CHAPTER-IV

ACCUSED AND FUNDAMENTAL RIGHT TO

LIFE AND PERSONAL LIBERTY

INTRODUCTION

Rigyeda II Recites -

“Grant us a hundred autumns that we may see the manifold world. May

we attain the long lives which have been ordained as from yore.”

Life is beyond price. Freedom and liberties are only for the living.

It is because of this that in Francis Coralie Mullin v. Union Territory of

Delhi,1 Bhagwat, J. (as he was then) says :

“The fundamental right to life ... is the most precious human right and ...
forms the arc of all other rights...” (para 5).

For the same reason, a two judge Bench opined in Parmanand

Katara v. Union of Indiet2, that preservation of human life is of paramount

importance, because if one’s life is lost, the status quo ante cannot be

restored as resurrection is beyond the capacity of man.

The word ‘life’ however doesnot mean mere animal existence. This

is what Field, J. said,3

“... By the term ‘life’, ... something more is meant than mere

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animal existence. The inhibition against its deprivation extends to all

those limbs and faculties by which life is enjoyed.... The deprivation not

only of life, but of whatever God has given to everyone with life, for its

growth and enjoyment, is prohibited by the provision in question, if its

efficacy be not frittered away by judicial decision.

This was accepted for the first time by a Constitution Bench in Kharak

Singh v. State of U.P4 and further in Sunil Batra v. Delhi

Administration5

This concept of ‘life’ was broadened in Francis Coralie case in

______ -____________

paragraph(fp)y Bhagwati J. by stating :

“... The question which arises is whether the right to life is limited only
to protection of limb or faculty, or does it go further and embrace
something more. We think that the right to life includes the right to live
with human dignity and all that goes along with its, 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 co-mungling with
fellow human beings.”

But the Court also recognised that the magnitude and content of the

components of this right would depend upon the extent of economic

development of the country; but still the concept of ‘life’ must include the

right to basic necessities and the right to carry on such functions and

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activities as constitute the bare minimum expression of human-self.

The right to life guaranteed by Article 21 of the Constitution of

India is not merely a fundamental right, it is a basic human right. Justice

H.R. Khanna rightly observed that sanctity of life and liberty was not

something new when the Constitution was drafted. It represented a facet

of higher values which mankind began to cherish in its evolution from a

State of truth and claw to a civilized existence. Likewise, the principle

that no one shall be deprived of his life arbitrarily without the authority of

law was not the gift of the Constitution. It was a necessary corollary of

the concept relating to sanctity of life and liberty, it existed and was in

force before the coming into force of the Constitution.

Although right to life is basic and most fundamental of all the other

rights, yet the term ‘life’ has not been defined in the Constitution and

therefore we must turn to judiciary for its interpretation. The Supreme Court in

Kharak Singh v. State of U.P8 held that the word ‘life’ as it

occurs in 5 and 14 Amendment of the U.S. Constitution correspond to

Article 21 of the Indian Constitution. Justice KR. Krishna Iyer attaches

great importance to the right to life.9 He says it should not be

extinguished merely on the ground that accused has committed a murder.

Depriving a person of his right to life is nothing else but a murder

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committed by State by lawful means.

The right to life guaranteed by Article 21 is available to each living

human being. This is a fact that an accused / a convict does not forfeit his

basic rights even when he is in jail. He does not cease to be a human

being and has all those rights which a free person enjoys. The only

difference between a freeman and a prisoner is one of degrees and not of

kind.

Article 3 of the Universal Declaration on Human Rights, 1948

provides that everyone has the right to life, liberty and security of person.

The expression ‘human rights embrace the rights of man both as

individual and as a member of the society. Their aim is to promote

individual welfare as well as social welfare. The right to life is most

fundamental of all Fundamental Rights guaranteed by Constitution of

India to the people in the country. Denial of this basic right means denial

of all other rights because none of other rights would have any utility and

existence without right to life. In common parlance life means, animation

from birth to death of every living being, but in broad sense, life means

activeness, liveliness, physical or intellectual force, energy and the

vitality etc. The right to life does not merely mean the sanctity of life. It

means the fullest opportunity to develop one’s personality and

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potentiality to the highest level possible in the existing stage of our

civilization.10 It follows that right to life is the right to live decently as a

member of a civilized society and have all the freedoms and advantages

that would go to make life agreeable, and living assured in a reasonable

standard of comfort and decency.11

Recently, the apex court in the case of Murli S. Deora v. Union of

India held that fundamental rights guaranteed under Article 21 of the

Constitution of India, inter alia, provides that none shall be deprived of

his life without due process of law.

In the original draft, the drafting committee had embodied the

phrase ‘due process’ in respect of life and liberty but in the final draft,

The Drafting Committee recommended change in the present Article 21.

The expression ‘procedure established by law' borrowed from Article 31

of the Japanese Constitution of 1946 was, substituted for the ‘due process

of law' because it was more definite and was free from the vagueness and

changeability which had grown round the doctrine of ‘due process’.

Article 3 of Universal Declaration of Human Right, 1948 provides

that every one has the right to life, liberty and security of person. This

article 21 of the Constitution of India has come to occupy the position of

broadening omnipresence in the scheme of Fundamental rights.

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Moreover, the amalgamation of right to life with that of personal liberty

has made the article absolutely sacred and not subject to any other

restrictions except that public order and tranquility. Further, it has

become a sanctuary for human values and therefore has been rightly

termed as the ‘fundamental of the fundamental rights’. The right to life

and personal liberty is the most precious right of human beings in a

civilized society. Right to life and Personal Liberty has both negative and

positive contents. Positive aspects demands conditions and environment

conducive for living with dignity. Its negative content requires that none

should be deprived of his life - in its broadest connotation - without a

just, face and reasonable procedure. The right to life and personal liberty

does not mean the continuance of. a person’s animal existence but a right

to the possession of each of his limbs and faculties by which life is

enjoyed.

Initially Article 21 guaranteed the right to life and personal liberty

to citizens only against the arbitrary action of the executive, and not from

the legislative action. The State could interfere with the liberty of citizens

if it could support its action by a valid law. But, since the passing of

decision in Menaka Gandhi v. Union of India , Article 21 now protects

the right to life and personal liberty of citizens not only from the

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Executive action but from the legislative action also. Maneka’s case

opened up new dimension and laid down that it imposed a limitation upon

law making as well, namely, that while prescribing a procedure for

depriving of a person of his life or personal liberty, it must prescribe a

procedure which is reasonable, fair and just. The right secured by Article

21 is available to every person, citizen or non-citizen. Thus, even a

foreigner can claim this right. However, Article 21 applies only to natural

persons. It has no application to corporate bodies. Liquidation of a society

cannot, thus be equated to deprivation of life or personal liberty. Article

21 can be claimed only when a person is deprived of his life or personal liberty

by the State as defined by Article 12 of the Constitution. Violation of the right

to personal liberty by a private individual is not within the purview of Article

21. A person can be deprived of his life and personal liberty if two conditions

are compiled, with, first, there must be a law and secondly, there must be

procedure prescribed by the law, provided that the procedure is just, fair not

reasonable.

This article is not intended to be Constitutional limitations upon the

power of the legislature. Its object is mainly to serve as a restraint upon

the executive so that it may not proceed against life or personal liberty of

an individual except under the authority of some law and in conformity

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with the procedure laid down therein. Before a person is deprived of his

life or personal liberty the procedure established by law must be strictly

followed and must not be departed from to the detriment of the person

affected. The words ‘except according to procedure established by law’

suggest that Article 21 does not apply where a person is detained by a

private individual and not by a under the authority of the State. By the use

of words ‘established by law’ our constitution accepts the English

principle of the supremacy of law, in preference to American doctrine of

judicial review of legislation, so far as personal liberty is concerned.

Therefore, liberty according to this view, is a liberty which is controlled

by law. Law in this expression means State made law or enacted law and

not the general principles like that of natural justice. The procedure

established by law thus means procedure prescribed by legislature. The

right to personal liberty as a fundamental right underwent a complete

transformation at the hands of the Supreme Court in Maneka Gandhi’s

case. Earlier in, A.K.Gopalan’s case the word ‘personal liberty’

mentioned under Article 21 were interpreted by the Supreme Court very

narrowly and in a very literal sense. But, the Maneka Gandhi case

conferred a new dimension to Article 21. it awarded the widest possible

interpretation to it. After these two decisions Article 21 has been

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interpreted low liberally that now it covers in its ambit a variety of rights

that go to constitute personal liberty of man.

RIGHT TO LIFE - DIFFERENT FACETS OF

THE RIGHT TO LIFE
The word ‘life; in Article 21 can be interpreted in the widest

possible manner. It does not simply mean physical life, but also cover

other expression of life. It is something more than a mere biological

existence of a human body. Life also includes personality and whatever is

reasonably required to give expression to lie, its fulfillment and its

achievements. The right to life does not mean the continuance of person’s

animal existence. It means the fullest opportunity to develop one’s

personality and potentiality to the highest level possible in the existing stage of

our civilization.14 Inevitably, it means the right to live decently as

a member of a civilized society. It is to ensure all freedom and advantages

that would go to make life agreeable. The right implies to reasonable standard

of comfort and decency.15 The right to life guaranteed by Article

21 of the Constitution of India is not merely a fundamental right, it is a basic

human right. Justice H.R. Klianna rightly observed that sanctity of life and

liberty was not something new when the constitution was drafted. It represented

a facet of higher values which mankind began to cherish in

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its evolution from a State of truth and claw to a civilized existence.

Likewise, the principle that no one shall be deprived of his life arbitrarily

without the authority of law was not the gift of the Constitution. It was a

necessary corollary of the concept relating to sanctity of life and liberty, it

existed and was in force before the coming into force of the Constitution.16

Although right to life is basic and most fundamental of all the other

rights yet the term ‘life’ has been defined in the Constitution and

therefore we must turn to judiciary for its interpretation. The Supreme Court in

Kharak Singh v. State of U.P17 held that the word ‘life’ as it occurs in 5th and

14th Amendment of the U.S. Constitution correspond to

Article 21 of the Indian Constitution, it means not only continuance of

person’s animal existence, but a right to the possession of each of his organs,

his arms, legs etc.18 Justice KR. Krishna Iyer attaches great

importance to the right to life. He says19 it should be extinguished merely

on the ground that accused has committed a murder. Depriving a person

of his right to life is nothing else but a murder. If a State deprives a

person of his right to life only if he is a hardened criminal and only if

there are chances of his committing a murder again. Special reasons must

be laid down by the judge pronouncing death sentence that why accused

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is being deprived of his right to life (i.e, why is he being hanged) and why

life - imprisonment is not given to him, He suggests that instead of

depriving a person of his life, efforts should be made to rehabilitate the

accused by giving him lessons in transcendental meditation which helps

in relasing tension and other stresses that led the accused to commit murder.20

The importance of right to life has been once again reiterated

by Justice HR. Krishna Iyer. He has pleaded that death sentence given to

Satwant and Kehar Singh found guilty of the then Prime Minster Mrs.

Indira Gandhi’s murder be commuted to life-imprisonment. Mrs. Indira

Gandhi’s murder be commuted to life improvement, it would be in the

public interest. The authors, in the following pages have tried to highlight

different facets of right to life.

PERSONAL LIBERTY - DIFFERENT FACETS

When the Constitution was being framed, the world used in the

draft as prepared even upto the stage of the Advisory Committee was

“liberty” without it being qualified by the word “personal”. But then, the

Drafting Committee qualified the word “liberty” by “personal” being of

the view that otherwise liberty “might be constructed very widely so as to

include even the freedoms already dealt in Article 13” (Article 13 of the

draft was finally numbered as 19). No objection was taken in the

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Constituent Assembly about the addition of the word "personal" when the

draft was debated. The result is that Article 21 as it finally found place in

our paramount parchment protects personal liberty.

The expression "personal liberty" has undergone a change through

judicial process. The expression is not confined to mere freedom from

bodily restraint and "liberty" under the law, but extends to full range of

conduct which the individual is free to pursue. The width, scope and

content of the expression "personal liberty came up for examination by a

Constitution Bench in a meaningful way in Kharak Singh v. State of

UP., in which it was stated:

"Having regard to the terms of Article 19(l)(d), it must be taken that

the expression is used not to include the right to move about or rather
of locomotion. The right to move about being excluded, its narrowest
interpretation would be that it comprehends nothing more than
freedom from confinement within the bounds of a prison; in other
words, freedom from arrest and detention, from false imprisonment or
wrongful confinement."

The Bench felt its inability to hold that the term was intended to

bear only this narrow interpretation and stated as follows:

"... On the other hand, (we) consider that ’personal liberty’ is used in
the Article as a compendious term to include within

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 itself all the varieties of rights which go to make up the 'personal
liberties' of man other than those dealt with in the several clauses of
Article 19(1). In other words, while Article 19(1) deals with
particular species or attributes of that freedom, 'personal liberty' in
Article 21 takes in and comprises the residue."

'Personal Liberty' has both narrow and wider meaning. In its

narrow sense, it means protection against arbitrary arrest or detention.

But, in the wider sense, it includes all liberties essential in a democracy

for the development of human personality in its fullest extent and happy

life. Its purpose is to help the individual to find his own viability, to give

expression to his creativity and to prevent governmental or other forces

from alienating the individual from his impulses. But the scope of

"personal liberty" was severely curtailed by the Supreme Court in A.K.

Gopalan v. State ofMadras22 Thus, while interpreting the term "personal

liberty" in a most restricted form Mukharjee J. observed:

"In the ordinary language "personal liberty" means liberty relating to or

concerning the person or body of the individual and personal liberty in
this sense is the antithesis of physical restraint or coercion. According to
Dicey who is an acknowledged authority on the subject, ‘personal
liberty means a personal right not to be subjected to imprisonment,
arrest, or other physical coercion in any manner that does not admit of
legal justification. It is in my

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 opinion, this negative right of not being subjected to any form of
physical restraint or coercion that constitutes the essence of personal
liberty."24

Das, J. interpreted 'personal liberty' in a liberal sense and said that

Article 19 guarantees only some of the freedoms but does not mean that

citizens don't have other freedoms like freedom to eat what one likes. His

Lordship observed:

"I cannot accept that our Constitution intended to give no protection to

the bundle of rights which together with the rights mentioned in Article
19 make up personal liberty. Indeed, I regard it as a merit of our
Constitution that does not attempt to enumerate exhaustively all the
personal rights but uses the compendious expression 'personal liberty' in
Article 21 and protects all of them."25

Thus, the Supreme Court assigned to "personal liberty" the same

meaning as given by Professor A. V Dicey. However, the restricted and

narrow definition of the term does not hold good. Its Scope has been
expanded to include within its ambit, the right to sleep, right to travel

abroad, right of the detainee to write and publish a book, right to

speedy trial, right to free legal aid to the poor and needy29 and many

other rights. Thus, the expression "personal liberty" has been given the

interpretation which is necessary for the adequate and proper develop-

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 ment of the individual.

