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PERSONAL LIBERTY[1]

Table of Contents

(Art. 20, 21, 22)

PROTECTION OF LIFE AND PERSONAL LIBERTY. (Art. 21)

QUESTION BANK.

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

Q.2. Explain fully the constitutional guarantee as to protection of life and liberty of person.

Q.3. Explain the meaning and scope of the right to life and personal liberty ensured under Art. 21 of the Constitution.

Q.4. What safeguards are available to persons in India against deprivation of their personal liberty?.

Q.5. Explain the scope of ‘Personal Liberty’ under Art. 21 as laid down by

Supreme Court in recent cases.

SYNOPSIS

I. INTRODUCTION:-

Art. 21 guarantees ‘the right to life and personal liberty’ to every person irrespective of his citizenship. It is the heart of fundamental rights, which has received the widest possible and most liberal interpretation. So many rights have found shelter and growth under this Article. Art. 21 states, “No person shall be deprived of his life or personal liberty, except according to the procedure established by law”.

II. MEANING AND SCOPE OF ART.21:-

a) Restricted view as to ‘personal liberty’ under Art. 21[2]:-

In A. K. Gopalan v. State of Madras[3].

Facts—The petitioner, A. K. Gopalan, a Communist leader, was detained under the Preventive Detention Act 1950. The petitioner challenged the validity of the Act on the following grounds: Viz.

that detention has violated his right to freedom of movement under Art. 19 (1) (d), which is the essence of personal liberty guaranteed by Art. 21. Therefore, the law that takes away ‘personal liberty’ must be reasonable under Art. 19 (5).
that the word ‘law’ in Art. 21 does not mean merely enacted law but should also incorporate principles of natural justice.

iii. that the word ‘procedure established by law’ means the procedure established by law to take away a person’s life or personal liberty should be ‘due process,’ i.e. fair, reasonable and just process.

Held- The Court took a very literal and narrow view and rejected the above arguments.[4].

b) Liberal view as to ‘personal liberty’ under Art. 21[5]:-

In Maneka Gandhi v. Union of India[6].

Facts-Mrs. Maneka Gandhi, a journalist, wanted to go abroad, but the Central Government impounded her passport under S. 10 (3) (c) of the Passport Act 1967. The Act authorised the Government to impound passports ‘in the interest of the general public’. The government declined ‘in the interest of the general public’ to furnish the reasons for impounding passports. Petitioner challenged the Constitutional validity of the said Act on the following grounds –

Order violated Art. 19, 21, 14 because the ‘law’ and ‘procedure’ depriving personal liberty must be reasonable. If restrictions are to be imposed, such restrictions must be reasonable under Art. 19 (2) to 19 (6), therefore, there is a link between Art. 19 and 21.
The provision of the Act is violative of Art. 14 because it confers an arbitrary power since it did not provide for a hearing of a passport holder before the passport was impounded.

iii. S. 10 (3) (c) was violative of Art. 21 since it did not prescribe ‘procedure’ within the meaning of Art. 21.

Held- The Supreme Court accepted the above arguments and held-

i. ‘Procedure’-

The procedure contemplated in Art. 21 should not be unfair or unreasonable. Therefore, any procedure that permitted impairment of an individual’s right to go abroad without giving him a reasonable opportunity to be heard could not be condemned as unfair and unjust (i.e. violates the rule of natural justice, i.e. to be heard).

ii. ‘Law’-

Law contemplated under Art. 21 must be valid and must also be just, reasonable and fair (i.e. natural justice)

iii. Inter-relation of Art. 14, 19, 21 and 22[7]:-

Art. 14, 19, 21, and 22 are interlinked, and Art. 21 should satisfy the requirements of Art. 14 and 19.

Thus, Art. 21 requires the following conditions to be fulfilled before a person is deprived of his life and personal liberty, viz-

(i) There must be valid law.

(ii) The law must provide a procedure.

(iii) The procedure must be just, fair, and reasonable.

The law must satisfy the requirements of Art. 14 and 19, i.e. it must be reasonable.

Before the decision of Maneka Gandhi’s case, the right under Art. 21 was protected against the arbitrary action of the Executive but not from Legislative action (i.e. from arbitrary law). However, after Maneka’s case, Art. 21 can be invoked not only against arbitrary action of executives but arbitrary law-making by legislatures[8].

III. NEW DIMENSIONS TO ART. 21[9]:-

After liberal interpretation in Maneka Gandhi`s case, Art. 21 acquired new dimensions, so many rights have found shelter, growth, and nourishment under Art. 21. The Criminal Justice system, by such liberal interpretation, was affected positively. The article has the widest and most liberal interpretation of the Constitution. Following are some of the rights developed under Art. 21 after Maneka Gandhi’s case-

1. Impact on the criminal justice system[10]:-

The protection of Art. 21 extends to all persons accused of offences, under-trial prisoners, prisoners undergoing jail sentences, etc. Thus, all aspects of Criminal justice fall under the umbrella of Art. 14, 19, and 21.

