Concept of Article 21

7/29/2019 Concept of Article 21

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Application of Concept of Damages to Article 21

The Constitution of India provides Fundamental Rights under chapter III .These

rights are guaranteed by one of these rights is provided under article 21 which reads as

follows: Article 21, Protection of life and Personal liberty: No person shall be deprived

of his life and personal liberty according to procedure established by law.

Though the phraseology of article 21 starts with negative word but the word No

has been used in relation to the deprived. The object of fundamental right under article 21

is to present encroachment upon personal liberty and deprivation of life except according

to procedure established by law. It clearly means that this fundamental right provided

against state only. If an act of private individual amounts to encroachment upon personal

liberty and deprivation of other person. Such violation would not fall under the

parameters set for article 21, in such remedy for aggrieved person would be either under

article 226 of constitution or under general law. But with private individual supported by

the state infringes the personal liberty or life of another person, act will certainly under

the ambit of article 21. Article 21 of constitution deals with prevention of encroachment

upon persons deprivation of life of person. The fundamental right guarantees article 21

relates only to the acts state or acts under the authority of state which are not according to

procedure establishes by law. The main object of article 21 is that before a person is

deprived of his life or personal liberty and procedure established by law must strictly

follow. Right to life means the right to lead meaning and dignified life. It does not have

restricted meaning. It is something more than surviving or animal existence. The word

life cannot be narrowed down and it will be available to citizen of the country. As far as

liberty is concerned, it means freedom from physical restraint of person by personal


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incarceration or other includes all the varieties of rights other than those provided under

article 19 of the constitution. Procedure established by law means the law enacted by the

state. The fundamental right under article 21 is one of the most important articles under

the constitution which has been described as heart of fundamental right by the Apex

Court.1

A new judicial trend has emerged. Damages have been awarded against

government by Supreme Court and High Court through writ petitions under articles 32

and 226, for the infringement of fundamental Rights, especially of article 21.

Supreme Court has observed inRudal Shah

2

, Bhim Singh

3

andD.K Basu

4

that

However it can not be understood as laying law that in every case of tortious

liability recovers must be had to a suit. When there is negligence on the face of it and

infringement of article 21 is there it cannot be said that there will be any bar to proceed

article 226 of constitution. Right to life is one the basic human rights guaranteed under

article 21 of constitution.

Damages have also been awarded for medical negligence in government

hospitals. In Instant caseJacob George v. State of Kerala5,the Supreme Court has ruled

that article 21 imposes on state obligation to safeguard life employed therein are duty

bound to extend medical assistance for preserving human life . Violation of this duty

amounts to violation of article 21.

Adequate damages can be awarded by court for such violation under articles 32 and 226.

HIV infected blood was transfused in woman patient in hospital maintained by

1. www. legalserviceindia.com

2.

3.

4.5. (1994) 3 SCC 430.


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government corporation. In a case, the court referred to article 21 which guarantees

dignified human existence to Indian and not a mere animal existence. Article 21 confers

right to enjoy all facilities of life .Accordingly, High Court directed payment of Rs.1 lakh

to petitioner by way of damages as public law remedy .This was in addition to whatever

compensation may be granted to her in civil suit.

When the violation of fundamental right are not involved, courts are very

selective in avoiding damages in writ. Calcutta University delayed inordinately

declaration of candidate. The writ petition in High Court under article 226 for damages

for negligence of University. Holding that matter ought to be agitated in civil court and

not through writ petition, Supreme Court observed that in its writ jurisdiction, Supreme

Court or High Court would not award damages against public authorities merely because

they have made some order which turns out to be ultra virus, or there has been some

inaction in performance of duties unless there is malice or conscious abuse. Before

exemplary damages can be awarded it must be shown that some fundamental right under

article 21 has been infringed by arbitrary or capricious action on the part of public

functionaries and that suffer was helpless victim of that act.

If the damages were not to be granted, article 21 would be reduced to nullity, a

mere rope of sand.6 But since the matter as to the responsibility of police officers was

still under investigation, the court did not decide the issue. Belatedly though, justice has

finally caught up with the perpetrators of the blinding in Bhagalpur. The three Police

officers who were involved in shocking incident were finally convicted for taking the law

into their own hands.7

6.Khatri v. state of Bihar, (1981) 2 SCC 493 at P. 504.

7. Justice of Last Editorial, The Hindustan Times, 3-9-1987.


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It was pointed out that article 21 would be denuded of its significant content if the

power of court was limited to passing of orders of release from illegal detention. The

Supreme Court reasoned:

One of the telling ways in which the violation of that right can reasonably be

prevented and due compliance with the mandate of article 21 secured, is to mulct its

violators in the payment of monetary compensation. Administrative sclerosis leading to

flagrant infringements of fundamental rights cannot be corrected by any other method

open to the judiciary to adopt. The right to compensation is some palliative for unlawful

acts of instrumentalities which act in the name of public interest and which present for

their protection the powers of state as a shield Therefore, the state must repair the

damage done by its officers to the petitioners rights. It may have recourse against those

officers.8

The Supreme Court has given the new meaning to right to life. Constitutional

expert K.K. Venugopal aptly summarized in one of his articles. A whole new catena of

rights was read into article 21, which embodies the right to life and liberty. These, in

various decisions, have been held to include the right to legal did, right to privacy, right

against sexual harassment of women, right to education and right to clean and healthy

environment.

The recent decision by justices Altamas Kabir and Markandey Katju, in a case,

saw a reiteration of earlier ruling of apex court that reputation of a person was part and

parcel of his right to life.9

8. (1983) 4 SCC 141 at page 147-48, Para 10.

9.Deepak Bajaj v. State of Maharashtra.


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If in 1978, in Maneka Gandhi case, it ruled that the expression life did not mean

mere animal existence but with dignity, it added another legal leaf in 2008 in Deepak

Bajaj case, when it said right to life encompassed a persons reputation as well.

The new meaning of article 21 helped the court in subsequent years to give relief

to prisoners. It asked the government to clean up Ganga and Yamuna as it read right to

clean drinking water a part of right to life. It banned the child labour, for it found that this

stunted right to life. It ordered closure of polluting industries as it saw the noxious fumes

stifling citizens right to clean air and environment, which again included within the

ambit of right to life.

10

The Supreme Courts directive to union government to expediously dispose of

action on petitions filed by 26 convicts on death row for the Presidents pardon is

indicative of its serious concern over their right to life and personal liberty.

A Bench consisting of justice Harjit Singh Bedi and justice J.M. Panchal has ruled

that if the executive authorities, as a rigorous self-imposed rule, are not inclined to take

action mercy petition within three months from the date of its submission to the

President, the condemned convict would be free to apply for commutation of his death

sentence to life imprisonment as otherwise it will be volatile of his right to life and

personal liberty guaranteed under article 21 of the constitution.11

Over the years, the Supreme Court has always sought to protect the prisoners

rights while taking care of the constitutional niceties. In Sunil Batra v. Delhi

Administration12, the question before the court was:

10. 17th Nov, 2008, The Times of India.

11. 30th Sep, 2009, The Tribune.

12.


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Whether putting a person behind bars will end the judicial process if not, what

segment is open for judicial intervention commendably, it held that there is no total

deprivation? of prisoners right to life and liberty. The safe keeping in jail custody is

jailors limited jurisdiction.

The apex court has given a new dimension to the writ ofhabeascorpus which is

fundamental instrument for safeguarding individual freedom against arbitrary and

whimsical state action. While in Sunil Batra I, the constitution Bench had crystallized a

prisoners legally enforceable rights, in Sunil Batra II, it had radicalized the procedure for

the enforcement of his rights.

The declaration of fundamental rights in the Constitution is meaningless unless

there is effective machinery for the enforcement of the rights. It is the remedy, which

makes the right real. If there is no remedy there is no right at all. The founding fathers of

constitution, therefore, provided for an effective remedy for the enforcement of these

rights under article 32 of constitution, which itself is a fundamental right.

In the last few years through judicial activism the scope and ambit of these rights

has been widened. The Supreme Court has re-enunciated the state liability in case of

violation of these rights and thus the age-old British concept of sovereign immunity 13

has been eroded. One of the impacts of this new approach of Supreme Court through

judicial activism has been that in case of violation of fundamental rights of individual it

has granted monetary relief to one who might have suffered unduly or illegally and

developed the concept ofpublic accountability. A study of the following cases will

demonstrate this trend of the Supreme Court.

