The framers of Indian constitution were deeply influenced by the international document i.e. Universal Declaration of Human Right (UDHR) 1948 which had a great impact on the drafting of Indian constitution. Article 9 of UDHR provides for ‘protection of life and personal liberty’ of every person. As India was signatory to the declaration, the constituent Assembly adopted the similar provision as a fundamental right therein. Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right.
Article 21, – Protection of Life and Personal Liberty : – No person shall be deprived of his life or personal liberty except according to procedure established by law.
In the case of Munn v. Illinois, 94 U.S. 113 (1876), the Court referred to the observation of Justice Field, wherein he stated that by the term ‘life’ as here used something more is meant than a mere animal existence. Thus, it embraces within itself not only the physical existence but also the quality of life.
Concept of Right to Life And Personal Liberty & Its Changing Dimensions:
Procedure Established by law: (This Doctrine is originated under British Constitution and India follows it.)
As per this concept, any right of any person can be taken away by law, but, only one situation to take rights from the people and that condition lies in the name itself which is the system established by law which means proper procedure shall be followed. This principle has a main flaw. It does not asses if the laws made by Parliament are fair, just, and not arbitrary. Procedure established by law states a law duly enacted is valid even if it’s different to principles of justice and equity. Procedures that are followed strictly are established by law that may increase the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. Thus, Procedure established by law protects the individual against the arbitrary action of only the executive.
Due Process of Law: (This Doctrine is originated under the US Constitution).
This doctrine not only checks if there is a law to deprive the life of personal liberty of a person, but also see whether the law made is fair, just and not arbitrary. If the Supreme Court comes to know that any law as unfair, it will declare it as null and void. This doctrine leads to more fair treatment of individual rights. It gives the judiciary to judge the fundamental fairness, justice, and liberty of any legislation. Thus, Due process protects the individual against the arbitrary action of both executive and legislature. In India, there is no mention of the word ‘Due Process. This concept is based on three main things: Justice, Equity and Good Conscience. But in the case of Maneka Gandhi vs. Union of India, the Supreme Court has overruled the A.K.Gopalan’s case and held that procedure established by law meant procedure that eventually was reasonable, fair and just. The decision rendered avoid the plain and simple meaning of procedure established by law’ and introduced for the first time the grand canon of ‘due process of law’
The Traditional Approach of the Supreme Court, It is hard to appreciate fully the extent of development of right to life without an overview of the traditional approach. Article 21 lays down that no person shall be deprived of his life and personal liberty except according to the procedure established by law. It was this procedure established by law that was first questioned and interpreted by the Supreme Court of India in the case of A.K. Gopalan v. State of Madras, 1950, the validity of the Preventive Detection Act. 1950 was challenged. The main question was whether Art. 21 envisaged any procedure laid down by a law enacted by the legislature, or the procedure should be fair and reasonable. On behalf of the Appellant, an attempt was made to persuade the Supreme Court to hold that the courts can adjudicate upon the reasonableness of the Preventive Detection Act, 1950, or for that matter any law depriving a person his personal liberty. Three arguments were presented from the Appellant side and the arguments were: (1) The word law in Art. 21 does not mean merely enacted law but incorporates principle of natural justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these principles laid down by it. (2) The reasonableness of the law of preventive detention ought to be judged under Art. 19. (3) The expression procedure established by law introduces into India the American concept of procedural due process which enables the Courts to see whether the law fulfils the requisite elements of a reasonable procedure. A.K. Gopalan v. State of Madras held the field for almost three decades, i.e., 1950 to 1977. This case settled two major in points in relation to Art. 21. One, Arts. 19, 21 and 22 are mutually exclusive and independent of each other. Two, a law affecting life or personal liberty of a person could not be declared unconstitutional merely because it lacked natural justice or due process. The legislature was free to lay down any procedure for this purpose. As interpreted in A.K. Gopalan, Art. 21 provided no protection or immunity against competent legislative action. It gave final say to the legislature to determine what was going to be procedure to curtail the personal liberty of a person in a given situation and what procedural safeguards he would enjoy. The Supreme Court de linked Art. 19 from Art. 21 and 22. This view led to bizarre decision at that time. Though, in course of time this rigid view came to be softened and the beginning of the new trend was to be found in R.C. Cooper v. Union of India,1970 also popularly known as the Bank Nationalization case, the Supreme Court applied Art.19(1) (f) to a law enacted under Art.31(2), to view the validity of the law. Before this case, these two articles were considered mutually exclusive of each other. This case had such an impact on the view of the Supreme Court regarding the mutual exclusiveness of fundamental rights. 2.3 Aspect of Personal Liberty:
