CHAPTER - 1

INTRODUCTION

Any one would hardly refrain from accepting that the right to life and
personal liberty is one of the most fundamental of fundamental rights. It is a
right which is vital to the maintenance of human dignity and indeed without it
all other fundamental rights would ease to have any pragmatic meaning. The
framers of the Indian Constitution were quite aware of the mischievous devices
of the aliens through which the people of the country were deprived of this right
in its true sense. Thats why Article 21 was inserted in the constitution to ensure
that No person shall be deprived of his life or personal liberty except
according to procedure established by law. But they also wished that freedom
should not go to mean too much. Hence the Due Process Clause of the U.S.
Constitution was purposely avoided and replaced by the procedure established
by law. In other words even after incorporation of the right in the Constitution
a person could still be deprived of the said precious right by the legislature
according to the procedure established by it. It was not clear whether such a
procedure could be challenged in a court of law as being unjust, unfair and
unreasonable and therefore, unconstitutional.

The very first decision of the Supreme Court in A.K. Gopalans case1
(1951) removed the mist and clearly stated that reasonableness or fairness of the
procedure laid down by the legislature was not open to judicial scrutiny.
Honourable Faizal Ali J; alone dissented. Though in tune with the intention of
the framers, this literal interpretation was fatal and almost killed Article 21. As
interpreted by the Court it placed no limitation on Legislature far as it related to
deprivation of life and personal liberty of any person. It was only a guarantee
against executive action of the state, not legislative. This strict and literal
meaning given to the procedure established by law in Gopalans case continued
to held the field for nearly three decades before it was finally given a decent
burial in 1978 in Maneka Gandhis case.

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 By and by, especially after the horrifying experiences of emergency the
undeniable truth began to be realized, i.e. that law is for society is not for the
law and, therefore law must change itself according to the changing needs of the
society. Unfortunately this task in the country was not undertaken by the
legislature or the executive. Instead it was the judiciary which was constrained
to come forward to do the needful with a view to ensure social engineering and
give a pragmatic touch to the precious and all important right under
consideration.

Supreme Courts decision in Maneka Gandhi came as a landmark in this

direction although some significant changes had already taken place as a
consequence of Supreme Courts decision in Kharak Singhs case, (1963). In
Goalans case the Supreme Court had also held that Articles 19 and 21 are
mutually exclusive and independent fundamental rights and that in case of
conflict Article 19 shall be subject to Article 21. This interpretation also
continued to hold the field till the Supreme Courts decision in Maneka Gandhi
when the court overruling Gopalan held that Article 21 is subject to Article 19
and not only that but also Article 14. The three fundamental rights in Article 14,
19 and 21 form and integrated whole. Together they form a trinity.

Article 21 has received liberal interpretation from time to time after the
decision of the Supreme Court in Maneka Gandhi v. Union of India, (AIR
1978 SC 597). Article 21 guarantees fundamental right to life. Right to
environment, free of danger of disease and infection is inherent in it. The
Honourable Supreme Court also expanded the Fundamental Right i.e. right to
life and personal liberty guaranteed in Article 21 to include Environmental
Protection. Article 21: No person shall be deprived of his life of personal
liberty except according to procedure established by law. Article 3 of the
Universal Declaration of Human Rights proclaims: Everyone has the right to
life, liberty and security of person2. Article 6 of the Second Covenant
proclaims the right to life thus: Every human being has inherent right to life.
This right shall be protected by law 3. The Fifth Amendment of the American
Constitution also provided that 'no person shall be deprived of his life or
personal liberty, except according to procedure established by law4 The
Fourteenth Amendment imposes a similar limitation on the State authorities 5.
Right to life means to have intact all limbs and faculties through which life is
2
. Human Rights and the Law by Dr. Paras Diwan and Peeyushi Diwan, 1998, Deep and Deep
publications, New Delhi, P.No.133.
3
. Ibid p.134
4
. Ibid.p.135
5
. Constitutional Law by JN Pandey

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enjoyed and life have meaning. In Kharak Singh Vs State of UP6 the Supreme
Court observed that the right to life does not mean the right to the continuance
of a persons animal existence, but a right to the possession of all organs-his
arms, legs, etc., .The right to life, means right to live with full human dignity,
without humiliation and deprivation, or denial of any sort. Right to healthy
environment is important attribute of right to live with human dignity. The right
to healthy environment as part of Article 21 of the constitution was first
recognized in the case of Rural Litigation and Entitlement Kendra vs. State,
AIR 1988 SC 2187 (Popularly known as Dehradun Quarrying Case) 7. It is the
first case of this kind in India, involving issues relating to environment and
ecological balance in which Supreme Court directed to stop the excavation
(illegal mining) under the Environment (Protection) Act, 1986. In M.C. Mehta
vs. Union of India, AIR 1987 SC 10868 the Supreme Court treated the right to
live in pollution free environment as a part of fundamental right to life under
Article 21 of the Constitution. The Horizon of Article 21 is vast that which
cannot be imagined and confined to one circle. This fascinating unfolding of the
concept right to life and personal liberty under Article 21 has promoted me to
undertake the present work, Chapter II of the work is devoted to the narration of
event leading to the insertion of Article 21 in the constitution under the heading
Right to Life and personal Liberty through the pages of history in Chapter III
entitled Extended Connotations of Right To Life it has been examined as to
how the judicial process has been expanding the meaning of life which is still
liberty and procedure continued. Extending meaning of personal liberty and
procedure established by law is the subject matter of Chapter IV. It also
demonstrates as to how due process clause of the U.S. Constitution has been
infused into the veins of Article 21, hence this Chapter has been entitled as
Personal Liberty Due Process of law and Procedure established by Law.

Judicial response to the relationship between Articles 14, 19 and 21 has

been gone of a change from Gopalan to Maneka which settled the same. Due
aspect of the matter has been deal with in Chapter V which is entitled as Right
to Equality, Freedom and Personal Liberty-their inter-relations. Judicial
activism has gone to bring a number of rights as fundamental rights under the
umbrella of Article 21 and the process of covering newer and newer fields in its
protection grip is still continuing. This has been studied in Chapter VI, entitled
as Expanding Horizons of Article 21. A special reference to environment
protection in Chapter VII entitled as Protection of Ecology and Environmental
Pollution the New Horizon of Article 21. History of environment in India with

6
. AIR 1963 SC 1295
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regard to protection of environment and the cases of environment protection
which fall within the ambit of Article 21 are dealt in this chapter. Chapter VIII
entitled as Environment Protection and judicial activism. This chapter deals
with the concept of Judicial Activism and the cases of environment protection
and Ecology which were decided by the court in recent years are dealt in this
chapter. In the final Chapter IX Concluding Remarks certain conclusions have
been arrived at on the basic of the study made in above Chapters along with a
few humble suggestions.

At last it is hoped that Article 21 would be a ray of hope for millions of

the people of India who have no food to eat, no cloth to cover the naked body
and no house to live. Undoubtedly the nation remained saddled with unresolved
problems in areas of health, education and population control. Our record in
these three areas compares poorly even with other developing nations. The
quality of life that India provides to a large section of people is considerably
poor. There can be no human rights as long as there is deprivation in India a
large number of people deprived of basic necessities. They are denied the
minimum basic needs such as work, health care, education, shelter and fresh
environment.

How can they be proved of the Constitution, who have no means to have
two square meals daily or those who are living below the poverty line. Thats
why Dr. Sarvepallii Radhakrishnan has aptly observed:

Poor people, who wander about, find no work, no wages and starve,
whose lives are continual round of sore affliction and pinching poverty, cannot
be proud of the Constitution or its Law9.

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