CHAPTER - 6

CONCLUSION AND SUGGESTION

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CHAPTER-V1
CONCLUSION AND SUGGESTION

1. Concluding Observation :

An analysis of the Judicial behaviour of the apex court Vis-a-Vis

Article 21, after the landmark Judgment in the Maneka Gandhi Vs.

Union of India1 makes it clear that the court has expanded the

horizons of Article 21 beyond the imagination and contemplation of

the framers of the constitution, the Judges themselves and the

constitutional lawyers. The court has by its liberal interpretation in

numerous cases, has widened the scope of personal liberty so as to

include many unenumerated and implied rights in the fold of Article

21, more particulary from Article 21, sprung up a whole lot of human

rights Jurisprudence and the credit goes solely to the Supreme Court

for its assertion of Judicial power for a humanitarian purpose and with

a human touch.

2. Random survey of Landmark Decisions

We may now have a quick survey of landmark decisions rendered

by the Supreme Court in relation to personal liberty as contained in

1. AIR 1978 SC 597

 198

Article 21 of the Constitution which has a bearing on human rights

Jurisprudence. It may also be observed in this context that the Hon’ble

Supreme court has interpreted Article 2I to include a wide variety of

-Positive and negative rights. These rights include social rights,

economic rights, human rights and legal rights of many manifastations

that are essential for making a man’s life meaningful and worthwhile

and which enable him to live with basic human dignity.

(a) Rignt to privacy In Neera vs. Life Insurance Corporation

of India2 the Supreme Court observed that a woman employee of the

Corporation need not submit answers to questions regarding the

regularity of menstrual cycle, the number of conceptions taken etc.

which are embarrassing and violative of the right to privacy of the

employees In R.Raja Gopal Vs. State of T.N.3 the apex court ruled

that even a prisoner condemned to death by the Court, also has a

right to privacy, which is part of his right under Article 21. In P.U.C.L.

Vs. Union of India4, it was observed by the Supreme Court that

telephone tapping violates the right to privacy which is a part of

Article 21 read with Article 19 (1) (a).

Yet in another landmark case Mr. ‘X’Vs. Hospital ‘Z’5 the Hon’ble

2. (AIR 1992 SC 392)

3. (AIR 1995 SC 264)
4. (AIR 1997 SC 568)
5. (AIR 1999 SC 455)
 199

apex court observed that a woman is at liberty not to mary an AIDS

patient. Further the apex court ruled that in a case of clash between

fundamental rights, the right which would advance public morality and

public interest would alone be enforced. In State of Maharashtra V.

Madhulkar Narain6 the supreme court observed that right to privacy

is available even to a woman of easy Virtue and no one can invade

her privacy.

(b) Right to go abroad In Satwant Singh Vs. Asst. Passport

Officer, New Delhi7 it was observed by the apex court that the

expression “Personal liberty” in Article 21 takes in, the right of

locomotion and to travel abroad.

(c) Right to shelter In U.P. Avas Evam Vikas Parishad Vs.

Friends co-operative Housing Society8 the Supreme Court held that

the right to life under Article 21. includes the right to shelter.

(d) Rights of prisoners A prisoner may be an undertrial or a

convicted person. But such captive is entitled to enjoy fundamental

rights and personal liberty, though circumscribed. In Sunil Batra vs.

Delhi Administration9 (No. 2) the apex court ruled that the practice of

keeping undertrials with convicts in jails offends the test of

reasonableness in Article 19 and fairness in Article 21.

6. (AIR 1991 SC 207)
7. (AIR 1967 SC 1836)
8. (AIR 1996 SC 114)
9. (AIR 1980 SC 1579)
 200

(e) Rights of prisoners to have interview In Francis Coralie

Mullin Vs. Union Territory of Delhi10 the supreme court held that a

detenue has a fundamental right to have interview with his legal

advisor and family members.

(f) Right to speedy trial The Hon-ble Supreme Court handed

down landmark decisions in a number of cases in this regard*11.

It was held in Common Cause A Registered Society Vs. Union of

India12 that fundamental rights includes the privilege of the undertrial

prisoners to speedy trial and also to legal assistance if necessary, at

the expense of State. And that both the rights are part ot Article 21.

(g) Handcuffing of prisoners In a recent case President

Citizen for Democracy Vs. State of Assam13, the appex court held that

handcuffing of every prisoner, regardless of varying reasons and

backgrounds violates Article

(h) Right to fair, trial In police Commissiner, Delhi Vs. High

Court14 the apex Court upheld that assurance of fair trial is the first

imperative of the dispensation of Justice. And delayed trial defeats the

right of an accused to speedy and fair trial implicit under Article 21.15
10. (AIR 1981 SC 746)
11. (Kadra Panadia Vs. state ofBihar (AIR 1981 SC 939) Sheela Barse Vs. Maharashtra AIR 1983
SC 378 A.R. Antulay Vs.RS.Nayak (AIR 1992 SC 1701), Ma nsukhlal Vithal Das Chowhan Vs.
State of Gujrat (AIR 1997 SC 3400j
12. (AIR 1997 SC 1886)
13. (AIR 1996 SC 2193)
14. (AIR 1997 SC 95)
15. (Santosh Vs. Archana Guha (AIR 1994 SC 1229)
 201

Yet in another landmark case Vineet Narain Vs. Union of India16

the apex court emphatically declared that, requirement of public

hearing in Court, is part of the fair trial under Article 21 of the

Constitution.

(i) Right against Illegal Detention When the crininal Justice

system fails, sometimes a convict or undertrial or detenue has to

spend his precious time in the prison, even though he is not required

to do so according to law. In such cases, the Supreme Court has

upheld the rignt against illegal or unlawful detention in jail which is

violative of the guarantee under Article 21. In Dhananjay Sharma Vs.

State of Haryana17 the Hon'ble Supreme Court h^ld that the right to

compensation for illegal detention is a fundamental rights under

Article 2I.