Maneka Gandhi v. UOI, 1976 is a landmark case of the post-emergency period. This case shows how liberal tendencies have influenced the Supreme Court in the matter of interpreting Fundamental Rights, Particularly Art. 21, A great Transformation has come about in the judicial attitude towards the protection of personal liberty after the traumatic experiences of the emergency during 1975-77 when personal liberty had reached its lowest. The period characterized as the darkest period in Indian Constitutional history As becoming clear from the Supreme Court pronouncement in A.D.M Jabalpur v. Shiva Kant Shukla,1976. Popularly known as Habeas Corpus Case and has been severely criticized by scholars in India. This case showed that 21 as interpreted in Gopalan could not play any role in proving any protection against any harsh law seeking to deprive a person of his life or personal liberty, after an emergency, it was realized that the power to order preventive detention was misused by the official machinery during the emergency and something should be done so that such a situation might not be repeated in future. Accordingly, Art.359 of the constitution was amended by 44th Amendment to nullify some amendment made in the 42nd, (Indira Constitution) thus by the 44th amendment Art.20 & 21 never be suspended even during an emergency and other fundamental rights won’t suspend automatically. It needs separate order by the president. In fact, this case has acted as an accelerating agent for the transformation of the judicial view on Art.21. The court has reinterpreted Art.21 and practically overruled the Gopalan case which can be regarded highly creative judicial pronouncement on the part of the Supreme Court. Since the Maneka Gandhi case, the Supreme Court has given Art. 21, broader and broader interpretation so as to imply many more fundamental rights. In course of time, Art.21 has proved to be a very fruitful source of rights of the people. In Maneka Gandhi case, order under S. 10(3)(c) of the Passport Act which authorizes the passport authority to impound passport if it deems it necessary to do so in the interest of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country, or in the interest of the general public was challenged. Maneka Gandhi’s passport was impounded by the Central Government under Passport Act in the interest of the general public. a writ petition challenging the order on the ground of violation of her fundamental rights under Art.21. One of the major grounds of challenge was that the order impounding the passport was null and void as it had been made without affording her an opportunity of being heard in her defence. The leading opinion in the Maneka Gandhi case was pronounced by Justice Bhagwati. The Court reiterated the proposition that Art. 14, 19, and 21 are not mutually exclusive. This means that a law prescribing a procedure for depriving a person of ‘personal liberty has to meet the requirement of Art. 19. Also, the procedure established by law in Art. 21 must answer the requirement of Art. 14 of the Constitution of India. The expression of personal liberty in Art. 21 were given an expansive interpretation. The court emphasized that the expression of personal liberty is of widest amplitude covering a variety of rights that go to constitute the personal liberty of man. The expression ought not to be read in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Art. 19. The attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by the process of judicial construction, and hence right to travel abroad falls under Art. 21. The most significant aspect of the case is the reinterpretation of the expression procedure established by law used in Art. 21. Art. 21 would no longer mean that law could prescribe some semblance of procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that a procedure must satisfy certain requisites in the sense of being just, fair and reasonable. The process cannot be arbitrary, unfair or unreasonable. Thus, the procedure in Art.21 must be right and just and fair and not arbitrary, fanciful and oppressive. The Court reached it decision by holding that Arts. 21, 19 and 14 are mutually inclusive. Maneka Gandhi case completely overrides the Gopalan’s view which had held the field for nearly three decades. Since the Maneka Gandhi case, the Supreme Court has again underlined the theme that Art. 14, 19 and 21are not mutually exclusive, but they sustain, strengthen and nourish each other. It has brought the Fundamental right of life and personal liberty into prominence which is now regarded as the Heart of Fundamental Rights. In quite a few cases in the post-Maneka era, the Supreme Court has given content to the concept of procedural fairness in relation to personal liberty. By establishing a nexus between Arts. 14, 19 and 21, it is now clearly established that the procedure contemplated by the Art. 21 must answer the test of reasonableness. Thus, Art. 21 emerged as the Indian version of the American concept of due process of law and has come to the source of many substantive rights and procedural safeguards to the people.
