article21 of constitution

1. Article 21: The Omnibus Article
Broadly speaking, the doctrine of separation of powers has not been expressly provided
for in the Constitution of India, the Suprema Lex, but less to say it can be made out from
the scheme of the Constitution.
Doctrine of Separation of Powers asserts the division of powers between the three wings
of the state: the legislature, the executive and the judiciary.
If the work of the legislature is to frame laws and the work of the executive is to
implement laws then the work of judiciary is to interpret laws. The Supreme Court in all
its magnificence is the custodian of the Constitution.
There were several occasions when there was locking of the horns when question was to
be decided in regards—whether judiciary comes under the ‘meaning of state’ so far as
article 12 of the constitution is concerned, this question was finally settled with ruling in
the case of Prem Chand Garg v. Excise Commissioner, where by it was held that judiciary
is the third wing of the state howsoever functionally independent, with no deterrence to
judicial activism which it enthrals.
Occasions have been there when the decisions rendered by the apex court had been put
in spotlight either to appreciate its spirit of judicial activism or to criticise it for its
judicial over-reach.
No legal provision has attracted more controversy than Article 21 of the constitution,
which provides for ‘right to life and personal liberty’—the article on pen and paper & in
black and white states: ‘No person shall be deprived of his life or personal liberty except
according to procedure established by law’
It is the judicial interpretation and judicial activism that has given enormous dimensions
to this article making it an omnibus article.
One of the first time when the efficacy of this article was explored beyond any reach and
bound was in case of ‘Chairman, Railway Board v. Chandrima Das’, where by the apex
court went on record to state that even though article 21 is in scheme of the fundamental
rights garnered by the constitution and these rights are available to citizens only, article
21 is a mighty exception as it is applicable even to foreigners. It is important to make a
distinction over here between a citizen and a non-citizen, as it is a question devoid of any
doubt that Article 14 of the constitution is applicable even to non-citizens such as a
‘company’ (Chiranjit Lal Chaudary v. UOI), what to say of foreigners- Article 21 limits
itself to citizens and so far as non-citizens are concerned to foreigners, not to a company-
whether foreign or indigenous.
Fundamental rights enshrined in part III of the Constitution form the spirit of the Suprema
Lex, protection to the same is offered by article 32 and 226, the writ jurisdiction of the
Supreme Court and the High Court respectively. Here so far as article 21 is concerned by
way of judicial interpretation and activism a new branch of rights have aroused over the
decade—reason for this is that so far as the scheme of Indian Constitution is concerned

2. judicial decisions so rendered by the Supreme Court have the force of being the ‘law of
the land’.
A set of exhaustive rights that article 21 in matter and in spirit is capable of offering
is as follows:
Serial No. Rights offered under Article 21. Case law in which the right got recognise
1. Right to food People’s Union for Civil Liberties v. UOI
2. Right to shelter Chameli Singh v. State of U.P.
3. Right to livelihood Olega Tellis v. Bombay Municipal Corpor
4. Right to education Mohini Jain v. State of Karnataka;
Unni Krishnan v. State of A.P.
5. Right to clean environment M.C.Mehta v. UOI
6. Right to privacy Govind v. State of M.P.
7. Right to marriage Lata Singh v. State of U.P.
8. Right to travel abroad Maneka Gandhi v. UOI
9. Right to live with human dignity Maneka Gandhi v. UOI
10. Right against bondage Bandhu Mukti Morcha v. UOI
11. Right to emergency medical aid Parmanand Katara v. UOI
12. Right, not to be driven out of a state NHRC v. State of Arunachal Pradesh
The rights so mentioned above are regal in sense and spirit. Apart from these, this
article empowered the apex court to nomenclature few other rights by way of judicial
interpretation. These are as follows:
Right to speedy trial (Sheela Barse v. UOI)
Right against prison torture and custodial death (Sunil Batra v. Delhi Administration)
Right to compensation for illegal – unlawful detention (Rudal Shah v. State of Bihar)
Right against handcuffing (Prem Shankar Shukla v. Delhi Administration)
Right against bar fetters (Charles Sobhraj v. Suptd. Central Jail)

