Article 21 Constitution of India

ARTICLE 21

“The logic of words should yield to logic of realities” 

  1. Louis D. Brandeis in Di Santo v Pennsylvania 273 US 34 (1927)

Clouds are not spheres

Mountains are not cones

Coastlines are not circles

And bark is not smooth nor does lightening travel in a straight line:

‘Benoit Mandle Brot. Iambic pentameter’

 

With logic of realities in mind, how to construe the expression ‘Life’ in the context of Article 21 is a vital question.

Is ‘life’ merely an antonym of ‘death’?

Is ‘life’ a full blossomed and a full blooming reality abiding in an ideal ambience of a vibrant and orderly democracy, where political and economic ecology is without any polluting elements?

Is ‘life’ contemplated in the glowing text of Article 21 a grand spatio-temporal reality distinguishable only from ‘shrunken life’ or ‘less life’?

Article 21: Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Analogous Provisions in other Constitutions: This Article corresponds to (i) The Magna Carta of 1215; (ii) The Fifth Amendment of the Constitution of the United States; (iii) Article 40(4) of the Constitution of Eire 1937; and (iv) Article XXXI of the Constitution of Japan 1946. “Due Process” clause has also been incorporated in Article 103 of the Constitution of Federal Republic of Germany.

International Charters: This Article is closely related to (i) Article 3 and 9 of the Universal Declaration of Human Rights 1948; (ii) Article 9 of the U.N. Covenant on Civil and Political Rights 1966; (iii) Article 2 of the European convention on Human Rights 1950. In People’s Union of Civil Liberties v Union of India (1997 1 SCC 301) it has been held that Article 21 of the Constitution of India is to be interpreted in conformity with Article 17 of the International Covenant on Civil and Political Rights 1966 and Article 12 of the Universal Declaration of Human rights 1948 for the purpose of protecting the right to privacy.

The earlier judicial view treated the expression ‘life’ used in the text of the Article as central focus places life in a ‘constitutional perspective’  which broadly envisages death as an antonym of life. Such semantics of ‘life’ are certainly at variance with philosophical perspective. The deprivation of life as contemplated in this article, in its literal sense signifies extinction of life in toto.

As the constitutional perspective expands in the eternally changing realities and new lessons are taught by time and tide, the expression ‘life’ broadened in its semantic reach and the judicial view pulsating with the affirmative notes of the progressive and assertive meanings of the term life impacts the political scenario.

Whether ‘right to life’ includes ‘right to die’ was answered in the negative by Supreme Court in Gian Kaur v State Of Punjab AIR 1996 SC 946. The reasons set out in paras 19,21,22,23, 31, 41,42 of the said judgement nullify the ratio of and affirmatively  overrule the law laid down in P. Rathinam v UOI 1994 SC 1844. The later view against right to die is also reiterated affirmatively in Lokendera Singh v State  of MP (1996 )2 SCC 648 : State of Maharshtra v Maruti Sripat Dubal AIR 1997 SC 411.

In a recent case relating to passive euthanasia , in Aruna Shanbaug case (2011 (4) SCC 454), Hon’ble Supreme Court while expressing their approval about the ratio of Gian Kaur (supra), assuming the role of Parens Patriae allowed passive euthanasia for bringing to an end, with dignity, the life of a vegetative patient. The said judgment recognizes that the right to die is not included in right to life but right to life itself needs to bear in mind. Thus taking note of medically incurable vegetative state of the patient and very detailed reports of the doctors, permitted withdrawal of the life support in a medically guided manner. As regards, the jurisdiction of the Court, where ‘right to die’, which indeed is not a fundamental right, is under challenge, Court aptly invoked the doctrine of Parens Patriae. The following paras of the said judgment are relevant with regard to the question relating to jurisdiction of the Court qua determination of right to die:

“126. The doctrine of parens patriae (father of the country) had originated the British law as early as in the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

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  1. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as Parens Patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.”

Justice Field in Munu v Illinosis (1877)94 US 113 held: “life means something more than mere animal existence and the inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.”

In the spectrum of constitutional law in India, ‘life’ is held to signify not only animal existence but every such fact or circumstance that give meaning to life, including, traditions, culture, heritage in its full measure, which falls even in the expanded concept of Art ( Ramsharan Autyanuprasi v UOI, AIR 1989 SC 549).

‘Life includes livelihood’ has been an oft–debated question in the constitutional law. Life was held to include livelihood in Olga tellis v Bombay Municipal corporation (1985) 3bSCC 545.  The said view was found fraught with some practical difficulties and judicial dicta in a catena of cases faltered in upholding the proposition with a conviction. Subsequently  the view expressed in Begula Bapi Raju v  State of AP  (1984)1 SCC 66, holding that livelihood does not strictu sensu fall in the expression ‘life’ as employed in Article 21, prevailed for quite some time. However, some limitations of right to livelihood were subsequently explained as qualifying factors to the said right to prevent overstretched and impractical form of the same (Indian Drugs and pharmaceuticals Ltd. v Workmen, (2007) 1 SCC 408). At present post, Centre For Environment and Food security v UOI (2011) 5 SCC 676, the right to livelihood in the context of MAGNREGA scheme again came to be treated as integral part of Article 21.

