Art 21 Protection of Life and Personal Liberty

How far Art 21 is different from Art 19?

Is there any connection between these two?
If yes what is it?
Art 19 and 21 are different species of the same
concept i.e. life and personal liberty.
Freedoms under Art 19 are nothing but the examples
of personal liberty.
So in that sense Art 19 is limited because it includes
few aspects of liberty and remaining aspects are left
out under Art 21.
But Art 19 provides for reasonable restriction and
therefore these freedoms are better protected than Art
21.
For protection of liberties under Art 21 it is the judiciary
which has to see whether it is just, reasonable, and fair
or not, that too after the decision of Maneka Gandhi.
This is procedural fairness and not the substantive
fairness.
Restrictions under Art 19 needs to be reasonable not only
procedurally but substantively also and this
reasonableness is an inbuilt mechanism under Art 19.
 What are the connotations of Due Process
There are two types of due process
1. Substantive Due Process
It means the content of the law which deals with
rights, liabilities, duties, in-short the substantive
content of law needs to be just, fair and reasonable
2. Procedural Due Process
a. Notice
b. Opportunity of being heard
c. An impartial tribunal
A. K. Gopalan v. St of Madras AIR 1950 SC 27
Art 19, 21 and 22 (1) and (2) are mutually
exclusive.
Art 22 constitutes complete code in itself and
no need to look for light from Art 19 or 21.
This was the chief argument of the then
learned Attorney General M. C. Setlwad and
it was relied by majority judges (4) it was
Justice Fazal Ali alone who dissented.
 Ram Singh v. Delhi AIR 1951 SC 270
Petitioner was detained under Preventive
Detention Act on the ground of making
speeches prejudicial to maintenance of public
order.
Petitioner relied on Art 19 (2) and contended that
public order is not the ground to curtail FSE.
But relying on Gopalan the Court refused to
assess the validity of detention order on the
touchstone of Art 19 (1) (a) and (2)
 R. C. Cooper v. U o I AIR 1970 SC 564
Herein this case SC forged link between the
then Art 19 (1) (f) with Art 31 (2) and held
that the law taking away property needs to
be reasonable in view of Art 19 (1) (f).
This was the starting point to link Art 19 with
co-related FR.
It was taken further to the fullest extent in
Maneka Gandhi.
 Maneka Gandhi v. U o I AIR (1978) SCC
Para 15 and 46 of the judgment clearly indicates that
when Attorney General submitted that Government is
ready to provide an opportunity of being heard to
petitioner to make representation before Govt at early
date.
This would have resulted in withdrawal of the case but
still Court went ahead and dwell into many other
questions which were not contended by petitioner.
Therefore it is submitted that these observations of the
Supreme Court are obiter dicta and not ratio.
What is the source of reasonableness for Art 21?
Where from reasonableness has been installed
under Art 21
It is predominantly from Art 14 and from Art 19 in
case of specific liberties which can be connected
to Art 19 (Para 4 to 7 of the Maneka Gandhi
judgment)
The Court installed procedural due process under
Art 21 and held that any executive action which
deprives a person of his life or personal liberty
needs to be just, fair and reasonable.
What is the position of law declared in A. K. Gopalan
now?
For the purpose of preventive detention the executive
action needs to be just, fair and reasonable but
substantive law which provides for preventive
detention need not to be just, fair and reasonable.
 Procedure:
Jolly George Varghese v. Bank of Cochin AIR 1980
SC 470
Sec 51 R/W Order 21 Rule 27 allows to send a person to prison
if he fails to repay his debts.
In this case Judgment Debtor failed to repay debt and
consequently their property was attached and in addition a
warrant was issued for the arrest and detention in civil
prison. It was challenged as un-faire procedure.
It was held to be a bad procedure and SC observed that unless
there is proof of minimal fairness of his willful failure to
pay in spite of his sufficient means and absence of more
terribly pressing claims for his means.
 Life
Life has been interpreted in the sense of dignified life
and for dignified life may things are essential beyond
mere food, clothing and shelter.
Hence in case of Frnacis Coralie v. Delhi AIR 1981 SC
746
held that Art 21 uses the “life” in the sense of dignified
life, life is beyond mere animal existence.