13. Kasturi Lal Ralia Ram v. State of U.P., AIR 1965 SC 1039.


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Khatri v. State of Bihar14 popularly known as Bhagalpur Blinding case was the

first case where the question of granting monetary relief was considered by the Supreme

Court. In this case, it was alleged that the police had blinded certain prisoners depriving

them of their right to life and liberty. The question posed before the court was whether a

person who has been deprived of right to life or personal liberty by the state, could be

compensated by granting monetary relief. Bhagwati, justice answered it in the affirmative

by raising a counter thus:

Why should the court not be prepared to forge new tools and devise new

remedies for the purpose of indicating the most precious of the precious fundamental

right to life and personal liberty?15

The Supreme Courts reticence in granting monetary relief despite its formulation

of justification for adopting such a tool was got over by it in Rudal Shah v. State of

Bihar16 wherein it granted monetary relief of Rs. 35000/- to the petitioner against the

lawless act of Bihar government which kept him in illegal detention for over 14 years

after acquittal.

It was pointed out that article 21 would be denuded of its significant content if the

power of the court was limited to passing of orders of release from illegal detention. The

Supreme Court reasoned:

One of the telling ways in which violation of that right can reasonably be

prevented and due compliance with the mandate of article 21 secured, is to mulct its

violators in the payment of monetary relief. Administrative sclerosis leading to flagrant

14. (1981) 1 SCC 627.

15. Ibid., at P. 630, Para 4.

16. (1983) 4 SCC 141.


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infringements of fundamental rights cannot be corrected by any other method open to the

judiciary to adopt. The right to compensation is some palliative for unlawful acts of

instrumentalities which act in the name of public interest and which present for their

protection the powers of the state as a shield Therefore, the state must repair the

damage done by its officers to the petitioners right. It may have recourse against those

officers.17

In the decision from Rudal Shah18 to Bhim Singh19, the court laid down no basis

for quantification of the amount of exemplary costs. And perhaps this was the reason that

the amount monetary compensation varied in these cases. The discretion to award

monetary relief for the gross violation of article 21 was left to the individual judge who

decided the case.

The Supreme Court in Peoples Union for Democrat Rights v. State of Bihar 20

laid down the working principle for the payment of damages to the victims of ruthless

and unwarranted police firing. In the case, about 21 persons including children died and

many more injured due to the unwarranted firing of police. The Supreme Court observed:

Ordinarily in the case of death, the monetary relief of rupees 20000/- is paid.

We may not be taken to taken to suggest that in case of death the liability of the

wrongdoer is absolved when monetary relief of rupees 20000/- is paid. But as a working

principle and for convenience and with a view to rehabilitating the depends of deceased

17. (1983) 4 SCC 141 at PP. 147-48, Para-10.

18. Ibid.

19. (1985) 4 SCC 677.

20. (1987) 1 SCC 265.


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such monetary relief is being paid.21

The court further added that without prejudice to any just claim for compensation

that may be advanced by the relations of the victims who died be advanced by the

relations of the victims who had died or by the injured persons themselves, for every case

of death, compensation of rupees 20000/- for every injured persons, compensation of

rupees 5000/- shall be paid.22

The working principle was not appropriate. Where life of person was lost, his

dependents were to be paid only the, eager sum of rupees 20000/-. The Supreme Court,

while evolving the working principles of granting monetary relief, has also failed to

differentiate between the major and minor injury to the limb or body of person

concerned. It appears the court evolved the working principle of awarding monetary

relief with primary object of rehabitating the victims or their dependents. However it

might happen that person might not die but due to police authority he might lose his eyes,

limb and might become unable to earn his livelihood. Can we say that the suggested

amount of rupees 5000/- to such a person would be sufficient to rehabilitate him? The

obvious answer would be no. Therefore, it is suggested that if life and liberty is to have

some meaning for the millions of Indians, then for rehabilitating persons, who are often

victims of police atrocities, some larger amount should be paid as damages.

The legality or illegality of the detention was irrelevant when it was proved that a

person suffered as a result of police atrocities. This was held so inRajasthan Kisan

21. (1987) 1 SCC 265 at P. 268, Para 6.

22. Ibid.


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Sangthan v. State, 23 it was asserted in this case that right to be treated even during lawful

detention in a manner commensurate with human dignity is a well-recognized right under

article 21 of constitution and if it is found that the police has maltreated any person in

police custody which is not commensurate with human dignity he is at least entitled to

monetary relief for the torturous act by police.

In C. Ramkonda Reddy v. State,24 it was held that suit for damages against state,

when an under trial prisoner in jail lost his life due to failure or neglect of its officers to

perform their duties, will be maintainable. The court pointed out that this is the only

mode in which right to life guaranteed by article 21 can be enforced.

25

In State of Maharashtra v. Ravikant S. Patil26, as the under trial prisoner was

handcuffed and, taken through the streets in a procession by police during investigation,

the court held that article 21 was violated. However, the court further held that the police

officer responsible for the act, acted only as an official and cannot be made personally

liable. The court directed that damages of Rs 10000/- be paid by the state and authorities

may, if consider necessary, hold an enquiry against police officer and then decide

whether any further action is to be taken against him or not.

Nilabati Behra v. State of Orissa27 is yet another case of custodial death where the

deceased was taken into police custody and next day his body was found on the railway

tracks with multiple injuries. The Supreme Court once again reiterated that in case of

23. AIR 1989 Ray 10 at P. 16.

24. AIR 1989 AP 235.

25. Ibid at P. 235.

26. (1991) 2 SCC 373.

27. (1993) 2 SCC P. 767.


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violation of fundamental rights by states instrumentalities or servants, the court can

direct the state to pay damages to the victim or his heir by way of monetary amends and

redressal. The principle of sovereign immunity shall be inapplicable in such cases.

Having regard to the age and income of deceased, the state was directed in this case to

pay Rs. 1,50000/- as damages to the deceaseds mother. The court further held that other

liabilities of respondents or any other person for custodial death remain unaffected. In

other words, damages in civil law or criminal law could still be claimed in addition to

this. The court clarified that public law proceedings are different from private law

proceedings and the award of compensation in proceedings for the enforcement of

fundamental right under articles 32 and 226 of the constitution is a remedy available in

public law.

Justice Dr. A. S. Anand while delivering a separate but concurrent judgment in

this case pointed out in sonorous terms that convicts, prisoners and under trials also have

the right under article 21 of the constitution and the state has strict duty to ensure that a

person in custody of police is not deprived of his right except in accordance with law. 28

Wherever any case of human rights violations as a result of police atrocities has been

brought before supreme court, its has always taken a serious note of it and directed to

make either judicial inquiry into allegations of police atrocities or directed CBI to

conduct an inquiry independently so as to fix the responsibility for the violation of human

rights.29

InD. G. & I. G. of Police v. Prem Sagar30 on the direction of the High Court, the

Session Judge conducted an inquiry in which it was found that the detenue was illegally

28. Ibid, at P. 767.

29.Atzal v. State of Hry., (1994) 1 SCC 425.30. (1999) 5 SCC 700.


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detained by the police for the period of one month. Accepting the findings of the Session

Judge, the High Court awarded Rs. 20000/- as damages for the violations of his basic

human right to life. This was approved by the Supreme Court.

In D. K. Basu v. State of W. B.31, the Supreme Court while disposing of a public

interest litigation considered the important issue of police atrocities and custodial

violence in detail. A. S. Anand, J. while speaking for the court observed:

Any form of torture or cruel, inhuman or degrading treatment would fall within

the inhibition of article 21 of constitution; whether, it occurs during investigation,

interrogation or otherwise. If the functionaries of the government become law breakers, it

is bound to breed contempt for law and would encourage lawlessness and every man

would have the tendency to become law into him thereby leading to anarchism. No

civilized nation can permit that to happen.32

The court suggested two possible safeguards to check the abuse of police power.

firstly, transparency of action and secondly, accountability. In addition to this, the court

also stressed the need to pay attention to properly developed work culture, training and

orientation of police force consistent with basic human values.33

It is submitted that this important decision of the supreme court will certainly help

in curbing, if not in eliminating, police atrocities, Now it is in the hands of administration

to ensure that the requirements as well as the punitive measures suggested by the

Apex Court should be implemented in true spirit. Relying on this case, the Supreme

31. (1997) 1 SCC 416.

