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The text of the Constitution provides for a fairly conventional right to life. Article 21 provides
that ‘no one shall be deprived of his life or personal liberty, except according to procedure
established by law.’ Textually, there are no hints of the all-encompassing right to life that it
would become – at least constitutionally, in India. India’s Supreme Court has created an
extensive jurisprudence spanning all the fundamental rights. However, it is in the right to life
that the Court has been at its most creative and activist. The Court has read in and provided for
an array of subsidiary rights that it was sure flowed from the right to life. Within this right the
Court also found ways to make DPSPs justiciable. The commentator R Sudarshan termed the
jurisprudence evolved by the Supreme Court in the context of the right to life as ‘creative’ –
whereby interpretation has been adopted that has enabled social, economic, cultural and
environmental rights into the realm of justiciable issues. This mode of making Directive
Principles justiciable was done by ‘reading into them’ the right to life and personal liberty. In
essence, the object of Article 21 was to prevent the encroachment upon personal liberty by the
executive save in accordance with the law, and in conformity with the provisions thereof. In its
sheer range and magnitude, the India Constitution’s right to life is unparalleled. The Supreme
Court has observed that the right means more than survival or animal existence. It went onto
say that this right would include the right to live with human dignity, and a life meaningful,
complete and worth living. Subsequently, the Court would find that life includes the rights to
food, water, a decent environment, education, medical care and shelter. The right to life would
also include culture and protection of heritage, not to be subjected to unfair conditions of
labour, 77 and the right to livelihood. Conversely, rape has been declared to violate the right to
life, since this right includes that of dignity. According to the Court, chronic exposure to
polluted air also violates this right. The all-encompassing view of the right to life is illustrated in
more recent times, by the orders passed by the Supreme Court in what is now called the ‘right
to food’ cases.


“No person shall be deprived of his life or personal liberty except according to procedure
established by law.”

Though Article 21 starts with a 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

According to Dicey, “The right to personal liberty as understood in England means in substance
a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any
manner that does not admit of legal justification.” In other words, ‘personal liberty’ means
freedom from physical restraint and coercion which is not authorized by law.

The post-emergency period (1977-98) is known as the period of Judicial Activism because it
was during this period that the Court’s jurisprudence blossomed with doctrinal creativity as well
as procession innovations.

Procedure Established by Law

It means that a law that is duly enacted by legislature or the concerned body is valid if it has
followed the correct procedure. In this the court would assess that whether there is law or not,
whether the Legislature is competent to frame the law and whether it had followed the
procedure laid down to legislate and would not assess the intent of the said law.
Following this doctrine means that, a person can be deprived of his life or personal liberty
according to the procedure established by law. So, if Parliament pass a law, then the life or
personal liberty of a person can be taken off according to the provisions and procedures of the
that law.
This doctrine has a major flaw. It does not assess whether the laws made by Parliament is fair,
just and not arbitrary. “Procedure established by law” means a law duly enacted is valid even if
it’s contrary to principles of justice and equity. Strictly following procedure established by law
may raise the risk of compromise to life and personal liberty of individuals due to unjust laws
made by the law making authorities. Thus Procedure established by law protects the individual
against the arbitrary action of only the executive. It is to avoid this situation; SC stressed the
importance of due process of law.
Due Process of Law
Due process of law doctrine not only checks if there is a law to deprive the life and personal
liberty of a person, but also see if the law made is fair, just and not arbitrary. If SC finds that any
law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment
of individual rights.
Under due process, it is the legal requirement that the state must respect all of the legal rights
that are owed to a person and laws that states enact must confirm to the laws of the land like –
fairness, fundamental rights, liberty etc. It also gives the judiciary to assess the fundamental
fairness, justice, and liberty of any legislation. Thus due process protects the individual against
the arbitrary action of both executive and legislature.
The difference in layman’s terms is as below: Due Process of Law = Procedure Established by
Law + The procedure should be fair and just and not arbitrary.
A great transformation in the judicial attitude towards the safeguard of personal liberty has
been noticed after the horrible experiences of the infamous 1975 national emergency. A.K.
Gopalan v. Union of India and Maneka Gandhi v. Union of India, are the two landmark cases
which decided and expanded the horizon of rights under Art. 21. The judicial pronouncement
before the case of Maneka Gandhi Vs Union of India (1978) were not satisfactory in providing
adequate protection to the ‘right to life and personal liberty’ guaranteed under Article 21 of the
constitution of India . Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life
and personal liberty only against the arbitrary action of the executive and not from the
legislative action.

