Article 21 of the Indian Constitution

Article 21 states as “No person shall be deprived of his life or personal liberty except according to
procedure established by law”.
The words ‘procedure established by law’ were adopted from the American Constitution and needed
certain interpretation. It is a negative right granted by the Constitution.
In A.K. Gopalan v. State of Madras, (1950) – Mr. Gopalan was detained by the Madras Government in
Madras jail. While in detention the Madras Government served him with Section 3(1) of Preventive
Detention Act (P.D.A.). No reasons were accorded for the detention. He challenged the order in the
court under a writ of habeas corpus under Article 32 stating that the detention order was violative of
Article 14,19,13,14 and 21. His lawyer demanded that the word that the words ‘procedure established by
law’ should be read in the same as the American Due Process Clause has been interpreted.
The Supreme Court said that word ‘law’ in Article 21 could not mean rules of natural justice These rules
were vague and ambiguous and such laws cannot be read in the light of the Constitution. The word ‘law’
was used in context of state-made laws and not ‘natural justice’.
a. Could Article 19 and Article 21 be read together in Article 21?
The Supreme Court held that they cannot be read together and emancipated the Doctrine of Exclusivity.
“Personal liberty” in Article 21 in itself has a comprehensive context. It would also include various
provisions under Article 19. However, Article 19 deals with very few specific provisions and does not
mentions freedom from detention.
J, Das. - “Personal liberty” does not only mean liberty of a person, but also, liberty or rights attached to
that person. Article 19 does not mention life and personal liberty and including these terms would strain
the context in which Article19 exists. Therefore, it cannot be read in accordance with Article 21.
b. What is ‘Procedure Established by law’?
The Supreme Court held that under Article 21 the term ‘procedure established by law’ meant that the
procedure as laid down in the law and enacted by the legislature and nothing more. A person could be
deprived of his ‘life’ + ‘personal liberty’ by procedure laid down in a given law.

The Supreme Court said that the procedure was just, fair or reasonable or according to natural justice
was not the concern of Article 21. The legislature can pass any law they feel is right. It is not necessary
that the law or the procedure established by it should be in conformity with theory of natural justice and
reasonableness. The Due Process Clause of United States Constitution has been interpreted by the U.S.
Supreme Court as that the law or the process laid down must be just, fair and reasonable. The S.C. of
India rejected this stance by stating that it would give a very wide scope to Article 21 which indeed was
not the vision of the Legislature. Therefore, the court laid down a 3 prong test stating that a person can
be deprived of his personal liberty –
a. There must be a law.
b. It should lay down a procedure to implement the law.
c. The executive should follow the procedure while depriving life and personal liberty in accordance with
the procedure.
The precedent in Gopalan case was valid from 1950-1978 and Article 21 was/could be initiated against
the executive only.
In Khorak Singh v. State of UP, domiciliary visits by the UP Police under the Police Act of UP was
conducted, which led to the violation of fundamental right to personal liberty. Justice Iyengar said that
personal liberty is compendious and the police is considering the houses of persons their palaces which
in turn is violating their right under Article 21. Justice Subba Rao gave a dissenting opinion stating that
the right to privacy is a part of right to life and personal liberty and therefore, the police is arbitrarily
disturbing the people by barging into their houses. The Supreme Court later came to the conclusion that
the Police may disturb the sleep of the people if there exists a procedure established by law. Since, there
existed no such procedure, the Acts were violative of the Constitution.
The given interpretation of ‘procedure established by law’ present in Article 21 by the S.C. in the
Gopalan case could not play any role in providing any protection against any harsh law seeking to
deprive a person of his life and liberty. This was again brought under the scrutiny of S.C. in Maneka
Gandhi v. Union of India, wherein Maneka Gandhi’s passport was impounded by the Central
Government under section 10(3)(c) of the Passport Act. She moved the S.C. stating that the Passport act
did not establish a procedure which was reasonable in nature.
The Supreme Court said the following –
a. It rejected the Doctrine of Exclusivity and set out the Golden Triangle Rule. The Court established a
relationship between Article 14, 19 and 21.
The Court said that the validity of the procedure established has to be in consonance with Article 14 as
laid down in Anwar Ali case. Article 14 and 21 as they thought that Article 21 required the legislature to
make a procedure which is reasonable in nature to deprive a person of his personal liberty.
The Court referred to the Bachan Singh case and said that the test for the application of Article 19 is not
whether a law is a penal law or not. Indeed, the test is whether the law penalises an activity protected by
Article 19. If it does, its validity shall have to be tested under Article 19 though it may also be tested
under article 21.

b. Broadened the term liberty – The Court mentioned that Article 21 is given the widest amplitude
protecting several ‘new’ rights.

