Right to Life And Personal Liberty – Article 21 of Indian Constitution


While making the Indian Constitution, its framers in the Constituent Assembly were immensely inspired by the historic English document of ‘Magna Carta’ and modern ideas of democracy, secularism, socialism, republicanism, along with justice, liberty, equality, fraternity, and ultimately the human dignity of every individual that were becoming popular worldwide since past several centuries. They did not only borrow those enlightened ideas from various countries and inscribe to the Preamble of the Constitution of India accordingly as mere goals that the nation aspires to achieve, but they also put their exertions to bring these into reality by incorporating in several parts of it. Nevertheless, Part- III (Articles 12-35) of the Constitution deserves special mention that guarantees a number of Fundamental Rights of the citizens or sometimes of the non-citizens as well, mainly against the State. Among the other Articles, Articles 14, 19, and 21 are considered the Golden Triangle or Trinity as these replicate a few hallmarks of the framework on which the Constitution is based and the idea of Constitutionalism (the notion of limited government). In a democratic setup, the rule of law must prevail over all powers of every democratic institution. Article 14 stands for the right to equality before the law or equal protection of laws, Article 19 for the right to freedom of speech and expression, and lastly, Article 21 for the right to life and personal liberty. Besides these, there are other corresponding rights, such as protections against ex-post-facto laws, double jeopardy, self-incrimination under Article 20, protection against arbitrary arrest and detention under Article 22, and the right to Constitutional remedies under Article 32.

Although all the rights mentioned above, as well as the other fundamental rights embodied in Part III, are closely interrelated to each other and those inseverable rights altogether constitute the mosaic-like fabric of Part III, the right to life and personal liberty under Article 21 among the other fundamental rights is often regarded as the most cherished and sacrosanct right guaranteed by the Constitution that makes the Indian Constitution a living instrument.

In the leading case- Maneka Gandhi vs. Union of India[1], the Supreme Court appropriately observed that the right enshrined in Article 21 is the heart of all fundamental rights. Moreover, in a civilized and modern democratic society, no other attribute can be more valuable than its members’ life and personal liberty. Veteran jurist Justice VR Krishna Iyer characterized Article 21 as ‘procedural magna carta protective of life and liberty’. Justice PN Bhagwati stated that “Article 21 embodies a Constitutional value of supreme importance in a democratic society.”[2]

Since the rights guaranteed by Article 21 are essentially Human Rights, too, for the same being borne by every human being by virtue of his birth as a human being, the mentions and recognitions thereof in the Internal Human Rights documents are quite inevitable. Having a look at the most prominent International Human Rights declarations, charters, or conventions, it can be noticed that the right to life and individual liberty has been designated as the bedrock of all other human rights. A few provisions contained in the well-known International Human Rights documents are as follows—

  1. Universal Declaration of Human Rights (UDHR): Article 3 states that—“Everyone has the right to life, liberty and security of person” while Article 9 of the same declaration states that— “No one shall be subjected to arbitrary arrest, detention or exile.”
  2. International Covenant on Civil and Political Rights (ICCPR): Article 9 sets out that— “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

In the regional Human Rights documents, there are mentions of those rights such as—

  1. The American Convention on Human Rights (Pact of San Jose) establishes in Article 6 ‘the right to freedom of slavery’ and in Article 7 ‘the right to personal liberty’.
  2. The African Charter on Human and Peoples’ Rights in Article 6 contains ‘the right to personal liberty and protection from arbitrary arrest’.

Article 21 – What does it Spell out?— An Overview

Article 21 of the Indian Constitution reads out—

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

For layman’s understanding, this provision denotes that the State (i.e., the legislative, executive body, or government) cannot encroach upon every individual’s right to life and personal liberty by action unless the same action can be justified by a substantial procedure that is established by law. While analyzing this provision, the famous proposition of the Magna Carta can be looked back on—

“No man shall be taken or imprisoned, disseized or outlawed, or exiled or, in any way destroyed save…by the law of the land.”

The two keywords of this provision are—

1) Right to Life or Personal Liberty

Although it is redacted in negative language, the first portion of the provision states that every individual in India has the right to life or personal liberty. The State (i.e., the government and its agencies) cannot deprive any individual of the right guaranteed by this Article; rather, it has a non-derogable negative obligation not to transgress the same. It literally means that no person can be subject to any physical coercion, confinement, or anything that abridges the guaranteed right if the law does not empower the State and its agencies to do so. From the sweep of the expression ‘right to life or personal liberty’, it can be comprehended to have the widest connotations that have been developed over time through a number of constructive judicial decisions.

The term ‘life’ is very difficult to define. It can only be said that here life does not mean mere animal existence of human beings, but it has an end number of distinct perspectives to look at it. Yet, the most authoritative meaning of life can be explained in the words of Field J while interpreting the provisions laid down in the 5th and 14th Amendments of the US Constitution in the landmark case of US Supreme Court- Munn vs. Illionois[3]

“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 the amputation of an arm or leg, or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world.”

The above observation has been quoted in multiple Indian cases to ascertain the true meaning of ‘life’. In the case- Francis Coralie vs. Administrator, Union Territory of Delhi[4], and Olga Tellis vs. Bombay Municipal Corporation[5], the Supreme Court observed that the right to life includes the right to live with human dignity. Thus, it also includes all the bare necessities of life that make human lives worth living.

The term ‘liberty’ has been derived from the Latin word ‘Libertas’, and it means— ‘the quality or state of being free’. It is often thought that the due to insertion of the word ‘personal’ with ‘liberty’ in Article 21 of the Indian Constitution, the scope of the concept of ‘liberty’ as is enshrined in it is narrower than the concept of ‘liberty’ laid down in the US Constitution. But, its scope has also been enlarged by the judicial constructions in India. It also does not merely mean freedom of bodily or physical restraints but also means the freedom from other restraints without which no individual can exercise his liberty to its fullest.

It is also noteworthy that the term ‘no person’ conveys every individual person in India irrespective of caste, sex, religion, status, etc.

2) Except according to the Procedure Established by Law

The second portion stipulates an exception on the said guaranteed right. The right to life or personal liberty is thus subject to the procedure established by law. It authorizes the State to take away the rights conferred in the first portion of this Article only if a law made by a competent authority abiding by an established procedure empowers it to do so, and the procedure as prescribed by that law is strictly and scrupulously observed while exercising that power. The underlying reason for the provision is very evident that no freedom or liberty can be absolute. According to the principles of the English Constitution, reasonable restrictions can be validly imposed on the rights of individuals by competent law-making authorities taking into account the collective interests of the larger community or for the protection of sovereignty, integrity, or security of the State and maintain public order, peace and tranquillity to meet the exigencies of time. Notably, the expression ‘procedure established by law’ is not to be confused with ‘due process of law’.

Applications of Article 21

The provision of ‘Article 21’ starts with the word ‘no person’. It often led to creating confusion as to the precise denotation of the word ‘person’, whether rights protected under this Article are available to the Indian citizens only or are available to the non-citizens as well. In the case of Louis De Raedt vs. Union of India[6], the Supreme Court held that the right to life and personal liberty guaranteed under Article 21 is not only available to the citizens of India but also available to the foreigners coming to India. In another case- Chairman, Railway Board vs. Chandrima Das[7], the Supreme Court, while emphasizing the deep-rooted underlying spirits of Article 21, expressed that—

“Even those who come to India as tourists also have the right to live, so long as they are here, with human dignity, just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizens.”[8]

However, in the case of Shrimati Vidya Verma vs. Dr. Shiv Narain Verma[9], the Supreme Court held that the right encompassed by this Article is available against the State only, not against the private individuals. It was never intended to make this right available against the private bodies; nevertheless, the actions for the transgressions of this right shall be maintainable against private bodies under the ordinary laws.

