Notes on Article 21

Faculty: Jatin Gupta

The main object of Article 21 is that before a person is deprived of his life or personal liberty
by the State, the procedure established by law must be strictly followed.

The scope of Article 21 was a bit narrow till Maneka Gandhi case as it was held by the Supreme
Court in A. K. Gopalan vs. State of Madras Case 1950 that there was no guarantee in our
Constitution against arbitrary legislation encroaching upon personal liberty. Hence if a
competent legislature makes a law providing that a person may be deprived of his liberty in
certain circumstances, the validity of the law could not be challenged in a court of law on the
ground that the law is unreasonable, unjust, and unfair. Thus, in Gopalan case, the majority at
Supreme Court propounded the view that by adopting the expression ‘procedure established by
law’, article 21 has embodied the English concept in preference to that of American ‘Due Process’.

In Gopalan case the arguments made by the petitioners were as follows:

a) The word 'law' in Art. 21 does not mean merely enacted law but incorporates principles of
natural justice so that a law to deprive a person of his life or personal liberty cannot be valid
unless it incorporates these principles in the procedure laid down by it.
b) The reasonableness of the law of preventive detention ought to be judged under Art. 19
c) The expression 'procedure established by law' introduces into India the American concept of
procedural due process which enables the Courts to see whether the law fulfils the requisite
elements of a reasonable procedure. Thus, in Gopalan, an attempt was made to win for better
procedural safeguards than were available to him under the relevant detention law and Art. 22.
But the attempt failed as the Supreme Court rejected all these arguments.

The ruling thus meant that to deprive a person of his life or personal liberty:
(1) there must be a law;
(2) it should lay down a procedure; and
(3) the executive should follow this procedure while depriving a person of his life or personal
liberty

The majority judgment in Gopalan case was, however, overturned in Maneka Gandhi v. Union
of India Case 1978. This case shows how liberal tendencies have influenced the Supreme Court
in the matter of interpreting Fundamental Rights, particularly, Art. 21. A great transformation
has come about in the judicial attitude towards the protection of personal liberty after the
traumatic experiences of the emergency during 1975-77 when personal liberty had reached its
nadir. This case showed that Art. 21 as interpreted in Gopalan could not play any role in
providing any protection against any harsh law seeking to deprive a person of his life or personal
liberty.

In Maneka Gandhi, the situation was as follows: S. 10(3)(c) of the Passport Act authorised the
passport authority to impound a passport if it deemed it necessary to do so in the interest of
the general public. Maneka's passport was impounded by the Central Government under the
Passport Act in the interest of the general public. Maneka filed a writ petition challenging the
 Notes on Article 21
Faculty: Jatin Gupta

order on the ground of violation of her Fundamental Rights under Art. 21. One of the major
grounds of challenge was that the order impounding the passport was null and void as it had
been made without affording her an opportunity of being heard in her defense.

The Court laid down the proposition that Arts. 14, 19 and 21 are not mutually exclusive. A nexus
has been established between these three Articles. This means that a law prescribing a
procedure for depriving a person of 'personal liberty' has to meet the requirements of Art. 19.
Also, the procedure established by law in Art. 21 must answer the requirement of Art. 14 as well
Art 19 and 21 are not water-tight compartments. On the other hand, the expression of ‘personal
liberty’ in Art 21 is of the widest amplitude, covering a variety of rights of which some have
been included in Art 19 and given additional protection. Hence, there may be some overlapping
between Art 19 and 21.

The expression 'personal liberty' in Art. 21 was given an expansive interpretation. The Court
emphasized that the expression 'personal liberty' is of the "widest amplitude" covering a variety
of rights "which go to constitute the personal liberty of man". Some of these attributes have
been raised to the status of distinct Fundamental Rights and given additional protection under
Art. 19. The expression 'personal liberty' ought not to be read in a narrow and restricted sense
so as to exclude those attributes of personal liberty which are specifically dealt with in Art. 19.
"The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights
rather than attenuate their meaning and content by a process of judicial construction." The right
to travel abroad falls under Art. 21

Article 21 would no longer mean that law could prescribe some semblance of procedure,
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however arbitrary or fanciful, to deprive a person of his personal liberty. It now means that the
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procedure must satisfy certain requisites in the sense of being fair and reasonable. The
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procedure "cannot be arbitrary, unfair or unreasonable". The concept of reasonableness must