We now turn to examine some of the specific areas where courts

have expanded the scope of personal liberty in India.

Right to live with human dignity -

Life is beyond price. Freedom and liberties are only for the living.

The term dignity has been derived from latin word ‘dignitas’ which

denotes a quality of being worthy or honourable, it suggests a high rank

of position of distinction in community. Dignity means, ‘honour and

authority reputation’. It means maryada and maryada means as the

righteous conduct and its characteristics is to control, or to limit or to

restrain. The dignity involves an attitude of concern on the part of others

for each individual. As far as there are people who are concerned for you,

you have dignity. Having sexual intercourse other than the spouse is not a

righteous conduct, it can be termed as wicked action or an Amaryadit act.

The Court gave a new dimension to Article 21 in Maneka Gandhi’s

case30 and held that the right to live is not merely confined to physical

existence but it includes within its ambit the right to live human dignity.

It is because of this that in Franas Coralie v. Union Territory of Delhi,

Bhagwati, J. stated that the fundamental right to life ... is the most

precious human right and ... forms the arc of all other rights .... In the

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present case, the petitioner, a British national challenged the

Constitutionality of sections 3 and 5 of the conservation of Foreign

Exchange and Prevention of Smuggling Activities Act, 1974 as violative

of Articles 14 and 21. The impuned section 3 provided that a detenu

could have interview with his legal advisor only once in a month and that

too only after obtaining prior permission of District Magistrate, Delhi and

the interview had to take place in the presence of Custom Officer. An

order for detention could be made under Section 5 of the Act. The Court

while explaining the scope of the “right to life” enshrined under Article

21 observed:

The right to life includes the right to live with human dignity and all
that goes alongwith it, namely, 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 commingling with fellow human beings.

The views in Maneka Gandhi and Francis Coralie Mullin Cases

were reiterated by the apex Court in Peoples Union for Democratic

Rights v. Union of India.32 It was held that non-payment of minimum

wages to the workers employed in various Projects in Delhi was a denial

to them to their right to live with basic human dignity and violative of

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Article 21 of the constitution. Again, in the Board of Trustees Port of

Bombay v. Dilip Kumar,33 a three Judge Bench observed that the

expression ‘life’ doesnot merely cannote animal existence or a continued

drudgery through life and it has a much wider meaning. The Bench, after

quoting the verse from the Geeta, namely “Sambhavitasya

Chakeertirmaranadetirichyate” that is dishonour is more than death to

one who is counted as honourable, proceeded to observe that “where the

outcome of a departmental enquiry is likely to adversely affect reputation

or livelihood of a person” it would affect “life” within the meaning of

Article 21, as “some of the finer graces of human civilization, which

makes life worth living, would be jeopardized.”

In yet another later two Judge Bench decision in Ramsharan

Autyanyyprasi,34 it has been held that “life in its expanded horizons today

includes all that give meaning to man’s life, including his tradition,

culture and heritage and protection of that heritage in its full measure

would certainly come within the encompass of an expanded concept of

Article 21 of the Constitution ”

Article 21 derives its life and breath from the Directive Principles

of State Policy and particularly Clause (e) and (f) of Article 39 and

Articles 41 and 42 and atleast, therefore, it must include protection of

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health and strength of the workers working in factories, fields, mines,

project sites etc. The decision in Asiad’s case has heralded a new legal

revolution. It has clothed millions of workers with human dignity. They

had fundamental right to maximum wages, drinking water, shelter

creches, medical aid and safety in respective occupation covered by

various welfare legislations. Its a truth that man cannot enjoy life unless

he is treated as a human being and not as a commodity. That is why the

judiciary has shown its deep concern for such people . Through judicial

activism it has given a new content and meaning to the letter of law. The

Supreme Court has held that right to live with human dignity is the

fundamental right of every citizen and the State is under duty to provide at

least minimum conditions ensuring human dignity.35

The Supreme Court again in All Indian Imam Organization v. Union of

India36 has held that the “right to life” enshrined in Article 21

meant right to live with human dignity.

Right to Privacy -

Intrusion upon privacy is gradually becoming the order of the day.

It has therefore become a matter of great concern. Human urge is to keep

things, which are private, away from the public gaze. There is a right to

live, but there is a right to privacy. Though it is true that the Indian

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 Constitution does not explicitly guarantee this right as a fundamental

right certainly the right to privacy, or the right to be let alone, should be

accepted as an individual right. The courts treatment of this right is a

matter of paramount importance because of growing invasions of this

right in areas that remained away from the purview of courts. It also

assumes importance because of frequent violation of this right by the

State on grounds which are not bonafide.

Meaning of Privacy -

Traditionally 'privacy' meant freedom from official intrusion. It is a

concept related to solitude, secrecy and autonomy. It is virtually

impossible to define 'privacy' in strictly legal terms. It varies with the

times, the historical context, the- state of the culture and the prevailing

judicial philosophy37 The customs related to privacy differ greatly from

culture to culture, from situations to situations and from social system to

social system. However, the mam consideration in a free society must be

balancing of claims between the privacy of individual and social order.

The perpetual balancing results itself in a dynamic tension between

individuals, constantly seeking to expand and enlarge the property-based

notion of privacy and the govermnent, which seeks the means to protect

the society at large.

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 Right to Privacy is a right to be let alone. It is right of a person to

be free from unwarranted publicity. Its foundation is in the concept of an

inviolate personality and personal immunity. It is considered as a natural

and an absolute or pure right springing from the instinct of nature. Right

to privacy is nothing more than a right to live in a particular way one

chooses for himself to enjoy his life, his family life, honour and reputa

tion. The ancient text establishes that since time immemorial the Indian

society recognises the rules respecting privacy. A person was not be

disturbed while meditating, sleeping, studying or enjoying sex.

A right to privacy is recognized both in law and in common

parlance; but different legal systems emphasize different aspects. Many

of the claims to right to privacy are very difficult to distinguish from

other claims to rights of the personality, from claims to respect for

personal integrity, and from claims against interference by government

<iq
and other external agents. The concept of privacy has suffered both the

over-definition and the under definition. The former found full

application in majority decision of the American Supreme Court in Griswold

v. Connectient40 wherein, William J. Douglas, J. spelling out

the separate 'Zone of Privacy' expressed willingness to include with in its

purview the right to travel, religious freedom and conscience etc. The

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under definition was expressed in the dissent of Black, J. in the same case

who was agreeable to view the right to privacy solely as a ground for

common law tort-relief or a statutory right in those states where the

legislatures have choosen to give protection. There continues to remain

scholarly disagreement over the utility and appropriateness of the right.

The importance of the right to privacy in Common-law

jurisprudence was first highlighted by Thomas M. Cooley at the end of

the nineteenth century when he wrote that "privacy" is synonymous with "the

right to be let alone."41 A new momentum started in direction of

crystallising the right of privacy with the famous article of two able

lawyers—Samuel D. Warren and Louis D. Brandeis under caption "The

Right to Privacy" which appeared in 1890 in Harvard Law Review,

Volume 4. The root of the right started with lawyer's reaction against

yellow-journalism, instead of judicial craftsmanship. In the course of

time it has attracted all the academicians, Lawyers and the judiciary and

vast literature has been gathered around the concept of privacy.

Constitutionalization of Right to Privacy in India -

The issue of privacy is pregnant matter in India. It shows the lack

of privacy consciousness on the part of the Indian citizens. The privacy is

that "area of man's life which, in any given circumstances, a reasonable

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man with an understanding of the legitimate needs of the community would

think it wrong to invade."42 India's Constitution does not cover

right to privacy as one of the fundamental rights. In the Constituent

Assembly an amendment on the lines of the United States Constitution

was moved by Kazi Syed Karimuddin and it was also supported by Dr. B.R.

Ambedkar.43 However, the support of Dr. Ambedkar was a little

reserved one and not forceful enough to secure incorporation of right to

privacy in the Constitution. Possibly the members of the Assembly did

not visualize die importance of the right of privacy as an aspect of

personal liberty.

Privacy is one of the necessary ingredients of personal liberty

suffered heavily on that account. Whereas the Constitution does not

mention expressly the right to privacy, Article 21 miraculously has been

playing a major role in the safeguard of privacy as an essential ingredient

of personal liberty. The right relating to privacy has had to pass through a

most strenuous struggle during the last four decades and it seems that it

would still have to struggle hard. The manner in which an eight-Judge Bench

in M.P. Sharma v. Satish Chandra44 in 1954 and then a six-Judge

Bench in Kharak Singh v. State of Uttar Pradesh'45 in 1962 have found

any Right of Privacy to be non-existent and then a three-Judge Bench in

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Govind v. State ofM.P46 in 1975 and thereafter a two-Judge Bench in R.

Rajagopal v. State of Tamilnadu in 1994 have found it to flow and

emanate from other specified Rights or to be implicit in the Right to Life

and Liberty, is apt to remind us of the famous dictum of Justice Vivian Bose in

Seksaria Cotton Mills48 that the more learned a person is in Law,

the more puzzled he would be "for it is not till one is learned in the law

that subtleties of thought and bewilderment arise at the meaning of plain

English words, which any man of average intelligence, not versed in law,

would have no difficulty in understanding." One would have thought that

plain English word "Liberty" is simple enough to comprehend the right

or liberty "to be let alone" and to the "full range of conduct" which a person is

free to pursue.49 F.S.. Nariman, the distinguished lawyer of

Supreme Court, while commenting on Govind50 in his Article "The Right

to be let alone—A Fundamental Right"51 has observed that even though it

was thought that the Right to Privacy, having suffered death twice before

a Bench of eight Judges and then a Bench of six judges, "Privacy as a

Fundamental Right had been buried—more appropriately burnt to

cinder," but "in Govind the cherished Right has risen Phoenix-like from,

the ashes." Complimenting the three-Judge Bench in Govind, Nariman

observed that "neatly side—stepping the ratio of larger Benches, the

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Court has given the Right a new lease of life." During the recent times,

things have changed to a great extent and today man is asserting his right

to privacy with all its dimensions in different circumstances. While our

legislatures have not yet recognized the right of privacy, our judiciary is

active and dynamic. The Supreme Court in a number of cases acted

wisely, with prudence and forethought in its "strained interpretation of

Article 21."

In Nihal Chand v. Bhagwan Dei,52 the Allahabad High Court

while emphasizing the importance of right to privacy, observed that right

to privacy is based on natural modesty and human morality. It is not

confined to any class, creed, colour or race. It is the birth right of a human

being and is very sacred.

In Re-Ratanmala, the right to privacy even of a prostitute was

recognized as an important right. The behaviour of a police officer who,

while raiding a brothel, proceeded to the bed room of a girl, and pushed

open the door even without the civility of a knock to prepare her for the

intrusion, was accordingly held legally inexcusable. Similarly, in State of

Maharashtra v. Madhulkar Narain54 it has been held that the 'right to

privacy' is available to a woman of easy virtue and no one can invade her

privacy. In the present case, a police Inspector visited the house of one

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Banubai in uniform and demanded to have sexual inter-course with her.

On refusing he tried to have her by force. She raised a hue and cry. When

he was prosecuted he told the Court that she was a lady of easy virtue and

therefore her evidence was not to be relied. The Court rejected the

argument of the applicant and held him liable for violating her right to

privacy under Article 21 of the Constitution.

The practice of keeping a watch on a suspect or on a political

criminal is prevalent in India. This practice has been questioned on the

ground that it violates right of privacy of an individual. This practice of

keeping a watch is called surveillance and important point in this respect

is whether this surveillance amounts to violation of right of privacy. In

this respect two leading decisions of the Supreme Court viz., Kharak

Singh and Govind are discussed below:

In Kharak Singh's55 case, the petitioner Kharak Singh was challaned in

a case of dacoity in 1941, but was released under Section 169, Criminal
Procedure Code as there was no evidence against him. On the basis of
the accusation made against him the police had opened a 'history sheet1
which was the personal record of the criminals under surveillance. On
many occasions the Chaukidar and police constables entered his house,
knocked and shouted at his door, woke him up during the night and
thereby disturbed his sleep. The sole question for determination was

201
 whether "surveillance" of the petitioner under U.P. Police Regula tions
amounts to infringement of Fundamental Right. The Supreme Court
after referring to the views of American judges on privacy and also to its
Fourth and Fifth Amendments observed that as such our Constitution
does not confer any right to privacy, but recognized that an unauthorised
intrusion into person's home and disturbance caused to him thereby is as
it were the violation of common law rights of man an ultimate essential
of ordered liberty, if not of the very concept of civilization. Hence, Court
struck down the regulations that authorized domiciliary visits since it
was not a law but a mere executive instruction. Subba Rao, J. speaking
for minority, held that right to privacy though not expressly declared in
our Constitution, is an essential ingredient of the personal liberty.56

Again, domiciliary visits were challenged in Govind v. State

ofMadhya Pradesh57 as violative of Article 19(l)(d) and Article 21 on the

assertion that these Articles included right of privacy. This case came up

before the Supreme Court in almost identical factual situation as Kharak

Singh's case for its decision. In Kharak Singh's, case, the U.P. Police

Regulation had no support of any law while in Govind's case the

impugned Regulations 855 and 856 were framed by the Government of

Madhya Pradesh under Section 46(2)(c) of the Police Act and hence were

held to have the force of law. In the instant case, the petitioner pointed

out that the police were making domiciliary visits by day and by night,

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picketing his house and approaches thereto. Keeping a watch on his

movements and often calling and harassing him. Regulation 856

authorized all these measures. Regulation 855 authorized restricted

surveillance, which included all these measures to dangerous criminals

determined to lead a life of crime. In this case, Mathew, J. gave the

opinion of the Court whereas after quoting extensively from American

Judgments has observed as under:

"The right to privacy in any event will necessarily have to go through a

process of case by case development. Therefore, even assuming that the
right to personal liberty, the right to move freely throughout the territory
of India and the freedom of speech create an independent right of
privacy as an emanation from them which one can characterize as
fundamental right, we do not think that the right is absolute.58

Justice Mathew held that the impugned regulation should be read

down to save them from unconstitutionally and that surveillance and

domiciliary visits should be resorted to only in clearest cases of danger to

community security and not a routine follow up at the end of a conviction

or release of a person from prison at the whim of police officer. He

further emphasized that surveillance should not be made unnecessarily

irksome' or humiliating.

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 The Supreme Court considered this type of information as

intrusion into the right of Privacy. Meera Mathur was ordered to be reinstated.

