AMBIT OF ARTICLE 21: WITH EMPHASIS ON ROLE OF JUDICIARY

ABSTRACT

India is the largest democracy – “a government of the people, by the people, for the people.” What makes the government so people-oriented is the set of rights conferred upon them which can be exercised by them in order to keep a check on the government’s functioning, to make it responsible and hold it accountable. In our country, such a set of rights is granted by the Constitution of India. It is the grundnorm and the law of the land. All other laws made by the authorities must be in accordance to it and must not be ultra vires. If found to be ultra vires, such laws can be struck down by the judiciary and held to be unconstitutional. Part III of the Indian Constitution provides six fundamental rights which are very significant for protection of interests of people and the development of a nation. Though all of them are equally essential and none can be positioned as more important than the rest, one right which encompasses several other rights within itself is the Right to Life and Personal Liberty under Article 21 included in our second Fundamental Right – Right to Freedom.?

ARTICLE 21

Article 21 of the Constitution of India reads as –?

“No person shall be deprived of his life and personal liberty except according to procedure established by law.”

This article protects the most basic right of a human being ie. right to life. Without this right, all other rights would be meaningless. It must be appreciated here that in Kharak Singh v. State of U.P., the Supreme Court observed and rather acknowledged that Article 21 doesn’t include mere animal existence of a human but also a life with human dignity. This indicates that our constitution aims at protecting not just our survival rights but also a life with dignity, respect and basic rights. Another very important dimension of this Article is personal liberty. This includes liberties of various kinds which will be discussed below. A person can be deprived of his life and personal liberty only and only in accordance to the procedure established by law. In A.K. Gopalan v. State of Madras, the Supreme Court strictly stated that “procedure established by law” means any law made by the State. Such a law may or may not be due, fair or just. It took a narrow view and expressly opined against the concept of due process in Indian system. But later, in Maneka Gandhi v. Union of India, the Hon’ble Supreme Court took a much progressive and wider stand on Article 21 and held that the procedure which is established by any law made by the authorities must also be “fair, just and reasonable” and “not oppressive and arbitrary.” This kind of limits the power of legislature to make laws as per its own convenience and it also adds more value to Article 21 by not leaving it at the mercy of arbitrary laws passed by the government.?

This fundamental right is available not only to citizens of India but also to foreigners. This shows the significance of this right. It is also symbolic of the progressive thinking and farsightedness of the constitution makers.?

AMBIT OF ARTICLE 21

The scope and meaning of this right is not restricted to that one sentence mentioned in the Constitution. This one-line provision consists in itself a plethora of other rights which make it more meaningful. Such rights are given by the judiciary by the virtue of its power to interpret laws. Following are some of the many dimensions of Article 21:

1. Right to privacy, which is now an inseparable dimension of Article 21, was initially not a part of it. Our constitution has no mention of such a right. Even the judiciary was not of the opinion that right to privacy is guaranteed by the constitution. In the case of Kharak Singh v. State of Uttar Pradesh, the court expressly held that right to privacy does not form a part of fundamental rights given by the Constitution. This was overruled in the? landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India, and right to privacy was marked as an essential ingredient of the freedoms conferred by the Constitution. Now, any invasion to this right can put the violator in immediate legal trouble.
2. Right to clean environment is one of the rights under Article 21. In the era of rapid industrial and technological development, it becomes important that people of the country have access to clean air, water and environment. And for that purpose, this is recognized as a part of fundamental right. A notable name which cannot be missed in this context is that of activist M.C. Mehta. Cases filed by him have led to various landmark judgments in which courts have given supreme importance to preservation and protection of environment. Some of the famous cases are Taj Mahal Case, Oleum Gas Leak Case etc. This right was given even more practicality in 1996 when in the Indian Council of Enviro-legal Action v. Union of India, the ‘polluter pays principle’ was introduced.?
3. Right to die is expressly prohibited by Article 21 as it recognizes deprivation of right to life only by procedure established by law. In India, a person cannot waive off his or her fundamental rights. However, right to die with dignity is a fundamental right under this Article. In Common Cause v. Union of India, the Supreme Court held that right to live with dignity in Article 21 includes the right to die with dignity. Hence, the court legalized the use of passive euthanasia on the patients suffering from chronic diseases and permanently ill. This step was taken so that such patients are not subjected to cruel treatments.?
4. Right to livelihood is almost an implied right of Article 21 because without it, right to life wouldn’t have any meaning. Right to work flows consequently from the right to livelihood. In Olga Tellis v. Bombay Municipal Corporation, the Supreme Court observed that Article 21 grants right to livelihood as “no person can live without the means of livelihood.”
5. Right to fair and speedy trial is a part of Article 21. Along with this, right to free legal aid is also fundamental because it ensures a fair trial. In Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court held that detention of under trial prisoners for a term longer than the term for their imprisonment if convicted was illegal as it violates their right to speedy trial which further violates Article 21.?
6. Right to travel abroad has also been held to be a part of Article 21 and therefore, as held in Maneka Gandhi v. Union of India, it can be deprived only through a procedure established by law which is fair, just and reasonable.?

These rights are only a fraction of what is contained in that one sentence of the Article. Judiciary has been playing a very pro-active role by interpreting it in as many ways as possible and constructing a progressive society and a legal system for the people.?

GOLDEN TRIANGLE OF ARTICLE 14, 19, 21

Justice P.N. Bhagwati in the Maneka Gandhi Case evolved the concept of golden triangle consisting of –

1. Article 14 – Right to Equality – It provides for equality before law and equal protection of law
2. Article 19 – Right to Freedom – It provides six freedoms which are essential for basic development of people.
3. Article 21 – Right to life and personal liberty – No person shall be deprived of his life and personal liberty except through the procedure established by law.

These three have been included in the triangles because they are the most essential rights of all and provide great protection to the interests of people. They complement each other and make a combination which makes it very difficult for anyone to violate one’s rights.?

REMEDY IN CASE OF VIOLATION OF ARTICLE 21

Having such a significant and dynamic fundamental right also calls for having a strong remedy in case of its breach. Without such remedy, the right is of no use. For our fundamental rights, such a remedy is provided by one of the fundamental rights only – Article 32. This is called as right to constitutional remedies. It confers writ jurisdiction over the Supreme Court. In case of violation of fundamental right under Article 21, or any other fundamental right for that matter, aggrieved can directly move the Supreme Court and seek justice. The Supreme Court can issue five writs under Article 32 – Habeas Corpus, Mandamus, Quo Warranto, Prohibition, Certiorari.

CONCLUSION

In a world so political and modern, fundamental rights have become an inseparable part of our lives. Our constitution makers were thoughtful enough to inculcate the most basic and significant rights which even today we enjoy to the fullest and will continue to do so for the centuries to come. The legislature, from time to time, has been amending those rights and making them suitable for the changing times. But one right which has literally evolved and developed due to the role of judiciary is Right to Life and Personal Liberty. As it exists today is by virtue of the judiciary.?