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be projected in the procedure contemplated by Art. 21. The Court has now assumed the power
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to adjudge the fairness and justness of procedure established by law to deprive a person of his
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personal liberty.
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Article 21 and expanding scope

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The expanded scope of Article 21 has been explained by the Apex Court which has provided the
list of some of the rights covered under Article 21 on the basis of earlier pronouncements and
some of them are listed below:

Cases related to the environment-

● Right to a healthy and clean environment- M C Mehta vs. Union of India

● Right to sustainable development- N D Jayal vs. Union of India
● Right to pollution-free air and water- Subhash Kumar vs. State of Bihar
● Pollution from pollution hazards due to the use of pesticides- Ashok vs. Union of India case

Cases related to personal liberty

● Right to choose one's sexual orientation- Navtej Singh Johar vs. Union of India case
 Notes on Article 21
Faculty: Jatin Gupta

● Right to choose one's life partner- Shakti Vahini vs. Union of India case
● Right against phone tapping- R M Malkani vs. State of Maharashtra
● Right to reputation- Kiran Bedi vs. Committee of Enquiry

Cases related to social issues

● Right against sexual harassment at the workplace- Vishakha vs. the State of Rajasthan
● Right to livelihood- Olga Tellis v. Bombay Municipal Corporation
● Right to education- Mohini Jain vs. the State of Karnataka
● Right to Health- Vincent vs. Union of India case
● Right to die with dignity- Aruna Shaunbagh vs. Union of India

Does the right to life also include the right to take one’s own life?

Suicide law in India: Under Section 309 of the Indian Penal Code, an attempt to commit suicide
is punishable with simple imprisonment up to one year and/or a fine.

The Supreme Court in 1994 not only decriminalised the attempt to suicide but also observed
that the ‘right to life’ includes the ‘right to die.’ The court observed that all fundamental rights
have positive connotations as well as negative connotations. Thus,

● The fundamental right to freedom of speech and expression can be said to include the
right not to speak.
● freedom of movement and association includes the freedom not to move or join an
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association.
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● freedom to do business includes freedom not to do any business.

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A five-judge bench headed by Justice J.S. Verma in Gian Kaur case (1996) made 'right to die'
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unconstitutional. The Court held that the right to life under Article 21 does not include the right
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to die.
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In 2008, the Law Commission recommended that the suicide bids be decriminalized. It
suggested that the intention to commit suicide should be seen as a manifestation of a diseased
condition of mind, requiring care and treatment, not punishment. It also pointed out that only a
handful of nations like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with
this undesirable.

Arguments against decriminalizing suicide

● It is argued that no individual has complete autonomy with respect to life. His family
does have a claim over him.
● A person may be the sole bread winner of his family and if he commits suicide, his family
would certainly be driven to destitution.
● But the counter argument is that decriminalization of suicide (Section 309 of IPC) will
also decriminalize the abetment to the commission of suicide (Section 306 of IPC). This is
 Notes on Article 21
Faculty: Jatin Gupta

more technical as how abetment of something which is not a crime can be termed as
crime. This may enhance the abuse of law after deletion of section 309 of IPC,
particularly in cases of dowry death, honour death and by child in case of elderly
parents. However, this technical issue can be dealt with by proper amendments.
● Based on individualistic tradition of life as opposed to community way of life
● Govt has responsibility to stop violence even if it is self-inflicted

Arguments in favour of decriminalizing suicide

● It is unfortunate that this is the only law which penalises for not being successful in
committing an offence
● Anyone committing suicide certainly needs soft words and wise counselling, not stony dealing
by a jailor following harsh treatment meted out by a heartless prosecutor. • Some people
argue that life is given by god and thus should also be taken by him and thus right to die is
against religious values. Even by citing examples from mythology of Lord Rama taking Jal
Samadhi in the Sarayu to Buddha and Mahavira achieving death by seeking it, suicide could
not be termed an irreligious act.
● Questions are also raised over rights of those persons who are terminally ill and want to die
with dignity
Euthanasia and right to life

The word ‘euthanasia’, which originated in Greece, literary means a good death but in this
context, it means mercy killing. Euthanasia encompasses various dimensions, from active
(introducing something to cause death) to passive (withholding treatment or supportive
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measures); voluntary (consent) to involuntary (consent from guardian) and physician assisted
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(where physicians prescribe the medicine and patient or the third party administers the
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medication to cause death).