32. Ibid, at P. 429, Para 22.

33.


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Court has awarded damages in many cases34 of established violation of fundamental right

to life and personal liberty under 21 of the constitution.35

R. C. Upadhyay v. State of A. P.36 is a case which points out the sad state of affairs

concerning the human right of prisoners. In this case, it was brought to the notice of the

court that a lunatic undertrial prisoner was languishing in jail for over 30 years and no

action was taken by the court of ACMM and jail authorities. Even the Medical treatment

was provided only after the High Court intervened. Thus there had been the total

violation of article 21 of the constitution. The Supreme Court expressing its anguish

pointed out that the authorities are required to act according to law. In this case the

officials broke the law.

Considering the under trials mental and physical health and the fact that he had

known relatives either, the Supreme Court, as an interim measure, directed that a sum of

Rs. 2 Lakh shall be paid by the state by way of donation to Missionaries of charity, where

he was accommodated for the time being. The Supreme Court rightly expressed the

inadequacy of the remedy thus:

Money award cannot, however, renew a physical frame that has been battered

and shattered due to the callous attitude of others. All that the courts can do in such cases

is to award such sums of money, which may appear to be giving of some reasonable

compensation, assessed with moderation, to express the courts condemnation of the

tortious act committed by the state,.37

34. (1997) 1 SCC 429.

35. Peoples Union for Civil Liberties v. UOI, (1997) 3 SCC 433.

36. (2001) 1 SCC 437.

37. (2001) 1 SCC 439 at Para 5.


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From the perusal of the above cases it is evident that the Indian Judiciary has been

very sensitive and alive to the protection of the human rights of the people. It has,

through judicial activism forged new tools and devised new remedies for the purpose of

vindicating the most precious of the precious fundamental right to life and personal

liberty.

The scope of article 21 was a bit narrow till 50s as it was held by the Apex Court

in Gopalans Case38 that the subject matter of articles 21 and 19 (1) (d) are not identical

and they proceed on total principles. In this case the deprivation was construed in a

narrow sense and it was held that the deprivation does not restrict upon the right freely

which came under article 19 (1) (d). At that time Gopalans case was the leading case in

respect of article 21 along with some other articles of the constitution, but post Gopalan

case the scenario in respect of scope of article been expanded or modified gradually

through different decisions of the Apex court and it was held that interference in the

freedom of a person at home or restriction imposed on a person while in jail would

require authority of law. When the reasonableness of a penal law can be examined with

reference to article 19, was the point in issue after Gopalan case, the case ofManeka

Gandhi v. UOI39, the Apex court opened up a new dimension and laid down that can not

be arbitrary unfair or unreasonable one. Article 21 imposed a restriction upon the state

where it prescribes that procedure for depriving a person of his life or personal liberty.

This view has been further relied upon in case ofFrancis Coralie Mullin v. The

Administrator, UT of Delhi40 & otheras follows:

Article 21 requires that no one shall be deprived of his life or personal liberty

38.

39.40.


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except by procedure established under this procedure must be reasonable, fair and just not

not arbitrary, whimsical or fanciful. The law of preventive detention therefore now to

pass the test not only for article 22 but also of article 21 and if the constitutional validity

is challenged, the court would have to decide whether the procedure laid down by such

law for depriving a person from personal liberty is reasonable, fair and just. In another

case ofOlga Tellis & other v. Bombay Municipal corp.41, it was further observed: just as

a malafide act has no existence in the eyes of law, even so, unreasonable vitiates law and

procedure a like. It is therefore essential that the procedure prescribed by law for

depriving a person from fundamental right must confirm the norms of justice and fair

play. Procedure, which is just or unfair in the circumstance of a case, attracts the vice of

reasonableness, thereby vitiating the law which prescribes that procedure. As stated

earlier, the protection of article 21 is wide enough and it was further widened in case of

Bandhua Mukti Morcha v. UOI42 in respect of bonded labour and weaker section of as

follows:

Article 21 assures the right to live with human dignity, free from exploitation. The

state is under a constitutional to see that there is no violation of fundamental right of any

person, particularly when he belongs to the weaker section of community and is unable to

wage a legal battle against a strong and powerful opponent who is exploiting the Central

government and State government are therefore bound to ensure observance of the

various labour laws enacted by the Parliament for the purpose of securing to the workmen

a life of basis human dignity mentioned in directive principles of state policy.

41.

42.


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The meaning of word life includes the right to live in fair and reasonable

conditions, right to rehabilitation and right to livelihood by legal means and decent

environment. The expanded scope of article 21 has been explained by Apex Court in case

ofUnnikrishan v. State of A.P.43and the Apex Court itself provided the list of some of it

covered under article 21 on the basis of earlier pronouncements and some of them are

listed below:

1. The right to go abroad.

2. The right to privacy.

3. The right against solitary confinement.

4. The right against handcuffing.

5. The right against delayed execution.

6. The right to shelter.

7. The right against custodial death.

8. The right against public hanging.

9. Doctors assistance.

It was observed in Unni Krishan case that article 21 is the heart of fundamental

rights and it has extended the scope of article 21 by observing that life includes the

education as well.

As a result of expansion of the scope of article 21, the public interest litigation in

respect of children in jail but under special protection, health hazards due to pollution and

harmful drugs, housing for beggars, immediate medical facility, starvation deaths, the

right to know, the right to open trial, inhuman conditions in aftercare home having under

43.


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it. Through various judgments the Apex Court also included many of the non-justifiable

Directive Principles under Part IV of the Constitution and some of these examples are as

under:

(a) Right to pollution free water.

(b) Protection of under-trial.

(c) Right of every child to a full development.

(d) Protection of cultural heritage.

(e) Maintenance and improvement of Public Health.

(f) Improvement of means of Communication.

(g) Maintaining hygienic condition in slaughter houses.

These have also been included in the expanded scope of this scope further has

been extended even to innocent hostages detained by militants in shrine who are beyond

the control of the state.

The Apex Court in the case of S.S Ahluwalia v. UOI44, it was held that in the

expanded scope attributed to article 21 of the constitution, it is the duty of the state to

create a climate where the members of the belongings to different faiths, castes and creed

live together and therefore the state has a duty to protect their dignity and worth of an

individual which should not be jeopardized or endangered. If in any circumstance, the

scope to do so, then it cannot escape the liability to pay monetary relief to the family of

the person killed during riots and has been extinguished in the clear violation of article 21

of constitution.

The Apex Court led a great importance on reasonableness and rationality of the

provision and it is pointed out in the name of undue stress on fundamental rights and

44.


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individual liberty, the ideals of social and economic justice has given a go-by. Thus it is

clear that the provision article 21 was construed narrowly at the initial stage but the life

and liberty of a person was developed gradually and a liberal interpretation was given to

these dimensions have been added to the scope of article 21 from time to time. It imposed

a limitation upon a proceedings prescribed for depriving a person of life and personal

liberty by saying that the procedure which prescribed for the person of life and personal

liberty by saying that the procedure must be reasonable, fair and such law should be

arbitrary, whimsical and fanciful. The interpretation which has been given to the words

life and personal liberty decisions of the Apex Court, it can be said that protection of life

and personal liberty has got multi dimensions and any arbitrary, whimsical and fanciful

act of the state which deprived the life and personal liberty of a person against the

provisions of article 21 of constitution.

In the shockingRuchika Girhotras case the effect of such misuse of power by all

concerned has resulted in the flagrant violation of fundamental rights of Ruchika. After

all, the constitution mandated in article 21 that No person shall be deprived of his life

and liberty except according to the procedure established by law.

The right to life in article 21 includes the inner grace of human civilization the

right to live with human dignity, the protection against cruel punishment or torture as also

the right to speedy justice. These rights are guaranteed under our constitution.

The enforcement of these rights is also a guaranteed fundamental right. The

constitution imposes a constitutional duty on the Supreme Court and the High Court to

ensure that these rights are protected.45

45. 17th Jan, 2010, The Tribune.