The other vital term ‘liberty’ in the text of Article 21 is held to be more than mere freedom from physical restraint or the bounds of a person( Confederation of ex servicemen Asss v UOI, (2006) 8 SCC 399 )

The phrase personal liberty is very wide and includes all possible rights which constitute personal liberty, including those which are mentioned in Article 19. It was further held that a fruitful and meaningful life presupposes life full of dignity, honour, health and welfare (Sidharaman Satlingappa Mhetre v St of Mah. (2011)1 SCC 694).

In A k Gopalan v state of Madras, Air 1950 SC 27, it was held that deprivation is necessarily to be understood as a fact distinguishable from liberty from restrictions. It was further held that Article 21 has no application in case of all forms of restrictions. The view of the Courts was based on the conclusion to the effect that the Article comes into play only in case of total loss of personal liberty which alone signifies deprivation of liberty. The textual over-focusing in A K Gopalan (supra), apparently arose due to the then accepted opinion of the Bench that Fundamental rights enshrined in distinct Articles of Court of India are mutually exclusive and distinct. This view of mutual exclusivity of fundamental rights was overruled almost after two decades in R C Cooper v UOI AIR 1970 SC 564, where it was observed that the fundamental rights, in the constitutional scheme, stem from a common philosophical root and are cohesive and  organically inter-related. The said view of inter-relation of fundamental rights is emphatically reiterated in Add Secretary Govt of India Valka Subhash Gadla,  1992 Supp(1)SCC 496 ). Thus the journey on the path of justice also led to substitution of the ‘negative duty’ of the State under Article 21 of not interfering in life and liberty of individual without sanction of law to a positive obligation of the State to facilitate a better enjoyment of life and dignity (Vincent Panikurlangra v UOI (1987 SC 990).

A plethora of rights as articulated and recognized by the Courts from time to time continued to flow in the treasured catalogue of human rights, while simultaneously expanding the semantic nucleus of Article 21.

Thus ‘Right to fair and impartial investigation’, certain rights of an accused, certain rights of a victim are all came to be included in the warp and weft of Article 21 (State of WB v Committee For Protection of Democratic Rights, (2010) 3 SCC 571).

‘Procedure established by law’ as a constitutional concept which need to be understood in array of analogous  concepts such as the concept of ‘due process of law’, ‘due procedure’ , ‘due course of law’, ‘course of common law’ and ‘law of the land’ etc. the settled maxims of law permit and sanction under such safeguards for protection of rights as those maxims prescribe for the class of cases to which the  one in question belongs .The term ‘due process of law’ has not been defined as the said concept has been ever growing in its reach and scope. The  ‘Procedure established by law’ has a deep meaning for all lovers of liberty and judicial sentinels( M H Hoskot v State of Maharashtra Air 1978 SC 1548) this expression means procedure enacted by law made by the State that is to say, union Parliament or State legislatures (Collector Of Malaber v Srimmal Ebrahim Hajee AIR 1957 SC 688). The concept of ‘Procedure established by law’ is defined in step-by-step method by Justice Fazl Ali in ( A k Gopalan v state of Madras ,Air 1950 SC 27)  as : (1) Notice (2) opportunity to be heard (3) An impartial tribunal (4) Orderly course of procedure. However, in the same case, J. Patanjali Shastri , held that the phrase procedure established by law also includes settled usages. Thus the normal modes of proceedings as well as the ordinary and well-established criminal procedure is held by J. Patanjali Shastri to include (1) An objective and ascertainable standard of conduct to which it is possible to confirm (2) Notice to party of accusation against him (3) reasonable opportunity to him to establish his innocence (4) an impartial tribunal capable of giving an unbiased judgement.

There is no conceptual distinction between ‘Procedure established by law’ in Article 21 and ‘save with authority of law’ as employed in Article 31(1) and ‘except by authority of law’ as used in Article 265 of constitution of India ( ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207).

In Maneka Gandhi case, court observed that requirement of due compliance of principles of natural justice is implicit in Article 21.

When procedure is held to be unfair even though no principle of natural justice is involved, it would lead to a conclusion that such procedure lacks in reasonableness. (Maneka Gandhi v UOI AIR 1978 SC 597, para 56).