A.K GOPALAN
Constitution - Validity of detention order - Articles 13, 19, 21, 22(5) and 32 of the Constitution of India
- Petitioner challenges legality of detention order passed by parliament on ground that Preventive
Detention Act IV of 1950 contravenes provisions of Articles 13, 19 and 21 and provisions of that Act
were not in accordance with Article 22 of the Constitution - Hence, this Petition - Held, right to move
Supreme Court was given to a person not for sake of moving only but for moving Court for enforcement
of some rights conferred by Part III - Therefore, to attract Application of Article 32, person applying
must first satisfy that he had got a right under Part III which had to be enforced under Article 32 -
Further, disclosure of grounds would afford detenu opportunity of making a representation against order
supposing that Authority did not give any grounds at all as distinct from facts referred to in clause (6) -
Detenu lost a fundamental right because he was prevented from making representation against order of
detention - Therefore, suppose authority handed over to detenu a piece of paper with some scribbling on
it which do not amount to any ground at all for detention - Then also detenu could legitimately complain
that his right had been infringed - Moreover, Court could not judge whether he had actually get grounds
which he was entitled to under Article 22(5) of the constitution - Detenu may well complain that both
his substantive right under Article 22(5) as well as his right to constitutional remedies under Article 32
have been infringed - Since, grounds communicated to detenu was not in conformity with Part III of
Constitution and was, therefore, void under Article 13(2) - Thus, impugned Act was a valid law except
as to Section 14 in so far as it prevents grounds being disclosed to Court - Petition dismissed

Maneka Gandhi vs. Union of India

Maneka Gandhi was issued a passport on 1/06/1976 under the Passport Act 1967. The regional passport
officer , New Delhi issued a letter dated 2/7/1977 addressed to Maneka Gandhi , in which she was asked
to surrender her passport under section 10(3)(c ) of the Act in public interest, within 7 days from the
date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional passport officer
New Delhi seeking in return a copy of the statement of reasons for such order. However the government
of India, Ministry of External Affairs refused to produce any such reason in the interest of general
public.

Maneka Gandhi then filed a writ petition under Article 32 of the constitution in the Supreme Court
challenging the order of the government of India as violating her fundamental rights guaranteed under
Article 21 of the constitution.

The main issues before the court in this case were as follows;

–whether right to go abroad is a part of right to personal liberty under Article 21.

–Whether the Passport Act prescribes a ‘procedure’ as required by Article 21 before depriving a person
from the right guaranteed under the said Article.

–Whether section 10(3) (c) of the Passport Act is violative of Article 14, 19(1) (a) and 21 of the
constitution.
–Whether the impugned order of the regional passport officer is in contravention of the principles of
natural justice.

The Supreme Court in this case reiterated the proposition that the fundamental rights under the
constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, ‘a
fundamental right is not an island in itself’. The expression “personal liberty” in Article 21 was
interpreted broadly to engulf a variety of rights within itself. The court further observed that the
fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather
than to concentrate its meaning and content by judicial construction. Article 21 provides that no person
shall be deprived of his life or personal liberty except in accordance with procedure established by law
but that does not mean that a mere semblance of procedure provided by law will satisfy the Article , the
procedure should be just , fair and reasonable. The principles of natural justice are implicit in Article 21
and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defense or
hearing should be given to the person before affecting him, and in the absence of which the law will be
an arbitrary one.

One of the significant interpretation in this case is the discovery of inter connections between Article 14,
19 and 21. Thus a law which prescribes a procedure for depriving a person of “personal liberty” has to
fulfill the requirements of Article 14 and 19 also. Moreover the ‘procedure established by law’ as
required under Article 21 must satisfy the test of reasonableness in order to conform with Article 14.

Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal
liberty makes for the worth of the human person” and “travel makes liberty worthwhile”.

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

The hon’ble Supreme Court in this case laid down a number of other propositions which made ‘the
right to life’ or ‘personal liberty’ more meaningful. Maneka Gandhi case has a great significance in the
development of Constitutional law of India.

RIGHT TO PRIVACY

In Kharak Singh Vs State of U.P (1963), the petitioner Kharak Singh was charged in a case of dacoity
in 1941 but was subsequently released as there was no evidence found against him. After his release the
U.P police in accordance with regulation 228 under chapter XX of the U.P police regulations opened a
“history sheet” with regard to Kharak Singh. The village ‘chaukidar’ and police constables for the
purpose of surveillance used to enter his house, wake him up, knock and shout at his door during night
hours and thereby disturb him. He has to report to the village ‘chaukidar’ or police station before leaving
for another village and also mention his destination and period within which he would return. His
village police station on receipt of such information immediately informs the police station of his
destination where he is kept under similar surveillance. Sometimes Kharak Singh was compelled to
woke up from sleep and accompany the visiting police constables to the police station.

The aggrieved petitioner Kharak Singh thereby challenged the validity of chapter XX and some other
provisions of the U.P police regulation on the ground that they violate the right guaranteed under Article
19(1) (d) and 21 of the constitution of India.

