ABSTRACT
Indian Judiciary though is restrained, in many ways has evolved itself as a savior of
mankind by applying its jud...
“Right to life is an inalienable and inherent right of every human
being.” -Thomas Jefferson [1]
1.1 INTRODUCTION
This pap...
given to this right now covers various aspects which the founding fathers of the
Constitution might or might not have visu...
wider scope in day to day events by the legal processes advanced by judicial creativity.
[7]
‘Right to life’ and ‘personal...
discussion will focus on the modern approach of the Courts, by referring to a historical
case which changed the interpreta...
CHAPTER -1-
2.1 MEANING AND CONCEPT OF ‘RIGHT TO LIFE’
‘Everyone has the right to life, liberty and the security of person...
next part we will discuss the meaning and concept of personal liberty as interpreted by
the Supreme Court of India.
2.2 ME...
other organ of the body through which the soul communicated with the outer world. The
majority held that the U. P. Police ...
Thus, the “procedure established by law” has acquired the same significance in India as
the “due process of law” clause in...
and personal liberty has been interpreted widely to include the right to livelihood, health,
education, environment and al...
Article 21 of the Constitution and expanded its horizon to include the rights of non-
smokers.
Further, when there is inor...
entitlements into ‘fundamental rights’ which were justiciable in a court of law and
‘directive principles of state policy’...
of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not
enforceable in a court of law, ...
within its ambit basic human rights recognised by various international human rights
instruments.
2.5 ARTICLE 21 AND INTER...
an enforceable right to compensation is not alien to the concept of enforcement of a
guaranteed right.
In Prem Shankar Shu...
In Sunil Batra v Delhi Administration[70] the Supreme Court took note of Article 10 of
the ICCPR which states as that all ...
2.6 ARTICLE 32 OF THE INDIAN CONSTITUTION:
A PROVISION TO ENFORCE ARTICLE 21
The most unique feature of the Indian Constit...
government is accused of infringing upon the “fundamental rights” [particularly Article
21] of the constitution.[78] In ad...
3.1 THE TRADITIONAL APPROACH
It is hard to appreciate fully the extent of development of right to life without an
overview...
3.2 The Foundations of Change and the Beginning of New Era
In this section it will demonstrated how judiciary dramatically...
As discussed above the ghost of Gopalan[89] was finally laid in Maneka Gandhi’s case.
[90] A Constitutional Bench of Seven...
4.1 THE CURRENT TREND
Maneka Gandhi’s case [93] demonstrates how judicial activism can expand the reach of
law with a view...
In Francis Coralie Mullin v Administrator, Union Territory of Delhi,[98] the Honourable
Supreme Court stated that,
The rig...
institution’s tasks.[102] The term judicial activism is explained as “judicial philosophy
which motives judges to depart f...
Whereas Justice J. S. Verma has been more emphatic in laying down the exact norms of
sufficient activist criterion. The le...
but to make it imaginatively sharing the passion of the Constitution for social justice.
[115] I would describe judicial a...
capable of achieving results.[118] There would have been no Fundamental Rights worth
mentioning if Article 21 had been int...
amendments to S. 302 I.P.C. But if legislative under taking is not in sight, judges who
have to implement the Code cannot ...
amend the Constitution, that power is not an unlimited or unrestricted power and it does
not entitle Parliament to amend t...
because they are right, legal or just.”[135] One may question the wisdom of employing
the judicial power to achieve a desi...
CHAPTER-2-
Article 21 of the Constitution of India -
The Expanding Horizons
Introduction
The Constitution of India provide...
The state cannot be defined in a restricted sense. It includes Government Departments,
Legislature, Administration, Local ...
right to move freely which came under Article 19 (1) (d). at that time Gopalans case was
the leading case in respect of Ar...
Corporation and others , it was further observed : Just as a mala fide act has no existence
in the eye of law, even so, un...
some of the rights covered under Article 21 on the basis of earlier pronouncements and
some of them are listed below:
(1) ...
(c) Right of every child to a full development.
(d) Protection of cultural heritage.
Maintenance and improvement of public...
the advancement of the nation as a whole and the philosophy of distributive justice-
economic, social and political- canno...
CHAPTER -3-
Right to life i.e. Right not to die or Section 309, I.P.C.?
Introduction
Indian democracy wedded to rule of la...
However, after 2 decades this was over ruled in the case of R.C.Cooper VS. Union Of
India (AIR 1970 SC 564) after this the...
expanded horizon includes everything that gives meaning to a person's life including
culture, heritage and tradition with ...
Right against public hearing
Doctor's assistance
Along with all these above-mentioned rights, it was also observed that th...
CHAPTER -4-
An Introduction of Fundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights containe...
2) Right to freedom which includes speech and expression, assembly, association or
union or cooperatives, movement, reside...
allowing them to preserve their languages and also establish and administer their own
education institutions.
Right to pro...
In 1928, the Nehru Commission composing of representatives of Indian political parties
proposed constitutional reforms for...
The fundamental rights were included in the First Draft Constitution (February 1948), the
Second Draft Constitution (17 Oc...
These fundamental rights help not only in protection but also the prevention of gross
violations of human rights. They emp...
A state of national emergency has an adverse effect on these rights. Under such a state,
the rights conferred by Article 1...
• Equality in matters of public employment: Article 16 of the constitution lays
down that the State cannot discriminate ag...
Military and academic distinctions can be conferred on the citizens of India. The
awards of Bharat Ratna and Padma Vibhush...
• Freedom to move freely throughout the territory of India though reasonable
restrictions can be imposed on this right in ...
axiom is based on the principle that no criminal law can be made retrospective,
that is, for an act to become an offence, ...
• In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It
made the right to primary education part of ...
However, the right to life and personal liberty cannot be suspended. The six freedoms are
also automatically suspended or ...
Religious communities can set up charitable institutions of their own. However, activities
in such institutions which are ...
ensuring the security of the services of the teachers or other employees of the institution.
In another landmark judgement...
unemployment, old age, and similar rights be enshrined as constitutional guarantees to
address issues of poverty and econo...
and politicians worldwide.[44]
The right to equality in matters regarding public
employment shall not be conferred to Over...
which provided that "no person shall be deprived of his property save by authority of
law". Thus if a legislature makes a ...
Prime Minister Manmohan Singh announced the operationalisation of the Act. Children,
who had either dropped out of schools...
7. "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69". World Legal
Information Institute. Retrieved 2006-05-25. Th...