History of Due Process of law

Due process developed from Clause 39 of the Magna Carta in England. When English and
American law gradually diverged, due process was not upheld in England, but did become
incorporated in the Constitution of the United States.
A.K. Gopalan Vs State of Madras, 1950
In A K Gopalan Vs State of Madras case Apex court took narrow view of article 21 and held that
Article 21 has no relationship with Article 14 and 19 and said that personal liberty has nothing
to do with rights given in article 19, which talks about different type of liberty and also held that
article 14 which talks about reasonableness has also no relationship with Article 21. Apex court
made literal interpretation of procedure establish by law.
In Maneka Gandhi Vs Union of India case supreme court took broad view and held that there is
the formation of golden triangle amongst article 14 19, and 21. Apex court held that procedure
must be fair just and reasonable
In other words in A.K. Gopalan Vs State of Madras 1950, SC held that Article 21 guarantees only
personal liberty for individual therefore the individual enjoys protection for his bodily part but
not the protection of the aspect of liberties such as right to movement, right to freedom and
Maneka Gandhi Vs UOI, 1978

Maneka Gandhi Vs Union of India (AIR 1978 SC 597) was a landmark judgment and played the
most significant role towards the transformation of the judicial view on Article 21 of the
constitution of India so as to imply many more fundamental rights from Article 21. Justice
Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal
liberty makes for the worth of the human person” and “travel makes liberty worthwhile”.

The court finally held that the right to travel and go outside the country is included in the right
to personal liberty guaranteed under Article 21. Section 10(3) (c) of the Passport Act is not
violative of Article 21 as it is implied in the provision that the principles of natural justice would
be applicable in the exercise of the power of impounding a passport . The defect of the order
was removed and the order was passed in accordance with procedure established by law.

Supreme Court overruled its earlier decision and held that there is no difference between
liberty and personal liberty. Therefore arrest and detention of an individual has not only to
satisfy Art -21 but also Art -19.
Both the rights of personal security and personal liberty recognised by what Blackstone termed
‘natural law’ are embodied in Act. 21 of the Constitution.
The mere prescription of some kind of procedure cannot even meet the mandate of Article 21.
The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary. The question whether the procedure prescribed by law which curtails or takes away
the personal liberty guaranteed by Art. 21 are reasonable or not have to be considered.
Principle of natural justice is inherently enforced in Art. 21 and succeeded in reality the due
process of law in Art. 21.
This decision heralded an era of judicial activism in India.
As we have seen, the term “procedure established by law” is used directly in the Indian
constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned
in Indian Constitution. The due process doctrine is followed in United States of America, and
Indian constitutional framers purposefully left that out. But in most of the recent judgments of
the Supreme Court, the due process aspect is coming into picture again.
So it can be said that it is a journey from procedure establish by law to due process of law.

A.K. Gopalan Case Verses Maneka Gandhi Case

A.K. Gopalan v. Union Of Maneka Gandhi v. Union of

India, AIR 1950 SC 27 India, AIR 1978 SC 597

In this case, the Petitioner had

In this case, the petitioner’s
been detained passport had been
Preventive Detention Act, impounded by the Central
1950. The Government u/s 10(3)(c) of
challenged the validity of his the Passport Act, 1967.
detention on the ground that Maneka Gandhi then filed a
writ petition under Article 32
it was violative of his Right to
of the constitution in the
freedom of movement under
Supreme Court challenging
Art. 19(1)(d), which is the very
the order of the government
essence of personal liberty of India as violating her
guaranteed by Art. 21 of the fundamental rights
Constitution. He argued that- guaranteed under Article 21
of the constitution. It issues
 The words ‘personal
raised were:
liberty’ include the
freedom of movement
also and therefore the  Whether right to go