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Request for premature ending of life has contributed to the debate about the role of such
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practices in contemporary health care. This debate cuts across complex and dynamic aspects
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such as legal, ethical, human rights, religious, economic, social and cultural aspects of the
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civilised society. In our day to day life, we often come across terminally ill patients that are
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bedridden and are totally dependent on others. It actually hurts their sentiments. Looking at
them we would say that death will be a better option for them rather than living such a painful
life. But if we look at the Netherlands where euthanasia is made legal, we will see how it is
abused there. So following its example no one wants euthanasia to be legalized in India. But the
question that lies before us is which will be a better option.

What is Passive Euthanasia?

Passive euthanasia is a condition where there is withdrawal of medical treatment with the deliberate
intention to hasten the death of a terminally-ill patient.
The 241st report of the Law Commission states that passive euthanasia should be allowed with
certain safeguards and there is a proposed law Medical Treatment of Terminally Ill Patient
(Protection of Patients and Medical Practitioners) Bill, 2006 in this regard.
Passive euthanasia entails a patient being allowed to die by limiting medical intervention, not
 Notes on Article 21
Faculty: Jatin Gupta

escalating already aggressive treatment, withholding or withdrawing artificial life support in

cases that are judged to be medically futile.

Country Euthanasia Physician Assisted Suicide

Netherlands, Belgium Legal Legal

Germany Illegal Legal

Australia, Canada, Israel, Illegal Illegal

Italy

In 2011, the Supreme Court, while hearing the case of Aruna Shanbaug, who was in a vegetative
state for more than 40 years, had partially legalised passive euthanasia partially. A nurse at KEM
Hospital in Mumbai, Shanbaug was in a vegetative state since 1973 after a brutal sodomisation
and strangling with a dog-chain during a sexual assault. She died in 2015 while on a ventilator
for several days after suffering from pneumonia. SC gave patients living in a vegetative state the
right to have treatment or food withdrawn and laid down guidelines to process passive
euthanasia in the case of incompetent patients. The guidelines included seeking a declaration
from a high court, after getting clearance from a medical board and state government.

The Supreme Court ruled in 2018 that individuals have a right to die with dignity, in a verdict
that permits the removal of life-support systems for the terminally ill or those in incurable
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comas. The court also permitted individuals to decide against artificial life support, should the
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need arise, by creating a “living will”. SC was hearing a plea by NGO Common Cause to declare
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‘right to die with dignity’ as a fundamental right within the fold of right to live with dignity,
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which is guaranteed under Article 21 of the Constitution.

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Arguments against euthanasia

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1. Against the constitution of India: ‘Right to life’ is a natural right embodied in Article 21
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but euthanasia/suicide is an unnatural termination or extinction of life and, therefore,

incompatible and inconsistent with the concept of ‘right to life’. It is the duty of the State to
protect life and the physician’s duty to provide care and not to harm patients. The Supreme
Court in Gian Kaur Case 1996 has held that the right to life under Article 21 does not include
the right to die.

2. Neglect of Healthcare by State: If euthanasia is legalised, then there is a grave

apprehension that the State may refuse to invest in health (working towards Right to life).
Legalised euthanasia has led to a severe decline in the quality of care for terminally-ill
patients in Holland.

3. May be misused: In the era of declining morality and justice, there is a possibility of
misusing euthanasia by family members or relatives for inheriting the property of the
 Notes on Article 21
Faculty: Jatin Gupta

patient. The Supreme Court has also raised this issue in the Aruna Shabaug judgement.

4. Lead to commercialisation of health care: Passive euthanasia occurs in the majority of the
hospitals across the county, where poor patients and their family members refuse or
withdraw treatment because of the huge cost involved in keeping them alive. If euthanasia is
legalised, then the commercial health sector will serve death sentences to many disabled
and elderly citizens of India for a meagre amount of money. This has been highlighted in the
Aruna Shabaug Judgement.

Arguments in favour of euthanasia

1. Right to die with dignity: ‘Right to die’ supporters argue that people who have an
incurable, degenerative, disabling or debilitating condition should be allowed to die with
dignity.

2. Care-givers burden: The caregiver’s burden is huge and cuts across various domains such
as financial, emotional, temporal, physical, mental and social.

3. Right to refuse care: Right to refuse medical treatment is well recognised in law, including
medical treatment that sustains or prolongs life.