Article 21 right to live
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Article 21 right to live

  1. 1. ABSTRACT Indian Judiciary though is restrained, in many ways has evolved itself as a savior of mankind by applying its judicial activism. This article discusses few recent landmark cases of India wherein it threw focus on how the Indian Supreme Court by taking the resort of Article 21 of the Indian Constitution evolved itself as a savior of mankind. It discusses in detail the traditional and modern approach, and the current trend of the Supreme Court in interpreting Article 21 of the Constitution. Further, it discusses the need for such judicial activism and concludes by justifying the activist role played by the Supreme Court. Page | 1
  2. 2. “Right to life is an inalienable and inherent right of every human being.” -Thomas Jefferson [1] 1.1 INTRODUCTION This paper is a study of judicial interpretation of Article 21 of the Indian Constitution and judicial activism on the part of the Supreme Court of India. This article comprehensively examines Supreme Court of India’s judicial activism and thus the broad interpretation of Article 21 of the Indian Constitution. It explores the reasons for such liberal interpretation when there was no such mandate by the framers of the Constitution. It examines the reasons for judicial creativity and justifies the role played by the Supreme Court of India in protecting the fundamental rights of the citizens when the legislative and executive failed in performing their duties. To some extent, judicial activism on the part of judiciary derives from underlying weakness and failure on the part of other machineries of the State to perform their duties. Right to life and personal liberty is the most cherished and pivotal fundamental human rights around which other rights of the individual revolve and, therefore, the study assumes great significance. The study of right to life is indeed a study of the Supreme Court as a guardian of fundamental human rights. Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right. It guarantees right to life and personal liberty to citizens and aliens[2] and is enforceable against the State. The new interpretation of Article 21 in Maneka Gandhi’s case has ushered a new era of expansion of the horizons of right to life and personal liberty. The wide dimension Page | 2
  3. 3. given to this right now covers various aspects which the founding fathers of the Constitution might or might not have visualized. The above stated revolution in the basic concept makes it imperative that the concept of right to life and personal liberty should be examined a new with reference to development, meaning, width and depth, along with judicial interpretation, justification for such liberal interpretation, and relation of Article 21 with the provisions of Article 32 and Directive Principles of the State Policy and International Human Rights Istruments. Further, the protection of this right is burning topics of the day. Hence an attempt has been made in this essay to examine the modern day standards adopted for protecting the right to life and personal liberty. The Constitution said Woodrow Wilson, is “not a mere lawyer’s document.” It is, he said, “the vehicle of a nation’s life.”[3] The Indian Supreme Court has created major reforms in the protection of human rights. Taking a judicial activist role, the Court has put itself in a unique position to intervene when it sees violations of these fundamental rights.[4] “[I]n India the guardian of democracy is not the legislative wisdom but the wisdom of the highest court of the land.”[5] “[T]he court has acted as protector of the workers, and at time played the role [of] legislator where labour legislation is silent or vague.”[6] The Supreme Court, as the arbiter and interpreter of the Constitution, serves not merely the negative purpose of checking excesses in judicial practice, but also the vital and dynamic function of modulating the life of the nation. The Supreme Court is the guardian of the Constitution under whose protective wings the nation has prospered and grown to greatness. Thus, the law as seen in the wordings of the enactment gets a dynamic and Page | 3
  4. 4. wider scope in day to day events by the legal processes advanced by judicial creativity. [7] ‘Right to life’ and ‘personal liberty’ is the modern name for what have been traditionally known as ‘natural right.’ It is the primordial rights necessary for the development of human personality. It is the moral right which every human being everywhere at all times ought to have simply because of the fact that in contrast with other beings, he is rational and moral. It is the fundamental right which enable a man to chalk out his own life in the manner he likes best. Right to life and personal liberty is one of the rights of the people of India preserved by the Constitution of India, 1950[8] and enforced by the High Courts and Supreme Court under article 226 and 32 respectively. In this essay we will discuss the modern and liberal interpretation given to the concept of right to life and personal liberty by the Indian Judiciary. Chapter I deals with the introductory part of right to life and personal liberty. In this chapter, an attempt is being made to trace the meanings of ‘life’, ‘right to life’, and ‘personal liberty’. In Chapter II of the essay we will overlook the provision of Article 32 of the Constitution to understand the power of the Supreme Court of India to interpret Article 21 and a remedy for human beings[9] to approach the apex court when there is infringement of fundamental rights, particularly Article 21. In Chapter III we will discuss in detail the facets which comprise Article 21 i.e. ‘right to life’, ‘personal liberty’, and ‘procedure established by law’. Further, we explore the relation and interpretation given to Article 21 with special reference to ‘Directive Principles of the State Policy’ and ‘International Human Rights Documents’. In Chapter IV we will have an overlook on the traditional and narrow approach of the Indian judiciary in interpreting Article 21 of the Constitution. Further, in the next part the Page | 4
  5. 5. discussion will focus on the modern approach of the Courts, by referring to a historical case which changed the interpretation of right to life in India. In Chapter 4 it will be demonstrated how judicial interpretation enhanced the ambit of right to life by discussing some selected cases. In the next section we will discuss the meaning of judicial activism and arguments for and against judicial activism. We will also discuss the justification for judicial activism and I would argue in favour of judicial activism. Further, we will overlook the controversy between judicial activism and separation of powers. (Judicial Activism v Doctrine of Separation of Powers) and discuss in detail the judicial restraint (self-restraint) necessary for the judiciary while interpreting Article 21 by looking into the minds of the framers of the Indian Constitution. The article concludes by justifying judicial activism as it is the creativity of the Indian judiciary that has preserved the basic human rights of the citizens of the largest democracy of the world. Page | 5
  6. 6. CHAPTER -1- 2.1 MEANING AND CONCEPT OF ‘RIGHT TO LIFE’ ‘Everyone has the right to life, liberty and the security of person.’[10] The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation.[11] As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it.[12] There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.[13] This chapter will examine the right to life as interpreted and applied by the Supreme Court of India. Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing.[14] It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity,[15] right to livelihood,[16] right to health,[17] right to pollution free air,[18] etc. Right to life is fundamental to our very existence without which we cannot live as human being and includes all those aspects of life which go to make a man's life meaningful, complete and worth living.[19] It is the only article in the Constitution which has received the widest possible interpretation. Under the canopy of Article 21 so many rights have found shelter, growth and nourishment.[20] Thus, the bare necessities, the minimum and basic requirements which are essential and unavoidable for a person is the core concept of right to life. In the Page | 6
  7. 7. next part we will discuss the meaning and concept of personal liberty as interpreted by the Supreme Court of India. 2.2 MEANING AND CONCEPT OF ‘PERSONAL LIBERTY’ Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that, No freeman shall be taken or imprisoned... but... by the law of the land.[21] The smallest Article [22] of eighteen words has the greatest significance for those who cherish the ideals of liberty. What can be more important than liberty? In India the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint; [23] and has held that it encompasses those rights and privileges which have long been recognized as being essential to the orderly pursuit of happiness by free men. The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations which provided for surveillance by way of domiciliary visits and secret picketing. Oddly enough both the majority and minority on the bench relied on the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v Illinois,[24] which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which the life was enjoyed. This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any Page | 7