The Supreme Court held that, regulation 236(b) which authorizes “domiciliary visits” is void and
unconstitutional. The majority Judges in the decision of this case said that “our constitution does not in
terms confer like constitutional guarantee”. However the dissenting opinion of Justice Subba Rao was in
favour of deriving a “right to privacy” from the fundamental right guaranteed under Article 21.

In Machhi Singh v. State of Punjab (1983) the Hon'ble Supreme Court held that... when the
community feels that for the sake of self-preservation, the killer has to be killed, the community may
well withdraw the protection by sanctioning the death penalty. But the community will not do so in
every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will
expect the holders of the judicial power centre to inflict death penalty irrespective of their personal
opinion as regards desirability or otherwise of retaining death penalty...

In Machhi Singh and Ors. vs. State of Punjab, (1983) 3 SCC 470, a three-Judge Bench of this Court
while following the ratio in Bachan Singh(supra) laid down certain guidelines amongst which the
following is relevant in the present case: "A balance-sheet of aggravating and mitigating circumstances
has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and
a just balance has to be struck between the aggravating and the mitigating circumstances before the
option is exercised. "We have extracted the above reasons of the two courts only to point out that, in a
way, every murder is brutal, and the difference between the one from the other may be on account of
mitigating or aggravating features surrounding the murder.

The Supreme Court had in Mithu vs State of Punjab (1983) already struck down Section 303 of the
Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence.
The reason is that if the death sentence is mandatory, then it is meaningless to hear the convict on the
question of sentence, and it becomes superfluous to state the reasons for imposing the sentence of death.
The ratio decidendi (the legal principle which forms the basis of the judgment) of Bachan Singh is that
the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if
the normal sentence prescribed by law for murder is imprisonment for life. In Bachan Singh, the court
also insisted that a court could impose the death penalty only in the rarest of rare cases when the
alternative option is unquestionably foreclosed. (The ratio decidendi of a five-judge Bench would be
binding on other Benches of the Supreme Court, unless overruled by a Bench comprising more than five
judges. Bachan Singh was delivered by a five-judge Constitution Bench.
In Santosh Bariyar vs. State of Maharashtra, the Supreme Court got an opportunity to explain this
further: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the
policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of
interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum
places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to
carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare
dictum.” The Bariyar Bench had no compunction in exposing the flaws in the Ravji judgment. The
Bench said in paragraph 63: “We are not oblivious that Ravji case has been followed in at least six
decisions of this court in which death punishment has been awarded in last nine years, but, in our
opinion, it was rendered per incuriam.”

Shatrughan Chauhan & Anr. Versus Union of India & Ors

The Petitioner has filed a writ petitions, under Article 32 of the Constitution of India, which has been
filed either by the convicts, who were awarded death sentence or by their family members or by public-
spirited bodies like People’s Union for Democratic Rights (PUDR) based on the rejection of mercy
petitions by the Governor and the President of India.

In all the writ petitions, the main prayer consistently relates to the issuance of a writ of declaration
declaring that execution of sentence of death pursuant to the rejection of the mercy petitions by the
President of India is unconstitutional and to set aside the death sentence imposed upon them by
commuting the same to imprisonment for life. Further, it is also prayed for declaring the order passed by
the Governor/President of India rejecting their respective mercy petitions as illegal and unenforceable.

The Honorable Supreme Court held that death sentence of a condemned prisoner can be commuted to
life imprisonment on the ground of delay on the part of the government in deciding the mercy plea. In a
landmark verdict that can come as a relief to many death row convicts.

Giving life term to 15 death row inmates, including four aides of forest brigand Veerappan, the apex
court also ruled that a death convict suffering from mental insanity and schizophrenia cannot be hanged.

It overruled its own verdict in Devinderpal Singh Bhullar’s case in which it had held that delay in
deciding mercy plea cannot be a ground for commutation of death sentence.

The Court said Death sentence in such cases could be commuted to life imprisonment on the ground of
their mental illness. The judgment may have implications in various cases, including the petitions filed
by three death row convicts in the Rajiv Gandhi assassination case who have challenged the President’s
rejection of their mercy plea less than three years ago. Framing guidelines on disposal of mercy petitions
and execution of death sentence, a bench headed by Chief Justice P. Sathasivam ruled that convicts
given death sentence must be informed about the rejection of their mercy pleas and should be given a
chance to meet their family members before they are executed.
It also held that solitary confinement of a prisoner, including death row convict, is unconstitutional and
it should not be allowed in the prisons. The bench gave its verdict on a batch of petitions filed by 15
death row inmates seeking its direction for commutation of their sentence to life term on the grounds of
delay in deciding mercy plea and mental illness. It also said that execution of death sentence should be
carried out only 14 days after rejection of the mercy plea. The apex court also said that the prison
authorities must provide legal aid to prisoners facing death sentence so that they can approach courts for
commutation of their sentence on the ground of their illness and delay in deciding mercy plea by the
government.