This Constitution guarantees to every citizen of India full freedom and liberty from any sort of harassment, repression or exploitation from any government or any authority of the government and hence this constitution assures to every citizen of India free, fearless and happy life with dignity of every person.
Right to Live with Human Dignity
The Supreme Court in the case of Maneka Gandhi vs. Union of India held that right to life embodied in Article 21 of the Indian Constitution, is not merely a physical right but it also includes within its ambit, the right to live with human dignity.
In the case of Francis Coralie vs. Union Territory of Delhi, 1981 it was held that right to live includes the right to live with human dignity with bare necessities of life such as: Adequate nutrition, Clothing, and Shelter over the head and facilities for: Reading, Writing, and Expressing oneself in diverse form.
Bandhua Mukti Morcha v. Union of India,1997. Characterizing Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”
Peoples Union for Democratic Rights v. Union of India,1982 held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.
In the case of Kharak Singh v. State of Uttar Pradesh, 1963 the Supreme Court quoted and held that:
By the term “life” as here used something more is meant than mere animal existence. The inhibition (interference/restrain) against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation (removes) of the body by amputation of an armour leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
(Also right to education also)
The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P.1993 and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad. Maneka gandhi
(2) The right to privacy. puutuswamy
(3) The right against solitary confinement Sunil Bhatra Case.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death. leelawathi
(8) The right against public hanging. parmananths katara
(9) Doctors assistance
It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life.
As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it.
Through various judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under:
(a) Right to pollution free water and air. Taj mahal case mc Mehta v UOI.
(b) Protection of under-trial. Sunil Batra Case.
(c) Right of every child to a full development. MC Mehta (human trafficking).
(d) Protection of cultural heritage. MC Mehta monumental taj mahal oil refineries, taj trapezium.
Right against sexual harassment at workplace
In the case of Vishakha vs. the State of Rajasthan,1997, the court declared that sexual harassment of a working woman workplace amounts to a violation of rights under Articles 14, 15 and 21 of the Indian Constitution. The guidelines have been laid down in order to protect the rights of a woman at workplace
Following which the Sexual Harassment of woman at Workplace (prevention, prohibition, and Redressal) Act, 2013 was passed
Right to know or right to be informed
It has been recognized by the Courts, in the case of Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers, 1989 that right to know falls under the scope of Article 21 of the Indian Constitution as an essential ingredient of participatory democracy.
It was in the case of Essar Oil Ltd. v. Halar Utkarsh Samiti,2004 case that the Supreme Court considered Right to know is an offshoot of article 21 and not just article 19(1)(a).
Right of prisoners
The protection under Article 21 is also available to those who have been convicted of any offense. Even though he is deprived of his other rights, but he is entitled to the rights guaranteed under Article 21.
In the case of Sunil Batra vs. Delhi Administration,1979 the petitioner sentenced to death on charges of murder and robbery was held in a solitary confinement since the date of his conviction by the session court, pending his appeal before the High Court.
The petitioner filed a writ petition before the Supreme Court, contending that solitary confinement itself is a substantive punishment under the Indian Penal Code, 1860, and only the Courts had the authority to impose such punishments and not the jail authorities, thus, it violates Article 21.
The Supreme Court accepted his contentions and held that the conviction of a person for a crime does not reduce him to non-person vulnerable to a major punishment imposed by jail authorities without observance of due procedural safeguards, thus violative of Article 21.
Right against illegal detention (RIGHTS OF PRISONERS – SHORT QUES)
In the case of D.K. Basu v. State of West Bengal, 1997 the Supreme Court laid down the guidelines to be followed by the Central and the State investigating authorities in all cases of arrest and detention.