(j) Right against torture and custodial violance In kishor

Singh Vs. State of Rajasthan18 it was held by the Supreme Court that

use of third degree methods by the police on arrested persons

violates their rights under Article 21. In Nilabati Behra Vs. State of

Orissa19 the Hon’ble Supreme Court deprecated the brbaric act of

police of killing the petitioner’s son in police custody by torture and

16. (AIR 1998 SC 889)

17. (AIR 1995 SC 1795)
18. (AIR 1991 SC 625)
19.(AIR 1993 SC 1960)
 202

declared that any person whose fundamental rights have been

violated by State action, can move either the High Court under Article

226 or the Supreme Court under Article 32 for monetary

compensation20. (In D.K. Basu Vs. State of West Bengal and in Ashok

Kumar Johuree Vs. State of Uttar Pradesh)which cases were

adjudicated by the Hon’ble Supreme Court in December, 1996, many

guidelines were issued by the Supreme Court which were to be

complied with by police for prevention of custodial Violence against

the arrested persons.

Yet in another landmark decision Postsangbham Ningol

Thockchom Vs. General Officer Commanding21 the Supreme Court

awarded compensation to the family members of those persons who

disappeared, after being carried qway by army personnel.

(k) Delay in execution of death sentence and Article 21 It

is a fact that the person who is sentenced to death virtually dies

everyday till his life is extinguished by hanging. Therefore; the Hon’ble

Supreme Court held in a number of cases that delayed execution of

death sentence violates the personal liberty of the condemend

prisoner as long as he is alive and when it has been found that the

delay was caused not due to the conduct of the condemned prisoner,

20. (In D.KBasu Vs. State of West Bengal AIR 1997 SC 3017 and in Asholce Kumar Jahure Vs.
State of Uttar Pradesh)writ petition (CR 2) no. 592 of 1987
21. (AIR 1997 SC 3534)
 203

the court ordered the commutation of death sentence to life

imprisonment. In Shivaji Jaising Babar Vs. State of Maharashtra22 the

Hon’ble Supreme Court held that the delay in disposal of a mercy

petition, demands modification of the death sentence into one of life

imprisonment.

In Triveni Ben Vs. Gujarat23 it was observed by the Supreme

Court that undue and long delay in execution of the death sentence

would entitle the condemned person to approach the supreme court

for conversion of death sentence into life imprisonment but that before

doing so the court should examine the nature and circumstances of

the case.

(I) Right to free legal aid The Hon’ble Supreme Court has

interpreted the object of rendering equal Justice and free legal aid,

(as laid down in Article 39-A) of the Constitution as a part and parcel

of Article 21 in numerous Judgments rendered by it.

In a recent case State of Maharashtra Vs. M.P. Vashi24the apex

court ruled that the right to legal assistance of undertrial prisoners at

State’s expense is part of their fundamental rights under Article 21.

22. (AIR 1991 SC 2147)

23. (AIR 1989 SC 142)
24. (AIR 1996SCI)
 204

(m) Right to education Though right to education is not a

specified fundamental right in part III of the constitution, yet under

Article 41, and Article 45, the state is directed to make arrangements

for spread of education among children until they complete 14 years.

In Mohini Jain Vs. State of karnataka25 the Hon’ble Supreme Court

.observed that the right to education flows directly from right to life.

In Unnikrishnan Vs. A.P.26 Supreme Court observed that every

citizen of this country has a right to free education until he comipletes

the age of 14 years.

Thus it is evident from the foregoing discussion that the right to

education which is only a directive principle, has now acquired the

status of a fundamental right under Article 2I owing to the judicial

activism of the Supreme Court.

(n) Right to Health Though it is a fact that the right to health

has not been given the status of a fundamental right in the Indian

Constitution, however, the significant provisions of the Directive

principles of State policy enshrined in part IV of the Constitution

enjoins the state to ensure the health and safety of the citizens.27

The Hon’ble Supreme Court in Consumer Education and

25. (AIR 1992 SC 1858)

26. (1992) 1 SCC 645
27. Article 47 of the Indian Constitution directs the State to raise the level of nutrition and the
standard of living of its people and the improvement ofpublic health, as among its primary
duties.)
 205

Research Centre Vs. Union of India28 ruled that the right to health and

medical care is a fundamental right under Article 21, which is

essential for making the life of the workman meaningful and

purposeful with dignity of person.

Again in State of punjab Vs. Mohinder Singh chawla29 the apex

court highlighted the need to ensure the health of the workers and

others, as an integral part of the right invigorated under Article 21.

(o) Right to livelihood The Indian Constitution does not

specifically provide the right to livelihood for the Indian citizens, as a

fundamental right, but Article 39(a) of the Constitution, which is a

directive principle of state policy signifies that the State shall direct its

policy towards securing the right to adequate means of livelihood to

the citizens.

But the Hon’ble Supreme Court gradually became conscious of

giving the status of the fundamental right to the right to livelihood.

In Olga Tellis Vs. Bombay Municipal Corporation30 the apex court

has maintaind that right to liveligood is included in the right to life

“because no person can live without the means of living that is the

means of livelihood”

28. (AIR 1995 SC 922)

29. (AIR 1997 SC 1225)
30. (AIR 1986 SC 180(1993))
 206

In Narendra Kumar chandla Vs. State of Haryana31 the Hon’ble

Supreme Court decided that the right to life under Article 21 includes

the life to livelihood.

The Supreme Court however, in state of H.P. Vs. Raja Mahendra

pal32 decided that right to livelihood cannot be so widely construed

which may result in defeating purpose sought to be achieved by

Art.21.

(p) Right Against cruel and Inhuman punishment

The substantive criminal law as it exists in India that is the Indian

penal Code, 1860 provides a maximum sentence of death followed by

life imprisonment for commission of certain grave offences like murder,

rape with murder and decoity with murder etc.

The Hon’ble Supreme Court was on many occasions confronted

with the task of deciding the validity of death sentence u/s. 302 of the

I.P.C. 1860.