Pronouncing its judgment on 13 petitions filed by the 15 convicts whose execution of sentence had been
stayed by the apex court, the three-judge bench clarified that its directions be implemented in all cases
whether a person has been convicted under IPC or the anti-terror law. The issue of communication of
rejection of mercy plea assumes importance in view of the controversy surrounding the execution of
Parliament attack case convict Mohd Afzal as there was allegation that his family members were not
properly communicated about the dismissal of his plea and subsequent hanging.

Earlier, a two-judge bench in April 2013 had held that long delay in disposing of mercy pleas by the
President or the governor of persons convicted under anti-terror laws or similar statutes cannot be a
ground for commutation of death sentence. The April 12, 2013 ruling was pronounced while rejecting
Bhullar’s plea for commutation of sentence on ground of delay in deciding his mercy plea. At that time,
there were over 20 convicts facing execution.

Later on, an apex court bench had granted relief to a condemned prisoner M.N. Das who had sought
conversion of his death sentence to life imprisonment on the ground of delay in deciding his mercy
petition. Justice Sathasivam, before taking over as CJI, had said that there was a need for “authoritative
pronouncements” by a larger bench or a Constitution Bench on issues like mercy pleas to avoid
conflicting views by smaller benches.

The 15 death row inmates on whose pleas the apex court delivered its verdict are sandalwood smuggler
Veerappan’s aides and others. The other death row convicts included Suresh, Ramji, Gurmeet Singh,
Praveen Kumar, Sonia and her husband Sanjeev, Sundar Singh and Jafar Ali convicted in various cases.
While Suresh, Ramji, Gurmeet Singh and Jafar Ali are lodged in prisons in Uttar Pradesh, former
Haryana MLA Ralu Ram Punia’s daughter Sonia and her husband Sanjeev are jailed in Haryana.
Praveen is in a Karnataka jail and Sundar Singh is an inmate of a prison in Uttaranchal.Sonia and
Sanjeev were awarded death penalty for killing eight members of her family, including her parents and
three children of her brother in 2001.Gurmeet Singh was convicted for killing 13 of his family members
in 1986. Jafar Ali murdered his wife and five daughters. Suresh and Ramji killed five of their relatives.
ADM JABALPUR vs Shivkant Shukla
The Latin phrase ‘Habeas Corpus’ translates into ‘you must have the body’, to put it simply. The history
of this powerful writ appears to be traced to Anglo-Saxon common law roots; it’s precise mention
occurring in the Magna Carta or The Great Charter of the Liberties of England in 1215. The oblique
reference states “…no free man shall be taken or imprisoned or disseised or exiled or in any way
destroyed except by the lawful judgment of their peers or by the law of the land.” (para 29) The right to
invoke this writ lies with the person detained or another person on his behalf to move to the court to
object to the detainment. The person himself, or his representative, must prove that the authority/court
ordering the detainment has made a factual or legal error. Clearly, the writ of Habeas Corpus remains
the most powerful process by which any citizen may question the correctness of restraint on individual
liberty. Article 21 of the Indian constitution guarantees the right to life and liberty to each and every
citizen of the nation. Right to move to the court to enforce this article was suspended under Article 359
of the constitution when ‘internal’ emergency was imposed (1975-77). The logical question that
followed whether the writ of Habeas Corpus was enforceable in such a situation? The landmark
Supreme Court case or the Habeas Corpus case attempted to answer this question, and was the reason
for the 44th Constitutional Amendment in 1978. This amendment, passed unanimously, ensure that
Article 21 cannot be suspended even during an Emergency.

Historical Background:
It all began by a judgment delivered on June 12, 1975 by Justice Jagmohan Lal Sinha of the
Allahabad High Court. In State of Uttar Pradesh vs. Raj Narain, the petitioner challenged Indira
Gandhi’s election to the Lok Sabha and consequent victory from the Rae Barelli constituency in
Uttar Pradesh. On June 12, Justice Sinha convicted the then Prime Minister, of having indulged
in corrupt practices and declared her election invalid, which meant she could not contest
elections or hold office for six years. Her appeal to the Supreme Court only granted her a
conditional stay. She could not vote or speak in the Lok Sabha rendering her dysfunctional.
Upon increasing hostility by the opposition and in desperation to hold on to the chair of the PM,
she requested the President Fakhruddin Ali Ahmed to declare a state of emergency under clause
(1) of Article 352 of the Indian Constitution which he did so obediently on June 26 1975. The
government cited ‘a grave emergency existed whereby the security of India was threatened by
internal disturbances’. The war with Pakistan that had just ended (1971) and the drought (1972)
were said to have damaged the economy greatly and paralyzed the nation. On June 27 1975, the
exercise of powers conferred by clause (1) of Article 359 of the Indian constitution were
enforced, within which the right of any person including a foreigner to move to the court to
enforce Article 14 (right to equality), Article 21 and Article 22 (prevention against detention in
certain cases) of the Constitution and all the proceedings pending in any court concerned with
the enforcement of the aforementioned articles will remain suspended for the period of
Emergency.
What ensued was a string of illegal and hasty detentions without charge or trial, including those
of the major leaders of the opposition party such as Moraji Desai, Atal Bihari Vajpayee,
Jayprakash Narayan and L.K.Advani under the Maintenance of Internal Security Act, Preventive
Detention Law (MISA). Consequently several writ petitions were filed all over the country.
Records show that nine High Courts ruled in favour of the petitioners stating that even though
Article 21 was not enforceable, a person could still demonstrate that their detention was not in
compliance of the law under which they were detained, or that the action by the State was mala
fide or that it was a case of mistaken identity. Highly perturbed the government decided to
appeal against these decision in the Supreme Court, which became what is called the Additional
District Manager of Jabalpur vs. Shiv Kant Shukla case or the Habeas Corpus case.