Constitutional remedies against any State actions encroaching upon any individual’s right guaranteed under this Article can be sought under Articles 226 and 32 of the Constitution in the High Courts and Supreme Court, respectively.

In the case- Deena vs. Union of India[10], the Supreme Court ruled that in case of violation of the fundamental right to life and personal liberty of any individual under Article 21 by reason of the State’s actions and Constitutional validity of any law authorizing such actions comes in question before the Court, the burden of proof lies upon the State to establish that such deprivation of the right of the individual is in compliance of the ‘procedure established by law’ in order to sustain its actions and establish the Constitutional validity of such impugned law. The Court asserted the proposition in the following words

“As regards Articles 19 and 21, in a challenge under these provisions, once the petitioner shows that his right has been taken away, it is for the State to justify the impugned law by showing that the restriction is reasonable (Article 19), or that the procedure is not arbitrary but is just, fair and reasonable (Article 21)… the weakness of the petitioners cannot establish the case of the government, for, in matters involving the citizens’ freedoms under Article 19, or the right to life and liberty of persons under Article 21, the burden of proof lies on the Government to prove that its action is constitutional.”[11]

Distinctions Between ‘Due Process of Law’ and ‘Procedure Established by Law’

In light of the expression ‘Procedure Established by Law’ in Article 21, two most contentious concepts can be briefly discussed here for clear insight—

  1. Procedure Established by Law
  2. Due Process of Law

1) Procedure Established by Law

It is an English principle. According to it, an individual’s right to life or personal liberty can be curtailed if a law authorizes the same. As per this principle, the State is required to satisfy the two following criteria in order to justify the deprivation of an individual’s fundamental rights—

  1. There must be a law.
  2. The law so made itself prescribes a procedure that is to be duly followed so far as the enforcement of such law is concerned.

Where this principle is adopted, the scope of judicial scrutiny is limited only to examine whether the established procedures laid down in a statute have been observed or not in its enforcement. However, the Courts cannot examine the reasonableness, fairness, or justness of the law or the procedure prescribed thereby. The principle is founded on the idea that if a law is made by the legislators, elected by the people in the Parliament in their wisdom, exercising the sovereign law-making authority, the law must have been made for the well-being of the people intending to fulfill their interests or for the security of the State, or on any other ground which is beyond the permissible domain of the Judiciary. It is ‘ultra vires’ for the Courts on any ground to inquire into—

  • The appropriateness of any legislation made by the Legislature, and the statutory procedure prescribed thereby for the enforcement of the same,
  • The competency of the concerned legislative body, or
  • Whether the established and proper law-making procedure was followed while making such legislation.

The domain of judicial review is restricted only to check the procedural improprieties in the enforcement mechanisms (by means of executive actions) of any legislative enactment as are stipulated by the same enactment. It does not safeguard individuals’ rights from arbitrary legislative actions. This principle is mostly followed in the United Kingdom, where the Courts cannot scrutinize the validity of statutory enactments passed by the British Parliament or established statutory procedures, except in cases of procedural irregularities in the enforcement mechanisms of the concerned enactments. If spoken precisely, the term ‘procedure’ in the expression ‘procedure established by law’ means ‘statutory procedure’ only.

2) Due Process of Law

This is an American principle. This principle is different from the ‘procedure established by law’. According to this principle, the Court can inquire not only into the procedural aspects of laws but also the validity of the laws to assess whether the requirements of justice, fairness, or reasonableness are present there or not. Suppose the Courts find out that there is legislation made by a competent law-making body, observing the established law-making process that justifies an action of the State abridging an individual’s right to life and liberty, but said legislation or the procedure prescribed therein is repugnant to the rules of procedural fairness. In that case, the Courts can invalidate that offending piece of legislation, either in whole or to the extent that it does not qualify the reasonability test. Thus, ultimate power is vested in the Judiciary to check the legality of any law and its prescribed procedure whether the laws and its’ procedures made by the Legislature or any other competent law-making body is just, fair or reasonable or not, along with scrutinizing its procedural aspects in the enforcement mechanisms.

Here, the principle basically signifies that a law must be ‘validly enacted law’. Making a law even by a competent body by following an established procedure and prescribing a procedure thereby is not alone sufficient to make a law ‘valid’ unless it qualifies the reasonability or fairness tests. Therefore, in the ‘due process of law’, the scope of judicial review is broader than that of the ‘procedure established by law’, for in ‘due process’, the Judiciary becomes the final arbiter to check the reasonableness or justness of the laws and its’ respective procedures.

However, it is also pertinent to note that ‘due process of law’ also signifies its two different aspects, namely—

A) Substantive due process of law: It gives the powers to the Courts to check the following substantive aspects of a legislative enactment—

  1. Whether the enactment is inconsistent with the fundamental rights or any other provision of the Constitution or not,
  2. Whether the Legislature was competent to bring the enactment or not,
  3. What was the purpose of bringing the enactment that the Legislature intended to get accomplished and whether that purpose was legitimate or not, and
  4. Whether there is indeed any nexus between the proposed goal for bringing the enactment and the methods adopted therein to achieve that same goal.

B) Procedural due process of law: It gives authority to the Courts to specifically inquire into the following procedural aspects of a legislative enactment—

  1. Whether the established law-making procedure set forth in the Constitution was followed while making the enactment or not,
  2. Whether the procedure stipulated in the enactment is right, just, fair, and reasonable or not, and
  3. Whether the procedure as is stipulated in the said enactment has been duly observed in the executive actions of the State and its agencies for the enforcement of the same enactment.

Both the principles of substantive and procedural due process are followed in the United States, and it is the most significant source of judicial review there, as 5th and 14th Amendments of the US Constitution states that—

“No person shall be deprived of his life, liberty or property, without due process of law”.

In India, it is settled from many rulings of the Supreme Court that although ‘due process of law’ has been infused in the expression of ‘procedure established by law’, it must be read into the ‘procedural due process of law’ only. ‘Substantive due process’ is ordinarily not applicable in India except in cases when a law is inconsistent with the fundamental rights or any other provisions of the Constitution or where the competency of the Legislature to make the law is in question.

In Mohd Arif vs. Supreme Court of India[12], the Court held that not only the prescribed procedure, but also the law itself must conform to the ideals of justice, reasonableness, fairness, and non-arbitrariness. It is already discussed that the same proposition concerning the judicial review of substantive laws applying ‘substantive due process’ was also reflected in the case of Mithu vs. State of Punjab. Further, in the leading case of Bachan Singh vs. State of Punjab[13], where the Constitutional validity of death penalty under Section 302 of the Indian Penal Code, 1860 read with Section 354 of the Code of Criminal Procedure, 1973, was challenged before the Supreme Court, although the majority decision upheld the Constitutional validity of the same, Justice PN Bhagwati in his dissenting opinion “went beyond Article 14 to establish the requirement of reasonableness and it is also here that he applied this requirement for the first time to a law, not just procedural, but substantive and in fact reached a conclusion that Section 302 IPC read with Section 354(3) CrPC was unconstitutional and void being violative of Articles 14 and 21.”[14]

Rule of Law And Article 21

The ideals of ‘Rule of Law’ and ‘Supremacy of Law’ were first propounded by British jurist Sir Edward Coke. However, eminent British jurist and constitutional theorist AV Dicey further popularized the ideals of ‘Rule of Law’ in his book- “Introduction to the Law of Constitution (1885)”. According to Dicey—

“The rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government.”

