CHANAKYA NATIONAL LAW UNIVERSITY

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA

SUBJECT: CONSTITUIONAL LAW-I

Project on:

RIGHT TO LIFE WITH AN EMPHASIS ON THE OLGA TELLIS CASE

Submitted To : Dr. Subramanium
Associate Prof. of Law
Submitted By: Sourojit Roy
Roll No:1242
1
rd
Semester V, 3 Year
 CHANAKYA NATIONAL LAW UNIVERSITY

ACKNOWLEDGEMENT

I take this opportunity to express my humble gratitude and personal regards to

Dr.Subramanium for inspiring me and guiding me during the course of this project work and

also for his cooperation and guidance from time to time during the course of this project work

on the topic Right to life with an emphasis on the Olga Tellis Case.

I would like to extend my sincere acknowledgment towards the faculty and the librarian of

CNLU, for making all the reading materials available relevant for my Research Work

th
5 Semester

SOUROJIT ROY

2
 CHANAKYA NATIONAL LAW UNIVERSITY

Table of Contents

1. INTRODUCTION :NATURE OF EMPLOYMENT IN THE FOOD PACKAGING

SECTOR.......5
2. STRUCTURE OF OUTPUT AND EMPLOYMENT............................................................6
2.1. STRUCTURE OF OUTPUT.................................................................................................7
2.2 STRUCTURE OF EMPLOYMENT.8
2.3 GENDER ASPECTS OF EMPLOYMENT.10

3. WAGES, CONDITIONS OF WORK AND SOCIAL SECURITY BENEFITS. ..............11

3.1 WAGES..11

3.2 WAGES AND EMPLOYMENT...11

3.3 RESIDUAL NATURE OF EMPLOYMENT13

3.4 CONDITIONS OF WORK13

3.5 SOCIAL SECURITY BENEFITS.15

4. DISCRIMINATION AND SOCIAL EXCLUSION................................................16

5. CONCLUSION AND POLICY IMPLICATION ...........................................17

6. BIBLIOGRAPHY .............................................................................................................17

CHANAKYA NATIONAL LAW UNIVERSITY

 INTRODUCTION

Article 21 reads as:

No person shall be deprived of his life or personal liberty except according to a procedure
established by law.

According to Bhagwati, J., Article 21 embodies a constitutional value of supreme

importance in a democratic society. Iyer, J., has characterized Article 21 as the
procedural magna carta protective of life and liberty.

This right has been held to be the heart of the Constitution, the most organic and progressive
provision in our living constitution, the foundation of our laws.

Article 21 can only be claimed when a person is deprived of his life or personal liberty
by the State as defined in Article 12. Violation of the right by private individuals is not
within the preview of Article 21.

Article 21 secures two rights:

1) Right to life

2) Right to personal liberty

The Article prohibits the deprivation of the above rights except according to a procedure
established by law .Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment
to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article
XXXI of the Constitution of Japan, 1946.

Article 21 applies to natural persons. The right is available to every person, citizen or alien.
Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner the right
to reside and settle in India, as mentioned in Article 19 (1) (e).

MEANING AND CONCEPT OF RIGHT TO LIFE

Everyone has the right to life, liberty and the security of person. The right to life is
undoubtedly the most fundamental of all rights. All other rights add quality to the life in
question and depend on the pre-existence of life itself for their operation. As human rights
can only attach to living beings, one might expect the right to life itself to be in some sense
primary, since none of the other rights would have any value or utility without it. There
would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted
in its original sense. This Section will examine the right to life as interpreted and applied by
the Supreme Court of India.

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.

In the case of Kharak Singh v. State of Uttar Pradesh1, 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 2, 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
5
body in their prime conditions. It would even include
1 AIR 1963 SC 1295

2 AIR 1978 SC 1675

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.

RIGHT TO LIVE WITH HUMAN DIGNITY

In Maneka Gandhi v. Union of India3,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. Elaborating the same view, the Court in Francis
Coralie v. Union Territory of Delhi[iv], 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.