The case:
The main question of the case was whether, under Presidential Orders the High Court could
entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention. The
arguments in Supreme Court began on December 14 1975, before a bench consisting of Chief
Justice of India A.N. Ray, Justice H.R. Khanna, Justice M.H. Beg, Justice Y.V. Chandrachud
and Justice P.N. Bhagwati. They were considered the most respectable and wise judges of the
Supreme Court at that time. The Attorney General of India, Niren De began his arguments in his
powerful voice, almost terrorising the court, much like the Government’s rule at that time. No
questions were asked until Justice Khanna asked, ‘Life is also mentioned in Article 21. Would
Government arguments extend to it also?’ Niren De didn’t seem to be hassled by this rather
uncomfortable question and answered swiftly saying, ‘‘Even if life was taken away illegally,
courts are helpless’.

Arguments on behalf of the State:

The main contention of the State was that the sole purpose and aim of the emergency provisions
in the Constitution is that they guarantee special powers to the Executive to hold complete
discretion over the implementation of the laws and rights of the country. The reason behind this
was that during an emergency the considerations of the state assume supreme importance. The
central argument put forth by the State was that once the right to move any court was suspended
in context to Article 14, Article 21 and Article 22, the detained person had no right to approach a
court regarding the same; by which logic their writ petitions would have to be dismissed. They
highlighted the fact that Emergency provisions in Part XVIII of the Indian Constitution including
Article 358, Article 359(1) and Article 359(1A) are constitutional necessities and imperatives of
the Constitution as the military and economic security of the nation preceded everything
else. The validity of the law as stated in the Presidential Order under Article 359(1) cannot be
challenged on the ground of violating a fundamental right which was suspended by the above
mentioned Article in the first place.

Arguments on behalf of the Respondent:

There were seven major arguments put forth by the Respondents. The first argument interpreted
the State’s argument as the non-existence of any right to life and liberty during an emergency. It
went on to clarify that in this regard, Article 358 was more extensive as the fundamental right is
suspended as a whole whereas Article 359 does not suspend any fundamental right. Secondly;
the main aim of Article 359(1) was to prohibit moving the Supreme Court under Article 32 for
the enforcement of certain rights. This prohibition by law has no effect on the enforcement of
common law and statutory rights of personal liberty in the High Court under Article 226 of the
Constitution. Thirdly; even though Article 359(1) grants special and almost unlimited powers to
the Executive for dismissing Part III of the Constitution, it does not undermine the essential
component of sovereignty of the separation of powers, leading to a system of ‘checks and
balances’ and limited power of the Executive. The suspension of fundamental rights and its
enforcement was not meant to tip the scales in favour of the Executive vis-à-vis the individual.
Fourthly; the Presidential Orders imposed were valid only with respect to fundamental rights and
did not extend to Natural Law, Common Law or Statutory Law. Fifthly; the equation of the State
and the Executive is highly erroneous. The only consequence of the suspension of fundamental
rights or their enforcement is that the Legislature can create laws which go against said
fundamental rights and the Executive can implement them. At no point, should this be
interpreted as the right of the Executive to violate previous judicial decisions and legislative
mandates. Sixthly; the Executive can act for and against its citizens only to the extent set by valid
laws. Article 352 or the Proclamation of Emergency, at no point, increases the scope of the
Executive Powers of the State from what is enshrined under Article 162 of the Constitution and
nothing more (See fifth argument of respondents). Lastly, the State and its officers only hold the
Right to Arrest if the alleged act leading to detention fell under Section 3 of MISA and its every
condition contained within it is fulfilled. If any condition remains unfulfilled the detention is
considered ‘beyond the powers’ of that act.

The decision:
The case was argued for over two months after which judgement was reserved. It was only after
an application was moved for the pronouncement of judgement that the Supreme Court came out
with the following conclusion:

“In view of the Presidential Order dated 27th June 1975 no person has any locus to move any
writ petition under Art. 226 before a High Court for habeas corpus or any other writ or order or
direction to challenge the legality of an order of detention on the ground that the order is not
under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is
based on extraneous considerations.”