SC turned down a friend’s plea for mercy killing of vegetative Aruna Shanbaug saying that
only a hospital could make such a request. The judgment of SC is based on the following
logic:

1. If we leave it solely to friends and relatives, there is always a chance that this may be
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misused by some unscrupulous elements who wish to inherit or grab patients’ property.
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2. If euthanasia is legalised, then commercial health sector will serve death sentence to
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many disabled and elderly citizens of India for meagre amount of money
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Transgenders and their rights

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NALSA judgment
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● The Supreme Court in 2014 recognized transgenders as the third gender in a landmark
ruling, saying it was addressing a “human rights issue”. The court stated that recognition
of transgenders as a third gender is not a social or medical issue but a human rights
issue.
● A PIL was filed by the National Legal Services Authority (Nalsa) demanding equal rights.
● The judgements said that non-recognition of gender identity amounts to discrimination
under Article 15, which prohibits discrimination on the basis of sex.
● The spirit of the constitution is to provide equal opportunity to every citizen to grow and
attain their potential, irrespective of caste, religion or gender
● Self-identification as man or woman, irrespective of sexual reassignment surgery, was
now protected by law.
● The judges said rights such as the right to vote, own property, marry and to “claim a
 Notes on Article 21
Faculty: Jatin Gupta

formal identity” would be made available “more meaningfully” to the transgender

community as a result of the ruling.
● Gender identity refers to each person’s deeply felt internal and individual experience of
gender, which may or may not correspond with the sex assigned at birth, including the
personal sense of the body which may involve a freely chosen, modification of bodily
appearance or functions by medical, surgical or other means and other expressions of
gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an
individual’s self-identification as a man, woman, transgender or other identified
category.”

Some of the important provisions of The Transgender Persons (Protection of Rights) Act,
2019 have been mentioned below:

● Definition of a transgender person: It defines a transgender person as one whose

gender does not match the gender assigned at birth. It includes transmen and
trans-women, persons with intersex variations, gender-queers, and persons with
socio-cultural identities, such as kinnar and hijra.
● Certificate of identity: A transgender person may make an application to the District
Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
● Prohibition against discrimination: It prohibits discrimination against a transgender
person, including denial of service or unfair treatment in relation to:
a. Education, employment, healthcare.
b. Access to or enjoyment of goods, facilities, opportunities available to the
public.
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c. Right to movement, right to reside, rent, or otherwise occupy property.

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d. Opportunity to hold public or private office.

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e. Access to a government or private establishment in whose care or custody a

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transgender person is.

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● Health care
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It also seeks to provide rights of health facilities to transgender persons including

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separate HIV surveillance centres, and sex reassignment surgeries.

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It also states that the government shall review medical curriculum to address
health issues of transgender persons, and provide comprehensive medical
insurance schemes for them.
● It calls for establishing a National Council for Transgender persons (NCT).
● Punishment: It states that the offences against transgender persons will attract
imprisonment between six months and two years, in addition to a fine.

Section 377 and Navtej Singh Johar Judgment

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also
 Notes on Article 21
Faculty: Jatin Gupta

be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse

necessary to the offense described in this section

● A series of applications for refugee status were filed by members of India’s LGBT
community living abroad in the years leading up to the Supreme Court’s 2018 judgment
on Section 377 of the Indian Penal Code
● Courts in Britain and Australia took evidence on whether those from the community
faced a real risk of persecution if they returned to India.
● Portions of the section were first struck down as unconstitutional with respect to gay sex
by the Delhi High Court in July 2009. That judgement was overturned by the Supreme
Court of India (SC) on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation.
The Court held that amending or repealing section 377 should be a matter left to
Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court
reviewed curative petitions submitted by the Naz Foundation and others, and decided
that they would be reviewed by a five-member constitutional bench.
● On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental
right under the Constitution in the landmark Puttaswamy judgement. The Court also
called for equality and condemned discrimination, stated that the protection of sexual
orientation lies at the core of the fundamental rights and that the rights of the LGBT
population are real and founded on constitutional doctrine. This judgement was
believed to imply the unconstitutionality of section 377.
● In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz
Foundation judgment. On 6 September 2018, the Court ruled unanimously in Navtej
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Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it
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criminalises consensual sexual conduct between adults of the same sex". The judgment
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was given by a five judges bench comprising.

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● This decision thus overturned the 2013 ruling in Suresh Kumar Koushal v. Naz
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Foundation in which the court had upheld the law. However, that being said, other
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portions of Section 377 relating to sex with minors, non-consensual sexual acts, and
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bestiality remain in force.

