This Article throws light on Constitution of India with special Emphasis on
Article 21 reads as:
No person shall be deprived of his life or personal liberty except according
to procedure established by law.
This right has been held to be the heart of the Constitution, the most organic
and progressive provision in our living constitution, the foundation of our
Article 21 can only be claimed when a person is deprived of his life or personal liberty by the State as defined in Article 12. Violation of the
right by private individuals is not within the preview of Article 21.
Article 21 uses three crucial expressions, those are listed below:
- Right to life, and
- Right to personal liberty.
- Procedure established by law
Meaning And Concept of Right To Life
Everyone in the world has the right to life, liberty and the security of
person. This is the universal truth in the world and the right to life is
undoubtedly the most fundamental of all rights. All other rights add quality to
the life in question and depend on the pre-existence of life itself for their
operation. As human rights can only attach to living beings, one might expect
the right to life itself to be in some sense primary, since none of the other
rights would not have any value or utility without it. There would have been no
Fundamental Rights worth mentioning if Article 21 had been interpreted in its
original sense. This Article will examine the right to life as interpreted and
applied by the Supreme Court of India.
Article 21 applies to natural persons. The right is available to every person,
citizen or alien. Thus, even a foreigner can claim this right. It, however, does
not entitle a foreigner the right to reside and settle in India, as mentioned in
In the case of Kharak Singh v. State of Uttar Pradesh, 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 armored 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.
Right To Live with Human Dignity
In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with
the approval the above observations and held that the right to life included
the right to lead a healthy life so as to enjoy all faculties of the human body
in their prime conditions. It would even include the right to protection of a
persons tradition, culture, heritage and all that gives meaning to a mans
life. It includes the right to live in peace, to sleep in peace and the right to
repose and health.
Right Against Sexual Harassment at Workplace
Art. 21 guarantees the right to life right to life with dignity. The court in
this context has observed that:
The meaning and content of fundamental right guaranteed in the constitution of
India are of sufficient amplitude to encompass all facets of gender equality
including prevention of sexual harassment or abuse.
Sexual Harassment of women has been held by the Supreme Court to be violative of
the most cherished of the fundamental rights, namely, the Right to Life
contained in Art. 21.
In Vishakha v. State of Rajasthan[x], the Supreme Court has declared
sexual harassment of a working woman at her work as amounting to the violation
of rights of gender equality and rights to life and liberty which is a clear
violation of Articles 14, 15 and 21 of the Constitution. In the landmark
judgment, the Supreme Court in the absence of enacted law to provide for
effective enforcement of basic human rights of gender equality and guarantee
against sexual harassment laid down the following guidelines:
- All employers or persons in charge of workplace whether in the public or
private sector should take appropriate steps to prevent sexual harassment.
Without prejudice to the generality of this obligation they should take the
- Express prohibition of sexual harassment as defined above at the
workplace should be notified, published and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
- As regards private employers steps should be taken to include the
aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1946.
- Appropriate work conditions should be provided in respect of work,
leisure, health, and hygiene to further ensure that there is no hostile
environment towards women at workplaces and no employee woman should have
reasonable grounds to believe that she is
Disadvantaged in connection with her employment
- Where such conduct amounts to specific offenses under I.P.C, or under
any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority.
- The victims of Sexual harassment should have the option to seek transfer
of perpetrator or their own transfer.
Right to Reputation
Reputation is an important part of ones life. It is one of the finer graces of
human civilization that makes life worth living. The Supreme Court referring to D.F.
Marion v. Minnie Davis in Smt. Kiran Bedi v. Committee of Inquiry held
that good reputation was an element of personal security and was protected by
the Constitution, equally with the right to the enjoyment of life, liberty, and
property. The court affirmed that the right to enjoyment of life, liberty, and
property. The court affirmed that the right to enjoyment of private reputation
was of ancient origin and was necessary to human society.
Right To Livelihood
To begin with, the Supreme Court took the view that the right to life in Art. 21
would not include the right to livelihood. In ReSant Ram, a case which arose
before Maneka Gandhi case, where the Supreme Court ruled that the right to
livelihood would not fall within the expression life in Article 21. The
court said curtly:
The right to livelihood would be included in the freedoms enumerated in Art.19,
or even in Art.16, in a limited sense. But the language of Art.21 cannot be
pressed into aid of the argument that the word life in Art. 21 includes livelihood also.