The right enshrined in Article 21 secures every individual in the country, whether citizen or non-citizen, from any means of arbitrary or unwarranted invasions on his life or personal liberty by the State and its agencies. The State and its agencies are bound to exercise its powers strictly abiding by the law and the procedure prescribed thereby, and they cannot go beyond their respective domains as are permitted by law while exercising their powers and functions without lawful justifications. That means they too cannot act according to their whims and fancies, as the law itself does not give ‘carte blanche’ to it to act in such manners contrary to the spirits of law.

Therefore, Article 21, read with Articles 14 and 19, also resonates with the ideals of ‘Rule of Law’ and the ideals of ‘Constitutionalism’ as it tends to act as the admonitions, restraints, or checks on the powers of the State and its agencies in order to prevent arbitrary use of the powers vested in them because arbitrariness is the sole antithesis of the ‘Rule of Law’. Hence, the State, despite being the most powerful body, is not supreme, but only ‘Law’, specifically in the Indian context, the Constitution of India (known as the ‘Grundnorm’) is supreme, and State is a mere creature of it. That is to say that the State is bound to act remaining within the four corners of ‘Law’ and it is equal before the ‘Law’ like any other individuals as the same is guaranteed under Article 14. The Supreme Court, in numerous rulings, specifically stated that Article 14 itself outlaws every possible kind of arbitrariness as non-arbitrariness is the sine qua non of ‘Rule of Law’.

Backdrop of the Evolution of Creative Judicial Constructions in Interpreting the Rights Envisioned by Article 21

Notably, while framing the Indian Constitution, the framers of the Constitution in the Constituent Assembly initially being influenced by the US Constitution favored the incorporation of ‘due process of law’ in Article 21 instead of ‘procedure established by law’. Accordingly, ‘due process of law’ was incorporated in the draft Constitution. Nevertheless, Justice Felix Frankfurter, who was a noted American lawyer, jurist, associate justice of the Supreme Court of the US and renowned advocate of ‘judicial restraint’, advised the framers of the Indian Constitution not to incorporate ‘due process of law’ in Article 21 as it would be burdensome for the Judiciary to examine all the laws on the touchstones of fairness, justice, or reasonableness. The Constituent Assembly debates evidence that the makers of the Constitution were also convinced that incorporation of ‘due process of law’ would confer undue powers to the non-elected judges of the Constitutional Courts enabling them to transgress into the forbidden domains of the Legislature and exert influence over the law-making process overriding the legislative prerogatives of the democratically elected legislators, that would vitiate the fundamental ideas of democracy. Accordingly, the Constituent Assembly dropped the expression ‘due process of law’ and inserted ‘procedure established by law’. It may be noticed that in the early days after the commencement of the Constitution, the Constitutional Courts in India usually preferred to take passive stances to proactively employ judicial review or judicial activism in interpreting the Constitution and the laws. They were mostly of the view that if a competent Legislature makes law and provides a provision therein to deprive an individual’s life and liberty in certain circumstances and in a certain manner, such law should not be open to challenge in the Court of law on the ground that it is not reasonable, fair and just.

However, gradually since the later 1970s, they trod the pathway of judicial activism to broader extents and accordingly employed the same in a large number of subsequent judicial pronouncements. Such metamorphosis of the judicial mindsets of the Judiciary from a conservative and rigid to an activist creature of the Constitution has been reflected in numerous landmark decisions, and thereby the scopes of judicial review and activism have been widened in interpreting the Constitution and the laws in due course of time. Amongst those leading decisions, the two most discussed cases whereby the said metamorphosis has been manifestly contemplated are—

  1. AK Gopalan vs. State of Madras[15]
  2. Maneka Gandhi vs. Union of India[16].

Metamorphosis in Judicial Approaches in the Interpretations of Article 21

The leading cases are as follows—

AK Gopalan vs. State of Madras

It was a leading case where the questions surrounding the well-defined meanings of the expression ‘procedure established by law’ envisaged by Article 21 first came up before the Supreme Court. In this case, AK Gopalan was a communist leader, and he was put under preventive detention in Madras under the relevant provisions of the Preventive Detention Act, 1950. He filed a writ of habeas corpus in the Supreme Court under Article 32, challenging his detention order and seeking Constitutional remedy for the deprivation of his ‘right to life and personal liberty’ protected under Article 21. The Constitutional validity of the said Act was also challenged before the Court. A 6 judge bench of the Supreme Court heard the matter and found only Section 14 of the Act unconstitutional, for the same provision was in contravention of the fundamental right of an accused guaranteed under Article 22 to have the grounds of his detention disclosed.

However, the majority of the judges held the rest of the provisions of the Act Constitutionally valid and not inconsistent with Article 21 as they were of the view that the impugned legislation was falling within the purview of the expression ‘procedure established by law’, while Justice Fazl Ali dissented. Thus, the Court upheld the detention of AK Gopalan under the said Preventive Detention Act rejecting all his contentions. Time and again, this approach of the Supreme Court has been highly criticized for being short-sighted, static, literal, solely relying upon the ‘positivist’ or ‘imperative’ theory of law, and failing to look into the underlying spirits of the sacrosanct right set forth by Article 21 from wider perspectives. The Court took the following views in this case—

(a) The term ‘law’ in the expression ‘procedure established by law’ denoted ‘lex’, i.e., ‘State made law’, not ‘jus’. Here principles of natural justice, equality before the law, fairness, justice, reasonableness, and other settled procedural standards inevitably recognized in all civilized legal systems in the world had no place. Therefore, the ‘procedure established by law’ denoted a procedure as laid down by a ‘State enacted law’.

The Court rejected the argument that the expression ‘procedure established by law’ in the Indian context purports to be synonymous with the American concept of ‘procedural due process’ for it considered natural justice, due process, equality before the law, and other procedural standards emanated from it vague, uncertain or indefinite. According to the majority view, insertion of the standards mentioned before would connote the term ‘law’ in the abstract sense that was never the intendment of the Constitution makers. In this way, the majority view firmly put forth their reasons justifying that the Indian concept of ‘procedure established by law’ was not equivalent to the American concept of ‘due process of law’. That’s why, as per the ‘procedure established by law’, the Courts had to assess the executive actions only, in contrast to the legislative actions in any case, to ensure that the procedure prescribed laid down in a relevant law had been duly obeyed in the enforcement of the same law, and the Courts could nullify any executive action if the said prescribed procedure was not obeyed; but the Courts were not concerned as to whether that prescribed procedure fulfilled the tests of natural justice, due process, equality before the law, etc. Hence, according to this ruling, the right to life and personal liberty of an individual could be taken away if the followings requirements were fulfilled—

  • There must be a law,
  • That law must prescribe a particular procedure,
  • That prescribed procedure must be followed while enforcing the same law.

