Article 21 (Right to Life and Liberty)

Protection of Life and Personal Liberty

It states that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

• The right guaranteed in Article 21 is available to ‘citizens’ as well as ‘non-citizens’.
• Article 21 can be claimed only when a person is deprived of his life or personal liberty by the State under the meaning of Article 12. Thus, Violation of the right by Private individual is not within the purview of Article 21.

Meaning of Right to Life

Sunil Batra vs Delhi Administration: Right to life includes right to lead a healthy life so as to enjoy all faculties of human body in their prime conditions. It would even include the right to protection of a person’s tradition, culture, heritage, and all that gives meaning to a man’s life.

Scope of Right to life

Right to live with Human Dignity

1. PUDR vs UOI: The non-payment of minimum wages to the workers has been held by the supreme court as violative of Right to life. 
2. Bandhu Mukti Morcha vs UOI: Linked the article 21 with DPSP particularly Article 41 and 42.
3. Jeeja Ghosh vs UOI: Rights guaranteed to differently abled person were founded on the sound principles of human dignity, which is the core value of human right and facet of Article 21.

Right to Reputation:

1. Subramaniam Swamy vs UOI: the apex court held that the reputation of an individual is a basic element under Article 21 of the Constitution and balancing of fundamental rights is a constitutional necessity. Right to free speech does not give a right to an individual to defame others. The citizens have a correlative duty of not interfering with the liberty of other individuals since everybody has a right to reputation and right to live with dignity. Further, the court held that it is the duty of the State to regulate the freedom of speech and expression and to ensure that the citizens do not make defamatory speeches. Existence of Section 499 of the IPC is not a restriction on the freedom of speech and expression because it ensures that the social interest is served by holding a reputation as a shared value of the public at large. Therefore, it is essential to keep Section 499 (Criminal Defamation) of the Indian Penal Code, 1860 alive in order to protect the reputation of individuals. 
2. Om Prakash Chautala vs Kanwar Bhan: A Good reputation is an element of personal security and is protected by the constitution and thus inseparable facet of Right to life.

Right to livelihood:

1. Olga Tellis vs Bombay Municipal Corporation: The pavements dwellers have the Right to Livelihood which is considered in the sweep of Right to Life. the Petitioners lived on the slums not by choice, but by a reason of involuntary acts; it did not include a mala fide intent, and thus was not a Criminal trespass.
2. A person tested positive for HIV could not be rendered medically unfit solely on the ground to deny him of employment.

Right to live in unpolluted environment

The Supreme court said that the word environment is of broad spectrum, which brings within its ambit hygienic atmosphere and ecological balance, free from pollution of air, water, sanitation without which life could not be enjoyed.

1. MC Mehta vs UOI: Large scale misuse of residential space for commercial purposes violate right to have decent urban environment. In this case, Article 21 is read with Article 48A and 51A (g).
2. Moti Lal Yadav vs State of UP:- The court directed Principal Secretary Home and Chairman of UP Pollution Board to file separate affidavit on the steps taken to enforce 2000 rules.
3. In Re: Noise Pollution vs Unknown: The noise level at the boundary of the public place, where loudspeaker or public address system or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards for the area or 75 dB(A) whichever is lower.
4. MC Mehta vs UOI: Balance has to be maintained between environmental protection and developmental activities. The court explained the protection and improvement of environment as envisaged in Environment protection act can be achieved by sustainable development.

Right to Die

Suicide: According to section 309 of IPC, “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both]. “Mental Healthcare Act has effectively taken away the sting of Section 309. It will be good when the IPC is amended and Section 309 removed. Until then, Mental Healthcare Act will ensure that people who attempt suicide can be provided with services they need and also protected from harassment from police authorities

1. P Rathinam vs UOI: In this case, it was held that if a person has attempted to commit suicide, he must be unstable mentally and must be going through a lot already. And punishing a person for trying to end his life because he was in trouble, would not help his mental health at all.
2. Smt. Gian Kaur v. the State of Punjab: The Supreme Court held that the right to life is a natural right while suicide is an unnatural extinction of life and therefore the latter is inconsistent with the former. The court thus upheld the constitutional validity of Section 309. 

Euthanasia: 

• Active euthanasia: involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection.
• Passive or negative or non-aggressive euthanasia is the denial of medical care necessary for maintaining life, such as the denial of antibiotics when the patient is likely to die without them.

