UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB

UNVERSITY

PROJECT REPORT
ON

ARTICLE 20 & ARTICLE

21 OF THE INDIAN
CONSTITUTION

SUBMITTED TO: SUBMITTED BY:

DR. SHRUTI BEDI SARFARAZ SINGH LEGA
ROLL NO. 221/15
SECTION: D , B.COM L.LB

CONSTITUTIONAL LAW
 ACKNOWLEDGEMENT

I, SARFARAZ SINGH LEGA, WOULD LIKE TO THANK MY CONSTITUTION TEACHER DR. SHRUTI BEDI WHO
GAVE ME THE GOLDEN CHANCE TO MAKE THIS WONDERFUL PROJECT.

THIS OPPORTUNITY HELPED ME DEVELOP MY RESEARCHING SKILLS AND BROADENED MY HORIZON

MANIFOLDS. THE UNSTINTED HELP AND GUIDANCE GIVEN AND OFFERED BY DR. SHRUTI BEDI

ALWAYS, SHALLTRAVEL WITH ME FOR A LONG TIME.

I WOULD ALSO LIKE TO EXTEND MY GRATITUDE TO MY FRIENDS AND FAMILY, FOR PROVING TO BE A
GUIDING LIGHT IN EVERY SENSE AND FOR HELPING ME IN THE SUCCESSFUL COMPLETION OF THIS

PROJECT.

YOURS SINCERELY

SARFARAZ SINGH LEGA

CONSTITUTIONAL LAW
 INDEX

CONTENTS PAGE
NO.

Table Of Cases

Abbreviations

Article 20 in the Constitution of India 1949

Article 20

Ex-Post Facto Laws 20(1)

Double Jeopardy 20(2)

Self Incrimination 20(3)

Article 20(3) and NARCO Test

Article 21

Right to Life: Introduction

Right to live with Human Dignity

Right to Reputation

Right against Sexual Harassment at Work

Right to Livelihood

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Right to Shelter

Right to Clean Environment

Right to Education

Right to be Informed

Right to Social Security and Protection of Family

Right to Health and Medical Aid

No Right to die or commit Suicide

Euthanasia

Death Penalty

Right to Personal Liberty

Right to Privacy

Right to Go Abroad

Right against Illegal Detention

Article 21 and Prisoner Rights

Compensation for violation of Article 21

Procedure established by law

Interrelation between Articles 21,19 & 14

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Right to education

Bibliography

CONSTITUTIONAL LAW
 TABLE OF CASES

ARTICLE 20

x Selvi v. State of Karnataka

x Om Prakash v. State of Uttar Pradesh

x Lily Thomas v. Union of India

x SarlaMudgal v. Union of India

x Kedarnath v. State of West Bengal

x RatanLal v. State Of Punjab

x Hathising Manufacturing Co. v. Union of India

x MaqboolHussain v. State of Bombay

x Kalawanti v. State of HP

x Baijnath v. State of Bhopal

x Leo Roy v. Superintendent District Jail

x RoshanLal&ors. V. State of Punjab

x MP Sharma v. Satish Chandra

x Mohd. Dastagir v. State of Madras

ARTICLE 21

x A.K. Gopalan v. State of Madras

x A.R. Antulay v. R.S. Nayak

x Akhtari Bi v. State of Uttar Pradesh

x Allauddin Mian v. State of Bihar

x Anil Kumar Roy Sharma v. State

x Anil Rai v. State of Bihar

x Apparel Export Promotion Council v. A.K. Chopra

CONSTITUTIONAL LAW
x Aruna Ramchandra Shanbaug v. Union of India

x Associated Management of (Government Recognised Unaided English

Medium) Primary and Secondary Schools in Karnataka v. State of Karnataka

x Attorney General of India v. Lachma Devi

x Babu Singh v. State of Uttar Pradesh

x Bachan Singh v. State of Punjab

x Bandhu Mukti Morcha v. Union of India

x Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni

x Bombay Dyeing & Mfg. Co. v. By. EA Group

x Chameli Singh v. State of Uttar Pradesh

x Chandra Raja Kumar v. Police Commissioner Hyderabad

x Cherchi Domenico Ferdinando v. Union of India

x Consumer Education and Research Center v. Union of India

x D.B.M. Patnaik v. State of Andhra Pradesh

x D.F. Marion v. Minnie Davis

x D.K. Basu v. State of West Bengal

x Deena v. Union of India

x Delhi Transport Corporation v. D.T.C. Mazdoor Congress

x Distt. Registrar & Collector v. Canara Bank

x Francis Coralie v. Union Territory of Delhi

x Gian Kaur v. State of Punjab

x Hussainara Khatoon (1) v. Home Secretary, State of Bihar

x Hussainara Khatoon (2) v. Home Secretary, State of Bihar

x I.R. Coelho v. State of Tamil Nadu

x In re: Noise Pollution

x Jagmohan Singh v State of Uttar Pradesh

x Joginder Kumar v. State of Uttar Pradesh

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x Kalyan Chandra Sarkar v. Rajesh Rajan

