Right to Life and Personal Liberty

Article 21

The Article 21 which forms part of the Fundamental Rights enshrined in the Constitution envisages that, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Thus Article 21 of the Constitution provides for the Protection of life and personal liberty for all individuals against arbitrary deprivation of one’s personal liberty and life by the State (Here State include Indian Union and various States). Article 21 applies to all natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right if he happens to be in India at the time of any action or inaction. (However, he will have no right to settle as a Citizen in India.)

Over the years, because of the Judicial activism and creativity, this Article 21 has evolved into a safeguard mechanism in the hands of Citizens against the arbitrary deprivation of life and liberty by the State.

It should be noted that the evolution has a long history. In the case of A.K. Gopalan v. The State of Madras,1950 the Supreme Court held that personal liberty means the “liberty of the body” which is freedom from arrest and detention from false detention. The Supreme Court also opined that the meaning of the word ‘law’ means State made law only. And stated that the extent of protection of guarantees such as the liberties of a person or their fundamental rights depends upon the form and object of the State action and not upon the freedoms guaranteed to the person.

Kharak Singh v. State of Uttar Pradesh

In the case of Kharak Singh v. State of Uttar Pradesh, 1962, the court adopted a wider meaning of personal liberty and said that it will include all the rights which are given under Article 19(1). In this case Chief Justice Sinha and other Justices (excluding J Koka Subbarao) opined that the UP Police regulations (These regulations provided for surveillance powers, including powers of domiciliary visits against the habitual offenders or people likely to become criminals.) plainly violated Article 21 since the right to life could only be restricted by ‘law’; and the executive regulations of the Uttar Pradesh Police did not fall within the definition of ‘law’. They struck down the relevant provisions of the Uttar Pradesh Police Regulations with respect to ‘domiciliary visits’ as unconstitutional. This judgment highlights a point that Police regulations are not equivalent to Laws passed by the Legislatures.

However, the Court did not accept the theory that Right to Privacy was a Fundamental right. The Court rejected the argument that the psychological effect of the picketing curtailed freedom of movement under Article 19(1)(d), finding that the concerned person or persons visiting the house would not be aware of the picketing. Because the Judges opined that shadowing of the “history-sheeters” did not cause any hindrance to their movement, and that any effect on privacy was irrelevant as the right to privacy was not a fundamental right.

Notwithstanding the opinion of other Judges, Justice K Subba Rao expressed his dissenting voice and he opined that the infringement of the right to privacy prevented a person from expressing his or her innermost thoughts. He held that the right to freedom of movement, protected under Article 19(1)(d), had been violated as this right included not just freedom from physical obstructions to movement but also the right to move freely, without undue restrictions. He considered that shadowing by the police constituted a restriction on this freedom of movement. Justice Subba Rao therefore considered that the regulations in their entirety violated fundamental rights and were unconstitutional.

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Later various Supreme court Judgments have expanded the scope of this Article by interpreting the Article 21 in such way that the right to life includes the right to live with human dignity, the right to livelihood, and the right to a healthy environment, right to shelter, right to Privacy etc. Like that now Personal liberty included the freedom to move freely in the Country within and without, the freedom to choose one’s place of residence, and the freedom to engage in any lawful occupation or profession constitute fundamental rights.

Maneka Gandhi vs Union of India

However, as per the Article 21 itself reasonable restrictions can be imposed by the State on the rights guaranteed under Article 21 in the interests of public order, national security, public health, or morality. But the Supreme court in the case of Maneka Gandhi vs Union of India, placed some restrictions on the application of “reasonable restrictions” to deprive the individual of his rights.

Maneka Gandhi Challenged the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered the government to impound the passport of a person, in the interest of the general public. It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned section didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.

Supreme court said that the Reasonable restrictions must be fair, just, and in accordance with the principles of reasonableness and proportionality. It cannot be arbitrary, oppressive, or unreasonable. And the Court also said that the right to life includes right to travel within and without India.

Supreme Court held that the right to life and personal liberty under Article 21 is not limited to mere animal existence but includes the right to live with dignity.

It was further held that as the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding passport under the Passport Act. BHAGWATI, J., observed: The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that it must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Accordingly the Order impounding the Passport of Maneka Gandhi was dismissed.

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Sunil Batra etc. vs Delhi Admin

And Supreme Court in the case of Sunil Batra etc vs Delhi Administration and ors 1978 held that the “right to life” included right to protection of a person’s tradition, culture, heritage and all that gives a meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health. And also, it includes the right to lead a healthy life so as to enjoy all faculties of the human body in their prime conditions.  

Habeas Corpus Petition case, 1976

In A.D.M. Jabalpur v. S. Shukla, 1976, a Habeas Corpus petition filed during Emergency days of 1975-77 the Supreme Court held that Article 21 was the sole repository of the right to life and personal liberty. And therefore, if the right to move any court for the enforcement of that right which was suspended by the presidential order under Article 359, the detenu would have no locus standi to a writ petition for challenging the legality of his detention.

44th Amendment act, 1978

But later in order to subvert the Supreme Court decision in the above case, the Janata Government brought in the Constitution 44th Amendment act, 1978, amending article 359 to the effect that during the operation of the proclamation of Emergency also, the remedy for the enforcement of the Fundamental Rights guaranteed by article 21 would not be suspended under a Presidential Order.

Right against Illegal Detention

In the case of Joginder Kumar v. State of Uttar Pradesh, 1980, the petitioner was detained by the Police and his whereabouts were not told to his family members for a period of five days. Taking the serious note of the police’s high headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines governing arrest of a person during the investigation:

An arrested person being held in custody is entitled if he so requests to have a friend, relative or other person told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.