1. Aruna Shanbaug case (2011): The SC allowed passive euthanasia.
2. Common Cause case (2018): The SC decided that passive euthanasia will be legally allowed henceforth in India and also laid down guidelines for living wills.

• The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate.
• The medical board must communicate its decision within 48 hours (no time limit earlier).
• Now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign.
• In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

Death Sentence

Section 354 (5) of the CrPC specifies that hanging is the method of execution in the civilian court system. According to the Army Act of 1950, the army court-martial system recognises both hanging and shooting as legitimate methods of execution. Between 2004 and 2015, approximately 1500 capital punishment verdicts were issued, but only four convicts were hanged.

Basis of Death Penalty:

• Retribution: One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime. This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
• Deterrence: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.

Court on Death Penalty –

• Bachan Singh vs State of Punjab: It was determined that the death penalty is an exception and life imprisonment is the rule, but the Supreme Court’s decision did not define the phrase ‘rarest of rare.’

• Swami Shraddananda case: The apex court had observed that where the apex court judges “may feel somewhat reluctant in endorsing the death penalty… the court would take recourse to the expanded option”. The expanded option being imprisonment for the rest of life without remission.
• Manoj v. State of Madhya Pradesh: Certain procedural thresholds must be met for sentencing to be fair and explicitly rejects the idea that death sentences can be determined solely on crime-based considerations.

1. Commitment to recognising reformation as integral to the Indian criminal justice system, especially death penalty sentencing.
2. It asks the state and sentencing judges to establish that there is no probability of reformation of the accused.
3. It recognises that aspects of the accused’s life, both pre-offence and post-offence in prison, are relevant.
4. As practical steps in this process, the judgment asks courts to call for reports from the probation officer as well as prison and independent mental health experts.
5. The state too must present material that speaks to a wide range of factors. The right of the accused to present mitigating factors and rebut the state, if necessary, is also recognised.

Reason Death Penalty persists:

• National Security: Some acts like waging war against the State, terrorism etc. erodes the sanctity of our National Security framework.
• Acts that shake the collective conscience: Supporters of Death Penalty says that there are some acts which shakes the collective conscience of society and deserves nothing except death penalty. 

Death Penalty should go away :

• Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance. Capital punishment doesn’t rehabilitate the prisoner and return them to society.
• Social Factors Against Capital Punishment: An analysis of the possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.
• Discriminatory towards One Section: According to the Death Penalty India Report 2016 (DPIR), approximately 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities. 
• Spent considerable time in jail due to an error by the State. However, if a person is wrongly hanged, then no amount of compensation can bring back the person and mitigate the error.
• Inhumane: Human rights and dignity are incompatible with the death penalty. The death sentence is a violation of the right to life, which is the most fundamental of all human rights.
• Global Precedent – No correlation with low crime rates: Scandinavian countries like Norway, Sweden and Finland have one of the lowest crime rates in the world without death penalty. They focus on reforming the criminal rather than deterring him with stricter and harsh punishments.

The Law Commission in its 262nd report proposed that the death penalty should be abolished for all crimes excluding terrorism-related offences and war. The experience of the Scandinavian countries also supports this view. However, till the time it happens, there should be proper implementation of the Bachan Singh Judgment by the Indian Courts.

Personal Liberty

• Liberty in negative sense means absence of restrictions. 
• Positive liberty means freedom with certain restrictions which is necessary for the good of the society. These restraints are necessary so that everyone irrespective of the caste, creed, gender or any other societal factors which restrict a common man could enjoy the liberty. 

The term Personal liberty was examined for the first time in AK Gopalan case. It means nothing more than the liberty of a physical body. It means freedom from arrest and detention from false imprisonment. Kharak Singh case: The Court laid down that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby violated his right to “personal liberty” enshrined in Article 21. Thus, the Regulation authorising domiciliary visits, was plainly violative of Article 21 as there was no law on which it could be justified and hence, it was struck down as unconstitutional.

Facets of Personal Liberty

Right to Privacy: Internationally, the right to privacy is prescribed in Article 12 of the United Nations Declarations of Human Rights (UDHR) 1948 and Article 17 of the International Convention on Civil and Political Rights (ICCPR) 1966. The right to privacy legally protects an individual against ‘arbitrary interference’.