x Kharak Singh v. State of Uttar Pradesh

x L.K. Koolwel v. State of Rajasthan

x LIC of India v. Consumer Education and Research Centre

x M.C. Mehta v. Union of India

x M.H. Haskot v. State of Maharashtra

x Malak Singh v. State of Punjab

x Maneka Gandhi v. Union of India

x Milk Men Colony Vikas Samiti v. State Of Rajasthan

x Mohini Jain v. State of Karnataka

x Moses Wilson v. Karluriba

x Mr. ‘X’ v. Hospital ‘Z’ (1999)

x Mr. ‘X’ v. Hospital ‘Z’ (2003)

x Munn v. Illinois

x Murli S. Deora v. Union of India

x MX of Bombay Indian Inhabitants v. M/s. ZY

x O. Konavalov v. Commander Coast Guard Region

x Olga Tellis v. Bombay Municipal Corporation

x P. Rathinam v. Union of India

x P.S.R. Sadhanantham v. R.S Naik

x Parmananda Katara v. Union of India

x People’s Union for Civil Liberties v. Union of India

x Peoples Union for Democratic Rights v. Union of India

x Poonam Sharma v. Union of India

x Prem Shankar v. Delhi Administration

x R. Rajagopal v. State of Tamil Nadu

x R. Sukhanya v. R. Sridhar

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x R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd.

x Rajneesh Kapoor v. Union of India

x Ratlam Municipality v. Vardhi Chand

x Re Sant Ram

x Regional Director, ECI Corporation v. Francis De Costa

x Rudal Singh v. State of Bihar

x Satwant Singh v. Assistant Passport Officer, New Delhi

x Secretary, State of Karnataka v. Umadevi

x Shantisar Builders v. Narayan Khimlal Totame

x Sheela Barse v. State of Maharashtra

x Sher Singh v. State of Punjab

x Smt. Kiran Bedi v. Committee of Inquiry

x Sodhan Singh v. New Delhi Municipal Committee

x State of Bihar v. Lal Krishna Advani

x State of Madhya Pradesh v. Ram Krishna Balothia

x State of Maharashtra v. Chandrabhan

x State of Maharashtra v. Maruti Sripati Dubal

x State of Maharashtra v. Prabhakar Pandurang

x State of Maharashtra v. Public Concern of Governance Trust

x State of Punjab v. M.S. Chawla

x State of West Bengal v. Anwar Ali Sarkar

x Sukh Das v. Union Territory of Arunachal Pradesh

x Sunil Batra v. Delhi Administration

x T.V. Vatheeswaram v. State of Tamil Nadu

x U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited

x Unni Krishnan v. State of Andhra Pradesh

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x Vellore Citizens Welfare Forum v. Union of India

x Vishakha v. State of Rajasthan

x Zahira Habibullah Sheikh v. State of Gujarat

x Zeeshan v. District Education Officer, Kannur

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 ABBREVIATIONS

J. Justice

& and

v. versus

SC Supreme Court of India

AIR All India Reporter

Vol. Volume

Ed. Edition

p. Page Number

Del. Delhi High Court

SCC Supreme Court Cases

AP Andhra Pradesh

UP Uttar Pradesh

Bom. Bombay High Court

Ltd. Limited

Supp. Supplementary

CrLJ Criminal Law Journal

IPC Indian Penal Code

Mad. Madras High Court

Pat. Patna High Court

CONSTITUTIONAL LAW
 Article 20 in The Constitution Of India 1949

20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater
than that which might have been inflicted under the law in force at the time of the
commission of the offence
(2) No person shall be prosecuted and punished for the same offence more than once
(3) No person accused of any offence shall be compelled to be a witness against himself

Article 20
Article 20 provides protection in respect of conviction for offences. It constitutes a limitation
on the legislative power of the Parliament or of the State legislatures under Article 246, read
with the three Legislative Lists contained in the Seventh Schedule to the constitution.1
The protection contained in Article 20 is available to all persons, citizens or non-citizens. The
term “person” in Article 20 includes a corporation which is accused, prosecuted, convicted or
punished for an offence.2
Article 20 provides protection against:

I. Ex-post facto laws [Article 20(1)]

II. Double Jeopardy [Article 20(2)]
III. Self-incrimination [Article 20 (3)]

1
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
2
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

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I. EX-POST FACTO LAWS [Article 20(1)]

An “ex-post facto law” is a law which is enacted subsequent to some occurence, i.e., the
commission of some act or omission. Ex-post facto laws are of following three kinds-
a law, which declares some act or omission, as an offence, for the first time after the
completion of that act or omission .
a law, which enhances the punishment or penalty for an offence, subsequent tot the
commission of that offence.
alaw,which prescribes new and a different procedure for the prosecution of an offence,
subsequent to the commission of that offence.
Clause (1) of Article 20 provides protection only in respect of the above two categories of
ex-post facto laws.
This clause incorporates the rule that Ex Facie, a penal statute will not have any retrospective
effect, or retrospective operation.
Undoubtedly, in a civilised society, governed by rule of law, the punishment not prescribed
under the statutory rules, cant be imposed. This principal of criminal jurisprudence, to this
effect, is prescribed in legal maxim “nullapoena sine legs”, which means that a person should
not be made to suffer penalty except for clear bread of an existing law.

Law declaring an ‘offence’ subsequent to the omission of the ‘act’

The first part of clause (1) of article 20 related to the first category of ex facto laws. It
explains that a person can only be convicted of an “offence” if the charge against him is an
“offence” under the “law in force” at the time of the commission of that act.
It seems to give constitutional recognition to the rule that no one can be convicted except for
the violation of a “law in force”.
It is held to be against the principle of natural justice to permit the subjects of a state to be
punished or penalised by laws of which they had no knowledge and of which they could not
even, with exercise of due diligence, have acquired any knowledge.
The true principle is that “lex prospect non respicit” which means that law forward not back.
The expression “law in force” in Article 20(1) postulates the actual factual existence of law at
the relevant time and it excludes the retrospective operation of any subsequent law. It means

CONSTITUTIONAL LAW
that if an act was not an offence at the time when it was committed, it cant be an offence at
the date subsequent to it commission, as far the person, who did the act is concerned.
In Om Prakash v. State of Uttar Pradesh,3 offering bribe was not an offence in 1948.
Section 3 of the Criminal Law (Amendment) Act, 1952 inserted Section 165A in the Indian
Penal Code, 1860, declaring offering bribe as punishable. It was held that the accused could
not be punished under Section 165A for offering bribe in 1948.
But, interpretation of a provision of law does not create any new offence. The Supreme Court
in Lily Thomas v. Union Of India,4 explained that the decision of the apex court in Sarla
Mudgal v. Union Of India,5 holding that the second marriage of a Hindu husband after
conversion to islam without having the first marriage dissolved under law,would be
invalid,the second marriage would be void in terms of provisions of Section 494, IPC, 1860
and the apostate husband would be guilty of the offence under Section 494, IPC,1860, did not
lay any new law. It can’t thus be said that the second marriage by a convert male Muslim has
been made offence only by judicial pronouncement. No new law having been created, Article
20(1) would have no application.

Law enhancing penalty subsequent to the commission of the ‘offence’

It is trite law that “ the sentence imposable on the date of commission of the offence has to
determine the sentence imposable on completion of trial”. It prohibits the enhancement of
punishment or penalty for an offence retrospectively. It does not prevent the prescription of a
minimum sentence of fine where the law, in force, does not prescribe any such limitation. 6
In Kedarnath vs. State of West Bengal,7 the accused committed an offence under the
Prevention of Corruption Act then in force was punishable by imprisonment or fine or both.
The Act was amended in 1949 which enhanced the punishment for the same offence for an
additional fine equivalent to the amount of money procured by the accused through the
offence. The Supreme Court held that the enhanced punishment prescribed in 1949 could not
be applicable to the act committed by the accused in 1947 and hence set aside the additional
fine imposed by the amended Act.

3
AIR 1957 All 388
4
AIR 2000 SC 1650
5
AIR 1995 SC 1531
6
Satwant Singh v. State of Punjab, AIR 1960 SC 266.
7
AIR 1953 SC 404

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 Beneficial ex-post facto law

