PROJECT - 2014

TOPIC – ARTICLE 21, THE

CORNERSTONE OF INDIAN
DEMOCRACY

Submitted to: - Submitted by:-

Mr Mahendra Paswan Drushan Amay Engineer

Asst. Professor (Law) B.A. LL.B, RMLNLU

RMLNLU Roll No. 53, 3rd Semester

Signature Signature
Contents

Introduction ................................................................................................................................ 3

Genesis of Article 21 ................................................................................................................. 5

What is protected under Article 21? .......................................................................................... 7

Article 21 with respect to the Directive Principles of State Policy.......................................... 11

Supreme Court’s responsibility................................................................................................ 14

The Cornerstone of our Democracy......................................................................................... 15

Conclusion ............................................................................................................................... 16
Acknowledgements

I would like to thank my respected Professors for their invaluable help and guidance in
completing this project. I would also like to thank my seniors for their help in getting me
through new and difficult questions of law. I would also like to thank my batch mates for
their help and for them to keep the lamp of competition burning through the darkest of times.
Introduction

Article 21 of the Constitution of India states that – “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”

Indian democracy wedded to rule of law aims not only to protect fundamental rights of its
citizens but also to establish an egalitarian order. Law being an instrument of social
engineering obliges the judiciary to carry out the process established by it.

Lord Chancellor Sankey once said amidst the cross currents and shifting sands of public life
the law is like a great ark upon which a man may set his foot and be safe. In this remark, he
has emphasized on the importance of law. It is needless to say that life of an individual in a
society would become a continuing disaster if not regulated.

Though the phraseology of Article 21 starts with negative word but the word No has been
used in relation to the word deprived. The object of the fundamental right under Article 21 is
to prevent encroachment upon personal liberty and deprivation of life except according to
procedure established by law. It clearly means that this fundamental right has been provided
against state only. If an act of private individual amounts to encroachment upon the personal
liberty or deprivation of life of other person. Such violation would not fall under the
parameters set for the Article 21. in such a case the remedy for aggrieved person would be
either under Article 226 of the constitution or under general law. But, where an act of private
individual supported by the state infringes the personal liberty or life of another person, the
act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals
with prevention of encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government Departments,

Legislature, Administration, Local Authorities exercising statutory powers and so on so forth,
but it does not include non-statutory or private bodies having no statutory powers. For
example: company, autonomous body and others. Therefore, the fundamental right
guaranteed under Article 21 relates only to the acts of State or acts under the authority of the
State which are not according to procedure established by law. The main object of Article 21
is that before a person is deprived of his life or personal liberty by the State, the procedure
established by law must be strictly followed. Right to Life means the right to lead
meaningful, complete and dignified life. It does not have restricted meaning. It is something
more than surviving or animal existence. The meaning of the word life cannot be narrowed
down and it will be available not only to every citizen of the country . As far as Personal
Liberty is concerned, it means freedom from physical restraint of the person by personal
incarceration or otherwise and it includes all the varieties of rights other than those provided
under Article 19 of the Constitution. Procedure established by Law means the law enacted by
the State. Deprived has also wide range of meaning under the Constitution. These ingredients
are the soul of this provision. The fundamental right under Article 21 is one of the most
important rights provided under the Constitution which has been described as heart of
fundamental rights by the Apex Court.

Genesis of Article 21

During the lengthy drafting procedure of the Constitution, the amendment in the erstwhile
Article 15, for the words “No person shall be deprived of his life or personal liberty except
according to procedure established by law” the words “No person shall be deprived of his
life or liberty without due process of law” to be substituted was cut out. Thus during the
session of the Constituent Assembly while discussing Article 15 (now Article 21) there was a
great deal of controversy on the issue as to whether the words should be “except according to
procedure established by law”, or whether the words “due process” should be there in place
of the words which now find a place in Article 21. It was ultimately accepted that instead of
the words “due process”, the words should be “according to procedure established by law”

The development of constitutionally guaranteed fundamental human rights in India was

inspired by historical examples such as England's Bill of Rights (1689), the United States Bill
of Rights (approved on 17 September 1787, final ratification on 15 December 1791) and
France's Declaration of the Rights of Man (created during the revolution of 1789, and ratified
on 26 August 1789).1 Under the educational system of British Raj, students were exposed to
ideas of democracy, human rights and European political history. The Indian student
1
Constitution of Indian, V.N Shukla, Eastern Book Company
community in England was further inspired by the workings of parliamentary democracy and
British political parties.

