Article 21 - Unjargoned Draft.docx

ARTICLE 21 (1) Introduction The Fundamental Rights under Article 19 are conferred on citizens of India, but the rights under Article 20, 21 and 22 are available to all persons whether citizens or not. In several cases, the Supreme Court of India has emphasized that tourists also have the right to live with human dignity and the State is under an obligation to protect the life of the persons who are not citizens, as it does for a citizen. The expression ‘personal liberty’ has been given the widest amplitude. The extension in the dimensions of Article 21 has been extended by giving broad interpretations to the words, ‘life’ and ‘liberty’. These words should not be read in a narrow and restricted sense. The right to life enshrined in Art. 21 have been liberally interpreted so as to mean something more than mere survival or animal existence. It includes all aspects of life which make a man’s life meaningful, complete and worth living. (2) Extended View of Article 21 

Right to Livelihood The Supreme Court on various instances was of the view that the right to life

under Art. 21 would not include livelihood. The right to livelihood would be included in the freedoms enumerated under Art. 19 and to a limited sense, Art. 16. This view lasted till the Supreme Court changed its stance in Olga Tellis v. Bombay Municipal Corporation, where a case was brought by the pavement dwellers to resist eviction from their habitat by the Bombay Municipal Corporation. The Court argued that the right to livelihood is born out of the right to life, as no person can live without the means of living or means of livelihood. The right to livelihood must be treated as a part and parcel of the constitutional right to life as deprivation of the same would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. However, the Supreme Court in the case of Delhi Development Horticulture Employees’ Union v. Delhi Administration held that there is no doubt that broad interpretation of life would include the right to livelihood and therefore, right to work but this is in the context of Art. 21 which seeks to protect persons against deprivation of their life. This does not obligate the state to provide work or livelihood to the people.

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Rights of Slum Dwellers & Hawkers In Olga Tellis v. Bombay Municipal Corporation, the Supreme Court

highlighted the impact of Article 21 on urbanization. In the given case, eviction of pavement dwellers was under construction where the Court took notice of the plight of thousands of migrants in the cities, who live on pavements in a pitiable condition. The petitioner challenging the eviction of the pavement dwellers argued that it would adversely affect their livelihood which is protected under Art. 21 and it can only be taken away through fair and reasonable procedure. It was argued against the petitioner that they have encroached on the footpath over which public has the right of way and thus, they have no legal right to claim. The Court recognising the right of the pavement dwellers held that evicting them from their place of habitat would infringe upon their livelihood, and in extension their ‘life’ under Article 21. However, Article 21 not being an absolute right can be restricted through fair, just and reasonable procedure established by law. The court also recognised the right of the municipality to evict the pavement dwellers who encroach on footpaths, however, procedure established by law must followed which must be fair and reasonable. As far as hawkers are concerned, even if right to carry on any trade or business is enshrined under Art. 19(1)(g), they have no absolute right to do so. If the roads are not wide enough to conveniently accommodate hawkers then they may not be allowed to do so or may be allowed with certain restrictions. It is held that streets, roads and footpaths are public property which is intended for the use of general public and cannot be put into private use. 

Right to Medical Care The Constitution envisages establishment of welfare state, and in a welfare

state, it is the primary duty of the government to provide adequate medical facilities for the people. The government discharges this obligation by running hospitals and health centres to provide medical care to those who need them. Art. 21 imposes an obligation on the State to safeguard the right to life of every person. 

Health of Labour

Taking into consideration that Art. 21 includes ‘right to human dignity’, it has been held that right of health, medical aid to protect the health and vigour of a worker while in service is a fundamental right under Art. 21. The employer, be it State or its undertaking or a private employer must strive to make the right to life meaningful by preventing pollution of work place, protection of the environment, protection of the health of the workman or to preserve free and unpolluted water for safety and health of people. The employers are bound by the directions issued by the Supreme Court of India under Articles 32 and 142 of the Constitution. 

Right to Shelter & Care Homes In several cases, the Supreme Court has recognised right to clothing, right to

decent environment and a reasonable accommodation under the scope of Article 21 since food, shelter and clothing are minimal human rights. The Care homes are mandated to provide at least minimum living conditions ensuring human dignity. It has been reiterated that India is a welfare state and the Indian Constitution lays emphasis on the protection and well being of the weaker sections of the society including women and children. 

Sexual Harassment & Rape In Vishaka v. State of Rajasthan, the Supreme Court has declared sexual

harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is a clear violation of Arts. 14, 15 and 21 of the Constitution. Rape has been held to be a violation of a person’s fundamental right guaranteed under Art. 21. It is a crime against basic human rights and is also violative of the fundamental right to life enshrined under Article 21. 

