Chapter -1

Detail of organization

Page | 1

 About Organization

Kripa Foundation has the privilege of being the largest NonGovernmental Organization in
India, affiliated with the Union Ministry of Social Justice & Empowerment, working among people
afflicted with chemical dependency & HIV Infection. Over a quarter century of service, Kripa
Organization has evolved a module of non-discriminating, supportive community living,
empowering people to introspect and bring a change about living life style
KRIPA, derived from the Sanskrit word GRACE, lays emphasis on the need to study risk
perception, effectively assist in harm minimization and provide training to the affected individuals
enabling them to monitor life as an ongoing process of Spiritual Growth
KRIPA, derived from the Sanskrit word GRACE, lays emphasis on the need to study risk
perception, effectively assist in harm minimization and provide training to the affected individuals
enabling them to monitor life as an ongoing process of Spiritual Growth.
The Organization had humble beginnings in a church compound in Bandra in 1981, with
three patients in residence, a priest, a doctor & a recovering alcoholic as a role model for recovery
and sobriety.
Since then this Public Charitable Trust has spread its tentacles all over India with 69 varied
facilities addressing Chemical Dependency and HIV/ AIDS in 12 states in the country, namely,
Maharashtra (Mumbai, Vasai, Pune), Gujarat (Baroda), Goa (Anjuna,), Karnataka (Mangalore), West
Bengal (Kolkata & Darjeeling), Manipur (Imphal), Nagaland ( Kohima &Zuneboto), Meghalaya
(Shillong),Assam(Guwahati) Uttar Pradesh (Bareilly), Rajasthan (Jaipur) &Delhi.Centres are funded
through Government of India grants, as well as National and International funding agencies.
Today, Kripa is at the forefront in facilitating training in Chemical Dependency,
Rehabilitation and HIV/AIDS, and offers a broad spectrum of services to the community, facilitating
law enforcement agencies, educational institutions and other academic institutions that are involved
in Human Services. A major area of work involves- interaction with industry in terms of an
Employee Assistance Program (EAP), which is comprehensive and addresses situations with utmost
confidentiality.

Page | 2

Kripas strength lies in the eastern disciplines and facilitating lifestyle change, which it
propagates in all its centers as Basic Therapy to cope with lifes stresses including addiction, which
is an outward manifestation of the turmoil within an individual. It is this inner healing which is
enabling Kripa to realize its dream of becoming a global presence.
Kripas strength lies in the eastern disciplines and facilitating lifestyle change, which it
propagates in all its centers as Basic Therapy to cope with lifes stresses including addiction, which
is an outward manifestation of the turmoil within an individual. It is this inner healing which is
enabling Kripa to realize its dream of becoming a global presence.

Page | 3

 Structure Of Organization

Project director

Project manger

Accountant
(Out reach
worker)
ORW

ORW

(Out reach worker)

(Out reach worker)

oo

oo

Peer Educator

Medical officer
oo

Peer Educator

Peer Educator

(DIC center)

Counselor
oo
Peer Educator
Nurse

Page | 4

Chapter-2
Objective of organization

Page | 5

In today 21st century when the world faces many challenges for human life sustainability like
global warming, terrorism, economic crisis etc. list goes on. One major challenge which is faced
by the world is the high risk of harm which could be caused due to transmission of HIV through
injecting drug user suffering from HIV.
This challenge at holistic approach from the global point of view might not be at more
significant level than the above mentioned few challenges faced by the world, but even a small
challenge or a problem may turn out to be an unprecedented havoc for the human race.
Kripa foundation has one its center located at Surat ,is one of the NGO in India which is
leading from the forefront to resolve the challenge of Reduction of high risk of transmitting HIV
through IDU user.
The organization has closely associated with the NACO (National aids control organization),
GSACS (Gujarat state aids control society) and DAPCU (district aids and prevention and control
unit).The organization has worked in a well calibrated and systematic manner with the above
mentioned society in designing and implementing policy related to the Reduction of high risk of
transmitting HIV through IDU user. The organization not only adopted professional manner in its
work but being class apart , approached a new way of work which not only involved the stringent
professional dimension but it included the dimension of combination of professionalism and human
value and spirituality.
The organization taking a large, wide and holistic view of the challenge and in wellmannered approached set its objective. The objective that were set by the organization are
Reduction of high risk of transmitting HIV through IDU user
&
Rehabilitation of IDU (injecting drug user)
The objective mentioned above may seem to just two objectives but when a close look and
deep study is done on these objectives they are just as wide and large just as space and May also
deemed to be infinite. The organization has been very critical in setting its objective and goals
because its quite easy to set the objectives but its takes great efforts and hard work to achieve them.
The organization thus made objective that were quite feasible in its nature and achievable through
persistence and hard work rather than setting the infeasible objective and goals.

Page | 6

If the first objective is elaborated Reduction of high risk of transmitting HIV through IDU
user the organization has quite phenomenal achievement in achieving it goals. To achieve this
objective the organization conducted various program named under banner of
Needle exchange program
Promotion of condom usage
Counseling and awareness program
The second objective of rehabilitation of the IDU (injecting drug user) of the organization
was quite unique in its own way and has been a great success. The organization has proved itself in
achieving the objective by invoking the professional as well ethical treatment towards the IDU user.
The organization has put in very sincere and hard effort to achieve this objective. To achieve this
objective the organization followed a well-structured manner as follows
1. Identifying the IDU user
2. Developing communication and relationship between organization and IDU
3. Encouraging and motivating the IDU to discourage the drug abuse
4. Timely counseling the IDU user at DIC and OST center
5. Providing them OST (opioid substitute therapy)
6. Making provision for necessity of life ( food & shelter & job provision)
7. Providing free legal aid
If we look above it can be clearly stated that organization has put upon the extra burden on
itself to not only to de-addict the IDU user but also to help IDU user to lead a life with head held
high in the society. Here organization has taken such approached because it was observed that most
of the IDU user were shunned or discarded by their family and society, thus organization had instant
privilege not only to de-addict IDU user but also re-initiate them back to the main stream society
where he could live a normal life as other citizen.
The two objective of the organization plays a very precise and important role as both of these
objectives to some extent complement and supplement to each other to overcome the challenge as a
whole.
Thus the objective of the organization was not just the bold writing which was to be achieved
by hook or crook but it was the source of guiding the whole organization toward right resource and
providing the organization with great wisdom and rationality to extract the great potential hidden in
the people involved in this organization.
Page | 7

The future objective of the organization is to expand itself to quite greater stretch and to reach
out those who suffer from this challenge and to uplift them, so as they can live life with honor and
dignity in society. The organization wishes do this without comprising with its core value of
integrity, persistence, hard work and dedication. The organization truly believe in phrase which is
Do small thing with perfection because perfection is not small thing

Page | 8

Chapter -3
Daily schedule and Day to Day reporting

Page | 9

 Brief daily schedule

Timing

Task

10:00 am

Sign in at organization center

Study work flow and documentation of

10:30 pm - 2:00pm

organization
or
Visiting the hotspot / D.I.C / O.S.T center
Or
Interaction with IDU user to understand their
case and their circumstance

2:00 pm - 3:00pm

Lunch break

Making observation of task done between

3:00 pm - 5:15pm

10:30 am-2:00pm and study of relative law

applicable on it

5:15 pm - 5:55 pm

Making conclusion on observation made and

law studied

5:00 pm

Sign out from the organization center

Page | 10

 Day to Day Reporting

DATE

12 /10/2015

TASK

Introduction to organization

OBSERVATION

Brief about the organization and its structure and workflow

was given

Introduction with people employed with organization

Objective and purpose of organization were described to

intern in details

Page | 11

DATE

13 /10/2015

TASK

Introduction to organization Documentation and Paper work

OBSERVATION

Various process and procedure of documentation was

explained to interns even how audit take place was
explained in brief

Since organization deal with a very critically important

issue where privacy of individual was quite essential
element thus Document confidentiality was very critical part
of the documentation

Page | 12

DATE

15 /10/2015

TASK

Introduction to hotspot / DIC /OST center

OBSERVATION

Introduction to hotspot / DIC (doping center) /OST

center was elaborated

Hotspot place at which IDU user normally resides

for drug abuse (normally any abandoned place)

DIC(doping center) place at which IDU user are

counseled by government medical officer

OST center place at which IDU user undergo

OST therapy

Rehabilitation centerplace at which IDU user are

sent for rehabilitation(normally civil hospital under
guidance of physiatrist and panel of doctor

Detail procedure was explained to interns how the

process of the detecting counseling and
rehabilitation of IDU take place

Intern were not allowed to site visit until they were

fully aware of the procedure and conduct of the
organization

Page | 13

DATE

16 /10/2015

TASK

Visit to DIC center (doping center) & syringe exchange program

details

OBSERVATION

It was first field visit for interns ,

Intern were introduce the DIC center and various program

carried out through DIC center

A detailed and elaborated explanation about the Syringe

exchange program was given to interns

A brief discussion was done between law interns and

outreach worker(ORW) about the challenge they face in
program and various legal remedy for the same was
discussed

Page | 14

DATE

17 /10/2015

TASK

Discussion with ORW &IDU user about the problem they face in
syringe exchange program and legal aid to be provided

OBSERVATION

It was discussed in quite detail about the syringe exchange

program with the IDU user and outreach worker about the
legal issue faced by them.