  8. 8. other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorising domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional.[25] The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.[26] The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment.[27] To understand broadly the composition of Article 21 we will overlook one of the facets of Article 21 - ‘procedure established by law’ in the next part. 2.3 PROCEDURE ESTABLISHED BY LAW The expression “procedure established by law” has been subject matter of interpretation in a catena of cases.[28] A survey of these cases reveals that courts in the process of judicial interpretation have enlarged the scope of the expression. The Supreme Court took the view that “procedure established by law” in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American “due process of law.”[29] But, in Maneka Gandhi v Union of India[30] the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.[31] Page | 8
  9. 9. Thus, the “procedure established by law” has acquired the same significance in India as the “due process of law” clause in America.[32] Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administaration[33] has said that though “our Constitution has no due process clause” but after Maneka Gandhi’s case[34] “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.”[35] Recently the Supreme Court has dealt with an increasing number of people sentenced to death for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young woman by setting them on fire. In an unprecedented move the court ordered both prisoners to be publicly executed. In a response to a review petition by the Attorney- General against this judgment the Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime does not have to be met with a barbaric penalty.”[36] The Court observed that the execution of death sentence by public hanging is violation of article 21, which mandates the observance of a just, fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of article 21. [37] In Sher Singh v State of Punjab[38] the Supreme Court held that unjustifiable delay in execution of death sentence violates art 21. The Supreme Court has taken the view that this article[39] read as a whole is concerned with the fullest development of an individual and ensuring his dignity through the rule of law.[40] Every procedure must seem to be ‘reasonable, fair and just.’[41] The right to life Page | 9
  10. 10. and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters which contributed to life with dignity. The test of procedural fairness has been deemed to be one which is commensurate to protecting such rights.[42] Thus, where workers have been deemed to have the right to public employment and its concomitant right to livelihood, a hire-fire clause in favour of the State is not reasonable, fair and just[43] even though the State cannot affirmatively provide livelihood for all. Under this doctrine the Court will not just examine whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a fair, just and reasonable manner. This has meant, for example the right to speedy trial[44] and legal aid[45] is part of any reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State action covering civil, criminal and administrative action.[46] The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v Union of India [47] observed that, the fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law. The Court observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Taking into consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed 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[48] such as auditoriums, hospital buildings, health institutions etc. In this manner the Supreme Court gave a liberal interpretation to Page | 10
  11. 11. Article 21 of the Constitution and expanded its horizon to include the rights of non- smokers. Further, when there is inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not only against actual proceedings in court but also against police investigation.[49] The Supreme Court has widen the scope of ‘procedure established by law’ and held that merely a procedure has been established by law a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable. It is thus now well established that the “procedure established by law” to deprive a person of his life and personal liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or oppressive, that the procedure to be valid must comply with the principles of natural justice.[50] To understand broadly the co-relation between Article 21 and Directive Principles of the State Policy, in the next section, we will overlook the interpretation given by the apex court to the said provisions. 2.4 ARTICLE 21 AND DIRECTIVE PRINCIPLES OF THE STATE POLICY The Directive Principles of the State Policy as enumerated in Chapter-IV are not enforceable in a court of law. Nevertheless, they are fundamental in the governance of the nation as the name itself implies “Directive Principles of the State Policy”. The Constitution makers evolved what was then a novel constitutional device which classified Page | 11
  12. 12. entitlements into ‘fundamental rights’ which were justiciable in a court of law and ‘directive principles of state policy’ which though not judicially enforceable, were nevertheless fundamental in the governance of the nation.[51] In one of the historic judgment in the case of Confederation of Ex-Servicemen Association and Others v Union of India[52] the apex court observed that, 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.[53] In Bandhua Mukti Morcha v Union of India[54] Justice Bhagwati referring to Francis Coralie Mullin v Administrator, Union Territory of Delhi,[55] stated; 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 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 etc. 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. Since the Directive Principles Page | 12
  13. 13. 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.[56] Thus the Court held 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. In 1993, relying on the directive principle of the state policy, the Court 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.[57] 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 so as to give life to that article. In the next part we will discuss in detail the relationship between Article 21 and international human rights documents. We will elaborate and discuss the interpretation given by the Supreme Court to Article 21 to interpret it in a manner so as to include Page | 13
  14. 14. within its ambit basic human rights recognised by various international human rights instruments. 2.5 ARTICLE 21 AND INTERNATIONAL HUMAN RIGHTS DOCUMENTS While international treaties do not automatically become part of domestic law upon ratification,[58] the Constitution provides, as Directive Principles of Sate Policy, that the government “shall endeavour to foster respect for international law and treaty obligations in dealings of organized people with one another,”[59] and also authorises the central government to enact legislation implementing its international law obligations without regard to the ordinary division of central and state government powers.[60] The Supreme Court of India has frequently interpreted in light of India’s international law obligations. [61] Justice A .S. Anand argues that any interpretation of a national law or constitution which advances the cause of human rights and seeks to fulfil the purposes of international instruments must be preferred to a sterile alternative.[62] He further argues that it is a proper part of the judicial process and a well established judicial function for national courts to have regard to the international obligations undertaken by the country in question whether or not these have been incorporated into domestic law for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.[63] In Nilabati Behera v State of Orissa [64] while justifying its award of compensation for infringement of the right to life, the Court referred to the ICCPR[65], which indicates that Page | 14
  15. 15. an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right. In Prem Shankar Shukla v Delhi Administration [66] while dealing with the handcuffing of prisoners and other humiliations inflicted on persons in custody, the Supreme Court of India observed: After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in Article 5 of the Universal Declaration of Human Rights, 1948[67]: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. In Hussainara Khatoon cases,[68] the Supreme Court not only advanced the prison reform in favour of under-trials but also declared the right to speedy trial as an essential ingredient of Article 21. Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the International Covenant on Civil and Political Rights[69] which lays down that everyone is entitled “to be tried without delay” and Article 16 of the Draft Principles on Equality in the Administration of Justice which provides that everyone shall be guaranteed the right to prompt and speedy hearing the Court directed the release of all those under trials against whom the police had not filed charge sheets within the prescribed period of limitation. Such persons were directed to be released forthwith as any further detention of such under trials would be according to the court, a clear violation of Article 21. Page | 15
  16. 16. In Sunil Batra v Delhi Administration[70] the Supreme Court took note of Article 10 of the ICCPR which states as that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The Court then opined that: The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view.[71] The Court further emphasized that the Declaration of the Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by U.N. General Assembly [72] has relevance to our decision.[73] Thus, the Court has interpreted article 21 with the widest possible amplitude so as to include within its ambit basic human rights guaranteed by international human rights instruments though that has not been incorporated in national legislation.[74] In the next part we will discuss the traditional and narrow approach of the Supreme Court in interpreting right to life. Page | 16
