The Author, Rahul Gupta, is Practicing Advocate at the Delhi High Court, New Delhi.

As rightly said “the Indian Constitution is known as a living document because it is not static and ever evolving and having survived after 103 amendments and still moving ahead to match up the needs and requirements of the society”.

As said by Justice Field in the celebrated case “Munn v. Illinois” the word “life” is more than mere animal existence and it embraces within itself not only the physical existence but also the quality of life. The expression “personal liberty” not only means freedom from arrest, detention and false or wrongful confinement but also covers those rights and privileges that are essential to achieve happiness with freedom.

Supreme Court of India since 1950 when it examined the “Right to personal liberty” under Article 21 in the case of A.K. Gopalan v. State of Madras: AIR 1950 SC 27 (Preventive Detention Act, 1950) has come a long way through a journey of various judicial pronouncements by the Supreme Court. In A.K. Gopalan case, the Supreme Court narrowed down the meaning and scope of “personal liberty” and held that the term “personal liberty” meant only freedom of the physical body and that Articles 19 (1) (d) and Article 21 have to treated separately.

Thereafter and not agreeing with the ratio in A.K. Gopalan case, Supreme Court has expanded and widened the meaning and expression of “personal liberty” in many cases to reach an interpretation that could best protect the liberty and freedom of an individual. Next in line came the judgement in the famous case of Kharak Singh v. State of UP: AIR 1963 SC 129(Regulation 236 of Chapter XX of the U.P. Police Regulation) where Supreme Court considered the said regulation as ultravires Article 21 and Article 19 (1) (d) of the Constitution and held that domiciliary visits by the police every night to check and monitor the doings of Kharak Singh were violative of his right to personal liberty and right to freedom of movement as “personal liberty meant much more than mere animal existence”.

In R.C. Cooper v. Union of India: AIR 1970 SC 564- (Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969) Popularly known as the Bank Nationalisation Case, the apex court overruled the ratio laid down in A. K. Gopalan case and rejected the mutual exclusivity theory. The court gave preference to the effect test over object test. In case effect of any act violates the fundamental rights of citizens, it shall be violative of the Constitution and liable to be struck down. The court held that the term property in itself constitutes the rights, liabilities etc. that accrue to the property. The power to acquire property was held to be an independent power of Parliament and it required no separate legislation under List II or List III. The Supreme Court ruled that the state can always create a partial and absolute monopoly.

Then came the judgement of Supreme Court in the case of Maneka Gandhi v. Union of India­­­: AIR 1978 SC 597 (Passports Act, 1960) wherein widest possible interpretation was given to words and expression “personal liberty” observing that the expression “personal liberty” in Article 21 is of widest amplitude and it covers variety of rights which constitute the personal liberty of a man and Article 21 and Article 19 go together and they mutually co-exist to the extent that if there is a law prescribing a procedure for depriving a person of his personal liberty and though there is no infringement of the fundamental right under Article 21 but any such law and procedure would have to meet the challenges of Article 19.

The fundamental right to life and personal liberty encompasses within itself the following rights as subheads:

  1. “Right to live with human dignity” is the roadmap to several other rights that have been recognised under Article 21. It was the first right under Article 21 which received supreme consideration and the Supreme Court held for the first time that any law that deprives a person of his/her life or personal liberty must pass the test of reasonability and the law should be just and fair and must provide for a procedure. The law must satisfy the requirements of Article 14, Article 19 read with Article 21. The Right to live with dignity includes adequate nutrition, clothing, shelter over the head with facilities of reading, writing and to express one self. (Maneka Gandhi v. Union of India­­­: AIR 1978 SC 597, Francis Coralie v. Union Territory of Delhi: AIR 1981 SC 746and Bandhua Mukti Morcha v. Union of India: AIR 1984 SC 802).
  2. “Right to livelihood” Right to life includes right to livelihood because no person can live without the means of living. It has been held by the Supreme Court that imposition of Tehbazari by the Municipal Corporation is in violation of rights of hawkers to carry on the business fetching them livelihood.(Olga Tellis v. Bombay Municipal Corporation: AIR 1986 SC 180 and Sodan Singh v. New Delhi Municipal Corporation: 1989 4 SCC 155).
  3. “Right to Education”. Very recently, the Supreme Court recognised right to education as one of the key rights thus giving it place under Article 21A of the Indian Constitution. The right to education is fundamental right of a person as it directly flows out from right to life. Earlier this right to education was covered under directive principles of state policy but with the change in needs and circumstances in the society, it has been now categorised as fundamental right (Mohini Jain v. State of Karnataka: AIR 1992 SC 1858 and Unnikrishnan v. State of Andhra Pradesh: 1993 SCC (1) 645)
  4. “Right of prisoners and right against illegal detention”. The Article 21 is available to each and every person and not only to the citizens of India. It recognises the rights of the arrested persons by providing a fair and reasonable mechanism to be followed in confinement of persons so that no person is illegally detained. Even a person convicted of any offence, though deprived of freedom, but he is well entitled to rights guaranteed under Article 21 of the Constitution. Even solitary confinement of a person in jail was held to be violative of Article21 (Sunil Batra v. Delhi Administration: 1980 SCC (3) 488). In another important case (D.K. Basu v. State of West Bengal: 1997 1 SCC 416), Supreme Court laid down the guidelines to be followed by the concerned authorities in cases of arrest and detention.
  5. “Right to legal aid and right to speedy trial”. Litigation can become unthinkably expensive affecting the rights of indigent persons to have their just and fair claims adjudicated in the courts of law. In view of the same, the Supreme Court has provided liberty to poor persons to apply to the state for free legal services and it shall be the duty of the state to provide assistance to such poor persons and have their claims adjudicated without burden of legal fees and expenses. Right to free legal aid has been held to be the fundamental right and it is the duty and obligation of any trial court to inform the accused about his right to free legal aid. The right to speedy trial has also been held as inalienable right of every citizen of the country (Hussainara Khatoon v State of Bihar: AIR 1979 SC 1369 and Khatri v. State of Bihar: 1981 SCC (1) 627)
  6. “Right against sexual harassment at work place”. The Supreme Court has laid down important guidelines to protect and prevent any kind of sexual harassment of a working woman at her workplace in the judgement reported (Vishakha v State of Rajasthan: 1997 (6) SCC 241) where after the legislature has also promulgated Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  7. “Right to choice of sex”. The 5 Judges Constitution Bench in the case of Navtej Singh Johar v. Union of India: 2018 (1) SCC 791 has declared ultravires section 377 of Indian Penal Code, 1860, thereby striking down criminalization in same sex relations between consenting adults. As a result of the above, the LGBT individuals are permitted to engage in consensual intercourse. This is said to be another milestone in the journey of Article 21.
  8. “Right to clean environment”. Article 21 includes right to live life of dignity in healthy environment with proper sanitation system and free of pollution (Vellore Citizens’ Welfare Forum v. Union of India: 1996 (5) SCC 647).
  9. “Right to Privacy”. Under Article 21, the right to privacy is fundamental right as held by 9 judges constitution bench in the case (Justice K.S. Puttuswamy (Retd.) v. Union of India (2017) 10 SCC 1)
  10. “Right to die with dignity”. The Supreme Court has now allowed passive euthanasia under some exceptional circumstances and strict monitoring of the court. In the above judgement, the court has permitted “Living Will” of a patient to withdraw medical support in case if the person concerned goes into irreversible state of coma. Though active euthanasia where something is done to end the life of the patient is not permissible but passive euthanasia when something is not done that would preserve the patient’s life is held to be the fundamental right under Article 21. (Aruna Ramchandra Shanbaug v. Union of India: 2011 (4) SCC 454 and Common Cause v. Union of India: (2018) 9 SCC 382)
  11. “Right to Disclosure of dreadful diseases”. Every person has been held entitled for all human rights including the right to be told about any dreadful and deadly disease. The lady proposing to marry a person is entitled to be informed about her fiancé suffering from HIV + from the doctor in whose treatment the husband is covered. There is no infringement of the fundamental rights under Article 21 if the doctor so informs the lady.
  12. “Right to choose life partner”. Very recently, Supreme Court has held the right to choose his or her life partner as fundamental right under Article 21 and directions given to authorities to take all possible preventive steps to combat honour killings and related crimes (Shakti Vahini v. Union of India: 2018 (7) SCC 192 ).

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