In Jagmohan Singh Vs. State of U.P.33 the Hon’ble Apex Court

held that the imposition of death sentence upon an accused as

warranted by law and in accordance with the procedure established

by law cannot be said to be unconstitutional. Again in Bachan Singh

31. (AIR 1995 SC 519)

32. (AIR 1999 SC 1786)
33. (AIR 1973 SC 947)
 207

Vs. State of Punjab34 the Hon’ble Supreme Court ruled that the

provision of death penalty as an alternative punishment for murder

is not violative of Article 21.

In Allaauddin Main Vs. State of Bihar35 the Apex Court upheld the

position that imposition of death peanlty does not violate Article 21.

The apex court however, declared in Shiv Ram Vs. State of Uttar

Pradesh and also in R. Trimbak Chouthmal Vs. State of Maharashtra36

that death sentence can only be imposed in the rarest of rare cases

but dowry death has ceased to belong to the species of “the rarest

of the rare”.

(q) Right under Article 21 and preventive Detention Article 22

of the Indian Constitution provides for adequate safe guards to the persons

arrested and also those detained under preventive detention laws.

The Hon’ble Supreme Court in A.K. Roy Vs. Union of India37

declared the validity of the National Security Act 1980, which provides

for preventive detention on specific matters.

In Francis Coralie MuIIin Vs. Union Territory of Delhi38 the apex

court held the right of a detenue to have interview with his legal

advisor or family members, is a part of Article 21.

34. (AIR 1980 SC 898)
35. (AIR 1989 SC 2039)
36. (Shiv Ram Vs. State of Uttar Pradesh and also in (R.Trimbak Chouthmal Vs. State of
Maharashtra (1996) 4 SCC148.)
37. (AIR 1982 SC. 710)
38. (AIR 1981 SC 746)
 208

Again in Union of India Vs. Vasanbharthi39 the Supreme Court

ruled that the right to be informed of passing of the detention order

and of place of detention, to the family members of the detenue is a

part of the fundamental right under Article 21.

In another important case kartar Singh Vs. State of Punjab40 the

apex court ruled that the procedure of Identification of an accused on

the basis of his photograph, as incorporated in Sec. 22, TADA41 is

unconstitutional.

(r) Right to pollution free environment It may be noted that

the Indian Constitution prior to passing of the 42nd Amendment Act

of the Constitution has never specifically guaranteed any right to

prevention of pollution. However, after the 42nd Constitutional

Amendment a new directive principle in the form of Article 48A has

been inserted in the Indian Constitution which directs the state to

protect and improve the environment and to safeguard the forests and

wild life of the contry.

In M.C. Mehta Vs. Union of India42 the Hon’ble Supreme Court in

a PIL Case dealt with the issue of Degradation of “Taj Mahal” due to

pollution. The apex court ruled in this case that the right to live in a

pollution free environment is a fundamental right under Article 21.

39. (AIR. 1990 SC 1216)
40. (1994) 3 SC 569)
41. (The Section 22 ofTADA Terrorists and Disruptive Activities (Prevention) Act, 1987 was violative
ofArticle 21.
42. (AIR 1997 SC 734)
 209

In a recent case the Hon’ble Supreme Court emphatically

declared that in the name of religion, nobody can be permitted to add

to noise pollution or violate noise pollution norms43.

(s) Right to Commit Suicide and Article 21:- The hon’ble

Supreme Court was on various occassions confronted with the

question of deciding the validity of section 309 of the Indian Penal

Code which provides for penalty for attempted suicide. In P. Rathinam

Vs. Union of India44 the Hon’ble Suprerae Court declared that making

an attempt to commit suicide would be an offence and violative of

Article 21, which has enough positive content in it. And the apex court

further emphaised that right to life includes the right to die and that

both of them are implicit under Article 21 and therefore Section 309,

I.P.C. was declared unconstitutional as it violates Article 21.

But the apex court in another important case, Gian Kaur Vs.

State of punjab45 overturned the decision in Rathinam case stated

above and observed that the right to life does not include the right

to die and therefore section 309 of the I.P.C. is constitutional.

(t)Prohibition of bonded labour and Article 21 It is an

\/
admitted fact that ‘bonded’ labour and ‘begar’ are the twd evils that

43. Church of God (Full Gospel) in India Vs. K.K.R. Majestic Colony Welfare Association (AIR
2000 SC 2773)
44. (AIR 1994 SC 1844)
45. (AIR 1996 SC 1257)
 210

are ailing the modern society. Article 23 of the constitution prohibits

the practice of both the evils but success to the desired extent could

not be achieved in the concerned areas by the Administration.

Therefore the Hon’ble Supreme Court in order to eradicate both

the evils resorted to Judicial activism because system of bonded

labour violates the right to life and personal liberty guaranteed under

Article 21.46 (Bandhu Mukti Morcha Vs. Union of India).

In Neeraja Chowdhary Vs. State of M.P.47 the Supreme Court

handed down a series guidelines for release and rehabilitation of

bonded labour on the ground that the system of bonded labour

violates Article 21 and 23 of the constitution.

(u) Right to treatment and medical assistance in Medico-Legal

Cases

The Hon’ble Supreme Court in paramanand Katara Vs. Union of

India48 upheld the right of an injured person to treatment in medico

legal cases, which is a part of the funda-mental right to life under

Article 21.

Again in P.B. Khedat Mazdoor Samity Vs. State of West Bengal49

the Supreme Court observed that the failure of the Government

46. (BandhuaMukta Morcha Vs. Union ofIndia (AIR 1984 SC 102)

47. (AIR 1984 SC 1099)
48. (AIR 1989 SC 2039)
49. (AIR 1996 SC 2426)
 211

Hospital to adminiter emergency medical treatment to a person in

need results in violation of his right to life.

(v) Service matters and Article 21 The Hon’ble Supreme court

in its attempt of expanding the horizons of the right to life and

personal liberty, also sought, to extend the protection of Article 21 to

service matters also.

In Narendra Kumar Chandla Vs. State of Haryana50 the Hon’ble

Supreme Court held that termination of a government servant from

service on the ground that he was afflicted with an unfortnunate

disease violates his fundamental right to livelihood implicit in Article 21

and the Court further dtreted the State to adjust him in a suitable post.

in another important case O.P. Gupta Vs. Union of India51 the Hon’ble

Supreme Court observed that the suspension of an employee which

continued for long years and the pendency of departmental proceeding

for 20 years was violative of Article 21 as the same is unreasonable and

arbitrary and not in accordance with just, fair and reasonable procedure

contemplated under Article 21.