In 1919, the Rowlatt Act gave extensive powers to the British government and police, and
allowed indefinite arrest and detention of individuals, warrant-less searches and seizures,
restrictions on public gatherings, and intensive censorship of media and publications. The
public opposition to this act eventually led to mass campaigns of non-violent civil
disobedience throughout the country demanding guaranteed civil freedoms, and limitations
on government power. Indians, who were seeking independence and their own government,
were particularly influenced by the independence of Ireland and the development of the Irish
constitution. Also, the directive principles of state policy in Irish constitution were looked
upon by the people of India as an inspiration for the independent India's government to
comprehensively tackle complex social and economic challenges across a vast, diverse nation
and population.

In 1928, the Nehru Commission composing of representatives of Indian political parties

proposed constitutional reforms for India that apart from calling for dominion status for India
and elections under universal suffrage, would guarantee rights deemed fundamental,
representation for religious and ethnic minorities, and limit the powers of the government. In
1931, the Indian National Congress (the largest Indian political party of the time) adopted
resolutions committing itself to the defence of fundamental civil rights, as well as socio-
economic rights such as the minimum wage and the abolition of untouchability and
serfdom.[3] Committing themselves to socialism in 1936, the Congress leaders took
examples from the constitution of the erstwhile USSR, which inspired the fundamental duties
of citizens as a means of collective patriotic responsibility for national interests and
challenges.

The task of developing a constitution for the nation was undertaken by the Constituent
Assembly of India, composing of elected representatives. Constituent Assembly first met on
December 9, 1946 under the presidency of Dr. Sachidanand later Dr. Rajendra Prasad was
made its President. While members of Congress composed of a large majority, Congress
leaders appointed persons from diverse political backgrounds to responsibilities of
developing the constitution and national laws.[4] Notably, Bhimrao Ramji Ambedkar became
the chairperson of the drafting committee, while Jawaharlal Nehru and Sardar Vallabhbhai
Patel became chairpersons of committees and sub-committees responsible for different
subjects. A notable development during that period having significant effect on the Indian
constitution took place on 10 December 1948 when the United Nations General Assembly
adopted the Universal Declaration of Human Rights and called upon all member states to
adopt these rights in their respective constitutions.

The fundamental rights were included in the First Draft Constitution (February 1948), the
Second Draft Constitution (17 October 1948) and final Third Draft Constitution (26
November 1949), prepared by the Drafting Committee.

What is protected under Article 21?

The wording of Article 21 is said to be loose and open to interpretation on purpose, and the
intention of the Drafting Committee was to keep it open for interpretation by the judiciary.
This is good, as it was the only way a right as fundamental and basic as this could remain
relevant with changing times and circumstances.2

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in
A.K.Gopalan v. State of Madras3 that the contents and subject matter of Article 21 and 19 (1)
(d) are not identical and they proceed on total principles. In this case the word deprivation
was construed in a narrow sense and it was held that the deprivation does not restrict upon the
right to move freely which came under Article 19 (1) (d). at that time Gopalans case was the
leading case in respect of Article 21 along with some other Articles of the Constitution, but
post Gopalan case the scenario in respect of scope of Article 21 has been expanded or
modified gradually through different decisions of the Apex Court and it was held that
interference with the freedom of a person at home or restriction imposed on a person while in
jail would require authority of law. Whether the reasonableness of a penal law can be
examined with reference to Article 19, was the point in issue after Gopalan’s case in the case
of Maneka Gandhi v. Union of India4, the Apex Court opened up a new dimension and laid
down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a

2
Ibid.
3
AIR 1950 SC 27
4
AIR 1978 SC 597
restriction upon the state where it prescribed a procedure for depriving a person of his life or
personal liberty.