Another broad formulation of the theme of life to dignity is to be found in Bandhua Mukti
Morcha v. Union of India4. 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.
6
3 1978 AIR 597, 1978 SCR (2) 621

4 1981 AIR 746, 1981 SCR (2) 516

Following the above stated cases, the Supreme Court in Peoples Union for Democratic
Rights v. Union of India5,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. 216.

In Chandra Raja Kumar v. Police Commissioner Hyderabad 7,it has been held that the right to
life includes right to life with human dignity and decency and, therefore, holding of beauty
contest is repugnant to dignity or decency of women and offends Article 21 of the
Constitution only if the same is grossly indecent, scurrilous, obscene or intended for
blackmailing. The government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition
Act, 1956.

In State of Maharashtra v. Chandrabhan8, the Court struck down a provision of Bombay

Civil Service Rules, 1959, which provided for payment of only a nominal subsistence
allowance of Re. 1 per month to a suspended Government Servant upon his conviction during
the pendency of his appeal as unconstitutional on the ground that it was violative of Article
21 of the Constitution.

RIGHT AGAINST SEXUAL HARRASMENT AT WORKPLACE

5 1984 AIR 802, 1984 SCR (2) 67

6 1982 AIR 1473, 1983 SCR (1) 456

7J.N. Pandey, Constitutional Law of India, Central Law Agency, 42nd Ed. (2005), p. 222
7

8 AIR 1998 AP 302

Art. 21 guarantees right to life right to life with dignity. The court in this context has observed
that:

The meaning and content of fundamental right guaranteed in the constitution of India are of
sufficient amplitude to encompass all facets of gender equality including prevention of sexual
harassment or abuse.

Sexual Harassment of women has been held by the Supreme Court to be violative of the most
cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

In Vishakha v. State of Rajasthan9,the Supreme Court has declared sexual harassment of a

working woman at her work as amounting to violation of rights of gender equality and rights
to life and liberty which is clear violation of Articles 14, 15 and 21 of the Constitution. In the
landmark judgment, Supreme Court in the absence of enacted law to provide for effective
enforcement of basic human rights of gender equality and guarantee against sexual
harassment laid down the following guidelines:

1. All employers or persons in charge of work place whether in the public or private
sector should take appropriate steps to prevent sexual harassment. Without
prejudice to the generality of this obligation they should take the following steps:

1. Express prohibition of sexual harassment as defined above at the work

place should be notified, published and circulated in appropriate ways.

2. The Rules/Regulations of Government and Public Sector bodies relating

to conduct and discipline should include rules/regulations prohibiting
sexual harassment and provide for appropriate penalties in such rules
against the offender.

3. As regards private employers steps should be taken to include the

aforesaid prohibitions in the standing orders under the Industrial
Employment (Standing Orders) Act, 1946.

4. Appropriate work conditions should be provided in respect of work,

8
leisure, health and hygiene to further ensure that there is no hostile

9 983 AIR 803, 1983 SCR (3) 327

 environment towards women at work places and no employee woman
should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.

2. Where such conduct amounts to specific offences under I,P,C, or under any other
law, the employer shall initiate appropriate action in accordance with law by
making a complaint with appropriate authority.

3. The victims of Sexual harassment should have the option to seek transfer of
perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra10, the Supreme Court reiterated
the Vishakha ruling and observed that:

There is no gainsaying that each incident of sexual harassment, at the place of work, results
in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty
the two most precious Fundamental Rights guaranteed by the Constitution of India. In
our opinion, the contents of the fundamental rights guaranteed in our Constitution are of
sufficient amplitude to encompass all facets of gender equality, including prevention of
sexual harassment and abuse and the courts are under a constitutional obligation to protect
and preserve those fundamental rights. That sexual harassment of a female at the place of
work is incompatible with the dignity and honour of a female and needs to be eliminated.