Preventive Detention abroad is a part of

Act, 1950 must also
right to personal
satisfy the
requirements of Art. liberty under Article
19(5). 21.
 21 and Art. 19 should  Whether the Passport
be read together as
Act prescribes a
Art. 19 laid out the
substantive rights ‘procedure’ as
while Art. 21 provided required by Article 21
procedural rights.
before depriving a
 The words “procedure
person from the right
established by law”
actually meant “due guaranteed under the
process of law” from
said Article.
the American
Constitution which  Whether section 10(3)
includes principles of (c) of the Passport Act
natural justice and the
is violative of Article
impugned law does
not satisfy that 14, 19(1) (a) and 21 of
requirement. the constitution.
 Whether the
impugned order of the
regional passport
officer is in
contravention of the
principles of natural

Personal Liberty Rejecting this contention, The Supreme Court not only
overruled A.K. Gopalan’s case
Supreme Court, held that the but also widened the scope of
words ‘personal liberty’
phrase ‘personal liberty’ in considerably.

Art. 21 meant nothing more  Bhagwati, J.

than the liberty of the expression ‘personal
liberty’ in Article 21 is
physical body, that is, of widest amplitude
and it covers a variety
freedom from arrest and of rights which go to
constitute the
detention without the
personal liberty of
authority of law. According to man and some of
them have raised to
majority, the term ‘liberty’ the status of distinct
fundamental rights
was wider in meaning and and given additional
protection under
scope than ‘personal liberty’. Article 19.”
 With respect to the
 Hence, while ‘liberty’ relationship between
Art. 19 and Art. 21, the
could be said to Court held that Art. 21
is controlled by Art.
include Art. 19 within 19, i.e., it must satisfy
the requirement of
its ambit, ‘personal Art. 19.

liberty’ had the same

meaning as given to

the expression “liberty

of the person” under

English law.

Hence, the majority took the

view that Art. 19 and Art. 21
deal with different aspects of

Prodecure Established by law The SC rejected the aforesaid

The court overruled the A.K.
contention & held that it did
not mean ‘due process of law’ Gopalan Case and held that
as understood in America.
Art. 21 provides that no
person shall be deprived of
 There was no
his life or personal liberty
justification for
except in accordance with
adopting the meaning
procedure established by law
of the word ‘Law’ as
but that does not mean that a
interpreted by the SC
mere semblance of procedure
of America in the
provided by law will satisfy
expression ‘due
process of law’ merely
because the word the Article.
‘law’ is used in Art.21.
 The procedure should
 It was held that the
be just, fair and
expression ‘procedure
reasonable & not
established by law’
fanciful, oppressive
must mean procedure
and arbitrary.
prescribed by the law
 A procedure to be fair
of the State. The court
and just must embody
interpreted the term
the principles of
‘law’ as ‘State made
natural justice.
 One of the significant
 The Report of the
interpretation in this
Drafting Committee
case is the discovery of
shows that the
inter connections
Constituent Assembly
between Article 14, 19
deliberately dropped
and 21. Thus a law
‘due process of law’ in
which prescribes a
favor of ‘procedure
procedure for
established by law’. If
depriving a person of
they wanted to
“personal liberty” has
preserve in India the
to fulfill the
same protection as
requirements of
given in America there
Article 14 and 19 also.
was nothing
 Moreover the
preventing them to do
‘procedure established
by law’ as required
under Article 21 must
satisfy the test of
reasonableness in
order to conform to
Article 14.

Natural Justice SC rejected this plea & held Natural Justice is intended to
that the ‘law’ in Art. 21 must invest law with fairness and to
mean a law enacted by the secure justice. The Court said:
Legislature and not the law in
the abstract or general sense  “‘Law’ should be
embodying the principles of reasonable law, and
natural justice as interpreted not enacted piece of
by the U.S. Supreme Court. law.”
 It must be just, fair
and reasonable.