  17. 17. 2.6 ARTICLE 32 OF THE INDIAN CONSTITUTION: A PROVISION TO ENFORCE ARTICLE 21 The most unique feature of the Indian Constitution is Article 32. It is a fundamental right guaranteed to citizens of India under Part-III of the Constitution. The provision of the article states that: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part [Part-III] is guaranteed. (2) The Supreme Court shall have 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. [75] 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.[76] The judicially enforceable “fundamental rights” provisions of the Indian Constitution are set forth in part III in order to distinguish them from the non-justiciable “directive principles” set forth in part IV, which establish the aspiration goals of economic justice and social transformation.[77] Overtime, case law has come to interpret Article 32 as allowing for ordinary citizens to petition the Supreme Court in matters where the Page | 17
  18. 18. government is accused of infringing upon the “fundamental rights” [particularly Article 21] of the constitution.[78] In addition, the Constitution includes Article 226[79] which the Courts have interpreted as giving any claimant the opportunity to file suit on behalf of the public in a High Court, when there is a violation of fundamental right or a right guaranteed by statute.[80] Thus, 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. Page | 18
  19. 19. 3.1 THE TRADITIONAL APPROACH It is hard to appreciate fully the extent of development of right to life without an overview of the traditional approach. In A. K. Gopalan v Union of India, [81] the traditional interpretation of Article 21 of the Constitution was that a procedure established by law can deprive a person of his right to life. Thus, the earliest understanding of this provision was a narrow and procedural one. The state had to demonstrate the interference with the individual’s right to life is accorded with the procedure laid down by properly enacted law. It didn’t matter whether the law was just & fair. Moreover, in Gopalan case the Court declined to infuse the guarantee of due process of law, contained in article 21, with substantive content, holding that as long as the preventive detention statutes had been duly enacted in accordance with the procedures of article 22, the requirements of due process were satisfied.[82] The interpretation as made by the Court was nothing more than the freedom from arrest and detention, from false imprisonment or wrongful confinement of the physical body.[83] Thus, “personal liberty” said to mean only liberty relating to person or body of individual and in this sense it was the antithesis of physical restraint or coercion. In the next Chapter it will be demonstrated how the traditional and narrow approach of the Supreme Court in interpreting Article 21 changed with changing time. Reference will be made to the Maneka Gandhi’s case and the dramatic change of attitude by the Court in interpreting Article 21 in a manner so as to impliedly include ‘due process of law’ into the contents of Article 21. Page | 19
  20. 20. 3.2 The Foundations of Change and the Beginning of New Era In this section it will demonstrated how judiciary dramatically changed the traditional interpretation of right to life to a modern and flexible interpretation. It was not until 1978 that the Supreme Court breathed substantive life into Article 21 by subjecting state action interfering with a person’s right to life to a test of reasonableness; requiring not only that the procedures be authorized by law, but that they are ‘right, just, fair and reasonable.’[84] This transformation paved the way for a substantive re-interpretation of constitutional and legal guarantees and positive judicial intervention. In the case of Maneka Gandhi v Union of India,[85] the petitioners passport was impounded 'in public interest' by an order dated July 2, 1977. The Government of India declined ‘in the interests of the general public’ to furnish the reasons for its decision. Thereupon, the petitioner filed a writ petition under Article 32[86] of the Constitution to challenge the order. The petitioner contended before the Court that the order of the Government of India does not prescribe 'procedure' within the meaning of Article 21 and if it is held that procedure has been prescribed, it is unfair, unjust and unreasonable. The Supreme Court held that the order passed against the petitioner was neither fair nor proper according to the procedure established by law. The decision given by the Supreme Court in this case is historic and landmark because it is the first of its kind which enhanced the scope of right to life. Specifically, 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.[87] 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).[88] Page | 20
  21. 21. As discussed above the ghost of Gopalan[89] was finally laid in Maneka Gandhi’s case. [90] A Constitutional Bench of Seven judges (overruling Gopalan) read into Article 21 a new dimension: it was not enough, said the Court, that the law prescribed some semblance of procedure for depriving a person of his life or personal liberty; the procedure prescribed by the law had to be reasonable, fair and just; if not, the law would be held void as violating the guarantee of Article 21. This fresh look at Article 21 has helped the apex court in its new role as the institutional ombudsman of human rights in India.[91] The decision in Maneka Gandhi became the starting point, the springboard, for a spectacular evolution of the law relating to judicial intervention in (individual) human rights cases.[92] Thus, the principle laid down by the apex court in this case is that the procedure established by law for depriving a person of his right to life must be right, just, fair, and reasonable. In the next part we will discuss some selected cases which enhanced the scope and ambit of right to life and personal liberty in India and the current trend (judicial activism) of judiciary in interpreting Article 21. Page | 21
  22. 22. 4.1 THE CURRENT TREND Maneka Gandhi’s case [93] demonstrates how judicial activism can expand the reach of law with a view to curbing and controlling executive discretion and ensuring the basic human rights of the citizen. In this part it will be demonstrated how judicial interpretation enhanced right to life and personal liberty in India with regard to the present scenario. Few landmark cases will be discussed which has drastically changed the interpretation of Article 21. The modern interpretation of right to life is one of the historical developments of constitutional law. In the Delhi Pollution Case,[94] the Supreme Court held in 1989 that Article 21 of the Constitution guaranteeing the right to life must be interpreted to include the “right to live in a healthy environment with minimum disturbance of ecological balance,” and “without avoidable hazard to [the people] and to their cattle, house and agricultural land, and undue affection (sic) of air, water, and environment.”[95] The subsequent ruling in Charan Lal Sahu v. Union of India[96] expanded upon this decision when Justice Kuldip Singh described the government’s role in the protection of fundamental rights: “[I]t is the obligation of the State to assume such responsibility and protect its citizens.” The Court held that the government’s obligation to protect fundamental rights forces it to protect the environment. Thus, from time to time the Supreme Court interpreted Article 21 broadly so as to infuse real life in the said article. It also waived the rule of locus standi so as to make the life of the citizens of India meaningful.[97] Page | 22
  23. 23. In Francis Coralie Mullin v Administrator, Union Territory of Delhi,[98] the Honourable Supreme Court stated that, The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.[99] Thus, the Supreme Court interpreted Article 21 in a widest possible manner and included within its ambit the right to live with human dignity. The cases examined in this part primarily relate to the modern approach of the Indian judiciary which demonstrated the enhanced interpretation of right to life and personal liberty. Thus, the scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, which has interpreted the right of life to mean the right to live a civilized life. In the next part of the essay we will discuss briefly the meaning of judicial activism so as to understand the creativity of the Indian judiciary in interpreting Article 21. 4.2 JUDICIAL ACTIVISM Judicial review [activism] means power of court of law to examine the actions of the legislative, executive and administrative arms of the government and to determine whether such actions are consistent with the constitution.[100] Actions judged inconsistent are unconstitutional and therefore, null and void.[101] Activism means an institution extending its mechanism of decision making into the domain of other Page | 23
  24. 24. institution’s tasks.[102] The term judicial activism is explained as “judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint of appellate judges.[103] ‘Judicial activism’ is a term that, to the non-lawyer, has come to mean strident judicial intervention that holds the executive to account for its sins of commission and, often, omission. The reach of judicial activism is also believed to extend to filling in spaces of silence where legislatures have not spoken – a belief reinforced by verdicts such as Vishaka v State of Rajasthan[104], which set out a law of sexual harassment at the workplace till a law is enacted by Parliament. In this context, it is judicial activism, as it has emerged through PIL that has given the court vibrancy and relevance among social factors beyond the rarefied confines of the legal community.[105] S. P. Sathe argues that judicial review [judicial activism] means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution.’[106] Surya Deva rightly argues that judicial activism refers to the phenomenon of the court dealing with those issues which they have traditionally not touched or which were not in he contemplation of the founding fathers... It is a state of mind, the origin of which lies in the ‘inactivism’ of other two wings of the government.[107] Justice V. G. Palshikar asserts that judicial activism means “an active interpretation of existing legislation by a judge, made with a view to enhance the utility of legislation for social betterment.”[108] Page | 24