RIGHT AGAINST RAPE

Rape has been held to a violation of a persons fundamental life guaranteed under Art. 21.
Right to life right to live with human dignity. Right to life, would, therefore, include all those
aspects of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty11, the supreme court held that

10 AIR 1997 SC 3011 : (1997) 6 SCC 241

9

11 AIR 1999 SC 625

Rape is thus not only a crime against the person of a woman (victim), it is a crime against
the entire society. It destroys the entire psychology of a woman and pushed her into deep
emotional crises. It is only by her sheer will power that she rehabilitates herself in the
society, which, on coming to know of the rape, looks down upon her in derision and
contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights
and is also violative of the victims most cherished of the fundamental rights, namely, the
right to life with human dignity contained in Art 21.

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
Davis12 in Smt. Kiran Bedi v. Committee of Inquiry13 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.

The same American Decision has also been referred to in the case of State of Maharashtra v.
Public Concern of Governance Trust14, 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.

12 1996 AIR 922, 1996 SCC (1) 490

13 5 American LR 171 10

14 1989 AIR 714, 1989 SCR (1) 20

In State of U.P. v. Mohammaad Naim15, succinctly laid down the following tests while dealing
the question of expunction of disgracing remarks against a person or authority whose conduct
comes in consideration before a court of law:

whether the party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself

whether there is evidence on record bearing on that conduct justifying the remarks

whether it is necessary for the decision of the case, as an integral part thereof, to
animadvert on that conduct. It has also been recognized that judicial
pronouncements must be judicial in nature, and should not normally depart from
sobriety, moderation and reserve

In State of Bihar v. Lal Krishna Advani 16, a two-member commission of inquiry appointed to
inquire into the communal disturbances in Bhaglapur district on 24 th 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.

RIGHT TO LIVELIHOOD

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not
include right to livelihood. In Re Sant Ram17, a case which arose before Maneka Gandhi case,

15 AIR 1989 SC 714.

11

16 1964 AIR 703, 1964 SCR (2) 363

17 AIR 2003 SC 3357

where the Supreme Court ruled that the right to livelihood would not fall within the
expression life in Article 21.The court said curtly:

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, the court in Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nandkarni18, 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 Corporation19, popularly known as the Pavement Dwellers Case a 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 abrogation20.

In the instant case, the court further opined:

18 AIR 1960 SC 932

19 AIR 1983 SC 109: (1983) 1 SCC 124

12

20 AIR 1986 SC 180

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.

Emphasizing upon the close relationship of life and livelihood, 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 life21.

Art. 21 does not place an 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 void22.

In D.T.C. v. D.T.C. Mazdoor Congress23, 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 M. Paul Anthony v. Bihar Gold Mines Ltd24., it was held that when a government servant or
one in a public undertaking is suspended pending a departmental disciplinary inquiry against
him, subsistence allowance must be paid to him. The Court has emphasized that a
government servant does not his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law

which must be fair, just and reasonable and which is in the larger interest of people, the plea

21 ibid

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

23 AIR 1991 SC 101 13

24 AIR 1999 SC 1416 : (1999) 3 SCC 679

of deprivation of right to livelihood under Art. 21 is unsustainable. In, Chameli Singh v. State
of Uttar Pradesh25, it was held by the Honble Supreme Court that when the land of a
landowner was acquired by state in accordance with the procedure laid down in the relevant
law of acquisition the right to livelihood of such a landowner even though adversely affected,
his right to livelihood is not violated. The Court opined that, the state acquires land in
exercise of its power of eminent domain for a public purpose. The landowner is paid
compensation in lieu of land, and therefore, the plea of deprivation of right to livelihood
under Art. 21 is unsustainable.

In M. J. Sivani v. State of Karnataka & Ors26., the Supreme Court held that right to life under
Article 21 does protect livelihood but added a rider that its deprivation cannot be extended
too far or projected or stretched to the avocation, business or trade injurious to public interest
or has insidious effect on public moral or public order. It was, therefore, held that regulation
of video games or prohibition of some video games of pure chance or mixed chance and skill
are not violative of Article 21 nor is the procedure unreasonable, unfair, or unjust.

HIV Not a Sound ground for Termination

In MX of Bombay Indian Inhabitants v. M/s. ZY 27, 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.