Article 20(1) prohibits the imposition of enhanced penalty or punishment. But it does not bar
any reduction in the punishment. Thus, an ex-post facto law, which only mollified the rigour
of a criminal law, does not fall within the prohibition of Article 20(1).The rule of beneficial
construction requires that ex-post facto law should be applied to reduce the rigorous sentence
of the previous law on the same subject. The principle is based upon the legal maxim
“SalusPopuliEst Suprema Lex” which means the welfare of the people is the supreme for the
law. It is inspired by principles of justice, equity and good conscience.
In Ratan Lal V.State of Punjab,8 a boy of 16 years was convicted for committing an
offence of house-trespass and outraging the modesty of a girl aged 7 years. The magistrate
sentenced him for six months rigorous imprisonment and also imposed fine. After the
judgment of magistrate, the Probation of Offenders Act, 1958 came into force. It provided
that a person below 21 years of age should not ordinarily be sentenced to imprisonment. The
Supreme Court by a majority of 2 to 1 held that the rule of beneficial interpretation required
that ex-post facto could be applied to reduce the punishment. So an ex-post facto law which
beneficial to the accused is not prohibited by clause (1) of Article 20.

Procedural Ex-post Facto law

Clause (1) of Article 20 does not prohibit the trial of offences under the ex-post facto laws.
Therefore, a law enacted subsequent to the commission of the offence, prescribing a new
procedure, different from the ordinary procedure for prosecution or trial, is not hit by Article
20(1).
Under the American constitution the protection is available even against ex-post facto
procedural laws. Thus, a trial under an ex-post facto law is barred under American law.

8
AIR 1965 SC 444

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 Imposition of Civil Liability retrospectively not barred

The term ‘penalty’ in Article 20(1) indicates that the prohibition contained therein applies
only where punishment imposed for offences is criminal in nature. It does not, therefore,
prohibit the imposition of a civil liability retrospectively.
In Hathising Manufacturing Co. v. Union of India,9 an act passed in June, 1957
imposed on the employers closing their undertakings, a liability to pay compensation to their
employees with effect from November 28,1956. failure to discharge such liability was made
punishable by imprisonment.
It was contended that act enacted in 1957 infringed Article 20(1) as it imposed a liability to
pay compensation since November 28,1956 and made the non payment of compensation
punishable retrospectively. The Supreme court upheld the constitutionality of the impugned
Act and held that the liability imposed was a civil liability and since the failure o discharge a
civil liability was not an offence, Article 20(1) would have no application.

II. DOUBLE JEOPARDY [Article 20(2)]

Clause(2) of article 20 provides protection against “double jeopardy”. This clause enacts the
well known principle of criminal jurisprudence that “no one should be put into jeopardy
twice for the same offence”.10
This clause is based on the Common Law Maxim “Nemodebetbisvexari” which means that a
man must not be put twice in peril for the same offence. The object is to avoid the harassment
which must be caused to a person for successive criminal proceedings were only one crime
has been committed.The provision of article 20 (2) is identical with the English doctrine of
autrefois convict which is also embodied in Section 300 of the Cr. P.C., 1974.
The protection contained in Article 20(2) would be available only if the following essentials
are complied with-
The person must be accused of an “offence”

The term “offence” means “any act or omission made punishable by any law for the time
being in force”

9
AIR 1960 SC 923
10
MaqboolHussain v. State of Bombay, AIR 1953 SC 325

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 The person must have been prosecuted before a Court or a judicial tribunal

The term “prosecution” means invitation or starting of any proceeding, criminal in nature,
before a court, or a judicial tribunal.11
In MaqboolHussain v. State of Bombay,12 the appellant, an Indian citizen, was arrested
in the airport for the illegal possession of gold under the provisions of the Sea Customs Act,
1878. Thereupon, an action was taken under Section 167(8) of the Act, and the gold was
confiscated. Sometimes afterwards, he was charge sheeted before the court of the Chief
Presidency Magistrate under Section 8 of the Foreign Exchange Regulation Act, 1947. At
trial, the appellant raised the plea of autrefois convict, since it violates his Fundamental Right
guaranteed under Article 20(2) of the constitution. He sought the constitutional protection
mainly on the ground that he had already been prosecuted and punished inasmuch as his gold
has been confiscated by the customs authorities. By rejecting his plea, the court held that the
proceedings of the Sea Customs Authorities cannot be considered as a judicial proceedings
because it is not a court or judicial tribunal and the adjudgment of confiscation or the
increased rate of duty or penalty under the provisions of the Sea Customs Act does not
constitute a judgment or order of a court or judicial tribunal necessary for the purpose of
supporting a plea of double jeopardy. The court also held that the proceedings conducted
before the sea customs authorities were, therefore, not “prosecution” and the confiscation of
gold is not punishment inflicted by a “court” or “judicial tribunal.” The appellant, therefore,
cannot be said to have been prosecuted and punished for the same offence with which he was
charged before the Chief Presidency Magistrate Court.