In Hussainara Khatoon v. Home Secretary Bihar[11].

Facts—A petition was filed by the number of under-trial prisoners who had been in the jails of Bihar for years awaiting their trial.

Supreme Court held– that the ‘right to speedy trial’ is a fundamental right implicit under Art. 21.

2. Right to education[12].

(for more details, see in Note at the end of this topic)

3. Right to livelihood[13]:-

In Olga Tellis v. Bombay Municipal Corporation[14].

Supreme Court held– that the right to life under Art. 21 includes the right to livelihood because no person can live without a livelihood.

Therefore, a person has the right to minimum wages for his work, equal pay for equal work, etc.

4. Right of privacy[15]:-

In People’s Union for Civil Liberties v. Union of India.

Supreme Court Held– that Telephone tapping is a serious invasion of an individual’s right to privacy, which is part of the right to life and personal liberty enshrined in Art. 21 of the Constitution.

It also includes the right to live with human dignity and not merely animal existence.

5. Right to get pollution-free water and air[16]:-

Protection of the environment and ecology from pollution is covered by Art. 21. Getting pollution-free water and air is a fundamental right and is included in life and personal liberty.

In Murli S. Deora v. Union of India.

Supreme Court ordered the prohibition of smoking in public places to protect the health of non-smokers.

6. Right to shelter[17]:-

7. Right to health and medical assistance[18].

In Pratibha Shinde v. Principal Secretary, Public Health Department

(Laws (Bom. H.C) 2021- (1)- 79)

Facts:- An elderly COVID-19-affected woman patient was found dead in a hospital toilet, and her body was recovered after five days. The authority was found rash and negligent in treating the patients.

In the writ petition, the Bombay High Court held that failure on the part of the government medical hospital to provide immediate medical treatment to a patient amounts to a violation of Art. 21. The court awarded Rs. 5 lac compensation to heirs. It further observed that the right to health includes a right to live in a clean, hygienic, safe environment in a hospital.

8. Right to die- not a fundamental right[19].

9. Right to free legal aid[20].

10. Right to life cannot be suspended in an emergency by Presidential order[21].

11. Right to get minimum wages[22].

12. Right against solitary confinement[23]

13. Right against handcuffing[24]

14. Right to travel abroad[25]

15. Right against custodial harassment[26]

16. Right against delayed execution[27]

17. Right to live with human dignity[28]

18. Right not driven out of state[29]

19. Right to a fair trial[30]

Note-

Right to Education (Art. 21 A)

The Supreme Court, in various judgments, has held that the right to education is a fundamental right under Art. 21. Even the right to get free education for up to 14 years is a fundamental right[31].

In fact, in Unni Krishnan v. The State of A. P[32].

The Supreme Court declared the right to education for children aged 6 to 14 a fundamental right. Accordingly, art. 21 A has been inserted to strengthen this right further.

In R. D. Upadhyay v. The State of A. P.

Held– a child shall not be treated as an under trial or convict while in jail with his/her mother. Such a child is entitled to food, shelter, medical care, clothing, education, and recreational facilities as a matter of right.

Art. 21-A has been inserted in the Constitution by the Constitution (86^th Amendment) Act, 2002. Art. 21-A provides that ‘the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, declare.’

Thus, free and compulsory education for children from 6 to 14 years of age is a fundamental right.

*****

[1] जीवनाचा व व्यक्ती स्वातंत्र्याचा अधिकार

[2] व्यक्ती/स्वातंत्र्याबाबत संकुचित दृश्टीकोन/पूर्वीचा दृष्टीकोन

[3] AIR 1950 SC 27

[4] However, Fazal Ali J. in his dissenting judgment held that the Act of 1950 was liable to be challenged as violating the provisions of Art. 19. He gave wide and comprehensive meaning to the words ‘personal liberty’ as consisting of freedom of movement. Therefore, any law which deprives a person of his personal liberty must satisfy the requirements of Art. 19 and 21

[5] व्यक्ती स्वातंत्र्याबाबत उदार दृष्टीकोन

[6] AIR 1978 SC 597

[7] कलम 14, 19, 21, 22 परस्पर संबंध

[8] In Kharak Singh v. State of U. P. (AIR 1963 SC 1295).

Court held– that the expression ‘life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence.

Facts– The petitioner, Kharak Singh, had been charged in dacoity case but was released as there was no evidence against him. Under the U.P. Police Regulations, the Police opened a history-sheet for him and he was kept under police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and verification of his movements and activities. ‘Domiciliary visits’ mean visits by the police in the night to the private house for the purpose of making sure that the suspect is staying home or whether he has gone out.