Right to Work Not a Fundamental Right under Art.21

25 Air 1996 SC 1051 : (1996) 2 SCC 549

26 AIR 1995 SC 1770, JT 1995 (4) SC 141, (1995) 2 MLJ 38 SC

14

27 AIR 1997 Bom. 406

In Sodan Singh v. New Delhi Municipal Committee28, the five judge bench of the Supreme
Court distinguished the concept of life and liberty within Art.21 from the right to carry on any
trade or business, a fundamental right conferred by Art. 19(1)(g) and held the right to carry on
trade or business is not included in the concept of life and personal liberty. Article 21 is not
attracted in case of trade and business. The petitioners, hawkers doing business off the
pavement roads in Delhi, had claimed that the refusal by the Municipal authorities to them to
carry on business of their livelihood amounted to violation of their right under Article 21 of
the Constitution. The court opined that while hawkers have a fundamental right under Article
19(1) (g) to carry on trade or business of their choice; they have no right to do so in a
particular place. They cannot be permitted to carry on their trade on every road in the city. If
the road is not wide enough to be conveniently accommodating the traffic on it, no hawking
may be permitted at all, or may be permitted once a week. Footpaths, streets or roads are
public property and are intended to several general public and are not meant for private use.
However, the court said that the affected persons could apply for relocation and the
concerned authorities were to consider the representation and pass orders thereon. The two
rights were too remote to be connected together. The court distinguished the ruling in in Olga
Tellis v. Bombay Municipal Corporation29 and held that in that case the petitioners were very
poor persons who had made pavements their homes existing in the midst of filth and squalor
and that they had to stay on the pavements so that they could get odd jobs in city. It was not
the case of a business of selling articles after investing some capital.

In Secretary, State of Karnataka v. Umadevi30, the Court rejected that right to employment at
the present point of time can be included as a fundamental right under Right to Life under
Art. 21.

RIGHT TO SHELTER

In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited 31,the right to shelter
has been held to be a fundamental right which springs from the right to residence secured in
28 AIR 1989 SC 1988

29 Supra Note (10 to be corrected.. olgatellis)

15

30 (2006) 4 SCC 1: AIR 2006 SC 1806.

31 AIR 1996 SC 114

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 houses32.

Upholding the importance of the right to a decent environment and a reasonable

accommodation, in Shantistar Builders v. Narayan Khimalal Totame33, 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 mud-built fireproof accommodation.

In Chameli Singh v. State of U.P34.,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 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 being35.

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

33 AIR (1990) SC 630 : (1990) 92 BOMLR 145 : JT 1990 (1) SC 106

16

34 1996 AIR 1051, 1995( 6 )Suppl. SCR 827, 1996( 2 )SCC 549

35http://nsm.org.in/2008/08/29/judicial-activism-on-right-to-shelter-rights-of-the-urban-poor/
 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
Bose36,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 Pradesh37, (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 Barde38, 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 39, 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.

36 AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)

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

38 (1995) Supp 2 SCC 549 17

39 AIR 1995 SC 1811

In L.I.C. of India v. Consumer Education and Research Centre[xli], 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.

RIGHT AGAINST HONOUR KILLING

A division bench of Allahabad high court, In Surjit Kumar v. State of U.P.40, took serious note
on harassment, in ill treatment and killing of a person who was a major, for wanting to get
married to a person of another caste or community, for bringing dishonor to family since inter
caste or inter community marriage was not prohibited in law, the court said that such practice
of honour killing was a blot on society. The court, therefore, directed the police to take
strong measures, against those who committed such honour killing.

RIGHT TO HEALTH

In State of Punjab v. M.S. Chawla41,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 India42, 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 state43.

In Consumer Education and Research Centre v. Union of India 44, The Supreme Court laid
down that:

40 AIR (1995)1811 :(1995) SCC (5) 482

41 AIR 2002 NOC 265

42 AIR 2002 NOC 265

43 AIR (1997) SC 1225 18

44 1987 AIR 990 : 1987 SCR (2) 468

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.

