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What is Double Jeolrarrly'? Explair. June 2010,ll{arks: 5.
1\
I

Article 20 Protection in resnect of conviction for offences:-

,v:1
la$J'L
I ; No person shall be convicted of any offcnce except for vg1lgn ol3 _la-1v in force at the tirne of the
commission of the act charged as an offence. not be subiected to a pcnalty greater than that il'hich.
might have been inflicted under the law in force at the time of the cornmission of the offence.

(2) No person shall bc prosccutcd and punished for rhe same oft-ence more than olrc,e.
]:.i
(3) No person accuscd of any offence shall be compelled to be a rvitness against hiuuelf.

Articlc 20(1) :- " no pcrson shall be convicted of any offcnce except. for violation.of a larv in force at
that tiile of rhc cornnrission ol the act charged as an offcnce., nor be subiect to a periaky greater thar
what rnight have been inflicted under the law in force at the tirnc of the comrnission of the offen'ce.-"

This point can be explained through a case law.in Ketlar Nath v. Statc of West Bengal:(AIR 1953
SC 404)-The accused conrmitted an offencc in 1947-.-u,hich undeii- iti<i aci tfrCn in force rvas
punishnblc by finc or inrprisonnlcnt or both. The act anrended in l9-tr9 u'hich enhanced the
'
punishnrent lol thc sarne oflflcncq by an additional fine equivalent to the amolrnt of money procured by
the accr.rsed rhrough thc offcncc. Thc Supreme Court held that the cnhanced punishment cotild not be
applicable to rhc act conrmittcd by the accused itt 1947'and' hincc set aside ihe additional finc
imposcd b1'the anrcudcd act.

in Rattan Lal V. statc of Punjab:(AIR 1965 SC 44-1)- A boy of 16 .yrs of agc \\,as found guilty of an
olfence and q,as aq,arded a rigorous imprisonment of 6 months and also irr-rposed a fine on 31-5-
1962. His appeal rvas clisrnissed by the sessions judge on 22-9-1962 and by the high coult on 27-9-
.taken
1962. Thc probation of offenders act came into force on L-9-1962. no plea \\:as before the high
court that thc boy should be gir,'en binefit of thb acL Later he filed in appcal in lhc suprcme court by
special leave and it was argued that hc s[out! b9-slllllhcEtltp!-]Lbe-Q9t. govemment argued that
the act is not retrospcctive and the offencel*ai comrnitted rnuch before the act carnc into the force .
But sc obsen'ed that " an ex post facto larv which only po11in"s the rigours of a criminal act does not
fall rvithin the said prohibition. If a particularlarvmakesprovision to that effect thoughretrospective
in opcration ,it will bc valid. The court therefore ruled that thc rule of benelicent coirstruction required
that even an expost facto larv of thc type involvedhercought to be applied to reducethepunishment
ol thc vorrng offcndcr.

CIausc (2) Proter:tion against Doublc Jeopardl':-

That 'No person shall be prosecuted and punished for the same offence more than once. This clause
embodies the English common larv Maxim "lgq--&bgt--bjilaexad u,hich means that no man should
be put twicc in peril for the same offence- If he is prosecutcd again for the sanre olfence for which he
has already been prosecuted, he can take complete defense of his fomicr acqr.riltal or conr.iction. In
l\{aqbool Hussain Vs state of Bombay (AIR 1953 SC) thc appellant brought some gold into India.
He did not declare that he had brought gold rvith him to the Customs Authority on the Air Port. The
customs Authorities confiscated the gold under the sea Custous Act. He u,as later charged for having
conrmittcd an ollcnce undcr rhc Forcign Exchange Regulations Act. The appcllant contcnded that
sccond prosecution rvas in violation of Art.20(2). The Court has heid lhat Sea Custom Authority were

61
 not a Courl or Judicial and acl.iuclging of confiscarion under the Sea custom acr did not
lJib.unal
consl'itutc a judgemcnt ofjudicial character necessary to take the plea Doutrle
of r.o1roral1,

Art'20 (3) No person accused of any offtncc shall be compelletl t0 be a ryitness against himself.

The privilege in criminal law is based on and determined bv section

l6l(2) of the Code of Criminal
Procedure. section 27 of Indian Ev"idence Acr and Article io
1:y of the Constiturion of India . The
most pertincnt case in this regard is undoubtedly Nandini Satpaihy v. p.L.Dani
. rvhcrein Krishna
Iyer. J. held that. the right ertends to witness and accused. alike. that thc expression ,accused
of any
offence, must tnean fornully accused in praesenti not in futuro, that it appliei
u, ,iuge at which
{irmishing of information and collection of materials takes place. that
the irivilege"r,"ry onlv ro
the deploynrent of the information obtained as evidenie in a criminal "*t".rds-not
prJsecudor,-
exlraction of the inlormation itself , that the true test for testing valid'invocation
;;;;;;
rcqsonablc apprehension of the'accused,ivitness as to the us-e. of the
of the risht is
information ,,*ui".i rri*,..il;."rq
and finally. that compelleri testiurony include's eri,l.n.e procured not
merelf by ihysical .threats or
vitjlence but by psychic-torture, attnospherii pressure. environrnenml
coercion. tiring interrogative
prolixity'. overbcaring axd intimidatory methods and the like, but not
legal penalty ro,
"Iou,tior.
1. Write a note bn prcventivc Detention. Junc 20t3,i\Iarks :-i
) No ptrson shall of his life or pcrsonal liber[v exccpt accortling to procerlure
tre deprived
cstablished by larv. Discuss u'ith rcl'ercnce to drcirlcrl tases. Jana.y 2011,1{arks
:15
J. Explain the right to life or personal liberty as provided under Article
21 of constitutioh.
Januarv,2013, il,Iarks.:15
Discus's the scope of right to life anrl personal liberfl undcr thc constitution.
Januar_r',2012. i\larks : l5

f "-. Arficle 21 Protr:ction of life an{l uersonaf liberfv

No person shall be deprii'ed of his life or personaI Iiberty except rccording

to procedure established
by law.