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Right to live with human dignity vis--vis rape victims: constitutional paradigm and

judicial perspective

The preamble to the constitutional of India assures, among other things, dignity

of the individual. And article 21 of constitution guarantees the right to life and personal

liberty to individuals and mandates the state not to, except according to procedure

established by law, deprive a person of his right. It reads; No person shall be deprived of

his life or personal liberty except according to procedure established by law.

The Supreme Court of India, through its inimitable judicial activism, added to

fundamental right to life and personal liberty a variety of positive dimensions and

significant humanitarian contours basically to enhance the dignity and quality of

guaranteed right to life and make life more than mere animal existence .It, as early as in

1981, speaking through Bhagwati, J, delivering into proper meaning and content of

fundamental right to life and stressing the need to interpret it in a broad and expansive

spirit with a view to enhance the dignity of individual observed;

The right to life enshrined in article 21 cannot be restricted to mere animal existence .It

means something much more than just physical survival. Every limb or faulty through

which life is enjoyed is thus protected by article 21Any act which damages or injures

or interferes with the use of any limb or faulty of person, either permanently or

temporarily, would be within the inhibition of article 21. The right to life includes right to

live with human dignity and all that goes along with it,.Every act which offends

against or impress human dignity would constitute deprivation protanto of this right to

live46

On more occasions than one it, believing that human dignity is the basic factor amongst

46.Francis Coralie Mullin v. Admn., UT of Delhi, AIR 1981 SC 746 at P. 752-53.


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the human rights jurisprudence reflected in constitution of India and without it all human

rights are meaningless, has also echoes and reasserted that right to life and personal

liberty guaranteed under article 21 not only assures everyone the right to live with human

dignity but also those aspects of life that makes life meaningful, complete and worth

living. 47 According to it, right to live with human dignity is the fundamental right of

every citizen and state is under the constitutional duty to provide at least minimum

condition ensuring human dignity.48

It is pertinent to note that the Supreme Court of India ,exercise its powers under article

32 of constitution of India ,who enables a person, as a matter of right ,to move the

Supreme Court for enforcement of his fundamental rights and mandates the Supreme

Court to issue an appropriate direction, order or writ, for the enforcement of fundamental

rights guaranteed in part III of constitutional significance to article 21, has forged a new

tool and has devised a strategy unknown prior to 1983 to public law in India, by awarding

compensation for violation of right to life and personal liberty. 49 It by liberalizing the

doctrine oflocus standi also allows a public spirit individual or organization to move it

for enforcement of fundamental rights of a person or class of persons who on account of

his /their poverty, disability or socially or economically disadvantaged position is/are

unable to seek relief from the Supreme Court .

In Delhi Domestic Working Womans Form v.UOI50 (herein referred to as

DDWWF), a PIL espousing the pathetic plight of four domestic servants who were raped

in a moving train, the Apex court, on 19 th Oct, 1994, highlighting ordeals of victims of

rape & defects in the present criminal law system vis--vis victims of rape, outlined a set

47.PUDR v. UOI, AIR 1982 SV 1473.

48. Vikram Deo Singh v. State of Bihar, AIR 1988 SC 1782.49.Rudal Shah v. State of Bihar, AIR 1983 SC 1086.

50. (1995) 1 SCC 14 (18).


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of broad parameters to assist them51 Relying heavily upon article 38 (1) of constitution,52

which directs the state, inter alia, to strive to promote social order assuring socio-

political justice, and drawing inspiration from Criminal justice Act, 1991 of the UK,

dealing with an institutionalized payment of compensation to the victims of crime

including rape , stressed the need to set up Criminal Injuries Compensation Board to

compensate victims or rape. It also directed the National Commission for Women to

formulate such a scheme with 6 month from the date of judgment, i.e.; 19 th Oct, 1994 and

examine it and to take necessary steps for its implementation. The Apex Court also

emphasized that court should award compensation to rape victims on conviction of the

offender and also by proposed Criminal Injuries Compensation Board even if the

offender is acquitted.

On 15th Dec, 1995, the Supreme Court of India, in Boddhisattwa Gautam v.

Subhra Chakroborty53 (BOGA), understandably, in the absence of comprehensive

compensation scheme, relying on DDWWF and exercising its inherent powers to do

complete justice, suo moto grave effect to the right of rape victim to claim compensation

from the offender for the violation of her constitution right to live with human dignity. It

directed Bodhisatwa Gautam to pay to Subhra Chakraborty a sum of Rs. 1000 every

month as interim compensation during the tendency of the criminal trial and also to pay

arrears of compensation at the same rate from the inception of complaint filed by the

victim.

51.Ibid, P. 19-20.

52. The State shall strive to promote the welfare of people by securing and protecting aseffectively as it may a social order in which justice, social economic political, shall

inform all institutions of national life.

53. (1996) 1 SCC 490 (503).

It is equally pertinent to note that Gujarat High Court inMakeshbhai Nanubhai v.


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State of Gujrat54 (MUNA), a 1997 case identical to BOGA, refused to rely upon BOGA

case as a precedent even though article 141 of constitution mandate it to follow the law

declared by Supreme Court of India. On 5th March, 1997, quashed the order of one of the

subordinate courts directing the accused of rape to pay Rs. 700/- P.M. to prosecutrix as

interim compensation.

A careful reading of the judicial opinions and deliberations on right to live with

dignity of victims of rape and their right to be compensated reflected in DDWWF,BOGA

andMUNA does not reveal any articulated judicial law making.

Surprisingly, in August 1997, the Apex Court missed a unique opportunity to

clarify and refine the judicial dignity articulation of right of rape victim to live with

dignity and to be compensated. In Vishka v. State of Rajasthan55, the court, inter alia, was

called upon by certain social activists and NGOs to enforce the fundamental right to life

and personal liberty of working women, who was an alleged victim of brutal gang rape

and of willful delay in investigation and prosecution of suspected rapists. The petitioners,

among others, urged the Supreme Court, by exercising its jurisdiction under article 32 of

the constitution, to direct the Union of India to appoint, in consultation with womens

groups and individuals as well as lawyers, a committee headed by National Commission

for Women to prepare and submit guidelines for the prevention of sexual harassment and

abuse of women to the Union of India. The petitioners also prayed for an appropriate

writ, order or direction against the state of Rajasthan directing it to pay Rs. 10 lakh to

alleged victim of gang rape.56

54. 1998 CrLJ 194.

55. AIR 1997 SC 3011.

56. Kalis Yug, Aug 1998, PP. 10-15.


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The immediate cause for filing writ petition was an incident of alleged brutal gang

rape of social worker in a village of Rajasthan and reiterating that right to life means life

with dignity brushed aside the issue of the payment of compensation to the alleged

victim of gang rape. It simply observed that that incident is the subject matter of separate

criminal action and no further mention of it, by us is necessary. 57 It has not paid any

attention to eitherDDWWFandBOGA or to the therein judicially recognized the right of

rape victim to be compensated for the violation of her fundamental right to live with

dignity.

The Supreme Court of India in the DDWWF, probably realizing the legislative

and judicial apathy to the victims of rape, not only read in article 21 of constitution the

right of rape victim to live with human dignity and seek compensation for the deprivation

of her dignity but also directed the National Commission for Women, in consultation

with central government, to formulate compensatory scheme for victims of rape on the

lines of British Criminal Injuries Compensation Scheme to enable victims of rape in India

to seek compensation from offender and the state. The DDWWFand the Vishaka case

therefore did either ameliorate the immeasurable plight of the victims of sexual violence

or upheld their right to live with human dignity in true sense of hitherto judicial

articulation and spirit of article 21. They also hardly create any inroads in the legislative

and judicial apathy and insensitivity to the right of victims of rape to live with human

dignity.

While safeguarding the interest of citizens of India in such matters, the Honble

court has even brazenly gone to protect even the aliens. In Chairman, Railway Board &

others v. Mrs. Chandrima Das & Others,58 Article 21 violative of fundamental Rights-

57. AIR 1997 SC 3012.

58. AIR 2000 SC 988.


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Bangladeshi Women by Railway employees in Railway Building-order allowing

compensation-foreign nationals can be granted relief under public law for violation of

fundamental rights on the ground of domestic jurisprudence, a yeoman judicial step in

compensation justice.