The person must have been punished after his prosecution before a Court or a
judicial tribunal

The protection against “double jeopardy” contained in Article 20 (2) would be available only
when the accused has been not only prosecuted but also punished after such prosecution.
Therefore, if there is no punishment for the offence as a result of the prosecution, Clause (2)
of Article 20 would have no application. Both prosecution and punishment must co- exist for
the operation of Article 20 (2). It,thus, follows that were a person having been prosecuted for
an offence is acquitted , he can be prosecuted for the “same offence” again.

11
Thomas Dana v. State of Punjab, AIR 1959 SC 375
12
AIR 1953 SC 325

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In Kalawanti v. State of H.P.,13 where the appeal by the State , in the High Court, against
acquittal by the Sessions Court, of the lady, accused of murdering her husband, was held to
be continuance of prosecution and not a second trial. It must be noted that an appeal against
an acquittal is, in substance, a continuance of the prosecution. A prosecution starts at the
court of first instance and includes at the final Court of appeal.
In BaijNath v. State of Bhopal,14 the accused, a government servant, was prosecuted
under Section 161 of the Indian Penal Code, 1860 and was punished. In the High Court, the
trial was quashed for want of proper sanction as required under Section 6 of the prevention of
Corruption Act, 1947. Subsequently, the accused was again prosecuted on getting sanction
from the competent authority for his prosecution. It was held that the earlier prosecution was
void abintio and no prosecution at all. The prosecution started after obtaining the proper
sanction was held to be the first prosecution.

The “offence” must be the same in both the proceedings

In Leo Roy v. Superintendent District Jail,15 The Court held: if the offences are distinct
the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and
punished under sea customs act, and was later on prosecuted under the Indian Penal Code for
criminal conspiracy, it was held that second prosecution was not barred since it was not for
the same offence.
In RoshanLal&ors v. State of Punjab,16 The accused had disappeared the evidence of
two separate offences under Section 330 and Section 348 Indian Penal Code. So, it was held
by the court that the accused was liable to be convicted for two separate sentences.

13
AIR 1953 SC 131
14
AIR 1957 SC 494
15
AIR 1958 SC 119
16
AIR 1965 SC 1413

CONSTITUTIONAL LAW
III. SELF INCRIMINATION [Article20(3)]

This clause is based on the maxim “memo tenets prodereaccussareseipsum" , which means
that “no man is bound to accuse himself”. It is known as Miranda principle.
This clause embodies the general principle of English and American jurisprudence, according
to which no person would be compelled to give testimony which might expose him to the
prosecution of a crime. The protection contained in Article 20(3) is available to every person.
The term “person” in Article 20 (3) includes not only natural individuals but also companies
and unincorporated bodies. The protection is available only if the following ingredients are
present-
I. It is protection available to a person accused of an offence;
II. It is a protection against compulsion to be a witness; and
III. It is a protection against such “compulsion” as resulting in his giving evidence against
himself.
Person accused of an offence

A person “accused of an offence” means a person against whom a formal acquisition relating
to the commission of an offences been levelled, which in the normal course, may result in
prosecution.17
the words “accused of an offence” indicate an accusation made in criminal prosecution before
the court in judicial tribunal where a person is charged with having committed an act which is
punishable under the Indian Penal Code, 1860 or any special or local law. 18
It follows that a person can’t claim protection if at the time he made the statement, he was not
an accused but becomes an accused thereafter.
Likewise where a Customs officer arrested a person and informed him of the ground of his
arrest for the purpose of holding an inquiry, into the violation of the provisions of the Sea
Customs Act,1878, there being no formal acquisition of offence Article 20(3) was held not
attracted.19

17
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
18
Amin v. State, AIR 1958 All 293
19
MaqboolHussain v. State of Bombay, AIR 1953 SC 325

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 Protection against compulsion to be a witness

The protection contained in Article 20(3) is against compulsion “to be a witness”. In M.P.
Sharma v. Satish Chandra20, the Supreme Court gave a wide connotation to the
expression “to be witness” so as to include oral, documentary and testimonial evidence. The
protection contained in Article 20(3) the court held, covered not merely testimonial
compulsion in the court room but also compelled testimony previously obtained from him. It
will extend to any compulsory process for production of evidentiary documents which the
court said were reasonably like to support a prosecution against the accused.