On prima facie it came to observation that since local

community and law enforcing agency were not quite much
aware of the program created some legal issue

Even though the program is been legalized by the

government and its due notification is given to the law
enforcing agency of the area where the program is carried
out ,though it created some issue

The issue were due to narrow mindedness and shallow

through process of community around the area

It was observed that to overcome such issue there was dire

need of a legal expert to resolve such issue immediately
,effectively and efficiently

Page | 15

DATE

19 /10/2015

TASK

Discussion with ORW &IDU user about the problem they face in
syringe exchange program and legal aid to be provided cntd

OBSERVATION

On the second day the discussion continued on issue

faced during the syringe exchange program

IDU user were given opportunity and were encouraged

to express their grievance they face during the syringe
exchange program

During discussion it came to observation

Few IDU user were history-sheeted in past

for pity crime ,thus putting them in eye of
suspicion

Law enforcing agency staff at tertiary level

were not acquainted with the knowledge of
program, thus they made arrest of IDU
user even though they committed no
offence as such they are enrolled in
program

apathy and discouragement faced by the

IDU was biggest challenge, even though
they trying to uplift them self by
rehabilitation program through
organization

Page | 16

DATE

20 /10/2015

TASK

Discussion with Government medical officer of DIC about syringe

exchange and condom promotion program

OBSERVATION

An in-depth discussion was held between the intern and incharge medical officer of DIC center.

Medical prospective of the syringe exchange program was

discussed and various legal dimension were too discussed
other substitute program (condom promotion program)
conduct by DIC center were discussed and elaborated by the
medical officer of the center.

Medical officer made the intern aware of the medical

condition of the IDU user and how to deal with IDU user
while making case study on IDU user.

Interaction had brought in great glimpse of relationship

between medicine and legal study.

Page | 17

DATE

21 /10/2015 to 24/10/2015

TASK

Visit to OST center & OST(opined substitution therapy)

OBSERVATION

This was first visit of the intern to a OST center.

There was introduction with counselor, representative staff of

NACO and chief medical officer of the health center.

The intern were made aware of the OST program by the

counselor and theme of various program which is conducted
by the organization with the corporation of the NACO was
explained by the representative of the NACO at health center.

A discussion was held on legal issue they face during OST

program was discussed by the intern.

Suggestion for developing legal aid service was suggested by

intern to counselor to have access to legal remedies by the
IDU user if they face any legal issues.

** Legal aid was to be provided to IDU user ,if they fall

within the discussed matters or face legal issue which had
direct correspondence with any program of the organization
or any arbitrary arrest made on suspicion of drug abuse when
he/she is on due course of the program.

Page | 18

DATE

25/10/2015

TASK

Visit to Police Commissioner office (surat) and Session Court &

outing with IDU user

OBSERVATION

Intern visited police commissioner office and handed over an

application on behalf of the organization for organization of
a drug awareness program in collaboration with police force.

Intern was given out detail about nagariksurakshasetu

program of police, which is program to build a good
relationship between the police and citizens.

Intern also visited the session court of Surat, overview and

on-hand experience about the court proceeding was given by
project director.

Intern also interacted with project director and detail

explanation of legal study and observation made by them was
explained to the project director, who further guided the
intern into their internship work.

An outing program was organized between IDU and interns,

the objective was to develop a friendly relationship between
the two.

Page | 19

DATE

26 /10/2015

to

31/10/2015

TASK

Visit to various Hotspot (place where probable drug abuser are

found)

OBSERVATION

Intern visited various hotspot located in different area of

cities.

Detail description about the hotspot was explained by the

ORW to intern.

At hotspot visit intern undertook study about the hotspot its

surrounding and elements affiliated to the hotspot.

Also intern interacted with local people and IDU for getting
in each minute details about the hotspot.

Intern also investigated the hotspot area for any evidence of

drug abuse taken at hotspot in recent time.

Detailed observations were marked by the interns and various

inferences were made based on observation for case study.

Page | 20

DATE

2 /11/2015

TASK

Case study of IDU

OBSERVATION

to

6/11/2015

Intern carried out case study of various IDU at OST center.

Intern interacted with IDU and strived hard to understand

the circumstance and situation of the IDU and study of
various law which directly related to them were undertaken.

IDU were made aware of the legal remedies they could opt
when their legal rights are violated.

A brief presentation on the human rights and various

constitutional remedies given to the citizen of the country
was presented.

A discussion was held with the chief medical officer of the

medical center at OST was held and topic of rehabilitation
of drug user and challenge which its faces were discussed.

Another presentation on Article 22 and Article 21 were

made by the interns

Page | 21

DATE

7/11/2015

TASK

Presentation and Farewell and Vote of thanks

OBSERVATION

Intern made the presentation of the case study of his

subject based on observation made by him during the
tenure of his internship.

A vote of thanks speech was expressed to the

organization and all colleague for all their help during
the internship period.

A small farewell party was organized by the

organization and interns.

Page | 22

Chapter -4
Photo Gallery

Page | 23

Page | 24

Page | 25

Page | 26

Chapter -5
Study undertaken observations and relative law

Study of curtailment of civil liberty of I.D.U by the

society and its remedies by Article 21 and 22 of the
constitution

Page | 27

Chapter 5.1
Case study and methodology adopted for the case study
of IDU

Page | 28

During tenure as law intern at organization, the very glaring situation which struck our eye
was the discrimination attitude of the society towards the IDU. Thus we took the challenge on
ourselves to study the challenge and find out all reasonable and possible solution to eradicate the
discriminatory attitude of the society towards the IDU with stern and strict tool of the law.
Before we began our action its was essential to study the in-depth of the situation or
challenge and to prepare ourselves to deal any odd or even situation. Therefore we carried out a case
study on various IDU and tried to study their situation and circumstances. Since this case study
involved highly sensitivity issues and details we made great surety that non-of-information was
disclosed as right to privacy is guaranteed under article 21 of the constitution.
The case study was carried out in very informal manner, here when informal manner
approach was carried it means that no formal approach like question & answer or interrogate manner
were adopted, rather a friendly relationship was developed by the intern with IDU and IDU were
asked express their heart out, so as the intern can be made avail with all the information and detail
about the IDU. The reason for such approach is that, no person would like to disclose his own flaws
and personal detail to third unknown person. The case study was carried with due care and
diligence, furthermore under the guidance of the learned counselor and chief medical officer of the
OST center. Every observation made by the law interns were reported back to the counselor and
chief medical officer at regular intervals , this process was adopted so as the observation that were
marked by the law interns were inline of the case study undertaken rather than being obnoxious.
The intern adopted a policy of cross and background check of the information because its
quite required that the information disclosed by the IDU was not only accurate, but trustworthy.
Interns at organization continuously verified the information with other colleague and organization.
The information lend out to interns by IDU, if even slightly deviate from the information from the
colleague or organization or derived from the documentation of IDU were termed to suspicious or
even rejected during case study and such information were not been taken into consideration while
making observation. Thus during the course of making case study of IDU it was quite essential to
maintain rationality between the trustworthy fact and fictional fact, as the fact would have a direct
impact on the study undertaken by law interns.