The judgement ruled in favour of the Government with a four to one majority. Only Justice
Khanna, had the courage to take the right decision in favour of human nature and liberty. He
knew what was as stake. Records state that the night before the judgement was announced he
told his sister that he had made up his mind and decision and knew that it would cost him the seat
of the Chief Justice of India. He ended his judgment with a strong worded quote: ‘”As observed
by Chief Justice Huges, Judges are not there simply to decide cases, but to decide them as they
think they should be decided, and while it may be regrettable that they cannot always agree, it is
better that their independence should be maintained and recognized than that unanimity should
be secured through its sacrifice. A dissent in a Court of last resort is appeals to the brooding
spirit of the law, to the intelligence of a future day, when a later decision may possible correct
the error into which the dissenting Judge believes the court to have been betrayed.” He knew
what the consequences of his actions were to be. His junior, Justice M.H. Beg superseded him
and became the Chief Justice of India in his stead.

The four others: CJI A.N.Ray, Justice Beg, Justice Chandrachudh and Justice Bhagwati could
not stop themselves from blatantly favouring the Government in power. A.N. Ray, with his
controversial appointment as CJI by Indira Gandhi, superseding three senior judges in line,
worshipped the very ground she walked on. There are anecdotes narrated of how she used to
telephone her and her personal secretary quite frequently to take advice even on the smallest of
matters. Justice Bhagwati, held up the torch of personal liberty only to dampen it with the
diplomacy of the correct reading of the Constitution. Courtroom records read as him saying: “I
have always leaned in favour of upholding personal liberty, for, I believe, it is one of the most
cherished values of mankind, without it life would not be worth living. It is one of the pillars of
free democratic society. Men have readily laid down their lives at its altar, in order to secure it,
protect it and preserve it. But I do not think it would be right for me to allow my love of personal
liberty to cloud my vision or to persuade me to place on the relevant provision of the
Constitution a construction which its language cannot reasonably bear.”

In 1979, after Indira Gandhi’s rise to power once again he wrote a letter to her that we all wish
he didn’t. It read as ‘I am sure that with your iron will and firm determination, uncanny insight
and dynamic vision, great administrative capacity and vast experience, overwhelming love and
affection of the people and above all, a heart which is identified with the misery of the poor and
the weak, you will be able to steer the ship of the nation safely to its cherished goal.’ He went on
to become Chief Justice of India.
The High Court quietly compiled. Their senior had silenced them. That day has been referred to
as the ‘blackest day in Indian Democracy’ and rightly so. There are several similarities between
this judgement and Hitler’s way of functioning and his rise to power. The Proclamation of
Emergency upon the request of Indira Gandhi bestowed upon her to rule by decree, suspend
elections and curd fundamental rights. The most significant example in history of a ‘rule by
decree’ is the Reichstag Fire Decree of 1933. Adolf Hitler convinced German President
Hindenburg to issue a decree to suspend all basic civil rights indefinitely. This is what paved the
way for the consequent Nazi suppression of its opposition and the one-party rule of the Third
Reich. Niren De’s straight faced and calm answer to Justice Khanna’s uncomfortable question
chimes of the Nazi holocaust. In one instance, CJI Ray went on to almost scold the counsel for
the people detained who brought up Nazi gas chambers to prove their point. To everyone else
except him, this was nothing but an act of desperation and defensiveness to keep the façade of
‘righteousness’ on.

The Supreme Court violated all fundamental rights with that decision. It was the darkest hour of
Indian judiciary which struck at the very heart of fundamental rights. All four judges with the
exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice
Bhagwati expressed regret by saying:

“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come
to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t
know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But
ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a
young judge…I was handling this type of litigation for the first time. But it was an act of
weakness on my part.”
Socio Economic Rights

Olga Tellis v Bombay Municipal Corporation (AIR 1986 SC 181)

The case related to the measures taken by the A.R. Antulay government to evict pavement dwellers
forcibly and to deport them to their places of origin or removed to places outside the city. The Chief
Minister directed the Commissioner of Police to provide the necessary assistance to the Bombay
Municipal Corporation to demolish the pavement dwellings and deport the people.

The subsequent actions of the Bombay Municipal Corporation to carry out the orders of the Chief
Minister were challenged before the SC by the pavement dwellers and a journalist as a violation of their
right to life under Art. 21.

The court held that the right to life includes the right to livelihood. The sweep of the right conferred is
wide and far reaching. The actual deprivation of life (through imposition of the death penalty for
instance) was but one aspect of the right. An equally important facet is the right to livelihood because no
person can live without the means of living, that is, the means of livelihood. Depriving a person of his
means of livelihood would not only denude “life” of its effective content and meaningfulness but it
would make life impossible to live.

In view of the fact that Arts. 30(a) and 41 require the state to secure to the citizens an adequate means of
livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the
content of the right to life. The state may not, by affirmative action be compelled to provide adequate
means of livelihood or work to the citizens. But any person who is deprived of his right to livelihood
except according to just and fair procedure established by law can challenge the deprivation as
offending the right to life under Art. 21.

