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JUDICIAL INTERPRETATION OF ARTICLE 21 OF THE INDIAN CONSTITUTION

TABLE OF CONTENTS
Contents................................... 2
List of Abbreviations................................... 5
List of Law Reports................................... 6
Abstract................................... 7
CHAPTER 1
1.1 Introduction................................... 8
CHAPTER 2
2.1 Meaning and Concept of Right to life................................... 13
2.2 Meaning and Concept of Personal Liberty................................... 15
2.3 Procedure Established by Law................................... 17
2.4 Article 21 and Directive Principles of the State Policy................................... 22
2.5 Article 21 and International Human Rights Documents...................................
25
Article 32 of the Indian Constitution: A Provision to Enforce Article
21................................... 29
CHAPTER 3
3.1 The Traditional Approach................................... 32
3.2 The Foundations of Change and the Beginning of New
Era................................... 33
CHAPTER 4
4.1 The Current Trend................................... 36
4.2 Judicial Activism................................... 38
Conclusion................................... 67
BIBLIOGRAPHY
Legislation................................... 70
Cases................................... 72
Books................................... 73
Articles................................... 76
International Human Rights Instruments /
Declarations / Resolutions................................... 79
Selected Daily Newspapers and Other Sources................................... 80
ACRONYMS
CAD Constituent Assembly Debates
CONST Constitution of India, 1950
CR.P.C. Code of Criminal Procedure, 1973
ICCPR International Covenant on Civil and Political Rights, 1966
GA General Assembly of the United Nations
IPC Indian Penal Code, 1860
NHRC National Human Rights Commission, India
SC Supreme Court [Supreme Court of India]
SLP Special Leave Petition
UDHR Universal Declaration of Human Rights, 1948
WP Writ Petition

LIST OF LAW REPORTS


Abbreviation Title Jurisdiction
AIR All India Reporter India
SCC Supreme Court Cases India
SCR Supreme Court Reports India
Cr.LJ Criminal Law Journal India
WLR Wales Law Reports UK
JUDICIAL INTERPRETATION OF ARTICLE 21 OF
THE INDIAN CONSTITUTION

ABSTRACT
It is very evident that the judiciary has evolved from an positivist institution to an
activist on in the 20th century. However, when it comes to Article 21 of the
Constitution of India, the judiciary has not only been involved in judicial activism,
but also judicial creativity. This paper explains how trend of interpreting Article
21 has changed over the years and the various rights that fall under it.
Indian Judiciary though is restrained, in many ways has evolved itself as a
saviour 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 saviour 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.
1.1 INTRODUCTION
This paper is a study of constitutional jurisprudence of Article 21 of the Indian
Constitution. This article comprehensively examines 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 and is enforceable against the State. The new interpretation of Article
21 in Maneka Gandhis case has ushered a new era of expansion of the horizons
of right to life and personal liberty. The wide dimension 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 Instruments. 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 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 wider scope in day to day events by the legal
processes advanced by judicial creativity.
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 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 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 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.
CHAPTER 2
2.1 MEANING AND CONCEPT OF RIGHT TO LIFE
Everyone has the right to life, liberty and the security of person. 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. 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. There
would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted
in its original sense. 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. 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, right to livelihood, right to health, right to pollution
free air, 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. 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. 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 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.
The smallest Article 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; 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 Singhs 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, 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 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. 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.
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.
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] 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
Gandhis 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 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 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 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 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 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 Indias 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 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.
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.
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
aspirational 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 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.

CHAPTER 3
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, 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
individuals right to life is accorded with the procedure laid down by properly
enacted law. It didnt 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. 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. 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 Gandhis
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.
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 persons 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.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, 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 Gandhis
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).
As discussed above the ghost of Gopalan was finally laid in Maneka Gandhis
case. 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. 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. 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.
CHAPTER 4
4.1 THE CURRENT TREND
Maneka Gandhis case demonstrate 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, 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.
The subsequent ruling in Charan Lal Sahu v. Union of India[96] expanded upon
this decision when Justice Kuldip Singh described the governments 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
governments 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.
In Francis Coralie Mullin v Administrator, Union Territory of Delhi, 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.
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.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India[iii], the Supreme Court gave a new dimension
to Art. 21 and held that the right to live the right to live is not merely a physical
right but includes within its ambit the right to live with human dignity.
Elaborating the same view, the Court in Francis Coralie v. Union Territory of
Delhi[iv], observed that:

The right to live includes the right to live with human dignity and all that goes
along with it, viz., the bare necessities 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 mingling with
fellow human beings and must include the right to basic necessities the basic
necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.

Another broad formulation of the theme of life to dignity is to be found in


Bandhua Mukti Morcha v. Union of India[v]. Characterizing Art. 21 as the heart of
fundamental rights, the Court gave it an expanded interpretation. Bhagwati J.
observed:

It is the fundamental right of everyone in this country to live with human


dignity free from exploitation. This right to live with human dignity enshrined in
Article 21 derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the
least, therefore, it must include protection of the health and strength of workers,
men and women, and of the tender age of children against abuse, opportunities
and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work
and maternity relief. These are the minimum requirements which must exist in
order to enable a person to live with human dignity and no State neither the
Central Government nor any State Government-has the right to take any action
which will deprive a person of the enjoyment of these basic essentials.

Following the above stated cases, the Supreme Court in Peoples Union for
Democratic Rights v. Union of India[vi], 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. Bhagwati J. held that, rights and benefits conferred on workmen
employed by a contractor under various labour laws are clearly intended to
ensure basic human dignity to workmen. He held that the non-implementation by
the private contractors engaged for constructing building for holding Asian
Games in Delhi, and non-enforcement of these laws by the State Authorities of
the provisions of these laws was held to be violative of fundamental right of
workers to live with human dignity contained in Art. 21[vii].

In Chandra Raja Kumar v. Police Commissioner Hyderabad[viii],it has been held


that the right to life includes right to life with human dignity and decency and,
therefore, holding of beauty contest is repugnant to dignity or decency of women
and offends Article 21 of the Constitution only if the same is grossly indecent,
scurrilous, obscene or intended for blackmailing. The government is empowered
to prohibit the contest as objectionable performance under Section 3 of the
Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan[ix], the Court struck down a provision of


Bombay Civil Service Rules, 1959, which provided for payment of only a nominal
subsistence allowance of Re. 1 per month to a suspended Government Servant
upon his conviction during the pendency of his appeal as unconstitutional on the
ground that it was violative of Article 21 of the Constitution.s
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 institutions 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] 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 dont 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 courts 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 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?