Post Maneka Developments:

1. Right to live with Human Dignity

In Maneka Gandhi case, the Supreme Court gave a new dimension to Art. 21. It held that the
right to live is not merely confined to physical existence but it 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, said that the right to live is not restricted to mere animal existence. It means
something more than just physical survival. In this case, the Supreme Court struck down Section
3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, as
violation of Article 14 and 21. The impugned Section 3 provided that a detune could have
interview with his legal adviser only one time in a month and that too only after obtaining prior
permission of the district magistrate, Delhi and to take place in the presence of customs
officer. [8]The right to live is not confined to the protection of any faculty or limb through which
life is enjoyed or the soul communicates with the outside world but it also includes “the right to
live with human dignity”, and all that goes along with it, namely, the bare necessities of life
such as adequate nutrition, clothing and shelter and facilitates for reading, writing and
expressing ourselves in diverse forms, freely moving about and mixing and commingling with
fellow human beings.

It is claimed that this right has neither been granted by the state nor created by the person
himself or herself but exists irrespectively of sex, race and nationality, as well as from life style.
Every human being has been provided with it. Dignity is related to human subsistence itself; no
one can take this right to dignity away. This right is owned not only by the honest, but also by
dictators, children molesters or other asocial individuals. Even an unborn life in the body of a
mother, mortally ill has the matter-of-course dignity. Thus, an individual himself or herself is
not involved in creation of his or her dignity, that dignity is put into the person like a ready-
made conformation from aside, that it is like a biological human property that may neither be
given, nor created or lost, that is characteristic even to the “unborn life in the body of a
mother”. Therefore, in my view the SC court was undoubtedly correct in pronouncing this right.

In People’s Union for Democratic Rights v UOI, also known as Asiad Workers Case, the Court
held that non- payment of minimum wages to the workers employed in various Asiad projects
in Delhi was denial to them to their right to live with basic human dignity and violative of art 21.
Bhagwati J., (as he then was) speaking for the majority held that the rights and benefits
conferred on the workmen employed by a contractor under various labor laws are “clearly
intended to ensure basic human dignity to workmen and if the workmen are derived of any of
these rights and benefits, that would be violation of Art. 21.

This decision has heralded a new legal revolution. It has clothed millions of workers in factories,
fields, mines and project sites with human dignity. They had fundamental right to maximum
wages, drinking water, shelter crèches, medical aid and safety in their respective occupations
covered by the various welfare legislations.

2. Right to Livelihood

In 1960, the Apex Court was of the view that Article 21 of Indian Constitution does not
guarantee right to livelihood. In Re Sant Ram, a case which arose before Maneka Gandhi, the
Supreme Court ruled that the right to livelihood would not fall within the expression “life” in
Article 21. The Court said curtly: “The argument that the word “life” in Article 21 of the
Constitution includes “livelihood” has only to be rejected. The question of livelihood has not in
terms been dealt with by Article 21.”
But in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement
Dwellers Case” a five judge bench of the Court has finally ruled that the word “life” in Article 21
includes the right to livelihood also. The court said: “It does not mean merely that life cannot be
extinguished or taken away as, for example, by the imposition and execution of death sentence,
except according to procedure established by law. That is but one aspect if the right to life. An
equally important facet of the right to life is the right to livelihood because no person can live
without the means of livelihood.” The court further opined: “if the right to livelihood is not
treated as a part and parcel of the constitutional right to life, the easiest way of depriving a
person of his right to life would be to deprive him of his means of livelihood to the point of
abrogation. The state may not by affirmative action, be compelled to provide adequate means
of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood
except according to just and fair procedure established by law can challenge the deprivation as
offending the right to life conferred in Article 21.”

I agree with the court’s decision. However, these are second generation human rights,
which consist of social and economic rights of a positive nature and have to be backed up by
political action. The right to livelihood can be a reality only when the state allocates resources
for providing education or jobs to people.