InBodhi Sawatla Gautam v. Sabri Chakrabarti59 the Honble Supreme Court held

that rape is crime against basic human rights and violated the right to life enshrined in

article 21 of constitution and provided certain guidelines for awarding compensation to

prosecutrix in such a case. There are many instances where compensation was granted to

the rape victims. Madras High Court awarded a compensation of Rs. 5 lakh and a piece of

farmland at confessional rate to a dalitwomen who was raped in custody by the sub-

inspector.60

The Tamil Nadu government has granted a compensation of 5 lakh to Ms. Rita

Mary, an alleged victim of gang rape by jail staff at Gingee Prison. 61

Acting on the directions of the Supreme Court, the National Commission for

Women has recommended compensation of Rs. 2 lakh in installments to a rape victim,

starting from the time, when FIR is lodged. The first installment of Rs. 20000 has to be

given to the victim when she registers FIR. The second installment of Rs. 50000 is

recommended after police investigation confirms the rape.62

The Delhi government announced an ex-gratia of compensation of Rs. 50000/-

and a government job to

59. AIR 1996 SC 922.

60. 9th Dec, 2005, The Hindu, Newspaper.

61. Dec 8, 2001, The Hindu, Newspaper.

62. May 5, 2008, The Hindu, Newspaper.


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a 19 year old nurse, rape victim, at the Shanti Mukund Hospital in East Delhi.63

Criminal liability and Violation of Right to life

Right to life is the most important human fundamental natural inalienable

transcendental right. Naturally logically, this right requires the highest protection. Under

the India Constitution, article 21 guarantees right to life and the Supreme Court after

initial narrow technical interpretation became conscious of its own importance and

importance of right has given substance to this right by its interpretation after quarter

century of passing the constitution in a series of government of Rajasthan to pay the

compensation of one lakh to the widow of youth who was tortured to death in police

custody.64 In another case, High Court of Andhra Pradesh exercising its jurisdiction under

article 226 awarded a compensation of Rs. 1,44,000/- to the dependent of person, who

while in jail, died of injuries caused by bomb hurled at him in presence of jail

authorities.65 Similarly, the Madras High Court has awarded compensation to the tune of

Rs. 33,19,033 to the victims of violent incidents in Coimbatore in the wake of

assassination of Mrs. Indira Gandhi.

On the basis of these progressive decisions of court a legislation may be passed by

the parliament providing payment of compensation of government criminal liability in all

cases of loss of life in which the state officials are involved directly or indirectly

following the rule of strict liability without going into the merits and with the onus on the

part of the police in all cases of encounter death with proof of guilt and in all cases of

firing for maintaining law and order where innocent people are killed, the state has to pay

compensation. The compensation may be computed as hundred times to the per capita

63. 15th Oct, 2003,Healthcare Management, Newspaper.

64. Annual Survey of Indian Law, 1987, I.L.I., P.21.65.R.Gandhi v. UOI, AIR 1989 Mad 205.


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income or probable future earnings of victim whichever is higher. The compensation has

to be paid to the nearest kith and kin of deceased victim. When the socialist welfare state

makes excreta accidents without any liability in disasters like flood, fire accidents etc, it

is all the more reasonable and necessary to make pecuniary reparations in case of victims

of abuse, misuse or careless use or even use of its power in some cases, resulting in the

loss of life. This is in addition to the legal remedies available against the erring state

officials. In recent case in SAHELI, a Womens Resource Centre v. Commissioner of

Police,Delhi,66 the Supreme Court awarded a compensation of Rs. 75000/- to be paid by

the Delhi administration to the mother of the deceased child who died due to torture by

the police.

Criminal Liability and violation of Personal Liberty

Article 21 of Indian Constitution guarantees personal liberty, the content of which

is enriched by the progressive interpretation by the Supreme Court in the last 15 years.

After life, true liberty is very important for any individual. In all cases of wrongful

deprivation of liberty by the state officials, the government and the criminal liability in

this matter is not recognized for a long time, the recent decisions of the court are

encouraging. Usually the loss of liberty takes place in case of persons suffering from

poverty because they can not purchase liberty illegally or legally from the state officials.

A rich man can get bail by providing pecuniary security; a poor man suffers loss of

liberty. As George Bernard Shaw said Truth is stronger than fiction. One may add that

truth is also shocking. InRudal Shah v. State of Bihar,67 the petitioner who was acquitted

by court of Sessions in June 1968 but was kept in prison for more than 14 years till Oct

1988 and was released only after a habeas corpus petition was successfully filed in

Supreme Court under article


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66. AIR 1990 Sc 513.

67. AIR 1983 SC 1086.

32, the Supreme Court granted monetary relief of Rs. 30000/- against Bihar government

in addition to a sum of Rs. 50000/- already paid and observed that; its order was of a

palliative nature. In Sebastian M, Hongray v. UOI68, Supreme Court awarded

exemplary costs against Union of India and state of Manipur to be paid to the wives of

the untraceable persons who are allegedly arrested by Army Jawans in Manipur in March,

1982. In Bhim Singh v. State of J & K

69

, which is one of many cases of government

lawlessness and violation of criminal law, the Supreme Court awarded a compensation of

Rs. 50000/- against state for the illegal detention of Bhim Singh, who was the member of

Legislative Assembly. The Supreme Court rightly held that the ends of justice cannot be

met by setting the victims free and hence a suitable monetary compensation has to be

awarded.

From the trend of positive judicial activism, we can postulate that in all cases of

loss of liberty wrongfully at the hands of state officials both the state and the officials are

jointly and severally criminal liable. Compensation has to be paid for the loss of liberty

not only in cases of wrongful detention but also in every case where court arrives to the

conclusion that state officers negligently or even casually exercise their power of

detention and accusation resulting in acquittal. Reparation has to be made for loss of the

liberty, mental harassment suffered, reputation damaged and livelihood lost and the court

has to award exemplary compensation depending upon each case.

Criminal Liability for Violation of Personality and Dignity


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Apart from loss of liberty a citizen may be subjected to torture, physical and

mental, which is not unusual feature of abusive exercise of the State Institutional

68. AIR 1984 SC 1026.

69. (1985) 4 SCC 677.

Monopolistic Coercive Machinery. In this process, a person may lose his limb or suffer

physical and mental injuries at the hands of state officials. In all cases of loss of limbs,

compensation quantified at the rate of 4 times to that provided for similar cases in

Workmens Compensation Act has to be paid. In the case of mental suffering and other

cases of torture and violation of human dignity suitable solatium has to be awarded by the

courts. In case of rape and molestation by state officials exemplary compensation has to

be granted liberally against government. Even in non-government atrocities

democratically elected governments have already started granting some monetary relief

in such cases as a humanitarian and welfare measure. But it has to be institutionalized and

made a legal right.

Prisoners right to life and liberty

Article 21 declares that no person shall be deprived of his life or personal liberty

except according to the procedure established by law. Article 22 guarantees protection

against arrest and detention in certain cases. It says that no person who is arrested shall be

detained in the custody without being informed, as soon as, may not be of the ground for

such arrest nor shall he be denied the right to consult, and to be defended by a legal

practitioner of his choice. It requires that every person who is arrested and detained in

custody shall be produced before the nearest magistrate within a period of 24 hours of

such arrest excluding the time necessary for journey from the place of arrest to the court


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of the magistrate and no such person shall be detained in custody beyond the said period

without the authority of a magistrate.

In case ofSunil Batra v. Delhi Admn is a landmark judgment by a constitution

bench in the area of fundamental rights of prisoners. Under section 30(2) of Prisoners

Act, 1894, every prisoner under the sentence of death shall be confined to a cell apart

from all other prisoners and shall be placed by day and by night under the charge of

guard. Sunil Batra was sentenced to death having been found guilty of a gruesome

murder compounded with robbery. He challenged the same invoking articles 14, 19, 21.

The plight of prisoners kept in solitary confinement is pathetic.

The Supreme Court upheld the contention ofBatra and declared:

Part III of the constitution does not part company with the prisoner at the gates

and judicial oversight protects the prisoners shrunken fundamental rights, if flouted, it

owned upon or frozen by prison authority. Is a person under death sentence or undertrial

unilaterally dubbed dangerous liable to suffer extra torment too deep for tears?

Empathically no The convict is not sentenced to the imprisonment. He is not sentenced

to solitary confinement. He is a guest in custody, in the sage keeping of host-jailor until

the terminal hour of terrestrial farewell whisks him away to the halter. This is trusteeship

in the hands of superintendent, not imprisonment in the true sense.