Article 2l of the constitution says that: "No-person shallbe deprived of his life
-- -
"-" "'^- or
vr personal.libcrty
vlaJv
except according to procedure .rtobUrh"d by larv.,'
Prior to il{aneka Gandhi's tlecision' Article 2l guaranteed the right to life
and personal liberty to
citizens only against the arbitrary action of the executive, and not"rr"r,
r.girrr*;;;rt"". The state
could not interfere rvith the liberty of citizens if it could support its action
by a valid larv-
But aftcr I\,Iancka Gantlhi's ttccision Article 2l nou, protects the righr
to life and personal libcrty of
citizen not only from the Executire action but from the Legislative action also.
A person can be
deprived of his life and personal liberty if trvo conditions are cimplied
with, first, there must be a larv
and secot:tdly. there nlr'ist be a procedure prcscribed by that larv. provided
that the procedure is just.
lair and rcasorrablc.

Arlicle 2l is the celebritv provision of the lndian Constitution and occupies a unique place as a
fi'rndamental right- It guarantees right to lifb and personal liberty
to citizens and aliens and is
e[forceable against the State. The new interprctariori of Article 2l in N{aneka
Gandhi,s case has
ushered a nelv cra of expansion of thc horizons of right to life and pcrsonal
libert-v. The $.ide
dimension given to this right now covers various aspects u&ich the founding
latirers of the
Constitution might or might not have visualized. 'Righr !o life' and 'personal libert-y' is
the ;;;
tratne for rvhat have been tradirionally knou'u as 'natirral right.' It is the primordial
rights necessary
{br thc development of human personalitv. It is fte nroral rig'irt rvhich every human bein'g
everywhere
at all times ought to have simply because of the fact that in contrast u,irh other Ueings."tre is
rational
and moral- It is &e fundantental right ii'hicli cnablcs a man to chalk out his own life in the
nranner he
likes best. Right to life and personal libcrty is one of the rights of the people of India presen
ed by the

62
 Constitution of India, 1950 and enforced by the High Courts and Supreme Court under article 226 and,
32 respcctircly.

PERSONAL LIBERT}':- NIEANING AND SCOPE:-

The sinallest Article of eighteen words has the greatest significance for those who cherish the ideals
of liberty- In India the concept of 'liberry' has received a lar more expansir,e interpretation. The
Supreme Court of India has re.iected the view that liberty denotes merely freedom from bodily
restraint; and has held that it encompasses those rights and privileges rvhich have long been
recognizcd as being essential to the orderly pursuit of happiness by free men. The rneaning of the
u,ords "pcrsonal liberty' came up for consideration of the Suprcrre Court for ihe hrst tirtre in A.K.
Gopalan v. Union of India. In this case, the Supreme Court by the rnajority held that lhe 'personal
liberty' in Article 21 means nothing more than the liberty'of the ph-vsical body that is freedom from
arrest and detenlion without authority of larv- this definition of the phrase 'personal libeay' given by
Prof- Dicey, according to rvhom personal liberty means freedorn from physical restrain'and cocrcion
which is noi authorized by law- The u,ord 'liberty' is a'r cry cottrprehensive word and if interpreted it
is capable of including the rights mentioned'in Article 19 of tlie Constitution. But this reslricrive
interprelation of the expression'pcrsonal liberty'in Gopalan's case'has not bccn iollor.ved by the
Supreme Court in its later decisions- Finaliy, in fuIaneka Gandhi:v.'Union of India, tl,e Supreme Court
has not only ovcmrlcd Copalan's case but has widcnccl tlie scopc of the u'ords'fersonal'liberty'

"The erpression 'personal liberty' in Article 2 I is of rvidest arnplitude and it covers a variety of rights
rvhich go to cor.rstitute the personal liberty of man and some of thern have raise,l thc status of.distinct
fllndamental rights and given additional protcction unclcr Anicle 19."
.
It is truc that Arricle 2l is u'orded in ncgativc tcrnrs bul. it is uorv u'cll scrtled rhat Articlc Zt tras both
ncgative and affinnative dimension. Positive rights arc vcry rvell conlered undcr Anicle 2l of the
constitution. The lollorving rights arc held to bc corercd undcr .Articlc 2l:

In a landmark rcccnt jutlgcment in Suchitra Srivastava V/s Chandigarh Administration(A.I-R.

2010 SC 23-5) Thc Supreme Court has held that personal liberty in,{rticle 21 includes the right to
make reproductivc choice (to produce child or ilot to produce). In vierv ol this Wonran's right to
privacy, dignity and bodily integrity should be respected.

Right to live rvith human Dignitv:-In N'Ianeka Gandhi's case thc court ga\,e a ncr.v dimension to
Article 21. It held that the right to live is not merely confined to phy'sical exislence but it includes
u,ithin is anrbit the right to live with human dignity. The right to live is not confined to the protection
ol any lirnb through u,hich life is enjoycd but it also includes thc right to livc rvith hunan dignity and
all that goes along with it namely the barc necessity of lifc such as adeqrnte nurrition. clothing and
shelter and faciiities for reading, writing and expressing ourseh'cs in diverse forms, lreely moving
about and mixing and commingling u,ith fellow human beings

Noise Pollution (!), In Re, {(2005) 5 SCC 733lPr l0}:-Articlc 2l right to lifc and
guarantees
. includes all those aspects which make a persons life meaningful. compiete and rvorth living. In the
above case, it rvas held that anyone r.r,ho wishes to livc in peace, no one can claim a right to crcatc
noisc even though he does so in his oun premises. Anv noise, rvhich materially interfercs with the
ordinary comforts ofthe life of the other, judged by an ordinary prudent man is nuisancc.