Right to Privacy & Tapping of Telephone In K.S Puttaswamy v. Union of India, the Supreme Court declared privacy to be

an integral component of Part III of the Constitution of India, which lays down our fundamental rights, ranging from rights relating to equality, freedom of speech and expression, freedom of movement, protection of life and personal liberty and others. Like most other fundamental rights, the right to privacy is not an "absolute

right" and is subject to the satisfaction of certain tests and benchmarks, a person's privacy interests can be overridden by competing state and individual interests. Any impugned action will be tested on the "just, fair and reasonable" standard evolved under Article 21 of the Constitution. In People’s Union of Civil Liberties v. Union of India, the court in 1997 held that tapping of telephone constitutes serious invasion of an individual’s right of privacy. The Court has held that telephone conversation is an important facet of a man’s private life. The right to hold a telephone conversation in the privacy of one’s home or office without interference can be claimed as ‘right to privacy’. Telephone tapping would infringe Art. 21 unless it is permitted under the procedure established by law, which has to be ‘just, fair and reasonable’. Telephone tapping is permissible in India under S. 5 of the Telegraph Act, 1885 and has been constitutionally valid. The competent authorities may order tapping of telephone on the grounds such as (i) sovereignty and the integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. 

Right to Reputation

Right to reputation is a facet of the right to life of a citizen under Art. 21. 

Ecology/Environment & Pollution Right to life is a fundamental right under Art. 21 and connotes ‘quality of life’.

Thus, a person has a right to the enjoyment of pollution free water and air to enjoy life fully. Any disturbance of the basic environment elements such as air, water and soil which are necessary for life would be hazardous to ‘life’ within the meaning of Art. 21. The Supreme Court has held natural resources like air, sea, waters are means for general use and cannot be restricted to private ownership. The State is the trustee and the general public the beneficiary of sea, running waters, air, forests ecologically fragile lands etc. The word environment has a broad spectrum and within its ambit fall ‘hygienic atmosphere and ecological balance’. The State is obligated to maintain hygienic and ecological balance. 

Rights of HIV+ persons

There is no specific law which defines the rights and duties of HIV infected person. The Supreme Court has considered the question of whether a doctor can disclose to the would be wife of a person that he is HIV positive and whether it would infringe the right to privacy of the person concerned? This was answered in the case of Mr. X v. Hospital Z in 1999 where the court answered the questions is negative. The Court argued that the lady proposing to marry such a person is entitled to all the human rights which are available to any human being. It was held that ‘right to life’ guarantee under Art. 21 would 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 is sexually communicable. The Court said that when two fundamental rights clash viz. right to privacy of the person concerned and his would-be wife’s right to live a healthy life granted under Art. 21, the right which would advance the public morality or public interest shall be enforced through the process of Court. 

Right to Die

In a recent case of Common Cause (A Regd. Society) v. Union of India, the Supreme Court of India has held that right to die with dignity is a fundamental right. The Court issuing detailed guidelines held that passive euthanasia and a living will is also legally valid. The right to life and liberty as envisaged under Art. 21 is meaningless unless it encompasses within its sphere individual dignity. The right to live with dignity has been recognised as a component of right to life and liberty and right to live with dignity includes the smoothening of the process of dying in case of terminally ill patient or a person in persistent vegetative state with no hope of recovery. It was held that a failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the advance directive and the right of selfdetermination. The court held that when passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest. (3) Criminal Justice System vis-a-vis Article 21 

Right to Fair Trial, Fair Procedure & Fair Investigation

Article 21 envisages fair trial, a fair procedure and a fair investigation. 

Investigation A person is not only to be informed about his fundamental right and statutory rights but it is obligatory on the part of the authorities to place on record the requisite materials before the designated judge. Fair investigation and fair trial are concomitant to preservation of fundamental rights of accused under Article 21 of the Constitution. Free and Fair Trial is sine qua non of Art 21, the apprehension of denial must be reasonable and not imaginary where reasonableness would depend on the facts and circumstances of a case.

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Arrest The right to life of a citizen cannot be put in abeyance on his arrest. It cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. Arrest can cause incalculable harm to a person’s reputation and self-esteem. Arrest should be made not merely on suspicion but only after reasonable satisfaction reached after some investigation as to the genuineness and bona fides of the complaint and a reasonable belief as to the person’s complicity and even as to the need to effect arrest. The arrested man her certain rights such as he has a right that a relative/friend of his be informed about his arrest and the place of his detention and he has the right to consult a lawyer privately.