It is essential that the procedure prescribed by law for depriving a person of his FR must conform to the
norms of justice and fairplay. Procedure, which is unjust or unfair in the circumstances of a case, attracts
the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and any action
taken under it. Therefore, any action taken by a public authority which is invested with statutory powers,
has therefore, to be tested by the application of two standards --- the action must be within the scope of
the authority conferred by law, and secondly, it must be reasonable. The substance of the law cannot be
divorced from the procedure it prescribes, for how reasonable the law is depends upon how fair the
procedure is, that it prescribes. If a law is found to direct the doing of an act which is forbidden by the
constitution or to compel, in the performance of an act, the adoption of a procedure which is
impermissible under the constitution, it would have to be struck down.

In this case, it is apparent that their eviction from pavements and slums will lead to a deprivation of the
means of livelihood of these pavement dwellers and consequently a deprivation of their right to life
under Art. 21. However, the right is not an absolute right and can be restricted in accordance with
reasonable procedure established by law.
Pavements and footpaths are public properties which are intended to serve the convenience of the
general public. They are not meant for private use and their use for such a purpose frustrates the very
object for which they are constructed. Provisions of the Bombay Municipal Corporation Act empower
the Municipal Commissioner to cause to be removed the encroachments on footpaths or pavements over
which the public have a right of passage or access. The procedure prescribed by the act for removal of
such encroachments cannot be regarded as unreasonable, unfair or unjust.

Under the act, the Municipal Commisioner can under certain circumstances dispense with notice to
persons who are likely to be affected by the proposed action. But this discretion has to be exercised in a
reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the
performance of a public act must be fair and reasonable. Except in cases of urgency which brook no
delay, the power to evict has to be exercised so as to give a fair hearing (audi alteram partem rule) to the
pavement dwellers. The pavement dwellers are using the pavements and other public properties for an
unauthorized purpose but their objective in doing so is not to “commit an offence” (“commit an offence
or intimidate, insult or annoy any person” which is the gist of the offence of criminal trespass under s.
441 IPC). They find a habitat in filthy/marshy places out of sheer helplessness and poverty. Therefore,
an opportunity for a hearing cannot be denied to them on the ground that they are trespassers.

Even under the ordinary law of trespass (under the law of torts), it is required that though a trespasser
may be evicted forcibly, the force must be no greater than what is reasonable and appropriate to the
occasion and the trespasser should be asked and given a reasonable opportunity to depart before force is
used to expel him. Besides, under the law of torts, necessity (the acts complained of are necessary to
prevent greater danger to himself) is a defense.

In this case, the court held that the opportunity for a hearing that was denied them by the Municipal
Commissioner was granted by the SC in hearing the writ petition where both sides were heard. The
Commissioner was justified in directing the removal of the encroachments committed on the pavements,
footpaths or accessory roads but he was directed by the court not to start eviction until the end of the
monsoons to prevent further hardship.

Right to education

Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645

The question before the court was whether a citizen has the right to education for a medical, engineering
or other professional degree.

The court holds that in order to treat a right as a FR it was not necessary that it should be expressly
stated as one in Part III. The provisions of Parts III and IV are complementary to each other.
Fundamental Rights are but a means to achieve the goals indicated in Part IV and must be construed in
the light of the DPs. Though the right to education is not stated expressly as a FR, it is implicit in and
flows from the right to life guaranteed under Art. 21 having regard to the broad and expansive
interpretation given by the court. The right to education has a fundamental significance in the life of an
individual and the nation. Without education provided to citizens, the objectives set forth in the
Preamble cannot be achieved.

Art. 21 did not positively confer a fundamental right to life and personal liberty because these great
concepts were purposefully left to gather meaning from experience. Therefore, it is not correct to state
that because the article is couched in a negative language, positive rights to life and liberty are not
conferred.

The right to personal liberty and life has come to be given an expanded meaning. It would therefore, not
be incorrect to hold that life, which means to live with dignity, takes within it education as well.
Education brings enlightenment and lends dignity to a man. The fundamental purpose of education is to
transfigure the human personality into a pattern of perfection through a synthetic process of the
development of the body, enrichment of the mind, the sublimation of the emotions and the illumination
of the spirit. In the context of a democratic form of government which depends for its sustenance upon
the enlightenment of the populace, education is at once a social and political necessity.

As stated in Mohini Jain v State of Karnataka (1992) 3 SCC 666, “the right to education flows
directly from the right to life.” But the question is: what is the content of that right? How much and what
level of education is necessary to make life meaningful? Can citizens demand that the state provide
adequate number of medical colleges, engineering colleges and other educational institutions to satisfy
all their educational needs? Mohini Jain seems to say yes. But it is not possible to agree with such a
broad proposition. The right to education which is implicit in Art. 21 must be construed in the light of
the DPs and must be construed to mean (i) every child/citizen has a right to free education until he
completes 14 years and (b) after a child/ citizen completes 14 years, his right to education is
circumscribed by the limits of the economic capacity of the state and its development.