This view has been further relied upon in a case of Francis Coralie Mullin v. The
Administrator, Union Territory of Delhi and others5 as follows:

Article 21 requires that no one shall be deprived of his life or personal liberty except by
procedure established by law and this procedure must be reasonable, fair and just and not
arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass
the test not only for Article 22, but also of Article 21 and if the constitutional validity of any
such law is challenged, the court would have to decide whether the procedure laid down by
such law for depriving a person of his personal liberty is reasonable, fair and just. In another
case of Olga Tellis and others v. Bombay Municipal Corporation and others6, it was further
observed : Just as a mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental right must conform the norms of
justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts
the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and
consequently, the action taken under it.As stated earlier, the protection of Article 21 is wide
enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India
and others7 in respect of bonded labour and weaker section of the society.

It lays down as follows:

Article 21 assures the right to live with human dignity, free from exploitation. The state is
under a constitutional obligation to see that there is no violation of the fundamental right of
any person, particularly when he belongs to the weaker section of the community and is
unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
Both the Central Government and the State Government are therefore bound to ensure
observance of the various social welfare and labour laws enacted by Parliament for the
purpose of securing to the workmen a life of basic human dignity in compliance with the
directive principles of the state policy.

5
AIR 1981 SC 746
6
AIR 1986 SC 180
7
AIR 1984 SC 802
The meaning of the word life includes the right to live in fair and reasonable conditions, right
to rehabilitation after release, right to live hood by legal means and decent environment. The
expanded scope of Article 21 has been explained by the Apex Court in the case of Unni
Krishnan v. State of A.P.8 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.

(2) The right to privacy.

(3) The right against solitary confinement.

(4) The right against hand cuffing.

(5) The right against delayed execution.

(6) The right to shelter.

(7) The right against custodial death.

(8) The right against public hanging.

(9) Doctors assistance

It was observed in Unni Krishnan’s 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.

8
AIR 1993 SC 2178
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.

(b) Protection of under-trial.

(c) Right of every child to a full development.

(d) Protection of cultural heritage.

Maintenance and improvement of public health, improvement of means of communication,

providing human conditions in prisons, maintaining hygienic condition in slaughter houses
have also been included in the expanded scope of Article 21. this scope further has been
extended even to innocent hostages detained by militants in shrine who are beyond the
control of the state.

The Apex Court in the case of S.S. Ahuwalia v. Union of India9 and others it was held that in
the expanded meaning attributed to Article 21 of the Constitution, it is the duty of the State to
create a climate where members of the society belonging to different faiths, caste and creed
live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth
of an individual which should not be jeopardized or endangered. If in any circumstance the
state is not able to do so, then it cannot escape the liability to pay compensation to the family
of the person killed during riots as his or her life has been extinguished in clear violation of
Article 21 of the Constitution. While dealing with the provision of Article 21 in respect of
personal liberty, Hon'ble Supreme Court put some restrictions in a case of Javed and others v.
State of Haryana10, as follows: at the very outset we are constrained to observe that the law
laid down by this court in the decisions relied on either being misread or read divorced of the
context. The test of reasonableness is not a wholly subjective test and its contours are fairly
indicated by the Constitution. The requirement of reasonableness runs like a golden thread
through the entire fabric of fundamental rights. The lofty ideals of social and economic

9
AIR 1981 SC 198
10
AIR 2003 SC 3057
justice, the advancement of the nation as a whole and the philosophy of distributive justice-
economic, social and political- cannot be given a go-by in the name of undue stress on
fundamental rights and individual liberty. Reasonableness and rationality, legally as well as
philosophically, provide colour to the meaning of fundamental rights and these principles are
deducible from those very decisions which have been relied on by the learned counsel for the
petitioners.

The Apex Court led a great importance on reasonableness and rationality of the provision and
it is pointed out that in the name of undue stress on Fundamental Rights and Individual
Liberty, the ideals of social and economic justice cannot be given a go-by. Thus it is clear
that the provision Article 21 was constructed narrowly at the initial stage but the law in
respect of life and personal liberty of a person was developed gradually and a liberal
interpretation was given to these words. New dimensions have been added to the scope of
Article21 from time to time. It imposed a limitation upon a procedure which prescribed for
depriving a person of life and personal liberty by saying that the procedure which prescribed
for depriving a person of life and personal liberty by saying that the procedure must be
reasonable, fair and such law should not be arbitrary, whimsical and fanciful. The
interpretation which has been given to the words life and personal liberty in various decisions
of the Apex Court, it can be said that the protection of life and personal liberty has got multi
dimensional meaning and any arbitrary, whimsical and fanciful act of the State which
deprived the life or personal liberty of a person would be against the provision of Article 21
of the Constitution.