Page | 29

Case studies of various IDU were carried out and various shades and contrast were remarked
in the observation made by law interns. One case study mentioned below envelopes at the large the
similarity of observations that were observed during the other case study of IDU.
Case study:-

Name

*******

Age

mid 20s

Sex

male

IDU Duration

more than 2 yrs.

Criminal background

yes

Rehabilitation program

undergone

Description about case and observation

At organization one of the major case study which was undertaken as law intern was the case
of the IDU, a male in his midst 20. We started to build a healthy friendship so as to get relevant
information from the IDU and to study his issue and challenge. We started to go out to eat out at
eatery or for walk or visit various OST and Hotspot and started to talk in the informal way. The very
first observation which was marked by me was the very happiness on his face, which lead to further
investigate the cause of such observation. Few day later when healthy relationship was established
we started to discuss about the issue, circumstance and challenge IDU faced, which literally shocked
me moved my conscience. The conversation between us continued for more than four days some of
the highlights of statements made by IDU are stated below
Highlight of statements made by IDU

I am useless ,lunatic and idiot person nobody wants me was the very first sentence
that was stated by IDU

Page | 30

The people in society always abuse me of doing wrong even if I have committed no
wrong

Society did not even allowed me to attend my mother and my fathers final rites and
barred me from performing any duty as son

I curse this society and they have killed me and killing my conscience bit by bit

I was held wrongfully for crime which was committed by my friends because just as I
was present at site of crime, people at site of crime held me and stated to police that I
was partner in crime rather than arresting my friend police arrested me based on
theory of people.

Once I became a history-sheeted police would always arrest me even on bases of pity
crime which I have never committed

I came out of this mess due to help of Anant Sir(project director of organization)

I never knew about the rules mention under article 22 of the Indian constitution, thank
you letting me know next time I would definitely exercise them when I am arrested

I became drug abuser because of my friends as they no business to do but to get

people around in their business so they could afford the drugs as they could share out
money for drugs

Once I became drug abuser people of society instead of helping me to come out from
this mess rather discarded me out and abused me as threat to society

Page | 31

When I came under foundation contact I have undergone rehabilitation process , I feel
that due to me ,I have destroyed the life of many people whom I have made drug
abuser

I want to correct my mistake , I have joined organization as peer educator and help the
drug abuser to get out this mess

But sir one of the major challenge we face is that we are consider as untouchable of
the society

We still feels discriminated and sometime even discriminated , the rights you talked
about are just text written in books ,sir in real world scenario quite different

We could easily state about the situation and circumstance of the IDU had to suffer through
on evident bases of the statement mentioned above.
As law intern the very statement untouchable of the society invoked our inner conscience
to explore the very basic and supreme law of the land to protect such individual from hazard which
curtails the civil liberty of an individual by the law which are constituted and enacted by few
individual of the society which violates doctrine of natural justice and strips out an individual from
the very basic right enjoyed by every other large part of society which are governed by the core
value of humanity.
Based on the observation marked during our internship schema of the report is drafted as
follow

Chapter 5.2.1

Inheritance of fractured society

Gives brief idea about reason for discrimination existing in our country

Chapter 5.2.2

Stigma of social outcast and abuse in name of law and order of IDU

Gives overview of the challenge faced by the IDU from society and law

Page | 32

Chapter 5.2.3

Is Article 17 an option for prevention of outcast of IDU?

Overview of article 17 and study to determine whether it can be used as tool to

curb the evil of social boycott of IDU

Chapter 5.2.4

Invoking Article-21 and its interpretation in various case laws to

protect the civil liberty of the IDU user

Give an overview of how Article-21 can used as tool to protect the civil liberty
of the IDU user

Chapter 5.2.5

Safeguard against arbitrary arrest and detention of IDU guaranteed

under Article 22

Give an overview of how article 22 can used as tool to protect the IDU user from
arbitrary arrest and detention

Chapter 5.2.6

Conclusion

: - Constitution its relationship Human rights and its

supremacy over the orthodoxly law established by society

toward IDU curtailing their civil liberty and with Indian

Page | 33

Chapter 5.2.1
Inheritance of the fractured society

Page | 34

If we go back to history of our nation we can see that we already inherited caste system in our
DNA. Further in history of our nation, we were exposed to many invasions from the foreign element
from various nations. To name few of these, we were invaded by Mughals, Afghans, Mongolians,
French, Portuguese, British etc. . And list goes on. But great versatility of our nation was to absorb
not only this invasion from foreign element but also to absorb their rich social and cultural value.
Thus these lead our nation to turn out to be a rich hub of diversified social and cultural values. But
this rich hub of diversified social and cultural value got a big blow when India had to suffer from few
worst regimes of few emperors and especially colonial rule of the British.
Under the British colonial rule our country not only exploited on economic factors for the
British benefits but various policy enrolled by the British rule exploited our social but also rich
cultural heritage. Great amount of damage was done to the social unitary structure of our country.
But it may be noted its not only the British who was responsible for damage to social unitary
structure of our country, we our self at some extent are too responsible for this damages caused.
If British rule was to be blamed for our religious and caste exploitation by divide and rule
policy. We are to be blamed for the superstitious belief of few faiths and custom which we followed
blindfolded without any rational judgment and wisdom of the mind thus resulted into violation of
human right women forced to become sati. Thus somewhere or the other the crack started to
appear in the unitary social structure of our country.
After long struggle of freedom it and almost around 67 years of our independence its quite
evitable to see that unitary structure of our country was hit hard largely by the mediocre and narrow
mindset which people emphasized on. When in the 21st century world is fighting for the human right
and equality, we in our country our still facing the stigma of fractured society.
What is fractured society? What does it mean?
The term fractured society try to define a society in which people are divided on their caste
religion, faith, color and gender. These divisions among society result into a fragmented society with
individual in the fragmented part of society bearing in his/her mind the feeling of hatred towards
other. In other words we can say that each individual bears a feeling of discrimination towards other
even though they belong to same very HUMAN RACE.

Page | 35

Do after independence and modern laws and social protection scheme and other scheme this
fractured society exists?
Even after six decades of our independence and various laws enforced to repair the cracks in
the social unitary structure of our country, also various commissions and scheme enforced or
enacted, its quite unfortunate to see that still this fractured structured seem to be visible in parts of
our society.

Page | 36

Chapter 5.2.2
Stigma of social outcast and abuse in name of law
and order of IDU

Page | 37

Drugs corrode the basic structure of a whole society, by affecting a cultured human
society in all aspects including destabilizing families, reducing human productivity, corrupting
trustworthy governments and honest police, and demoralizing law respecting citizens.
If we observe the above article on drugs and its relationship with society we can conclude,
if we finely observe the statements that its drugs not drug abuser which is a threat to the
society. Thus a clear discrimination line should be drawn between drug and drug abuser
While interacting with many injecting drug user in the field it came to our observation that
one of the major stigma faced by the injecting drug user is of social outcast and discrimination. Thus
resulting into a fractured society that is hazardous to the human race or humanity. This situation can
be can simply describe by quote The most dangerous creation of any society is the man who has
nothing to lose-.James A. Baldwin .Thus begin a law intern it was essential for us to understand
the situation not only through the legal focal point of view but by invoking a holistic approach where
legal remedies was the fundamental key to withhold the other point such as socio eco etc. in the
approach.
Thus sharing a good repute with the injecting drug user we started making our observation
keeping in mind that the right now the social dimension had greater priority rather than legal
dimension and same time we tried to couple this observation with legal knowledge so as to get 3s
solution .
3s stand for 1s-secured 2s-stable 3s-sustainable solution
The very first observation I made during my study was that the injecting drug user never
could be accepted or absorbed into main stream of the society and were treated to be curse to the
society and very human race. . Thus even if attempt were made by law enforcing agency to
rehabilitate them by sending such drug abuser to the rehabilitation center and punishing them under
various offence went in vain.
The next observation which clearly surfaced during our study was that this injecting drug user
would consider them to worthless, bad, and infectious towards the society and list goes on. The very
negative mindset had made a strong foothold in their conscience. Thus making IDU disabled not
physically but mentally. Here law remedies were not the medicine for the cure.
Further we could sense that it was not only this injecting drug user at fault but the society was
the partner in the crime and made a significant contribution in crime. To summarize the role of
Page | 38