(b) The right guaranteed under Article 21 was so expansive that even if it had been left alone, it would not only cover the right to life and personal liberty but also the freedoms guaranteed under Article 19(1). However, a careful perusal of Articles 19 to 22 would suggest that Articles 20 to 22 had been compiled together to constitute a comprehensive code setting forth all the fundamental rights with respect to life and personal liberty, whereas Article 19(1) only embodied a few specific fundamental freedoms which must be held to be distinct from and exclusive of the rights set forth in the code comprising Article 20, 21, and 22. Therefore, the Court was of the view that there was mutual exclusiveness between the rights in Article 19(1) and the afore-mentioned comprehensive code of Articles 20 to 22, for the former Article talked about the freedoms of a freeman whereas the latter code talked about the protection of the various freedoms of an arrested person.

On the other hand, the Court stated that the exceptions of Article 19(1) would come into play only when there are direct infringements of rights guaranteed therein. Evidently, the validity of any law, whether punitive or preventive jeopardizing the right to life and personal liberty of any individual, was required to be tested within the exceptions provided under Articles 20, 21, and 22 only, but the same law for not being controlled by the exceptions of Article 19(1) could not be adjudged in terms of those said exceptions. That’s why the Court rejected the argument that the validity of the provisions of the Preventive Detention Act, 1950 whether it was validly falling under the expression ‘procedure established by law’ were to be held in terms of the tests of reasonableness laid down in Article 19, but held that the validity of the same law could be adjudged in terms of the safeguards provided under Article 22 only.

Justice Fazl Ali disagreed with both the majority views. In regard to the first construction, he emphasized that ‘procedure established by law’ in Article 21 must be held to have the same connotations of the ‘procedural due process’ ingrained in its spirits, for it postulates that “the principle of natural justice that ‘no one shall be condemned unheard’ was part of the general law of the land and the same should accordingly be read into Article 21.”[17] His view also differed from the majority on the second construction as he laid emphasis on the interrelations between the fundamental rights, and according to him, rights guaranteed in Articles 14, 19, and 21 are not mutually exclusive; therefore, the validity of any law infringing Article 21 should be held to be justiciable under Articles 14 and 19. Further, it was evident from the finding that the right to life and personal liberty under Article 21 is an essential requisite of the right to freely move throughout the territory of India under Article 19(1)(d), hence deprivation of an individual’s right to life and personal liberty under Article 21 could only be justified if the conditions of clause 5 of Article 19 are fulfilled.

In so far as the interpretations of Article 21 are concerned, the rigid viewpoints taken in AK Gopalan’s case continued to leave traces in post-Gopalan judicial approaches of the Supreme Court as were depicted in a number of subsequent rulings. Several rulings delivered before 1978 led to anomalous results due to delinking of Articles 21 and 19 in the Gopalan case. The same positivistic judicial approaches were also noticed in the short-sighted views taken in the infamous Supreme Court verdict of ADM Jabalpur vs. Shivkant Shukla[18], where the majority of the judges held that “Article 21 is the sole repository of right to life and personal liberty against its illegal deprivation by the executive and in case enforcement of Article 21 was suspended by a Presidential Order under Article 359, the Court could not enquire whether the executive action depriving a person of his life or personal liberty was authorized by law.”  Most notably, Justice HR Khanna was the lone dissenter among the 5 judges and he boldly expressed his widely lauded dissenting judgment. He convincingly observed that— The right to not be deprived of one’s life or liberty, without the authority of law, was not the creation of the Constitution. Such rights existed before the Constitution came into force. And even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law.  Art. 21 is not the sole repository of the right to personal liberty. Such a right not only follows from common law, but it also flows from statutory laws like the penal law in force in India.”

According to MP Jain— “As interpreted in Gopalan, Article 21 provided no protection or immunity against competent legislative action.”[19] Further, he noted that—

“Article 21 gave carte blanche to a Legislature to enact a law to provide for arrest of a person without much procedural safeguard. It gave final say to the Legislature to determine what was going to be the procedure to curtail the personal liberty of a person in a given situation and what procedural safeguards he would enjoy.”[20]

During the period of around thirty years after AK Gopalan’s ruling, the judicial exploration completed its trek from North to South Pole in quest of well-settled and expansive interpretations of the rights under Article 21 and its correlated Articles. Eventually, the rigid attitude of the Supreme Court towards the protection of the right to life and personal liberty of the individuals and the other corresponding rights underwent a remarkable transformation. Many landmark rulings in the later 1970s like RC Cooper vs. Union of India[21] (in 1970, also known as the Bank Nationalization case), Benett Coleman vs. Union of India[22] (1972) evidence the toning down of the earlier rigid or mechanical judicial approaches by the Supreme Court and those two cases mark the beginning of a new era since when the Supreme Court went ahead to employ liberal approaches in the interpretations of the Constitutional provisions, especially of Article 21 deviating from the Gopalan’s attitude. Such transformation of judicial mindsets culminated in the historic Supreme Court ruling of Maneka Gandhi vs. Union of India (1978).

Maneka Gandhi vs. Union of India

This Supreme Court ruling is often regarded as the bulwark of the right to life and liberty available to every individual under Article 21 of the Indian Constitution. In this case, the petitioner Maneka Gandhi used to publish a news magazine called ‘Suriya’ that played an important role in the promotion of the Congress party after its defeat of 1977 election, following the infamous Emergency of 1975, but the ruling Janta Party government during that time viewed it against the public interest. The passport of Maneka Gandhi was impounded by Regional Passport Authority under Section 10(3)(c) of the Passport Act, 1967 without intimating her proper reasons justifying the act in order to prevent her from traveling abroad on the ground of public interest. She challenged the confiscation of her passport as well as the validity of the impugned Section, filing a writ petition in the Supreme Court under Article 32 seeking Constitutional remedies for the infringement of her right to travel abroad as the same was contended to be within the meaning of the right to life and personal liberty under Article 21. She also contended that the order impounding her passport had to be made void as she was not afforded with reasonable opportunity to be heard whereby principles of natural justice and her right to equality before the law were vitiated. The matter was placed before a 7-judge bench of the Supreme Court, and it delivered 5 different opinions. The Court took a totally different approach in this case than that of the AK Gopalan’s case. The key observations made by the majority judges of the Court, in this case, were as follows—

(a) The Court rejected the mutual exclusivity approach that was adopted in Gopalan’s case and held the field for three decades. The Court expounded that any law having a prescribed procedure to take away the right under Article 21 must fulfill the requirements of Article 19 as well as Article 14 as they are not water-tight compartments. Thus, the Court established a nexus between Article 21 and Articles 19 and 14. All the fundamental rights are closely connected to each other through a common thread, and “they sustain, strengthen and nourish each other.” Such interrelations or mutual inclusivities were conspicuous from the following observation of Justice Krishna Iyer—

“No Article in the Constitution pertaining to a Fundamental Right is an island in itself. Just as a man is not dissectible into separate limbs, cardinal rights in an organic constitution have a synthesis.”[23]

(b) The Court laid emphasis on the interpretations of ‘personal liberty’ and stated that it is of widest amplitude because of its ever-expansive nature. No clear-cut demarcating lines can be drawn between ‘personal liberty’ under Article 21 and other fundamental rights enshrined in Article 19(1). The concept of ‘personal liberty’ is an umbrella term and also not a self-sufficing one, for it is a compendium of all inalienable rights without which, ‘personal liberty’ of an individual becomes substantially devoid of its profound meaning. Therefore, specific rights guaranteeing 6 fundamental freedoms secured under Article 19(1) are not to be deemed incomplete seclusion of Article 21; rather, it can be asserted that Article 19(1) enumerates some of those said associated rights, which are characterized as some of the basic requisites of the term ‘personal liberty’ as a whole; on the other hand, Article 21 enunciates the term ‘personal liberty’ in a somewhat generic and comprehensive sense, for it covers all other residue ancillary rights of ‘personal liberty’ as well. From this proposition, it is evident that the expression ‘procedure established by law’ has to be looked into in terms of the provisions contained in Article 19 as the exceptions of the rights enumerated in clause 1 of the same Article.