The two-Judge Bench in R. Rajagopal v. State of Tamil Nadu59 has, however,

ruled that "the Right to Privacy" is implicit in the

Right to Life and Liberty guaranteed to the "Citizens of this country" by

Article 21. It is a "right to be let alone" According to it a citizen has right

to safeguard the privacy of his own, his family, marriage, procreation,

motherhood, child bearing and education among other matters.60

The Supreme Court has recognized right to privacy as a

fundamental right. In a public interest litigation filed by People's Union for

Civil Liberties v. Union of India61 challenging the governments power

to tap telephones the Supreme Court has ruled that telephone tapping

resorted to by the Government under the Indian Telegraph Act, 1885,

was violative of the Fundamental Rights, including the right to privacy.

The Court stressed upon the need to frame just and fair rules under the

Indian Telegraph Act. However, till such rules are framed the Court

opined that it is necessary to lay down guidelines for the purpose. It said

the govermnent could resort to telephone tapping under Section 5(2) of the Act

only with proper authorization by the Union Home Secretary or his counter-

part in the States. The special permission for telephone

204
tapping could be obtained from a senior officer not below the rank of

Joint Secretary in the Union of State Home Department.

The Court further clarified that order for tapping of telephone shall

be valid for two months and if the government concerned found it

necessary to extend the period of tapping it could be done so for a

maximum period of six months. Setting up of review committees was

also directed both at the Centre and State levels to review any order

allowing tapping of telephones, which would review within two months

of the passing of the order. The Constitution of the Committee at the

Centre level was required to be of Cabinet Secretary while at the same at

the State level would comprise of Chief Secretary and the Home

Secretary. In addition, the Court required the telephone

tapping

authorities to maintain all records of the material intercepted by them and

the details of these material being disclosed to the officials and other persons .62

The Court explained that the right to privacy, not identified—by

itself—under the Constitution, might be too broad and moralistic to be

judicially defined. Whether the right could be claimed or that it had been

infringed, would defend on the facts of the given case. But the right to

hold a telephone conversation in the Privacy of one's home or office

205
without interference, could certainly be claimed as liberty. The Court

further observed that telephone conversation is "a part of modem man's

life and an important facet of man's private life." Therefore, the Court

ruled that telephone tapping would infract Article 21, unless it was

permitted under the procedure established by law.

Recently, the European Union decided to regulate the flow of

information about individuals, ostensibly to prevent corporate intrusion

upon individual privacy. The member nations have agreed to obstruct the

export of personal data to nations that do not establish "adequate" privacy

protection. Privacy is an interest with several dimensions. One of these

dimensions is the privacy of personal data, also known as "data privacy"

or "information privacy." The essence of this privacy of personal data is

the understanding that individuals can legitimately claim that data about

themselves should not be automatically available to other individuals and

organizations, and that, even where data is processed by another party,

the individual must be able to exercise a substantial degree of control

over that data and its use. Thus, every individual has the desire to control,

or at least significantly influence, the handling of data about themselves.

Flowing from this, it is quite natural that individuals feel that the need for

a mechanism by which this interest is protected. Obviously, there are

206
opposing interests too, but protection is a process of finding appropriate

balances between privacy and these multiple competing interests. Further,

at the time legislating on cyberlaws, India's Parliament seems to have

largely neglected the issue of privacy of personally identifiable

information. Therein only a single provision dealing with this and that

provision is very limited in its scope. Section 72 of the Information

Technology Act, 2000, establishing an Information Technology offence

of "Breach of Confidentiality and Privacy" reads as under:

"Save as otherwise provided in this Act or any other law for the time
being in force, if any person who, in pursuance of any of the powers
conferred under this Act, rules or regulations made thereunder, has
secured access to any electronic record, book, register, correspondence,
information, document or other material without the consent of the
person concerned discloses such electronic record, book, register,
correspondence, information, document or other material to any other
person shall be punished with imprisonment for a term which may
extend to two years, or fine which may extend to one lakh, or with both."

The above mentioned provision deals only with information

collected by a person who secures the infonnation in pursuance of

powers that he or she exercises under the Act. It punishes with

imprisonment or fine or both the disclosure of such information to third

207
parties without the consent of the person who the information relates to.

This provision, would, therefore., be extremely narrow in its application,

being relevant only to offences by authorities such as Adjudicating

Officers, the members of the Cyber Regulations Appellate Tribunal or

Certifying Authorities under the Act. It is also apparent that the larger

issue of online privacy has remained completely outside the scope of

legislation. There seems to be no particular authority concerned with

understanding the importance of the issue and bringing in regulations to

curb unscrupulous use of personal information.

Right against solitary confinement -

In Sunil Batra (No.l) v. Delhi Administration, the important

question raised before the Supreme Court was whether ‘solitary

confinement imposed upon prisoners who were under sentence of death

was violative of Article 14, 19,20 and 21 of the Constitution. In this case

the two convicts who were confined Tihar Central Jail failed two

petitions under Article 32, challenging the validity of Section 30 and

Section 56 of the Prisons Act. Sunil Batra was sentenced to death by the

District and Sessions Judge and his sentence was subject to the

confirmation by the High Court and to a possible appeal to the Supreme

Court. Batra complained that since by date of his conviction by Session

208
Judge that was on 6th July, 1976 he was kept insolitary confinement till

the Supreme Court intervened on 24th February, 1978. Charles Sobhraj, a

foreigner, an under trail prisoners challenged the action of the

Superintendent of Jail putting him into bar fetters. He was arrested on 6th

July, 1976 and detained under Section 3 of MIS A. Since the time he was

lodged in jail he was put in bar fetter not withstanding of the

recommendation of the jail doctor that bar fetters be removed. It was

contended that Section 30 did not authorise prison authorities to impose

the punishment of solitary confinement. The Supreme Court accepted the

argument of the petitioners and held that section 30 of the Prison Act did

not empower the prison authorities to impose solitary confinement upon a

prisoner under sentence of death. Under Section 73 and Section 74,

I.P.C., solitary confinement is itself a substantive punishment which can

be imposed by a court of law. That, it could not be left to the whim and

caprice of the prison authorities.

The Supreme Court accepted the argument of the petitioner and

held that imposition of solitary confinement on the petitioner was

violative of Article 21.

Explaining the scope of ‘personal liberty’ in Article 21 in reference

to Section 30(2) of the Prison Act, 1894 “which provide for confinement

209
of a prisoner under sentence of death in a cell apart from other prisoners,”

the court observed:

The word “law” in the expression procedure prescribed by law in

Article 21 has been interpreted to mean in Menaka Gandhi’s case,64
that the law must be right, just and fair and not arbitrary, fanciful or
oppressive. Otherwise it would be no procedure at all and the
requirements of Article 21 would not be satisfied. If it is arbitrary it
would be violative of Article 14.

Right against illegal detention -

According to Article 22(2) of the Constitution of India a person

arrested and detained in custody is to be produced before nearest

magistrate within a period of 24 hours of his arrest and no such person is

to be detained in custody beyond this period without the authority of

magistrate. After this the said accused can be detained in police custody

or in jail only with the authority of the Court. But often we find in

newspapers reports of violations of these provisions by police. Khadra

Pahadiya v. State of Bihar65 is the glaring example of official apathy. In

the public interest petition the court warned that in some cases accused persons

were not produced before the judicial magistrates. Subsequent to their first

production and they continued to remain in jail without any

remand orders being passed by the judicial magistrates. This was plainly

210
contrary to law. The provision inhibiting detention without remand is a

very healthy provision. Magistrates should try to enforce this requirement

and where it is found to be disobeyed, come down heavily upon the

police.

The instances of illegal confinement seem to make the mockery of

our legal system. The situation becomes more serious when the confined

one is women—the weaker and vulnerable sex. The Supreme Court in

Nilima Priyadarshini v. State of Bihar took a serious view of delay in

placing before it matter of illegal confinement of a woman. In the instant

case the Court noted the practice of placing the application made by a

woman who has complained of having been kept in illegal confinement

against her wishes before the Supreme Court and half month after it was

received in Registry deserves to be deprecated. It is making a mockery of

the judicial process if such a matter is not treated as important enough to

be placed before' the Court forthwith. The two-Judge Bench of the apex

Court took a serious note and a direction was given to produce her before

the Additional Chief Judicial Magistrate to find out whether the

allegations were correct and if so to set her after liberty. The Court

further said that as a long time has already elapsed and suitable action

against officials who were found responsible for this delay and also to

211
ensure that such aberrations were not repeated.

In Joginder Kumar v. State of IZ.P.,67 the petitioner was detained

by the police officers and his whereabouts were not told to his family for

a period of five days. The police, in a petition for habeas corpus,

informed the Supreme Court that the petitioner was not detained rather

he was kept by the police officer for helping them for detecting some

cases relating to abduction. It was thus a case of police high handedness

and illegal detention of a free citizen. Since the petitioner had been

released, there was no need to grant the relief by way of writ habeas

corpus. However, the Supreme Court laid down guidelines governing

arrest of a person during investigation. This has been done with a view to

strike the balance between the needs of the police on the one hand and

the protection of human rights of citizens from oppression and injustice

at the hands of law enforcing agencies. The Court in this case held that a

person is not liable to be arrested merely on the suspicion of complicity

in an offence. There must be some reasonable justification in the opinion

of the police officer effecting the arrest that such arrest was necessary

and justified. Following are the guidelines laid down by the Court:

(i) An arrested person being held in custody is entitled, if he so

requests to have one friend, relative or other person, who is

212
 known to him or likely to take an interest in his welfare, told as
far as practicable that he has been arrested and where he is being
detained.
(ii) The Police Officer shall inform the arrested person when he is
brought to the police station of this right.
(iii) An entry shall be required to be made in the diary as to who was

informed of the arrest.

Right of not to be Imprisonedfor Inability to Fulfil a Contractual

Obligation -
This right of not to be imprisoned for inability to fulfil a

contractual obligation has been recognized at the International level

under Article 11 of the. Covenant on Civil and Political Rights. But this

right is not specifically guaranteed under Chapter III of Indian

Constitution. However, in Jolly George Verghese v. Bank of Cochin,68 it

was held by the Supreme Court that to cast a person because of his

poverty and consequent inability to meet his contractual liability is a

violation of Article 21 of the Constitution. In this case Justice VR.

Krishna Iyer observed:69

"It is too obvious to need elaboration that to cast a person in prison

because of his poverty and consequent inability to meet his contractual
liability is appalling. To be poor, in this land of Daridra Namyan (land
of poverty) is no crime and to recover debts by the procedure of putting
one in prison is too flagrantly violative

213
 of Article 21, unless there is proof of the minimal fairness of his wilful
failure to pay inspite of his sufficient means and absence of more terribly
pressing claims on his means such as medical bills to treat cancer or
other grave illness."

Thus, inability to do something only because of poverty cannot be

a ground for depriving personal liberty. Justice KR. Krishna Iyer further

emphasizing on this point observed: H(\

"where, the judgment debtor if once had the means to pay the debt but
subsequently, after the date of decree, has no such means or he had
money on which there are other pressing claims, it is violative of Article
11 of the International Covenant to arrest him and confine him in Jail so
as to coerce him into payment."

He furtherheld:71

"The freedom from imprisonment for non-payment of debt is covered

under Article 21 of the Constitution. According to him, the high value of
human dignity and the worth of human person enshrined in Article 21
read with Articles 14 and 19, obligates the state, not to incarcerate
except under law which is fair, just and reasonable in its procedural
essence."

Rights to prisoners to be treated with humanity -

One of the most basic and fundamental right of the

prisoners/suspects/accused persons is the right to life. In fact, it is the

basis of all human rights and the sanctom sanctorum of the constitutional

214
temple. If there were no right to life, there would be no point in having

other rights. One of the significant post-independence developments in

the field of prisons has been emergence of the prisoner's right touchstone,

which has been responsible both for the demystification of prisons, as

well as the movement towards standardization. Though, the rights

discourse has its roots in the United Nations initiatives concerning civil

and political rights at the international level, and the enactment of the

Universal Fundamental Rights by the Constitution of India at the national

level, the real impetus came from the activist appellate court rulings,

particularly in the post-emergency era.

Article 10(1) of the Convent on Civil and Political rights lays

down that all persons deprived- of their liberty shall be treated with

humanity. But so far as India is concerned, there is no such provision in

Part-Ill of our Constitution which can safeguard the discretionary and

sometimes ill treatment given to prisoners. The dawn of era of human

rights has brought in its wake new thinking about human sufferings and

the concept of right to life and personal liberty has acquired new

dimensions. The appalling and inhuman conditions inside the jails where

the accused and convicts were kept, had been the subject of criticism but

the jail inmates always led sub-human existence. In a modern democratic

215
world this is a fact, now accepted almost universally that a convict does

not forfeit his basic rights, even when he is in jail. A prisoner does not

cease to be a human being and hence has all those rights which a free

man enjoys. Nothing concrete was done by the executive to define the

rights of prisoners till the intervention of the judiciary in a large number

of cases. However, from the various pronouncements of the Supreme

Court in different cases this right of prisoners to be treated with

humanity has been implied. Justice KR. Krishna Iyer observed, "Basic

Constitutional Rights cannot be halted at the prison gates and can be

enforced within the prison campus." The then Chief Justice Chandra

Chud has summed up the scope of curtailment of freedom of the

prisoners in D.EM. Patnaik v. State of Andhra Pradesh. He said:

"Convicts are not by mere reason of the conviction, denuded to all the

fundamental rights which they otherwise possess ... A convict is entitled

to that precious right guaranteed by Article 21 of the Constitution that he

shall not be deprived of his life or personal liberty except according to

procedure established by law."

In Mohammad Giasuddin v. State of Andhra Pradesh,74 the Court

issued several directions to the State that the convict be assigned work

not of a monotonous, mechanical, degrading type but of a mental,

216
intellectual or like type with a little manual labour. The Court took the

stand that a person goes to the prison mainly because of the Court's order

and therefore, the Courts have a concern about what happens to him from

the first day till the last day. The interventionist approach has grown and

flourished ever since the Giasuddin case.

*fC

In Charles Sobhraj v. Superintendent ofJail, Tihar, New Delhi, it

was recognized that 'right to life' is more than mere animal existence.

Even in prison a person is required to be treated with dignity and one

enjoys all the rights specified in Articles 19 and 21 of the Indian

Constitution. In the instant case, the petitioner had contended that

barbaric and inhuman treatment was hurled at him and intentional

discrimination was done with him. The Court restricted such treatment

and regarded it as a violation of the right to life as guaranteed under

Article 21 of the Indian Constitution. In Sunil Batra v. Delhi

Administration the Court restricted the punishment of solitary

confinement and in Sobhraj's case, it recognized the putting to the

prisoners in bar-fetters for an unusually long period only in those cases

where 'absolute necessity demanded them'. Consequently, the Court

ordered the removal of bar-fetters on Sobhraj on the ground that though

the prisoners had no right to liberty since he was lawfully detained in

217
prison for an offence, but his right to life cannot be extinguished even in

jail. The right to life in Article 21 of the Indian Constitution meant

something more than animal existence.