Right to Legal Aid; Right to speedy trial (Part of art 39B- free legal aid and assistance – dpsp)
It has been held, in the case of Hussainara Khatoon vs. State of Bihar, 1979 that right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty, indigence (EXTREME POVERTY) or incommunicado situation (SAMPARK VARJIT) is a part of fair, just and reasonable procedure under Article 21 of the Indian Constitution. It was also held that he right to speedy trial is an inalienable right under Article 21 of the Indian Constitution.
Right to compensation
For the first time in Nilabati Behera v State of Orissa (1960), The Supreme Court directed the respondent – State of Orissa to pay the sum of Rs.1,50,000 to the petitioner and a further sum of Rs.10,000 as to be paid to the Supreme Court Legal Aid Committee. The Supreme Court held right to compensation as a fundamental right under Article 21 of the Constitution.
In the case of Rudal Shah vs. the State of Bihar (1983), the petitioner was kept in jail for 14 years even after his acquittal. He was released only after a writ of habeas corpus was filed on his behalf. The Supreme Court held that under Article 21, the petitioner is entitled to an award of INR 35,000 as compensation against the State of Bihar as he was kept in the jail for 14 long years after his acquittal.
Disclosure of dreadful diseases
No law has yet been enacted in India defining the rights and duties of HIV infected persons. Therefore, to fill in the legal gap, the Court has laid various decisions.
In the case of Mr. X. vs. Hospital Z, 1998, the issue in consideration was whether the disclosure made by a doctor to the fiancé of a person suffering from HIV positive, amounts to infringement under Article 21? The Court herein opined that the lady proposing to marry such a person is entitled to all human rights, which are available to any human being and the right to be told that person is suffering from a deadly disease which is sexually communicable, is her right to life guaranteed under Article 21.
The court also held that when two fundamental rights, namely the right to privacy and that if life clashes the right which would advance the public morality or public interest would alone be enforced through the process of Court.
Right to die with dignity
Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting to commit suicide? There has been difference of opinion on the justification of this provision to continue on the statute book.
This question came for consideration for first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal, 1986. In this case the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the hon’ble High Court struck down Section 309 of the IPC that provides punishment for attempt to commit suicide by a person as unconstitutional.
In P. Rathinam v. Union of India,1994, a two judge Division Bench of the Supreme Court, took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court supporting the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking. The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State of Punjab, 1996. The question before the court was that if the principal offence of attempting to commit suicide is void as being unconstitutional vis-à-vis Art.21, then how abetment can thereof be punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having been declared unconstitutional, any person abetting the commission of suicide by another is merely assisting in the enforcement of his fundamental right under Art. 21. The court observed further:
“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”
The Court held that the right to life under Article 21 of the Constitution does not include the right to die. But later in Aruna Ramchandra Shanbaug v. Union of India, 2012, the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court. The difference between active and passive euthanasia is that in active euthanasia something is done to end the patient’s life while in passive euthanasia something is not done that would have preserved the patient’s life. (vegetative state- cant move just lying like a vegetable) (EUTHANASIA – MERCY KILLING – ACTIVE (INJECTION, DRIP IN BODY- POISNOUS/LETHAL TO END LIFE) AND PASSIVE (TO REMOVE THOSE)) – passive euthanasia not granted in this case, she died after 2 years of decision because no relatives were ther – so consent asked to hospital authorities – caretaker and they denied
Supreme Court of India held in the case of Common Cause vs. Union of India (2018) that right to die with dignity is a fundamental right. The right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent. (( you can write down your living will if sound and major- eg- if I am terminally ill, then these organs should be donated, last rites and rituals not to be done etc, proxy caregiver (nominated representative introduced- the person ensuring the execution of will- given in Mental health care act) ))
(Mental Health Care Act 2017: Living will/Advance Directive/Nominated representative) (talks about mental illness and all) – Sec 309 is talked about here.