It is heartening to note that the Hon’ble Supreme Court has

successfully introduced the fundamental rights Jurisprudence even in

the service matters, due to its liberal and humanitarian interpretation.

50. (AIR 1995 SC 519)

51. (AIR 1987 SC 2257)
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(w) Right to monetary compensation for violation of fudamental-

rights : Article 32(2) of the constitution of India has conferred power

upon the Supreme Court to issue directions or orders or writs, appropriate

for the enforcement of fundemental rights. But the power to award

monetary compensation for transgression of fundamental rights does

not appear to exist under the constitution in favour of the Supreme Court

in such cases. It is interesting to note that the Hon’ble Supreme has

assumed this power under the provisions of the Constitution (Article 32

& 142) for deciding series ot cases after 1980.

In a landmark decision Rudul shah Vs. State of Bihar52, the Hon’ble

apex Court has awarded a compensation of Rs.30,000/- in favour of the

petitioner for violation of his fundamental rights under Article 21 payable

by the State, for unnecessarily .safe-sufferring captivity in jail for 14 years

even after his acquittal in trial.

In Bhim Singh Vs. State of J & K^3 the apex court awarded

financial compensation to the tune ot Rs.50,000/- for violation of the

fundamental rights of the petitioner under Article 21 for not being

produced before a Magistrate within 24 hours of his arrest. Again in

Nilabati Behare vs. State of Orissa54 the apex court awarded

monetary compensation for violation of fundamental rights under

Article 21 in favour of the victims.

52. (AIR 1983 SC 1086)
53. (AIR 1986 SC 494)
54. (AIR 1993 SC 1960)
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In Bodhisatwa Gautam Vs.Subhra Chakraborty,55 the apex court

observed that rape is a crime which violates the right to life under

Article 21 and as such awarded interim compensation to the rape

victims.

In a recent case A.K.Singh Vs. Uttarakhand Jan Morcha56 (AIR

1999 SC 2193) the Supreme Court had the occasion to deal with a

matter in which many people lost their lives, several people received

injuries and the modesty of woman was outraged in a movement in

support of a separate state of Uttarakhand in the hands of police.

The High Court of Allahabad in this case prior to its adjudication

by the Supreme Court ordered the government to pay Rs.10,00,000/

- each to the dependents of all persons who died in police firing and

also Rs. 10 lakhs each to the victims of molestation and Rs.50,000/

- each for 398 persons who were detained by the Police. Upon appeal

to the Hon’ble Supreme Court by the State of Uttar Pradesh, the

Hon’ble apex court ruled that the direction for payment of

compensation is clearly unsustainable, because the order of the

concerned High Court had no justification in as much as the said

order of the High Court imposed an unbearable burden on the state.

55. (AIR 1990 SC 922)

56. (AIR 1999 SC 2192)
 214

But in another important landmark case State of A. P. Vs. Challa

Ramakrishna Reddy57 the Hon’ble Supreme court granted

compensation to the claimant for violation of fundamental right of

right to life under article 21 of the constitution.

In the Chairman, Railway Board -Vs- Chandrima Das,58 the Hon’ble

Supreme Court dealt with the case of the Gang Rape on a Bangla Deshi

woman by railway employees in a railway building on a writ petitioner

filed by a practicing advocate of Calcutta High Court which sought relief

of compensation etc. In this case, the Calcutta High Court allowed

compensation of Rs. 10,00,000/- to the rape victim which was upheld by

the Hon’ble Supreme Court in appeal for violation of fundamental rights

of right to life under Article 21 of the Constitution in as much as rape

violates the right to life of the victim.

(x) Right to Safe Drinking Water : In J^K.Joshi Vs. Chief

Secretary, State of U.P.59 the Hon’ble Supreme Court had the

occassion to deal with the issue of right to safe drinking water.

The Apex court in the exercise of its powers directed the State

to set up a committee to be headed by the Municipal Commissioner.

Agra and the representatives of NEERI and others to look into

57. AIR 2000 SC 2083.

58. AIR 2000 SC 988
59. AIR 2000 SC 384
 215

effective functioning of the concerned public authorities, responsible

for supply of drinking water, providing, sewerage and providing

adequate measures for disposal of solid waste.

3. Other Aspects of Article 21 and its interpretation :

Apart from what has been stated above, it is interesting to note

that the Hon’ble Supreme Court in its judicial activism has also dealt

with the expanding horizons of Article 21 in a number of cases.

In H.S.Srinivas Raghavachar Vs. State of Karnataka60 the Hon’ble

Supreme Court observed that prohibition against legal practitioners

from appearing before Land Tribunals, violates the protection under

Article 21 of the Constitution. Again in Ramesh Vs. Union of India31

the Hon’ble Apex Court extended the protection of Article 21 to the

telecasting of T.V. Serials. In State of H. R Vs. Umed Ram Sharma32

the Hon’ble Supreme Court while acting upon a PIL observed that the

right to roads in reasonable condition is a part of the right of the

citizen under Article 21 of the Constitution.

In Ahmedabad Municipal Corporation Vs. Nawab Khan Ghulab

Khan63 the Hon’ble Supreme Court held that the principles of natural

60. AIR 1987 SC 1519

61. AIR 1988 SC 775
62. AIR 1986 SC 847
63. AIR 1997 SC 152
 216

justice should be followed in removal of encroachment by the

Municipality.

(i) Sexual Harassment of Working Women and Article 21 : In

an important case Visakha Vs. State of Rajasthan64 the Hon’ble

Supreme Court took recourse to judicial legislation and observed that

sexual harassment of working women violates the right to gender

equality and the right to life and personal liberty which implicitly

contains the right to work with human dignity.

(ii) Rights of Mother as natural guardian The Hon’ble

Supreme Court in two important cases. Ms. Githa Hariaharan Vs.