.{i,, Bodhisattrva Gautarn v. Subhra Chakrabort-v (1996) I SCC 4901:-Facts: The Supreme court
F ordcrcd rhc accuscd to pay Rs. 1,000 per month as an intcrim conrpcnsaliou to the victim of rapc
during the pcndcncy of thc criminal case . Thc Court has hcld that Rape is violativc of Righr to Life
undcr futicle 2l rvhich includes right to livc u'ith human rlignity. The Supreme Court iras the
jurisdiction to enforce thc fundarnentat righs against prir;ate bodies and individuals and can arvarc]

63
compensation for i;iolation of fundamental rights. It can excrcise its iurisdiction suo moto or on the
basis of PIL
.x
Rieht to livelihood:- In' Olga Tcllis v. Bombay ['Iunicipal Corporation (pavement
thvellcrs.cascXA.l.R-1986 SC 180) popularly known as the pavement dwellers case. the Supreme
Court has finally ruled out that the rvord 'life' in Article 2l includes the'right to livclihood'. The
court said thatanequally important facet of right to lifc is the rightto livelihoodbecause no pcrson
can live rvithout the means of livelihood. If the right to livelihood is not treated as a part of the
constitutional right to life, the easiest rvay of depriving a person of his right to life would be to deprive
him of his n:eans of livelihood. ,
Kartar.Srzgfi r,s. State of Punjah {(1994) 3 SCC 569}:-Speedv trail is an essential part of the
fundamental rights guaranteed by article 2l of rhe Indian constirution.
Unni krishnanrc. Slote of Andltra Pradeslt:- the apex courl has rvidened the scope of article 2l and
has provided with the rights ai-ticle 2l embraces u.ithin itself.

Risht to shelter- Right to shcltcr is a fundamcntal right uudcr.Articlc 2l of the Constitution.ln anv-
organized society. the right to live as a human being is not ensured by meeting only thc aninral necds
of ntan. It is ensured only u,he-n'hc is assurcd of all the facilities. to benefir himseif. Right to |ive.
grtaranteed in any cil'ilized society implies the right toi food, \ya{er, decent enr.iromrieirt, education.
medical care and shelter. Right to shelter thcrcfore, does not rnean a mere right to a roof over one's
hcad but right to allthc infrastructurc ncccssary to cnablc thcnr to livc and dcvclgp as a hunran bcing.
Cltumeli Sing Vs S/a/e of u.p.. it has becn lreld that the right to shelter is a fundamental right under
Air.2l of tlic constitutiorr.

Right to llrivan.The Suprctuc Court hcld that r citizcn has right to safeguard the prir,'acy of his orvri.
his family, marriage, procreation. inothcrhood, child bcaring, and cducation arnong othcir niatters-
None can publish anything cor.rccming the abovc mattcls u,ithout his conscnt whcthcr truthful br
othenvise. This mle is subjcct to an exccption that if any publication of suclr matters is based on
public record including court record it \e'ill be unobjectionable. Tlre second exccption is that the right
to privacy or the remedy of action for damage is simply not available to public officials as long as the
criticism concerns the dischargc of their public duties.
ln Klruriile Shingh l1s Statc tr.& AIR.,l963 SC 1295.The constiturion validity of domiciliary visits
by tire the police rvas in question. Thc Suprcure Court rejectcd ftis cbntention and held that pcrsonal
libcrry under Art 2l .

Right to heal{h and medicat assistance:-In Parnrananda Katara v, Union nf India,(A.I.R.1989 SC

2039) it has been held that it is the profcssional obli-sation of all doctors. rvhe*rer goyernmcnt or
private. to extend medical aid to the injured immediatelv to presen:e lile without rvaiting legal
{bnnalities to be complied with by the police under Cr.P.C. Article 2l of the constitution cast the
obligation on the state to presene life. it is thc obligation of those rvho are in charge of the health of
the cotnmunity to preserv'e life so that the imocent rnay'be protected and the guilty may be punished.

RIGHT TO DIE - NOT A FUNDAN'IENTAL RIGHT:- In India "The right to life" undcr Articlc
2l of the Constitution has received the rvidest possible interpretation under thc able hancls of the
.iudiciary and rightly so. On thc grounds as rnentioned. Articie 2l does not have a restricrive meaning
and needs to be interpreted broadly. This affirms that if Article 2l confers on a person the right to live
a dignifred life. it should bestows the "Right to Die" also, but the inclusion of Right to die under
Article 2l contradict the provision o[ Indian Pcnal Code undcr scc- 309._As according to sec. 309 of
the IPC "Whoever attempts to conrmit suicide and does uny *t to,rrrd the commission ,f fih=
offcnce, shall be punished u,ith simple imprisonrncnt for a term rvhich may extend to one year [or
rvith fine, or lvith both]". This section is based on thc pnnciple that lives of men are not only valuable
1o thcm but also to the stal.c u,hich protccts thent. By considering both the larvs the provision ol'IPC
r.tndcr section 309 is contradictory to thc lundarncntal right guaranteed under Articlc 2l of thc Indian
ConstitutionJhe srate's por"er irnder section -r09. I.P.f. ti punish a rnan lor attelnpt to conmit a

64
 suicide is questioned not only on the grounds of morality, but also on the constitutioilality of the said
provision. A lot of corr{licting opinions have been given on desirability of retaining or abolishing
section 309 of Indian Penal Codc because of some contrasting judgement given by various cou(s.

A very fascinating developrnent in the Indian constitutional jurisprudence is the extended dimension
given to Article 21 by the Supteme Court in the post-l\{aneka era. Since then. Article 21 has provcd
to be rnulti{imensional. This aspect of Ar1.2l are brought up by many judicial pronouncements- This
right is inalienable and is inherent in us. It cannot and is not conferred upon us. This vital point scems
to elude all those u.'ho keep on clatnoring for the "Right to die"- That means rhat every individual has
a ftlndamental freedorn to choose not to livc. On this issue the instance taken by rhe jucliciary is
unquestionable- The main question arises is that rvhether right to life include right to death.

