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PERSONAL LIBERTY
(Art. 20, 21, 22)
B.
PROTECTION OF LIFE AND PERSONAL LIBERTY. (Art. 21)
QUESTION BANK.
Q. 1. “No person shall be deprived of his life and personal liberty except according to the
procedure established by law”.
Q.2. Explain fully the constitutional guarantee as to protection of life and liberty of
person.
Q.3. Explain the meaning and scope of the right to life and personal liberty ensured under
Art. 21 of the Constitution.
Q.4. What safeguards are available to persons in India against deprivation of their
personal liberty?.
Q.5. Explain the scope of ‘Personal Liberty’ under Art. 21 as laid down by
Supreme Court in recent cases.
SYNOPSIS
I.
INTRODUCTION:-
Art. 21 guarantees ‘the right to life and personal liberty’ to every person
irrespective of his citizenship. It is the heart of fundamental rights, which has received the
widest possible and most liberal interpretation. So many rights have found shelter and
growth under this Article. Art. 21 states, “No person shall be deprived of his life or personal
liberty, except according to the procedure established by law”.
II. MEANING AND SCOPE OF ART.21:-
a)
Restricted view as to ‘personal liberty’ under Art. 21:-
Facts—The petitioner, A. K. Gopalan, a Communist leader, was detained under the
Preventive Detention Act 1950. The petitioner challenged the validity of the Act on the
following grounds: Viz.
i.
that detention has violated his right to freedom of movement under Art. 19 (1)
(d), which is the essence of personal liberty guaranteed by Art. 21. Therefore, the law that
takes away ‘personal liberty’ must be reasonable under Art. 19 (5).
ii.
that the word ‘law’ in Art. 21 does not mean merely enacted law but should also
incorporate principles of natural justice.
iii.
that the word ‘procedure established by law’ means the procedure established by
law to take away a person’s life or personal liberty should be ‘due process,’ i.e. fair,
1 AIR 1950 SC 27
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reasonable and just process.
b)
Liberal view as to ‘personal liberty’ under Art. 21:-
Facts-Mrs. Maneka Gandhi, a journalist, wanted to go abroad, but the Central Government
impounded her passport under S. 10 (3) (c) of the Passport Act 1967. The Act authorised
the Government to impound passports ‘in the interest of the general public’. The
government declined ‘in the interest of the general public’ to furnish the reasons for
impounding passports. Petitioner challenged the Constitutional validity of the said Act on
the following grounds -
i.
Order violated Art. 19, 21, 14 because the ‘law’ and ‘procedure’ depriving
personal liberty must be reasonable. If restrictions are to be imposed, such restrictions must
be reasonable under Art. 19 (2) to 19 (6), therefore, there is a link between Art. 19 and 21.
ii.
The provision of the Act is violative of Art. 14 because it confers an arbitrary power
since it did not provide for a hearing of a passport holder before the passport was
impounded.
iii.
S. 10 (3) (c) was violative of Art. 21 since it did not prescribe ‘procedure’ within
the meaning of Art. 21.
Held- The Supreme Court accepted the above arguments and held-
i.
‘Procedure’-
The procedure contemplated in Art. 21 should not be unfair or unreasonable. Therefore,
any procedure that permitted impairment of an individual’s right to go abroad without
giving him a reasonable opportunity to be heard could not be condemned as unfair and
unjust (i.e. violates the rule of natural justice, i.e. to be heard).
ii.
‘Law’-
Law contemplated under Art. 21 must be valid and must also be just, reasonable and fair
(i.e. natural justice)
iii.
Inter-relation of Art. 14, 19, 21 and 22:-
Art. 14, 19, 21, and 22 are interlinked, and Art. 21 should satisfy the
requirements of Art. 14 and 19.
Thus, Art. 21 requires the following conditions to be fulfilled before a person
is deprived of his life and personal liberty, viz-
2 However, Fazal Ali J. in his dissenting judgment held that the Act of 1950 was liable to be challenged as violating
the provisions of Art. 19. He gave wide and comprehensive meaning to the words ‘personal liberty’ as consisting of
freedom of movement. Therefore, any law which deprives a person of his personal liberty must satisfy the
requirements of Art. 19 and 21
3 AIR 1978 SC 597
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(i) There must be valid law.
(ii) The law must provide a procedure.
(iii) The procedure must be just, fair, and reasonable.
The law must satisfy the requirements of Art. 14 and 19, i.e. it must be reasonable.
Before the decision of Maneka Gandhi’s case, the right under Art. 21 was
protected against the arbitrary action of the Executive but not from Legislative action
(i.e. from arbitrary law). However, after Maneka’s case, Art. 21 can be invoked not only
III.
NEW DIMENSIONS TO ART. 21:-
After liberal interpretation in Maneka Gandhi`s case, Art. 21 acquired new
dimensions, so many rights have found shelter, growth, and nourishment under Art. 21.
The Criminal Justice system, by such liberal interpretation, was affected positively. The
article has the widest and most liberal interpretation of the Constitution. Following are
some of the rights developed under Art. 21 after Maneka Gandhi’s case-
1.
Impact on the criminal justice system:-
The protection of Art. 21 extends to all persons accused of offences, under-
trial prisoners, prisoners undergoing jail sentences, etc. Thus, all aspects of Criminal justice
fall under the umbrella of Art. 14, 19, and 21.