Compulsion to give evidence “against himself”

The protection under Article 20(3) is available only against compulsion of the accused to
give evidence against himself. Thus, if the accused voluntarily makes an oral statement or
voluntarily produces documentary evidence , incriminatory in nature Article 20(3) would not
be attracted.
The term “complusion” in the context of Article 20(3) means “duress”. Thus, compulsion
make take many forms.
A case at hand would be Mohd. Dastagir v. State of Madras,21where the appellant went
to the residence of the Deputy Superintendent of Police and handed him an envelope. On
opening the envelope, the DSP found cash in it, which meant that the appellant had come to
offer bribe to the officer. The DSP refused it and asked the appellant to place the envelope
and the notes on the table, and he did as told, after which the cash was seized by the Police.In
this case the Supreme Court held that, the accused wasn’t compelled to produce the currency
notes as no duress was applied on him. Moreover the appellant wasn’t even an accused at the
time the currency notes were seized from him. Hence in this case the scope of Article 20(3)
was not applicable.

Tape Recording of statements made by the accused

If statements recorded are made by the accused, without any duress, with or without his
knowledge are not hit by Article 20(3).

20
AIR 1954 SC 300
21
AIR 1960 SC 756.

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 Article 20(3) and NARCO Test

The issue of involuntary administration of certain scientific techniques, like narco-analysis

tests, polygraph examination, etc. for the purpose of improving investigation efforts in
criminal cases has gained a lot of attention. For a long time, there was a debate about whether
such tests were violative of Article 20(3) or not and the same issue were brought to the
Supreme Court in the case of Selvi v. State of Karnataka22.
In this case the Hon’ble Chief Justice, Justice K.G Balakrishnan spoke of behalf of the Apex
Court, and drew the following conclusions:
1 The right against self-incrimination and personal liberty are non-derogablerights, their
enforcement therefore is not suspended even during emergency.
2 The right of police to investigate an offence and examine any person do not and
cannot override constitutional protection in Article 20(3);
3 The protection is available not only at the stage of trial but also at the stage of
investigation;
4 That the right protects persons who have been formally accused, suspects and even
witnesses who apprehend to make any statements which could expose them to
criminal charges or further investigation;
5 The law confers on ‘any person’ who is examined during an investigation, an
effective choice between speaking and remaining silent. This implies that it is for the
person being examined to decide whether the answer to a particular question would be
inculpatory or exculpatory;
6 Article 20(3) cannot be invoked by witnesses during proceedings that cannot be
characterised as criminal proceedings;
7 Compulsory narco-analysis test amounts to ‘testimonial compulsion’ and attracts
protection under Article 20(3);
8 Conducting DNA profiling is not a testimonial act, and hence protection cannot be
granted under Article 20(3);
9 That acts such as compulsory obtaining signatures and handwriting samples are
testimonial in nature, they are not incriminating by themselves if they are used for the
purpose of identification or corroboration;

22
AIR 2010 SC 1974

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 10 That subjecting a person to polygraph test or narco-analysis test without his consent
amounts to forcible interference with a person’s mental processes and hence violates
the right to privacy for which protection can be sought under Article 20(3);
11 That courts cannot permit involuntary administration of narco-tests, unless it is
necessary under public interest.

ANALYSIS AND CONCLUSION

Article 20 (3), invokes protection against self-incrimination and gives an accused the right to
remain silent over any issue which tends to incriminate him. This protection by the Indian
Constitution is also extended to suspects. Article 20(3), has been carefully crafted to protect
the accused from further self-incriminating himself only if any statement of his might result
in prosecution. For the benefit of the Courts, the Supreme Court has distinguished between
the terms “witness” and “furnish evidence”, the former including furnishing statements from
one’s own knowledge and the latter referring to simply presenting documents required by the
court under which protection under Article 20(3) cannot be sought.
This article also stretches its privileges to a person who is compulsorily being made a witness
and also covers searches and seizures wherein, an accused or the person being searched is
under no obligation to be a part of the search. If any confession or a mere statement is made
based on which some material corroboration is found then that statement cannot be protected
under Article 20(3). Under the law, an accused cannot be tortured to make a statement or a
confession and no duress can be exercised in order to obtain some information out of him, in
such a case the statement would be void and the privileges under Article 20(3) would be
applicable. Narco-analysis tests, polygraph analysis etc. which refer to involuntary
administration of mental processes, are considered violative of Article 20(3) and can only be
done in a few cases as it disrupts the right to privacy.
But with the advancement in medical sciences, the certainty of such scientific tests has
increased and the author thinks that they provide an effective tool to furnish evidence which
help in speedy disposal of cases. By balancing the harmony between the protective rights and
the need for speedy disposal.

CONSTITUTIONAL LAW
 Article 21

Protection of Life and Personal Liberty

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.”23 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
theConstitution, 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 a private individual
is not within the preview of Article 21.

Article 21 secures two rights:

x Right to life; and

x 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.