society we can quote a famous quote of an African-American social reformer, abolitionist, orator,
writer, and statesman-Frederick Douglass
Where justice is denied, where poverty is enforced, where ignorance prevails, and where any
one class is made to feel that society is an organized conspiracy to oppress, rob and degrade
them, neither persons nor property will be safe.
Another observation is that there is no way to use the criminal law to deal with drugs, except
in a very abusive way. If one is going to use the criminal law, one has to conduct arbitrary searches
and engage in practices such as arbitrary arrest and detention of IDU. It is quite natural for law
enforcement agencies to identify drugs with particular minorities within different societies, and
therefore to engage in racial proling. It is natural for law enforcement to engage in violations of
Article 21 of the constitution to some extent.
Another characteristic of the effort to control drugs through law enforcement is that it often punishes
the status of being a drug user especially IDU even they are on process of rehabilitation, IDU, may
be subject to mandatory testing such as urinalysis to determine if they have used drugs, and are
punished if they test positive. Here, too, it is the status of being a drug user that is punished. Criminal
law imposes punishments on those who possess quantities of drugs for their own use. Effectively, in
all of these examples it is the status of being a drug user that is punished. Yet from the standpoint of
the rule of law and in human rights, punishment of status is always improper.
IDU are victimized because the witnesses in drug cases are law enforcement ofcers
themselves, or those who are coerced to testify by law enforcement in order to receive a lesser
punishment for themselves, or escape punishment altogether. Without a complainant, law
enforcement agency resort to arbitrary searches and violations of privacy to enforce the criminal law
against drugs.
Two factors that seem to me to exacerbate the problems of law enforcement in dealing with
IDU. One is that the persons who are the targets of law enforcement have no signicance in society.
They are looked down upon; they are stigmatized; they are drug users. Therefore, it does not matter
when they complain or when they protest about the way in which they are treated. It becomes much
easier to victimize them because they dont have political power. The stigma of being a drug user
denies them the political capacity to protest against the abuses that they suffer. Another factor of
equal significance in exacerbating the consequences of abusive law enforcement practices is that
drug crimes inspire corruption.
Page | 39

The law enforcement approach towards IDU has had disastrous results that include systematic
violations of human rights.. In the age of HIV/AIDS, law enforcement abuses directly endanger the
lives not only of drug users but also of large segments of the general population. The HIV/AIDS
epidemic in many countries may begin with drug users but cannot be conned to them. Ultimately,
the whole community is victimized

Page | 40

Chapter - 5.2.3
Is Article 17 an option for prevention of outcast of IDU?

Page | 41

While making the case study of the IDU, observation which brought to our mind was the
discrimination of the IDU and treatment they were treated with. With immediate observation the first
word that crept in our mind as law intern was untouchability. IDU faced a serious challenge of
untouchability which invoked in our mind the Article 17 of the constitution as remedy for this
challenge.
What is Article 17? Article 17 of the constitution abolishes untouchability and forbids its
practice in any form. And states as below
Abolition of Untouchability
Untouchability is abolished and its practice in any form is forbidden. The enforcement of any
disability arising out of Untouchability shall be an offence punishable in accordance with law
Now biggest dilemma was whether the article 17 can be used as weapon against challenge of
unethical and discriminatory behavior and outcast of IDU?
Article 17 of the constitution was brought in by framer of the constitution to end the evil practice of
untouchability which existed in the society. Article 17 was an attempt to bring a social reform in the
society. While examining Article 17 of the constitution it came to our view that definition of the
Untouchability was not defined in the constitution or in the act.
Thus taking the view of the Mysore high court judgment in Deverajiah v. B.Padmanna it stated
The word untouchability is not to be understood in its literal form or grammatical sense but to be
understood as the practice as it has developed historically in this country .understood in this sense, it
is a product of Hindu caste system according to which particular section amongst Hindu had been
looked down as untouchable by the other of the society. A literal construction of the term would
include person who are treated as untouchable either temporally or otherwise for various reason such
as suffering from infectious disease or on account of social observance such as ,are associated with
birth or death or on account of social boycott resulting from caste or other dispute. In either case
such person can claim the protection or benefit of article 17 or of the 1955 act.
After examining the judgment it could be concluded that the article 17 was not effective tool to deal
with prevention of the outcast of the IDU because the court stated in judgment above that
instigation of social boycott do not denote untouchability. Until unless the IDU belong any
schedule caste or schedule tribe or lower section of society, article 17 could not be invoked

Page | 42

Even if the IDU belonged to lower section of the society and article 17 is invoked for his/her
protection from outcast from society it would not be a more effective mechanism to deal with the
issue of outcast from society because it would not in real terms allow IDU to be absorbed into
mainstream society.
The article 17 has miserably failed in bringing an end to practice of untouchablity because it
has not only failed to state its definition but even term untouchability which needed to be expanded
in its literal form is not expanded by any court of justice .
Even we can sense the act of untouchability practice in the society towards the IDU, we still
feel helpless in regard to article 17 which promotes to rehabilitate and bring back the suffered and
outcast community to mainstream of society but fail to do so due to ambiguity of its definition and
lack of expansion of the term untouchability.
Thus the very urgent need is to reexamine the article 17 of the constitution and to define term
untouchability and to expand its scope to much wider extended just as article 21 scope which
expanded by supreme court in Maneka Gandhi v. Union of India.

Page | 43

Chapter 5.2.4
Invoking Article-21 and its interpretation in various case
laws for Protection of life and personal liberty of the
IDU user

Page | 44

Even if article 17 was not a mean to deal with challenge faced by IDU users but it was not
setback for us as law intern as constitution of the nation and its wide interpretation by the supreme
court in its various landmark judgments have provided us with many other tool to deal with
challenge to prevent the curtailment of civil liberty of IDU.
The very first thing which strike when we deal with the civil liberty of an individual is Article
21 of the constitution which states
No person shall be deprived of his life or personal liberty
except according to procedure established by law

Article 21 secures two rights:

1) Right to life
2) Right to personal liberty

Article 21 of the Constitution of India, 1950 provides that, No person shall be deprived of
his life or personal liberty except according to procedure established by law. Life in Article 21 of
the Constitution is not merely the physical act of breathing. It does not connote mere animal
existence or continued drudgery through life. It has a much wider meaning which includes right to
live with human dignity, right to livelihood, right to health, right to pollution free air, etc. Right to
life is fundamental to our very existence without which we cannot live as human being and includes
all those aspects of life, which go to make a mans life meaningful, complete, and worth living. It is
the only article in the Constitution that has received the widest possible interpretation. Under the
canopy of Article 21 so many rights have found shelter, growth and nourishment. Thus, the bare
necessities, minimum and basic requirements that is essential and unavoidable for a person is the
core concept of right to life.

Page | 45

In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held
that:
By the term life as here used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision
equally prohibits the mutilation of the body by amputation of an armour leg or the pulling out of an
eye, or the destruction of any other organ of the body through which the soul communicates with the
outer world.
In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval the
above observations and held that the right to life included the right to lead a healthy life so as to
enjoy all faculties of the human body in their prime conditions. It would even include the right to
protection of a persons tradition, culture, heritage and all that gives meaning to a mans life. It
includes the right to live in peace, to sleep in peace and the right to repose and health.
Based on the various observation made during the case study, most appropriate was to
explore the rights which have direct impact on IDU and which are very basic core to their civil
liberty, Such rights are schematize under two rights secured by Article 21. Thus by invoking Article21 and its interpretation in various case laws are taken into consideration of study so as to protect the
civil liberty of the IDU. Some of the rights and relative case law which were taken into consideration
for study are as mentioned below

1) Right to life
Under right to life the court has expanded its view, such view can be further categorize under the title
of various rights mentioned below

a) Right To Live with Human Dignity

In Maneka Gandhi v. Union of India the Supreme Court gave a new dimension to Art. 21
and held that the right to live the right to live is not merely a physical right but includes within its
ambit the right to live with human dignity.