• It is protected as an intrinsic part of the right to life and personal liberty.
• The Court directed the Centre to put into place, a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the State. The legitimate aims of the State would include, for instance: Protecting national security, Preventing and investigating crime, encouraging innovation and Preventing the dissipation of social welfare benefits.
• The Supreme Court was careful to point out that the fundamental right to privacy is not absolute, and that it will always be subject to reasonable limitations. It was held that the state can limit the right to privacy to defend legitimate state interests. Only state action that passes each of the three tests can limit the right. First, such state action must have a legislative mandate; second, it must be pursuing a legitimate state objective; and third, it must be proportionate, i.e., such state action must be necessary for a democratic society, both in nature and scope, and the action should be the least intrusive of the available options to achieve the goals.
• Telephone Tapping:
  • PUCL vs UOI: The Court laid down exhaustive guidelines to regulate the discretion vested in the State under Section 5 of the Indian Telegraph Act for the purpose of telephone tapping and interception of other messages to safeguard public interest against arbitrary and unlawful exercise of power by the Government. Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the Act. “Occurrence of any public emergency” or in interest of public safety” are the sine qua non “for the application of provisions under section 5(2) of the Act unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said legislation. The Court said public emergency would mean the prevailing of sudden condition or situation affecting the people at large calling for immediate action. The expression ‘public safety’ means the state or condition of grave danger or risk for the people at large. When either these two conditions are not in existence, the Court said, the Central Government or the State Government or the authorised officers cannot resort to telephone tapping.
• Reproductive Choices: 
  • Devika Biswas vs UOI: The Supreme Court observed that “the right to health” and “the reproductive rights of a person”, constituting two important components of the “right to life” under Article 21 had been endangered by sterilization procedure carried out, under “the Population Control and Family Planning Programme or the Public Health Programme of the Government of India.” 
• Sexual orientation 
  • Suresh Kumar Koushal vs Naz Foundation case: Sexual orientation is an essential attribute of privacy. Discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of everyone in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lies at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
• Disclosure of Disease
  • Mr. X vs Hospital “Z: The court held that the “it was open to the hospital, or the doctor concerned to reveal such information to persons related to the girl whom he intended to marry, and she had a right to know about the HIV positive status of the appellant”. Court also held that the duty to maintain secrecy in the doctor-patient relationship is not absolute and can be broken for the public good or interest.

Article 21 and Prisoner Rights

Supreme Court while interpreting Article 21, has laid down a new Constitutional and Prison Jurisprudence. The rights or protections recognised for the prisoners have been discussed below:

Right to Free Legal Aid: 

1. M H Hoskot vs State of Maharashtra: 
   • The Supreme Court laid down that right to free legal aid at the cost of the State to an accused, who could not afford legal services for reasons of poverty, indigence or incommunicado situation, was part of fair, just and reasonable procedure implicit in Article 21. Free legal aid to the indigent has been declared to be “a state’s duty and not government charity”.

Right to Speedy Trial: Article 21 requires that a person can be deprived of his liberty only in accordance with procedure established by law which should be a just, fair, and reasonable procedure. A procedure cannot be reasonable, fair, or just unless it ensures a speedy trial for determination of the guilt of the person deprived of his liberty.

The guarantee of a speedy trial, it is explained, serves a three-fold purpose. Firstly, it protects the accused against oppressive pre-trial imprisonment; Secondly, it relieves the accused of the anxiety and public suspicion due to unresolved criminal charges, and lastly, it protects against the risk that evidence will be lost, or memories dimmed by the passage of time, thus, impairing the ability of the accused to defend him or herself.

1. Hussainara khatoon vs State of Bihar: The right to a speedy trial is available at all stages namely, investigation, inquiry, trial, appeal, revision, and retrial. The Supreme Court in its various judgements emphasised that a person could approach the Supreme Court under Article 32 and the High Court under Article 226 to enforce the right to a speedy trial. However, the Court at various times refused to fix a time limit under which a trial has to be concluded.

Right to Fair Trial

Principles:

• Presumption of innocence: this principle is considered the most important principle of the fair trial so as to safeguard the accused from arbitrary and wrongful conviction.
• Independent, impartial and competent judges: the proceedings are to be conducted by a competent, independent and impartial judge)/court. Section 479 of the code explicitly prohibits any judge or magistrate to trial any case within which he is a party or personally interested.

1. Best Bakery Case: Court said that a trial which is primarily aimed at ascertaining truth, has to be fair to all concerned. Not only the accused be fairly dealt with, but also the victims or their family members and relatives. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.