Supreme Court observed– that the domiciliary visits of the policemen were an invasion on the petitioner’s personal liberty.

[9] कलम 21 ची नविन परिमाणे

[10] फौजदारी न्यायदान पध्दतीवर प्रभाव

[11] AIR 1979 SC 1360.

[12] शिक्षणाचा अधिकार

[13] उपजिवीकेचा अधिकार

[14] AIR 1986 SC 180.

[15] खाजगी जिवनाचा अधिकार AIR 1997 SC 568.

[16] प्रदूषणमुक्त हवा-पाणी मिळवण्याचा अधिकार

[17]आश्रय स्वातंत्र्य Chamali Singh v. State of U.P (AIR 1996 SC 1051). Supreme Court observed- “ Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually”.

[18] आरोग्य आणि वैदयकीय मदतीचा अधिकार In Parmanand Katar v. Union of India. (AIR 1989 SC 2039).

Supreme Court Held– that it is the professional obligation of all doctors, whether governmental or private, to extend medical aid to the injured immediately to preserve life without waiting legal formalities to be complied with by police.

[19] स्वेच्छामरण हा मुलभूत अधिकार नाही 12The question was, whether the Right to life guaranteed under Art.21 includes right to die?

The Bombay High Court in State of Maharashtra v. Maruti Sripati Dubal, (Suicide Case) 1987 Cr,LJ 549— held that, right to life under Art.21 also includes the right to die and struck down Sec. 309 of IPC, which prescribes punishment for attempt to suicide. The Court listed several instances in which a person may wish to end the life viz, unbearable pain from a disease, poverty etc. But in Gain Kaur v. State of Punjab (1996) 2 SCC 648. Supreme Court overruled the above decision and held- that ‘right to live under Art. 21 does not include’ ‘right to die’ or ‘right to be killed’ and therefore, S. 309 of the IPC is not violative of Art. 21 of the Constitution.

[20] मोफत कायदेशिर मदतीचा अधिकार In State of Maharashtra v. Manubhai Pragaji Vashi (1995) 5 SCC 730. the Court has considerably widened the scope of the right to free legal aid. The Court Held that in order to provide “the free legal aid” it is necessary to have well-trained lawyers in the country. This is only possible if there are adequate number of law colleges with necessary infrastructure, good teachers and staff. Since the Government is unable to establish adequate number of law colleges, it is the duty of the Government to permit establishments of duly recognised.

[21] आणीबाणीच्या वेळी जिवीत स्वातंत्र्याचा अधिकार तहकूब होणार नाही.

In A.D.M Jabalpur v. S. Shukla, ( AIR 1976 Sc 1207) — Held– that Art.21 was the sole repository of the right to life and personal liberty and if the right to move to any court for the enforcement of that right was suspended by the Presidential Order under Art.359 the detenue had no locus standi to file a writ petition for challenging the legality of their detention.

44th Amendment and Art.21:— The 44th Amendment had amended Art.359 which now provides that the enforcement of the right to life and liberty under Art.21 cannot be suspended by the Presidential Order. In view of the 44th Amendment the A.D.M.Jabulpur is no longer a good law.

[22] कमीत कमी वेतनाचा अधिकार People’s Union for Democratic Rights vs. Union of India (AIR 1982 Sc 1473)

(The Asiad Games Case)

Facts– For conducting The Asiad Games 1982 the Central Government started to construct several projects necessary for conducting the various games. It handed over the constructional works to various contractors, who paid very lowest wages, which were not sufficient even for food. People’s Union for Democratic Rights brought Public Interest Litigation under Article 32 against the Central Government alleging that it was exploiting the labour by paying the lesser wages and it also amounted the exploitation of personal liberty and life of the workers, “to live with human dignity”.

Held– Supreme Court 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.

[23] एकांतवासाच्या शिक्षेपासून मुक्तता

[24] बेडयापासून मुक्तता

[25] परदेषी प्रवासाचा अधिकार

[26] कैदेत छळाविरुध्द अधिकार

[27] शिक्षेच्या उषिरा अंमलबजावणी विरुध्द अधिकार

[28] मानवी प्रतिष्ठेने जगण्याचा अधिकार

[29] राष्ट्राबाहेर हाकलणेचा अधिकार

[30] योग्य पद्धतीने खटला चालविणेचा अधिकार

[31] Uni Krishnan v. State of A. P. (1993) 1 SCC 1.

Even 93^rd Amendment Bill 2001 of the Constitution provides the ‘right to education’ as fundamental right. This Amendment prepares to add new clause Art. 21, A which provides, “ The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.

[32] Mohini Jain v. State of Karnataka