Page | 46

The Court in Francis Coralie v. Union Territory of Delhi observed that:

The right to live includes the right to live with human dignity and all that goes along with it, viz.,
the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities
for reading writing and expressing oneself in diverse forms, freely moving about and mixing and
mingling with fellow human beings and must include the right to basic necessities the basic
necessities of life and also the right to carry on functions and activities as constitute the bare
minimum expression of human self.
In Bandhua Mukti Morcha v. Union of India.Characterizing Art. 21 as the heart of
fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
It is the fundamental right of everyone in this country to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from
the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles
41 and 42 and at the least, therefore, it must include protection of the health and strength of workers,
men and women, and of the tender age of children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of freedom and dignity, educational
facilities, just and humane conditions of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to live with human dignity and no State
neither the Central Government nor any State Government-has the right to take any action which will
deprive a person of the enjoyment of these basic essentials.

The Supreme Court in Peoples Union for Democratic Rights v. Union of India, held
that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi
was a denial to them of their right to live with basic human dignity and violative of Article 21 of the
Constitution. Bhagwati J. held that, rights and benefits conferred on workmen employed by a
contractor under various labour laws are clearly intended to ensure basic human dignity to workmen.
He held that the non-implementation by the private contractors engaged for constructing building for
holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the
provisions of these laws was held to be violative of fundamental right of workers to live with human
dignity contained in Art. 21.

Page | 47

b) Right to Reputation
Reputation is an important part of ones life. It is one of the finer graces of human civilization
that makes life worth living.
The Supreme Court referring to D.F. Marion v. Minnie Davis in Smt. Kiran Bedi v.
Committee of Inquiry held that good reputation was an element of personal security and was
protective by the Constitution, equally with the right to the enjoyment of life, liberty and property.
The court affirmed that the right to enjoyment of life, liberty and property. The court affirmed that
the right to enjoyment of private reputation was of ancient origin and was necessary to human
society.

In the case of State of Maharashtra v. Public Concern of Governance Trust, where the Court
held that good reputation was an element of personal security and was protected by the constitution,
equally with the right to the enjoyment of life, liberty and property. It has been held that the right
equally covers the reputation of a person during and after his death. Thus, any wrong action of the
state or agencies that sullies the reputation of a virtuous person would certainly come under the scope
of Art. 21.
In State of Bihar v. Lal Krishna Advani, a two-member commission of inquiry appointed to
inquire into the communal disturbances in Bhaglapur district on 24th October, 1989, made some
remarks in their report, which impinged upon the reputation of the respondent as a public man,
without affording him an opportunity of being heard. The Apex Court ruled that it was amply clear
that one was entitled to have and preserve ones reputation and one also had the right to protect it.
The court further said that in case any authority , in discharge of its duties fastened upon it under the
law, transverse into the realm of personal reputation adversely affecting him, it must provide a
chance to him to have his say in the matter. The court observed that the principle of natural justice
made it incumbent upon the authority to give an opportunity to the person, before any comment was
made or opinion was expressed which was likely to prejudicially affect that person.

Page | 48

c) Right To Livelihood

The Supreme Court took the view that the right to life in Art. 21 would not include right to
livelihood in..The court said The right to livelihood would be included in the freedoms enumerated
in Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid
of argument that the word life in Art. 21 includes livelihood also. But then the view underwent a
change. With the defining of the word life in Article 21 in broad and expansive manner, In Board
of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni came to hold that the
right to life guaranteed by Article 21 includes the right to livelihood.
The Supreme Court in Olga Tellis v. Bombay Municipal Corporation popularly known as
the Pavement Dwellers Casea five judge bench of the Court now implied that right to livelihood
is borne out of the right to life, as no person can live without the means of living, that is, the means
of Livelihood. That the court in this case observed that:
The sweep of right to life conferred by Art.21 is wide and far reaching. It does not mean, merely
that life cannot be extinguished or taken away as, for example, by the imposition and execution of
death sentence, except according to procedure established by law. That is but one aspect if the right
to life. An equally important facet of the right to life is the right to livelihood because no person can
live without the means of livelihood.
If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means of
livelihood to the point of abrogation. In the instant case, the court further opined:
The state may not by affirmative action, be compelled to provide adequate means of livelihood or
work to the citizens. But, any person who is deprived of his right to livelihood except according to
just and fair procedure established by law can challenge the deprivation as offending the right to life
conferred in Article 21. The court Stated: That, which alone makes it impossible to live, leave
aside what makes life livable, must be deemed to be an integral part of right to life. Deprive a person
from his right to livelihood and you shall have deprived him of his life. Art. 21 does not place an
Page | 49

absolute embargo on the deprivation of life or personal liberty and for that matter on right to
livelihood. What Art. 21 insists is that such deprivation ought to be according to procedure
established by law which must be fair, just and reasonable. Therefore anyone who is deprived of
right to livelihood without a just and fair procedure established by law can challenge such
deprivation as being against Art. 21 and get it declared void.

In D.T.C. v. D.T.C. Mazdoor Congress a regulation conferring power on the authority to terminate
the services of a permanent and confirm employee by issuing a noticing without assigning him any
reasons and without giving him a hearing has been held to be a wholly arbitrary and violative of Art.
21.

In MX of Bombay Indian Inhabitants v. M/s. ZY it was held that a person tested positive for HIV
could not be rendered medically unfit solely on that ground so as to deny him the employment.
The right to life includes the right to livelihood. Therefore, right to livelihood cannot hang on to the
fancies of the individuals in authority. Even though the petitioner might have been a nuisance to
others and conducted themselves either in a disorderly way or unbecoming on their profession but,
that in itself, it is not sufficient for the executive to take away their source of livelihood by an
executive fiat.

Page | 50

d) Right to Shelter
In Avas Vikas Parishad v. Friends Coop. Housing Society Limited the right to shelter has
been held to be a fundamental right which springs from the right to residence secured in article
19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the
state has to provide facilities and opportunities to build houses.
Upholding the importance of the right to a decent environment and a reasonable accommodation,
in Shantistar Builders v. Narayan Khimalal Totame, the Court held that
The right to life would take within its sweep the right to food, the right to clothing, the right to
decent environment and a reasonable accommodation to live in. The difference between the need of
an animal and a human being for shelter has to be kept in view. For the animal it is the bare
protection of the body, for a human being it has to be a suitable accommodation, which would allow
him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring
fuller development of every child. That would be possible only if the child is in a proper home. It is
not necessary that every citizen must be ensured of living in a well-built comfortable house but a
reasonable home particularly for people in India can even be mud-built thatched house or a mudbuilt fireproof accommodation.
In Chameli Singh v. State of U.P., a Bench of three Judges of Supreme Court had
considered and held that the right to shelter is a fundamental right available to every citizen and it
was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to
shelter to make the right to life more meaningful. The Court observed that:
Shelter for a human being, therefore, is not a mere protection of his life and limb. It is however
where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to
shelter, therefore, includes adequate living space, safe and decent structure, clean and decent
Page | 51

surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like
roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not
mean a mere right to a roof over ones head but right to all the infrastructure necessary to enable
them to live and develop as a human being.

e) Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of family .K.
Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra
Bose it was held that right to social and economic justice is a fundamental right under Art. 21. The
learned judge explained that right to life and dignity of a person and status without means, were
cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning right to life and
that Right to Social Security and Protection of Family were integral part of right to life.
In N.H.R.C. v. State of Arunachal Pradesh (Chakmas Case), the supreme court said that
the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise,
and it cannot permit anybody or group of persons to threaten other person or group of persons. No
State Government worth the name can tolerate such threats by one group of persons to another group
of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so,
it will fail to perform its Constitutional as well as statutory obligations.

Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde it was held that right to
economic empowerment of poor, disadvantaged and oppressed dalits was a fundamental right to
make their right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa the Supreme held that security
against sickness and disablement was a fundamental right under Art. 21 read with Sec. 39(e) of the
Constitution of India.