RIGHT TO MEDICAL CARE

In Parmananda Katara v. Union of India45, 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 restored46. 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 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.

45 Supra note p.1639 19

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

In another case Paschim Banga Khet Mazdoor Samity v. State of West Bengal 47, 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 treatment48.

It has been reiterated, time and again, that there should be no impediment to providing
emergency medical care. In Pravat Kumar Mukherjee v. Ruby General Hospital & Others 49, 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[lii].

The court has laid stress on a very crucial point, viz., state cannot plead lack of financial
resources to carry out these directions meant to provide adequate medical services to the
people. The state cannot avoid its constitutional obligation to provide adequate medical
services to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga50, 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.

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

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

49 1996 SCC (4) 37, JT 1996 (6) 43 20

50 http://blog.medicallaw.in/supreme-court-of-india-on-emergency-healthcare/
In Confederation of Ex-servicemen Association v. Union of India51, right to get free and
timely legal aid or facilities has been held to be not a fundamental right of ex-servicemen. A
policy decision in formulating contributory scheme for ex-servicemen and asking them to pay
one time contribution does not violate Art. 21 nor is it inconsistent with Part IV of the
constitution.

NO RIGHT TO DIE

Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right not to
live or a right to die if a person chooses to end his life? If so, what is the fate of Sec. 309,
I.P.C.,1860, which punishes a person convicted of attempting to commit suicide? There has
been difference of opinion on the justification of this provision to continue on the statute
book.

This question came for consideration for first time before the High Court of Bombay in State
of Maharashtra v. Maruti Sripati Dubal. In this case the Bombay High Court held that the
right to life guaranteed under Article 21 includes right to die, and the honble High Court
struck down Section 309 of the IPC that provides punishment for attempt to commit suicide
by a person as unconstitutional.

In P. Rathinam v. Union of India52, a two judge Division Bench of the Supreme Court, took
cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21. The Court
supporting the decision of the High Court of Bombay in Maruti Sripati Dubals Case held that
the right to life embodies in Art. 21 also embodied in it a right not to live a forced life, to his
detriment disadvantage or disliking. The court argued that the word life in Art. 21 means right
to live with human dignity and the same does not merely connote continued drudgery. Thus
the court concluded that the right to live of which Art. 21 speaks of can be said to bring in its
trail the right not to live a forced life. The court further emphasized that attempt to commit
suicide is in realty a cry for held and not for punishment.

51 II (2005) CPJ 35 NC
21

52 Supra note 41 paschim bagga case online like at end of paragraph

The Rathinam ruling came to be reviewed by a full Bench of the Court in Gian Kaur v. State
of Punjab53. The question before the court was that if the principal offence of attempting to
commit suicide is void as being unconstitutional vis--vis Art.21, then how abetment can
thereof be punishable under Sec. 306, I.P.C., 1860. It was argued that the right to die having
been included in Art.21 (Rathinam ruling), and Sec. 309 having been declared
unconstitutional, any person abetting the commission of suicide by another is merely
assisting in the enforcement of his fundamental right under Art. 21.

The Court overruled the decision of the Division Bench in the above stated case and has put
an end to the controversy and ruled that Art.21 is a provision guaranteeing protection of life
and personal liberty and by no stretch of imagination can extinction of life be read to be
included in protection of life. The court observed further:

Right to life is a natural right embodied in Article 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and inconsistent with the
concept of right to life

EUTHANASIA AND RIGHT TO LIFE

Euthanasia is termination of life of person who is terminally ill or in a permanent vegetative

state. In Gian Kaur v. State of Punjab54, the Supreme Court has distinguished between
Euthanasia and attempt to commit suicide. The court held that death due to termination of
natural life is certain and imminent and the process of natural death has commenced. These
are not cases of extinguishing life but only of accelerating conclusion of the process of
natural death that has already commenced.

The court further held that, this may fall within the ambit of Right to live with human dignity
up to the end of natural life. This may include the right of a dying man to also die with
dignity when his life is ebbing out. This cannot be equated with the right to die an unnatural
death curtailing the natural span of life.

