down certain guidelines but it is equally essential for India’s democracy to function well that Judiciary does not engage in judicial overreach while interpreting a law. We also need to think the limitations of rights granted to us under Article 21. This is because while interpreting article 21 even certain weak rights have come under the ambit of Fundamental Rights but at the same time we really do not even have strong protection for more important fundamental rights. Also though the Indian courts have given Indians various rights under article 21 but there is no proper remedy ensured in case of violation of these rights in many cases. So whether we have rights but really do not have a remedy is a crucial point that one should think about.
Please refer to the slides sent by Group 5 and other uploaded materials by Professor Fischer for reading cases and other material on Article 21.
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