Right to Free Legal Aid & Right to Appeal

In the case of M.H. Hoskot v. State of Maharashtra, [1978] the Supreme Court said while holding free legal aid as an integral part of fair procedure the Court explained that “ the two important ingredients of the right of appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise disabled from securing legal assistance. This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.

In other words, an accused person at least where the charge is of an offense punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel. Counsel for the accused must be given sufficient time and facility for preparing his defense. Breach of these safeguards of a fair trial would invalidate the trial and conviction.

Right to good reputation

In the case of Kiran Bedi & Ors vs Committee of Inquiry & Anr 1989 Supreme Court held that “good reputation was an element of personal security and was protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to human society. And hence Good reputation is part of Right to life granted in the Fundamental rights.”

Francis Coralie Mullin vs The Administrator

The Apex Court in the case of Francis Coralie Mullin vs The Administrator, Union of India 1981, also observed that: “The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

R.C. Cooper v. Union of India (1970)

Another case of R.C. Cooper v. Union of India, 1970, which is in fact the famous Banks Nationalization case also dwelt into the arena of Fundamental rights of Citizens even though the Supreme Court upheld the acquisition of 14 Banks by the Central Government.

The Court ruled that it was not binding upon the Supreme Court to reject the claim for enforcement of a shareholder’s fundamental rights if, in the process of a violation of his rights, the rights of his company were also being violated. This Judgment recognized Company as a legal person.

It was understood that if the shareholder’s rights were to be enforced by the Supreme Court, then in the process, it would mean that the Supreme Court was inevitably enforcing the rights of the company in which he was a shareholder, meaning that the fundamental rights were being enforced for a non-citizen. But the Court clearly stated that even if the enforcement of the fundamental rights of the shareholder would mean the enforcement of the rights of the company, it wouldn’t stop the Supreme Court from protecting the rights of the citizens. Thus a Company has become of legal person having fundamental rights of its own through this Judgment.


Right to Livelihood

The Supreme Court in Olga tellis v. Bombay Municipal corporation 1986 popularly known as the “Pavement Dwellers Case” a five-judge bench of the Court emphasized that that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. “That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life.”

The court further opined: “The State may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.” Thus, the Supreme Court held that the eviction of pavement dwellers without providing alternative arrangements would violate their right to life and personal liberty.

Right to shelter

In the case of Shantistar Builders v. Narayan Khimalal Totame 1990 the Court held that: “The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view. ..“For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.”

Chameli Singh v. State of U.P

In Chameli Singh v. State of U.P. (1996) a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. The Court observed that: “Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being.”

Right to Privacy

Dictionary meaning of privacy reads as follows, “right to be let alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”

The right to privacy is considered by the Supreme Court as a ‘penumbral right’ under the Constitution and as an integral part to the fundamental right to life and liberty.

K.S. Puttaswamy v. Union of India

In the case of K.S. Puttaswamy v. Union of India 2018 (AADHAR case) the Supreme Court recognized the right to privacy as a fundamental right protected under Article 21. The court held that privacy is an essential aspect of personal liberty and dignity and is intrinsic to the entire constitutional scheme.

However, the Court upheld the Aadhaar Act as constitutional by a 4:1 majority. Setting aside privacy concerns, the Court observed that the State can restrict the right to privacy if such restriction is proportional to a legitimate State aim. Reasoning that the efficient and transparent distribution of benefits and services to disadvantaged citizens is a legitimate aim, the Court concluded that the Act did not violate the fundamental right to privacy. Further, it opined that there are enough safeguards in place to prevent Aadhaar from facilitating mass State surveillance. Even though it upheld the Act as a whole, the Court struck down individual provisions like mandatory bank-linking and metadata collection as unconstitutional.  A review petition on the above Judgment was dismissed in 2021.

PUCL v. Union of India, Telephone tapping case

In the case of People’s Union For Civil Liberties vs Union Of India & Anr 2005, the Supreme Court observed that: “We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the court issued procedural safeguards to be observed before restoring to telephone tapping under Section 5(2) of the Act.

The court has further ruled that Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The procedure has to be just, fair and reasonable.”

R.M. Malkani v. State of Maharashtra

In R.M. Malkani v. State of Maharashtra 1973 case the Supreme Court held that the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. However, the protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.

(Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885. The Section lays down the circumstances and grounds when an order for the tapping of a telephone may be passed, but no procedure for making the order is laid down therein.)

R. Rajagopal vs State Of T.N 1994

In R. Rajagopalan v. State of Tamil Nadu case the right to privacy of citizens was dealt with by the Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent – whether truthful or otherwise and whether laudatory or critical.

(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.

We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident being publicized in press/media.”

Govind v. State of Madhya Pradesh

In the case of Govind v. State of Madhya Pradesh, 1975 the Supreme Court took an elaborative appraisal of the right to privacy. In this case, the court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”

The court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Justice Mathew observed in the instant case, “The right to privacy will, therefore, necessarily, have to go through a process of case-by-case development. Hence, assuming that the right to personal liberty the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them that one can characterize as a fundamental right, we do not think that the right is absolute…..assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest.”

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection for maintaining good health, preservation of the sanitation etc.

In the case of M.C. Mehta v. Union of India 1988 the Supreme Court ordered the closure of tanneries that were polluting water.

In the case of M.C. Mehta v. Union of India 1997 the Supreme Court issued several guidelines and directions for the protection of the ancient monument of Taj Mahal from environmental degradation.

In the case  of Citizens Welfare Forum vs Union Of India & Ors 1996, the Court took cognizance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. The Court issued several directions to minimize the pollution.