  25. 25. Whereas Justice J. S. Verma has been more emphatic in laying down the exact norms of sufficient activist criterion. The learned judge has remarked: Judicial activism is required only when there is inertia in others. Proper judicial activism is that which ensures proper functioning of all other organs and the best kind of judicial activism is that which brings about results with the least judicial intervention. If everyone else is working, we don’t have to step in.[109] It is, no doubt, true that the judge has to interpret the law according to the words used by the legislature. But, as pointed out by Mr. Justice Holmes: “A word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.”[110] It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of the judge.[111] The judge is required not only to temper his role to the individual case, but to constantly invent new rules to more justly handle recurrent fact situations that the law has not fully anticipated. It is there that the judge takes part in the process of law-making-what Mr. Justice Holmes called “interstitial legislation.”[112] Judicial Activism is nothing but court’s move to reach at the doorstep of the ‘lowly and lost’ to provide them justice. Lord Hewart has asserted, “It ... is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[113] Judicial activism is the response to this reaction. It is worthwhile to mention the observations of the Supreme Court of India in one of the landmark decision [114] that the function of the court is not merely to interpret the law Page | 25
  26. 26. but to make it imaginatively sharing the passion of the Constitution for social justice. [115] I would describe judicial activism as a form of “creative constitutional development.” Having discussed briefly what constitutes judicial activism, it is important to understand the legitimacy of judicial activism. In the next section the discussion will focus on one of the most important and debatable question – how far judicial activism is justified? 4.3 HOW FAR JUDICIAL ACTIVISM IS JUSTIFIED? Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last 60 years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike. If the Court has come increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Court has no army at its command. It does not hold any purse strings. Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion. As the distinguished French author Alexis de Toquevulle describes the power wielded by judges is the power of public opinion.[116] Hamilton called the court system the weakest organ of government because it had control over neither the sword nor the purse.[117] A court becomes strong only when it identifies itself with the disadvantaged minorities and they see the court as an independent institution, a bulwark against oppression and tyranny. A court gains strength only by carving a niche for itself in the minds of the people. A court must appear to the people as their protector. It must not only be, but also must appear to be impartial, principled, and Page | 26
  27. 27. capable of achieving results.[118] There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.[119] Judges participating in judicial review of legislative action should be creative and not mechanistic in their interpretations. According to Justice Cardozo, a written constitution “states or ought to state not rules for the passing hour but principles for an expanding future.”[120] Judges who interpret a written constitution cannot merely apply the law to the facts that come before them. The scope of judicial creativity expands when a constitution contains a bill of rights. It is one thing to consider whether a legislature has acted within its powers and another to consider whether its acts, although within its plenary powers, are violative of any of the basic rights of the people. Therefore, judges who interpret a bill of rights must expound upon the philosophy and ideology that underlies the bill of rights.[121] When judges interpret the law or a constitution by not merely giving effect to the literal meaning of the words, but by trying to provide an interpretation consistent with the spirit of that statute or constitution, they are said to be activist judges.[122] In this sense, the judges who developed the common law were also activist.[123] Justice Krishna Iyer, in his own vivid terms, explained that ‘A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be construed by signals from the grave.[124] Justice Krishna Iyer in the landmark decision of Rajendra Prasad v State of U.P.[125] observed that, When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate Page | 27
  28. 28. amendments to S. 302 I.P.C. But if legislative under taking is not in sight, judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to posses the flavour of law-making. [He further went on to quote] Lord Dennings’ observations: “Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision - on every new situation - is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.”[126] The Supreme Court of India in Charles Sobhraj’s case[127] observed that a constitution is not to be interpreted by reference to the wishes or opinions of its framers, but by consideration of ‘the evolving standards of decency and signify that mark the progress of a mature society’.[128] The extension of judicial review over constitutional amendments was itself an exercise in judicial activism on the part of the Supreme Court of India. The Supreme Court, in the leading case of His Holiness Kesavananda Bharati v State of Kerala,[129] held by a process of judicial interpretation that though there are no express words in Article 368 of the Indian Constitution limiting the power conferred by that Article on Parliament to Page | 28
  29. 29. amend the Constitution, that power is not an unlimited or unrestricted power and it does not entitle Parliament to amend the Constitution in such a way as to alter or affect the basic structure of the Constitution.[130] This is undoubtedly a most remarkable instance of judicial activism, for that has gone to the farthest extent in limiting the constituent power of Parliament.[131] M. P. Jain argues that judicial interpretation of article 21, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law,” has led to a vast extension of substantive rights.[132] Jain rightly depicts this interpretation as “the Indian version of the American concept of due process of law,” but the scope of the expansion into the substantive domain engineered by the Indian Court far exceeds that of its American counterpart.[133] The Indian Court has emerged relatively unscathed in recent decades as a leading actor in the ordering of domestic priorities within the polity can be attributed in no small measure to a constitutional ethos that encourages all institutions, including the judiciary, to become active participants in the realization of particular ideological aspirations. In effect there exists a constitutional mandate for judicial activism. Justice M. K. Mukherjee while restraining the use of judicial activism observed “...to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.”[134] Pratap Bhanu Mehta argues that the evidence of judicial overreach is now too overwhelming to be ignored. He concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not Page | 29
  30. 30. because they are right, legal or just.”[135] One may question the wisdom of employing the judicial power to achieve a desirable social or economic end in the absence of an explicit constitutional mandate to do so. John Gava in his commentary titled “The Rise of the Hero Judge” has cautioned the use of judicial activism. He fears that the worst result of activism is that the judges may end up losing the public’s faith in their most important attribute – the perception that they are impartial referees deciding according to the rule of law.[136] Nevertheless it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre stage as long as courts continue to respond the way they do now. As Justice Pandiyan, a former judge of the Supreme Court has said on judicial creativity:[137] In a country like ours [India] more than eighty percent of people are economically backward and they are subjected to discrimination as a rule. In such an explosive situation causing adverse effect on society, when the executive and legislature are apathetic and fail to discharge their constitutional duties an Page | 30
  31. 31. CHAPTER-2- Article 21 of the Constitution of India - The Expanding Horizons Introduction The Constitution of India provides Fundamental Rights under Chapter III. These rights are guaranteed by the constitution. One of these rights is provided under article 21 which reads as follows:- 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. 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. Page | 31
  32. 32. 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. The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in Gopalans case 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 Page | 32
  33. 33. 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 Gopalans case in the case of Maneka Gandhi v. Union of India , 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 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 others 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 Page | 33
  34. 34. Corporation and others , 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 others 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. 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. and the Apex Court itself provided the list of Page | 34