Article 21 with respect to the Directive Principles of State Policy

A Proper blend of Article 21 with the Directive Principles of State Policy by the Supreme
Court is another historic development in the Indian judiciary. This revolutionary step not only
enlarged the scope of right to life and personal liberty but in true spirits enhanced the concept
of public good. Host of issues that are very vital and essential for social wellbeing are
mandatory and obligatory for Union of India.

The Directive Principles of State Policy enumerated in Chapter- IV is another distinctive

feature of our Constitution. Equitable distribution of wealth, employment for all, protection
of health, compulsory education for children up to the age of fourteen and the establishment
of village panchayats are some of such important aspects mentioned in the Directive
Principles of State Policy. The Constitution makers, as a facility, did not make
implementation of Directive Principles compulsory by the Union and State governments as
sometimes they may face the problem of paucity of resources and expected that the respective
governments would execute them as and when they mobilize necessary funds and machinery.
The Directive Principles of State Policy are non-justiciable. No legal remedy can be sought in
a court of law if the Government fails to follow or implement any of these principles. Several
amendments to the Constitution, more particularly, some judgments of the Supreme Court
have paved the way for the effective implementation of the Directive Principles.

In one of the historic judgment in --Confederation of Ex-Servicemen Association and Others

v Union of India11, the apex court observed: “Apart from fundamental rights guaranteed by
Part III of the Constitution, it is the duty of the respondents [Government of India] to
implement Directive Principles of State Policy under Part IV of the Constitution.”

Justice Bhagavati, in Bandhua Mukti Morcha v Union of India12 observed: “It is the
fundamental right of everyone in this country, assured under the interpretation given to
Article 21 by this Court in Francis Mullen's case, 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 …... 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. Since the Directive Principles of State Policy contained in Clauses (e)
and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be
possible to compel the State through the judicial process to make provision by statutory
enactment or executive fiat for ensuring these basic essentials which go to make up a life of
human dignity but where legislation is already enacted by the State providing these basic
requirements to the workmen and thus investing their right to live with basic human dignity,
with concrete reality and content, the State can certainly be obligated to ensure observance of
such legislation for inaction on the part of the State in securing implementation of such
legislation would amount to denial of the right to live with human dignity enshrined in
Article 21.”

11
AIR 2006 SC 2945
12
AIR 1984 SC 802
The Supreme Court observed that where a law has already been enacted to enforce Article 21
with reference to the directive principles of the state policy it can compel the state to
implement the said legislation in letter and spirit. Uitilizing this foundation, the Supreme
Court, in 1993, ruled that the right to education until the age of fourteen is a fundamental
right and therefore falls under the protection of Article 21 in conjunction with Article 41.13
Article 41 states: “The State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work, to education...” Thus,
the Court has interpreted the Directive Principles of the State Policy in conjunction with
Article 21 and gave a wider meaning to Article 21.

This attitude of the Supreme Court was clearly exhibited in a catina of cases subsequently.
The authority of Article 21 has been elevated to new levels. These sincere, committed and
development oriented efforts and inclusive approach by the Indian judiciary resulted in a
most comprehensive and benevolent articulation and execution of Article 21.

As a consequence many rights such as a) right not to live a forced life, b) right to protective
home, c) right to reputation, d) right to education, e) right to livelihood, f) right to live with
human dignity, g) right to health and medical care, h) right to water i) right to fair trail which
includes right to speedy trial, j) right to privacy, k) right to growth and nourishment etc have
taken shelter under the canopy of Article 21.

The Supreme Court in several cases held that the social justice enables the courts to uphold
legislations to remove economic inequalities, to provide a decent standard of living to the
working people and to protect the interests of the weaker sections of the society.
Supreme Court’s responsibility

Articles 32 and 226 are the provisions of the Constitution that together provide an effective
guarantee that every person has a fundamental right of access to courts. Article 32 confers
powers on the Supreme Court to enforce the fundamental rights. It provides a guaranteed,
quick and summary remedy for enforcing the Fundamental Rights because a person can go
straight to the Supreme Court without having to undergo the dilatory process of proceeding
from the lower to higher court as he has to do in other ordinary litigation. The Supreme Court
is thus the protector and guarantor of the fundamental rights.