Accordingly, the Court held that the right to travel abroad is an essential facet of ‘personal liberty’ set forth in Article 21. Justice Krishna Iyer categorically noted that—

“The spirit of man is at the root of Article 21; ‘personal liberty makes for the worth of the human person’ and ‘Travel makes liberty worthwhile’. Thus, no person can be deprived of his right to go abroad except according to procedure established by law.”[24]

(c) Most significantly, the Apex Court showed great sensitivity while reinterpreting the true meaning of the expression- ‘procedure established by law’ in Article 21 in a liberal and progressive way. The Court completely changed its stance, which prevailed since Gopalan’s case, and affirmed that Article 21 of the Constitution does not only purport to safeguard every individual’s right to life and personal liberty from arbitrary executive actions but also purports to safeguard the same from arbitrary legislative actions. The expression ‘procedure established by law’ does not aim to contemplate mere prescribed process laid down in law but essentially denotes the same procedure must conform with ‘natural justice, equality, reasonableness, and fairness’. It never aims to confer on the hands of the Legislature unbridled powers to make any law and lay down any procedure therein no matter how arbitrary, fanciful or oppressive that may be in order to take away an individual’s right to life and personal liberty. In order to deprive any individual of his right to life and personal liberty, every law authorizing the same must meet the fundamental requisites of fairness and reasonableness, and that can only be possible if the ideals of natural justice fair play have been projected in the procedure contemplated by Article 21. Non-satisfaction of the above-stated requisites would render any procedure void as it would be treated as no procedure at all, and likewise, the procedure contemplated in Article 21 would also be breached.

Therefore, the Court emphasized that although, Article 21 does not contain the expression ‘due process of law’, the serious realization of the expression ‘procedure established by law’ clearly suggests that the essential ingredients of ‘due process of law’ such as justice, fairness, reasonableness, non-arbitrariness, fair play, etc. are intrinsic in it. Accordingly, the Court came to the ultimate conclusion that the expression ‘procedure established by law’ is synonymous with the American concept of ‘procedural due process of law’. This is how; the Court infused ‘due process of law’ in the expression ‘procedure established by law’.

Further, in the case of Sunil Batra vs. Delhi Administration[25] in the same of Maneka Gandhi’s case, Justice Krishna Iyer also expounded that true our Constitution has no ‘due process’ process clause, but after RC Cooper and Maneka Gandhi, the consequence is the same and added that Article 21 is the counterpart of ‘procedural due process’ in the US. According to it, not only the executive actions but also the legislative actions come within the ambit of judicial scrutiny, for the Legislature too cannot make any law or lay down any procedure therein keeping those ingredients of natural justice, fair play, etc. aside. In any case, if it appears to the Courts that a particular statute or procedure has been made in contrary to the principles of ‘procedural due process’ undermining any of its essential ingredients, the Courts may read the impugned statute by bringing in natural justice, and even if it is not at all possible to do so, the Courts have the power to invalidate such statute. As it is already discussed that Articles 14, 19, and 21 are not mutually exclusive, instead they are interlinked; the principles set forth in Article 14 (besides Article 19) must also be observed by the Courts while assessing the Constitutionality of any statute, for ideals of justness or reasonableness are part and parcel of rules of equality envisioned by Article 14. It was expressed in the words of Justice PN Bhagwati—

“The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.”[26]

The same propositions were reiterated in the words of Justice Krishna Iyer—

“Procedure in Article 21 means fair, not formal, procedure; ‘law’ is reasonable law and not any enacted piece. This makes the words’ procedure established by law’ by and largely synonymous with the ‘procedural due process’ in the USA.”[27]

In the final verdict, the Court upheld the Constitutional validity of the impugned Section 10(3)(c) of the Passport Act, 1967, and held that although the said Act did not prescribe any procedure for a fair hearing, it should be read with the principles of natural justice which were held to be implied therein. However, it found that the manner or on the grounds, in which the Passport of Maneka Gandhi was impounded were utterly in contravention of the fundamental rules of natural justice, fair play, and whereby, the requirements of ‘procedure established by law’ envisioned by Article 21 were not satisfied. The Court held that right to travel abroad is an essential component right of the right to life and personal liberty, and that could not be curtailed except according to the procedure established by law. Hence, the Court directed the concerned authority to give the passport back to the petitioner Maneka Gandhi. Thus, the right to life and personal liberty under Article 21 that was stagnated by the AK Gopalan’s ruling was enlivened again.

In this ruling, the Supreme Court demonstrated totally different orientations towards the broad and liberal interpretations of Article 21 and its corresponding provisions of the Constitution compared to the formalist and parochial views taken in Gopalan’s case, and inevitably, the dissenting view of Justice Fazl Ali in Gopalan’s case triumphed. In this way, the earlier AK Gopalan’s ruling was overruled (although the same was impliedly overruled in the RC Cooper’s case in 1970 when the Supreme Court for the first time endeavored to establish the inter-linkages between the fundamental rights); nevertheless, it took around three decades to bring about the change in the legal positivistic mindsets of the judges. Pertinently, after this ruling, the Judiciary assumed the role of the final arbiter to ascertain the reasonableness, justness, or fairness of the legislative as well as executive actions in light of the embracement of ‘due process of law’. By this ruling, a new trend of judicial constructions began in India, and as a result of it, the Courts, in different subsequent pronouncements, molded the right to life and personal liberty enshrined in Article 21 into an ever-expansive phenomenon. This ruling thus had far-reaching impacts on the subsequent decisions of the Supreme Court. It has also left deep-rooted impacts on the Indian criminal justice system in modern days.

Multitudinous Creative Judicial Constructions and Explorations of New Horizons of Article 21

It is already comprehended from the preceding discussions that even though the Article itself does not contain many words, time and again, the Indian Courts, mostly in the post-Maneka Gandhi period, in various judicial pronouncements, have explored its multi-dimensional aspects and enlarged its amplitude by a multitude of interpretations that are often rendered as the milestones of judicial activism in India. By the judicial constructions in multiple rulings, an end number of corresponding substantive and procedural rights have been recognized to have constituted inseparable components of Article 21. As the list of its ancillary rights is not exhaustive, endless rights can be regarded to be constituents of this right in the future as well. It can also be pointed out that by applying judicial activisms, the Supreme Court has indeed connected fundamental right to life and personal liberty under this Article to a number of Directive Principles of State Policies contained in Part IV as well and thereby made the DPSPs also enforceable. From several notable rulings of the Supreme Court, the interpretation of Article 21 is now settled that the ‘Law’ mentioned in Article 21 means ‘validly enacted law’. It can be summarised that a law is only valid when—

  • It has been made by following an established legal procedure by a competent law-making body,
  • The enacted law itself must be right, just, fair, or reasonable,
  • The law so enacted prescribes a procedure by which it is required to be enforced, and
  • The prescribed procedure also qualifies the criteria of ‘just, fair and reasonable’ along with taking the ‘principles of natural justice’ and ‘equality before law’ into consideration.