In the other part of the same judgment, the Supreme Court dealt with the case of

Charles Sobraj. His grievance was against the disablement, the bar fetters of under trials

and for unlimited duration. The judge visited the Tihar jail and saw Sobraj attending in

chains in the yard, with iron on wrists, iron on the ankles, iron on waist and iron to link

up firmly riveted at appropriated places. There were a number of under trial prisoners

with bar fetters in the jail and many of them were minors.


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Reacting sharply to the plea of prison authorities based on security aspect, the

court observed:

Assuming a few are likely to escape, would you shoot a hundred prisoners or

whip everyone everyday or fetter all suspect to prevent one jumping jail? These wild

apprehensions have no value in our human order; if articles 14, 19 and 21 are prime

actors in the constitutional play life and liberty are precious values. Arbitrary action

which tortiously tears into the flesh of a living man is too serious to be reconciled with

articles 14 or 19 or even by way of abundant caution.

Detenues in Jail without trial

Detunes in jail without trial is a violation of fundamental right under article 21 of

Indian constitution. The prosecuting officers should be accountable for the illegal

detention of the accused. There are certain instances which indicate that if there were a

thorough investigation across the country in different jails, there would be many more

undertrial prisoners languishing in jails without being convicted.

Om Prakash was released on the intervention of the court from Manipuri Jail in

U.P. after 37 years of imprisonment without trial. He was arrested on the charge of

murder. Om Prakash was less than 20 at the time of his arrest. His father owned the crime

to save his son. Both were arrested and the father died in jail a few years later. In 37

years, trial could not even begin because the police failed to trace the papers of the case.

And for this serious lapse on the part of the police, no action was taken against any police

officer. Because of long confinement Om Prakash became insane. When he did finally

come out of jail, he did not know who he was.


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Raja Ram, aged 70, spent 35 years in Faizabad jail and Varanasi mental hospital

without being proved guilty. In yet another case 70 years old Jagjivan Ram languished in

prison for 36 years because his records were missing.

These few instances indicate that if there were a thorough investigation across the

country in different jails, there would be many more under-trial prisoners languishing in

jails without being convicted.

In different case pertaining to foreigners, 17 Pakistanis, who were found guilty of

various crimes of courts, including that of entering the country without valid documents,

were sentenced to imprisonment for various terms. They were in jail during trial period

because they could not be granted bail for obvious reasons.

The plea of the central government in such cases that these prisoners could be

released only in return for an equal number of Indian prisoners languishing in Pakistani

Jails was rejected by a bench of the Supreme Court of India, consisting of justices

Markandey Katju and R. M. Lodha on March 9, 2010 and they were ordered to be

deported within 2 months. 14 of the 17 Pakistanis detained in the camp were deported to

Pakistan on March 25, 2010. Nobody was punished for their illegal confinement. Of

course, there is no provision for compensation in such cases.

It is nobodys case that the police should abdicate its duty to catch and prosecute

law-breakers and criminals. It has been seen that even in cases of abduction and extra-

judicial killings the guilty police officers go scot free while even the most innocent

victims suffer for their omission and commission.

There should be a proper, accurate and scientific investigation and gathering of

real evidence, not the connected one, to sustain a case before the trial court. However,

what is essential to make the justice administration system transparent and corruption-


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free is to devise a system of accountability where in the prosecuting officers are held

responsible for causing unnecessary and illegal detention of the accused.

The detainees should be quite adequately compensated for physical, emotional

and social loss caused to them and their families, including the cost of litigation, which is

exorbitant. Mere cosmic police and judicial reforms can not cure our decayed justice

administration system.70

70. The Tribune, April 7, 2010.

Honour Killing

Honour killing is the most grotesque and barbarous manifestation of gender

discrimination in the male-dominated society, Karnal Additional Session judges

judgment giving death sentence to five persons, life imprisonment to one and 7 year jail

to another in a case of honour killing in Haryanas Kaithal District will serve as a strong

deterrent on the depredatations of Khap Panchayats.

The constitution guarantees several fundamental rights to our citizens. These

rights also include the right to life and liberties. The government and its different organs

are duty bound to create conditions in which citizen can enjoy these rights.

The way Manoj and Babli were murdered in Haryana clearly exhibited that

Haryana government failed to create conditions in which Manoj and Babli could enjoy

their right to liberty and live peacefully. The judiciarys judgment to punish the

murderers has restored the faith of the people.

But the recent utterances by some of the Khap leaders at Kurukshetra have

disturbed right thinking members of civil society in Haryana. Its recent demand for

amendment in Hindu Marriage Act, 1955 so as to prohibit the solemnization of marriages


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within the same gotra as well as between inhabitants of the same village is not only

ridiculous but against the constitutional and liberal values of modern age. It is clear

violation of fundamental rights.

The demand is against the spirit of the preamble of constitution that declares

liberty, equality, fraternity and justice as our national ideals. The demand goes against the

principles of the liberal education being imparted to our young boys and girls in schools

and colleges.

The strange situation is creating conflicts in the minds of young ones. The need of

hour is that the Haryana government must realize the seriousness of the problem and

guarantee to create conditions in which young couples are able to enjoy liberty and live

with peace.71

The National Human Rights Commission slammed Khap Panchayats, saying

honour killings violated an individuals right to life.

Narco Tests

The Supreme Court gives judgment on banning narco-analysis brain-mapping and

polygraph tests on the accused is a big blow to agencies like the CBI which have been

using such techniques as important tools in investigation. In a Landmark ruling, a three-

member Bench consisting of the Chief Justice K.G. Balakrishan, Justice R.V. Raveendran

and Justice Dalveer Bhandari has said that if individuals are forced to undergo these tests,

it would amount to unwarranted intrusion of his personal liberty and flagrant violation

of his fundamental right under article 20(3) of constitution which prohibits self-

incrimination. The Bench made it clear that these tests will be admissible as evidence in

the courts as law prohibits an accused from giving evidence against himself. As for


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polygraph tests, it observed that the investigating agencies will have to follow strictly the

guidelines of National Human Rights Commission.72

Now that the Supreme Court has banned these tests, the authorities will have to

evolve new methods of investigation. The police ought to change its colonial mindset and

to show greater respect for human rights. It is common knowledge how the accused are

tortured these days, sometimes resulting in custodial deaths. The apex court ruling may

help ensure a fair trial for any individual but agencies like the CBI ought to deploy more

humane methods of investigation to ferret out the

71. The Tribune, 26

th

April, 2010.

72.

truth and bring the guilty to book.

Article 21 and Human Rights

Over the years, the role of the Supreme Court of India has been commendable in

expanding the area of human rights preponderingly while interpreting the Indian

constitution in article 21, as the most fruitful article. While acceding to the covenants,

India expressed its reservation as to enforceable right of compensation for persons

claiming to be victims of unlawful arrest or detention against the state, but in several

cases, the Indian Supreme Court has held such right of compensation as part of article 21,

which safeguards the right to life and liberty. In comprehension of the Supreme Court the

right to life and liberty includes, the right to human dignity, right of privacy, right to

speedy trial, right to free legal aid, right of prisoner to be treated with dignity and

humanity, right to bail, right to compensation for custodial death, right to know, right to

livelihood, right to protection of health and medical care, right to protection of childhood,


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right to equal pay for equal work, right to social security, right of workers to participate

in the management, right to shelter, right to education, right to healthy environment.

While safeguarding the interests of the citizens of India in such matters, the

honble court has even brazenly gone to protect even the aliens. In Chairman, Railway

Board & Others v. Ms. Chandrima Das,73- article 21 Violative of Fundamental Rights-

Gang rape on Bangladeshi Women by Railway employees in Railway Building-order

allowing compensation-foreign nationals can be granted relief under public law for

violation of fundamental rights on the ground of domestic Jurisprudence based on

constitutional provisions and Human Rights jurisprudence, a yeoman judicial step in

compensatory justice.

The right to life is that which is much more than mere animal existence.

73. AIR 2000 SC 988.

The right to life means to have intact all limbs and faculties through which life is enjoyed

and life have meaning. It would be deprivation of life if the body is mutilated and any

part of it is amputated or if any organ of body, such as taking out of an eye is destroyed.