R.B.I. & Dr. Vandana Shiva Vs. Jayantha Bandhopadhyay65 observed

that a natural mother can act as ‘Natural guardian of minor’ even

when father is alive. The Hon’ble Supreme Court declared in the

instant case that section 6(a) of the HMGA, 1956 and section 19 (b)

- Guardians and wards Act, 1890 ought to be interpreted

harmoniously.

(iii) Bundhs are violative of Article 21 Yet another aspect in

which personal liberty under Article 21, has been taken into

consideration by the Hon’ble Supreme Court of India, had been the

consideration of the question whether Bundh or strike is violative of

64. AIR 1997 SC 3011.

65. AIR 1999 SC 1149
 217

the exercise of personal liberty by the citizen as incorporated in Article

21 of the Constitution.

In a Landmark decision CPI(M) Vs. Bharat Kumar66 the apex

Court has mandated that no person or group of persons party

organisation has any right under the constitution or any other law to

hold bandh, agitation, demonstration and rally in a manner causing

compelling people by force or by show of force or even otherwise to

stop from carrying on their business, profession and the other lawful

activities, and Bandhs are unconstitutional and it upheld the Kerala

High Court’s ruling in this regard in Bharat Kumar K. Palicha -Vs-

state of Kerala [AIR 1997 Ker. 291 (FB)]

(iv) Emerging Limits of compensatory discrimination The

Hon’ble Supreme Court in a landmark decision Samata -Vs-State of

A. P.67 observed that the fundamental rights of the tribals to their

social and economic empowerment is inherent in Article 21 of the

Constitution.

Yet in another case the Hon’ble Supreme Court expanded the

Horizon of personal liberty as enumerated in Article 21 of the

Constitution to the effect that control and regulation of traffic is a

66. (1998) ISCC 201: AIR 1998 SC 184

67. AIR 1997 SC 3297
 218

matter of paramount public safety which is within the ambit of Article

21 of the Constitution68.

(v) Judicial Selfrestraint: We may however note in this regard

that the summit judiciary had not been unconscious regarding Judicial

self-restraint and Article 21.

In a landmark decision, Left. Col. Prithipal Singh Bedi Vs. Union

of India69 the Hon’ble Supreme Court observed that the requirement

of Article 21 need not be satisfied to the procedure for trial of offence

by Court martial.

The Apex court also observed on another occassion that Article

21 should not be attracted to trade and business by declaring that the

concept of the right to carry on any tade or business and the concept

of life and personal liberty within Article 21 are too remote to be

connected together.

In State of M.P. -Vs- Ram Krishna Balothia70 the apex court

observed that right to anticipatory bail is not an essential ingredient

in Article 21.

Again in another important decision Madhu Kishwar -vs- State of

Bihar71 the Hon'ble Supreme Court declined to interfere with the

68. M.C. Mehta Vs. Union ofIndia (AIR 1998 SC 186)

69. AIR 1982 SC 1413.
70. AIR 1995 SC 1198
71. AIR 1996 SC 1864
 219

customs of tribal inhabitants in respect of intestate succession and

the rights of woman to succeed, especially on the ground of violation

of Article 14, 15 and 21 of the Constitution.

The Hon'ble Supreme Court yet in another important decision in

Anukul Chandra Pradhan -vs- Union of India72 observed that the right

to vote is not related to Article 21, of the Constitution.

Again in Naga People's movement of Human Rights -Vs- Union

of India73 the apex court noted that the powers conferred under the

Armed Forces (Special powers) Act, 1958 are not violative of Article

21.

The apex court observed in another important case State of

Punjab Vs Ram Lushaya Bagga74that right to medical reimbursement

of expenses incurred by a Government employee for treatment taken

in a private Hospital, is not a fundamental right under Article 21.

It now, therefore, seems from what has been stated above that

all the established and recognised human rights all over the world

may be considered as part and parcel of the right to life and personal

liberty under Article 21, thanks to the judicial activism in liberally

interpreting the expression ‘life’ and personal liberty thereunder.

72. AIR 1997 SC 2814

73. AIR 1998 SC 431
74. AIR 1998 SC 1703.
 220

It may also be argued in this context that the summit judiciary

has been conscious enough to ensure that the protection under

Article 21 is all - pervading, not suspendabie even during the

proclamation of emergency. The judicial activism guaranteed that

Article 21 stands like a sentinenl over human misery, degradation and

oppression, and that its voice is the voice of justice and fair play and

a voice which can never be silenced on any ground.

It now emerges, from the discussion undertaken above that the

activities of the Supreme Court since the decision in Maneka’s case

has proved that the apprehension of the framers of the constitution

regarding the ability or the competency of the judges of the apex

court in examining the validity of the laws made by the legislature,

whether could be trusted with reference to their bias or prejudices,

for the purpose of determination which law is good or which law is

bad was baseless. The summit judiciary has been doing a

commendable job in keeping the State under an effective check, and

in continuously expanding the horizon of personal liberty with

reference to human rights and in ensuring that the invaluable right to

life and personal liberty must not be violated by the State, We must

not however be unconscious in this respect of the fact that the new

dimensions in personal liberty with reference to human rights should

also include right to reputation of a person, right to surrogate

 221

motherhood, and also right to donate organs, limbs, etc. of a human

being.

(vi) Reputation : In so far as right to reputation is concerned it

may be argued that the right to personal liberty includes the right to

reputation, any person making any defamatory statement against

another is liable for action both under the Civil and criminal law.

The question regarding the right to reputation came up before

the Supreme Court in Sowmitheri Vishnu V. Union of India75 where the

petitioner challenged proceedings under section 497 IPC on the plea

that, though she is not a party to the proceedings, her reputation is

being affected. The court rejected her contention but held that the

victim of adultery is entitled to defend her reputation In proceedings

under section 497 IFC. Thus the court recognised that right to

reputation is a part of the right to personal liberty.

(vii) Surrogation : Surrogation contemplates renting the womb

of a woman for the development of embryo and delivery of the child,

after it is born, to the ‘donor mother1 by the carrying mother. Thus,

the carrying mother produces child for the infertile woman with the

sperm of the husband of such a woman.