The Supreme Court of lndia ovcrulcd thc -iudgemcnt given by Bombay High Court in State of
l'lahaiashtra vs ilfarut1'Sripati Dubai and a]so its earlier decision given in P.Rathinani ys Union k
of Intlia cases wherein Scction 30.9 of Indian Pcnal Code 1860 ri'as held.to biuiiioniiiirtionat. it-
upheld the judgemcnt of the Andhra Piadcsh High Court in Chcnna Jagatlecsrvar and another vs.
Stafe of Andhra Pradesh holding that Section 309 of the IPC rvas not violative of Articles 2l and 14
of the'Indiaq Constitution and thereforc, it cannot be declared null and void- Prescntly the verdict
givcn ih Gian Kaur v. state of Punjab is lollou'cd, in ri'bich the Suprcrne Courr upheld the v'aliility
of ScctionJ0glnd itates that it is rvithin thc constitutional mandates and is notl violative of any
fundamental rights.

Although thejudgemcnl given bv. SC in Gian knun is followed, this should be scrappecl from rhe IPC.
The 'right to die' should not bc exprcGiv{-nifrded in the "right to lifle". bccause "Lifo is a gift
given by God and Hc alone can take' it"- It's prematurc fermination car]not be approvcd by any
society. Neither it should be pcnalisecl. Atrempt io commit.suicide is a 'rlanifestaiion of diseased
nrind'- "what is needed to take care of duicide prone persons are soft ulords and n.ise counseling of a
psychiatrist,.and not stony dealing by a lailor following harsh treatmcnt rneted out by a heartless
prosecutor. Section 309 of the Penal Code descn'cs to be effaced from the statute book to humanise
our penal lau,s. ll is a crucl and irrational provision. and it may result in punishing a pcrson again
(doubly) rvho ltas suffered agon!' ancl u.'oulcl be undergoing ignominy becaule of his failure to conmit
suicide."

Rigltt to nollution free rvatcr and air:- In Subhash Kumar r,. Bihar, It has by ,(A.I.R. t 991 SC
get
420) the Apex Court has hcld that enioymcnt of pollution free environment is included gncler right to
life under Article 2l of the Constitution.

Right to free legal aid:-Right to frec lcgal aid and speedy trial are fundarnenral rights
-suaranreed
under Article 2l . ln a democratic policy. governed by rule of larv, it should be the main concern of the
state to have a proper legal system. The crucial rvords are to provide free legal aid by suitable
legislations or by schemes or in any otlier way so that opportunities for securing justicc are not denied
to any citizen by reason of cconornic or othcr disabilitics. In i976, Article 39-A was added to the
Constitution of India, ri.'hich provides lor free legal aid. In Khatri (II) v. State of Bihar i(1981) 1
SCC 627). The Supreme Court has held that thc State is under a constitutional mandate (implicit in
Art. 2l) to provide free lcgal aid to an indigent accused person. This right has norv been proyided as a
right under 5.304 {(Legal aid to accused at State cxpense in certain cases. This section ryas atltled
after the recommendations of 41st Larv Cornmission)) of Cr.P,C. In case of Sukh Das y. Union
Territory of Arunachal Pradesh i( 1986) 2 SCC 401 ). It has becn laid doun that this constitutional
right cannot be denied if the accused faiied to apply for it. It is norv clear that unless refused. failure to
provide free legal aid to an indigent accused r,.,ould vitiate the trial, entailing setting aside of the
conviction and senl.cnce.

65
Right to Compensation: Right to claim monetary compensation fcr the violation of the rights in
Article 2l has also been recognized in several cases.( Rutlul Shah Y-/s State of Bihar (1983)4 SCC
l4l. Hussain Y/s State of Kcrala, (2000) 8 SCC 139)
Right to Release antl Rchabilitation of Bontlcd Labour:- Article 2l read with the Directive
Principlcs of State Policy enshrincd in Articlcs 39. 4l and 42 as well as the Bonded Labour
System(Abolition) Act, 1976 obliges the State to identify, relcase and suitably rehabilitate rhe bonded
labourers. The bondcd labourers also have the right to live rvith human dignity enshrined in Article
2l . Bandhua N{ukti tr'Iorcha V/s Union of Intlia ( 198-1) 3 SCC 161: AIR 1984 SC 802)

RIGHT AGAINST SOLITARY CONFINEIIENT:-In Sunil Batra "" Dclhi Administration &
ith the grievances of Charles Shobhraj ivho
supplicated that rnany inmates of the Tihar Jail rvere kept manacled without any consideration givcn
by the Jail authorities to the bodily harms'that u,ere caused duc to being continuously subjected to bar
fctters. In case of Sobraj. he u,as keprin restraints for tu,Lnty four hours daily and cvcry day of thc
nronth rcligio-usly for nearly two years. The reStraints continued inspite of u'ounds on h'cels and
mcdical advice to the contrary.

It rrias hcld by,thc Courr thaicr,en though confincrncnt in irons is pcrnrirtcd forthe sale crrstody of
prisoners, such application must be governed by the irnpcrative of Articles 14. 19 and 21. "Life and
libcrty' are prccious values: Arbitrar-v action which tortuousl_v tears into lhe flcsh of a living man is too
se rious to be.rcconciled rvith Articles 14. l9 ald 2l.l'

"For rvhat is punitively outrageous, scan&alizingly unusual or cruel and rehabilitatively

counterprocluctive, is unarguably unreasonablc and o.biu'ary and is shot down by Articles l4 and 19
and if inflicted rvith procedunl unfaimess, lalls-out of Article 2 i. Part III olthc Constitution does not
part conrpany rvr'th the prisoncr at the gates. and judicial ovcrsight protccts thc prisoncr's shrunken
Ilrrrdan.rental rights, if flouted, &ouned upon or froz.en by the prison aulhority. The operation o1'
r\rticles 14, I9 and 2l may'be pared down for a prisoner but not puffed out altogcther."

