ARTICLE 21: EXPANDING & EVER-EVOLVING By Rahul Saxena @Lexcliq

ARTICLE 21: EXPANDING & EVER-EVOLVING

As said by Justice Field in the celebrated case “Munn v. Illinois” the word “life” is more than mere animal
existence and it embraces within itself not only the physical existence but also the quality of life. The expression
“personal liberty” not only means freedom from arrest, detention and false or wrongful confinement but also
covers those rights and privileges that are essential to achieve happiness with freedom.
A.K. Gopalan v. State of Madras – Supreme Court of India since 1950 when it examined the “Right to personal
liberty” under Article 21 in the case of A.K. Gopalan v. State of Madras (Preventive Detention Act, 1950) has
come a long way through a journey of various judicial pronouncements by the Supreme Court. In A.K. Gopalan
case, the Supreme Court narrowed down the meaning and scope of “personal liberty” and held that the
term “personal liberty” meant only freedom of the physical body and that Articles 19 (1) (d) and Article 21 have
to treated separately.
Thereafter and not agreeing with the ratio in A.K. Gopalan case, Supreme Court has expanded and widened the
meaning and expression of “personal liberty” in many cases to reach an interpretation that could best protect
the liberty and freedom of an individual.
Kharak Singh v. State of UP: Supreme Court considered the U.P. Police Regulation as ultravires Article 21 and
Article 19 (1) (d) of the Constitution and held that domiciliary visits by the police every night to check and
monitor the doings of Kharak Singh were violative of his right to personal liberty and right to freedom of
movement as “personal liberty meant much more than mere animal existence”.
Maneka Gandhi v. Union of India: Widest possible interpretation was given to words and expression “personal
liberty” observing that the expression “personal liberty” in Article 21 is of widest amplitude and it covers
variety of rights which constitute the personal liberty of a man and Article 21 and Article 19 go together and
they mutually co-exist to the extent that if there is a law prescribing a procedure for depriving a person of his
personal liberty and though there is no infringement of the fundamental right under Article 21 but any such law
and procedure would have to meet the challenges of Article 19.

Various rights under article 21

 “Right to live with human dignity” is the roadmap to several other rights that have been recognised
under Article 21. It was the first right under Article 21 which received supreme consideration. Supreme
Court held for the first time that any law that deprives a person of his/her life or personal liberty must
pass the test of reasonability and the law should be just and fair and must provide for a procedure. The
law must satisfy the requirements of Article 14, Article 19 read with Article 21. The Right to live with
dignity includes adequate nutrition, clothing, shelter over the head with facilities of reading, writing and
to express one self. (Maneka Gandhi v. Union of India, Francis Coralie v. Union Territory of Delhi and
Bandhua Mukti Morcha v. Union of India).
“Right to livelihood” Right to life includes right to livelihood because no person can live without the
means of living. It has been held by the Supreme Court that imposition of Tehbazari by the Municipal
Corporation is in violation of rights of hawkers to carry on the business fetching them livelihood.(Olga
Tellis v. Bombay Municipal Corporation and Sodan Singh v. New Delhi Municipal Corporation).
“Right to Education”. Very recently, the Supreme Court recognised right to education as one of the key
rights thus giving it place under Article 21A of the Indian Constitution. The right to education is
fundamental right of a person as it directly flows out from right to life. Earlier this right to education
was covered under directive principles of state policy but with the change in needs and circumstances
in the society, it has been now categorised as fundamental right (Mohini Jain v. State of Karnataka and
Unnikrishnan v. State of Andhra Pradesh)
“Right of prisoners and right against illegal detention”. The Article 21 is available to each and every
person and not only to the citizens of India. It recognises the rights of the arrested persons by providing
a fair and reasonable mechanism to be followed in confinement of persons so that no person is illegally
detained. Even a person convicted of any offence, though deprived of freedom, but he is well entitled
to rights guaranteed under Article 21 of the Constitution. Even solitary confinement of a person in jail
was held to be violative of Article 21 (Sunil Batra v. Delhi Administration).

 “Right to legal aid and right to speedy trial”. Supreme Court has provided liberty to poor persons to
apply to the state for free legal services and it shall be the duty of the state to provide assistance to
such poor persons and have their claims adjudicated without burden of legal fees and expenses. Right
to free legal aid has been held to be the fundamental right and it is the duty and obligation of any trial
court to inform the accused about his right to free legal aid. The right to speedy trial has also been held
as inalienable right of every citizen of the country (Hussainara Khatoon v State of Bihar and Khatri v.
State of Bihar)

 “Right against sexual harassment at work place”. The Supreme Court has laid down important
guidelines to protect and prevent any kind of sexual harassment of a working woman at her workplace
in the judgement reported (Vishakha v State of Rajasthan) where after the legislature has also
promulgated Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.
“Right to choice of sex”. The 5 Judges Constitution Bench in the case of Navtej Singh Johar v. Union of
India has declared ultravires section 377 of Indian Penal Code, 1860, thereby striking down
criminalization in same sex relations between consenting adults. As a result of the above, the LGBT
individuals are permitted to engage in consensual intercourse. This is said to be another milestone in
the journey of Article 21.
“Right to clean environment”. Article 21 includes right to live life of dignity in healthy environment with
proper sanitation system and free of pollution (Vellore Citizens’ Welfare Forum v. Union of India).
“Right to Privacy”. Under Article 21, the right to privacy is fundamental right as held by 9 judges
constitution bench in the case (Justice K.S. Puttuswamy (Retd.) v. Union of India (2017))
“Right to die with dignity”. The Supreme Court has now allowed passive euthanasia under some
exceptional circumstances and strict monitoring of the court. The court has permitted “Living Will” of a
patient to withdraw medical support in case if the person concerned goes into irreversible state of
coma. Though active euthanasia where something is done to end the life of the patient is not
permissible but passive euthanasia when something is not done that would preserve the patient’s life
is held to be the fundamental right under Article 21. (Aruna Ramchandra Shanbaug v. Union of India
and Common Cause v. Union of India: (2018))

“Right to Disclosure of dreadful diseases”. Every person has been held entitled for all human rights
including the right to be told about any dreadful and deadly disease. The lady proposing to marry a
person is entitled to be informed about her fiancé suffering from HIV + from the doctor in whose
treatment the husband is covered. There is no infringement of the fundamental rights under Article 21
if the doctor so informs the lady.
“Right to choose life partner”. Very recently, Supreme Court has held the right to choose his or her life
partner as fundamental right under Article 21 and directions given to authorities to take all possible
preventive steps to combat honour killings and related crimes (Shakti Vahini v. Union of India).

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