Page | 52

In L.I.C. of India v. Consumer Education and Research Centre it was further held that
right to life and livelihood included right to life insurance policies of LIC of India, but that it must be
within the paying capacity and means of the insured.

f) Right to Health and Right to Medical Care

In State of Punjab v. M.S. Chawla it has been held that- the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.
The Supreme Court in Vincent v. Union of India emphasized that a healthy body is the very
foundation of all human activities.Art.47, a directive Principle of State Policy in this regard lays
stress note on improvement of public health and prohibition of drugs injurious to health as one of
primary duties of the state

In Consumer Education and Research Centre v. Union of India the Supreme Court laid
down that: Social justice which is device to ensure life to be meaningful and livable with human
dignity requires the State to provide to workmen facilities and opportunities to reach at least
minimum standard of health, economic security and civilized living. The health and strength of
worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen
the finer facets of life violating Art. 21.

In Parmananda Katara v. Union of India the Supreme Court has very specifically
clarified that preservation of life is of paramount importance. The Apex Court stated that once life is
lost, status quo ante cannot be restored It was held that it is the professional obligation of all doctors
(government or private) to extent medical aid to the injured immediately to preserve life without
legal formalities to be complied with the police. Article21 casts the obligation on the state to
Page | 53

preserve life. It is the obligation of those who are in charge of the health of the community to
preserve life so that the innocent may be protected and the guilty may be punished. No law or state
action can intervene to delay and discharge this paramount obligation of the members of the medical
profession. No law or State action can intervene to avoid/delay the discharge of the paramount
obligation cast upon members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure whether in statute or otherwise which would interfere with the
discharge of this obligation cannot be sustained and must, therefore, give way. The court also
observed:
Art. 21 of the Constitution cast the obligation on the State to preserve life. The patient whether he
be an innocent person or a criminal liable to punishment under the laws of the society, it is the
obligation of those who are in charge of the health of the community to preserve life so that the
innocent may be protected and the guilty may be punished. Social laws do not contemplate death by
negligence to tantamount to legal punishment. Every doctor whether at a Government hospital or
otherwise has the professional obligation to extend his services with due expertise for protecting
life.

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal a person
suffering from serious head injuries from a train accident was refused treatment at various hospitals
on the excuse that they lacked the adequate facilities and infrastructure to provide treatment. In this
case, the Supreme Court further developed the right to emergency treatment, and went on to state
that the failure on the part of the Government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life guaranteed under Article 21. It
acknowledged the limitation of financial resources to give effect to such a right, but maintained that
it was necessary for the State to provide for the resources to give effect to the entitlement of the
people of receiving emergency medical treatment

In Pravat Kumar Mukherjee v. Ruby General Hospital & Others, it was held that a
hospital is duty bound to accept accident victims and patients who are in critical condition and that it
cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the
expenses or on the ground that there is no close relation of the victim available who can give consent
for medical treatment
Page | 54

State of Punjab v. Ram Lubhaya Bagga the Supreme Court has recognized that provision
of health facilities cannot be unlimited. The court held that it has to be to the extent finance permits.
No country gas unlimited resources to spend on any of its projects.

2) Right to personal liberty

Under right to personal liberty again the court has expanded its view, such view can be further
categorize under the title of various rights mentioned below

a) Right to Privacy
First time in Kharak Singh v. State of U.P. question whether the right to privacy could be
implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the
court. Surveillance under Chapter XX of the U.P. Police Regulations constituted an infringement
of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which
permitted surveillance by domiciliary visits at night, was held to be in violation of Article 21. A
seven-judge bench held that:
The meanings of the expressions life and personal liberty in Article 21 were considered by this
court in Kharak Singhs case. Although the majority found that the Constitution contained no explicit
guarantee of a right to privacy, it read the right to personal liberty expansively to include a right to
dignity. It held that an unauthorized intrusion into a persons home and the disturbance caused to
him thereby, is as it were the violation of a common law right of a man -an ultimate essential of
ordered liberty, if not of the very concept of civilization
In a minority judgment in this case, Justice Subba Rao held that:
The right to personal liberty takes in not only a right to be free from restrictions placed on his
movements, but also free from encroachments on his private life. It is true our Constitution does not
expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient
of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest,
Page | 55

physical happiness, peace of mind and security. In the last resort, a persons house, where he lives
with his family, is his castle'; it is his rampart against encroachment on his personal liberty.
Justice Subba Raos observations, paved the way for later elaborations on the right to privacy
using Article 21.

In R. Rajagopalan v. State of Tamil Nadu The right to privacy of citizens was dealt with
by the Supreme Court in the following terms:
(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this
country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of
his own, his family, marriage, procreation, motherhood, childbearing and education among other
matters. None can publish anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right
to privacy of the person concerned and would be liable in an action for damages. Position may,
however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.

(2) The rule aforesaid is subject to the exception that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including court
records. This is for the reason that once a matter becomes a matter of public record, the right to
privacy no longer subsists and it becomes a legitimate subject for comment by press and media
among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap,
abduction or a like offence should not further be subjected to the indignity of her name and the
incident being publicized in press/media.

The right to privacy is not treated as absolute and is subject to such action as may be lawfully
taken for the preventive of crimes or disorder or protection of health or morals or protections of
rights and freedom of others. In case there is conflict between fundamental rights of two parties that
which advances public morality would prevail.
Page | 56

b) Right against Illegal Detention

The right has elaborate in widest form by Article 22 which is discussed in successive chapter

c) Right to Speedy and Fair Trial

In Hussainara Khatoon v. Home Secretary Bihar, it was brought to the notice of the Supreme
Court that an alarming number of men, women and children were kept in prisons for years awaiting
trial in courts of law. The Court took a serious note of the situation and observed that it was carrying
a shame on the judicial system that permitted incarceration of men and women for such long periods
of time without trials. The Court held that detention of under-trial prisoners, in jail for period longer
than what they would have been sentenced if convicted, was illegal as being in violation of Article of
21. The Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in
jail for longer period than what they could have been sentenced had they been convicted

In A.R. Antulay v. R.S. Nayak, a Constitution Bench of five judges of the Supreme Court dealt
with the question and laid down certain guidelines for ensuring speedy trial of offences some of them
have been listed below

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be
tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of
investigation, inquiry, appeal, revision and retrial.

The concerns underlying the right of speedy trial from the point of view of the accused are:

The period of remand and pre-conviction detention should be as short as possible.

The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, enquiry or trial should be minimal; and

Undue delay may well result in impairment of the ability of the accused to defend him.

Page | 57

While determining whether undue delay has occurred, one must have regard to all the
attendant circumstances, including nature of offence, number of accused and witnesses, and
the workload of the court concerned. Each and every delay does not necessarily prejudice the
accused. An accusers plea of denial of speedy trial cannot be defeated by saying that the
accused did at no time demand a speedy trial

In the case of Anil Rai v. State of Bihar the Supreme Court directed the Judges of the High
Courts to give quick judgements and in certain circumstances the parties are to submit application to
the Chief Justice to move case to other bench or to do the needful at his discretion.

Free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court
in Zahira Habibullah Sheikh v. State of Gujarat said that right to free and fair trial not only to the
accused but also to the victims, their family members and relatives, and society at large.

d) Right to Right against Custodial Violence

The incidents of brutal police behavior towards persons detained on suspicion of having
committed crimes are a routine matter. There has been a lot of public outcry from time to time
against custodial deaths. The Supreme Court has taken a very positive stand against the atrocities,
intimidation, harassment and use of third-degree methods to extort confessions. The Court has
classified these as being against human dignity. The rights under Article 21 secure life with human
dignity and the same are available against torture.

e) Right to Free Legal Aid & Right to Appeal

In M.H. Hoskot v. State of Maharashtra the Supreme Court said while holding free legal aid as
an integral part of fair procedure the Court explained that the two important ingredients of the right
of appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an
Page | 58

appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise
disabled from securing legal assistance. This right to free legal aid is the duty of the government and
is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as
government charity. IN other words, an accused person at lease where the charge is of an offence
punishable with imprisonment is entitled to be offered legal aid, if he is too poor to afford counsel.
Counsel for the accused must be given sufficient time and facility for preparing his defense. Breach
of these safeguards of fair trial would invalidate the trial and conviction

Article 21 & Prisoners Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not by mere reason
of their conviction deprived of all their fundamental rights that they otherwise possess. Following the
conviction of a convict is put into a jail he may be deprived of fundamental freedoms like the right to
move freely throughout the territory of India. But a convict is entitled to the precious right
guaranteed under Article 21 and he shall not be deprived of his life and personal liberty except by
a procedure established by law.

