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Article 21
Article 21
BHASIN
L.L.B. (3YR
MORN.)
ROLL NO. 201
TAXATION
LAW
TOPICINCOME TAX
AUTHORITIE
S,
AGRICULTUR
AL INCOME,
CARRY
FORWARD
OF LOSSES
# Scope Of Article 21
The scope of Article 21 was a bit narrow till 50s as it was held
by the Apex Court in
A.K.Gopalan
v.
State of Madras(1950)
that the contents and subject matter of Article 21 and 19 (1) (d)
are not identical and they proceed on total principles. In this
case the word deprivation was construed in a narrow sense and
it was held that the deprivation does not restrict upon the right
to move freely which came under Article 19 (1) (d). at that time
Gopalans case was the leading case in respect of Article 21
along with some other Articles of the Constitution, but post
Gopalan case the scenario in respect of scope of Article 21 has
been expanded or modified gradually through different
decisions of the Apex Court and it was held that interference
with the freedom of a person at home or restriction imposed on
a person while in jail would require authority of law. Whether
the reasonableness of a penal law can be examined with
reference to Article 19, was the point in issue after Gopalans
case in the case of
Maneka Gandhi
v.
Union of India(1978)
the Apex Court opened up a new dimension and laid down that
the procedure cannot be arbitrary, unfair or unreasonable one.
Article 21 imposed a restriction upon the state where it
prescribed a procedure for depriving a person of his life or
personal liberty.
This view has been further relied upon in a case of
Francis Coralie Mullin
v.
The Administrator, Union Territory of
Delhi and others (1981)
Article 21 requires that no one shall be deprived of his life or
personal liberty except by procedure established by law and
this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention
has therefore now to pass the test not only for Article 22, but
also of Article 21 and if the constitutional validity of any such
law is challenged, the court would have to decide whether the
procedure laid down by such law for depriving a person of his
personal liberty is reasonable, fair and just. In another case of
Olga Tellis and others
v.
Bombay Municipal Corporation and
others(1985)
it was further observed : Just as a mala fide act has no
existence in the eye of law, even so, unreasonableness
vitiates law and procedure alike. It is therefore essential that
the procedure prescribed by law for depriving a person of his
fundamental right must conform the norms of justice and fair
play. Procedure, which is just or unfair in the circumstances of a
case, attracts the vice of unreasonableness, thereby vitiating
UOI (1989)
12. Right, not to be driven out of a state- It was
recognized under case NHRC
v.
State of Arunachal Pradesh(1996)
# The rights so mentioned above are regal in sense and spirit.
Apart from these, this article empowered the apex court to
nomenclature few other rights by way of judicial interpretation.
These are as follows:
1) Right to speedy trial - It was recognized under case
Sheela Barse
v.
UOI(1986)
2) Right against prison torture and custodial death &
Right against solitary confinement - It was recognized
under case
Sunil Batra
v.
Delhi Administration(1978)
3) Right to compensation for illegal unlawful
detention- It was recognized under case
Rudal Shah
v.
State of Bihar(1983)
4) Right against handcuffing - It was recognized under
case
Prem Shankar Shukla
v.
Delhi Administration(1980)
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