3. Right to Shelter

In Olga Tellis Case, the court said that Art. 21 provide that a person can be deprived of life by a
procedure established by law, which meant, a fair, just and reasonable procedure. Justice
Chandrachud observed that after anxious consideration, the Court came to the conclusion that
Section 314 of the BMC Act for removal of encroachments on footpaths could not be regarded
as unreasonable, unfair or unjust. However, while holding that Section 314 was constitutional,
the Supreme Court order also laid down that the eviction of the slum and pavement dwellers
could be done only after arranging alternative accommodation for them and not before that.

Upholding the importance of the right to a decent environment and a reasonable

accommodation, in Shantistar Builders v. Narayan Khimalal Totame the Court held that,

“The right to life would take within its sweep the right to food, the right to clothing, the right to
decent environment and a reasonable accommodation to live in. The difference between the
need of an animal and a human being for shelter has to be kept in view. For the animal it is the
bare protection of the body, for a human being it has to be a suitable accommodation, which
would allow him to grow in every aspect – physical, mental and intellectual. The Constitution
aims at ensuring fuller development of every child. That would be possible only if the child is in
a proper home. It is not necessary that every citizen must be ensured of living in a well-built
comfortable house but a reasonable home particularly for people in India can even be mud-
built thatched house or a mud-built fireproof accommodation.”

4. Right to Privacy

It is now a settled position that right to life and liberty under Art. 21 includes right to privacy.
Right to privacy is ‘a right to be let alone’. A citizen has a right to safeguard the privacy of his
own, his family, marriage, procreation, motherhood, child-bearing and education among other

Right to privacy is not an absolute right: Right to life includes right to privacy. In Kharak Singh
v. State of UP, the court held that police surveillance of a person by domiciliary visits would be
violative of Article 21 of the Constitution. The majority judgment in the impugned case was of
the opinion that our constitution does not in terms confer any constitutional guarantee like
right to privacy. But, Subba Rao, J. in his minority judgment opined that though the constitution
does not expressly declare a right to privacy as a fundamental right, but the said right is an
essential ingredient of ‘personal liberty’ in Art. 21. The right to personal liberty takes in not only
the right to be free from restrictions placed on his movements but also free from
encroachments on his private life.

Mathew, J. in his classic judgment in Govind v. State of MP, accepted the right to privacy as an
emanation from Arts. 19 (a), (d) and 21, but right to privacy is not an absolute right. “Assuming
that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that
the right to privacy is itself a fundamental right that fundamental right must be subject to
restriction on the basis of compelling public interest. “Surveillance by domiciliary visits need not
always be an unreasonable encroachment on the privacy of a person owing to the character
and antecedents of the person subjected to surveillance as also the objects and the limitation
under which surveillance is made. The right to privacy deals with ‘persons, not places’.

5. Sexual harassment of working women: violative of Art 14 and 21.

In case of Vishakha v. state of Rajasthan, the SC has made it clear that the sexual harassment
of working women amounts to violation of right of gender equality and right to life and
personal liberty. As a logical consequence it also amounts to the violation of right to practice
any profession, occupation or trade. The SC laid down certain guidelines to be observed at all
work place or other institutions until legislation is enacted for the purpose. These guidelines
would be treated as the law declared by SC under Art 141. This case law provided relief to
millions of working women who were compelled to remain silent at their working place even
though they face sexual comment, harassment etc. In fact this case fills the lacuna in law to
deal with this kind of problem facing by working women at their working place.

6. Right to Health & Medical Aid

In Parmananda Katara v. Union of India, it was held that it is the professional obligation of all
doctors (government or private) to extent medical aid to the injured immediately to preserve
life without legal formalities to be complied with the police. Article 21 casts the obligation on
the state to preserve life. It is the obligation of those who are in charge of the health of the
community to preserve life so that the innocent may be protected and the guilty may be
punished. No law or state action can intervene to delay and discharge this paramount
obligation of the members of the medical profession.