In Kadra Pahadiya v. State of Bihar11 four young boys had been

lodged in Pakud Sub-Jail in Santhal Pargana for the last 8 years without

their trial making any progress. They were compelled to work outside jail

walls for fetching water etc. but they were made to put leg irons. Justice

P.N. Bhagwati remarked that it discloses a sense of callousness and

disregarded to civilized norms. The undertrials could not be kept in leg

irons in violation to the decision of the Court nor could they be asked to

work outside the jail.

In Sunil Batra v. Delhi Administration (///),78 the practice of

keeping undertrials with convicts in jail was regarded by the Supreme

Court as inhuman. The Court held that it offended the test of

reasonableness as envisaged in Article 19 and fairness in Article 21. The

punishment of solitary confinement in Batra's case was regarded as

violative of Article 21 of the Indian Constitution. The Court held that the

liberty to move, mix, talk, share company with co-prisoners, if

substantially curtailed by keeping a prisoner in solitary confinement,

would be violative of Article 21, unless the curtailment has the backing of

218
law.79 Further, the thread was picked up by Justice FR. Krishna Iyer in Prem

Shankar Shukla v. Delhi Administration,80 in which by relying on

Sunil Batra's case it was proclaimed that handcuffing is prima facie

inhuman and, therefore, not reasonable, is over harsh and at the first flush

arbitrary.

In State of Gujarat v. Hon'ble High Court ofGujarat81 Justice K.T.

Thomas curtly observed that no prisoner can be asked to do labour free of

wages. It is not only the legal right of a workman to have wages for

work, it is a social imperative and an ethical compulsion." Similarly, a

Division Bench of the High Court of Himachal Pradesh in Gurdev Singh

O')

v. State directed the State Govermnent to undertake comprehensive jail

reforms and appoint a high powered committee within a year to look into

various aspects including payment of reasonable minimum wages to the

prisoners. Justice Bhawani Singh speaking for the Court directed that

"the provisions permitting realization of maintenance charges from the

prisoners be dispensed forthwith and no future recovery be made in this

behalf1 The perusal stands as a strong testimony to the fact that courts in

India are contributing a lot to provide reliefs to the prisoners as and when

prison authorities go astray and flout the spirit of laws designed to protect

and safeguard rights and welfare. The issue of discrimination in matters

219
of prisoners classification into 'B' and 'C' on the basis of social, economic

backgrounds and life style have been resolved by the Duggal Committee

Report 1997, which has suggested that such law and practice is violative

of Equality Clause. As a consequence, in the prisons of Delhi, all the

categories of prisoners have to be accorded uniformity of treatment.

However, under many State prison manuals, classification based on

social and economic standing of the prisoners is still in vogue.

Right Against Custodial Violence -

o*a
In Sheela Barse v. State of Maharashtra the Supreme Court took

a serious note of violence committed on women prisoner's confined in the

Police lock up in the city of Bombay. The Court emphasized on the

importance of legal assistance to a poor or indigent accused who was

arrested and put in jeopardy of his life or personal liberty. The Court

observed:84

Imagine the helpless condition of a prisoner who is lodged in a jail who

does not know to whom he can turn for help in order to vindicate his
innocence or defend his Constitutional or legal rights or to protect
himself torture and ill-treatment or oppression and harassment at the
hands of his custodians.

Highlighting the need for setting up a machinery for providing

220
legal assistance to prisoners in jails, the Court directed the Inspector

General of Prisons, Maharashtra to issue a circular to all

Superintendents of Police in the State requiring them:

(i) To send a list of all under-trial prisoners, showing separately male

prisoners and female prisoners to the Legal Aid Committee of the
District (LAC) in which the jail is situated giving full particulars
about their detention.
(ii) To furnish to the LAC a list of persons arrested on suspicion
under Section 41 of the Criminal Procedure Code, 1908 who have
been in jail beyond a period 15 days.
(iii) To provide facilities to the lawyers nominated by the LAC to
enter the jail and to interview the prisoners who have
expressed their desire to have their assistance.
(iv) To furnish to the nominated lawyers whatever information is
required by them.
(iv) To put up notices at prominent places in the jail that lawyers so
nominated, would be visiting the jail on particular days.
(v) To allow any prisoner who desires to meet the lawyers to
interview and meet such lawyers and such interview should be
within sight but out of hearing of any jail official.

In the case of O.K. Basil v. State of West Bengal85 the Supreme

Court came down heavily on the incidents of custodial deaths. Kuldeep

Singh md A.S. Anand, JJ. observed that, "Custodial death is perhaps

one of the worst crimes in a civilized society governed by Rule of

221
Law."86 The rights inherent in Article 21 and 22(1) of the Constitution

require to be jealously and scrupulously protected. Courts cannot wish away

the problem. Justice A.S. Anand who delivered the judgment on behalf of the

Court held that any form of torture or cruel, inhuman or

degrading treatment, would fall within the inhibition of Article 21 of the

Constitution, whether it occurs during investigation, interrogation or

otherwise. If the functionaries of the Government become law breakers,

it is found to breed contempt for the law and would encourage

lawlessness and every man would have the tendency to become a law

unto himself thereby leading to anarchism. No civilized nation can

permit that to happen. Does a citizen shed off his fundamental right to

life, the moment a policeman arrests him? Can the right to life of a

citizen be put in abeyance on his arrest? These questions touch the

spinal cord of human rights jurisprudence. The answer, indeed, has to be

an emphatic 'No'. The precious right guaranteed by Article 21 of the

Constitution of India cannot be denied to convicts, under trials, detenus

and other Prisoners in custody except according to procedure

established by law. Justice Kuldeep Singh, in the above said case, proceeded

to issue comprehensive guidelines for all police officers to follow in effecting

arrests in the future.87

222
Right to Speedy Trial -

The most glaring malady which has afflicted the judicial system is

the tardy process and inordinate delay that takes place in the disposal of

cases. The piling arrears and accumulated workload of different courts

present a frightening scenario. As a matter of fact, the whole system is

crumbling down under the weight of pending cases which go on

increasing every day. Krishna Iyer, J. and Bhagwati, J. were aware of all
on

these maladies. In Maneka Gandhi v. Union of India, these Justices

stressed the 'procedure established by law', should be just, fair and

reasonable and not oppressive or fanciful. If the procedure is not just, fair

or reasonable, then it would be violative of Article 21 of the Constitution.

The apex Court has observed that in the broad sweep and content of

Article 21 right to speedy trial is implicit. The Court in Hussainara

Khatoon v. State o/Bihar89 has observed:

"No procedure which does not ensure reasonably a quick trial can be
regarded as reasonable, fair or just and it would fail foul of Article 21.
There can, therefore, be no doubt that speedy trial, and by speedy trial
we mean reasonably expeditious trial, in an integral and essential part of
fundamental right to life, liberty enshrined in Article 21."

The trend was followed in many subsequent decisions, for

223
 90
example, State of Maharashtra v. Champalal Punjabi Shah, T.V.

Batheswaran v. Tamil Nadir,91 Triveniben v. State of Gujaratn and

Ghyasi Ram's case93 In Champalal's case, Justice O. Chinnappa Reddy,

Justice A.P. Sen and. justice Baharul Islam reaffirmed that Article 21 of

the Indian Constitution, of necessity, confers a right to speedy trial.

Justice O. Chinnappa Reddy reinforced the folding in Hussainara-I,94 that

'reasonably expeditious trial is an integral and essential part of the

fundamental right to life and liberty enshrined in Article 21'. He observed

that denial of a speedy trial may with or without proof of something more

leads to an inevitable inference of prejudice and denial of justice. It is

prejudice to a man to be detained without trial. It is prejudice to a man to

be denied a fair trial. Further, 'a fair trial implies a speedy trial'. In Kadra

Pehadiya v. State of Bihar,95 Bhagwati, J. observed:

"3 more years have passed, but they are still rotting in jail, not knowing
what is happening to their case. They are perhaps reconciled to their
fate, living in a small world of their own cribbed, cabined and confined
within the four walls of the prison. The outside world just does not exist
for them. The Constitution has no meaning and significance, and human
rights no relevance for them. It is a crying shame upon our adjucatory
system which keeps man in jail for years on end without a trial."

Mantoo Majumdar v. State of Bihar96 is another case on

224
undertrials. In this case Justice Krishna Iyer found that two petitioners

had spent seven years in jail without trial. He found further that the

Government of Bihar was unwilling to furnish the facts sought by the

Court and was insensitive to the plight of the undertrials rotting in jails

for long years. He found that even Magistrates "have bidden farewell to

their primary obligation, perhaps fatigued by over work and uninterested

in freedom of other." He said that under Section 167 Criminal Procedure

Code: "The Magistrate concerned have been mechanically authorising

repeated detentions, unconscious of the provisions which obligated them

to monitor the proceedings which warrant such detention." He drew the

attention to the failure of the police to investigate promptly and the prison

staff to find out how long these undertrials should languish in jail. In the

fact of this failure of the limbs of law and justice, the Judge wondered

like any of us. 'If the salt hath lost its savour, wherewith shall it be

salted"? He ordered the release of the two petitioners on their own bonds

and without sureties.

AM

Salim Khan v. State of Uttar Pradesh shows that in Uttar Pradesh

too, undertrials face similar trials and tribulations. The Court found in

this case that the respondent was in jail since November, 1978 awaiting

trial. The counsel for the respondent alleged that there were serious

225
charges against the petitioner, but when directed by the court to produce a

single case in which chargesheet was submitted against the petitioner, he

was unable to do so. On the contrary the counsel informed the Court that

in some cases the petitioners had been tried and acquitted. The Court,

therefore, ordered his release on a personal bond of Rs. 500 deploring the

government's cavalier attitude towards the petitioner's freedom.

In Veena Sethi v. State of Bihar™ a letter written to Justice P.N.

Bhagwati by the Free Legal Aid Committee, Hazaribagh brought to light

facts too shocking for words. Out of 16 prisoners, who were of unsound

mind at the time when they were admitted into prison, 14 were there for

two to three decades. Some of them had regained sanity but not freedom.

Six of the prisoners, who had not regained sanity, were in prison for over

25 years as the only mental hospital in Bihar was overcrowded. Court

disapproved the practice of keeping mentally sick persons in jail as jail

was not the place for treating the mentally sick. Out of two persons

released from jail, one had spent 35 years and the other 29 years in jail.

The cases of remaining eight are also tragic. One of them had spent in all

37 years in jail before court ordered his release, quashing the charge that

had attempted to commit suicide in a fit of insanity. He had regained

sanity but not freedom in 1966. Another prisoner had become sane in

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1961 but he too was in prison till 1982.

After the decision of Abdul Rehman Antulay v. R.S. Naik" there is

no need to elaborate on this aspect of personal liberty, the Constitution

Bench speaking through Jeevan Reddy, J., has traversed the entire

ground. The judgment is illuminating and exhaustive. All the aspects of

the matter which have any relevance to speedy trial were convassed

before the Court and the Bench did full justice to the submissions. The

petitioners A.R., Antulay and Ranjan submitted before the Court that the

right to speedy trial be made meaningful, enforceable and effective and

there ought to be an outer limit beyond which continuance of proceedings

would be violative of Article 21. In this connection, it was submitted that

having regard to the prevailing circumstances, a delay of more than 7

years ought to be considered as unreasonable and unfair—this period of 7

years must be counted from the registration of the crime till the conduct

of the trial; retrial ought not to be ordered beyond this period and the

proceeding should be quashed.

The counter arguments which were advanced in the case of Ranjan

on the State of Bihar coming on appeal against the Full Bench Judgment

of the Patna High Court have been noted in / paragraph 21, wherein

Jethmalani first stated that despite our Constitution—makers being aware

227
of the Vlth Amendment to the Constitution of the United States

specifically providing for the right of speedy trial, did not incorporate the

same in our Constitution, and so no proceeding should ever be quashed

because of the delay in trial. Indian Courts have, therefore, to reconcile

justice and fairness with many other interests which are compelling and

paramount. It was contended that Article 21 cannot be construed as to

make mockery of Directive Principles and another even more

fundamental right, i.e., the right to equality in Article 14, It was further

urged that the Court must respect legislative policy and statute of

limitation may not be applied to serious offences and economic offence.

It was contended that there may be some kinds of delay which would

deserve to be totally ignored in giving effect to the plea of speedy trial. It

was also urged that the delay is usually welcomed by the accused and an

accused cannot raise this plea if he has never taken steps to demand a

speedy trial. The final submission was that possibility of prejudice is not

enough in this regard; actual prejudice has to be proved.

The Court started its own discussion from paragraph 26 and first noted

the sixth amendment to the American Constitution and then stated that it was

over-ruling of Gopalan's casem in R.C. Cooper (commonly

known as "Bank Nationalization casem and its extention to Article 21 in

228
Maneka Gandhi's case that this article got unshackled. Hussainara

decisions were then noted and in paragraph 40 it was observed that the

right to speedy trial has since been embedded in the statutory law. In this

connection reference was made to sub-sections (1) and (2) of Section

309, Cr. P.C. Certain American decisions were thereafter noted in

paragraphs 42 to 46. The Full Bench decision of the Patna High Court,

against which the criminal appeal had been filed, the same being

Madheshwar Dhari Singh v. State cf Bihar 1 (YJ was taken note of and dealt

with in paragraphs 47 and 48, in which the High Court put an outer limit

of 10 years for offences punishable with capital sentences and 7 years for

other offences. In paragraph 51, very pertinent questions were posed by

stating "One may ask—speedy means, how speedy? How long a delay is

too long"? and it was noted that even in the United States, the Supreme

Court has refused to draw a line. The Bench further stated that except for

the Patna decision, which was under appeal, no other decision of any

High Court in the country taking such a view was brought to its notice.

The outer limit even did not function in the United Kingdom. In

paragraph 52, the 'demand' rule was not accepted by stating that an

accused does not prosecute himself, and so, it is the obligation of the

State or the complainant to proceed with the case with reasonable

229
promptitude. Of course, the Bench observed that if an accused demands

speedy trial and yet he is not given one, the same may be a relevant

factor in his favour. Mind was then applied in paragraph 53 to the

question as to what would be the consequence of an infringement of the

right to speedy trial. The Bench refused to agree

that the only

consequence is quashing of charges and/or conviction, though normally

that consequence may follow; but in a given case, the facts including the

nature of the offence may be such that quashing of charges may not be in

the interest of justice. It was pointed out that after all, every offence,

more particularly economic offences and those relating to public officials

and food adulterations, is an offence against society.