3. Right against solitary confinement (Sunil Batra v. Delhi Administration)
It is very necessary to note that in a democracy no right is absolute. All rights are subject
to reasonable restrictions of: morality, health, public order, state security, public safety
& public policy.
Justice Krishna Iyer while speaking for majority in the case of Sunil Batra v. Delhi
Administration made it constitutionally clear that when a person gets arrested, he steps
into the prison cell with his fundamental rights intact and not in devoid of them, he also
made it amply clear that Article 21 is to be interpreted in the widest possible sense
because fundamental rights form the spirit of the Constitution and Article 14, 19 and 21
are the spirit of the fundamental rights- over and onto which all other fundamental rights
rest.
FACETS OF ARTICLE 21:
Is right to life inclusive of right to die? – This question was answered in great detail in
case of Gian Kaur v. State of Punjab, here it was held that word ‘life’ is to be read in
consonance with word ‘dignity’ so far as article 21 is concerned, but right to life in no
stretch on imagination shall include right to die. ‘Right to life’ means ‘right to life with
human dignity’ and not mere animal existence, but it shall not include right to end life
even under medical supervision by way of administration of lethal drugs or otherwise.
Right to die shall not be available to anyone even though the claimant of this right is
suffering acute pain and agony of all sorts, incapable of taking slightest care of himself
and is living on ‘life support system’, this was the majority judgement in this case.
A legal breakthrough came about with Aruna Shanbaug case where by the apex court for
the first time offered legality to the concept of euthanasia or mercy killing in some form
(with conditions attached to it). A person in a persistent vegetative state (PVC), deriving
his existence from life support system can apply for euthanasia, but here also his death
shall not be occasioned by administration of lethal injection or otherwise but by merely
removing the life support system from which he (patient) draws his existence.
Hence forth it shall not be wrong to say that with sociological and psychological
development of the society, Article 21 is witnessing tremendous development—truly it is a
welfare piece of legislation.
Article 21 and Sec. 377, IPC:
It was in July 2009 that a judgement of Delhi High Court gave green signal to consensual
sexual intercourse between same sex adults. It was celebration time for gay rights
activists generally and for NAZ foundation in particular, but the judgement gathered a lot
of fume and criticism. Judicial interpretation of Article 21 formed the crux of the
judgement. In no time an appeal to the Supreme Court was filed against the decision
rendered by the Delhi High Court. The case is still in pending in the apex court,
observations made by the SC and articles published informing the same signal that its
time for sec.377, IPC to go.
As a three judge bench decision of the SC (comprising of Chief Justice K G Balakrishnan,
Deepak Verma and B S Chauhan) offered legality to live in relationships and pre-marital

4. sex, late in March 2010, stating that Article 21 is not only a welfare piece of legislation
but also a progressive piece of legislation, may be the same wisdom needs to be applied
to settle scores between the ongoing dispute between article 21 and sec.377, IPC.
Article 21 and the Death Penalty:
Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be given only in rarest of rare
cases; whereby the facts and circumstances of the case are so grave that they
intrinsically shock the conscience of the court. Also, this provision provides that-- the
bench heading the particular case needs to give ‘reasons’ for their decision in case the
punishment rendered is life imprisonment and ‘special reasons’ in case the punishment
rendered is death penalty.
In case of Bishnu Deo Shaw v. State of West Bengal, it was held that ‘life imprisonment is
the rule and death penalty is an exception’ – also that death penalty is ultra vires the
constitutional mandate- Article 21.
But, there have been cases where by death penalty had been upheld as a matter to meet
the ends of justice, cases ranging from Bachan Singh v. State of Punjab to Machhi Singh v.
State of Punjab and Dhananjoy Chatterjee v. State of West Bengal.
The ‘abolitionist’ argue that- crime breeds crime and murder breeds murder, murder and
capital punishment are not opposites that cancel out each other but are of same kind.
The retentionist argue that all fundamental rights are subject to reasonable restrictions
of public order, morality, health, public safety and state security and Article 21 is no
exception.
So far as the criminal jurisprudence in regards to ‘theories of punishment’ is concerned
the trend has been revolutionary in nature- from retribution and deterrent theories of
punishment to preventive, reformatory & rehabilitative theory of punishment.
Death penalty in India is given in the following cases:
1. An act of treason or waging war against Government of India—sec.121, IPC; abetment
of mutiny—sec.132, IPC.
2. Perjury resulting in conviction & death of an innocent person—sec.194, IPC.
3. Murder—sec.302 & 303, IPC.
4. Abetment of suicide of a minor, an insane person or intoxicated person—sec.305, IPC.
5. Attempted murder by a life convict (a person undergoing life imprisonment)—sec.307,
IPC.
6. Dacoity with murder—sec.396, IPC.
7. Kidnapping for ransom—sec.364-A, IPC.
Much has been said by the abolitionists against the death penalty and much by the
retentionists in favour of death penalty, the future in regards to abolition or retention of
death penalty lies in the hands of society backed by social morality and psychology.
But, the truth of the matter is that India is still in transition phase – redefining its basis of
morality and ethics, breaking away from old customs, usages and practises that is dead