Right to Bail:

• The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: ” Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence”. Further, sections. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.

Procedure Established by Law VS Due Process of Law

After a discussion between the Constitutional Assembly Advisor, Sir B.N. Rau, and Frankfurter J. of the United States of America Supreme Court, who stated that the due process clause is undemocratic and burdensome to the judiciary because it empowers judges to invalidate legislation enacted, the constituent assembly used the term ‘procedure established by law’.

The constituent debate’s preference for “process defined by law” was to give parliamentary supremacy in law making with appropriate constitutional and judicial safeguards for “personal liberty” against judicial supremacy. The supremacy of the legislature was maintained by the constituent assembly.

It signifies that if a law has been passed by the Parliament by following the proper procedure, then it will be a valid law. Implementing this concept indicates that a person might be deprived of his life or personal liberty according to the procedure established by law. 

AK Gopalan vs UOI: AK Gopalan, a political leader, was arrested in Madras under the Preventive Detention act 1950. He claimed that the action taken under the Prevention Detention Act violated his fundamental rights under Article 14, 19 and Article 21 of the Indian Constitution. He also claimed that the phrase procedure established by law in Article 21 refers to due process of law. In his case, the procedure followed was not proper, resulting in a breach of Article 21 of the Indian Constitution.

The Supreme Court ruled that if the government takes away an individual’s freedom in accordance with the procedure established by law, i.e., if the imprisonment was done by following the proper procedure, then it will not be considered a breach of Articles 14, 19, and 21 of the Indian Constitution. The Court took a narrow interpretation of Article 21 in this case.

However, in this case, Justice Fazal Ali gave a dissenting opinion. He said that the meaning of the term procedure established by law also implies the due process of law, which indicates that no one should be left without the opportunity of being heard i.e., Audi alteram partum (no person shall be left unheard) since it is one of the important principles of natural justice.

Maneka Gandhi v. Union of India: The passport of Maneka Gandhi was detained by officials under the provisions of the Passport act. The petitioner went to the Supreme Court under Article 32 and argued that the government’s act of seizing her passport was a clear violation of her personal liberty under Article 21. This decision greatly expanded the ambit of Article 21 and accomplished the purpose of making our country a welfare state, as mentioned in the Preamble. The Court concluded that the procedure established by law ought to be fair, just, and reasonable. The Court noted that the procedure specified by law for depriving a person of his right to life and personal liberty must be proper, reasonable, and fair, rather than discretionary, whimsical, and oppressive.

An individual’s life and freedoms can be taken away only when the following requirements are satisfied:

• The law must be valid.
• There must be a proper procedure.
• That procedure should be just, fair, and not arbitrary.

If the procedure provided by law is frivolous, oppressive, or unreasonable, then it should not be considered a procedure at all. A system must be reasonable or just to represent the idea of natural justice.

Rules Of Principles of Natural Justice No person shall be punished without being heard. No person shall be judged by his own case. An authority shall act Bonafide (good faith) without any bias. If the court finds it to be arbitrary or oppressive it will declare the law invalid and extend protection to the individual not against the arbitrary action of the executive but also against the Legislative and Executive.

Article 21 A

The new Article 21A, which was inserted into the Indian Constitution by means of the 86th Constitutional Amendment, states that “the state shall provide free and compulsory education to all children between the ages of 6 and 14 through a law that it may determine.” In 2009, the Right to Education Act was passed considering Article 21A.

Unni Krishnan vs State of Andhra Pradesh: 

• The Court cited Article 13 of the international covenant on civil and Political Rights when it stated that in order for the State to fulfil its duty to provide higher education, it must use all of its resources to the fullest extent possible in order to gradually realise each individual’s right to education.
• The Court ruled that the scope of the right must be understood in light of the Directive Principles of State Policy, including Article 45, which mandates that the State must make every effort to provide free and mandatory education for all children under the age of 14. 

The Supreme Court ruled in Pramati Educational and Cultural Trust v. Union of India in 2014 that the Right to Education Act of 2009 cannot force minority educational institutions to admit students from other communities in order to uphold the state’s goal of providing ‘free’ and ‘compelled’ education to ‘all.’ 

School development Management vs State of Rajasthan: The wording of the article is not absolute and permits the state to choose the medium of instruction ‘by law’. According to what has been granted under Article 21A of the Constitution, “no child or parent can claim it as a matter of right, that he/his ward should be trained in a particular language or the mother tongue solely.