7. Right to live in a Pollution Free Environment

The judiciary expanded the meaning and scope of art. 21 and included the right to a healthy,
clean environment; in other words, the right to life includes a pollution-free environment
including water and air, because in the absence of a pollution-free environment the right to life
will be meaningless. The right to a clean and wholesome environment was brought under the
umbrella of Article 21.

Doon Valley Case: This case is the first example or first indication of the right to a healthy
environment. In this case a letter sent by and NGO to the Supreme Court was treated as a writ
petition under Article 32 of the Constitution. It was alleged in that letter that the illegal
limestone mining in the Doon Valley was destroying the fragile eco-system. The Supreme Court
held that even if the limestone quarry contractors have invested large sums of money and
expended considerable time and effort, the right of people around to live in a healthy
environment must be protected and safeguarded.

M.C. Mehta V/s Union of India (Ganga Pollution Case): This case relates to the prevention of
nuisance caused by the pollution of river Ganga. This nuisance, treated as a public one, was
wide in its range and indiscriminate in its effect. The Supreme Court issued specific directions
for all the municipalities of the towns situated on the river Ganga. It was observed by the Court
that Article 21 of the Constitution includes a right to clean and wholesome environment.
Clean, green and pollution free environment is the need of the hour. With increasing
technology and modernization, our environment is also degrading. But, in my view, it is really
not in the power of courts to provide clear air, water & environment to the people. This can be
achieved by everyone’s initiative not solely by the courts. However, courts can order removal of
industries or factories away from residential area. Thus, an important interpretation of art 21 to
an extent.

8. Ban On Smoking In Public Places

Murali S.Deora Vs. Union of India: The Congress leader Murali S.Deora filed a PIL in the
Supreme Court seekingorders for banning smoking in public places and the Supreme Court
seeing the ill effects of smoking held that public smoking is banned and it directed all States and
Union Territories to immediately issue orders banning the smoking in public and this ruling of
the Court is to boost the public health. Thus the Center has introduced an Anti-Smoking Bill in
the parliament and it is being implemented in many parts of the Country but not effective at

9. Compensation for Violation of Article 21

In Rudal Singh v. State of Bihar, the Supreme Court has held that the Court has the power to
award monetary compensation in appropriate cases where there has been a violation in the
constitutional right of the citizens. In this case the Supreme Court directed Bihar Government to
pay “Compensation” of Rs. 30,000 to Rudal Singh who had to remain in jail for 14 years because
of irresponsible behavior of the State Government Officers even after acquittal”.

10. Right of Prisoners

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere
reason of their conviction deprived of all their fundamental rights which they otherwise
possess. Following the conviction of a convict is put into a jail he may be deprived of
fundamental freedoms like the right to move freely throughout the territory of India. But a
convict is entitled to the precious right guaranteed under Article 21 and he shall not be
deprived of his life and personal liberty except by a procedure established by law. In Charles
Sobraj and Sunil Batra, it was held that a prisoner was not denuded of his fundamental rights
such as right to equality or right to life or personal liberty beyond what has been taken away by
the nature of the imprisonment itself.
In India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term
‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protect
individual rights. In Maneka Gandhi Vs Union of India case (1978) SC held that – ‘Procedure
established by law’ within the meaning of article 21 must be ‘right and just and fair’ and ‘not
arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement
of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the
same significance in India as the ‘due process of law’ clause in America.
In the end it can be concluded that Article 21 has become the means by which to create new
rights and entitlements. Questions regarding the constitutional validity of death sentences, a
person’s liberty to die, whether personal liberty included the right to privacy, and whether
freedom of speech included the right to information, were legitimate concerns of judicial
activism because the Court was called upon to articulate the rights guaranteed by the
Constitution. Similarly, a prisoner’s right to humane treatment, a prisoner’s right to a speedy
trial, and an accused criminal’s right to legal aid emanated from the fundamental rights
guaranteed by Articles 21 and 22 and the directive principles of state policy contained in Article
39-A of the Constitution. Even in regard to such rights, the Court can merely declare them part
of the normative order, but cannot articulate them in reality, which is evident from the fact that
a large number of people have obtained neither the right to speedy trial nor the right to legal