A question however crops up in this respect that whether a

75. AIR 1985 SC 1618.

 222

woman has right to her own body, to decide whether to lend her

womb or not and later on whether to accept restirctions imposed by

‘donor’ or whether she can have pregnancy terminated or whether

she can refuse to hand over the child to the ‘donor-mother’ etc.

Therefore, the question centers around the fact as to whether the

contract of surrogation affect her privacy or right to personal liberty.

It may be argued, in this context, that if the arrangement of

surrogation is made out of love and affection and with the free will of

the surrogate mother, it would be within the ambit of her right to

personal liberty.

Hence, it may be highlighted that a woman’s fundamental right to

privacy, procreation or sexual autonomy does not encompass a right

to artificial insemination or to surrogation. Of course, there are jurists

who designates surrogate motherhood as bio-prostitution or

“Disguised Rape” but there are also jurists who does not consider it

to be adulterous if it is with the consent of the husband of the carrying

mother and the wife or the donor husband.

It is also however a fact that the problem has not yet become

serious in India but, when it becomes serious in India it may be

tackled by a suitable legislation which may regulate it - keeping in

view the interest of surrogate mother and the child to be born.

24. AIR 1997 Del 201

25. A 1983 SC 645 (Pam 11) - 3 judges.

 223

(viii) Donation of Organs : Now with regard to donation of parts

of the human body to another human being in order to save the life

of the donee it might be considered whether it should be within the

ambit of personal liberty under Article 21 of the constitution. This

particular aspect of personal liberty might be considered from the

following view point that if the arrangement of donation of a part of

human organ to another living person for the purpose of protecting

the life of the donee on the ground of love and affection and with

humanitarian consideration and with the f ree will of the donor and

donee it would be of course, within the parameters of right to personal

liberty. But if such donation is in the nature of commercial exploitation

or for earning money then the apparent voluntary consent would be

in reality the result of influence of money or other gain or is economic

compulsion, the^in such cases it would not be free consent but

purchased or forced consent. It is not only inconsistent with human

dignity but is an outright invasion on the person of the donor specially

when the consent comes as a result of threat, inducement or

helplessness or offer of monetary gain.

(ix) Emergence of Human Rights Jurisprudence : With the

advent of the Indian Constitution human rights Jurisprudents acquired

great momentum in India. The Racial discrimination has neen

abolished, class discrimination has also been abandened and all the
 224

people in the conuntry have been given equal status. The Hon’ble

Supreme Court in a landmark decision, Akhil Bharatiya Sosita

Karinachary Sangha V. union of India AIR 1981 SC 298{Q) observed

that trie Indian Constitution became a national Charter pregnant with

a social revolution and not a legal parchment barren of militant values

to usher in a socialist secular democratic society which equally

belongs to the masses including the Horizon Girizon millons

hungering for a humane deal after feudal, colonial, history’s long night

....... Justice Krishna Aiyer.

Prior to this decision of the Supreme Court in anotner important

case the apex court observed in Keshabananda Bharati V. State of

Kerala(R) "that fundamental rights themselves have no fixed content.

Most of them are mere empty vessels into which each generation has

poured its content in the light of its own experience. Restriction

curtailment, abridgement, and even abrogation of these rights might

become necessary in circumstances, not visualized by the

Constitution makers; their claim to supremacy or priority is liable to be

over-borne at particular stages in the history of the nation by the

moral claims embodied in part IV."

But such view of the Supreme Court as given in Keshabananda

(O) AIR 1981 SC 298

(R) AIR 1973 SC 1461
 225

Bharati Case, has been changed in many a decisions handed down

by the Supreme Court itself, particularly with a view to maintain,

propagate and advance the human rights across the counrty.

That human rights Jurisprudence nas now acquired an invicible

status in our land has been highlighted in Maneka Gandhi’sES) case

and also in R.C. Kooper’s ease.(T)

In Maneka Gandhi’s case the Hon’ble Supreme Court observed

that these fundamental rights represents the basic values cherished

by the people of this country (India) since the vedic times and they

are calculated to protect the dignity of the individual and create

conditions in which every human being can develop his personality to

the fullest extent.

They weave a pattern of guarantee on the basic structure of

human rights and create negative obligations on the state not to

encroach on invidual liberty in its various dimensions.

It may be rememberd in this context that the Supreme Court in

its eagerness to protect, maintain, propagate and advance the human

rights in India has inducted the due process clause ot the American

Constitution into the Indian Constitutional Jurisprudence.

People suffering from transgression of their human rights can

(S) AIR 1978 SC 597

(T) AIR 1970 SC 564
 226

effectively approach the High Courts and Supreme Court under article

226, 227, 32 136, ot the Constitution, which is known as the public

law review system in India. Besides, the private law review system

has also been operating in India for the protection of the human

rights.

While the publice Law review comprises the functioning of writ

Jurisdiction of the Supreme court and High Courts (by the writs of

Mandamus, Certiorary, prohibition, Habeas corpus and quo-warranto)

the private law review comprises the system of injunction declaration,

and suit for damages.

In so far as the remedies for violation of human rights by public

law review is concerned there are some technical hardies which might

impede its effective implementation. We may recalf the Observation of

Lord Denning as it appears in his work Freedom under Law, written

in 1949, that just as the pick and shovel is no longer suitable for the

winning oj>coal, so also the procedure ot mandamus, certiorari and

action on the case are not suitable for the winning of freedom in the

new age people tnerefore may be inclined to seek relief for violation

of human rights, under the private Law review.

Apart from what has been stated above people may have scope

for remedial action in case of violation of human rights in the direction

 227

of affirmetive action for the enforcement of public duties by the courts

themselves.