23
Francis Coralis v. Union Territory of Delhi, AIR 1981 SC 746.

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 Article 21 Applies to natural persons. The right is available to every person, citizen or
alien. Thus, even a foreigner can claim this right.24It, however, does not entitle a foreigner the
right to reside and settle in India, as mentioned in Article 19 (1) (e).

Right to Life: An Introduction

The term “life” as mentioned in the Article has been given a broad meaning by the

Supreme Court. Right to Life does not merely mean the continuance of a person‟s animal
existence but a quality of life. In the case of Kharak Singh v. State of Uttar Pradesh,25
the Supreme Court quoted with approval Field, J.‟s observation in Munn v. Illinois,26and
held:

„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 arm
or 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,27 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 person‟s tradition, culture, heritage and all that gives
meaning to a man‟s life. It includes the right to live in peace, to sleep in peace and the right
to repose and health.

In P. Rathinam v. Union of India,28the Supreme Court defined “Life” as follows:

“the right to live with human dignity and the same does not connote continued drudgery. It
takes within its fold some of the fine graces of civilization which makes life worth living and

24
O. Konavalov v. Commander Coast Guard Region, (2006) 4 SCC 1489.
25
(1877) 94 US113.
26
AIR 1978 SC 1675.
27
AIR 1963 SC 1295.
28
1994) 3 SCC 394: AIR 1994 SC 1844.

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that the expanded concept of life would mean the tradition, culture and heritage of the person
concerned.”

In Olga Tellis,29the Supreme Court has emphasized that the term “life” in Article 21
is not only restricted to mere animal existence of a person. It means something more and “the
inhibition against the deprivation of life extents to all those limits and faculties by which life
is enjoyed.”

In D.B.M. Patnaik v. State of Andhra Pradesh, 30 some prisoners challenged some

restrictions as violation of Article 21. The Supreme Court stated that a convict is not denuded
of all his fundamental rights. Imprisonment after conviction is bound to curtail some of his
rights, e.g., freedom of speech or movement, but certain other rights, e.g., right to hold
property, could still be enjoyed by a prisoner.

In Akhtari Bi v. State of Uttar Pradesh,31 the Supreme Court has recognized the
right of a child of 3 years to parental care, love and affection. The court ruled that depriving
the child of the right was not only against the interests of the child but against the interest of
the society as well.

Right to Life with Human Dignity

As already discussed Right to Life is not only confined to physical existence but
includes within its ambit the right to live with human dignity.

In Francis Coraliev.Union Territory of Delhi32 the Supreme Court struck down

Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, as violation of Article 14 and 21. The impugned Section 3 provided that a detenu
could have interview with his legal adviser only one time in a month and that too only after
obtaining prior permission of the district magistrate, Delhi and to take place in the presence of
customs officer.

29
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
30
AIR 1974 SC 2094.
31
AIR 2001 SC 1528.
32
AIR 1981 SC 746.

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 In Peoples Union for Democratic Rights v. Union of India,33held 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., speaking for the majority held that the rights and benefits
conferred on the workmen employed by a contractor under various labour laws are “clearly
intended to ensure the basic human dignity to workmen and of the workmen violate are
deprived of any of these rights and benefits, that would clearly by a violation of Article 21.”

He held that the non-implementation by the private contractors and non-enforcement by the
State Authorities of the provisions of various labour laws violated the fundamental right of
the workers “to live with human dignity.”

In Chandra Raja Kumar v. Police Commissioner Hyderabad,34it 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. Chandrabhan,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.

33
AIR 1982 SC 1473.
34
AIR 1998 AP 302.

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 Right to Reputation

The Supreme Court referring to D.F. Marion v. Minnie Davis, in Smt. Kiran
Bediv. Committee of Inquiry,held that good reputation was an element of personal
security andwas 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
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.

In State of Bihar v. Lal Krishna Advani,35 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 one‟s 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.

35
AIR 2003 SC 3357.

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 Right against Sexual Harassment at Workplace

The Supreme Court has made a novel use of Article 21 to ensure that the female
workers are not sexually harassed by their male co-workers at their places of work as sexual
violence, apart from being a dehumanising act, is an unlawful intrusion on the right of
privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her
self-esteem and dignity.

In Vishakha v. State of Rajasthan,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.25

In Apparel Export Promotion Council v. A.K. Chopra,the Supreme Court took

a serious note of the incidents of sexual harassment of women at work places. Such an
incident, the Court said, resulted in violation of the Fundamental Right to Gender Equality
and the Right to Life and Liberty – the two most precious Fundamental Rights.