The Court, after applying its mind to all the relevant considerations

summarized its conclusions in paragraph 54 which reads as below:

1. Fair, just and reasonable procedure implicit in Article 21 of the

Constitution creates a right in the accused to be tried speedily.
Right to speedy trial is the right of the accused. The
.. fact that a speedy trial is also in public interest or that it serves
the societal interest also does not make it any-the-less the right of
the accused. It is in the interest of all concerned that the guilt or
innocence of the accused is determined as quickly as possible in
the circumstances.
2. Right to speedy trial flowing from Article 21 encompasses

230
 all the stages, namely the stage of investigation, inquiry, trial,
appeal, revision and re-trial. That is how this Court has
understood this right and there is no reason to take restricted
view.
3. The concerns underlying the right to speedy trial from the point
of view of accused are:
(a) The period of remand and pre-conviction detention should be
as short as possible. In other words, the accused should not
be subjected to unnecessary or unduly long incarceration
prior to his conviction;
(b) The worry, anxiety, expense and disturbance to his vocation
and peace, resulting from an unduly prolonged
investigation, inquiry or trial should be minimal; and
(c) Undue delay may well result in impairment of the ability of
the accused to defend himself, whether on account of death,
dis-appearance or non-availability of witnesses or otherwise.

4. At the same time, one cannot ignore the fact that it is usually the
accused who is interested in delaying the proceedings. As is often
pointed out, "delay is known defence tactic." Since the burden of
proving the guilt of the accused lies upon the prosecution, delay
ordinarily prejudices the prosecution. Non-availability of
witnesses, disappearance of evidence by lapse of time really work
against the interest of the prosecution. Of course, there may be
cases where the prosecution, for whatever reason, also delays the

231
 proceedings. Therefore, in every case, where the right to speedy
trial is alleged to have been in-fringed, the first question to be put
and answered is—who is responsible for the delay? Proceedings
taken by either party in good faith, to vindicate their rights and
interest, as perceived by them, cannot be treated as delaying
tactics nor can the time taken in pursuing such proceedings be
counted towards delay. It goes without saying that frivolous
proceedings or proceedings taken merely for delaying the day of
reckoning cannot be treated as proceedings taken in good faith.
The mere fact that an application/petition is admitted and an
order of stay granted by a superior court is by itself no proof that
the proceedings is not frivolous. Very often these stays are
obtained on ex parte representation.

5. While determining whether undue delay has occurred (resulting

in violation of right to speedy trial) one must have regard to all
the attendant circumstances, including nature of offence, number
of accused and witnesses, the work-load of the court concerned,
prevailing local conditions and so on— what is called, the
systematic delays. It is true that it is the obligation of the State to
ensure a speedy trial and State includes judiciary as well, but a
realistic and practical approach should by adopted in such matters
instead of
pedantic one.
6. Each and every delay does not necessarily prejudice the
accused. Some delays may indeed work to his

232
 advantage. As has been observed by Powell, J. in Barker "it
cannot be said how long a delay is too long in a system where
justice is supposed to be swift but deliberate." The same ideal has
been stated by White, J. in U.S. v. Ewell,103 in the following
words:
"the sixth amendment right to a speedy trial is necessarily
relative, is consistent with delays, and has orderly
expedition, rather than mere speed, as its essential
ingredients; and whether delay in completing a
prosecution amounts to an unconstitutional deprivation of
the rights depends upon all the circumstances."

However, inordinately long delay may be taken as presumptive

proof of prejudice. In this context, the fact of incarceration of
accused will also be a relevant fact. The prosecution should not
be allowed to become persecution. But when does prosecution
become persecution, again depends upon the facts of a given
case.
7. We cannot recognize or give effect to, what is called the
'demand' rule. An accused cannot try himself; he is tried by
the Court at the behest of the prosecution. Hence, in accused's
plea of denial of speedy trial cannot be defeated by saying that
the accused did at no time demand a speedy trial. If in a given
case, he did make such a demand and yet he was not tried
speedily, it would be plus point in his favour, but the mere
non-asking for a

233
 speedy trial cannot be put against the accused. Even in
U.S.A., the relevance of demand rule has been substantially
watered down in Barker and other succeeding cases.

8. Ultimately, the Court has to balance and weigh the several

relevant factors—'balancing test1 or 'balancing process'—and
determine in each case whether the right to speedy trial has
been denied in a given case.
9. Ordinarily speaking, where the Court comes to the conclusion
that right to speedy trial of an accused has been infringed, the
charges or the conviction, as the case may be, shall be
quashed. But this is not the only course open. The nature of
the offence and other ' circumstances in a given case may be
such that quashing of proceedings may not be in the interest
of justice. In such a case, it is open to the court to make such
other appropriate order— including an order to conclude the
trial within a fixed time where the trial is not concluded or
reducing the sentence where the trial has concluded—as may
be deemed just and equitable in the circumstances of the case.

10. It is neither advisable nor practicable to fix any time-limit for

trial of offences. Any such rule is bound to be a qualified one.
Such rule cannot also be evolved merely to shift the burden or
proving justification on to the shoulders of the prosecution. In
every case of complaint

234
 of denial of right to speedy trial, it is primarily for the
prosecution to justify and explain the delay. At the same time,
it is the duty of the Court to weigh all the circumstances of a
given case before pronouncing upon the complaint. The
Supreme Court of U.S.A. too has repeatedly refused to fix any
such outer time limit in spite of the sixth Amendment. Nor do
we think that not fixing any such outer limit ineffectuates the
guarantee of right to speedy trial.

11. An objection based on denial of right to speedy trial and for

relief on that account, should first be addressed to the High
Court. Even if the High Court entertains such a plea,
ordinarily it should not stay the proceedings, except in a case
of grave and exceptional nature. Such proceedings in High
Court must, however, be disposed of on a priority basis."

The law laid down as above was then applied to the two cases at

hand and in both of them quashing was refused, though in one case

(Antulay's) the Special Court had been constituted in 1982, and in the

other (Ranjan's), the accused had been arrested in 1975; instead, direction

was given to hold day-to-day trial.

It is to be noted that if the courts do not provide some adequate

remedy to the victims of the 'inordinate delay their fundamental right to

speedy trial would prove merely an 'abstract right' and the whole 'digging'

235
shall go waste.104 It is high time for the Supreme Court to prescribe some

'reasonable time limit' within which a case must be finally disposed of.

The apex court has also propounded following three principles in the case of

Sheela Barse v. Union of India105 which have a direct bearing on the

Child Offenders' Fundamental right of speedy trial: (1) where a complaint

is filed or first information report is lodged against a child below 16 years

of age for an offence punishable with imprisonment of not more than

seven years, the investigation shall be completed within a period of three

months from the date of filing of the compliant or lodging of the F.I.R. if

the investigation is not completed within this time, the case against the

child must be treated closed. (2) If within three months, the chargesheet is

filed against the child in case of an offence punishable with imprisonment

of not more than seven years, the case must be tried and disposed of

within a further period of six months and this period should be inclusive

of the time taken up in committal proceedings, if any. (3) the Court

recognize that if the delay is on account of some interim order passed by

superior court or the accused is responsible for the delay in the trial of the

case, he shall not be entitled to the relief above mentioned.

Thus, the position is that the child offenders, below the age of 16

years, who are charged with an offence punishable with imprisonment

236
for seven years or less, have fundamental right of speedy trial. Once it

has been ruled by the apex court that the right to speedy trial is an

integral part of Article 21 of the Constitution of India it is for the

Legislature to enact a speedy trial Act. It is surprising as to why the

Supreme Court has not so far issued writ of mandamus against the State

so as to get such a law enacted.

One of the notable cases on speedy trial reported during the year 1996

is that of Common Cause v. Union of India106 where through PIL,

cases relating to various types of offences, pending in criminal courts for

long period were brought to the notice of the Court. The Supreme Court

directed that the undertrials languishing in jail for a long period be

released on the conditions laid down by it in the order. The Court also

laid down guidelines and issued directions for the disposal of other

categories of cases, whether instituted on police report or private

complaint. However, these directions were not applicable to certain

classes of cases such as the case involving corruption, misappropriation

of public funds, smuggling, foreign exchange violation and offences

under NDPS Act; Essential Commodities Act, 1955; Prevention of Food

Adulteration Act, 1954; Acts dealing with environment or other

economic offences; Explosive Substances Act, 1908 and TADA;

237
offences relating to army, navy and air force; offences against public

tranquillity; offences relating to public servants; offences relating to. coins and

government stamp; offences relating to giving a false evidence

and offences against the State. These direction shall be valid for all the

States and Union Territories and would apply not only to pending cases

but also to the future cases. Some of the directions were clarified and
t f!7
modified by the apex Court in the subsequent cases.

Right to Fair Trial -

The procedure contemplated by Article 21 has to be just, fair and

reasonable. It follows from this that if a person faces a trial which may

result in his conviction followed by imposition of sentence, the same has

to be fair. One of the attributes of fair trial is that the same has to be open. In

Naresh Sridhar v. State of Maharashtra,108 a Special Bench of

Nine Judges made some very important observations as to why trial must

be open. Chief Justice Gajendragadkar speaking for the majority

observed that public trial in open court is essential for the healthy,

objective and fair administration of justice, because a trial held subject to

the public scrutiny and gaze naturally acts as a check against judicial

caprice and vagaries and serves as a powerful instrument for creating

confidence of the public in the fairness, objectivity and impartiality of the

238
administration of justice. It was then observed that public confidence in

the administration of justice is of such great significance that there can be

no two opinions on the broad propositions that in discharging their

functions as judicial tribunals, courts must generally hear cases in open

and must permit the public admission to the Court room. It was, however,

pointed out that cases may occur when the requirement of administration

of justice itself may make it necessary for the court to hold trial in

Camera. This view was by stating that despite the importance of public

trial, it cannot be over-ruled that the primary function of the judiciary is

to do justice between the parties who bring their causes before it, and so,

if a judge trying a case is satisfied that the very purpose of finding truth

in the case would be retarded or even defeated if witnesses are required to

give evidence subject to public gaze, it would be open to him in exercise

of his inherent power to hold the trial in camera either partly or fully.

The aforesaid has received statutory recognition inasmuch as

Section 327, Cr. P.C. states that the court shall be open to which the

public generally may have access in so far as the same can conveniently

contain them.109 The point, however, came up before the Supreme Court

for examination in Kehar Singh v. State11" (popularly known as Indira

Gandhi murder case) that whether holding of trial in jail satisfied this

239
requirement. The Bench comprising of three Judges opined that because

the trial took place in jail, it did not cease to be open, in view of the language

used in Section 327 of the Code. It was further held that merely because

restrictions #ere imposed to regulate entry by way of security

measures, the trial did not cease to be open. Ojha, J. referred to the

language of Section 327 and observed that even if a trial is held in a

private house, no sooner it becomes a venue of trial of a criminal case, it

is deemed to be in law an open place and everyone who wants to go to

attend the trial has a right to go and attend the same, subject to the

restriction about the number of persons which could be contained in the

premises. Ray, J. pointed out that though public trial in open court is a

rule, yet in cases where the ends of justice would be defeated if the trial is

held in public, in that case the court has inherent jurisdiction to hold trial

in camera. Shetty, J. opined that jail is not a prohibited place, nor can jail

trial be regarded as an illegitimate trial and for reasons of security, trial

can be held in jail. The learned Judge further pointed out that there

should not be even an impression that it is a secret trial, because

dynamics of judicial process should be thrown open to public at every

stage, to achieve which the Presiding Judge must have full control over

the court-house and the accused must have all facilities to have a fair trial

240
and all safeguards to avoid prejudice.

A point of some importance relating to fairness in trial came up for

consideration in Thippeswamy v. State of Karnataka111 and the same was

that if an accused pleads guilty on being induced to do so under a

promise or assurance that he would be let off lightly (commonly known

as plea-bargaining), would it be open to the appellate or revisional court

to enhance the sentence by acting upon plea of guilty? The court opined

that it would be not reasonable and fair, and what the appellate or

revisional court should do in such a case is to set aside the conviction

and, sentence and remand the case for trial, so that if the accused can, if

he so wishes, defend himself against the charge and if he is thereafter

found guilty, proper sentence can be passed against him.

The question which came up for examination in State of Punjab v.

Sarwan Singh was whether putting a bar of limitation on prosecutions

as has been done by Section 468 of the Code of Criminal Procedure

embodies the principles of fair trial. The court opined that the purpose of

putting limitation on prosecution is to prevent the parties from filing

cases after a long time, as a result of which material evidence may

disappear, so also to prevent abuse process of the court by filing

vexatious and belated prosecutions long after the date of offence. The

241
object which such a provision seeks to subserve is clearly in consonance with

the concept of fairness of trial as enshrined in Article 21 of the Constitution.

One more aspect of fair trial is related to the effect of non

production of the accused on the date of remand is seen in Bhim Singh v.

State of J&K. The petitioner was detained in custody and was not

produced before the court and would be violative of Article 21 of the

Constitution.

Right to Bail -

Bail is a process by which a person is released from custody. It is a

system in which the accused person is released on financial security or

surety for his appearance at the trial, because the guilt of the accused is to be

established by the prosecution.114 Bail serves the bifocal interest of

justice to the individual involved and the society effected; because

without bail no system of criminal law function properly. The concept of

bail has a long history with its roots in English and American Law. In

medieval England, the custom grew out of the need .to free untried

prisoners from disease ridden jails while they were waiting for the

delayed trials conducted by travelling justices. Prisoners were bailed, or

delivered, to reputable third parties of their own choosing who accepted

242
responsibility for assuring their appearance at trial. If the accused did not

appear, his bailer would stand trial in his place. Under the early English Law,

an accused could be released if his friends agreed to be responsible

for him and acted as surety for his appearance in the court. If the accused

was not delivered, the surety then used to be liable. Later, the friend

could pledge his property such as his house or land, but still remained the

prisoner's actual keeper.

Arrest or detention implies deprivation of personal liberty. Bail

provides the necessary relief. The system of bail is, therefore, an essential

constituent of the legal system of every civilized society. In violation of

the provisions of Article 21 of the Constitution and contrary to the

guidelines laid down by the Supreme Court for liberal approach in the

grant of bail, the Indian Courts at lower level have unfortunately

continued to adopt the age-old archaic concept in refusing bail while

dealing with liberty of citizens who are innocent in the eyes of law, until

proven guilty. Thus, when bail is refused, a man is deprived of his

personal liberty, which is of precious value under our constitutional

system, recognized by Articles 19,21 and 22. After all personal liberty of

an accused or convict, which is fundamental in nature can be lawfully

eclipsed by. a procedure established by law to defeat the first half of

243
Article 21.115 It is a settled law, that grant of bail is a rule and refusal of

the bail is an exception. Moreover, every accused person is presumed to

be an innocent until final decision of the Court holding him guilty of the

charge/charges made against him. There is no doubt that a person

accused of certain charges, if not released on bail, certainly faces

handicaps to prove his innocence besides carrying a constant stigma in

the society. Therefore, consequences of pre-trial detentions are grave and

are in gross violation of Articles 14 and 21 of the Constitution of India

and against the principles of equity, fair play and natural justice.