53 AIR 1998 SC 1703 : (1998) 4 SCC22117

54 AIR 2006 SC 2945 : (2006) 8 SCC 199

 SENTENCE OF DEATH - RAREST OF RARE CASE

The issue of abolition or retention of capital punishment was dealt with by the law
commission of India. After collecting as much available material as possible and assessing
the views expressed by western scholars, the commission recommended the retention of the
capital punishment in the present state of the country. The commission held the opinion that
having regard to the conditions of India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the
vastness of its area, to the diversity of its population and to the paramount need for
maintaining law and order in the country, India could not risk the experiment of abolition of
capital punishment.

In Jagmohan v. State of U.P55, the Supreme Court had held that death penalty was not
violative of articles 14, 19 and 21.it was said that the judge was to make the choice between
death penalty and imprisonment for life on the basis of circumstances, facts and nature of
crime brought on record during trail. Therefore, the choice of awarding death sentence was
done in accordance with the procedure established by law as required under article 21

But, in Rajindera Parsad v. State of U.P.56, Krishna Iyer J., speaking for the majority, held
that capital punishment would not be justified unless it was shown that the criminal was
dangerous to the society. The learned judge plead for the abolition of death penalty and said
that it should retained only for white collar crimes

However, in Bachan Singh v. State of Punjab57, the leading case of on the question, a
constitution bench of the supreme court explained that article 21 recognized the right of the
state to deprive a person of his life in accordance with just, fair and reasonable procedure
established by a valid law .It was further held that death penalty for the offence of murder
awarded under section 302 of I.P.C did not violate the basic feature of the constitution.

55 1994 AIR 1844, 1994 SCC (3) 394

56 1996 AIR 946, 1996 SCC (2) 648 23

57 Ibid
 RIGHT TO GET POLLUTION FREE WATER AND AIR

In Subhas Kumar v. State of Bihar 58,it has held that a Public Interest Litigation is
maintainable for insuring enjoyment of pollution free water and air which is included in right
to live under Art.21 of the constitution. The court observed:

Right to live is a fundamental right under Art 21 of the Constitution and it includes the right
of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers
or impairs that quality of life in derogation of laws, a citizen has right to have recourse to
Art.32 of the Constitution for removing the pollution of water or air which may be
detrimental to the quality of life.

RIGHT AGAINST CLEAN ENVIROMENT

The Right to Life under Article 21 means a life of dignity to live in a proper environment
free from the dangers of diseases and infection. Maintenance of health, preservation of the
sanitation and environment have been held to fall within the purview of Article 21 as it
adversely affects the life of the citizens and it amounts to slow poisoning and reducing the
life of the citizens because of the hazards created if not checked.

The following are some of the well-known cases on environment under Article 21:

In M.C. Mehta v. Union of India(1988)59, the Supreme Court ordered closure of tanneries that
were polluting water.

In M.C. Mehta v. Union of India(1997)60, the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.

58 AIR 1973 SC 947

59 AIR 1979 SC 916 24

60 AIR 1980 SC 898

In Vellore Citizens Welfare Forum v. Union of India 61, the Court took cognizance of the
environmental problems being caused by tanneries that were polluting the water resources,
rivers, canals, underground water and agricultural land. The Court issued several directions to
deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan 62, the Supreme Court held that the
right to life means clean surrounding which lead to healthy body and mind. It includes right
to freedom from stray cattle and animals in urban areas.

In M.C. Mehta v. Union of India (2006)63, the Court held that the blatant and large-scale
misuse of residential premises for commercial use in Delhi, violated the right to salubrious
sand decent environment. Taking note of the problem the Court issued directives to the
Government on the same.

In Murli S. Deora v. Union of India 64, the persons not indulging in smoking cannot be
compelled to or subjected to passive smoking on account of act of smokers. Right to Life
under Article 21 is affected as a non-smoker may become a victim of someone smoking in a
public place.