Thus Article 21and its wide interpretation by courts in various landmark cases as mentioned
above form the very basic and core structure of the civil liberty which also encompasses various
other rights conferred by part III of the constitution. Article 21 in its true sense upholds the core
value of natural justice incorporated with core value of humanity. Its also breaks the barrier of
orthodox and stagnated law of society which curtail the civil liberty of deprived people in society
such as IDU user and try to reestablished them back to the main stream society.

Page | 59

Chapter 5.2.5
Safeguard against arbitrary arrest and detention of IDU
guaranteed under Article 22

Page | 60

While making case study of various IDU one major observation which was also a prime
observation was arbitrary arrest and detention of the IDU under suspicion of the drug abuse and
various other criminal act even if the IDU had legitimate reason and acted in legal manner. Such
complication arise due lack of knowledge about various program law like syringe exchange program
being prime one to local law enforcing agency and local community.
The arbitrary arrest and detention of the IDU have a very negative effect on the success of the
program as it would lead to development of fear, hatred and breach of trust between the organization
and IDU which would further have adverse effect on other program held under the banner of
reduction of harm transmitting of H.I.V through IDU user which is prime objective of the
organization.
Another observation which surfaced was that many IDU complained about their arrest and
detention that were made in some circumstance under purview of suspicion even if no crime is
committed. Most of the IDU were charged with various section of criminal procedure code. IDU also
complained that their ground of arrest were never even explained to them and a fair chance to make
their relative know about their arrest was not given to them further even they were made to sign F.I.R
merely which also went up to an extent that IDU merely signed the Fir in language which was not
known to him and also sometime on blank paper not knowing the section he is charged with. In some
cases it was also brought into light that IDU were not even provided by any legal representative to
represent them in their matter.IDU also faced issue of accepting to crime under coercion of the law
enforcing agency even if they did not commit any wrong.
While examining all the fact it can be clearly deduce that there was a grave violation of
Article 22 of the constitution which provide safeguard against arbitrary arrest and detention and even
prisoner right governed by article 21 of the constitution.

Page | 61

Invoking article 22 of the constitution is key to the challenge of the arbitrary arrest and
detention of ID .what does Article 22 states? Article 22 deals with safeguard against arbitrary arrest
and detention of an individual and is stated in following manner

Protection against arrest and detention in certain cases.(1) No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended
by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey from the place of arrest to the court of the magistrate and no such person shall be
detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an
enemy alien; or (b) to any person who is arrested or detained under any law providing for
preventive detention.

(5) No law providing for preventive detention shall authorize the detention of a person for a
longer period than three months unless- (a) an Advisory Board consisting of persons who are, or
have been, or are qualified to be appointed as, Judges of a High Court has reported before the
expiration of the said period of three months that there is in its opinion sufficient cause for such
detention:

(5) When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to
such person the grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.

Page | 62

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in
that clause to disclose facts which such authority considers to be against the public interest to
disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months under any law providing for preventive detention
without obtaining the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (5);

(b) the maximum period for which any person may in any class or classes of cases be detained
under any law providing for preventive detention; and the procedure to be followed by an
Advisory Board in an inquiry under sub-clause (a) of clause (5).
The clause 1 and 2 of article 22 guarantee four right on a person who is arrested for any offence
under any ordinary law
a) The right to be informed as soon as may be of grounds of arrest
b) The right to consult and to be represented by lawyer of his own choices
c) The right to be produced before magistrate within 24 hrs.
d) Freedom from detention beyond said period except by the order of the magistrate
the above fundamental rights guaranteed to arrested person by clause 1 and 2 of article 22 are
available to both citizen and non-citizen and not to person arrested and detained under any law
providing for preventive detention.

In notable judgment in Joginder Kumar v. State of U.P. the Supreme Court has laid down
guideline governing arrest of a person during the investigation. This was intended to strike a balance
between the need of police on one hand and protection of human rights of citizen from oppression
and injustice at the hand of law enforcing agencies. The court held that person is not liable to arrest
on merely suspicion of complicity in an offence. There must be some reasonable justification in the
opinion of the police officer affecting the arrest that such arrest was necessary and justified.
Page | 63

In India, Third Report of the National Police Commission it has been pointed out that a power to arrest
is one of the chief source of corruption in the police .according to report ,nearly 60 percent of the arrest
are either unnecessary or unjustified.
The court laid down the following guideline to be followed in making arrest of a person which is his
rights that are inherent in Articles 21 and 22(1) of the Constitution and require be recognizing and
scrupulously protecting.
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or
other person who is known to him or likely to take an interest in his welfare told as far as is practicable
that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this
right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These
protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself
that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal provisions are made in this
behalf. These requirements shall be in addition to the rights of the arrested persons found in the various
police manuals.
These requirements are not exhaustive. The Directors General of Police of all the States in
India shall issue necessary instructions requiring due observance of these requirements. In addition,
departmental instruction shall also be issued that a police officer making an arrest should also record
in the case diary, the reasons for making the arrest.

In Hussainara Khatoon v. Home secretary Bihar supreme court has held that it is
constitutional right of every accused person who is unable to engage a lawyer and secure legal
service on account of reason such as poverty, indigence or incommunicado situation to have free
legal service provided to him by the state and state is under constitutional duty to provide a lawyer to

Page | 64

such person if the need of justice so require. If free legal service are not provided the trial may be
vitiated as contravening article 21.

In another significant judgment in C.B.I v. Anupam.J.Kulkarni the Supreme Court has laid
down detailed guideline governing arrest of accused when investigation cannot be completed within
24 hrs. The court has held:-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation
cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for
believing that the accusation or information is well founded, the officer-in- charge of the police station or
the police officer making the investigation, he if is not below the rank of sub-inspector, shall forthwith
transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating
to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he
has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such
custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order
the accused to be forwarded to a Magistrate having such jurisdiction: Provided that(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the
police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no
Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total
period exceeding,(i) ninety days, where the investigation relates to an office punishable with death, imprisonment
for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other office, and, on the expiry of the said
period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he
is prepared to and does furnish bail, and every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) No Magistrate shall authorize detention in any custody under this section unless the accused is produced
before him;

Page | 65

(c) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall
authorize detention in the custody of police. Explanation 1- For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be so
detained in custody so long as he does not furnish bail.

Thus using Article 22 of the constitution and various guideline laid by the supreme court of
land in landmark cases mentioned above can be a vital tool to resolve the major challenge of
arbitrary arrest and detention and various other issue faced by IDU.

Chapter 6
Conclusion
Constitution its relationship Human rights and its
supremacy over the orthodoxly law established by
society toward IDU curtailing their civil liberty and with
Indian

Page | 66

 Constitution and its relationship between Human Rights

In the world where triumphs for the human right are uphold by the society and law of the
land, its very unfortunate to witness some discrimination based on the caste, creed, religion and sex.
To resolve this dilemma of the discrimination our visionary framers of our constitution has
not only incorporated the fundamental rights in Part-3 of Indian constitution but also
incorporated the various rights few mentioned below.
Part-3 under Article 15-18

