ARTICLE 21

The framers of Indian constitution were deeply influenced by the international document i.e.
Universal Declaration of Human Right (UDHR) 1948 which had a great impact on the drafting
of Indian constitution. Article 9 of UDHR provides for 'protection of life and personal liberty' of
every person. As India was signatory to the declaration, the constituent Assembly adopted the
similar provision as a fundamental right therein. Article 21 is the celebrity provision of the
Indian Constitution and occupies a unique place as a fundamental right.

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
In the case of Munn v. Illinois,94 U.S. 113 (1876), the Court referred to the observation of
Justice Field, wherein he stated that by the term ‘life’ as here used something more is meant than
a mere animal existence. Thus, it embraces within itself not only the physical existence but also
the quality of life.

Concept of Right to Life And Personal Liberty & Its Changing Dimensions:

Procedure Established by law: (This Doctrine is originated under British Constitution and
India follows it.)
This principle has a main flaw. It does not asses if the laws made by Parliament are fair, just, and
not arbitrary. Procedure established by law states a law duly enacted is valid even if it's different
to principles of justice and equity. Procedures that are followed strictly are established by law
that may increase the risk of compromise to life and personal liberty of individuals due to unjust
laws made by the law-making authorities. Thus, Procedure established by law protects the
individual against the arbitrary action of only the executive.

Due Process of Law: (This Doctrine is originated under the US Constitution).

This doctrine not only checks if there is a law to deprive the life of personal liberty of a person,
but also see whether the law made is fair, just and not arbitrary. If the Supreme Court comes to
know that any law as unfair, it will declare it as null and void. This doctrine leads to more fair
treatment of individual rights. It gives the judiciary to judge the fundamental fairness, justice,
and liberty of any legislation. Thus, Due process protects the individual against the arbitrary
action of both executive and legislature. In India, there is no mention of the word 'Due
Process.This concept is based on three main things: Justice, Equity and Good Conscience. But in
the case of Maneka Gandhi vs. Union of India, the Supreme Court has overruled the
A.K.Gopalan's case and held that procedure established by law meant procedure that eventually
was reasonable, fair and just. The decision rendered avoid the plain and simple meaning of
procedure established by law' and introduced for the first time the grand canon of 'due process of
law'

Article 21 lays down that no person shall be deprived of his life and personal liberty except
according to the procedure established by law. It was this procedure established by law that was
first questioned and interpreted by the Supreme Court of India in the case of A.K. Gopalan v.
State of Madras,1950, the validity of the Preventive Detection Act. 1950 was challenged. The
main question was whether Art. 21 envisaged any procedure laid down by a law enacted by the
legislature, or the procedure should be fair and reasonable.
Three arguments were presented from the Appellant side and the arguments were:
(1) The word law in Art. 21 does not mean merely enacted law but incorporates principle of
natural justice so that a law to deprive a person of his life or personal liberty cannot be valid
unless it incorporates these principles laid down by it.
(2) The reasonableness of the law of preventive detention ought to be judged under Art. 19.
(3) The expression procedure established by law introduces into India the American concept of
procedural due process which enables the Courts to see whether the law fulfils the requisite
elements of a reasonable procedure.

A.K. Gopalan v. State of Madras held the field for almost three decades, i.e., 1950 to 1977.
This case settled two major in points in relation to Art. 21. One, Arts. 19, 21 and 22 are mutually
exclusive and independent of each other. Two, a law affecting life or personal liberty of a person
could not be declared unconstitutional merely because it lacked natural justice or due process.
The legislature was free to lay down any procedure for this purpose. As interpreted in A.K.
Gopalan, Art. 21 provided no protection or immunity against competent legislative action.. It
gave final say to the legislature to determine what was going to be procedure to curtail the
personal liberty of a person in a given situation and what procedural safeguards he would enjoy.
The Supreme Court de linked Art. 19 from Art. 21 and 22. This view led to bizarre decision at
that time. Though, in course of time this rigid view came to be softened and the beginning of the
new trend was to be found in R.C. Cooper v. Union of India,1970 also popularly known as
Bank Nationalization case, the Supreme Court applied Art.19(1) (f) to a law enacted under
Art.31(2), to view the validity of the law. Before this case these two articles where considered
mutually exclusive of each other. This case had such an impact on the view of the Supreme
Court regarding the mutually exclusiveness of fundamental rights.