Ilussiinana Khatoon (I\') v/s Honre Secretary, State of Bihar t(1980) 1 SCC 981:- Facts: The casc
dealt, intcr alia,.u,ith the rights of the'under trial prisoners on hhbeas corpus petitions which disclosed
a shocking state of ailairs inregardtoadrninistration o[.iusticc in Lhe State of Bihar. An alarnringly
largc numbcr of mcn and u,ornen. childrcn including. rvere behind prison bars for years awaitirlg trial
in courts of larv. The offenccs with rvhich some of them r.r.ere charged were trivial. whicli cven if
proved. u'ould not wanant punishment for more than a ferv months, perhaps a year or two. and yet
thcy remained in.jail, deprived of their freedom. for periods ranging from three to ten years rvithout
even as rnuch as their trial having commenced. The Court ordered inrrncdiate rclcasc of these under
trials rnany olrvhom u,ere kept in jail without trial or even u,ithout a charge.

Righrt lto Education:-The Fundamental Right lo Education has been:incorporated in our Constitution
under Article 2lA. on April 1,2010. Frorn nou. onwards all the children in theage group of Ll:t
-liioviacO
ycars u'ill6e 8 years of elementary education in an appropriate classroom in the vicin-ity of
hisiher neighborhood. The cost of facilitating school education to a child will be borne by the State.
The government rvill be responsible for the enrollment and regular attendance of children. All schools
q,ill irave to prescribe to norms and standards laid out in the Act and no school that does not fulfill
thcsc standards u,ithin 3 ycars will be allorvcd to function. Unrccognizcd privatc schools operating in
thc country r.vill have to apply for recogrrition, failing rvhich they will be penalized to the tune of Rs I
lakh and if they still continue to function will be liablc ro pa1.' Rs 10.000 perday as fine.

Right to go abroarl.
Right to privacy.
Riglrt agairrst soli tan' confi ncurcnt.
Right to shcltcr-

66
 Right against custodial death.
Right againsr public hearing.
Doctor's assistrncc.

Along lvith all tliese above-mentioned rights. it w,as also obsenbd that the right to education q,ould
also be included as a part ofright to life.

A.k. bindal vs. Union of Intlia (2003 5 SCC 163):-It was held that no person should be deprived of
his lile and pcrsonal liberty except according to the procedure established by larv.

Thus with thc aborc brielpreview of anicle 2l it is clear that it has a multidirnensional inrerpretalion.
Any arbitrary. whimsical and fanciful act of the part of any state dcpriving the life or personal liberty
u'ould.bc ar:ainst arriclc 2l of the Indian constitution.

Further it rvas obsen'ed by supreme Court in year 1993 itself in Unni Krishnans cise (A.I.R. 1993
SCC 64-5) that Article 2l is the heart of Fundanental Rights and it has exrended rhc Scope of Article
2l by obsen'ing that the life includes the erlucation as rvetl as, as the right to ctlucation flou,s from
the right to life . The constitution. ({16'}. amendment) Act, 2002.has artded a nerv Articie 2lA after'
Articlc 21 antJ has ntadc etlucation f<lr all chiltlrcn of thc agc of 6 to 14 a fundamental right. It
provitlcs "thc State shall provitlc free antl compulsory ctlucation to all childrcn of the agc of 6 to
14 ycars in such nlanner as the State ryi1.-, by larv dctcrminc." The Apcx court had declared. "The
passage of 44 years- more than four tinres the period stipulated in Article 45 has convertcd the
obligation crcatcd bv thc Articlc irrto an cnforccablc riglrt. At icast now thc statc rnusl honour thc
cornmtnd ol Articlc -15 and make it.a right"

According to this judgrrrcut. "Right to Education is implicit in and {lows lrorn right ro li[c guaranl.ccd
undcr Articlc ? l" and "Every child of this country has a right to .free education until thc age oli 14.
thereafter his rights are circrunscribed by the economic capacity and dei,clopnrcnt of the Srate"_

. Erplain the safeguards availatrle against'the arbitrary arrrst antl tletention

Untler' 22 of tht Intlian constitution .Dcccmber 2012 , tr{arks: l5
4
Article 22 Protectioq ag?inst arrest antl dete+tion in certain cascs.

This Article contains seven clauses. Clauses (l) aud (2) la-v doryn the procedure that has to be
follovucd u,hcn a man is anested. They ensure Four things:-

a) Right to be informed regarding grounds of arresr. (Art.22(l)

b) Right to consult and to be defended by a legal practitioner of his choice. (Art.22(l)
c) Right to be produced before a Magistrate u,irhin 24 hours. (An.2Z(2)
d) Frecdom from detention beyond the said pcriod except by order of thc lr,lagist rate- (Art.2Z(2)

In State of Punjab v. Ajaib Singh. (AIR 1953 SC 10, I 5) the tanguage of tut. 22(l ) and (2) indicates
that the fundamental right confered therein gives protection against arrest otherwise than under a
$'arrant issued by the cour( the prolection will be available only against acts of the executive or other
non-j udicial authority.

NATURE AND SCOPE OF ARTICLE 22:-Arr. 22(l) embodies a mle which has alu,ays been
regarded as vital and fundamental for safeguarding pcrsonal libcrty in all legal systcms whcre the nrle
of larv prevails. In N{adhu Limayc,In rc. (AIR 1969 SC I014. (1969) I SCC 292). The Court has
obsencd that the similar provisions are contained in the Sixth Amendment to the U.S. Constitution
andArt.34of theJapaneseConstitutionof 1946. InthecaseofChristiev.Leochinsk,,-. {(19.17) I All
ER -567 (HL)). In England. Viscount Simon laid dou'n certain impofiant rights of an arresrcd persorl.

67
 In A- K. Gopalan v. State of Nladras, (AIR l9-50 SC 27. 82) observed that Art. 22 is a self<ontained
code with respect to the lau' of preventir.e dctention. It covers all principle cluestions that are likely
to
occur in matters of procedure or questions of reasonableness of the period oi detention- Furrher in K.
K- Kochuni v. State of Kerala, (AIR 1960 SC 1080).Article 21 aia zz are linked rogether and both
constitute an integrated Code.