Right to Equality

Part-3 under Article 19-22

Right to Freedom

Part-3 under Article 20

Protection in respect of conviction for offence

Part-3 under Article 21

Protection of life and personal liberty

Part-3 under Article 22

Safeguard against arbitrary arrest and detention

Part-3 under Article 23-25

Right against Exploitation

Part-3 under Article 25-28

Right to Freedom of Religion

Part-3 under Article 29-30

Cultural and Educational rights

Part-3 under Article 32-35

Right to Constitutional Remedies

Page | 67

If this fundamental right are explored and studied in very careful and detailed manner it can
be observed that the visionary framers of the constitution has not even left even a single stepping
stone (right of its citizen) to achieve the milestone they wanted their citizen to get (very basic human
right).
The very basic question we as citizen can ask our inner conscience are this rights which are
given to us by our constitution in the year 1950 upholds the human right for which people barged
for in the 21th century and thereto.
If we try to get the answer the above question with honesty and modesty we will all find our
self at same locus point. Here the locus point would be Yes the rights provided to us by our
constitution uphold the true spirit of Human Rights.
Thus we as citizen are at ease as we dont have to wander and fight for our human rights, just
as many people residing in various parts of the countries across the globe has to fight for their civil
rights and liberty or for their basic human rights. Thus constitution itself provides us with a
protection and well defendable wall which not only protects but also defends our rights guaranteed
by it.
Thus now next question which would arise in our mind are
Who made this constitutional & who defined ours right? ,
Whom does these rights entrusted upon?
Who are begin protected?
To answer these questions we can sum-up by phrase said by DR.BHIMRAO AMBEDKAR
that the constitution is constituted By the People, For the People, and Of the People. Thus the
constitution is of the people of India for the people of India by the people of India.
The rights thus defined in the constitution are of the people of India for the people of India by
the people of India. These rights which are entrusted upon us are the very derivative which are
derived from the doctrine of human rights.
Are the rights in our constitution modifiable? Will it dilute the very core of essence of human
rights incorporated in it?
Before we answer that let us examine the following PREAMBLE OF INDIA
Page | 68

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1959, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
If we carefully examine the preamble of the India which act as the guiding navigation
tool for the constitution of India which clearly states the very nature of rights which forms the base
of human rights and that are entrusted upon the us as citizen of the country.

Are these rights modifiable?

The rights which are entrusted upon the citizen are not of absolute nature they can be
curtailed by various article of constitution or as per procedure laid by law also they can be modified
by constitution amendment under Article 368 by the parliament but not to such an extent that it
affects the basic structure or objective of preamble are hindered.

Will the modification result into degradation of right?

No, the rights cannot be degraded. To understand this we need to make an analysis of the
Supreme Court judgment (the guardian of the constitution) in Keshavananda v. State of Kerala
case. The Supreme Court stated in its judgment:Fundamental rights conferred by Part III of the Constitution of India cannot be abrogated, though a
reasonable abridgement of those rights could be effected in public interest. There is a limitation on
the power of amendment by necessary implication which was apparent from a reading of the
preamble and therefore, according to the learned Chief Justice, the expression "amendment of this
Constitution", in Article 368means any addition or change in any of the provisions of the
Constitution within the broad contours of the preamble, made in order to carry out the basic

Page | 69

objectives of the Constitution. Accordingly, every provision of the Constitution was open to
amendment provided the basic foundation or structure of the Constitution was not damaged or
destroyed.
Thus the rights that are crystal clearly defined in the constitution cannot be modified in such a
manner in which it dilute the very nature of rights stated into the preamble of the constitution.

To summarize we state that

Human rights protected by constitution
Constitution protected by preamble of the constitution

The visionary framer of our country not only safeguarded our right of citizen by constituting
the constitution of India but also safeguarded the constitution of India with the preamble of the
constitution.
We can therefore state relationship between the human rights and our constitution in below
manner

Preamble of Constitution

Constitution of India

Human Rights

Page | 70

 Supremacy of Constitution over the orthodoxly law established by

society toward IDU curtailing their civil liberty and with Indian

What do we mean by Constitutional supremacy?

The term Constitutional supremacy means that, the constitution is supreme over the parliament.
And parliament can exercise its function being only within bounds of the constitution. Constitutional
supremacy is only possible where the constitution is written and rigid.

Features and Characteristic of the Constitutional supremacy:

Some intrinsic features of constitutional supremacy are given below.
1. The condition of the constitutional supremacy is that, the constitution must be written.

2. The constitution must be rigid and maintain procedure.

3. In constitutional supremacy, there has distinction between constitutional law and

ordinary law.

4. Parliament is created by the constitution itself

5. Parliament can exercise its function being only within the bounds of the constitution.

Page | 71

6. In constitutional supremacy, there has judicial review.

7. If any contradiction between constitutional law and ordinary law of the republic, the
constitution shall get prevail and get priority

If we scan through the Indian constitution we can observe that Indian constitution satisfy all
the above features and characteristic of Constitutional supremacy, thus we can conclude that India is
land where constitutional supremacy persist. The real question is if there is supremacy of constitution
is it getting overshadowed by the supremacy of society at large?
While examine during our internship we found a very astonishing observation that of the
people never knew about the constitution or its role, even if they didnt knew about it no issues but
they even didnt knew about their very basic rights. Secondly it was quite surprise to see even people
knew about constitutional law they violated at much easy. This two major observation lead us to
deduce to a fact that society being intentionally or unintentionally tried to undermine supreme law of
the land and tried to enact its own law which were orthodox in nature and not only violated the
natural justice but also the core base of civil liberty which further based upon the human values.
Uncounted people have suffered from this dilemma of the orthodoxly law of society.
No doubt society can enact its own law but this law should be in good faith to protect society
and should comply with the supreme law of land. But when things goes opposite to said there is a
need of intervention. This intervention are too be made by the guardian of supreme law of the land,
the Supreme Court of land who is stated as guardian of the constitution.
Now when orthodoxly law of the society proves to be a threat to the liberty of individual its
quite essential to invoke the supreme law of the land and stern action against the society who
mandate and enact such orthodoxly should be actioned to curb this evil. Even constitution in part-III
lay down the fundamental right conferred upon its citizen ,and this right are never discriminate
based on the type of the individual.
Thus to conclude we can state that

Page | 72

Constitution is not the black text on white paper, but its a wisdom enshrined in
the conscience of every individual which is governed by the doctrine of natural justice
and humanity

References

http://www.legalserviceindia.com/articles/art222.htm

http://www.voiceofresearch.org/doc/Sep-2013/Sep-2013_14.pdf

http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=2799

http://www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India

http://www.academia.edu/1192854/10._RIGHTS_OF_PRISONERS

http://www.hurights.or.jp/english/human_rights_and_jurisprudence/right-to-lifelivelihood/

http://en.jurispedia.org/index.php/Article_21_of_the_Constitution_(in)

http://supremecourtofindia.nic.in/speeches/speeches_2009/judicial_activism_tcd_dublin_1410-09.pdf

http://www.hrln.org/hrln/peoples-health-rights/pils-a-cases/1484-sc-reaffirms-workers-rightto-health-and-medical-care.html

http://blog.medicallaw.in/supreme-court-of-india-on-emergency-healthcare/

http://gujarathighcourt.nic.in/Articles/health.htm
Page | 73

AIR (1996) 1234 :(1996) SCC (1) 742

AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)
(1995) Supp 2 SCC 549

AIR 1996 SC 114

AIR 1997 Bom. 406

AIR 1991 SC 101

M.P. Jain, Indian Constitutional Law, Wadhwa, 5th Ed. (2003), p. 1315

AIR 1986 SC 180

AIR 1960 SC 932

AIR 2003 SC 3357

AIR 2003 SC 3357

1964 AIR 703, 1964 SCR (2) 363

AIR 1989 SC 714.

M.P. Jain, Indian Constitutional Law, Ed. 6th (2010), p. 1616

AIR (1989) 2039, (1989) SCR (3) 997

AIR (1995) 922, (1995) SCC (3) 42

Supra note p.1639

1996 SCC (4) 37, JT 1996 (6) 43

1987 AIR 990 : 1987 SCR (2) 468

AIR (1997) SC 1225

Page | 74

AIR 1983 SC 109: (1983) 1 SCC 124

1989 AIR 714, 1989 SCR (1) 20

J.N. Pandey, Constitutional Law of India, Central Law Agency, 42nd Ed. (2005), p. 222

1982 AIR 1473, 1983 SCR (1) 456

1984 AIR 802, 1984 SCR (2) 67

1995 AIR 264, 1994 SCC (6) 632

AIR 1963 SC 1295

1981 AIR 746, 1981 SCR (2) 516

1978 AIR 597, 1978 SCR (2) 621

AIR 1978 SC 1675

AIR 1963 SC 1295

AIR 1979 SC 1360

AIR 1992 SC 170

AIR 1978 SC 1548

Page | 75