2.3 Aspect of Personal Liberty:

Maneka Gandhi v. UOI,1976 is a landmark case of the post- emergency period. This case
shows how liberal tendencies have influenced the Supreme Court in the matter of interpreting
Fundamental Rights, Particularly Art. 21, A great Transformation has came about in the judicial
attitude towards the protection of personal liberty after the traumatic experiences of the
emergency during 1975-77 when personal liberty had reached its lowest. The period
characterized as the darkest period in the Indian Constitutional history As become clear from the
Supreme Court pronouncement in A.D.M Jabalpur v. Shiva Kant Shukla,1976. Popularly
known as Habeas Corpus Case and has been severely criticized by scholars in India. This case
showed that 21 as interpreted in Gopalan could not play any role in proving any protection
against any harsh law seeking to deprive a person of his life or personal liberty, after emergency
it was realized that power to order preventive detention was misused by the official machinery
during the emergency and something should be done so that such a situation might not be
repeated in future. Accordingly Art.359 of the constitution was amended by 44th Amendment to
nullify some amendment made in the 42nd ,(Indira Constitution) thus by 44th amendmentArt.20
& 21 never be be suspended even during emergency and other fundamental rights won't suspend
automatically. It needs separate order by president. Infact this case has acted as a accelerating
agent for the transformation of the judicial view on Art.21.

The court has reinterpreted Art.21 and practically overruled Gopalan case which can be regarded
highly creative judicial pronouncement on the part of Supreme Court. Since Maneka Gandhi case
the Supreme Court has given Art. 21, broader and broader interpretation so as to imply many
more fundamental rights. In course of time, Art.21 has proved to be very fruitful source of rights
of the people.

In Maneka Gandhi case, order under S. 10(3)(c) of the Passport Act which authorizes the
passport authority to impound passport if it deems it necessary to do so in the interest of the
sovereignty and integrityof India, security of India, friendly relations of India with any foreign
country, or in the interest of general public was challenged. Maneka Gandhi's passport was
impounded by the Central Government under Passport Act in the interest of general public. a
writ petition challenging the order on the ground of violation of her fundamental rights under
Art.21.One of the major grounds of challenge was that the order impounding the passport was
null and void as it had been made without affording her an opportunity of being heard in her
defence. The leading opinion in Maneka Gandhi case was pronounced by Justice Bhagwati. The
Court reiterated the proposition that Art. 14, 19, and 21 are not mutually exclusive. This means
that a law prescribing a procedure for depriving a person of 'personal liberty' has to meet the
requirement of Art. 19. Also, the procedure established by law in Art. 21 must answer the
requirement of Art. 14 of the Constitution of India.

The expression personal liberty in Art. 21 were given an expansive interpretation. The court
emphasized that the expression personal liberty is of widest amplitude covering a variety of
rights which go to constitute the personal liberty of man. The expression ought not to be read in a
narrow and restricted sense so as to exclude those attributes of personal liberty which are
specifically dealt with in Art. 19. The attempt of the Court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their meaning and content by the process of
judicial construction, and hence right to travel abroad falls under Art. 21. The most significant
aspect of the case is the reinterpretation of the expression procedure established by law used in
Art. 21. Art. 21 would no longer mean that law could prescribe some semblance of procedure,
however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that a
procedure must satisfy certain requisites in the sense of being just, fair and reasonable. The
process cannot be arbitrary, unfair or unreasonable. Thus, the procedure in Art.21 must be right
and just and fair and not arbitrary, fanciful and oppressive. The Court reached it decision by
holding that Arts. 21, 19 and 14 are mutually inclusive. Maneka Gandhi case completely
overrides the Gopalan's view which had held the field for nearly three decades. Since Maneka
Gandhi case, the Supreme Court has again underlined the theme that Arts. 14, 19 and 21are not
mutually exclusive, but they sustain, strengthen and nourish each other. It has brought the
Fundamental right of life and personal liberty into prominence which is now regarded as the
heart Fundamental Rights. In quite a few cases in the post-Maneka era, the Supreme Court has
given content to the concept of procedural fairness in relation to personal liberty. By establishing
a nexus between Arts. 14, 19 and 21, it is now clearly established that the procedure
contemplated by the Art. 21 must answer the test of reasonableness. Thus, Art. 21 emerged as the
Indian version of the American concept of due process of law and has come to the source of
many substantive rights and procedural safeguards to the people.
This Constitution guarantees to every citizen of India full freedom and liberty from any sort of
harassment, repression or exploitation from any government or any authority of the government
and hence this constitution assures to every citizen of India free, fearless and happy life with
dignity of every person
Right to Live with Human Dignity
1. The Supreme Court in the case of Maneka Gandhi vs. Union of India held that right to
life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it
also includes within its ambit, the right to live with human dignity.
2. In the case of Francis Coralie vs. Union Territory of Delhi it was held that right to live
includes the right to live with human dignity with bare necessities of life such
as:Adequate nutrition,Clothing, and Shelter over the head and facilities
for:Reading,Writing, and Expressing oneself in diverse form.