RIGHT AGAINST POLLUTION

In Re: Noise Pollution65, the case was regarding noise pollution caused by obnoxious levels
of noise due to bursting of crackers during Diwali. The Apex Court suggested to desist from
bursting and making use of such noise making crackers and observed that:

61 1991 AIR 420, 1991 SCR (1) 5

62 AIR 1988 SC 1037 : (1987) 4 SCC 463

63 AIR 1997 SC 734 : (1997) 2 SCC 353

64AIR 1996 SC 2721 : (1996) 5 SCC 647

25

65 (2007) 2 SCC 413

Article 21 of the Constitution guarantees life and personal liberty to all persons. It
guarantees a right of persons to life with human dignity. Therein are included, all the aspects
of life which go to make a persons life meaningful, complete and worth living. The human
life has its charm and there is no reason why the life should not be enjoyed along with all
permissible pleasures. Anyone who wishes to live in peace, comfort and quiet within his
house has a right to prevent the noise as pollutant reaching him. No one can claim a right to
create noise even in his own premises that would travel beyond his precincts and cause
nuisance to neighbors or others. Any noise, which has the effect of materially interfering with
the ordinary comforts of life judged by the standard of a reasonable man, is nuisance.
While one has a right to speech, others have a right to listen or decline to listen. Nobody can
be compelled to listen and nobody can claim that he has a right to make his voice trespass
into the ears or mind of others. Nobody can indulge into aural aggression. If anyone
increases his volume of speech and that too with the assistance of artificial devices so as to
compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious
levels then the person speaking is violating the right of others to a peaceful, comfortable and
pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service
for defeating the fundamental right guaranteed by Article 2166.

RIGHT TO KNOW OR RIGHT TO BE INFORMED

Holding that the right to life has reached new dimensions and urgency the Supreme Court
in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd 67.,observed that if
democracy had to function effectively, people must have the right to know and to obtain the
conduct of affairs of the State.

In Essar Oil Ltd. v. Halar Utkarsh Samiti 68, the Supreme Court said that there was a strong
link between Art.21 and Right to know, particularly where secret government decisions may
affect health, life and livelihood.

66 (2006) 3 SCC 399

67 AIR 2002 SC 40 : (2001) 8 SCC 765

26

68 AIR 1963 SC 1295

Reiterating the above observations made in the instant case, the Apex Court in Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers 69, ruled that the citizens
who had been made responsible to protect the environment had a right to know the
government proposal.

OLGA TELLIS CASE

A FIVE-MEMBER constitution bench of the Supreme Court delivered its long-awaited
judgment in the Bombay pavement dwellers case on July 10. In what has been described as a
'landmark judgment', the Court has held that pavement and slum dwellers have no right to
encroach on footpaths, pavements or any other place earmarked for a public purpose, such as
a garden or a playground, and that they can legally be evicted under Section 314 of the
Bombay Municipal Corporation Act. The judgment has evoked the expected responses from
different quarters. The Municipal Commissioner of Bombay has welcomed it; the city's
Mayor has exhorted the civic administration and the state government to take expeditious
steps to remove encroachments after the expiry of the time-limit of October 31 stipulated by
the Supreme Court; the Commissioner of Police is happy that there will be free movement of
pedestrian traffic now with the removal of pavement encroachments; the Shiv Sena has
viewed the judgment as a vindication of its campaign to stop the flow of 'outsiders' into
Bombay. For a lay reader of the Supreme Court's judgment, however, it is difficult not to be
puzzled by some aspects of it. What is especially striking is the position taken by the Court
on the principal argument put forward on behalf of the slum and pavement dwellers, the
petitioners before the Court-that the right to life which is guaranteed by Article 21 of the
Constitution includes the right to livelihood and since slum dwellers and pavement dwellers
will be deprived of their livelihood if they are evicted from their slum and pavement
dwellings, their eviction is tantamount to deprivation of their right to life. TWo questions are
involved here: first, whether the right to life includes the right to livelihood; and, second,
whether in the specific case of slum and pavement dwellers, they will be deprived of their
livelihood if they are evicted from their dwellings. On the first question, the position taken by
the constitution bench is categorical that the right to life indeed includes the right to
livelihood. The judges observe: "That which makes it possible to live, leave aside what makes
life livable, must be deemed to be an integral component of the right to life. Further, "If the
right to livelihood is not treated27as a part of the constitutional right to life, the easiest way of