  35. 35. 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 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. (b) Protection of under-trial. Page | 35
  36. 36. (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 India 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 Hariyana, AIR 2003 SC 3057 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 justice, Page | 36
  37. 37. 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. Page | 37
  38. 38. CHAPTER -3- Right to life i.e. Right not to die or Section 309, I.P.C.? Introduction 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. The first decision given to interpret the scope and meaning of life and personal liberty under article 21 of the Indian constitution was: A.K.Gopalan VS. State Of Madras (air 1950 sc 27) The apex court interpreted that the words "procedure established by law" in article 21 are to be given a wide and fluid meaning of the expression "due process of law" as given under the u.s. constitution but it refers to only state made statues laws. if any statutory law prescribed procedure for deprieving a person of his rights or personal liberty it should meet the requirements of article 21 Page | 38
  39. 39. However, after 2 decades this was over ruled in the case of R.C.Cooper VS. Union Of India (AIR 1970 SC 564) after this there where a series of decisions by the apex court including that of maneka gandhi vs. Union of India in this case it was held that any law that deprives the life and liberty must be just and fair krishna iyer j. rightly said that "procedure" in article 21 means fair , not formal procedure law is reasonable law not any enacted pieces" Now it is settled that That article 21 confers positive rights to life and liberty The word life in article 21 means a life of dignity and not just mere animal survival (this was also upheld in the case of Francis caralie{(1993)1 scc 645} The procedure of depriving a person of his life and liberty must be reasonable, air and just In the 1978, the 44th amendment of the constitution took place, article 359 was amended, and it provided that article 20 and 21 could not be suspended even during declaration of an emergency. In the case of P.Rathinam case held that right to live includes right not to live. Physical as well as mental health both are treated as integral part of right to live upholding that without good health , neither civil nor political rights which constitution confers cant be enjoyed. Judiciary has played a vital role in the interpretation and correct use of article 21. The following are some cases on "right to life" through judicial activism C Masilamani Mudaliar Vs. Idol Of Sri Swami Nathaswami Thrukoll {(1996) 8scc525/Pr22} Article 21 of the Indian constitution reinforces "right to life". Equity, dignity of a person and the right to development are the inherent rights of every human being. Life in its Page | 39
  40. 40. expanded horizon includes everything that gives meaning to a person's life including culture, heritage and tradition with dignity of a person. Noise Pollution (V), In Re, {(2005) 5 Scc 733/Pr 10} Article 21 guarantees right to life and includes all those aspects which make a persons life meaningful, complete and worth living. In the above case, it was held that any one who wishes to live in peace, no one can claim a right to create noise even though he does so in his own premises. Any noise, which materially interferes with the ordinary comforts of the life of the other, judged by an ordinary prudent man is nuisance. Kartar Singh vs. State of Punjab {(1994) 3 scc 569} Speedy trail is an essential part of the fundamental rights guaranteed by article 21 of the Indian constitution. Unni krishnan vs. State of Andhra pradesh the apex court has widened the scope of article 21 and has provided with the rights article 21 embraces within itself. They are Right to go abroad Right to privacy Right against solitary confinement Right against delayed execution Right to shelter Right against custodial death Page | 40
  41. 41. Right against public hearing Doctor's assistance Along with all these above-mentioned rights, it was also observed that the right to education would also be included as apart of right to life. A.k. bindal vs. Union of India (2003) 5 SCC 163 It was held that no person should be deprived of his life and personal liberty except according to the procedure established by law. Thus with the above brief preview of article 21 it is clear that it has a multidimensional interpretation. Any arbitrary, whimsical and fanciful act of the part of any state depriving the life or personal liberty would be against article 21 of the Indian constitution. Page | 41
  42. 42. CHAPTER -4- An Introduction of Fundamental Rights in India 'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or Gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. The six fundamental rights recognised by the constitution are:[1] 1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles. Page | 42
  43. 43. 2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases. 3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings; 4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes. 5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice. 6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre- independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by Page | 43
  44. 44. allowing them to preserve their languages and also establish and administer their own education institutions. Right to property was originally a fundamental right, but is now a legal right. 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).[2] Under the educational system of British Raj, students were exposed to ideas of democracy, human rights and European political history. The Indian student community in England was further inspired by the workings of parliamentary democracy and Bruisers 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. Page | 44
  45. 45. 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 defense 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. When India obtained independence on 15 August 1947, the task of developing a constitution for the nation was undertaken by the Constituent Assembly of India, composing of elected representatives under the presidency of Rajendra Prasad. 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. Page | 45
  46. 46. 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. Significance and characteristics The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. The writers of the constitution regarded democracy of no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State.[5] According to them, "democracy" is, in essence, a government by opinion and therefore, the means of formulating public opinion should be secured to the people of a democratic nation. For this purpose, the constitution guaranteed to all the citizens of India the freedom of speech and expression and various other freedoms in the form of the fundamental rights.[6] All people, irrespective of race, religion, caste or sex, have been given the right to move the Supreme Court and the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so. Poverty stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as "Public interest litigation".[7] In some cases, High Court judges have acted on their own on the basis of newspaper reports. Page | 46
  47. 47. These fundamental rights help not only in protection but also the prevention of gross violations of human rights. They emphasize on the fundamental unity of India by guaranteeing to all citizens the access and use of the same facilities, irrespective of background. Some fundamental rights apply for persons of any nationality whereas others are available only to the citizens of India. The right to life and personal liberty is available to all people and so is the right to freedom of religion. On the other hand, freedoms of speech and expression and freedom to reside and settle in any part of the country are reserved to citizens alone, including non-resident Indian citizens.[8] The right to equality in matters of public employment cannot be conferred to overseas citizens of India.[9] Fundamental rights primarily protect individuals from any arbitrary state actions, but some rights are enforceable against individuals.[10] For instance, the Constitution abolishes untouchability and also prohibits beggar. These provisions act as a check both on state action as well as the action of private individuals. However, these rights are not absolute or uncontrolled and are subject to reasonable restrictions as necessary for the protection of general welfare. They can also be selectively curtailed. The Supreme Court has ruled[11] that all provisions of the Constitution, including fundamental rights can be amended. However, the Parliament cannot alter the basic structure of the constitution. Features such as secularism and democracy fall under this category. Since the fundamental rights can only be altered by a constitutional amendment, their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. [12] Page | 47
  48. 48. A state of national emergency has an adverse effect on these rights. Under such a state, the rights conferred by Article 19 (freedoms of speech, assembly and movement, etc.) remain suspended. Hence, in such a situation, the legislature may make laws which go against the rights given in Article 19. Also, the President may by order suspend the right to move court for the enforcement of other rights as well. Right to equality Right to equality is an important right provided for in Articles 14, 15, 16, 17 and 18 of the constitution. It is the principal foundation of all other rights and liberties, and guarantees the following: • Equality before law: Article 14 of the constitution guarantees that all citizens shall be equally protected by the laws of the country. It means that the State[5] cannot discriminate any of the Indian citizens on the basis of their caste, creed, colour, sex, gender, religion or place of birth.[13] • Social equality and equal access to public areas: Article 15 of the constitution states that no person shall be discriminated on the basis of caste, colour, language etc. Every person shall have equal access to public places like public parks, museums, wells, bathing ghats and temples etc. However, the State may make any special provision for women and children. Special provisions may be made for the advancements of any socially or educationally backward class or scheduled castes or scheduled tribes.[14] Page | 48