A{t- 22U) rvill apply- t9- !l1 kids.of urests. Even if the arrest is made by a rvarranr or by an order rhar
wa{rant or or&fffiii iett lim the grounds of arrest. If there is no warrant or order, the
ierson making
the arrest nrust givc hirn the information, Further, in State of ilIatlhya Pratlcsh v. Shoiharam, (AIR
1966 SC l9 I ()) the right of the arrested person to consult and be defended by' a legal practirioner
ol his
choiceisnotnrerelybecausehehasbeenreleasedonbail,

In .Venkayl"a v. Chinalrunttaiah, (AIR I954 A.P. 90) ir rvas held rhat Art. 22(l) and Art.22(2)
did
not deal with punitive detention follou.ing a conviction by a court but laid down the minirnum
requirement $'hich Parlianrenlary or State Legislation sanctioning the arresi and dcteirtion
of a person.
not conr.icted of a crinic should confomr to.

Further in the case of Keshav Singh r,.'Spcaker, Legislat-iyc Assemtrly (AIR 1965 All J49) it was
hcld that Art. 22(2) is applicable onlf at a stagc u,hcn.a pcrson has bccn arrestcd and is accuscd of
some offence or other act and it can hlire no application afrcr such pcrson hribeen ad.iudgett guilty
of
the offence and is detained in prrsuance of fte conviction by the courr.

PRE-CONDITIONS FOR APPLICATION OF ART. 22(1i

In the case of Statc of Punjab v. Ajaib Singh (AiR i953 SC Ie it has bccn held rhar'lhere are rwo
conditions for thc application of clausc {l):-
.

I. Thc funclarncntal rights sccured to ancsred pcrsons b,v'article 22(l) givc protcction against such
alrcsts as are cffcctcd othcrwisc thrn under a \\jarranl. issued by a coun on thc allegation or accusation
that the arrested person has or is suspected to have committed or is likely to commit an act of criminal
or quasi-criurinal natue or solne activity preiudicial to the public or the State interest.

2. Thc pcrson rntrSt havc bccn takcn iirto custody on lhe allegation oi accusation of an actual or
suspected or apprehendcd commission by that person of any offence of a criminal or quasi+riminal
nature or some act prejudicial to the State or public interest.

RIGHT TO BE INFORN{ED REGARDTNG GROUNDS OF ARREST:.

This right has been provided under Art. 22(l) of the Constitution. Besides Secrions 50. 54 ,55
(Procedure rvhen police officer subordinatc to arrest u.ithout tvarrant) and 75 (Notification of
deputes
substance of warrant) of Cr.P.C deals with the same . In State of Punjab v. Ajaib Singh, (AIR 1953
SC I 0) .The trvo require ments of Art. ?2(l) are meant to afford the earliest oppo(unity to thd anested
person to remove an-y mistake, misapprehension or nrisunderstanding in the nrind of the anesting
aullllority and also to knorv exactl-y what thc accusation against him is, so that he can exercise thi
second right. narnely. of consulting a legal practitioner of his choice and to be defended by him. In
Joginder Kumar v. State of U.P. (1991 4 SCC 260), emphasising that the right nor ro be arrested
except for heinous offences and to have someone infoimed of the arrest and to consult privately rvith
larryers is inherent in Arr 21 and 22(l) of the Constitution and required {o be rccognised and
scmpulortsly protected, the Court issued necessary' directions for the ricognition and protection of
thcsc rights.

In the saure case. lollorving rulcs rr,cre formulated-

68
 l. An arrested person being held in custody is cntitlpd if he so requests
to have one friend,
relatiye or otherperscnu'ho is klown to him or likcly to take an interest in
his rvelfare, toid,
as far as is practicable that he has been arrested and rvhere he is being
deuined.

2. The police officer shall inform the arrested person u,hen he is brought to
the police station of
this right.

3. An entry shall be required to be made in thc diary as to who u.as informed of thc
an-est-

By the Cr-P.C (Amendment) Act, 2005. S.50-A has been addecl which poses an obligarion on person
rnaking arrest to inform about the arrest etc. tb a nonrinatcd pcrson.

S
CHOICE:-

This right has bcen pro-v'idedlnder Art. 22(l) of the Coristitution. The corresponding
right under
Cr.P.C is provided under 5.303 of Cr.P.C. In t.he case olRaymbnd Hamlin (32 L
ed. z"a. sio (535).
Douglas J. obsen'ed that. "The right to be-hpard rvould be, i,r rro,ry.ur.ro1i,rt.,t;rif;iit
did not
comprehcnd ttre iight to be heard by counsel... rvithour it. though h"i;;;;;jl,;,'n.,ira;.
ine danger
ol conviction' because hc does not knou' hou, to cstablish his imocence..." This right has been
recognizecl under Art.8 UDHRand Intemational Covenant on Ci.,it .na politicalRights.
{art -t+1:1y
hr Statr: of l{.P. v. Shobharam, Hidayaruallah.J. (AIR 1966 SC l9l0)pointcd
our that:_ ,,A person
arrcstcd and put on his defence against a criminal charge rvhich rnay result in penalty,
is c-ntitled to thc
iight to defend himself with the aid of counsel and any lau, ,vhic'h erci,rd;r",h;;;;;;;;;;tlo,
uy.
lariycr in a civil'litigrtion docs not violatc Art.22. "
RIGHT TO BE PRODUCED BE
HOURS:-