The constitutionality of law can be assailed , notwithstanding Article 21, inter alia, on the following grounds ;

  1. competence of legislature(Gopalan A K v state of Madras Air 1950 SC 27 )
  2. vice of excessive delegation(Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )
  3. colourable exercise of legislative power(Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 )
  4. ultra vires (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381   )
  5. order is mala fide (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381   )
  6. violative of Article 21 (Makhan Singh Tarsikka V State of Punjab AIR 1964 SC 381 ), Article 14 (A R Antulay v R S nayak, (1988) 2 SCC 602 ), Article 19 ( Malkani R M v State of Maharashtra , AIR 1973 SC 157 ) or Article 22 ( Gopalan A K v state of Madras Air 1950 SC 27 )
  7. Vague (Abbas K.A. V UOI  AIR 1971 SC 481 )
  8. Denial of right to legal assistance to prisoner ( Nand Lal Bajaj V State of Punjab, (1981) 3 SCC 671  )
  9. Unfair or unreasonable (Maneka Gandhi v UOI AIR 1978 SC 597, para 56).
  10. Violates natural justice (A R Antulay v R S nayak, (1988) 2 SCC 602, 4:3 ratio)

 

As the constitutional law through dynamic interpretation of Courts expanded, the horizons of Right to life as contemplated in Article 21 also reached higher and higher destinations in the judicial journey. Thus the following rights also came to be recognized as integral part of Article 21 ;

  1. Right of a person not to be subjected to bonded labour ( Bandhua mukti morcha vUOI AIR 1984 SC 802  )
  2. Right of a person not to be subjected to unfair conditions of labour(Peoples Union v UOI Air 1982 SC 1473 )
  3. Right of a person to be rehabilitated after release (Neerja Choudhary v State of MP AIR 1984 Sc 1099)
  4. Right of a person to a reasonable accommodation (Chhetria Pardushan Mukti Sangharsh Samiti v State of Up AIR 1990 SC 2060)
  5. Right of a person to hawk in the public spaces for livelihood. (Maharashtra Ekta Hawkers Union v MC Greater Mumbai (2004) 1 SCC 625)
  6. Right of a person to appropriate insurance policy within paying capacity and means of the insured( LIC of India v Consumer Education Research AIR 1995 SC 1811)
  7. Right of a person of locomotion, except insofar it is included in Article 19 (1) (d) (Satwant Singh Sawhney v Asstt passport Officer, AIR 1967 Sc 1836)
  8. Right of a person to travel abroad (State of Maharshtra v Parbhakar Pandurang Sanzgiri AIR 1966 SC 424)
  9. Right of a person to return to India from abroad (Satwant Singh Sawhney v Asstt passport Officer , AIR 1967 Sc 1836)
  10. Right of a person to socialize with members of family and friends (Hussainara Khatoon v Home secretary St. of Bihar Air 1979 SC 1360 , Kadra Pahadiya V St. of Bihar AIR 1982 SC 1167)
  11. Right of a person to protect himself from loss of citizenship which would entail deportation (State of UP v Shah Md. Air 1969 SC 1234)
  12. Right of an employee in a disciplinary proceedings to take legal aid where employer is represented by a lawyer (Bd. Of Trustees of port of Bombay v Nadkarni, Dilip Kumar Raghvendra Nath AIR 1983 SC 109)
  13. Right of detenu before an Advisory Board to take legal aid where Government is represented by a lawyer (A K Roy v UOI AIR 1982 SC 710  )

A vital question raised in Swapnil Tripathi v. Supreme Court of India ((2018) SCC 10 639 ) is whether live streaming of Court proceedings in a digital format would be an affirmation of the constitutional rights bestowed upon citizenry. Does the right of justice at the doorstep of the litigant through such mechanism of live streaming the court proceedings constitute part of Article 21?

Hon’ble Supreme Court while observing that advent of technology has made live streaming of court proceedings feasible, chose to seize the moment with the admonition that it is time for lawyers and judges to walk out of cocoon of physical court rooms and to attitudinally embrace the new paradigm of court room functioning that affirmatively allows live streaming of the court proceedings. The model guidelines prepared and submitted in the Court by the State were also approved. Thus, the extended limb of Article 21 approves, inter alia, the right of a litigant to watch live streaming of court proceedings qua his case as an inviolable right under Article 21 of the constitution of India.

K.S. Puttaswamy v. Union of India 2019 1 SCC 1, famously known as the Adhaar card case, examined the taxonomy of right to privacy. Holding that right of privacy has to be balanced with right of the State to gather reasonable information about the individuals. The distinction is drawn between identity and identification. Right to identity is treated as a fundamental right whereas right to identification cannot be treated as antithetic to right to identity.

The concept of privacy is subjected to judicial deconstruction by Justice D.Y. Chandrachud in K.S. Puttaswamy v. Union of India (supra). His exposition of privacy in the following words is relevant to unravel and understand domain of the constitutional right of privacy:

“297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

Every breath of life in the time-space matrix of the planet carries within it values aspirations and needs which deserve fair evaluation and protection by unimpeachable judicial standards. The ‘right to life’ and ‘right to liberty’ are ever-expanding and ever-growing rights, which are always to be sculpted and shaped by the judiciary to find proper place on the sanctum sanctorum of the  constitutional text.

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