  49. 49. • Equality in matters of public employment: Article 16 of the constitution lays down that the State cannot discriminate against anyone in the matters of employment. All citizens can apply for government jobs. There are some exceptions. The Parliament may enact a law stating that certain jobs can only be filled by applicants who are domiciled in the area. This may be meant for posts that require knowledge of the locality and language of the area. The State may also reserve posts for members of backward classes, scheduled castes or scheduled tribes which are not adequately represented in the services under the State to bring up the weaker sections of the society. Also, there a law may be passed which requires that the holder of an office of any religious institution shall also be a person professing that particular religion.[15] According to the Citizenship (Amendment) Bill, 2003, this right shall not be conferred to Overseas citizens of India.[9] • Abolition of untouchability: Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an offense and anyone doing so is punishable by law.[16] The Untouchability Offences Act of 1955 (renamed to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a place of worship or from taking water from a tank or well. • Abolition of Titles: Article 18 of the constitution prohibits the State from conferring any titles. Citizens of India cannot accept titles from a foreign State.[17] The British government had created an aristocratic class known as Rai Bahadurs and Khan Bahadurs in India — these titles were also abolished. However, Page | 49
  50. 50. Military and academic distinctions can be conferred on the citizens of India. The awards of Bharat Ratna and Padma Vibhushan cannot be used by the recipient as a title and do not, accordingly, come within the constitutional prohibition".[18] The Supreme Court, on 15 December 1995, upheld the validity of such awards. Right to freedom The Constitution of India contains the right to freedom, given in articles 19, 20, 21 and 22, with the view of guaranteeing individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the following six freedoms:[19] • Freedom of speech and expression, which enable an individual to participate in public activities. The phrase, "freedom of press" has not been used in Article 19, but freedom of expression includes freedom of press. Reasonable restrictions can be imposed in the interest of public order, security of State, decency or morality. • Freedom to assemble peacefully without arms, on which the State can impose reasonable restrictions in the interest of public order and the sovereignty and integrity of India. • Freedom to form associations or unions on which the State can impose reasonable restrictions on this freedom in the interest of public order, morality and the sovereignty and integrity of India. Page | 50
  51. 51. • Freedom to move freely throughout the territory of India though reasonable restrictions can be imposed on this right in the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics. • Freedom to reside and settle in any part of the territory of India which is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion.[20] Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.[21] • Freedom to practice any profession or to carry on any occupation, trade or business on which the State may impose reasonable restrictions in the interest of the general public. Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade. The constitution guarantees the right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and enforced: • Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time. This legal Page | 51
  52. 52. axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it. Moreover, no person accused of any offence shall be compelled to be a witness against himself. "Compulsion" in this article refers to what in law is called "Duress" (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination. The other principle enshrined in this article is known as the principle of double jeopardy, that is, no person can be convicted twice for the same offence, which has been derived from Anglo Saxon law. This principle was first established in the Magna Carta.[22] • Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law.[23] This means that a person's life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence. (Attempted suicide being interpreted as a crime has seen many debates. The Supreme Court of India gave a landmark ruling in 1994. The court repealed section 309 of the Indian penal code, under which people attempting suicide could face prosecution and prison terms of up to one year.[24] In 1996 however another Supreme Court ruling nullified the earlier one.[25] ) "Personal liberty" includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under "personal liberty" in Article 21.[26] Page | 52
  53. 53. • In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made the right to primary education part of the right to freedom, stating that the State would provide free and compulsory education to children from six to fourteen years of age.[27] Six years after an amendment was made in the Indian Constitution, the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be tabled in Parliament for approval before it makes a fundamental right of every child to get free and compulsory education.[28] • A right of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours. The rights of a person arrested under ordinary circumstances are not available to an enemy alien. They are also not available to persons detained under the Preventive Detention Act. Under preventive detention, the government can imprison a person for a maximum of three months. It means that if the government feels that a person being at liberty can be a threat to the law and order or to the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. After three months such a case is brought before an advisory board for review.[29] The constitution also imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India. In the interest of morality and public order, the government can also impose restrictions. Page | 53
  54. 54. However, the right to life and personal liberty cannot be suspended. The six freedoms are also automatically suspended or have restrictions imposed on them during a state of emergency. Right against exploitation Child labour and Beggar is prohibited under Right against exploitation. The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labor),[30] and abolition of employment of children below the age of 14 years in dangerous jobs like factories and mines. Child labour is considered a gross violation of the spirit and provisions of the constitution.[31] Begar, practised in the past by landlords, has been declared a crime and is punishable by law. Trafficking in humans for the purpose of slave trade or prostitution is also prohibited by law. An exception is made in employment without payment for compulsory services for public purposes. Compulsory military conscription is covered by this provision.[30] Right to freedom of religion Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Page | 54
  55. 55. Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health.[32] No person shall be compelled to pay taxes for the promotion of a particular religion.[33] A State run institution cannot impart education that is pro-religion.[34] Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.[35] Cultural and educational rights As India is a country of many languages, religions, and cultures, the Constitution provides special measures, in Articles 29 and 30, to protect the rights of the minorities. Any community which has a language and a script of its own has the right to conserve and develop it. No citizen can be discriminated against for admission in State or State aided institutions.[36] All minorities, religious or linguistic, can set up their own educational institutions to preserve and develop their own culture. In granting aid to institutions, the State cannot discriminate against any institution on the basis of the fact that it is administered by a minority institution.[37] But the right to administer does not mean that the State can not interfere in case of maladministration. In a precedent-setting judgment in 1980, the Supreme Court held that the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards. It can also issue guidelines for Page | 55
  56. 56. ensuring the security of the services of the teachers or other employees of the institution. In another landmark judgement delivered on 31 October 2002, the Supreme Court ruled that in case of aided minority institutions offering professional courses, admission could only be through a common entrance test conducted by State or a university. Even an unaided minority institution ought not to ignore the merit of the students for admission. Right to Life In recent judgement Supreme Court of India extended scope of right to life which was mentioned earlier. Right to constitutional remedies Right to constitutional remedies empowers the citizens to move a court of law in case of any denial of the fundamental rights. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed. This procedure of asking the courts to preserve or safeguard the citizens' fundamental rights can be done in various ways. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. When a national or state emergency is declared, this right is suspended by the central government.[38] Critical analysis The fundamental rights have been revised for many reasons. Political groups have demanded that the right to work, the right to economic assistance in case of Page | 56