Moreover, in the case- AK Roy vs. Union of India[28], the Supreme Court also held that the ordinances promulgated by the President and Governors of the States exercising their ordinance making powers under Articles 123 and 213, respectively of the Indian Constitution, have to be considered to have the same effects as that of the ordinary laws made by the Parliament or State Legislatures. Hence, if any ordinance violates Article 21 or any other fundamental rights of individuals, it can be made subject to judicial review and can also be invalidated as it also comes under the purview of ‘procedure established by law’. Though it is not explicitly mentioned in the provision, the Supreme Court, in many notable cases, observed that ‘procedural due process of law’ is inherent in the meaning of ‘procedure established by law’. Therefore, the omnipresent notions of non-arbitrariness, fairness, and reasonableness are engrafted in ‘procedure established by law’. The Supreme Court has emphasized that both the ‘procedure established by law’ and ‘due process of law’ must be taken into account while scrutinizing the validity of a law whether it violates Article 21 or not. Nevertheless, touchstones of ‘procedural fairness’ set forth in the expression ‘procedural due process’ are not only applicable to Article 21 but also applicable in other provisions of the Constitution, laws, and every facet of democratic governance.

Few of the most path-breaking rulings of the Supreme Court can be discussed here in the context of the eclectic collection of interpretations of innumerable rights envisioned by Article 21—

1. Right to speedy and fair trials

In the leading case- Hussainara Khatoon vs. State of Bihar[29], the Supreme Court held that keeping an under trial prisoner accused of any criminal offense in jail for any period exceeding the maximum term of imprisonment prescribed for that particular offense by law owing to inordinate delays in completion of a criminal trial is utterly illegal, unjust, and unfair and a serious violation of the sacrosanct right of right to life and personal liberty under Article 21 of the accused. The Court also issued multiple directions to ensure the speedy access to justice and laid emphasis on the Directive Principles of the State Policies and obligations of the State to ensure the same as per Articles 38, 39, and 39A of the Constitution. Although Article 39A fall under DPSPs, it cannot be ignored that right to free legal aid is also a part of the right to life and liberty. In the case- AR Antulay vs. RS Nayak[30], the Apex Court affirmed that the right to speedy trial of every accused pervades all stages of a criminal trial, viz. investigation, inquiry, trial, appeal, revision, and retrial. However, no particular time frames can be prescribed to complete all or classes of criminal cases within such time frames as such delays can be caused owing to several reasons. It is still beyond any doubt that unduly prolonged incarceration of an accused is a heavy onslaught on his right under Article 21; therefore, every trial must be completed within reasonable time frames, but what should be the reasonable time frames are to be decided in case to case. In a nutshell, the right to speedy and expeditious trial has been held to be an essential component of Article 21. But, the speedy and expeditious trial is of no use if the same is not fair. Accordingly, the right to a fair trial is also an essential facet of Article 21. In the case- Rattiram vs. State of MP[31], the Supreme Court observed that—

“A ‘fair trial’ is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law.”[32]

The same propositions have been reiterated by the Court in the cases like Zahira Habibullah Sheikh vs. State of Gujarat[33] and Kartar Singh vs. Union of India[34].

2. Custodial violence, death in police lockups, and encounters

The Supreme Court has truly retained its position as the ‘sentinel on the qui vive’ in the context of human rights violations in the jails also. Article 21 also spells out the right to life of the persons in police custody as well and includes a guarantee against assault or torture by the State. They, too, are entitled to be treated with dignity befitting a human being, and the law does not permit them to be subjected to third-degree methods or torture during the investigation or interrogation of criminal cases. The Supreme Court characterized it as ‘disastrous to our human rights awareness and humanist constitutional order’ and ‘perhaps one of the worst crimes in a civilized society governed by rule of law’ which strikes a blow at the rule of law and issued various guidelines to protect the fundamental and human rights of the persons in police custody and awarded exemplary compensations to the victims of such incidents and the family members of the deceased in cases of custodial deaths. In the most notable case- DK Basu vs. State of West Bengal[35], the Supreme Court formulated a set of guidelines to be followed by the police officials while making arrests, investigation, and interrogations relating to any offense to safeguard the rights of the arrested persons in the police custody and warned of stern actions of Contempt of Court and also disciplinary actions against the officials whoever disobey these guidelines. After this noted ruling, many provisions were inserted in the Code of Criminal Procedure, 1973 as the safeguards to every arrested person against custodial torture. The Court also issued several guidelines to deter fake encounter killings as well.

3. Death sentence

The Constitutional validity of the death sentence has been as a method of punishment has been challenged in the Supreme Court multiple times in multiple cases. The first case was- Jagmohan Singh vs. State of UP[36] where the Court upheld the Constitutional validity of the death penalty under Section 302 IPC read with Section 354 CrPC. The stance of the Supreme Court also remained more or less unchanged in the subsequent rulings. However, in the landmark case, Bachan Singh vs. State of Punjab[37], although the Supreme Court reiterated that punishment of death sentence in Indian context and the procedure laid down therein could not be said to be arbitrary, unjust, or unreasonable and hence, punishing an accused with death penalty does not amount to a violation of fundamental rights guaranteed under Articles 19(1) and 21, the Court propounded the famous ‘doctrine of rarest of the rare cases’.

According to the doctrine, the death penalty can only be awarded to an accused in the rarest of rare cases only. The Courts must award death sentence only upon utmost carefully considering the nature of the offense committed, circumstances in which it was committed, balancing various aggravating and mitigating elements, the proportionality of punishment and the nature of the offense, mental condition of the accused, inadequacy in sentencing with life imprisonment and many other considerable factors social defense, public interest, public order, etc.

In the case- Machhi Singh vs. State of Punjab[38], the Supreme Court reaffirmed that—death penalty need not be inflicted except in the ‘gravest of cases of extreme culpability’ and that ‘life imprisonment’ is the rule and ‘death sentence’ is an exception”[39].

The Court further upheld the Constitutional validity of ‘hanging’ as a method of execution prescribed under Section 354(5) CrPC. But, in Mithu vs. State of Punjab[40], where the Court struck down Section 303 IPC that provided the mandatory death penalty for murder committed by a life convict, for being unconstitutional, irrational, and unreasonable as it was held to be violative of Articles 14 and 21 and also on the ground that it was purporting to take away the discretionary powers of the Courts to determine the quantum of punishments to be awarded to the accused in those particular cases.

Notably, the Supreme Court, although upholding the Constitutional validity of the death penalty, held that inordinate delay in the execution of a death row convict between the end of the judicial process (delivering of the final verdict of the Supreme Court upholding the death sentence awarded) and the rejection of mercy petition by the President, attributes to torture and is a violation of the convicts right to life guaranteed under Article 21, and in such cases, the death penalty of the convict upon considering several other factors can be commuted to life imprisonment, provided that the said delay was not caused at the instance of the convict himself. The Court held that a convict’s ‘right against delayed execution’ is part of Article 21. These rules were first devised by the Supreme Court in the case of Sher Singh vs. State of Punjab[41] and also elaborated the same in a number of subsequent cases. In Shatrughan Chauhan vs. Union of India[42], the Supreme Court observed that—

“It is well established that Article 21 of the Constitution does not end with the pronouncement of sentence but extends to the stage of execution of that sentence, as already asserted, prolonged delay in execution of sentence of death has a dehumanizing effect on the accused. Delay caused by circumstances beyond the prisoners’ control mandates commutation of death sentence.”[43]

However, in the case- Attorney General of India vs. Lachma Devi[44], the Supreme Court held that execution of a death row convict in a public place would be barbaric practice, and it clearly contravenes Article 21.