69 1975 AIR 1378, 1975 SCR (3) 946

depriving a person of his right to life would be to deprive him of his means of livelihood . . .".
The judges then turn to the factual question of how far it is true that slum and pave ment
dwellers will be deprived of their means of livelihood if they are evicted from their slum and
pavement dwellings. Here again their verdict is unambiguous. They say: "persons in the
position of the petitioners live in slums and on pavements because they have small jobs to
nurse in the city and there is nowhere else to live. Evidently, they choose a pavement or a
slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost
being forbidding for their slender means. To lose the pavement or the slum is to lose the job.
The conclusion, therefore, in terms of the con stitutional phraseology is that the eviction of
the petitioners will lead to deprivation of their livelihood and consequently to the deprivation
of their life." However, despite accepting that the right to life conferred by Article 21 of the
Con stitution includes the right to livelihood and despite acknowledging that it had been
established to their satisfaction that if slum and pavement dwellers are evicted from their
dwellings they will indeed be deprived of their livelihood, the judges proceed to sanction
precisely such eviction on the ground that Section 314 of the Bombay Municipal Corporation
Act which provides for removal of encroachments on footpaths or pave ments "cannot be
regarded as unreasonable, unfair or unjust". It is held that the ex istence of dwellings on
pavements "is unquestionably a source of nuisance to the public" and further that the putting
up of a dwelling on a pavement "is an act of trespass" though it is clarified that while slum
and pavement dwellers are using pavements and other public properties for an unauthorised
purpose, "their intention or object in doing so is not to 'commit an offence or intimidate,
insult or annoy any person' which is the gist of the offence of 'criminal trespass' under Section
441 of the Penal Code". Judicial pronouncements are, of course, full of legal fine points and
subtleties which those untrained in the legal method are very liable to miss, but a lay person
may be forgiven if he draws the conclusion from the Supreme Court's judgment in the slum
and pavement dwellers case that the Court has weighed in the balance slum and pave ment
dwellers' right to life and the pedestrians' right to use pavements, a Fundamental Right
written into the Constitution and (as the judges themselves agree) reinforced by the Directive
Principles of State Policy and the power granted to the Bombay Municipal Corporation under
an Act passed in 1888 and has found it fit to uphold the pedestrians' right and the Municipal
Corporation's power. It is difficult to avoid a sense of puzzle ment over this position of the
highest court in the land. Is the28answer to the puzzle to be sought in the combination of a
rather easy espousal of social justice and the cause of the poor at the level of rhetoric and a
cold-eyed endorsement of the diktats of a class society when it comes to brass tacks?
 CONCLUSION

Deprivation of livelihood would not only denude the life of its effective content and meaningfulness
but it would make life impossible to live. And yet such deprivation of life would not be in accordance
with the procedure established by law, if the right to livelihood is not regarded as a part of the right to
life.

Right to work has not yet been recognised as a Fundamental Right. In Secretary, State of Karnataka
v. Umadevi 70, AIR 2006 SC 1806 the argument of infringement on an expansive interpretation of
Article 21 i.e., the right of employment was not accepted by the Supreme Court and the reason for
that was amongst others, that the employees accepted the employment on their own violation and
with eyes open as to the nature their employment. The Court also rejected the argument that the right
to life under Article 21 would include the right of employment at the present point of time.

29

70 1975 AIR 1378, 1975 SCR (3) 946

 30 BIBLIOGRAPHY

Books
Jain, M.P: Indian Constitutional Law, Wadhwa & Co, Nagpur, 2005
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Allahabad, 2007.

Jagdish Swarup: Constitution of India, V.2, Modern Law Publications,

New Delhi, 2006.

Bakshi, P.M: The Constitution of India, Universal Publications, New

Delhi, 2005

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32