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Fair & Speedy Trial A ‘fair trial’ is the heart of criminal jurisprudence and an important facet of democratic polity and is the cornerstone of democracy. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial. A Fair trial would mean a trial before an impartial judge and a fair prosecutor. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being is eliminated. Right to fair trial in a criminal prosecution is enshrined in Art. 21. The Evidence Act (S.142) restricts the prosecution to put leading questions on the material part of the evidence which a witness intends to give against the accused and doing so infringes the right of the accused to

have a fair trial under Art. 21. Right to have a fair trial strictly in terms of the Juvenile Justice Act which would include procedural safeguard is a Fundamental Right of the Juvenile. Speedy trial is not mentioned as a specific Fundamental Right, neither has it been specifically guaranteed by the Cr.PC. However, the Supreme Court has recognised the same to be implicit under the wide ambit of Article 21. It is an inalienable right and sine qua non of Art. 21 of the Constitution. This is applicable not only to the actual proceedings in court but also includes the proceeding police investigations as well. 

Legal Aid Humanising the administration of criminal justice, the Supreme Court suggested that free legal aid be provided by the State to poor prisoners facing prison sentence. An accused is entitled to appeal against the verdict and he can claim legal aid, of he is indigent and is not able to afford a counsel; the State must provide a counsel to him. A lawyer’s service constitutes a necessary ingredient of fair procedure to a prisoner who is seeking his liberation through the Court’s procedure.

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Right against Handcuffing of Under-Trials Imprisonment does not by fact mean that fundamental rights desert the prisoner. The Supreme Court has held ‘handcuffing’ to be inhuman, unreasonable and arbitrary. The Court has held a rule requiring every undertrial person accused of a non-bailable offence punishable with more than 3 years’ prison term to be routinely handcuffed during transit from prison to Court for trial violates Arts. 14, 19 and 21. The only circumstance validating handcuffing is that there is no other reasonable way of preventing his escape in the given circumstances. There must be clear material such as record of reasons, judicial oversight or summary hearing and direction by the trial Court where the victim is produced. It has been declared to be a constitutional mandate that no prisoner is to be handcuffed or fettered routinely or merely for the convenience of the custodian or the Courts.

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Right against Police Torture & Custodial Violence The law is well-settled that the State or its functionaries cannot deprive any person of his life which includes right to live with human dignity except in

accordance with law. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Torture, assault and death in custody raise serious questions about the credibility of the rule of law and administration of the criminal justice system. Supreme Court has given several instructions to ensure protection against torture and maltreatment of women. For example, there should be separate lockups for female suspects guarded by female constables; interrogation of females should be carried out in the presence of female constables. 

Long Pre-Trial Confinement & Right against Delayed Death Sentence There are poor persons who have to languish in prisons awaiting trial because there is no one to post bail on their behalf. This pertains great injustice on the accused person and jeopardizes his personal liberty. Sometimes, an undertrial may remain in prison for much longer than even the maximum prison sentence which can be awarded to him on conviction for the offence of which he is accused. This adversely affects the rights of the undertrials who are presumed to be innocent till proven guilty. One reason for this is the irrational law regarding bail which insists on financial security from the accused and their sureties and, hence, the poor and deprived persons cannot be released on bail as they may are not able to provide with the same. They have to remain in prison awaiting their trial as a consequence. The Supreme Court has declared that any procedure which keeps such large numbers of people behind bars without trial so long cannot possibly be regarded as reasonable, just and fair so as to be in conformity with Art. 21. Prolonged delay in the execution of death sentence is dehumanizing and deprives a person a person of his life is an unjust, unfair and unreasonable way so as to offend Art. 21. The delay which could be considered in considering the question of commutation of death sentence into one of life imprisonment could only be from the date of judgment by the apex Court in pronounced. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself, shall not be considered. The only delay which would be material for consideration will be delay in disposal of mercy petitions or delays occurring by the Executive. There is a presumption that the mercy petitions are expeditiously disposed off by the concerned authorities. The court

may consider whether the execution of the sentence should be carried out, or should be altered into imprisonment for life. (4) Article 21A – Right to Education The Eighty-Sixth Constitutional Amendment Act, 2002 inserted Art. 21-A in the Constitution of India provide free and compulsory education of all children in the age group of 6-14 years as a fundamental right. The amendment gave effect to enactment of the Right of Children to Free and Compulsory Education Act, 2009. It casts an obligation on the appropriate authorities to provide and ensure admission, attendance and completion of elementary education for children in 6-14 years age group. It mandates admission of a non-admitted child to be admitted to an age appropriate class. The Act provides norms and standards relating to Pupil Teacher ratios, buildings and infrastructure, school working days and teacher working hours etc. The act prohibits physical punishment and mental harassment, screening procedures for admission of children, capitation fee, private tuition by teachers and running of schools without recognition.