In Babu Singh v. State of UP.,116 the apex Court speaking through

Krishna Iyer, J. stated that 'personal liberty', deprived when bail is

refused, is "too precious a value of our constitutional system recognized

under Article 21," because of which the power to negate it must be

exercised not casually, but judicially, with lively concern for the cost to

the individual and the community. It was then observed:

"... to glamorise impressionistic orders as discretionary may, on

occasions, make a litigative gamble decisive of a fundamental right.
After all, personal liberty of an accused or convict is fundamental,
suffering; lawful eclipse only in terms of procedure established by law'.
The last four words of Article 21 are the life of that human right."

244
 While dealing with the question whether some constraints and

conditions should be specified or laid down in exercise of power granting

anticipatory bail under Section 438 of the Code of Criminal Procedure, it was

observed in Gurbaksh Singh Sibia v. State of Punjab that in order to meet the

challenge of Article 21, the procedure must be fair, just and

reasonable, and so, word may not be read in the section to make it unjust

or unfair. On the basis of this judgment, it can be stated that if a bail order

imposes unjust condition, that would be hit by this article. Though

Gurbaksh Singh's case was related to pre-arrest bail, it is submitted that

what was stated therein in this regard shall apply to cases of post-arrest

bail also.

There were conflicting judicial decisions whether personal

'appearance of the accused was necessary for the grant of bail? Some of

the High Courts were of the view that accused must appear physically

before bail was granted. The words "appears" or "is brought before a

court" in Sections 496 and 497 (Sections 436 and 437 of the new Code)

do not contemplate the appearance through counsel, otherwise involved

the idea that the accused is produced before a court and has surrendered

himself in obedience to the process of Court. A contrary view was,

however, expressed by the High Court of Hyderabad and Lahore. It is

245
submitted that the former view appears to be more correct and based on

sound reasons.

In Hussainara Khatoon v. State of Bihar,119 the liberal use of bail

was advocated for releasing the accused pending trial. But / the problem

of bail generally hinges upon the discretion of the Court. This system of

bail is very discriminatory where the poor are priced out of their liberty in

the justice market and it remains a remedy only for the rich. In the instant

case, it was stressed that instead of financial loss, other factors such as

roots in the community, job security, family ties etc. should be

determinative factors in grant of bail and accused should be in

appropriate cases be released on his personal bond without monetary

obligation. The enquiry into the solvency of the accused can become a

source of great harassment to him and often result in denial of bail and

deprivation of liberty and should not, therefore, be insisted upon as a

condition of acceptance of personal bond. The deprivation of personal

liberty for reason of financial poverty perpetuates injustice based upon

discrimination.

It may be concluded that bail system at present is highly

unsatisfactory. It suffers from property oriented approach and in

conspicuous of the erroneous assumption that the risk of monetary loss is

246
the only deterrent against fleeing from justice. The courts mechanically insist

that accused should produce sureties; and must establish their solvency to be

able to pay the amount of the bail in case the accused fails

to appear to answer the charge. Bail is determined in accordance with the

seriousness of the charge, forgetting altogether the individual's financial

circumstances which seems most relevant. Most of the accused are

ignorant of their right to be released on bail and are unable to engage a

lawyer who get. them released on bail. The erratic system of bail is an

abuse of process of law.

It should be realized that the risk of monetary loss is not only

deterrent against fleeing from justice but there are also other factors

which act as equal deterrents such as family tie, roots in community, job

security, membership of stable organizations. These very factors should

be the determining factors in grant of bail. The abuse of judicial

discretion in the grant or non-grant of bail should be minimized.

Right To Legal Aid -

One of the notable recent developments in human society is its

concern to provide for legal aid so that equality before law becomes

meaningful. In a Welfare state like India, Law must become an instrument

of social and economic justice and ensure equality before law and equal

247
protection of law to all citizens. According to the penal law of our

country, a poor individual on pleading guilty to the charge as to the

commission of an offence is generally sentenced and awarded

punishment as provided under the law by the Court. Experience has

shown that it is an irony of fate that operation of our legal system does

not provide sufficient means by which a poor and illiterate person who

has been convicted and sentenced could know what is the infringement of

law on his part for which he is convicted or what the law is.

In our Constitution as enacted, only one article had something to

say relating to legal assistance. It is Article 22(1) and it provide that no

person who is arrested shall be denied the right to consult and to be

defended by a legal practitioner of his choice. Thereafter, the Constitution

(Forty-Second Amendment) Act, 1976 inserted a new Article 39-A

dealing with equal justice and free legal aid. In 1978, the apex court took

note of Article 39-A and in M.H. Hoskot v. State of Maharashtra laid

down that Article 21, read with Articles 39-A and 142, requires, inter

alia, that where a prisoner is disabled from engaging a lawyer on

reasonable grounds, such as, indigence or incommunicado situation, the

court shall, if the circumstances of the case, the gravity of the sentence

and the ends of justice so require, assign a competent counsel for

248
prisoner's defence, provided the party does not object to that lawyer.

Hussainara Khatoon v. State of Bihar122 put this matter on a high

pedestal. Bhagwati, J. stated emphatically that free legal service to an

indigent and poor accused is implicit in the guarantee given by Article

21, which is emphasized by Article 39-A.

In yet another decision given by the apex court in Khatri v. State of

Bihart (popularly known as Bhagalpur Blinding Case), Justice

Bhagwati observed that the State cannot avoid its

constitutional

obligation to provide free legal services to indigent accused by pleading

financial or administrative difficulties. He went further and added that

the Constitutional obligation does not arise only when the trial

commences, but also when the accused is for the first time produced

before the Magistrate. It is at this stage that the accused gets his first

opportunity to apply bail and obtain his release as also to resist remand to

police or jail custody and so the accused needs competent legal advice

and representation at that stage. Realizing the legal illiteracy of persons,

Justice Bhagwati stated that the scope of the right to free legal aid

involves the duty of every Magistrate and Sessions Judge to inform the

accused produced before them of their entitlement for free legal services

irrespective of the offence the accused is charged with. The apex Court

249
has directed all the State Governments to make provision for grant of

free legal service to the poor accused person. Legal aid got embedded in

the law of the country by this decision.

In the case of Rajan Dwevedi v. Union of India124 the Supreme

Court held that a writ will not be issued to enforce the provisions of

Article 39-A by ordering the Union of India to give financial assistance

to the petitioner/accused to engage a lawyer of his choice on a scale

equivalent to the scale of fee which was being paid to the Government

Counsel. The climax was reached in Suk Dass v. Union Territory of

Arunaclial,125 when the Supreme Court gave a clear verdict in respect of

legal aid at state cost. In the instant case, four accused were tried under

Section 506 Indian Penal Code without the assistance of a lawyer. They

were convicted and before the High Court it was pleaded that they were

not given the assistance of a lawyer. The High Court dismissed the

appeal with the plea that they were required to ask for a lawyer. The

Supreme Court confirmed the Courts view but made certain observations

m respect of legal aid. It was held that free legal assistance at State cost is a

fundamental right of the person accused of an offence which may involve

jeopardy to his life or personal liberty by Bhagwati J.:

Legal aid would be an idle formality if it was to depend upon a

250
 specific application by such poor or ignorant person for such a legal
assistance.

Following Hoskot127 and Hussainara Khatoon128 and A.R. Antulay129 a

two-Judge Bench of the Supreme Court has again observed recently in State of

Maharashtra v. Mannubhai Pragaji Vashim that it is now fairly

settled that the right to legal aid and speedy trial are parts of the guarantee

of human right envisaged by Article 21 of the Constitution. In the instant

case, it was held that in a fit case the Court can direct the ruling

politicians to carry out the Directive Principles even through these are

stated to be unenforceable in a Court of Law. Further when there is

inaction or slow action by the politicians and administrative officers, the

judiciary must intervene. Hon'ble Justice Krishna Iyer in one case

observed that to provide free legal aid is State duty and not Governments

charity.

It is submitted that the provisions of free legal aid to indigent

accused as provided under Article 39-A of the Indian Constitution and as

implicit in article 21 are in tune with Article 14(3)(d) of the Covenant on

Civil and Political Rights which provides that in the determination of any

criminal charge against everyone, and to defend himself in person or

through legal assistance of his own choosing; to be informed, if he does

251
not have legal assistance of this right and to have legal assistance assigned to

him in any case where the interests of justice so require, and

without payment by him in any such case if he does not have sufficient means

to pay for it."131 Various Law Commissions Reports132 have also

suggested for making provisions of free legal assistance by State for all

accused, who, for want of means, are undefended by a lawyer.

RIGHT TO LIFE AND CAPITAL PUNISHMENT

History of human civilization, everywhere, knows no period of

time when death sentence was discarded completely as a mode of

punishment and it were only the number of offences which have varied

from time to time, State to State, according to the prevalent notions of

justice and needs of the society

Legal Provisions -

The Indian Penal Code enacted by the Britishers in 1860 still

regulate the penal law in India. In the objects and reasons of this code, the

framers had observed that the death penalty should be sparingly inflicted.

The code prescribes death penalty for the following offences:

(i) Waging war against Government or attempting to wage such war

or abetting of such war (Section 121);
(ii) Abetment of mutiny; if mutiny is committed is consequence

252
 thereof (Section 132);
(iii) Giving or fabricating false evidence upon which an innocent
person suffers death (Section 194);
(iv) Murder (Section 302);
(v) Murder by life convict (Section 303);
(vi) Abetment of suicide of child or insane person (Section 305);
(vii) Attempt to murder by a life convict, if hurt is caused (Section
307); and
(viii) Decoity with murder (Section 396).

Out of these eight offences, for which death penalty has been

prescribed, only in two cases i.e., murder by a life convict (Section

303)134 and attempt to murder by a life convict if hurt is caused (Section

307), Judge is left with no discretion but to punish the offender with

death. In case of other six categories of offences, the judge is permitted to

exercise his discretion to impose death penalty or a lesser sentence. Apart

from these offences, death penalty has been prescribed under special laws

viz., the Air Force Act, 1950; the Army Act, 1950; the Navy Act, 1957;

the Indian Railways Act, 1890; and the Terrorist and Disruptive

Activities (Prevention) Act, 1987, POT A.135 The penalty of death can be

inflicted only in gravest causes. Pre-planned, calculated, cold blooded

murder has always been regarded as justifying the imposition of death

penalty on the murderer. However, a sentence of death passed by a Court

253
of Sessions has to be confirmed by the High Court of the State before the

sentence is executed.

Constitutionality of capital punishment -

The Judicial trend in India reveals that it has always upheld right of

the State to kill a wrong doer. It may, however, not be denied that the

judiciary has always weighed the contents of philosophy of life, as

enshrined in our National Charter, heavily before punishing a wrong-doer

to death. As capital punishment extinguishes life, it is deprivation of life

par excellence, attempts have been made from time to time to attack the

imposition of capital punishment on the anvil of Article 21. The doctrine

of fair, just and reasonable procedure has been evolved by the apex Court

for the deprivation of life and personal liberty. The Supreme Court has

held that the procedure for the deprivation of life and personal liberty

must be fair, just and reasonable and not fanciful, oppressive or arbitrary.

It may be seen that the judiciary has shown its preference to life

imprisonment rather than sentencing the criminal to death. The exception,

however, is that the court has upheld the constitutionality of death

sentence. The question of Constitutional impermissibility of death

sentence, in the light of spirit contained in the provisions of Articles 16,

19 and 21 of the constitution, was raised for the first time in Jagmotian

254
Singh v. State ofU.P131 The Court negatived the contention and held that

deprivation of life is constitutionally permissible provided it is done

according to procedure established by law. Soon after Jagmohan, came

the case of Ediga Anamma v. State of Andhra Pradesh, in which

Justice Krishna Iyer passed a sentence of life imprisonment and

commuted death sentence on the ground of delay of two years in

execution. Further, apex Court showed its positive trend towards the

philosophy of life and went a step forward stressing the view point that

humanistic imperatives of Indian Constitution need to be explored at the

hands of law. Justice Krishna Iyer delivering the majority judgment, which was

concurred by Justice Desai, observed:140 "It is fair to mention

that the humanistic imperatives of the Indian Constitution;... Have hardly

been explored by courts in this field of "life or death" at the hands of

Law."

The Court held that death penalty can not be given unless it is

shown that murderous appetite of the convict is too chronic and deadly

that ordered life of a locality or society or a prison itself will be no more if this

man is now or later to be set at large.141 However, Sen, J. did not

agree with the view point coined by the Court. He, while delivering

dissenting opinion, held that it was not legally permissible for this court

255
while hearing an appeal in particular case when a capital sentence is

imposed to define the expression "special reasons" occuring in sub

section 354 of the Criminal Code, in such a manner, by a process of

judicial interpretation" as to limiting the scope of death penalty in a manner

"which has virtually the effect of abolishing death sentence."142

The Court did not support the view point expounded in Rajender

Prasad's case. It was held by the Court that in Bachan Singh v. State of

Punjab143 that death sentence was not violative of Artice 21 of the

Constitution. The Court, however, relaxed its earlier trend and held in another

case of Bachan Singh144 that death sentence be imposed in the

"rarest of rare cases" The assassinations of Prime Minister Indira Gandhi145

and retired Chief of the Army Staff General Vaidya;146 murder

of Sanjay and Gita Chopra147 are some of the cases in which death

sentence was awarded on the touchstone of the "rarest of rare cases"

criterion. Further, in Munawar Harun Shah v. State ofMaharashtra the

appellants committed a series of murders and the extreme penalty of

death was upheld having regard to "the magnitude, the gruesome nature

of the offences and the manner of perpetrating them." It was also pointed

out that any leniency shown in the matter of sentence would not only be

misplaced but will certainly give rise to and foster a feeling of private

256
revenge among people leading to destabilization of the society. Similarly, in

Darshan Singh v. State of Punjab,149 the apex court upheld the death

sentence because the attack was cruel in-as-much as the appellant had

chopped off the neck of the deceased, have given repeated blows by

gandasa on the body of another deceased who was a young girl, indeed

his own uncles daughter, which had been done to see that she did not

escape. The brutality of the crime prevailed over the judges to approve

the penalty of death. The constitutionality of death sentence was also

challenged in Shashi Nayar v. Union of India.150 Justice K.N. Singh

speaking for the court relied on Bachan Singh and Jagmohan Singh for

upholding the constitutionality of death sentence.