5. locking its socio-economic & political growth. India is witnessing high degree of legal
development but at the same time crime rate in India continues to be high.
India leads the world with the most murders, 32,719 murders per year, followed by Russia
with about 28,904 murders per year. (Source: Raman Sunil; ‘India tops list of murder
numbers’; BBC News- June 2008)
There are nearly 17 dowry deaths in India every day; rape every 47 minutes; women-
kidnapping and abduction every 44minutes; crime against fair sex every 6 minutes.
(Source: Female criminality and victimity in India, 2005- S.S.Srivastava)
Facts on record indicate capital punishment needs to be retained, so far as ethicality of
death penalty in regards toArticle 21 is concerned- sec.354(3) of C.R.P.C., 1973 in matter
and in spirit is enough to take care of that, as words used in the section are farsighted
and far-reaching.
Article 21 and the narco-analysis test:
Article 20 speaks of three doctrines in particular: doctrine of ex post facto law i.e. no one
can be punished for law that is not time being in force & no one can be given punishment
more than the statutory maximum; doctrine of self-incrimination i.e. no one can be
forced to be a witness against himself & doctrine of double jeopardy i.e. no one can be
punished twice for the same crime or misdemeanour.
It was in the case of Selvi v. State of Karnataka, 2010, in which SC for ever over turned
the fortune of country’s expert agencies specialised in conducting narco-analysis test,
brain mapping test & polygraph test. Relying on the language used in Article 20(3) the
apex court said that conducting such tests is violative of the citizens ‘right against self-
incrimination’. The apex court went on record to further more declare narco-analysis test
violative of Article 21.
This decision of the SC attracted a lot of criticism on the following grounds:
1. A test such as the narco-analysis test, brain mapping & polygraph test are conducted
under medical supervision under a medical expert and hence is within the precincts of
sec.45 of the Indian Evidence Act, 1872.
2. Narco-analysis test is somewhat a full proof measure because first narco-analysis test is
conducted and then there by its results are checked and scrutinised by way of conducting
lie detector test, polygraph test and brain mapping test.
3. Where the world is moving scientifically forward to decide upon the evidential
permissibility of PLR tests (past life regression analysis), declaring that lie detector test
or brain mapping test is not a permissible piece of evidence is a step backwards.
Point 1 & 2 are very much convincing but not point 3. Well however the apex court did
not answer any of these questions. Attracting article 21 to the following case was also
seen with convincing eyes.
Conclusion:

6. Article 21 saga is endless and doubtless to say that article 21 is a welfare piece of
legislation; its extent is time and again redefined and re-extended. No fundamental right
was ever interpreted with so much wisdom and acuteness as of article 21. Judicial
activism and fair judicial interpretation of legal provisions is the key to public welfare in
all lines of action, this is what article 21 saga is an example of- all legal and judicial
wisdom must be summarised in the following words ‘Salus populi est suprema lex’, the
spirit of pro bono publico