(Right to health)
Paschim Banga v. Khet Majdoor Samiti v. St of West Bengal, 1996
Katara case
Accident victims should be given immediate treatments rather than waiting for legal formalities to be completed
Right to livelihood:
The court in Board of Trustees of the Port of Bombay v. Dilip kumar Raghavendranath Nandkarni,1983 came to hold that “the right to life” guaranteed by Article 21 includes “the right to livelihood”.
SLUM DWELLERS Case : In Olga Tellis v. Bombay Municipal Corp,1985 the Supreme Court has made a significant pronouncement on the impact of Art. 21 on urbanization. In this case the Supreme Court accepted the plea that the right to life guaranteed by Art. 21 include the right to livelihood. The Supreme Court ruled that the eviction of persons from pavement or a slum not only results in deprivation of shelter but would also inevitably lead to deprivation of their means of livelihood which means deprivation of their life.
Sentence of death –Rarest of rare cases
In Jagmohan v. State of U.P,1972 the Supreme Court had held that death penalty was not violative of articles 14, 19 and 21, it was said that the judge was to make the choice between death penalty and imprisonment for life on the basis of circumstances, facts and nature of crime brought on record during trail. Therefore, the choice of awarding death sentence was done in accordance with the procedure established by law as required under article 21.
However, in Bachan Singh v. State of Punjab, 1980 the leading case of on the question, a constitution bench of the supreme court explained that article 21 recognized the right of the state to deprive a person of his life in accordance with just, fair and reasonable procedure established by a valid law .It was further held that death penalty for the offence of murder awarded under section 302 of I.P.C did not violate the basic feature of the constitution.
Right to get Pollution Free Water and Air
In Subhas Kumar v. State of Bihar,1991 it has held that a Public Interest Litigation is maintainable for insuring enjoyment of pollution free water and air which is included in ‘right to live’ under Art.21 of the constitution. The court observed:
“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Right to Clean Environment
In M.C. Mehta v. Union of India(1988), the Supreme Court ordered closure of tanneries that were polluting water.
In M.C. Mehta v. Union of India(1997), the Supreme Court issued several guideline and directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation.
In Vellore Citizens Welfare Forum v. Union of India,1996 the Court took cognizance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water and agricultural land. The Court issued several directions to deal with the problem.
In M.C. Mehta v. Union of India (2006), the Court held that the blatant and large-scale misuse of residential premises for commercial use in Delhi, violated the right to pollution free environment. Taking note of the problem the Court issued directives to the Government on the same.
In Murli S. Deora v. Union of India,2001 the persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of act of smokers. Right to Life under Article 21 is affected as a non-smoker may become a victim of someone smoking in a public place.
Right Against Noise Pollution
In Re: Noise Pollution, the case was regarding noise pollution caused by obnoxious levels of noise due to bursting of crackers during Diwali.
(Public Nuicanse in Lawof Torts) –
KK Majestic Church v. welfare association
Mufti Sayid v st of Maharashtra – Azan on Loudspeakers is an essential part of the religion but not on loudspeakers
Right to Privacy
Kharak Singh v. State of U.P. 1962 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.
Govind v. State of Madhya Pradesh, 1975 The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions holding that:
“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that are subjected to surveillance.”
The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Mathew J. observed in the instant case,
“The right to privacy will, therefore, necessarily, have to go through a process of case by case development. Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them that one can characterize as a fundamental right, we do not think that the right is absolute…..
…… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest”
Justice K.S. Puttaswamy (Retd) vs Union of India, 2017 is a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The Government of India defended the rule stating that authentication through Aadhaar, by scanning one’s fingerprint or iris, enlivened the Fundamental Right to Life under Article 21 of the Constitution. After all, to live with dignity and privacy under Article 21, Indians ought to be able to access food, employment and other welfare benefits, the State reasoned. No citizen could have a “reasonable expectation of privacy” over their fingerprints or iris-scans as they were not intimate aspects an individual’s life, the State said. Once again, the question before the Court was whether the State could attempt to ensure access to welfare benefits and subsidies to protect one’s dignity, by overriding one’s right to privacy and dignity. Yet, the court upheld the rule mandating Aadhaar for welfare benefits. In the court’s words, they were concerned with “… the balancing of the two facets of dignity”. (9 jugde bench- court overruled MP Sharma v. , Khadak Singh v. in this as they didn’t expressly accepted right to privacy)
PUCL v. Union of India, 1997: Telephone tapping case
Right against Handcuffing: Prem Shankar v. Delhi Administration, the Supreme Court struck down the Rules that provided that every under-trial who was accused of a non-bailable offence punishable with more than three years prison term would be routinely handcuffed. The Court ruled that handcuffing should be resorted to only when there was “clear and present danger of escape” of the accused under -trial, breaking out of police control.
