Right To Life And Personal Liberty

• Most Constitutions in the world have grown out of colonial conditions.
• In a colonial government the staple points were arbitrary punishments- imprisonments.
• This has also included arbitrary executions.
• In this backdrop, the right to life and personal liberty has grown to become a pivotal right in most constitutions.
• The Indian Constitution has been specifically drafted in a way to protect the individual from arbitrary state action, this type of drafting a provision has been taken from America.
   

Article 15, Draft Constitution, 1948

• No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.
• Draft Article 15 was debated in the Constituent Assembly on 6th December, 1948. It provided for the right to life and personal liberty.

Procedure Or Due Process?

•  No person shall be deprived of his life or personal liberty except according to procedure established by law........".then in my opinion, it will open a sad chapter in the history of constitutional law. Sir, the Advisory Committee on Fundamental Rights appointed by the Constituent Assembly had suggested that no person shall be deprived of his lifeor liberty without due process of law; and I really do not understand how the words "personal" and "according to procedure established bylaw" have been brought into article 15 by the Drafting Committee- Kazi Syed Karumudeen.
• If the words "according to procedure established by law" are enacted, there will be very great injustice to the law courts in the country, because as soon as a procedure according to law is complied with by a court, there will be an end to the duties of the court and if the court is satisfied that the procedure has been complied with, then the judges cannot interfere with any law which might have been capricious, unjust or iniquitous.
• The debate was largely between the procedure established by law from the Japanese Constitution and the term "Due Process of Law" as stated in the American Constitution.
• The use of " Due process" clause and its use by the American Supreme Court- Lochner case and Loving v. Virginia

Right To Life And Personal Liberty

• The provision as it stands today, does certainly offer a wide array of rights in it, albeit right to freedom of torture to right to sleep, right to dietary preference
• However, every discussion on this topic inevitably leads us to AK Gopalan and the concept of reading fundamental rights as water tight compartments or as reading them together.
• AK Gopalan primarily dealt with Art. 22 but Fazal Ali. J in his remarkably brilliant judgment proposed the idea of over lapping fundamental rights.
• The judgment also went onto discuss about hierarchy of rights as proposed by justice SS. Das, between explicit rights and derived rights.
• RC Cooper held that there is a possibility to read the rights together, and Maneka Gandhi went a step ahead and proved that the articles which can be located in both 19 and 21 have to stand the test of both the provisions.
• The interesting relationship between personal liberty and arbitrary detention.
• The cornerstone principle lies in the freedom from arbitrary state actions.
• In India, Art. 22 ( Preventive detention) follows Art. 21.
• Article. 22 prescribes the procedures to preventively detain.

Right To Life And Personal Liberty- Some Unanswered Questions And Progressive View

• The Courts still haven't answered about the hierarchy of rights and do they enjoy the same stature as the black and white provision of fundamental rights chapter?
• The other serious question which ahs to be considered is, even when the fundamental rights are suspended during emergency, is there a natural right that still prevails?
• Khanna J's much celebrated dissent took the position that even though Article 21 might have been validly suspended, it did not mean that the petitioners could not challenge the exercise of that power.
• The term personal liberty was debated in kharak singh, which we have seen in the previous sub module.

Dignity

• Dignity as a part of Art. 21 has been covered by the Indian Courts repeatedly and the origin for " Life is more than mere an animalistic existence" as used by the Court is more often done without any context- Munn v. Illinois
• The Courts have used the concept dignity in Ollga Tellis and Sunil Batra case.
• Interestingly Supreme Courts have invoked Right to live with Dignity in solitary confinement cases as well.

Taking Life

• Does right to life include right to take life?
• What about the suicide assisting pods which are legalised in Switzerland does it stand the test of Art. 21 in India?
• Passive Euthanasia? Active Euthanasia?
• Death Penalty by the State? Is it consistent with right to life and personal liberty?
• Abortion: Does it include the right of foetus at one hand and the mother on the hand?
• This has been a point of debate even today in Constitution Courts around the world.
• Courts primarily follow the trimester methods developed by Roe V. Wade.

Right To Privacy

• Right to privacy takes us to No.4 Harvard Law Review written by Justice. Brandies, he spoke about "right to be left alone". This was an article written way back in 1890.
• 11th of August 2015 is a important date in India, until then there was no Act relating to Aadhar and the Court was of the view that linking of Aadhar to every scheme is not valid.
• The Attorney General for India argued that there is no fundamental right to privacy and then the same matter was referred to a larger court was deciding.
• In India until then Right to privacy was a part of common law remedy and not as a fundamental right.
• Right to privacy- Every man's home is his castle- 4th amendment to US, no body can be searched without a warrant.
• This was primarily understood in the invasion of physical space.
• In Olmstead V. US- Related to bootlegging, and FBI did a phone tapping, Olmstead took the argument his privacy was violated. ( 1926)
• The majority judgement did not agree with the argument taken by Olmstead as the officials did not enter into his house.
• Justice. Brandies wrote a beautiful dissent on this and said it is a violation of privacy.
• Justice. Brandies spoke about technology and said " what you say in your closet, can be broadcasted throughout the world.

Katz v/s US ( 1946)

• KATZ was a bookie for bets.
• The FBI had tapped the phone and the bookie took the argument that his right to privacy has been violated.
• The State took the same argument and stated that we did not enter into your physical space.
• The Court this time did not agree with the argument and stated and held that it is a violation of privacy
• Griswold V. Connecticut- It related to the sale of contreceptives and it was an offence to sell it to married couples on the ground that, right to cohabitation is a part of fundamental right.
• The case in US also read about reading of pornography in private, the Court struck it down saying that what you do in your private space is absolutely up to the person.

Right To Privacy

• Physical privacy, informational privacy and decisional privacy
• Informational privacy relates to the information that you are being fed.
• Decisional privacy is matters such as abortions.
• Kharak Singh's case played a pivotal role in India's jurisprudence relating to privacy, and the court which went on to state that the activity was violative of privacy, but privacy is not a part of fundamental right. (It was a 8 judge bench)
• Auto shankar's case and his biography, the state prohibited him from publication as it would reveal secrets of the state.
• The Supreme Court would have none of it, and held that it is his right to publish an article and it cannot be sacrificed. In Malar Hospital Case, the case related to HIV positive patients right to marry against the bride's right to health.
• It was the argument that it is a part of Art. 19, 21, 25.
• It was held that this was a right which emanates from the silences of our Constitution and it is part of Our Constitution, the rights which the founding father has not envisioned is still a part of the Constitution.
• It was argued about the extensive use of Aadhar for Bank, for other issues when the card itself is optional according to Section 2 of the Aadhar Act.
• The Court although upheld the Aadhar Act, it argued serious issues relating to digital privacy.
• In the backdrop, of the judgement are our privacy protected? Without a Data protection Code.

Written By: Shashwata Sahu, Advocate, LL.M., KIIT School of Law