InKharak Singh v. State of U.P.74, the Supreme Court observed that right to life does not

mean the right to the continuance of persons animal existence, but a right to the

possession of all organs-his arms, legs etc. The right to life means right to live with full

human dignity without humiliation and deprivation or denial of any part personal liberty

obviously means freedom from all physical restraint and coercion of any sort.75

InA.K. Gopalan v. State of Madras , 76 the Supreme Court propounded the thesis

that personal liberty in article 21 was used as a compendious term to include within


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itself all the varieties of rights which tend to make up personal liberty a man minus the

right guaranteed under article 19 (1).

The interpretation that Personal Liberty means only liberty relating to or

concerning the person is obviously too narrow and the Supreme Court itself has

repudiated it. InKharak Singh v. State of U.P.,77 the domiciliary visits during the night by

the police house of bad characters and suspects were held to be an invasion of personal

liberty being violative of sanctity of mans home and an intrusion into his personal

security and his right to sleep undisturbed.

In Chameli Singh v. State of U.P.,

78

the Supreme Court held that right to shelter is

74. AIR 1963 SC 1295.

75.Indian Bar Review, Vol. xxx (1) 2003.

76. AIR 1986 SC 180.

77. AIR 1963 SC 1295.

78. AIR 1987 SC 2117.

a fundamental right available to every citizen and it was laid into article 21 of the

Constitution as encompassing within the limit the right to shelter to make the right to life

more meaningful. The court observed as under.

In any organized society, right to live as human being is not entered by meeting

the only animals need of the man. All human rights are designed to achieve the freedom

from restriction which inhibits his growth right to life implies the right to food, water,

disentitled environment, education, medical care and shelter. All civil, political, social

and cultural rights enshrined in Universal Declaration of Human Rights can not be

exercised without these basic rights. Shelter for a human being, therefore, is not a mere


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protection of his life and limbs. It is the home where he has opportunity to grow

physically, mentally, intellectually and spiritually.

In Shamir Solhan Sanyal v. Tracks Trading Pvt. Ltd.79 the Apex Court held that

dispossession of tenant without due process of law was violative of article 21 of

constitution.

Article 21 of the constitution of India, has been interpreted that every child under

age of 14 years has a right of basic education.80 In Mohini Jain v. State of Karnataka,81

the court held that that right to education is concomitant to fundamental rights enshrined

in Part III of the constitution. InBandhua Mukti Morcha v UOI, it has been held that it is

the solemn duty of the state to provide basic education to the children who are working in

different industries and the court has directed the government to take such steps and

evolve scheme assuring education to all children either by the industry itself or in

coordination with it .In

79. AIR 1996 SC 2102.

80. Unnikrishan v. state of A.P., AIR 1993 SC 2178.

81. AIR 1997 SC 3021.

Gaurav Jain v. UOI82, the Apex court has held that state has to provide education to

children born to prostitutes. The court further issued various directions to protect the said

children from exploitation and bring them into main stream of life by educating them.

In Neelabati Behra v. State of Orissa, 83 the Supreme Court held that for the

contravention of human rights and fundamental rights by the state and its agencies, the

court must award compulsory compensation and rejected the defense of sovereign


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immunity. The court held that custodial death amounts to violation of fundamental right

to life.

Article 8(5) of international covenants on Civil and Political rights, 1966 indicates

that an enforceable right to compensation is not alien to the concept of guaranteed rights

as it provides for award for compensation to the victims who have been unlawfully

arrested or detained and to get such compensation is his enforceable right.

The Supreme Court has pointed out the obligation on the part of state to provide

free legal aid to those who cannot afford to engage counsel and bear the expensive

litigations in Sukhdas v. UT of Arunachal Pradesh.

84

In Ms. Neera Mathu v. LIC, 85 the Apex Court held that giving false declaration

regarding the last menstruation period with a view to suppress her pregnancy was not

found fatal and on that ground the services could not have been terminated as asking such

declaration was not only embarrassing and improper but was against the dignity of

womanhood.

82.

83. AIR 1993 SC 1960.

84. (1986) 2 SCC 401.

85. AIR 1992 SC 789.

InPaschim Banga Khet Mazdoor Samiti v. State of W.B., 86 the court held that any

failure of government hospital to provide timely medical treatment to a person is need,

results in violation of his right to life.

In P.G. Gupta v. State of Gujarat, 87 the Supreme Court considered the human

right to shelter and rights enshrined in article 19 (1) (e) of the constitution of India and


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article 21 of Universal Declaration of Human Rights and Convention on Civil Economic

and Cultural Rights and held that it is the duty of the state to construct houses at

reasonable cost and make them easily accessible to the poor. The said principle was

found embodied and in-built in the constitution of India to secure to life, liberty and

security of person. The court also emphasized on article 21 of Declaration of Human

Rights which envisaged that everyone has a right to social security and is entitled to its

realization as became the economic, social and cultured right are indispensable for his

dignity and free development of his personality.

InLegal Aid Committee v. UOI,

88

the court expressed its concern to detention of

large number of persons in jail in connection with various offences under the Narcotic

Drugs Psychotropic Substances Act, 1985 and issued directions to release under-trial

prisoners who has been in jail for a period amount to exceeding halt of punishment

provided for in the Act. The judgment was followed in Shabeem Welfare Associationv.

UOI,89 where in the court observed that a pragmatic and just approach was required to be

adopted in releasing TADA deteunes on bail because of delay in conclusion of trial. In

86. AIR 1996 SC 426.

87. 1995 (Supp) 2 SCC 182.

88. AIR 1981 SC 939.

89. AIR 1994 (6) SCC 631.

Gurbux Singh v. State of Punjab, 90 the Court held that imposing of unjust and harsh

condition while granting bail are violative of article 21 of the constitutional of India.

In Watch Dogs International v. UOI, 91 the court examined the case where a

prisoner died due to injuries received during the beatings by the supervisor whose


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appointment could not be found under any legal provision. The court issued directions to

prevent such events and not to appoint such supervisor.

In Madhab Hyawadanya Hoskot v. State of Maharashtra, the Apex Court held

that the jail manual must be updated to include the mandate of article 21 of the

constitution for the reason that all the obligations are necessarily implied as article 21

guarantees and provides for commitment of procedural fairness.

In Sodan Singh v. New Delhi Municipal Committee,92the right of street trading by

hawkers and squatters was considered and it was held that every citizen has a right to use

a public street vested in the state as a beneficiary but a public right is subject to such

reasonable restrictions as the state may choose to impose. The right to street trading does

not any confer a right on any person to occupy or squat at any specific place of his choice

on pavement regardless the right of others, including pedestrians to make use of

pavements.

In Abdual Rahman Anthulay v. R.S. Nayak, 93 the constitution bench of the

Supreme Court held that speedy trial is inherently enshrined in article 21. Same view has

90. AIR 1980 SC 1932.

91. AIR 1978 SC 1547.

92. AIR 1989 SC 1988.

93. AIR 1992 SC 1701

been taken in Hussainara Khatoon v. Home Secretary, State of Bihar 94 and Raghubir

Singh v. State of Bihar.95


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Thus, it would be seen that the Supreme Court while interpreting the provision of

the Indian Bill of Rights has drawn deeply upon the universally agreed upon the human

rights and has also given widest possible detinition to human dignity.

Right to Privacy

In case ofKharak Singh, 96 the court was called upon to determine whether right

to privacy formed a part of personal liberty in article 21. The petitioner, who was tried

and discharged for dacoity, was subjected by the police to domiciliary visits and

surveillance. To determine the validity of domiciliary visits and surveillance the court

examined whether the right to privacy was a part of personal liberty. It held that personal

liberty was a compendium of rights that go to make up the personal liberty of man and

that the right to life in article 21 was similar to that in American 14th and 15th amendment.

Right to privacy is a part of right to life and that right includes telephone

conversation in privacy in home or office unless it comes within the grounds of

restriction under article 19(2) of the constitution of India. It directed observance of

certain procedures by way of safeguard before resorting to telephone tapping.