4. Right to travel abroad

In the caseSatwant Singh Sawhney vs. D Ramarathnam, Assistant Passport Officer[45], the Supreme Court, for the first time, first recognized the right to travel abroad as a constituent right of right to life and personal liberty. In fact, the Supreme Court was more categorical in this context in Maneka Gandhi’s case, as is already discussed.

5. Right of release and rehabilitation of bonded laborers

In the case- Bandhua Mukti Morcha vs. Union of India[46], the Supreme Court observed that bonded laborers also have the right to live with human dignity, which is an integral part of the right to life guaranteed under Article 21; hence it is a binding obligation on the State under Articles 39, 41, and 42 and also Bonded Labour System (Abolition) Act, 1976 to take measures to identify, release and rehabilitate suitably the bonded laborers.

6. Right to livelihood

Although the Supreme Court in the early days was hesitant to include the right to livelihood as a part and the parcel of the right to life under Article 21, in the case- Olga Tellis vs. Bombay Municipal Corporation[47], the Court, while establishing a close inter-connections between life and livelihood, expressed that— “The right to livelihood is born out of the right to life, as no person can live without the means of living, that is, the means of livelihood.”[48] Even though by reading the right to livelihood into Article 21, the State may not be legally compelled to provide a livelihood to everyone, the same can be justiciable if someone’s right to livelihood has been taken away by the State without procedure established by law.

7. Right to compensation

The Supreme Court in the case- Rudal Shah vs. State of Bihar[49] held that right to compensation of any individual in case of violation of a fundamental right by the actions of the State and its agencies without the procedure established by law is part of Article 21, and the same can be sought in the Supreme Court and High Court under Articles 32 and 226 respectively. Such compensations can also be awarded to the family members or legal representatives of the deceased person who died as a result of custodial torture or police encounters.

In the case- Nilabati Behera vs. State of Orissa[50], the Supreme Court awarded compensation to the petitioner mother for the custodial death of her son as a result of police brutality. In the case- People’s Union for Civil Liberties vs. Union of India[51], the Court also awarded compensation to the family members of two persons who died in a fake encounter killing.

8. Prisoner’s rights

The Supreme Court has held in a number of cases that the prisoners, too, have the right to life and personal liberty, and they cannot be subjected to brutal or inhumane treatments by the jail authorities. In a notable case- Sunil Batra vs. Delhi Administration[52], the Apex Court liberalized the procedural limitations of the writ of Habeus Corpus by recognizing the right of the prisoner against excesses committed by jail authorities. In this case, the Court, while taking note of the resolution- ‘Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ adopted by UN General Assembly in 1975 and other international legal standards for the protection of the rights of prisoners, issued some directions to protect the prisoner’s rights. The Court directed that no solitary or punitive cell, no hard labor or dietary change as a painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without appraisal from the Sessions judge and a prisoners handbook to be given to the prisoners to bring about legal awareness of their rights amongst them. Therefore, the Court rejected the ‘hands-off doctrine’ and ruled that the right to life and personal liberty of a person does not flee him while entering prison even though they may suffer shrinkages necessitated by incarceration. In the case- State of Maharashtra vs. Prabhakar Pandurang[53], the right to personal liberty of a person too does not end in prison completely, and this right includes the right to write books and get them published, the denial of which without the authority of law amounts to a violation of his right under Article 21. As a person does not cease to be a human being upon entering the prison, his fundamental rights along with few restraints go coextensively with life even during the incarceration.

9. Right to privacy

The first case that came before the Supreme Court in regard to the amplitude of the term ‘personal liberty’ in Article 21 was- Kharak Singh vs. State of UP[54], where the Court, although expounded wider amplitude of this term, held that the right to privacy is not covered under it or any other provision of Indian Constitution as a fundamental right. Later, in many cases, the Court expressed either similar or different views in regard to the right to privacy in the Indian context. Lastly, in 2017, a 9-judge Constitution Bench of the Supreme Court in landmark case- Justice (Retd.) KS Puttaswami vs. Union of India[55] (also known as Aadhar Verdict), overruled Kharak Singh’s decision and held that the right to privacy is an integral part of the right to life and personal liberty preserved in Article 21 of the Constitution. Following this ruling, in 2018, the Supreme Court in the case- Navtej Singh Johar vs. Union of India[56] struck down Sections 377 IPC partially that criminalized homosexuality overruling its earlier decision in Suresh Kumar Koushal vs. Naz Foundation[57] and by this ruling also, the Court gave perfect shape to an earlier ruling- NALSA vs. Union of India[58] where the Court laid emphasis on the protection of rights of transgender and other LGBT communities to live dignified lives against gender-based discriminations in lights of Articles 14, 15, and 19(1)(a) and held that ‘their right to choose gender identity’ comes within the purview of Article 21. In another noted ruling- Joseph Shine vs. Union of India[59], the Apex Court also struck down Section 497 IPC that criminalized adultery in lights of the KS Puttaswami verdict of right to privacy and Article 21 and overruled the earlier decision- Sowmithri Vishnu vs. Union of India[60] where the Court upheld the Constitutional validity of the impugned Section 377 IPC.

In the case- People’s Union for Civil Liberties vs. Union of India[61] (also known as telephone tapping case), the Supreme Court pointed out that telephone tapping of any person without the authority of law is a serious breach of his right to privacy and violation of his right to personal liberty under Article 21. In the case- Selvi vs. State of Karnataka[62], it was held that— “Subjecting a person to the ‘narco analysis’, ‘lie detector test’ and Brain Electrical Activation Profile (BEAP) tests in an interlocutory manner violates prescribed boundaries of privacy. No victim of an offense can be compelled to undergo any of such tests. Such a forcible administration would be an unjustified intrusion into mental privacy.”[63]

10. Right to ecology and pollution-free environment

In the display of judicial activisms, the Supreme Court has also remained concerned about the environmental causes and violation of fundamental rights of individuals by those reasons and linked the obligations of the State to protect the same in lights of DPSPs under Articles 47, 48A and the Fundamental Duties of citizens in that regard under Article 51A(g) of the Constitution with Fundamental ‘Right to Life’ under Article 21. As the relations or interactions of human beings with ecology are so intertwined, and human civilization goes hand in hand with the very existence of the environment, the ‘right to quality life’ of human beings cannot be ensured without a pollution-free and healthy environment.

In the case- MC Mehta vs. Union of India[64], the Supreme Court recognized the right to a pollution-free environment falls under the right to life under Article 21. Subsequently, the Court also unfolded and broadened the relations of Article 21 with the environment in a series of landmark cases, and by several rulings, many rights associated with the environment have taken significant places under Article 21 by the blessings of the multiple writ petitions filed by the environmental activist MC Mehta in the Supreme Court raising various environmental causes. The Court issued necessary directions to protect those rights whenever necessary in many other cases as well and laid emphasis on the necessity of sustainable development and eco-friendly measures to save the environment and nature from all possible harms of the technological advancements.