In Sunil Batra v. Delhi Administration, 1979, the petitioner was sentenced to death by the Delhi session court and his appeal against the decision was pending before the high court. He was detained in Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement. It was contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law and it could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the argument of the petitioner and held that imposition of solitary confinement on the petitioner was violative of Article 21.Right against Solitary Confinement,custodial violence
In the case of Ramleela Maidan Incident, 2012 Justice B.S. Chauhan in his opinion wrote that when police disturbed the crowd at night at 1:00 a.m., their right to sleep was violated. He held that right to sleep forms an essential part of Article 21 which guarantees personal liberty and life to all. Sleep forms an essential part of living a peaceful life, hence it is a fundamental right.
Landmark Latest Cases under Art.21:
SC (Indian Young Lawyer Association Vs. State Of Kerala, 2018) allows women entry to Sabarimala temple, says exclusionary practices violate right to worship under Art. 25, 14, and 21. Rules disallowing women in Sabarimala are unconstitutional and violative of Article 21,
Supreme Court Struck down (Joseph Shine v UOI (2017))- Victorian era Section 497 (Adultery) of IPC as Unconstitutional, Plea filed in the Supreme Court challenging the constitutional validity of Section 497 of IPC, by an NRI from Kerala, Joseph Shine, who in his petition said Section 497 was “prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution”.
Naz Foundation v Govt of NCT of Delhi, 2009- 377 cannot be used to punish two consenting adults as it violates privacy and personal liberty under art 21. Overruled in Suresh Kumar Kaushal versus Naz Foundation, 2013
Suresh Kumar Kaushal versus Naz Foundation, 2013 which upheld the legalities of Section 377. The judgment had struck down the Delhi High Court judgment decriminalising homo sexuality. The Supreme Court on Sept,2018-pronounced that Section 377 of the Indian Penal Code is unconstitutional. The five-judge bench read out four judgments, all of which held that the law, which criminalises ‘unnatural sex’ between consenting adults, and has been used to target the LGBTQI+ community in India, has been struck down in so far as it criminalises same sex intercourse. LGBT rights. On 6 September 2018, the court delivered its verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional in a unanimous decision. This decision overturns the 2013 ruling in Suresh Kumar Koushal vs. Naz Foundation in which the court upheld the law. However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force. The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found that “criminalising carnal intercourse” to be “irrational, arbitrary and manifestly unconstitutional”.The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. This included “the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”. The judgement also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination. While the statute criminalises all anal sex and oral sex, including between opposite-sex couples, it has largely affected same-sex relationships. As such, the verdict was hailed as a landmark decision for LGBT rights in India, with campaigners waiting outside the court cheering after the verdict was pronounced.
Navtej Singh Johar v UOI, 2018- criminalises sexual acts on animals, decriminalises homosexuality(having intercourse btw same sex)
Shayra Bano v UOI, 2016- Triple Talaq Case- Even if talking about religious sentiments and Islamic religious practices, triple talaq is an essential religious practice? Then why banned by other Islamic relaation? Merely because one community practices doesn’t mean essential practice. Reas restrictions on FRs – public morality. Also art 14 violative.
Shakti Vahini v UOI, 2018- Right to choose life partner is FR as it is a facet of liberty and dignity under art 21. Honor killing by khaab panchayat held illegal.