Ms. Y with whom the marriage of the appellant was settled, was saved in time

by the disclosure of the vital information that the appellant was HIV (+). The disease

which is communicable would have been positively communicated to her immediately on

the consummation of marriage. As a human being, Ms. Y must also enjoy, as she

94. AIR 1979 SC 1360.

95. AIR 1987 SC 149

96. AIR 1963 SC 1295.

obviously is entitled to, all the Human Rights available to any other human being. This is

apart from, and in addition to, the fundamental right available to her under article 21 of


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constitution, which, as the apex court has seen, guarantees right to life to every citizen

of this country. This right would positively include the right to be told that a person, with

whom she was proposed to be married, was the victim of a deadly disease, which was

sexually communicable. Since right to life includes right to lead a healthy life as to

enjoy all the faculties of human body in their prime condition, the respondents, by their

disclosure that the appellant was HIV (+), can not be said to have, in any way either

violated the rule of confidentiality or right to privacy. Where there is a clash of two

fundamental rights ,as in the instant case, namely, the appellants right to privacy as part

of right to life and Ms. Ys right to lead a healthy life which is her fundamental right

under article 21, the right which would advance the public morality or public interest,

would alone be enforced through the process of court, for the reason that moral

considerations can not be kept at bay and judges are not expected to sit as mute structures

of clay in the hall known as court-room, but have to be sensitive, in the sense that they

must keep their fingers firmly upon the pulse of the accepted morality of the day.

In his dissenting opinion Justice Subba Rao rejected the test of directness of

impact formulated in Gopalan, denied that each fundamental right was a separate island

entirely upon itself and held that personal liberty and freedom of movement overlapped

each other. It was the implication of his thesis that a valid infringement of one right can

not justify invalid encroachments on the other rights & that the fundamental rights,

though intrinsically independent, overlapped each other. He asserted that not only

physical but also psychological restraints on fundamental rights might be

unconstitutional. He held that for the petitioner, constantly shadowed by a policeman, the

whole country was a jail.


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About 12 years laterGovinda97 raised again before the court the question whether

domiciliary visit and surveillance were constitutionally valid. Unlike, in Kharak Singh, in

this case, domiciliary visit and surveillance were authorized by law. The petitioner

alleged that the police visited his house day and by night, picketed his house and the

approaches thereto, kept a watch on his movement and often called him to the police

station to harass him. The respondent state pleaded that surveillance was restricted to

persons like the petitioner addicted to a life of crime.

To determine the validity of surveillance and domiciliary visit the court had to

decide whether, as claimed by the petitioner, the right to privacy emanated from the right

to personal liberty and right to freedom of movement.

It is necessary that in an appropriate case the court may review and reconsider its

decisional law to hold that privacy is a part of personal liberty read with freedom of

movement and that the law trenching on privacy should be reasonable and should lay

down a fair procedure. The new constitutionalism that the court gave in recent years

justifies such a course of action. The Nordic Conference of jurists and legal experts

emphasized that the right to privacy is paramount to human happiness. In view of this

international trend, the claim that our constitution, be it said to its glory, has embodied

most the articles contained in Universal Declaration of Human Rights sounds empty if

the constitution allows the police in India to hear the street whisper in the closet.

97. Govind v. State of M.P., AIR 1975 SC 1378.

Right to Travel Abroad


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In the 1950s, 98 acting under the influence of Gopalan and Pre Kent American

cases, the Madras High Court had held that there was no right to travel abroad, issuance

of passport was a political function and a person was free to go abroad without passport

although even Indians were required by law to produce a passport at the time of their re-

entry into India. After Kent, 99 the Bombay High Court seized the Kharak Singh

construction of personal liberty as a compendium of rights and followed Kent to held that

the right to passport was a part of personal liberty. It held further that in the absence of a

law regulating issuance of passport the refusal to issue a passport to the petitioner

violated his right to personal liberty in article 21.

In 1978, the Supreme Court was again confronted with this question when Janta

government impounded the passport of Menaka Gandhi. In this case, 100 Justice Bhagwati

handed down one of the most remarkable judgments in the history of Supreme Court. He

overruled Gopalan to substitute the test of direct and immediate effect for the test of

direct impact and asserted that no fundamental right was a separate island entire upto

itself and valid infringement of one right could not validate an invalid infringement of

any other right. He reiterated that the right to travel abroad was a part of personal liberty

and pointed out that though that right was not an emanation from freedom of speech, the

state would violate freedom of speech if it allowed a person to go abroad subject to

condition that he should not make any speech while he was in abroad. He denied that

freedom of speech could be exercised by an Indian only in India and held that it was only

the restriction and not the right that could

98. Mohammad, The Vicissitudes of Freedom of Exit in India, 17 American Journal of

Comparative Law, 559.

99.Kent v. Dulles, 357 US 11 (1958).


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100.Maneka Gandhi v. UOI, AIR 1978 SC 760.

operate in India. And as the restriction operated in India the court was competent to

review its validity.

Justice Bhagwati asserted that the right to travel abroad, though a part of personal

liberty overlapped with many a specific right. So if the state impounded the passport of

pilot with international flying license, an evangelist, a dancer, a musician, a journalist, a

professor or a scholar, it might directly or indirectly trench on his freedom of occupation

or freedom of speech.

Justice Bhagwati overruled Gopalan to hold that procedure established by law in

article 21 meant fair and reasonable procedure. He corrected the courts mistake in

Gopalan which treated deletion of due process from article 21 as denial of procedural

safeguards to the right to life and personal liberty.

But Justice Krishna Iyer held in his concurring difference between the two

opinion is that under the former only procedural reasonableness whereas under the latter

substantive reasonableness also was open to judicial review.

The welcome feature ofManeka is not just the removal ofGopalan from the lore

of law but the switch over from mechanical to political jurisprudence. This is manifest

from the courts retreat from shuttered gloom of authoritarianism of the emergency era to

the refreshing liberalism of the post-emergency period in response to the election results

of March 1977. It also freed article 21 from the shackles of frankfurters philosophy

though the constitution makers had accepted it. As a result of all this right to travel

abroad stands enriched, enlarged and fortified with impregnable procedural safeguards.


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Right to Compensation

The opinion of the then Chief Justice Chandrachud in Rudal Shah v. State of

Bihar101 confirm that Justice Bhagwatis concern for the poor and his readiness to assume

the role of the reformer to secure justice for the poor is deeply felt and widely shared by

the judges in the Supreme Court. In this case, involving the petitioners claim for

compensation for his incarceration for 14 years after his acquittal by a court, Chief

Justice Chandrachud found that the Indian constitution had no provision similar to article

9(5) of Covenant which entitles a victim of unconstitutional arrest or detention to claim

compensation from the state. The absence of this provision from the Indian constitution is

certainly not accidental. And yet the Chief Justice said that if in a case of gross violation

of liberty the court refuses to pass an order of compensation, it would only be paying lip-

service to liberty. So he held:

Article 21, which guarantees the right to life and liberty, will be denuded of its

significant content if the power of this court were limited to passing orders of release

from illegal detention. One of the telling ways in which the violation of that right can

reasonably be prevented and due compliance with the mandate of article 21 secured is to

mulct its violators in the payment of compensation.102

The Chief Justice thus nationalized the human right in article 9 of the covenant to

enrich the content of article 21 and to enlarge the jurisdiction of Supreme Court under

article 32 and of the High Court under article 226 to enforce fundamental rights. This

small step that the court has taken, after it has assumed the role of the poor mans court

hold out for the people of India a rich promise.


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101. AIR 1983 SC 1086

102.Peoples Union for Democratic Rights v. UOI, AIR 1982 SC 1473.

Environmental Law

The judiciary, in their quest for innovate solutions to the environmental matters

within the frame work of PIL, looked to constitutional provisions to provide the court

with the necessary jurisdiction to address specific issues. As the Supreme Court is the

final authority as far as matters of constitutional interpretation are concerned, it assumes a

sort of primary position in the Indian Environmental Legal system. For example, the

fundamental right contained in article 21 103 is often cited as the violated right, albeit in a

verity of ways.

In Francis Coralie Mullin v. The Administrator, UT of Delhi, 104 Bhagwati J.,

speaking for the Supreme Court stated that:

We think that the right to life includes the right to live with human dignity and

all that goes along with it, namely the bare necessaries of life such as adequate nutrition,

clothing, shelter over the head and facilities for reading, writing and expressing oneself in

diverse forms, freely moving about and mixing and commingling with fellow

Documents

Concept of Article 21