3. Bandhua Mukti Morcha v. Union of India,1997. Characterizing Art. 21 as the heart of

fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
“It is the fundamental right of everyone in this country… to live with human dignity free
from exploitation. This right to live with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of
Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the
health and strength of workers, men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy manner and in
conditions of freedom and dignity, educational facilities, just and humane conditions of work
and maternity relief. These are the minimum requirements which must exist in order to
 enable a person to live with human dignity and no State neither the Central Government nor
any State Government-has the right to take any action which will deprive a person of the
enjoyment of these basic essentials.”
4. Peoples Union for Democratic Rights v. Union of India,1982 held that non-payment of
minimum wages to the workers employed in various Asiad Projects in Delhi was a denial
to them of their right to live with basic human dignity and violative of Article 21 of the
Constitution.

In the case of Kharak Singh v. State of Uttar Pradesh, 1963 the Supreme Court quoted and
held that:

By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
armour leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.

The expanded scope of Article 21 has been explained by the Apex Court in the case of
Unni Krishnan v. State of A.P.1993 and the Apex Court itself provided the list of some
of the rights covered under Article 21 on the basis of earlier pronouncements and some of
them are listed below:

(1) The right to go abroad.

(2) The right to privacy.

(3) The right against solitary confinement.

(4) The right against hand cuffing.

(5) The right against delayed execution.

(6) The right to shelter.

(7) The right against custodial death.

(8) The right against public hanging.

(9) Doctors assistance

It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and it
has extended the Scope of Article 21 by observing that the life includes the education as well as,
as the right to education flows from the right to life.
As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of
children in jail being entitled to special protection, health hazards due to pollution and harmful
drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right
to know, the right to open trial, inhuman conditions in aftercare home have found place under it.

Right against sexual harassment at workplace

1. In the case of Vishakha vs. the State of Rajasthan,1997, the court declared that sexual
harassment of a working woman workplace amounts to a violation of rights under
Articles 14, 15 and 21 of the Indian Constitution. The guidelines have been laid down in
order to protect the rights of a woman at workplace

2. Following which the Sexual Harassment of woman at Workplace (prevention,

prohibition, and Redressal) Act, 2013 was passed

Right to know or right to be informed

It has been recognized by the Courts, in the case of Reliance Petrochemicals Ltd. vs.
Proprietors of Indian Express Newspapers, 1989 that right to know falls under the scope
of Article 21 of the Indian Constitution as an essential ingredient of participatory
democracy.

It was in the case of Essar Oil Ltd. v. Halar Utkarsh Samiti,2004 case that the Supreme
Court considered Right to know is an offshoot of article 21 and not just article 19(1)(a).

Right of prisoners

1. The protection under Article 21 is also available to those who have been convicted of any
offense. Even though he is deprived of his other rights, but he is entitled to the rights
guaranteed under Article 21.

2. In the case of Sunil Batra vs. Delhi Administration,1979 the petitioner sentenced to
death on charges of murder and robbery was held in a solitary confinement since the date
of his conviction by the session court, pending his appeal before the High Court.

3. The petitioner filed a writ petition before the Supreme Court, contending that solitary
confinement itself is a substantive punishment under the Indian Penal Code, 1860, and
only the Courts had the authority to impose such punishments and not the jail authorities,
thus, it violates Article 21.