It is worth noting here that during the last few years, the Supreme

Court of India has certainly developed a fine Jurisprudence of right

mobilization. Affirmative action for the entorcement of public duties is

one of the areas where the genius ot the Indian Judiciary has been

registered in a unique manner. It is a fact that judicial redress can

more readily be available for wrongful acts than for wrongful omissions

of public bodies and the etfectiveness of the Judicial remedies is also

limited either by their intrinsic characteristic or by restrictive technical

rules. But in 1980 the Hon’ble Supreme Court gave a decision in

(Ratlam municipality Vs. Vardiehand)1 which is a unique testimony of

a new judicial dynamism, unhampered by these limitations, which has

produced new enforcement dimension of public duties owed by the

administrative bodies to the people at large.

In this case under section 133 of the Cr.P.C. a Magisterial order

was issued to the municipality for removal of nuisance to the public

which was in unhygienic conditions.

The decision was challanged by the Municipality on the ground

ot paucity of funds and other grounds. .

1. AIR 1980 SC 1622

 228

When the matter ultimately was placed before the Supreme Court

for adjudication the apex court turned down the appeal of the

municipality in the interest of collective human rights of the people of

India. When the maintenance and advancement of Human Rights has

itself become one of the basic values if not the cardinal values of our

constitution, people may be encourged to have a glimpse into the

latest functioning of the Hon’ble Superior Court^in so far as their

efforts to maintain the same is concerned.

The main criteria of the functioning of the judicial system in India

being the establishment of uniformity and certainity in law the apex

court has been working to our entire satisfaction in this direction

although people expect much more from the Supreme Court and High

Courts to make human rights values a meaningfulf one.

4. Emerging New judicial Dynamism towards Human Rights.

The latest trends as are emerging from the Superior Court

decision in order to protect and safeguard human rights may be

pursued by the people of this country to live a meaningful life with all

attributes of personal liberty. The following decisions of the Supeior

Courts are pointers in the cherished direction.

 229

(a) Birth after vasectomy - In Shakuntala Sharma -Vs- State of

U.P.2. The Court directed the state government to deposit Rs.50000/

- in nationalised bank when a child was born to a couple of which the

husband underwent vasectomy operation.

(b) Organising Eye camps and loss of vision - in M.P. Human

Rights Commission -vs- State of M.P.3 the Court granted

Compensation of Rupees one lakh each to the victims of Eye camps

who lost their vision due to negligence of doctors in eye’s operation

arranged by the State.

(c) Open Manholes - Deathtraps-the court directed for payment

of compensation for the death of a child drowned in an uncovered

manhole (Punjab Civil and Consumer Welfare Front Vs. U.T. of

Chandigarh)4

(d) Injury to newly born infant - In Jasbir Kaur -Vs- State of

Punjab5 the court directed for payment of compensation to the parents

of an infant who sustained injuries on his person because of

negligence of a Govt, hospital staff.

(e) Deaths against mondal Commission - In Nanik Sewa -Vs-

State of Orissa6 the court directed compensation to the tune of

2. AIR 2000 AU 219.
3. (AIR 2003 M.P. 17)
4. (AIR 1999P&H32)
5. (AIR 1995 P&H278)
6. (AIR 1996 Ori 131)
 230

Rs. 1,00,000/- for loss of life of students in connection with the

implementation of recommendations of the mondal commission.

(f) Electricity Death - In A krishna Patra -Vs- Orissa State Electricity

Board7 the court directed for payment of compensation by the Electricity

Board for the death of a woman for lack o^proper care and supervision

in maintenance work.
% 3,
(g) Electrocution & compensation- In a case sarla sahu -Vs-

State of orissa8 the Court directed for payment of exgratia payment of Rs.

50,000/- with 6 percent interest as interim compensation to the legal

heirs of the victim who died due to Electrocution which could be attributed

to omission and commission of officials of Energy Department.

(h) Death due to Landsilde - In the case K. Samikkanu -Vs-

Union of India9 the court directed payment of compensation to the

tune of Rs. 75,000/- because of death of a person on accunt of

landslide in the mining area due to contributory negligence of neyveli

lignite corporation.

(i) Loss of motherhood - In Tabasum Sultana (Dr.) -Vs- State of

U.P.10 the court awarded compensation of Rs. 3,00,000/- to the

petitioner who was a newly married woman and suffered precious

7. (AIR 1997 Ori 109)

8. (AIR 2001 Ori 106)
9. (AIR 1997Mad 229)
10. (AIR 1997 All 177)
 231

loss of motherhood while under going tubectomy under the

Government Sponsored family planning programme.

(j) Curfew - Losses & Compensation - In Jagadish Raj -Vs- State

of J & K11 “The court directed for payment of compensation to the

aggrived person who suffered loss of property during curfew by

antisocial elements.

(k) Electric shock disability & compensation - In a case where

infringement of legal right was complained of because of sustenance

of injury by a citizen because of improper maintenance of high tension

line the court directed for payment of compensation to the victim for

negligence of the government / state officials12

(l) Ex-gratia payment as compensation - In State of J & K -Vs-

Jeet General Store13 the court held that in the absence of allegations

of negligence or dereliction of duty on the part of State in protecting

properties of citizen during communal riots, state is not liable to pay

compensation; mere grant of ex-gratia relief does not amount to

admission on the part of State of its culpability.

(m) Death due to firing - Yet in another case Aheibam Omgbi

Laihao Devi -Vs- State of Manipur14, where a person died because of

11. (AIR 1999 J&K 159)

12. HcmefaBcmo-Vs- State ofJ&KAIR 1998 J&K 37.'
13. AIR 1996 J&K51.
14. AIR 1999 Gau 9. GauhatiH.C.
 232

indiscriminate firing his wife and a minor daughter were granted

compensation of Rs. 1,50,000/-.

(n) Anti Sikh Riots (1984) & Compensation - in Kehar Singh

-Vs- State of Chhattisgarh15 it was held that the State is duty bound

to protect life liberty and dignity of the people belonging to different

faiths, caste and creed, and in cases where such attributes of life and

personal liberty are jeopardised the victim should obtain

compensation, following the Supreme Court mandate given in S.S.

Ahluwaiia -Vs-Union of India16.

(o) Death of a member of police party chasing offenders - In

Khalil Razak Shaikh Re17 - the court held that widow of a deceased

should get compensation when her husband lost his life in co­

operating police force in chasing and apprehending persons

suspected of committing offences.