  57. 57. unemployment, old age, and similar rights be enshrined as constitutional guarantees to address issues of poverty and economic insecurity,[39] though these provisions have been enshrined in the Directive Principles of state policy.[40] The right to freedom and personal liberty has a number of limiting clauses, and thus have been criticized for failing to check the sanctioning of powers often deemed "excessive".[39] There is also the provision of preventive detention and suspension of fundamental rights in times of Emergency. The provisions of acts like the Maintenance of Internal Security Act (MISA) and the National Security Act (NSA) are a means of countering the fundamental rights, because they sanction excessive powers with the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil rights.[39] The phrases "security of State", "public order" and "morality" are of wide implication. People of alternate sexuality is criminalized in India with prison term up to 10 years. The meaning of phrases like "reasonable restrictions" and "the interest of public order" have not been explicitly stated in the constitution, and this ambiguity leads to unnecessary litigation.[39] The freedom to assemble peaceably and without arms is exercised, but in some cases, these meetings are broken up by the police through the use of non-fatal methods.[41][42] "Freedom of press" has not been included in the right to freedom, which is necessary for formulating public opinion and to make freedom of expression more legitimate.[39] Employment of child labour in hazardous job environments has been reduced, but their employment even in non-hazardous jobs, including their prevalent employment as domestic help violates the spirit and ideals of the constitution. More than 16.5 million children are employed and working in India.[43] India was ranked 88 out of 159 in 2005, according to the degree to which corruption is perceived to exist among public officials Page | 57
  58. 58. and politicians worldwide.[44] The right to equality in matters regarding public employment shall not be conferred to Overseas citizens of India, according to the Citizenship (Amendment) Bill'', 2003.[9] Amendments Changes to the fundamental rights require a constitutional amendment which has to be passed by a special majority of both houses of Parliament. This means that an amendment requires the approval of two-thirds of the members present and voting. However, the number of members voting should not be less than the simple majority of the house — whether the Lok Sabha or Rajya Sabha. The right to education at elementary level has been made one of the fundamental rights under the Eighty-Sixth Amendment of 2002.[27] Right to property The Constitution originally provided for the right to property under Articles 19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold and dispose of property. Article 31 provided that "no person shall be deprived of his property save by authority of law." It also provided that compensation would be paid to a person whose property has been taken for public purposes. The provisions relating to the right to property were changed a number of times. The Forty-Forth Amendment of 1978 deleted the right to property from the list of fundamental rights[45] A new provision, Article 300-A, was added to the constitution Page | 58
  59. 59. which provided that "no person shall be deprived of his property save by authority of law". Thus if a legislature makes a law depriving a person of his property, there would be no obligation on the part of the State to pay anything as compensation. The aggrieved person shall have no right to move the court under Article 32. Thus, the right to property is no longer a fundamental right, though it is still a constitutional right. If the government appears to have acted unfairly, the action can be challenged in a court of law by citizens. [39] The liberalization of the economy and the government's initiative to set up special economic zones has led to many protests by farmers and have led to calls for the reinstatement of the fundamental right to private property.[46] The Supreme Court has sent a notice to the government questioning why the right should not be brought back but in 2010 the court rejected the PIL [47] As in 2007 the supreme court unanimously said that the fundamental rights are a basic structure of the constitution and cannot be removed or diluted on that time. Right to Education Article 21A - On 1 April 2010, India joined a group of few countries in the world, with a historic law making education a fundamental right of every child coming into force.[48] Making elementary education an entitlement for children in the 6-14 age group, the Right of Children to Free and Compulsory Education Act will directly benefit children who do not go to school at present. Page | 59
  60. 60. Prime Minister Manmohan Singh announced the operationalisation of the Act. Children, who had either dropped out of schools or never been to any educational institution, will get elementary education as it will be binding on the part of the local and State governments to ensure that all children in the 6-14 age group get schooling. As per the Act, private educational institutions should reserve 25 per cent seats for children from the weaker sections of society. The Centre and the States have agreed to share the financial burden in the ratio of 55:45, while the Finance Commission has given Rs. 25,000 crore to the States for implementing the Act. The Centre has approved an outlay of Rs.15,000 crore for 2010-2011. The school management committee or the local authority will identify the drop-outs or out-of-school children aged above six and admit them in classes appropriate to their age after giving special training. _____________________________________________________ 1. Constitution of India-Part III Fundamental Rights. 2. Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-23 3. Gandhi, Rajmohan. Patel: A Life. p. 206. 4. UNI. "Sardar Patel was the real architect of the Constitution". Rediff.com. Retrieved 2006-05-15. 5. a b The term "State" includes all authorities within the territory of India. It includes the Government of India, the Parliament of India, the Government and legislature of the states of India. It also includes all local or other authorities such as Municipal Corporations, Municipal Boards, District Boards, Panchayats etc. To avoid confusion with the term states and territories of India, State (encompassing all the authorities in India) has been capitalized and the term state (referring to the state governments) is in lowercase. 6. Laski, Harold Joseph (1930). Liberty in the Modern State. New York and London: Harpers and Brothers. Page | 60
  61. 61. 7. "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69". World Legal Information Institute. Retrieved 2006-05-25. This was the case where Public interest litigation was introduced (date of ruling 15 December 1995). 8. Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-25 9. a b c "Citizenship (Amendment) Bill, 2003" (PDF). Rajya Sabha. pp. 5. Archived from the original on April 25, 2006. Retrieved 2006-05-25. 10. "Bodhisattwa Gautam vs. Subhra Chakraborty; 1995 ICHRL 69". World Legal Information Institute. Retrieved 2006-05-25. This was the case where fundamental rights were enforced against private individuals (date of ruling 15 December 1995). 11. Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4 SCC 225 — In what became famously known as the "Fundamental Rights case", the Supreme Court decided that the basic structure of the Constitution of India was unamendable 12. Tayal, B.B. & Jacob, A. (2005), Indian History, World Developments and Civics, pg. A-24 13. Constitution of India-Part III Article 14 Fundamental Rights. 14. Constitution of India-Part III Article 15 Fundamental Rights. 15. Constitution of India-Part III Article 16 Fundamental Rights. 16. Constitution of India-Part III Article 17 Fundamental Rights. 17. Constitution of India-Part III Article 18 Fundamental Rights. 18. Basu, Durga Das (1988). Shorter Constitution of India. New Delhi: Prentice Hall of India. Basu, Durga Das (1993). Introduction to the Constitution of India. New Delhi: Prentice Hall of India. 19. Constitution of India-Part III Article 19 Fundamental Rights. 20. Pylee, M.V. (1999). India's Constitution. New Delhi: S. Chand and Company. ISBN 81-219-1907-X. 21. Vasudha Dhagamwar (4 May 2004). "The price of a Bill". Retrieved 24 March 2009. 22. Constitution of India-Part III Article 20 Fundamental Rights. 23. Constitution of India-Part III Article 21 Fundamental Rights. 24. Nandan G (May 1994). "Indian grants right to suicide". BMJ 308 (6941): 1392. 25. Paper 3: Abolition and Restoration of Section 309 IPC – an overview by BR Sharma, A Sharma, D Harish: Anil Aggrawal's Internet Journal of Forensic Medicine: Vol. 7, No. 1 (January - June 2006) 26. Maneka Gandhi v. Union of India; AIR 1978 S.C. 597, (1978). 27. a b 86th Amendment Act, 2002. 28. right to education bill. 29. Constitution of India-Part III Article 22 Fundamental Rights. 30. a b Constitution of India-Part III Article 23 Fundamental Rights. 31. Constitution of India-Part III Article 24 Fundamental Rights. 32. Constitution of India-Part III Article 26 Fundamental Rights. 33. Constitution of India-Part III Article 27 Fundamental Rights. 34. Constitution of India-Part III Article 28 Fundamental Rights. 35. Constitution of India-Part III Article 25 Fundamental Rights. Page | 61

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