Right to Shelter
In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme
Court had considered and held that the right to shelter is a fundamental right
available to every citizen and it was read into Article 21 of the Constitution
of India as encompassing within its ambit, the right to shelter to make the
right to life more meaningful.
The Court observed that:
Shelter for a human being, therefore, is not mere protection of his life and
limb. It is however where he has opportunities to grow physically, mentally,
intellectually and spiritually. Right to shelter, therefore, includes adequate
living space, safe and decent structure, clean and decent surroundings,
sufficient light, pure air and water, electricity, sanitation and other civic
amenities like roads etc. so as to have easy access to his daily avocation. The
right to shelter, therefore, does not mean a mere right to a roof over ones
head but right to all the infrastructure necessary to enable them to live and
develop as a human being.
Right to Medical Care
In Parmananda Katar v. Union of India, the Supreme Court has very
specifically clarified that preservation of life is of paramount importance. The
Apex Court stated that once life is lost, status quo ante cannot be restored.
It was held that it is the professional obligation of all doctors (government or
private) to extent medical aid to the injured immediately to preserve life
without legal formalities to be complied with the police.
Article 21 casts the obligation on the state to preserve life. It is the
obligation of those who are in charge of the health of the community to preserve
life so that the innocent may be protected and the guilty may be punished. No
law or state action can intervene to delay and discharge this paramount
obligation of the members of the medical profession.
Right to Clean Environment
The Right to Life under Article 21 means a life of dignity to live in a
proper environment free from the dangers of diseases and infection. Maintenance
of health, preservation of the sanitation and environment have been held to fall
within the purview of Article 21 as it adversely affects the life of the
citizens and it amounts to slow poisoning and reducing the life of the citizens
because of the hazards created if not checked.
The following are some of the well-known cases on the environment under
- In M.C. Mehta v. Union of Indi (1988), the Supreme Court ordered the
closure of tanneries that were polluting water.
- In M.C. Mehta v. Union of India (1997), the Supreme Court issued
several guidelines and directions for the protection of the Taj Mahal, an
ancient monument, from environmental degradation.
Right to Know or Right to Be Informed
Holding that the right to life has reached new dimensions and urgency the
Supreme Court in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt.
Ltd., observed that if democracy had to function effectively, people must have
the right to know and to obtain the conduct of affairs of the State.
In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that
there was a strong link between Art.21 and Right to know, particularly where
secret government decisions may affect health, life, and livelihood.
Reiterating the above observations made in the instant case, the Apex Court
in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express
Newspapers, ruled that the citizens who had been made responsible to protect the
environment had a right to know the government proposal.
Right to Education
The right to education Flows directly from the right to Life, and the right to
education being concomitant to the fundamental rights, the state is under a
CONSTITUTIONAL mandate to provide educational institutions at all levels for the
benefits of the citizens.
Mohini jain and the state of Karnataka.
Mohini Jain v. State of Karnataka, a 1989 Supreme Court of India case,
occurred when the Government of Karnatak issued a notification that permitted
the private medical colleges in the State of Karnatak to charge
exorbitant tuition fees from the students admitted other than the 'Government
seat quota'. The Supreme Court of Indi observed that mention of 'life and
personal liberty' in Article 21 of the Constitution automatically implies
some other rights, those are necessary for the full development of the
personality, though they are not enumerated in Part III of the
Constitution. Education is one such factor responsible for overall development
of an individual and therefore, right to education is integrated in Article 21
of the Constitution.
The meaning of the term personal liberty was considered by the Supreme Court
in the Kharak Singhs case, which arose out of the challenge to
Constitutional validity of the U. P. Police Regulations that provided for
surveillance by way of domiciliary visits and secret picketing. Oddly enough
both the majority and minority on the bench relied on the meaning given to the
term personal liberty by an American judgment (per Field, J.,) in Munn v
Illinois, which held the term life meant something more than mere animal
existence. The prohibition against its deprivation extended to all those limits
and faculties by which the life was enjoyed.