This right has been provided under Art. 22{2) of .the Constitution of India Act, 19,50.
Under.CrpC, rhis
Right to be produced before a magisirate with<iut delay has becn provided under 5.-56
'(Person arrested t0 be raken trefore Nlagistrate or officer ir, of Cr.p.C.
.:ha.ge of police stati,n) and S.76 of
C'r.PC- (Pcrson arrested to be brought beforc Court rvitlrout tlcliy). Tire tendcncy
oithe officers
authorised to arrest, to note the tirne of arrest in such a manner that ihe accused's pioou.no,
before
the rnagistrate was *'ell within 24 hours of the arrest c&rrc to bc criticised by the Boinbav
fligr, Court.
ln Ashok Hussain Allah Detha alias Siddique v. Asstt. Cottector of Customs, (1996 g;i
LI 2?01
Born) The court ntled that the arrest commences rvithin thc restraint placed on'the fifrenv
of the
accused and not with the time of anest recorded by the arresting officer. In the
case of N{uhammad
Sulcman v. King Entpcr0r, (30 Cut{ 985, 987 (FB) (per Rankin J.) This right has becn
crcated rvith
a vicw:-

To prcl'cnt arrcst and dctention for thc purposc of cxtracting confcssions, or as a rncans olco,ipclling
people to live information:

To prcvcnt policc starions being used as though lhey rr.ere prisons:

To aflord an early recourse lo a judicial ofllcer independent of police on all quesrions

ol bail or
discharge.

FREEDOI,{ FRO},{ DETENTION BEYOND THE SAID PERIOD EXCEPT BY ORDER

OF
THE N{AGISTR{TE:-This right has been provided. under Arr. 22(2) ofrhe Constitution. The right
olnotbeingdetainedformorethan24hoursu'ithoLrtjudicialscrutiny"U.*sp;;r.,d.;;;..S rrOS
arid pi-oviso to S. 7669 olCrPC.

6q
 EXCLUSIOI,IS UNDER ARTICLE 22

The important rights as provided tmder Art. 22(l) and Art.22(21of the Constirution
are not available
in-c-ases covered by ArL 22(3)70 of the Consrirurion. In rhe case
of ilIanoj v. State of ilI.p.. t1999 3
SCC 715) this clause excludes these rights in the case of erremy alicns a-nd persons
u.ho have been
detained under any larv providing for preventive detention.
-i^,
The Supreme Court laid douT r the follou,ing instructions in D. K. Basu v. State nf \yest Bengal
(1991 | SCC 416):-

a' The poiice personnel carrf ing o.ut lhe arrest and handling the interrogation of
the arrestee shoutd
bear accurate' visible and clear identification and name tags with their deiigratioos-
rr,e particulars of
all such police personnel rrr'ho handle interrogation of the arrestcc lnust be recorded
in u."girt...

b' That the police officer carryilg out rhe ar-rest shall prepare a memo of rreit at the time of arrest
and such memo shall be attested by it least oue ruitncss, ,ui,o ,rrri, either be
a niember oltie fan:ily of
the arres.tee .or.a respectable person of -the locality from rvhcre the arrest is
madc. It shall. also be
countersigned by the3nc""-: shall contai, the anddatc of arresr.
Td !ir1e .

The time.placc of arrest and t'cnue of cr"rstody of an arresr.ee rnust be notificd

1' by t6e police where
the next frierrd or relative of the arrestee lives outside the district or town through
the Legal Aid
organisation in the District and Police Station ol the area conc.erned telegraphically ivirhin
'8-12 hours afler a period of
the arest.

d Thc arrcstcc should' uficrc hc,so rqqucsts. bc also exarnincd at thc'tirne o[his
arrcst apd rlajor a1d
minor iniuries. ilany present on his bocly must be recorded at drai tiure. Tlie "lnspection
lv1emo,, must
be signed both by' the arrestee and thc police officer effccting the anesr and its
iopy proyided to rhe
AITCStCC.

e' The arrestee should be subjected to medical eramination by a trained doctor

every .lg hours during
" his deterttion in custody by a doctor on the panel of appror,ed doctors appointed
b1, the. Director;
Health Services ol the'State or Union Tcnitory conccnrcd- The Dircctoi, Health
Services should
prepare such a panel for all iehsils and districts as rvell.

f. Copies of all docutllents including the menio of arrest refened to abovc should
be sent to the Illaqa
N4aqistratc lor his rccord.

g' The arrestee rnay be permitted to lneet his larvyer during interrogation, though not throughout
intcrrogatiorr.

h' A Police Control Room should be provided at :all districts and Srate Headqqarters where
information regarding the arrest'and the placc of custody of the arrestee shall be
cornurunicated by the
ofltcer causing the anest, within 12 hours of effccting rhe arest and at the police
Control Roorn it
should be displayed on a conspicuous Notice Board.

Failure to comply u'ith the requirements herein abovc-mentioned shall apart from
rendering the
official concerncd liable for depa(mental action, also rcnder hirn liable to be
iunished for contempt of
court and the proceeding for contempt of court rnay bc instituted in any High Court
ol the country
having territorial jurisdiction ovcr the matter.

Thc recommendations of D. K. Basu Case have nou,bcen incorporated in Criminal procedure

Cotlc by Criminal Proccdurc Cotlc (Amcnrlnrcnt) Act, 2005.

70
-

Artit'le 23 of the constitudon of India -: Prohibition of traffic in human beings and forced
l:rhour:

Article 23 of the consiitulion traffic in hurnan beings and begar and o&er similar forins of forced
labour. The second part of the article declares that any contravenl.ion of this provision shall be an
offeuce punishable in accordance with lau'" Clause(2), however pennits the state to irnpose
conrpulsoru scn'ices forpublic purposes. and in irnposing such senice the State shall not make any
discrimination on grounds only on religion, race, caste or class or any of them.

Article 23 also prohibits the syslern,of 'bonded labour' because it is a form of forced labour u,ithin the
nteatring of this'act.In'Bandhu N'Iukti il'Iorcha v. Union Of India the Supreme Court held that q,hen
an action is initiated in the court through public interest litigation alleging the existence of bonded
labour the Govcntment should welcome it as it ma-y give the Govemment an opportunity to cxamine
whether bonded labour systent cxists and as u,eak as to. take appropriate steps to. eradicate that system.
This is the constitutional obligation of the Govcrament under Article 23 u.hich-prohibits 'forced
labour'' in any form. Article 23 has abolishcd the sysrern of bonded labour but unfortunately no
serious effort rrias made to give effect to this Article. It rvas only in 1976 that Parliament enacted the
Bonded Labour System.(Abolition) Act, 1976, providing for the abolition of,bcnded labour sysrcm
rvith a view to prevenilngthe economic and phy'sical exploitation of rveaker section of rhe peopl.e.