Facts—A petition was filed by the number of under-trial prisoners who had been in the
jails of Bihar for years awaiting their trial.
Supreme Court held- that the ‘right to speedy trial’ is a fundamental right implicit under
Art. 21.
2.
Right to education.
(for more details, see in Note at the end of this topic)
3. Right to livelihood:-
4 In Kharak Singh v. State of U. P. (AIR 1963 SC 1295).
Court held- that the expression ‘life’ was not limited to bodily restraint or confinement to prison only but something
more than mere animal existence.
Facts- The petitioner, Kharak Singh, had been charged in dacoity case but was released as there was no evidence
against him. Under the U.P. Police Regulations, the Police opened a history-sheet for him and he was kept under
police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and
verification of his movements and activities. ‘Domiciliary visits’ mean visits by the police in the night to the private
house for the purpose of making sure that the suspect is staying home or whether he has gone out.
Supreme Court observed- that the domiciliary visits of the policemen were an invasion on the petitioner’s personal
liberty.
5 AIR 1979 SC 1360.
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Supreme Court held- that the right to life under Art. 21 includes the right to livelihood
because no person can live without a livelihood.
Therefore, a person has the right to minimum wages for his work, equal pay
for equal work, etc.
4.
Right of privacy:-
In People’s Union for Civil Liberties v. Union of India.
Supreme Court Held- that Telephone tapping is a serious invasion of an individual’s right
to privacy, which is part of the right to life and personal liberty enshrined in Art. 21 of the
Constitution.
It also includes the right to live with human dignity and not merely animal existence.
5.
Right to get pollution-free water and air:-
Protection of the environment and ecology from pollution is covered by Art.
21. Getting pollution-free water and air is a fundamental right and is included in life and
personal liberty.
In Murli S. Deora v. Union of India.
Supreme Court ordered the prohibition of smoking in public places to protect the health
of non-smokers.
6.
7.
Right to shelter:-
Right to health and medical assistance.
In Pratibha Shinde v. Principal Secretary, Public Health Department
(Laws (Bom. H.C) 2021- (1)- 79)
Facts:- An elderly COVID-19-affected woman patient was found dead in a hospital toilet,
and her body was recovered after five days. The authority was found rash and negligent in
treating the patients.
In the writ petition, the Bombay High Court held that failure on the part of the
government medical hospital to provide immediate medical treatment to a patient amounts
to a violation of Art. 21. The court awarded Rs. 5 lac compensation to heirs. It further
observed that the right to health includes a right to live in a clean, hygienic, safe
environment in a hospital.
8.
9.
Right to die- not a fundamental right.
6 AIR 1986 SC 180.
7
In State of Maharashtra v. Manubhai Pragaji Vashi (1995) 5 SCC 730. the Court has considerably widened the
scope of the right to free legal aid. The Court Held that in order to provide “the free legal aid” it is necessary to
have well-trained lawyers in the country. This is only possible if there are adequate number of law colleges with
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10. Right to life cannot be suspended in an emergency by Presidential order.
12. Right against solitary confinement
13. Right against handcuffing
14. Right to travel abroad
15. Right against custodial harassment
16. Right against delayed execution
17. Right to live with human dignity
18. Right not driven out of state
19. Right to a fair trial
Note-
Right to Education (Art. 21 A)
The Supreme Court, in various judgments, has held that the right to education is a
fundamental right under Art. 21. Even the right to get free education for up to 14 years is
The Supreme Court declared the right to education for children aged 6 to 14 a fundamental
right. Accordingly, art. 21 A has been inserted to strengthen this right further.
In R. D. Upadhyay v. The State of A. P.
Held- a child shall not be treated as an under trial or convict while in jail with his/her
mother. Such a child is entitled to food, shelter, medical care, clothing, education, and
necessary infrastructure, good teachers and staff. Since the Government is unable to establish adequate number of
law colleges, it is the duty of the Government to permit establishments of duly recognised.
8 People’s Union for Democratic Rights vs. Union of India (AIR 1982 Sc 1473)
(The Asiad Games Case)
Facts- For conducting The Asiad Games 1982 the Central Government started to construct several projects necessary
for conducting the various games. It handed over the constructional works to various contractors, who paid very lowest
wages, which were not sufficient even for food. People’s Union for Democratic Rights brought Public Interest
Litigation under Article 32 against the Central Government alleging that it was exploiting the labour by paying the
lesser wages and it also amounted the exploitation of personal liberty and life of the workers, “to live with human
dignity”.
Held-Supreme Court held that non-payment of minimum wages to the workers employed in various Asiad Projects
in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the
Constitution.
9 Uni Krishnan v. State of A. P. (1993) 1 SCC 1.
Even 93rd Amendment Bill 2001 of the Constitution provides the ‘right to education’ as fundamental right. This
Amendment prepares to add new clause Art. 21, A which provides, “ The State shall provide free and compulsory
education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.
10 Mohini Jain v. State of Karnataka
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recreational facilities as a matter of right.
Art. 21-A has been inserted in the Constitution by the Constitution (86th
Amendment) Act, 2002. Art. 21-A provides that ‘the state shall provide free and
compulsory education to all children of the age of 6 to 14 years in such manner as the State
may, by law, declare.’
Thus, free and compulsory education for children from 6 to 14 years of age is a
fundamental right.
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