4. The Supreme Court accepted his contentions and held that the conviction of a person for
a crime does not reduce him to non-person vulnerable to a major punishment imposed by
jail authorities without observance of due procedural safeguards, thus violative of Article
21.
 Right against illegal detention

In the case of D.K. Basu vs. State of West Bengal, 1997 the Supreme Court laid down the
guidelines to be followed by the Central and the State investigating authorities in all cases of
arrest and detention.

 The petitioner wrote a letter addressed to the Chief Justice drawing his attention to certain
news items published in the Telegraph and the Indian express, regarding deaths in police
lockups and custody and this letter was treated as a writ petition by the Court.

 The court not only issued the guidelines but, also went to the extent that any failure by
the officials to comply to such guidelines would not only subject them to departmental
actions but would also amount to contempt of Court.

Right to Legal Aid; Right to speedy trial

It has been held, in the case of Hussainara Khatoon vs. State of Bihar, 1979 that right to free
legal aid at the cost of the State to an accused who cannot afford legal services for reasons of
poverty, indigence or incommunicado situation is a part of fair, just and reasonable procedure
under Article 21 of the Indian Constitution.It was also held that he right to speedy trial is an
inalienable right under Article 21 of the Indian Constitution.

Right to compensation

For the first time in Nilabati Behera v State of Orissa (1960), The Supreme Court directed the
respondent-State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of
Rs.10,000 as to be paid to the Supreme Court Legal Aid Committee. the Supreme Court held
right to compensation as a fundamental right under Article 21 of the Constitution.

In the case of Rudal Shah vs. the State of Bihar (1983), the petitioner was kept in jail for 14
years even after his acquittal. He was released only after a writ of habeas corpus was filed on his
behalf. The Supreme Court held that under Article 21, the petitioner is entitled to an award of
INR 35,000 as compensation against the State of Bihar as he was kept in the jail for 14 long
years after his acquittal.

Disclosure of dreadful diseases

1. No law has yet been enacted in India defining the rights and duties of HIV infected
persons. Therefore, to fill in the legal gap, the Court has laid various decisions.

2. In the case of Mr. X. vs. Hospital Z, 1998, the issue in consideration was whether the
disclosure made by a doctor to the fiancé of a person suffering from HIV positive,
 amounts to infringement under Article 21? The Court herein opined that the lady
proposing to marry such a person is entitled to all human rights, which are available to
any human being and the right to be told that person is suffering from a deadly disease
which is sexually communicable, is her right to life guaranteed under Article 21.

3. The court also held that when two fundamental rights, namely the right to privacy and
that if life clashes the right which would advance the public morality or public interest
would alone be enforced through the process of Court.

Right to die with dignity

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to
live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309,
I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has
been difference of opinion on the justification of this provision to continue on the statute
book.This question came for consideration for first time before the High Court of Bombay
in State of Maharashtra v. Maruti Sripati Dubal, 1986. In this case the Bombay High Court
held that the right to life guaranteed under Article 21 includes right to die, and the hon’ble High
Court struck down Section 309 of the IPC that provides punishment for attempt to commit
suicide by a person as unconstitutional.

In P. Rathinam v. Union of India,1994, a two judge Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court
supporting the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that
the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The Rathinam ruling came to be reviewed by a full Bench
of the Court in Gian Kaur v. State of Punjab, 1996. The question before the court was that if the
principal offence of attempting to commit suicide is void as being unconstitutional vis-à-vis
Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860. It was argued
that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having
been declared unconstitutional, any person abetting the commission of suicide by another is
merely assisting in the enforcement of his fundamental right under Art. 21. The court observed
further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and inconsistent with the concept of
right to life”

The Court held that the right to life under Article 21 of the Constitution does not include the right
to die. But later in Aruna Ramchandra Shanbaug v. Union of India, 2012, the Supreme Court
held that passive euthanasia can be allowed under exceptional circumstances under the strict
monitoring of the Court. The difference between active and passive euthanasia is that in active
euthanasia something is done to end the patient’s life while in passive euthanasia something is
not done that would have preserved the patient’s life.
Supreme Court of India held in the case of Common Cause vs. Union of India (2018) that right
to die with dignity is a fundamental right. The right to life and liberty as envisaged under Article
21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity.
Living will is a written document that allows a patient to give explicit instructions in advance
about the medical treatment to be administered when he or she is terminally ill or no longer able
to express informed consent.

(Mental Health Care Act 2017: Living will/Advance Directive/Nominated representative)