(VIDEO LECTURE – ART 21 PART 3)
Anita Kushwaha v Pushap Sudan, 2016– court given expansive meaning of life under art 21 by including access to justice as right to life under art 21. Held that there is no prohibitions against use of power under art 142 to direct cases under j and k court to another state and vice versa
Common Cause v UOI, – legalising passive euthanasia and (living wills & advanced directives) Right to refuse medical treatment is well recognized in law -concept evolving. Organ donation opportunity by advocates. Family members are often seen terminating lives of family members in the name of property
Aruna Shanbaug v UOI, – active (mercy killing- actively induce some drug) and passive euthanasia (passively doing an act of removing the life support sys because of which someone is surviving)
Live-in relationships
Badri Prasad v. Director of Consolidation, 1978 gave legal validity to a 50-year live-in relationship.
In Payal Sharma v. Nari Niketan,2001, court held, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.”
In Madan Mohan Singh v. Rajni Kant, 2010, the Court held that, the live-in relationship if continued for long time, cannot be termed as a “walk-in and walk-out” relationship and that there is a presumption of marriage between the parties.
In landmark case of S. Khushboo v. Kanniammal 2010, the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful. (Court dropped all the charges against a south Indian actress under the indecent representation of women act, many complaints filed against her interview in which she favoured about pre marital sexual and live in relations- right to life and not illegal- intentions not bad)
Indra Sarma v. V.K.V. Sarma, 2013: Ms. Indra Sarma, an unmarried woman, left her job and began a “live-in” relationship with Mr. V.K.V. Sarma for a period as long as 18 years, despite knowing that he was married. Mr. Sarma abandoned Ms. Sarma in a state where she could not maintain herself. Under the Protection of Women from Domestic Violence Act, 2005, failure to maintain a woman involved in a “domestic relationship” amounts to “domestic violence.” Two lower courts held that Mr. V.K.V. committed domestic violence by not maintaining Ms. Sarma, and directed Mr. Sarma to pay a maintenance amount of Rs.18,000 per month. Thereafter, on appeal, the High Court of Karnataka set aside the orders of the lower courts on the ground that Ms. Sarma was aware that Mr. Sarma was married and thus her relationship with him would fall outside the protected ambit of “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005. On further appeal, the Supreme Court, while affirming the High Court’s order, created an exception to the general rule. The Supreme Court clarified that a woman who begins to live with a man who is already married to someone else, without knowing that he is married, will still be considered to be in a “domestic relationship” under the Protection of Women from Domestic Violence Act, 2005; thus, the man’s failure to maintain her will amount to “domestic violence” within the meaning of the Act and she will be eligible to claim reliefs such as maintenance and compensation. Court held that, “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage”
Supreme Court emphasised that there is a great need to extend Section 2(f) which defines “domestic relationships” in Pwdva, 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.
Following are the guidelines given by Supreme Court:
“(1) Duration of Period of Relationship
Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared Household
The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.
(4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.
(6) Children
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.
(7) Socialisation in Public
Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and Conduct of the Parties
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”
Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship (held in Ajay Bhardwaj v. Jyotsna, 2016)
In Dhannulal v. Ganeshram, 2015, Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partne
Supreme Court in Tulsa v. Durghatiya, 2008 has held that a child born out of such relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognise them as husband and wife and it should not be a “walk-in and walk-out” relationship (Madan Mohan Singh v. Rajni Kant, 2010- if cohabitation continued for a long time, there is a presumption of marriage)
In Bharatha Matha v. R. Vijaya Renganathan2010, the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law.
Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun, 2011 remarked that irrespective of the relationship between parents, birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. Court held, “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.” Conclusion: Article 21 of the Constitution says, No person shall be deprived of his life or personal liberty except according to procedure established by law. Maneka Gandhi’s case is not only a landmark case for the interpretation of Article 21 but it also gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty only against the arbitrary action of the executive and not from the legislative action. Broadly speaking, what this case did was extend this protection against legislative action too. In Maneka Gandhi’s case, the meaning and content of the words ‘personal liberty’ again came up for the consideration of the Supreme Court. In this case the Supreme Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal liberty’. After that the meaning Art. 21 right to life & personal liberty has changed multidimensional approaches and reached the new horizon.
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