It does not mean that this obligation can be performed only through state schools. It can also be done by
permitting, recognizing and aiding voluntary non governmental organizations, who are prepared to
impart free legal education to children. The obligations can be discharged by the state either by
establishing institutions of its own or by aiding, recognizing and/or granting affiliation to private
educational institutions. Private educational institutions are a necessity in the present day context. It is
not possible to do without them because the governments are in no position to meet the demand. While
education is one of the most important functions of the Indian state it has no monopoly therein. Private
educational institutions --- including minority educational institutions --- too have a role to play.

Higher education calls heavily on national economic resources. The right to it must be necessarily
limited in any given country by its economic and social circumstances. The state’s obligation to provide
it is, therefore, not absolute and immediate but relative and progressive. It has to take steps to the
maximum of its available resources with a view to achieving progressively the full realization of the
right of education by all appropriate means. But the state is bound to implement the right if it
deliberately starved its educational system of resources that it manifestly had available unless it could
show that it was allocating them to some even more pressing program. Therefore, by holding education
as a FR up to the age of 14 years the court is not determining the priorities but on the contrary,
reminding it of the solemn endeavor it has to take, under Art. 45, within a prescribed time limit, which
time limit has expired long ago.

Current developments: Drawing from this judgment, various governments pushed towards a
constitutional amendment that secured education as a FR (86th amendment, passed in 2002) which added
Art. 21 A to the constitution. Following this, came the Right to Education Act, 2009 which sought to
create an enforcement for primary education for all and to utilize the language of rights for the first time
in doing so.

The Act provides that every child in the age group of 6-14 years will be provided 8 years of elementary
education in an age appropriate classroom in the vicinity of his neighbourhood. Costs that may prevent a
child from accessing the school will be borne by the state which will also have the responsibility of
enrolling the child as well as ensuring attendance and completion of 8 years of schooling. No child is to
be denied admission because of lack of documents, because the admission cycle is over and no one has
to take an admission test. Children with disabilities will be educated in the mainstream schools.

All schools will have to prescribe to norms and standards laid out in the Act and no school that does not
fulfill these standards within 3 years will be allowed to function. Norms and standards for teacher
training and qualification are also being laid down. The National Commission for Protection of Child
Rights has been mandated to monitor the implementation of this historic right.

The legislation institutes a universal legal commitment to provide free and compulsory education to all
children between 6-14 years of age (Unni Krishnan provided for education to all children upto the age of
14 years). The legislation initiates a new approach to social welfare in 2 important ways. First, it creates
a universal entitlement and does not rely on targeting particular social groups marked by ethnic,
religious or other identity markers. Second, it integrates the efforts of the state and non state sectors to
provide for welfare in order to build an inclusive society.

Contentious provisions include: (i) S. 12(1)(c ) obligation on private unaided schools to provide free and
compulsory education to children from weaker and disadvantaged sections upto 25% of the class
strength and various provisions of the Act which imposed infrastructure and regulatory requirements on
the schools (ii) Minority schools argued that the act violated their special constitutional rights in Art.
30(1) to establish and administer educational institutions.

Kapadia CJ upheld the constitutional validity of the Act so far as it applied to private non minority
schools and aided minority schools. However, he held that the entire act including the s. 12(1)(c ) quota
would not apply to an unaided minority school.
Kapadia J,’s majority view promotes the capacity of the state to impose positive obligations on private
actors to promote welfare. The judgment has been welcomed as a significant effort towards achieving
social equity and a contribution to nation building. However, minority schools are excluded and the
states are yet to devise rules on the identification of minority schools.

Right to FOOD

Chameli Singh v State of U.P. (AIR 1996 SC 1051)

The court held that food, shelter and clothing are minimal human rights. In Shantistar Builders v.
Narayan Khimalal Totame [ 1990 (1) SCC 520 ], another Bench of three Judges had held that basic
needs of man have traditionally been accepted to be three - food, clothing and shelter. The right to life is
guaranteed in any civilised society. That would take within its sweep the right to food, the right to
clothing, the right to decent environment and a reasonable accommodation to live in. In Francis Coralie
Mullin v. Administrator, Union Territory of Delhi [ 1981 (1) SCC 608 : 1981 SCC(Cri) 212] this Court
held that the right to life includes the right to live with human dignity and all that goes along with it,
namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading. Right to live guaranteed in any civilised society implies the right to food, water,
decent environment, education, medical care and shelter. These are basic human rights known to any
civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of
Human Rights and Convention or under the Constitution of India cannot be exercised without these
basic human rights.

[The Right to food bill 2013 : contains sections relating to the PDS; Children’s entitlements;
entitlements of pregnant or lactating women; identification of eligible households; food commissions;
transparency and grievance redressal mechanisms and the obligations of the government and local
authorities under the Act.