The Supreme Court shall have the power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said, ‘if I am asked
which is the most important provision of the Indian Constitution, without which the
Constitution would not survive I would point to none other than article 32 which is the soul
of the Indian Constitution. Article 32 is the soul of the Indian Constitution. When there is
infringement of Article 21 the aggrieved person can approach the Supreme Court of India for
enforcement of his fundamental rights.

As a result of expansion of the scope of Article 21, the Public Interest Litigations (PIL) 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. Maintenance and improvement of public health, improvement of means
of communication, providing human conditions in prisons, maintaining hygienic condition in
slaughter houses have also been included in the expanded scope of Article 21.

Maneka Gandhi’s case recognized an implied substantive component to the term ‘liberty’ in
article 21 that provides broad protection of individual freedom against unreasonable or
arbitrary curtailment. This paved the way for a dramatic increase in constitutional protection
of human rights in India under the mantle of the Public Interest Litigation movement (PIL).
The Cornerstone of our Democracy

A time has come where the Judiciary has to be aggressively pro-active. It should not satisfy
itself by pronouncing few judgments. The judiciary should give top most priority for the
cases that affect the human life system. The spirit of Article 21 would dampen if cases like
Coca-Cola are kept pending for long years. Since the year 2003, the villagers of Plachimada
in Palghat district of Kerala mostly dalits, adivasis, women and children are fighting to
protect their water bodies from the exploitation of multi-national soft drink producer Coca-
Cola. The villagers are also demanding adequate compensation from the government and
Coca-Cola management for the immense damage done to their water bodies and the pollution
caused in the region. Enormous extraction of ground water by this company resulted in
decline of ground water in the region besides polluting the wells all around. Due to excessive
exploitation of water by Coca-Cola the plachimada villaged faced acute drinking water
shortage. In all counts, the Coca-Cola company violated the fundamental right to live
guaranteed under Article 21. Almost seven years lapsed and the poor villagers are still
agitating for their compensation. Due to the delay in pronouncing the judgment by the
Supreme Court, the threat of re-opening of the company is looming large on them.

The lofty ideals would confine only to paper if they are not effectively implemented. The
Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v
Union of India14 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 prohibition of
smoking in public places. 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. Unfortunately, implementation of this judgment is
totally ignored by the executing authorities. Violation this judgment could be find
everywhere. Unless a mechanism evolved, such initiatives would have zero impact.

14
AIR 2002 SC 40
Conclusion

Justice V R Krishna Iyer once observed that the procedure established by law in
implementing the Article 21 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’ -- has acquired the significance in India as the ‘due process of law’ clause in
United States of America. “Our Constitution has no due process clause” but after Maneka
Gandhi’s 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 Constitution,”

But, the fact is the scope of the expansion into the substantive rights organized by the
Supreme Court went much beyond the concept of due process of law of the USA. This is
mainly because of the gentle, compassionate and civilized manner adopted by our judiciary.

The Indian Judiciary provided excellent elucidation to Article 21. The Supreme Court not
only explored the instinctive humane qualities of the Article 21 but also established certain
procedure to implement them. Each interpretation or the procedure laid down with the regard
to Article 21 is particularly aimed at well being of the citizen. Each explanation provided vis
a vis Article 21 attempts to fulfill the basic needs of the human being while safeguarding his
dignity. The Supreme Court went to the extent of declaring that: “Right to dignity and fair
treatment is not only available to a living man, but also to his dead body, and the same
principle is applied to homeless deceased.”

It is very difficult to find such noble, lofty, dignified, magnificent illustrations and
interpretations as provided 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 life and
personal liberty only to his physical entity. Call it Indian-ness or Bharateeya tatva, the
intrinsic qualities inspired the Indian judiciary to strive for all-round development of a human
being.
But, the road does not end here. It should be the hope of every citizen that the Indian
judiciary continues in fulfilling its responsibility to the people of India and ensure that they
cannot be deprived of life, or personal liberty.