In Shantisar Builders v. Narayanan Totame AIR 1981 SC
746, it was held that right to life under Art 21 would
include right to food, clothing, decent environment
and reasonable accommodation to live in.
 D. B. M. Patnaik v. St of A. P. AIR 1974 SC 2092
Prisoners challenged installation of live electric wires atop of
the prison wall as violation of their right under Art 21.
They contended that maximum punishment for escaping or
attempt to escape form prison is 2 years and fine. And in
the present case if prisoner attempts to escape it results in
to death which is inappropriate and excessive punishment.
SC rejected this contention and held that the mechanism of
electric wire is just a pre-caution and not a death sentence.
Moreover, prisoners were intimated about installation of
live electric wires and hence they should not attempt to
escape.
 Law
Does Art 21 includes only enacted laws ? If an ordinance
violates FR under Art 21 can it be challenged?
A. K. Roy v. U o I AIR 1982 SC 710
It was contended that Ordinance is not law and hence it
cannot put any restrictions on right to life and personal
liberty. SC rejected this contention and held that it is
clearly mentioned under Art 13 and hence there shall
be no doubt on it. If we carve out ordinance as not law
then it cannot be challenged as violative of FRs.
 Impact of Maneka Gandhi on Criminal Justice
Hussainara Khatoon v. Home Secretary St of Bihar AIR
1979 SC 1360 under-trial prisoners and Art 21. Speedy
Trial was held to be FR U/Art 21.
U o I v. Ashok K. Mitra AIR 1995 SC 1976
Delay in the prosecution was contributed not only by
State but the respondent also contributed for it. Hence
the SC refused to quash proceedings on account of
delay. Court further said that Respondent cannot be
allowed to take the benefit of his own fault.
 Can Foreign National claim remedy under Art 21?
Chairman Railway Board v. Chandrima Das (2000) 2 SCC 465
A Bangladeshi Woman was gang-raped by employees of Howrah
Station. PIL was filed by respondent in the High Court. HC
awarded Rs 10,000 as compensation and ordered speedy trial of
the case.
Railway Board appealed to SC and contended that this is matter of
criminal law and case is pending before the trial court hence the
decision of HC is not good in law. Further it was contended that
the victim is foreigner as cannot claim compensation.
Both arguments were rejected by the Supreme Court and upheld
the decision of the HC and categorically observed that FR under
Art 21 can be claimed by any person irrespective of nationality.
 NHRC v. St of Arunachal Pradesh (1996) 1 SCC 742
PIL was filed by NHRC for enforcing right under Art
21 of about 65000 Chakmas (Refugees migrated
from Bangladesh)
SC held that it is duty of the State to safeguard life,
health and well-being of these refugees and
accordingly Court directed the State of Arunachal
Pradesh to take necessary steps.
 Right to Die and Art 21
St of Maharashtra v. Maruti Sripati Dubal 1987 CrLJ 743
(Bom) HC read right to die under Art 21 accordingly declared
Sec 309 of IPC unconstitutional.
Chenna Jagadesswar v. A. P. 1988 CrLJ 549 (AP) held there is no
right to die U/Art 21 and upheld constitutionality of Sec 309.
P. Ratinam v. U o I AIR 1994 SC 1844 SC agreed with the view of
Bombay HC and held right to die as FR under Art 21 and struck
down Sec 309 of IPC
Gian Kaur v. St of Punjab AIR 1996 SC 946 overruled
P. Ratinam
Aruna Shanbaugh v. U o I (2011) 4 SCC 454 SC held that
passive acceleration of death in certain cases is valid
 P. Ratinam v. U o I AIR 1994 SC 1844 SC
The English poet William Ernest Henley wrote: "I am
the master of my fate, I am the captain of my soul.“
Hamlet's dilemma of "to be or not to be" faces many a
soul in times of distress, agony and suffering, when
the question asked is "to die or not to die".
Right to Privacy
 Right to Education Art 21-A
Mohini Jain v. St of Karnataka AIR 1992 SC 1858
Unnikrishanan v. St of A. P. AIR 1993 SC 2178
Ashok Kumar Thakur v. U o I AIR 2008