Pco;tlc's Union for Democratic Rights and othcrs Ys. Union of Inrlia anrl others, bondcd labour
has been defined as "when a person provides labour of service to another for remuneration rvhich is
less than thc minimum wagc, the labour or service provided by him clcarly falls lvirhin the scope-and
ambit ol thc rvords "forced labour" under Article 23 (of the Constitution of India)."

Article 2-l Prolribition of employ,ment of chlltlr.t'n in factorics. rtc.

No child bclor.v the age of fourteen )iears shall be employed to work in any factory or minc or engagecl
in any other hazardous employment.

TQdayls children are-tomorrbrv's citizen- Herrce, car€ must be taken to safeguard the interest of the
children. The en,ployment of chil&en act, I 938, the Fictories Act, I 948, rhe lv{ines Act, 19-52 anrl the
Apprentices Act, l96t are somc of'the enactment to protect the children from exploitation.

\Yith reference to dccirlcrl cascs cxplain the scope of thc fundamental rights to frecdonr
of religion under Indian constitution. January ,2012,il{arks :15
r\rticlrs 25-28 dcalwith Right fo Frccrlom of Rclision:-
Risht to Frecdom.of Relision:-
Art.25. Freedom ofconscience and free profession, practice and propagation ofreligion
Art.26. Freedom to manage religious affairs
Art.27. Freedom as to paynent of taxes lor promotion of any particular religiori
Art.28. Freedom as to attendance at religious instruction or religious rvorship in certain
education institutions

Tlie rvord "secularistn" uas inserted in the Preamble of the Constitution by the 42nd Amendment
Act",1916. Later. in S.R. Bommai v Union of Intlia (AIR 1991 SC 1918), the Supreme Court held
thlt sccularisur is a basic feature of the Constitution.
Articlc 25 (l) guarantees the frccdom ol conscious and rhc right to profess. practice and propagarc
rcligion subject to rcasonablc restrictions. In landrrark judgments in National Anthcm casc (AIR
1956 SC 282) the Supreme Court has hcld tlrat a pcrson cannot bc compclled to sing rhc Narional

71

z1
el
[]
u, ]
 Anthem if he has genuine reli-sious objcctions and that Brahmins do not have
a monopoly over
perlonning pujas in remples-

In usmanbhai Hasanbhai v/s State (AIR 1981 Guj, a0) A larv

made ro regulare rhe slaughtering of
animals rvill be valid because slaughtering of anirnals in *activity and not religious in
nature. ".ono,nic
ln Sarla N'Iutlgal v/s union of India {(1995) 3 SCC 635} justice Kuldip
Singh has obsened rhar.
marriage, succession and like matters of a secular charactei ir.rnot
be brought u,ithin the guarantee
enshrined under Articl es 25. 26 and 27 .

In A'S'Nariyanan Dcckshitalu v/s statc of A.P.(AIR 1996 sc 1765).The

supreme Courr has rnade
that the appointment of archaka (priest) is a secular acrivi{y and
lT,'::: therefore ir can be regulated
Dy raw.

ln l\I.P.copalkrishnan Nair!'/s Statc of Kerala(2005 AIR SCw 2292)

tyc supren.rc courr has made
it clear thai managemcll of tcmplc is a secular acr ahd it can
be .o,rilii"o ;;;; ;;;;. No doubt.
siate cannot interfcre u'ith thc freedom of person to profebs, practice and propogae his religion
'secular but the
activities connected thcre$,irh may be .or,roit.JUyit";;
In Ismail Farurltri v Unio4 of Inrlia (1994 6 SCC 360) ir u,as
held thar rhc Starc can in the excrcise
of its sovcreign power, acqrt irc places of u'orship. Il has also.been
held by the Suprenic Court that the
right to religious lreedom <ioes not extend to ireating noise or
disturbing pubiic p"o." und o.ar..
Forced religious conversion is also not allor.ved in the name
religlo.n extends only io those ac.rivities rvhich are the esserce
of religious r."Jai,". rr":;; to practice
of ieligion and does not coyer secular
aclivitics associatcd rvith rcligion. Furthcr, thc Srate is free to makc lar"s
for social re lonn eycn where
such laws clash rvith religioui lreedont and practice.

'rn }Iohtt.Hanif Quare.shi vis Stareof Bihar,(AIR 1958 sc 73t) THE PETITONER
CLAIMED
THAT THE SACRIFICE OF CO\\iS ON THE OCCASION OF Bakrid
was an esscnriat part of his
religion and thercfore thc statc law lorbidding the slaughter of
corvs u,as violative of his right to
practise religion. The courl rejected this argument and held
that the sacri{ice'of cow on rhe Bakrid dya
'was not an essenlial part of lv{oharnmedan religion and hence could -stat.
I -' be prohibited uf under
Arricie 2.112)(a) of rhe consrirurion of India.

Article 26 guarantccs organizcd rcligious bodies to nlanage thc affairs

of their .religion, rcligious
institutions and properly conncctcd rvith their religion. It slhould
be noted that Article 26 docs not
create new rights but protects the continuance of existingrighs.

Article 27 provides Lhat no person shall be cornpelled to pay any' tax

lor the prornotion or
ruaintenance of any particular religion. This, however,
does ,oi prerert rhc charging
of levies, for
example, under thc Orissa Hindu Religious Endorvmenrs Act, 1939.

Article 2s (l)
prohibits the irnpaning of religious instruction in any educarional institution
rvholly
maintained out of siate funds. InAruna Roy v union of India (AIR 2002 sc 3176 it was held that
the National Curriculum for Framework for School Education. 2000 )
r.vhich provided for value
education based on teachings olvarious religionswas notviolative
of Article 2g.

72