Tn Laxman Naik v. State ofOrissa151 it was conclusively proved on

the basis of circumstantial evidence that the accused committed rape on

his brother's daughter aged seven years in a lonely place in forest and

thereafter murdered her. Dr. A.S. Anand and Faizan Uddin, JJ. observed

that the evidence on record indicated how diabolically the accused has

conceived of his plan and brutally executed it and such calculated, cold

blooded and brutal murder of a girl of a very tender age after committing

rape on her would undoubtedly fall in the category of rarest of the rare

case attracting no punishment other than the capital punishment and

257
consequently confirmed the sentence of death. Further, death sentence

was awarded in Ravji alias Ram Chandra v. State of Rajastlian. t In the

instant case it had been very clearly established that the appellant had

committed one of the most heinous crimes by killing his poor wife who

was in advanced state of pregnancy and three minor children for no fault

on their part. The appellant had a solemn duty to protect them and to

maintain them but has betrayed the trust reposed on him in a very cruel

and calculated manner without any provocation whatsoever. The appellant

did not even spare his mother who tried to prevent him from committing

such unpardonable crime. G.N. Ray and G.T. Nanavati, JJ, observed that

the court will be failing in its duty if appropriate punishment was not

awarded for a crime which had been committed not only against the

individual victim but also against the society to which the criminal and

victim belonged. The court further observed that there was no justification

to commute the death penalty to imprisonment for life. In an important

ruling, the Supreme Court has held that in a murder case if the sessions

court awards death penalty to an accused and refers the matter to the High

Court for confirmation of the sentence, the latter should consider the

evidence in the case afresh. Reversing a Madras High Court order

acquitting a triple murder accused after a Sessions Court

258
gave capital punishment, the apex court said: "It is the duty of the High

Court in a death reference to consider the evidence afresh. A three-Judge

Bench headed by Justice G.B. Pattanaik said, "the proceedings before the

High Court in such a case require a reappraisal and reassessment of the

entire facts and law so as to come to its independent conclusion but while

doing so, the High Court cannot also totally overlook the conclusion

arrived at by the Sessions Judge." In the instant case, Rajendran was

convicted by Sessions Court for murdering his wife and two daughters

aged six and two years on the basis of circumstantial evidence but the

High Court, before whom the accused did not file any appeal, acquitted

him of all charges. Mr. Justice Pattanaik said the High Court did not

examine the circumstances established by the prosecution evidence and

without examining the conclusion of the trial judge, "in a most slipshod

manner" acquitted the accused.

Recently, the Supreme Court has criticized the Bombay High

Court for acquitting an accused in a "grisly perpetrated rape and murder

of a four-year old girl" and awarded life imprisonment to him while

upholding the conviction passed by the trial court. Terming the acquittal

as "disconcerting," a Bench comprising Mr. Justice G.T. Nanavati and

Mr. Justice K.T. Thomas, said prosecution presented reliable and

259
formidable circumstances forming into a completed chain and pointing

"unerringly to the irresistible conclusion" that the little girl Gangu was

raped and killed by none other than the accused Suresh.

"Criminal Justice unfortunately became a casualty in this case

when the High Court side-stepped all such circumstances and exonerated

the culprit of such a grotesque crime", Mr. Justice Thomas said while

writing the judgment. Referring to the manner in which the accused first

lured the child to a lonely place and then raped and killed her, the Bench

said: 'We would have concurred with the trial court's view that the

extreme penalty of death can be chosen for such a crime...." The Court

awarded him life sentence keeping in mind that the accused was once

acquitted by the high court but observed "this case is perilously near the

region of the 'rarest of the rare cases' envisaged by the Constitution

Bench" in which death penalty could be imposed.153

EFFECT OF EMERGENCY ON PERSONAL LIBERTY

The founding-fathers of the Indian Constitution incorporated

emergency provisions in the Constitution in order to safeguard the

sovereignty and integrity of the State. Part XVIII of the Constitution

contemplates three kinds of emergency; viz., the emergency arising out of

the war or external aggression or armed rebellion; emergency arising

260
out of the breakdown of the constitutional machinery, and the financial

emergency. Here the earnest endeavour is only with the effect of

emergency on personal liberty and not with the emergencies on the

breakdown of constitutional emergency.

As already stated that Article 352 provides for proclamation of

emergency and Article 353 enumerates the effect of emergency. Article

358(1) provides that while proclamation of emergency is in operation

nothing in Article 19 shall restrict the power of the State as defined in Part

III of the Constitution to make any law or to take any executive action

which the State would, but for the provisions of Part III be competent to

make or take. Thus, during the proclamation of emergency freedoms

guaranteed by Article- 19 are automatically suspended. No special order

for suspension is necessary. As soon as the proclamation of Emergency

ceases to operate Article 19 which remains suspended during emergency,

automatically comes into life and begins to operate and any law

inconsistent with Article 19 made during emergency ceases to have effect

to the extent of the inconsistency except as respect things done or omitted

to be done before the law so ceases have effect. But no action will be for

anything done during the emergency even after the emergency is over.

261
 The 44th Constitutional Amendment Act, 1978 has made two

important changes in Article 358: First, Article 19 will be suspended only

when a Proclamation of Emergency is declared on the ground of war or

external aggression and not when emergency is declared on the ground of

armed rebellion. Secondly, it has inserted a new Clause (2) in Article 358

which says that nothing in Clause (1) shall apply to—(a) any law which

does not contain a recital to the effect that such law in relation to the

Proclamation of Emergency, or (b) to any executive action taken

otherwise than under a law containing such recital. This clause makes it

clear that Article 358 will only protect emergency laws from being

challenged in a court of law and not other laws which are not related to

the emergency. Prior to this, the validity of even other laws, which were

not related to emergency, could not be challenged under Article 358.

The Supreme Court in MM. Pathak v. Union of India154 had an

occasion to consider the effect of the expression "the things done or

omitted to be done" in Article 358 after the Proclamation of Emergency

ceases. The Court held that the effect of Proclamation of Emergency on

fundamental rights is that the rights guaranteed by Articles 14 and .19 are

not suspended during emergency but only their operation is suspended. In

other words, it can be concluded that Articles 226 and 32 are made

262
ineffective in emergency.

Further, Article 359(1) empowers the President to suspend the right

to enforce fundamental rights guaranteed by Part III of the Constitution,

he may, by order, declare that the right to move any court for the

enforcement of such of the fundamental rights as may be mentioned in the

order and all proceedings pending in any court for the enforcement such

rights shall remain suspended for the period of Proclamation is in force or

for such shorter period as may be specified in the order. Clauses

(2) and (3) of Article 359 provide that such an order may extend to the

whole or any part of the territory of India, and an order made under Clause

(1) shall as soon as possible be laid before each House of Parliament. The

44th Constitution Amendment Act excludes Articles 20 and 21 from the

purview of aforesaid order and laws unrelated to emergency can be

challenged in a court of law. This amendment was a sequel to the decision

of the Supreme Court in the Habeas Corpus case.

The amendment is intended to remove the recurrence of such a situation

in future. It is to be noted that unlike Article 358 under Article 359

suspension of right to move any Court for the enforcement of funda

mental rights is not automatic. It can only be brought about by a

Presidential Order.

263
REMEDY IN CASE OF VIOLATION OF THE RIGHT TO LIFE
AND LIBERTY
A right without a remedy is like a writ in the water.(This accounts

for the importance of "ibi jus ibi remedium." As Article 21 forms the arc

of all other rights, the.violation of the same has also to be remedied.

Frankly admitting, if we want to improve the life conditions of the people

and make basic right to life and liberty available to them, it is necessary

for a judge to adopt an activist approach. The only armoury available to

the judiciary is the armoury of law. But the weapon can be used, misused,

abused and even allowed to rust.156

Writ of Habeas Corpus -

The, law of habeas corpus was evolved to free citizens from the

issue of a warrant without a stated cause, from arrest without a legal

warrant, and from imprisonment without a trial and from punishment

without a conviction.157

Constitution empowered the Supreme Court under Article 32

and State High Court under Article 226 to issue writ of Habeas

Corpus.

A survey of decided cases reveals that a writ of habeas corpus

may be issued on any of the following grounds:

264
 (i) arrest under any law providing for preventive detention if the
detention is not in accordance with provisions thereof or is
mala fide;158
(ii) arrest under any law when the arrest is not in accordance
with the provisions of that law;159
(iii) where the prisoner is detained on the basis of remand orders
passed mechanically;
(iv) where remedy of bail is available but the prisoner challenges
his detention as illegal;161
(v) where the convicts are forced to undergo sentence in
violation of their rights as provided in Article 21 of the
Constitution;162
(vi) where convicts or under-trial prisoners are subjected to
blinding and torture in violation of the provisions of Article
21 ;163

(vii) when public interest litigation is initiated for the enforcement

of the rights under Article 21 of the Bandhua Mazdoor or
other under privileged class;164 and
(viii) for the purposes of ensuring fair trial and a speedy trial.

It can be used as a device to secure the rights of accused persons

detained pending their trial to be either tried quickly or released (right to

speedy trial.165 In Sunil Batra case it was held that the essence of the

matter is that in our era of human rights consciousness, the habeas writ

has functional plurality and the constitutional regard for human decency

265
and dignity is tested by this capability. In so far as approach to the court is

concerned, anybody acting pro bono publico can knock the door of the

court for this relief. Even a letter or a telegram is treated as a petition, for

this writ.166

Compensation -

With the evolution of victimology, it has come to be understood" that

not only can the victim of a crime suffer substantial physical, moral and

material damage, but society also can suffer, in that its ethical principles

..have been violated and one or several of its members has suffered an

injustice. This realisation has prompted several countries to devise

compensation schemes to ensure that private citizens who become the

victims of certain offences are paid compensation by the State for the

physical consequences of the offence.

Generally, the concept of monetary compensation is to make good the

loss suffered through a wrongful act, in the form of money. In cases of

irreversible damage it remains a sole effective remedy for enforcement of

a right. On violation of human rights through the agency of a State, their

redressal through monetary compensation has acquired peculiar

significance than mere making good the loss suffered by an aggrieved

person. It is internationally recognized principle that enforceable right to

266
compensation is not alien to the concept of enforcement of a guaranteed

right. Article 9(5) of the International Covenant on Civil and Political

Rights states that “Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.”

In another case which heralded a new era of compensatory

167
jurisprudence in Indian legal system was Rudal Shah v. State of Bihar,

where the petitioner was released from the jail in 1968 but was acquitted

after 14 years by the Court. In this case, the Supreme Court directed the

Bihar Government to pay compensation of Rs. 35,000 to Rudal Shah who

had to remain in the jail for 14 years because of the irresponsible

behaviour of the State Government Officers even after acquittal. He was

acquitted by the Sessions Court on June 30,1968 but was released from jail

only on October 16,1982 when the Court intervened. In this case the Court

was factually convinced that there was violation of the right to life and

liberty of the petitioner. Describing this state of affairs as "sordid and

disturbing" the court asked the Patna High Court to find out if there were

any other detenues suffering a fate similar to Rudal Shah. The Rudal Shah

decision being first of its nature made it amply clear that through the

exercise of writ jurisdiction of the Supreme Court or High Courts have

powers to award compensation for violation of fundamental rights

267
and this decision has been followed in number of decisions by the

Supreme Court and High Courts in the similar situations of violation of

the right to life and liberty of person.

In Bhim Singh v. State of J & Ku,s the Court awarded a sum of

Rs. 50,000 to the petitioner as compensation for violation of his

constitutional right of personal liberty under Article 21 of the

Constitution. In this case the Court noted that the police officer acted in

the most high handed way as the petitioner a member of Legislative

Assembly was arrested and detained in police custody and deliberately

prevented from attending Session of the Legislative Assembly. The

police officers acted deliberately and mala fide and Magistrate and Sub-

Judge aided them either by colluding with them or by their casual

attitude. Chinnappa Reddy, J. observed:169

"When a person comes to us with the complaint that he has been

arrested and imprisoned with mischievous or malicious intent and
that his constitutional and legal rights were invaded, the mischief or
malice and the invasion may not be washed away or wished away
by his being set free. In appropriate cases, we have the jurisdiction
to compensate the victim by awarding suitable monetary
compensation.”

In yet another case of People’s Union for Democratic Rights v.

268
Police Commissioner, Delhi Headquarter™ a labourer was taken to

police station for doing some work. He was severely beaten when he

demanded wages and ultimately succumbed to the injuries. It was held that

the State was liable to pay compensation and accordingly directed to the

Govermnent to pay Rs. 75,000 as compensation to the family of the

deceased. Similarly, in Saheli, A Women's Resources Centre v.

Commissioner of Police171 the Supreme Court has once again considered

the question of granting compensation in case of police atrocities and a

sum of Rs. 75,000 was paid to the mother for the death of her 9 years old

son in police assault. The apex court in State of Maharashtra v. Ravikant

S. Patel upheld the compensation awarded by the Bombay High Court

against the State for violation of-fundamental rights under Article 21 of an

undertrial prisoner, who was handcuffed both of his arms were tied by a

rope and paraded through streets in a procession by the police , during

investigation of an offence. The Bombay High Court held that handcuffing

and parading of the petitioner was unwarranted and violative of Article 21

and directed the Inspector of Police who was responsible for this, to pay

Rs. 10,000 by way of compensation. It also directed that this act of

violation of Article 21 should also be entered in his service record. The

Supreme Court upheld the judgment of the High Court

269
directing payment of compensation but held that the police officer was

not personally liable as he acted as an official. Regarding adverse entry,

the Court found that it cannot be straight away made without giving the

inspector of police an opportunity of being heard.

In Nilabati Behera v. State of Orissa, 1 the Supreme Court granted

Rs. 1,50,000 to the mother whose son had died in police custody. The

high compensation was described as "exemplary damages." The Court

also observed that forging of "new tools" had become necessary for doing

complete justice and for enforcing fundamental rights guaranteed by the

Constitution and it was stated that when awarding of monetary

compensation is the only practicable mode of redress available for their

contravention by the State or its servants, resort to remedy in public law

by taking recourse to Articles 32 and 226 should be permitted.

In Kewal Pati v. State of U.P,,174 the Supreme Court awarded

compensation to the petitioner for the death of her husband by a co

accused while the deceased was serving his sentence under Section 302 of

Indian Penal Code. The Court in this case held that the death of

petitioner's husband was caused because of the failure of jail authorities to

protect him and awarded compensation of Rs. 1,00,000 to the widow and

children of the deceased. The court also took the same view in

270
Bodhisatta Gautam v. Subhra Chakraborty175 and awarded an interim

compensation of Rs. 1000 p.m. to the victims of rape until her charges are

decided by the trial court. In this case the complainant was a student in the

Baptist College, Kohima and the accused was a Lecturer in that college.