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More on Apex Court’s decision

● The Supreme Court declared Section 377 unconstitutional to the extent that it criminalizes
consensual sexual activity between adults in private.
● However, Section 377 – together with the social prejudices that silently accompany it –
continues to live an afterlife.

SC did not strike down Section 377 in its entirety

● In some respects, Section 377 could present a wider range of enforcement challenges. This is
because unlike Section 66A, the SC did not strike down Section 377 in its entirety. • Instead, it
chose to strike it down only to the extent that it applies to consensual sexual activity between
adults in private.
 Notes on Article 21
Faculty: Jatin Gupta

● Non-consensual sexual activity, as well as sexual activity involving children, can continue to be
prosecuted.
● Therefore, the briefing to the lowest levels of enforcement needs to convey the nuanced
message that Section 377 may be enforced in some ways, but not others.

Right to privacy and Puttaswamy case

Two Constitution Bench judgments — Sharma (1954), an eight-judge decision, and Kharak
Singh (1962), a six-judge judgment — held that the Right to Privacy was not a fundamental
right. A Committee of Experts was constituted under Justice A P Shah to study the privacy
laws and make suggestions on proposed draft Bill on Privacy 2011

Why is the right to Privacy so important?

● The right to dignity in each individual as a human being is incomplete without the right
to privacy and reputation.
● The ability to make choices and decisions autonomously depend on the preservation of
the “private sphere".
● The right to personal liberty of human is unsubstantial without adequate protection for
right to privacy
● The advent of modern tech tools has made the invasion of privacy easier. Also, several
national programmes and schemes are using computerised data collected from citizens
which is vulnerable to theft and misuse.
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In August 2017, a nine-judge bench of the Supreme Court in Justice K. S. Puttaswamy (Retd)
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Vs Union of India unanimously held that Indians have a constitutionally protected

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fundamental right to privacy that is an intrinsic part of life and liberty under Article 21.
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It held that privacy is a natural right that inheres in all-natural persons, and that the right
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may be restricted only by state action that passes each of the three tests:
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o First, such state action must have a legislative mandate;

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o Second, it must be pursuing a legitimate state purpose; and

o Third, it must be proportionate i.e., such state action — both in its nature and
extent, must be necessary in a democratic society and the action ought to be the
least intrusive of the available alternatives to accomplish the ends.
Observations made by some of the judges in Right to Privacy Case
● Privacy is a constitutionally protected right which emerges primarily from the guarantee of life
and personal liberty in Article 21 of the Constitution.
● Privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation.
● Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
● Informational privacy is a facet of the right to privacy.
● A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which
 Notes on Article 21
Faculty: Jatin Gupta

fall in the realm of privacy.

● Telephone tapping and internet hacking by the State, of personal data is another area which
falls within the realm of privacy.
● The privacy of the home must protect the family, marriage, procreation and sexual orientation
which are all important aspects of dignity.

Privacy Judgement’s importance

● This landmark judgment fundamentally changed the way in which the government viewed its
citizens’ privacy, both in practice and prescription.
● It demands from the authorities to demonstrate great care and sensitivity in dealing with
personal information of its citizens.
● Expands the individual’s fundamental rights – by guaranteeing it in Article 21 and including
freedom from intrusion into one’s home, the right to choose food, freedom of association etc.
● Ensures dignity as it is not possible for citizens to exercise liberty and dignity without privacy
● Etches firmer boundaries for the state. Now right to privacy cannot be curtailed or abrogated
only by enacting a statute but can be done only by a constitutional amendment
● Increase responsibility of the state to protect data as any data breach in national programmes
involving collection of personal data would have to be compensated unlike in a police state.
Concerns arising from judgement

● Bearing on government’s welfare schemes & other cases – such as Adhaar, Section 377,
WhatsApp privacy policy, restriction on eating practices etc.
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● Bearing on RTI - A fine balance is difficult to be maintained between right to privacy &
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right to information such that disclosure of information does not encroach upon
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someone’s personal privacy

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● Possible misuse by accused in investigations by accused – on using personal information

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by law enforcement agencies

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● Contours of privacy cannot be defined as it pervades all other fundamental rights. It is a

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cluster of rights including surveillance, search and seizure, telephone tapping, abortion,
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transgender rights etc.

● Undermines Separation of Power – as it is not the job of court to amend fundamental
rights. Inclusion or exclusion of fundamental rights is only the proviso of Parliament