11. Right to die

The right to life under Article 21 of the Constitution does not include the right to die; hence attempting to commit suicide is an offense under Section 309 of IPC. An assisted suicide and active euthanasia are not legal euthanasia can be made lawful only by legislation. The Constitution Bench of the Supreme Court in the case of Gian Kaur vs. State of Punjab[65] held that both euthanasia and assisted suicide are not lawful in India, and the Court overruled the two-judge bench decision in P Rathinam vs. Union of India[66]which struck down section 309 of the Indian Penal Code (attempt to suicide) as unconstitutional. However, the Supreme Court in the case- Aruna Ramchandra Shanbaug vs. Union of India[67] first time held that there is no statutory provision in our country as to the legal procedure for withdrawing life support given to a person in PVS (Permanent Vegetative State) or who is otherwise incompetent to take a decision in this connection. The Supreme Court held that passive euthanasia should be permitted in our country and further laid down the law/procedure in this connection which will continue to be the law until the Parliament makes a law on the subject.

In March 2018, a five-judge Constitution Bench of the Supreme Court in the case- Common Cause (A Registered Society) vs. Union of India[68] gave legal sanction to ‘passive euthanasia’, permitting ‘living will’ by patients on withdrawing medical support if they slip into an irreversible coma. The Supreme Court held that the right to die with dignity is a fundamental right. Still, ‘active euthanasia’ is not yet legalized in India.

12. Right of women against sexual harassment in workplaces

In the case- Vishakha vs. State of Rajasthan[69], the Supreme Court held that sexual harassment of women at the workplace is an encroachment upon the right to personal liberty of women, and hence it is a transgression of Article 21. The Court went ahead to formulate certain guidelines, known as ‘Vishakha guidelines’, in order to prevent the occurrence of this evil.

In a significant verdict of 2021 in the case- Jorawer Singh Mundy vs. Union of India[70], the Delhi High Court has held that although the Indian Constitution does not recognize ‘Right to be Forgotten’ as fundamental or any other Constitutional right and no existing law also does not confer any statutory right in that regard, the same should be construed to be a part of the right to life and personal liberty encompassed by Article 21 and also the ‘Right to Privacy’ as was held by Supreme Court in the KS Puttaswami’s case.

Right to Education (Article 21A)

In the case- Unni Krishnan JP vs. State of Andhra Pradesh[71], the Supreme Court recognized the ‘Right to Education’ as a fundamental right for being integral to Article 21. The Constitution (Eighty-sixth) Amendment Act, 2002 has inserted Article 21A. It provides that—

“The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

Pursuant to the Constitutional Amendment, the Right of Children to Free and Compulsory Education Act, 2009 was enacted by the Parliament. The right of a child should not be restricted only to free and compulsory education, but it should be extended to have quality education without discrimination on the ground of the child’s economic, social and cultural background. The right of a child to free and compulsory education has now become a part of the Fundamental Rights under Article 21A of the Constitution. The total indifference of the Governmental authorities leads to the violation of the Fundamental Rights of the children. It is the Constitutional obligation of the State to provide for free and compulsory education of children till they complete the age of 14 years. In a democratic society, the right to education is indispensable in the interpretation of the right to development as a human right. Thus, the right to development is also considered to be a basic human right.

In 2020, in a famous case- Anuradha Bhasin vs. Union of India[72], the Supreme Court held that the ‘Right to Internet’ is a fundamental right under Article 19(1)(a) of the Constitution and also related to ‘Right to Education’ and so many other corresponding fundamental rights.


Apart from the above-discussed rights, innumerable other rights have also been imported in the ever-expansive sweep of Article 21. Some of such rights include— the right to good health, right to food, water, education, medical care, and shelter, right to know or information, right of women to be treated with decency and dignity, right against solitary confinement, and other cruel and inhumane punishments, right against bar fetters and handcuffing, right to health and medical aid for workers, right to reputation, right to decent burial or cremation, right to social justice and economic empowerments, right to hearing, various rights of pavement and slum dweller, hawkers, right to the healthy ambiance in care homes, right of appeal from conviction, and so many.

Article 21 of the Indian Constitution and its manifold aspects and perspicuous ever extensive as well as ever inclusive nature has been portrayed in-depth in the preceding elaborate elucidations. It has also been depicted from this comprehensive analysis of numerous epoch-making judicial decisions of the Supreme Court and the other Constitutional Courts as well that how time and again the Judiciary has taken pioneering roles in discovering new horizons of the rights enshrined in Article 21 by employing judicial activisms and expanded its arena recognizing it as the cynosure of all fundamental and human rights, freedoms, dignity, and cornerstone of all underlying ethos of Constitutional democracy and the rule of law inherently conserved in the Constitution.

Therefore, it would not be exaggerated to assert that Article 21 embodies the foundational notions of the Indian Constitution, without which the robustness of republican and democratic frameworks of governance, Constitutional values, and their true essence and glory would have faded away. In the historic case- Kesavananda Bharati vs. State of Kerala[73], Article 21 was unerringly held to be part of the Basic Structure of the Constitution.

[1]1978 AIR  597

[2]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[3]94 U.S. 113 (1876)

[4]1981 AIR 746

[5]1986 AIR 180

[6]1991 AIR 1886

[7]AIR 2000 SC 988

[8]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[9]1956 AIR 108

[10]1983 AIR 1155

[11]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[12](2014) 9 SCC 737

[13]AIR 1980 SC 898

[14]VN Shukla’s Constitution of India, 13th Edition

[15]1950 AIR 27

[16]1978 AIR 597

[17]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[18]1976 AIR 1207

[19]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[20]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[21]1970 AIR 564

[22]1973 AIR 106

[23]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[24]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[25]1980 AIR 1579

[26]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[27]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[28]1982 AIR 710

[29]1979 AIR 1369

[30]1988 AIR 1531

[31]AIR 2012 SC 1485

[32]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[33](2006) 3 SCC 374

[34]1994 SCC (3) 569

[35]AIR 1997 SC 610

[36]AIR 1973 SC 947

[37]AIR 1980 SC 898

[38]1983 AIR 957

[39]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[40]1983 AIR 473

[41]1983 AIR 465

[42](2014) 3 SCC 1

[43]DD Basu- Introduction to The Constitution of India, 25th Edition

[44]AIR 1986 SC 467

[45]1967 AIR 1836

[46]AIR 1984 SC 802

[47]1986 AIR 180

[48]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[49]1983 AIR 1086

[50]1993 AIR 1960

[51]AIR 1997 SC 568

[52]1980 AIR 1579

[53]1966 AIR 424

[54]1963 AIR 1295

[55]AIR 2017 SC 4161

[56]AIR 2018 SC 4321

[57]AIR 2014 SC 563

[58]AIR 2014 SC 1863

[59]AIR 2018 SC 4898

[60]1985 AIR 1618

[61]AIR 1997 SC 568

[62]AIR 2010 1974

[63]DD Basu- Introduction to The Constitution of India, 25th Edition

[64]AIR 1987 SC 1086

[65]1996 AIR 946

[66]1994 AIR 1844

[67](2011) 4 SCC 454

[68]AIR 2018 SC 1665

[69]AIR 1997 SC 3011

[70]2021 SCC OnLine Del 2306

[71]1993 AIR 2178

[72](2020) SC 1725

[73]AIR 1973 SC 1461

Souvik Roychoudhury

An ambitious, earnest, and inquisitive 3rd Year Student of Law, hailing from West Bengal, India, pursuing BA.LL.B(Hons) course at SOA National Institute Law, SOA University, Bhubaneswar, Odisha- An avid lover of legal studies, research, and analysis, pertaining to diverse and dynamic areas of law- An assiduous writer unabashed in setting forth unbiased individual opinions based on own perspectives and perceptions, exploring different horizons of the different subjects of research - Special areas of interest include Indian Constitutional law, Criminal law, Human Rights and other areas of its similar kinds.