According to the F.I.R. filed by the complainant, the accused not only

induced complainant and cohibited with her, giving a false assurance of

marriage. He married the complainant before the God he worshipped by

putting her vermilion on her forehead and accepted her as his wife but

later refused to recognize her as his life partner.

Thus from the foregoing discussion it is crystal clear, about the

prominence of Article 21 in Domestic Jurisprudence based on

Constitutional provisions. The judiciary in India is playing a significant

role in protecting the rights of the people as it is evident from the plethora

of land mark judgments discussed above. Article 21, though couched in

negative language, confers the fundamental right to life and personal

liberty. Right to life enshrined in Article 21 means something more than

survival or animal existence. The Indian Judges are now in a commanding

position to expose the area of darkness which has evaded the executive of

Indian democratic set up. In the present scenario the life and personal

liberty of the person cannot be effectively preserved unless

271
the essential rights propounded by Supreme Court under Article 21 are

protected. Therefore, Article 21 includes various aspects and new

dimensions, viz., right to: shelter, livelihood, education, health, timely

medical aid; live in healthy environment, access to road, live with human

dignity, suicide, social security, privacy, travel abroad, prisoners, speedy

trial, fair trial, bail, legal aid, illegal detention and custodial violence etc.

The real success of Indian Courts lies in the fact that' they have to a great

extent abandoned their mechanical role of interpreting law inherited from

British and have embarked on extensive judicial legislation in the area of

Criminal law, Industrial Law, Labour Law and Property Law. The

functioning of Indian judiciary discloses that it has through progressive and

humanistic interpretation been able to enlarge the rights of suspects and

accused with a zeal to protect the interests of the innocent and prevent

misuse and abuse of Police Powers. The scope of Article 21 of the

Constitution has been widened in the light of changing values of Indian

society. Time has shown that the higher judiciary is not only worthy of trust

in the matter of the fundamental right to life and personal liberty, but it has

paid worthy tributes to those who sacrificed their lives to attain this

important right for the people of India, by giving it the scope and meaning

which it has today. It has upheld the rule of law, preserved

272
our Constitutional values and made some fundamental rights living

realities for some of the deprived and oppressed segments of Indian

humanity. Further, its active role has also created a climate of transparency

and engendered a sense of accountability in public functionaries. It may

thus be safely concluded that the great strength of judiciary must be

utilized for public good and always in public interest and in the service of

the people.

273
 NOTES

lAIR 1981 SC 746.

2-AIR 1989 SC 2039.

3' In Mum v. Illinois (1876) 94 US 113.

4 AIR 1963 SC 1295, para 17.

5‘AIR 1978 SC 1675.

6' Supra note 1.

7' ADM Jabalpur v. S.Shukla AIR 1976 SC 1254.

8‘AIR 1963 SC 1295.

9'AIR 1979 SC 916.

I0'Bansal, V.K., “Right to life and Personal Liberty in India (1987), p. 49.

11-A note on Fundamental Rights by K.T. Shah in B.Shiva Rao, Framing of

India’s Constitution, Vol. II, p.41.

12'AIR 2002 SC 40.

u'Maneka Gandhi v. Union of India, AIR 1978 SC 597.

14'B.Shiva Rao, Framing of India’s Constitution, 1967, Vol. II, p.41.

15' Ibid

16‘ ADM Jabalpur v. S.Shukla, AIR 1976 SC 1254.

17‘AIR 1963 SC 1295

274
 18.
Id. at 1302

19'AIR 1979 SC 916

20' Hiralal Mullick v. State of Bihar, AIR 1977 SC 2236.

21* Indian Express, 28 October, 1988.

22’AIR 1963 SC 1295.

23'AIR 1950 SC 27.

24 Id. at pp. 96-97.

25Matp. 110.

26-KharakSingh v. State ofU.P., AIR 1963 SC 1295.

27'Supra 13; also see Satwant Singh v. A.P.6., AIR 1967 SC 1836.

28' State ofMaharashtra v. Prabhakar Pandurang, AIR 1966 SC 424.

29' Hussainara Kliatoon v. Home Secretary, Bihar, AIR 1979 SC 1360.

m AIR 1978 SC 597.

3L AIR 1981 SC 746.

32’AIR 1982 SC 1473.

33’AIR 1983 SC 109.

34 State of Bihar v. Union of India, AIR 1990 SC 752.

35' Vikram Deo Singh Tomar v. State of Bihar AIR 1988 SC 1782.;
M.Paul Anthony v. Bharat Gold Mines Ltd. AIR 1999 SC 1416.

36‘AIR 1993 SC 2025. See also, Chandra Raj Kumar v.

Commissioner

275
of Police, Hyderabad, AIR 1998 AP 302. and Philips Alfred Malvin v.
Y.J. Gonsalvis, AIR 1999 Ker. 187.

37‘Chandra Pal, "Right to Privacy—Emerging As a Constitutional

Right," Civil 61 Military Law Journal, Jan-March 1982, Vol. 18, No. 1, p.
42; Hyman Gross, Privacy—Its Legal' Protection (1976); Halmos Paul,
Solitude and Privacy: A Study of Social Isolation; Its Causes and Therapy
(1952); William L. Prosser, "Privacy," California Law Review, Vol. 48,
pp. 383-423.

‘Arnold Simmel, "Privacy," International Encyclopaedia of the

Social Sciences, (1968), p. 481.

39Ibid.

40‘381 US 479 (1965).

41‘ A Treatise on the Law of Torts, 29 (2888) quoted in Brackenridge,

Adam Carlyle, The Right to Privacy, (1971).

42‘Justice Report (Privacy and the Law, 1970), p. 5; Younger

Committee Report (Report of the Committee on Privacy, 1972), p. 17
quoted in S.H. Bartey, DJ. Harris and B.L. Jones, Civil Liberties, (1985),
p. 351.

43‘Constituent Assembly Debates, Vol. VII, pp. 794 and 976.

44‘ AIR 1954 SC 300 at p. 307.

45 AIR 1963 SC 1295 atp. 1303.

46‘AIR 1975 SC 1378 atp. 1385.

47‘AIR 1995 SC 264 atp. 276.

276
 48 AIR 1953 SC 278 at pp. 281-82 quoted in A.M. Bhattacharjee, op.
cit., p. 104.

49 Ibid.

50-AIR 1975 SC 1378.

51' Indian Advocate, Vol. 17, pp. 80-81.

52 AIR 1935 All. 1002.

53'AIR 1962 Mad. 31.

54‘AIR 1991 SC 207.

55 AIR 1963 SC 1295.

56 Ibid.

57‘AIR 1975 SC 1378.

58‘AIR 1975 SC 1378 at 1385.

59'AIR 1993 SC 264.

60‘ Ibid.

6L AIR 1997 SC 568.

62‘"Phone Tapping Violates Right to Privacy: SC," The Tribune,

December 19, 1996.

63’AIR 1978 SC 1575. See also Sumit Batra (No.2) v. Delhi

Administration, AIR 1980 SC 1579.

64‘AIR 1978 SC 597.

65 AIR 1981 SC 941.

277
 66> AIR 1987 SC 2021.

67‘AIR 1994 SC 1349.

68AIR 1980 SC 470 at p.475.

69' Ibid.

70 Ibid., atp. 474.

71 Ibid., at p.475.

72' A National Prison Policy—Constitutional Perspective and

Pragmatic Parameters (Sir Alladi Krishnaswami Aiyer Endowment

Lecture).

73-AIR 1974 SC 2092.

74AIR 1977 SC 1926 atp. 1978.

75'AIR 1978 SC 1514.

7<5' 1J3. AIR 1978 SC 1675 at p. 1689.

7X AIR 1981 SC 939.

78 AIR 1980 SC 1579.

79‘AIR 1978 SC 1675.

80'AIR 1980 SC 1535; also see State of Maharashtra v. Ravikant S.

Patil, (1991) 2 SCC 373.

81AIR 1998 SC 3165.

82‘AIR 1992 Him. Pra. 76.

83'AIR 1983 SC 378.

278
84 Ibid

85‘ AIR 1997 SC 610.

96 Ibid

87' Ibid.

88‘AIR 1978 SC 597.

89’AIR 1979 SC 1360.

90'AIR 1981 SC 1675.

9L AIR 1983 SC 473.

92‘AIR 1989 SC 142.

93‘(1980)1 SCC 81.

94 AIR 1979 SC 1360.

95‘ AIR 1981 SC 939.

96‘AIR 1980 SC 847.

97-(1983) 25CC 347.

98*(1982) 25CC 583.

" AIR 1992 SC 1701.

loa AIR 1950 SC 27.

10L AIR 1970 564.

102 AIR 1986 Patna 324.

103'(1966) 15 Law Ed. 2 d 627.

 104 Shriniwas Gupta, "Judicial Delays versus Right to
Speedy Trial," Link, May 24,1992, p. 34.

mAIR 1986 SC 1773.

10fi'(1996) 4 SCC 33.

m' Common Cause, A Registered Society v. Union of India, (1996) 6

SCC 775; R.D. Upadhyay v. State ofA.P., (1996) 3 SCC 422; also see
Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616.

mAIR 1967SCI.

mB.L. Hansaria, op. cit., p. 67.

110 AIR 1988 SC 1883.

11LAIR 1983 SC 747.

112AIR 1981 SC 1054.

113'AIR 1986 SC 949.

114 Vidya Sagar v. State of Punjab, AIR 1962 Punj. 487.

115‘ Gudikanti Narsimhulu v. Public Prosecutor, High Court of A.P.,

.AIR 1978 SC 429; also see Babu Singh v. State of U.P., AIR 1978 SC
527; State ofRajasthan v. Balchand, AIR 1977 SC 2447.

11<5'AIR 1978 SC 527.

11X AIR 1980 SC 1632.

118' See, State of UP. v. Kailash, AIR 1955 All. 98; State ofM.P.
v. Narayan Prasad, AIR 1963 M.P. 276; Public Prosecutor v. G.
Manikya Rao, AIR 1959 AP 639; State v. Dallu Punja, AIR 1954

280
M.P. 113 and State v. Om Prakash, 1973 Cr. LJ. 824 (H & P).

119’AIR 1979 SC 1360.

120‘ Factors for the release of the accused on bail are emphasized in

Hussainara, AIR 1979 SC 1360 at 1364.

121AIR 1978 SC 1548.

122‘AIR 1979 SC 1369.

123‘AIR 1981 SC 928.

124'AIR 1983 SC 624.

125‘AIR 1986 SC 961.

126‘ Ibid.

127‘AIR 1978 SC 1548.

m- AIR 1979 SC 1360.

129'(1992)1 SCC 225.

130'AIR 1996 SC 1(9).

See Article 14(3)(d) of the International Covenant on Civil and Political

Rights, 1966.

132'See 14th and 18th Report of the Law Commission of India which
suggests for free legal aid to the accused, who remain undefended due to lack
of sufficient means, tried before court of sessions.

133‘ Nishtha Jaswal, Role of Supreme Court with Regard to the Right to

Life and Personal Liberty, (1990), p. 165; also see P.L. Mehta and Sunil

281
Deshta, "Capital Punishment in India: Retrospect and Prospect," Civil &

Military Law Journal, July-Sept., 1996, Vol. 32, No. 3, pp. 190-98.

134' The Supreme Court has struck down this section of Penal Code as

unconstitutional in Mithu v. State of Punjab, AIR 1983 SC 473.

135‘ See Section 73 of the Air Force Act, 1950; Section 71 of the Army
Act; 1950; Section 81 of the.Navy Act; Section 126(2) of the Indian Railway
Act, 1980; and Section 3(2) of the Terrorist and Disruptive Activities
(Prevention) Act, 1977.

m'Maneka Gandhi v. Union of India, AIR 1978 SC 578.

m AIR 1973 SC 947.

138, AIR 1974 SC 799.

139' Rajendendra Prasad v. State ofU.P., AIR 1979 SC 916.

140' Ibid., p. 925.

14LId, atpp. 808-09.

142Id, atpp. 946-47.

143'AIR 1980 SC 898.

144 AIR 1982 SC 1325.

145' Kehar Singh v. Union of India, AIR 1988 SC 1883.

146‘ 1992-93 S.C.C. 700.

147’AIR 1981 SC 1572.

148'AIR 1983 SC 585.

282
 149'AIR 1988 SC 747.

150'AIR 1992 SC 395.

151'AIR 1995 SC 1387; also see Sharad v. State ofMaharashtra, AIR

1984 SC 1622.

152'AIR 1996 SC 786; also see Shankar Alias Gauri Shankar v. State of
Tamil Nadu (1994) 4 SCC 478; Jashubha Bharat Singh Gohil v. State of
Gujrat, (1994) 4 SCC 353; and Tarsem Kumar v. Delhi Administration,
1994 (supply) 3 1234 SCC 367.

153‘ The Tribune, Dec. 15, 1999, p.8.

154 AIR 1978 SC 803.

155' Justice P.N. Bhagwati, "How the Supreme Court Enforces

Citizen's Rights", Express Magazine, Jan. 31st, 1982, p. 1.

156‘Hari Swamp, For Whom The Law is Made (1981), p. 5; also see
Nishtha Jaswal, Role of the Supreme Court with Regard to the Right to
Life and Personal Liberty (1990), p. 375.

15XN.A. Palkhivala, We, The People (1984), p. 203.

l58-A.K. Gopalan v. State ofMadras, AIR 1950 SC 27.

159‘ Collector ofMadras v. Ebrahim, AIR 1957 SC 688.

uo-Ram Nafain Singh v. State of Delhi, AIR 1953 SC 277.

16L Gohar v.Suggi, AIR1960SC93.

l62' Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

U3Khatri v. State of Biliar, AIR 1981 SC 928. This case is popularly

283
known as Bhagalpur Blinding case.

. 164' Bandhua Mukti Morcha v. Union ofIndia, AIR 1982 SC 802.

m' Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.

mKishore Singh v. State of Rajasthan, AIR 1981 SC 625; and also

see Nilima Priyadarshani v. State ofBihar, AIR 1987 SC 2021.

167 AIR 1983 SC 1086.

m- AIR 1986 SC 494.

169' Ibid., p. 499.

170‘ (1989) 4 SCC 730.

17L AIR 1990 SC 513.

172'(1991) 2 SCC 373.

mAIR 1993 SC 1960.

174'(1995) 3 SCC 600.

175‘ 43B (1996) 1 SCC 490.

284