(p) Delay in Treatment - In Khairatilal Khurana -Vs- Govt, of

NCT of Delhi18 - Court held that the state was liable to pay

compensation for a precious loss of life of a student because of delay

in administrating treatment to the patient in a private hosspital.

15. AIR 2002 Chh 14

16. AIR 2001 S.C. 1309
17. AIR 2001 Bom 283.
18. AIR 2002 Del 40
 233

(q) Railway accidents & Compensation - In D.B. Avalakhi- Vs-

Union of India19. The court held that the Railway Tribunal was bound

to exercise. powers of a Civil Court while deciding the question of

compensation because of a passenger’s death in a Railway Accident.

(r) Pollution Hazard & Compensation-In Obaya Pujary -Vs-

Member-Secretary, Karnataka State Pollution Control Board,

Bangalore20 the court held that when Citizen are affected by pollution

because of the functioning of Stone Crushing Units, compensation

ought to be given to the sufferers.

(s) Right to water & Compensation - In All India Lawyers Union

(Delhi) -Vs- Union of India21 - the court directed for payment of

compensation by the school authorities to the parents of a child

who died in road accident while fetching drinking water from a

distance to his school where he was studing as hygienic drinking

water not available in the school. A

(t) Explosion losses & Compensation - InShyalpaiDevi (Smt.)

-Vs- NCT of Delhi22 - the court held that compensation ought to be

given in the case of a death of Police Personnel, in Police malkhana,

where proper care was not taken to defuse an explosive device kept

in the same Police Malkhana.

19. AIR 2000 Kant 269

20. AIR 1999 Kant 157.
21. AIR 1999 Del 120.
22. AIR 1999 Del 264
 234

(u) Death in lift & Compensation - In Dharamvir Kataria (Col.)

-Vs- Union of India23 -the court awarded compensation of Rs. 4.5 lac

to the husband and children of the deceased who died in a lift where

safety parameters were not upto the mark.

(v) Swimming Pool death & Compensation - In Klans Mittel

Bachert J. -Vs- East India Hotels Ltd.24 the court held that

compensation and damages to the tune of Rs. 5,00,00,00/- ought to

be awarded by a five star hotel in India where a German National,

a boarder sustained head injuries in a hotel swiming pool and

suffered mental and physical agony for 12 years and died at the age

of 43 years.

We may conclude with the following observation of the Supreme

Court handed down in Sher Singh Vs. State of Punjab.25 The horizons

of Article 21 are ever widening and the final word on its conspectus

shall never have been said. So long as life lasts, so long shall it be

the duty and endeavour of this court to give to the provisions of our

constitution a meaning which will prevent human suffering and

degradation.

Supreme Court in Sher Singh Vs. State of Punjab A 1983 SC

645 (Para 11) - 3 judges.

23. AIR 1999 Del 291
24. AIR 1997 Del 201
25. A 1983 SC 645 (Para 11) - 3 Judges
 235

5. Suggestions :

(i) Human Rights Commission should not merely be a

recommendatory body but must be given the status of a regular

Criminal Court.

(ii) Section 30 of the Protection of Human Rights Act. 1993 should

be implemented because the ordinary Courts are overburdened,

(iii) Petitioner to the Human Rights commission should, adduce

some so rt of evidence in support of their contention by affidavit.

(iv) Human Right Commission’s Procedure should be more

simplified, (v) Proceeding instituted before the Regular Courts

should also be simplified in respect of causes pertaining to

Human Right violation.

(vi) Human Rights Commission has been given the status of a Civil

Court but the matters dealt with by the Human Rights

Commission are mostly criminal in nature.

(vii) It is not sufficient that the Human Rights Commision’s findings

merely be given the status of recommendation but should be

made mandatory.

(ix) Human Rights Commission should have summary power to

punish the witnesses who inspite of summons does not appear

to produce documents and depose evidence without just

grounds.
 236

Human Rights Commission should be free to act while handing

down decisions without subjecting itself to the strict applicability

of the laws of the country.

(x) Human Rights Commission should not be bound by precedents

and may act even on hearsay evidence.

(xi) Laws of evidence should not apply strictly to the working of the

Human Rights Commission.

(xii) Human Rights Commission should be allowed to presume

existence of facts on a wider basis than contemplated in Section

114 •jS/idence Act in reaching their findings.

(xiii) In proceedings before the Human Rights commission, public

servants should not be allowed , to claim any privilage for

withholding documents.

(xiv) Human Rights Commission should be allowed to reach their

findings in proceedings relating to Human Rights violation by

public servants by acting upon even on irrelevant evidence and

on a more wider concept of Judicial notice.

(xv) Human Rights Commission findings should not necessarily be

based on facts which are duly proved and relevant in nature.

(xvi) The doctrine of Privileged communication as enshrined in the

l^idence Act should not apply to proceeding before the Human

Rights Commission.
 237

(xvii) Right to justice and Rule of Law is a basic human right and all

reasonable steps should be taken to make this right a

meaningful one.

(xviii) This author has the experience of working in state Human

Rights Commission and feels the above noted suggessions

should be given due consideration in respect of remedial

measures for Human Rights Violation by public servants. For

Protection of Human Rights against Police action it may be

noted that the following changes might be considered for proper

functioning of Police force in our country :

(a) Provisions corresponding to Sec. 58, 59 of the N.D.P.S. Act.

1985 should be incorporated in the Police Act. 1861.

(b) Sec. 29 Police Act 1861 shold be suitably amended to make

the provisions more stringent and effective.

(c) The provisions incorporated in Sec. 173 Cr. P.C. requiring

the Officer-in-Charge, of a PS. to communicate to the

informant the result of investigation should be made more

stringent and summary punishment should be arranged to

be imposed upon the erring police-officials.

(d) In case of allegation of violation of human rights by

 238

policeman burden of proof should be shouldered by the

policeman himself to prove his innocence.

(e) Provision regarding search without warrant by police U/s.

165, 166 Cr. P.C. should be amended in such a fashion that

police should be severely punished if just and reasonable

grounds could not be adduced by police in such cases.