This provision equally prohibited the mutilation of the body or the amputation
of an arm or leg or the putting of an eye or the destruction of any other organ
of the body through which the soul communicated with the outer world. The
majority held that the U. P. Police Regulations authorizing domiciliary visits
[at night by police officers as a form of surveillance, constituted a
deprivation of liberty and thus] unconstitutional. The Court observed that the
right to personal liberty in the Indian Constitution is the right of an
individual to be free from restrictions or encroachments on his person, whether
they are directly imposed or indirectly brought about by calculated measures.
necessarily lost as an incident of imprisonment.
The Supreme Court has held that even lawful imprisonment does not spell farewell
to all fundamental rights. A prisoner retains all the rights enjoyed by a free
citizen except only those.
Right to Privacy
As per Blacks Law Dictionary, privacy means right to be let alone; the right of
a person to be free from unwarranted publicity; and the right to live without
unwarranted interference by the public in matters with which the public is not
Although not specifically referenced in the Constitution, the right to privacy
is considered a penumbral right under the Constitution, i.e. a right that has
been declared by the Supreme Court as integral to the fundamental right to life
and liberty. Right to privacy has been culled by the Supreme Court from Art. 21
and several other provisions of the constitution read with the Directive
Principles of State Policy. Although no single statute confers a crosscutting horizontal right to privacy; various statutes contain provisions that either
implicitly or explicitly preserve this right.
For the first time in Kharak Singh v. State of U.P question whether the
right to privacy could be implied from the existing fundamental rights such as
Art. 19(1)(d), 19(1)(e) and 21, came before the court. Surveillance under
Chapter XX of the U.P. Police Regulations constituted an infringement of any of
the fundamental rights guaranteed by Part III of the Constitution. Regulation
236(b), which permitted surveillance by domiciliary visits at night, was held
to be in violation of Article 21.
A seven-judge bench held that:
the meanings of the expressions life and personal liberty in
Article 21 were considered by this court in Kharak Singhs case. Although
the majority found that the Constitution contained no explicit guarantee of a
right to privacy, it read the right to personal liberty expansively to include
a right to dignity. It held that an unauthorized intrusion into a persons home
and the disturbance caused to him thereby, is as it were the violation of a
common law right of a man -an ultimate essential of ordered liberty, if not of
the very concept of civilization
Right to Free Legal Aid & Right to Appeal
In M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding
free legal aid as an integral part of fair procedure the Court explained that
the two important ingredients of the right of appeal are; firstly, service of a
copy of a judgement to the prisoner in time to enable him to file an appeal and
secondly, provision of free legal service to the prisoner who is indigent or
otherwise disabled from securing legal assistance. This right to free legal aid
is the duty of the government and is an implicit aspect of Article 21 in
ensuring fairness and reasonableness; this cannot be termed as government
In other words, an accused person at lease where the charge is of an offense
punishable with imprisonment is entitled to be offered legal aid, if he is too
poor to afford counsel. Counsel for the accused must be given sufficient time
and facility for preparing his defense. Breach of these safeguards of a fair
trial would invalidate the trial and conviction.
Right to Speedy Trial
In Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the
notice of the Supreme Court that an alarming number of men, women, and children
were kept in prisons for years awaiting trial in courts of law. The Court took a
serious note of the situation and observed that it was carrying a shame on the
judicial system that permitted incarceration of men and women for such long
periods of time without trials.
The Court held that detention of under-trial prisoners, in jail for a period
longer than what they would have been sentenced if convicted, was illegal as
being in violation of Article of 21. The Court, thus, ordered the release from
jail of all those under-trial prisoners, who had been in jail for a longer
period than what they could have been sentenced had they been convicted
Procedure Established By Law
The expression procedure established by law has been the subject matter of
interpretation in a catena of cases. A survey of these cases reveals that courts
in the process of judicial interpretation have enlarged the scope of the
expression. The Supreme Court took the view that procedure established by law in
Article 21 means procedure prescribed by law as enacted by the state and
rejected to equate it with the American due process of law.
But, in Maneka Gandhi v Union of India the Supreme Court observed that the
procedure prescribed by law for depriving a person of his life and personal
liberty must be right, just and fair and not arbitrary, fanciful and
oppressive, otherwise it would be no procedure at all and the requirement of
Article 21 would not be satisfied. Thus, the procedure established by law
has acquired the same significance in India as the due process of law
clause in America.
Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration has
said that though our Constitution has no due process clause but after
Maneka Gandhis case the consequence is the same, and as much as such
Article 21 may be treated as counterpart of the due process clause in American
Recently the Supreme Court has dealt with an increasing number of people
sentenced to death for bride-burning. In December 1985 the Rajasthan
High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death
for two separate cases of killing two young women by setting them on fire. In an
unprecedented move, the court ordered both prisoners to be publicly executed.
In a response to a review petition by the Attorney General against this
judgment, the Supreme Court in December 1985 stayed the public hangings,
observing that a barbaric crime does not have to be met with a barbaric
penalty. The Court observed that the execution of death sentence by public
hanging is a violation of Article 21, which mandates the observance of a just,
fair and reasonable procedure.
Thus, an order passed by the High Court of Rajasthan for public hanging was set
aside by the Supreme Court on the ground inter alia, that it was violative of
article 21. In Sher Singh v State of Punjab, the Supreme Court held that
unjustifiable delay in execution of death sentence violates art 21.
The Supreme Court has taken the view that this article read as a whole is
concerned with the fullest development of an individual and ensuring his dignity
through the rule of law. Every procedure must seem to be reasonable, fair and
just. The right to life and personal liberty has been interpreted widely to
include the right to livelihood, health, education, environment and all those
matters that contributed to life with dignity.
The test of procedural fairness has been deemed to be one that is commensurate
to protecting such rights. Thus, where workers have been deemed to have the
right to public employment and its concomitant right to livelihood, a hire-fire
clause in favor of the State is not reasonable, fair and just even though the
State cannot affirmatively provide a livelihood for all.
Under this doctrine, the Court will not just examine whether the procedure
itself is reasonable, fair and just, but also whether it has been operated in a
fair, just and reasonable manner. This has meant, for example, the right to
speedy trial and legal aid is part of any reasonable, fair and just procedure.
The process clause is comprehensive and applicable in all areas of State action
covering civil, criminal and administrative action.
The Supreme Court of India in one of the landmark decision in the case of Murli
S. Deora v. Union of India observed that the fundamental right guaranteed under
Article 21 of the Constitution of India provides that none shall be deprived of
his life without due process of law. The Court observed that smoking in public
places is an indirect deprivation of life of non-smokers without any process of
law. Taking into consideration the adverse effect of smoking on smokers and
passive smokers, the Supreme Court directed the prohibition of smoking in public
It issued directions to the Union of India, State Governments and the Union
Territories to take effective steps to ensure prohibition of smoking in public
places such as auditoriums, hospital buildings, health institutions etc. In this
manner, the Supreme Court gave a liberal interpretation to Article 21 of the
Constitution and expanded its horizon to include the rights of non-smokers.
Further, when there is an inordinate delay in the investigation – it affects the
right of the accused, as he is kept in tenterhooks and suspense about the
outcome of the case. If the investigating authority pursues the investigation as
per the provisions of the Code, there can be no cause of action. But, if the
case is kept alive without any progress in any investigation, then the
provisions of Article 21 are attracted and the right is not only against actual
proceedings in court but also against police investigation.
The Supreme Court has widened the scope of procedure established by law and
held that merely a procedure has been established by law a person cannot be
deprived of his life and liberty unless the procedure is just, fair and
reasonable. It is thus now well established that the procedure established by
law to deprive a person of his life and personal liberty, must be just, fair
and reasonable and that it must not be arbitrary, fanciful or oppressive, that
the procedure to be valid must comply with the principles of natural justice.
Indian judiciary provided excellent elucidation to right to life and personal
liberty under Article 21 of the constitution. The Supreme Court not only
explained the instinctive human qualities of the Article 21 but also established
certain procedure to implement them. This makes the Rule of Law magnificent and
meaningful. Each interpretation or the procedure laid down with regard to
Article 21 is particularly aimed to achieve justice mentioned in the
Preamble through all round development of the citizens. Each explanation
provided attempts to fulfil the basic needs of the human being while
safeguarding ones dignity.
It is difficult to find such noble, lofty, dignified illustrations and
interpretations as provided by the Supreme Court of India to the concept of
right to life and personal liberty elsewhere in the world. The Indian concept
did not confine the right of life and personal liberty only to ones physical
entity. It means to strive for all round development of a person so that justice
Written by Alefiya Kurabarwala of Seventh Semester, Student at Mohanlal
Sukhadiya University College Of Law, Udaipur, Rajasthan.