Right to Livelihood

Earlier the Supreme Court took the view the right to life in Article 21 would not
include livelihood. In Re Sant Ram,36 the Supreme Court ruled that the right to livelihood
would not fall within the expression “life” in Article 21.

This view of the court underwent a change. With the defining of the word “life” in
Article 21 in broad and expansive manner, the court came to hold that “the right to life”
guaranteed by Article 21 includes „the right to livelihood‟. The Supreme Court now implied
that „right to livelihood‟ out of “right to life.”

In Olga Tellis v. Bombay Municipal Corporation popularly known as the

“Pavement Dwellers Case” a five judge bench of the Court has finally ruled that the word
“life” in Article 21 includes the right to livelihood also. The court said:

36
AIR 1999 SC 625.

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 “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.”

The court further opined:

“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 … 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.”

In Sodhan Singh v. New Delhi Municipal Committee,37 the five judge bench
of the Supreme Court 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
accommodate 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

37
AIR 1989 SC 1988.

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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.

In MX of Bombay Indian Inhabitantsv.M/s. ZY 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.32 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 has yet not been recognised as a Fundamental Right. In Secretary,
Stateof Karnataka v. Umadevi, the Court rejected that right to employment at the present
pointof time can be included under Right to Life under Article 21.

Right to Shelter

In Shantisar Builders v. Narayan Khimlal Totame, the Supreme Court has

ruled that the right to life is guaranteed in any civilised society. That would take within its
sweep the right to food, the right to clothing, the right to descent environment and reasonable
accommodation to live in. the difference between the need of an animal and human being it
has to be a suitable accommodation which would allow him to grow in every aspect –
physical, mental and intellectual.

It was stated in U.P. Avas Vikas Parishad v. Friends Coop. Housing Society

Limited,that the right to shelter is a fundamental right which springs from the right
toresidence secured in Article 19 (1) (e) and the right to life guaranteed under Article 21.

In Chameli Singh v. State of Uttar Pradesh, the Supreme Court emphasisedon

the importance of the right to shelter as one of the basic human rights designed to ensure all
facilities to the man to develop himself as a member of a civilised society.

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 Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to be lived 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 21:39

In M.C. Mehta v. Union of India,38 the Supreme Court ordered closure of tanneries
which were polluting water.

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

In Vellore Citizens Welfare Forum v. Union of India, the Court took

cognizance of the environmental problems being caused by tanneries which 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, 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, the Court held that the blatant and large scale
misuse of residential premises for commercial use in Delhi, violated the right to salubrious
and decent environment. Taking note of the problem the Court issued directives to the
Government on the same.

38
AIR 1988 SC 1037 : (1987) 4 SCC 463.

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 In Murli S. Deora v. Union of India, 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.

Noise pollution has also been dealt within the preview of Article 21 by the Apex
Court inIn re: Noise Pollution.39 Nobody can claim a fundamental right to create noise by
amplifying the sound of his speech with the help of loudspeakers. While one has a right to
speech, others have a right to listen or to decline to listen. If anyone increases the 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 in Article 21.

Right to Education

The Supreme Court in Bandhu Mukti Morchav.Union Of India,while

interpreting the scope of the “right to life” under article 21, held that it included “educational
facilities”.

In Mohini Jainv.State of Karnataka, the court referred to Bandhu Mukti

MorchaCase and held that “right to life” was the compendious expression for all those
rights whichthe courts must enforce because they are basic to the dignified enjoyment of life.
The court further observed that the right to life under article 21 and the dignity of an
individual could not be assured unless it was accompanied by the right to education. The
court thus declared:

“the right to education flows directly from right to life”.

The Supreme Court in Unni Krishnan v. State of Andhra Pradeshheld that the
right to education was a fundamental right under Article 21 and that “it directly flows from
the right to life.”

39
AIR 2005 SC 3136 : (2005) SCC 733.

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 The stance taken by the Supreme Court in the field has been reflected in the

Constitution (86th amendment) Act, 2002 inserting a new Article 21-A declaring right to

education an independent fundamental right.

Right to Know or Right to Be Informed

The Supreme Court held that Article 21 had reached a new dimension and in R.P.
Ltd.v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd.40observed that if
democracyhad to function effectively, people must have the right to know and to obtain the
conduct of affairs of the State.

Right to Social Security & Protection of Family

Right to life guaranteed under Article 21 includes within its ambit “the right to social
security and protection of the family.”

Socio-economic rights have been said to be basic aspirations for meaningful right to
life and that the right to social security and protection of family are integral part of the right
to life.

The Supreme Court in LIC of India v. Consumer Education and Research

Centre,41held that the right to life and livelihood included the “right to life insurance policies
of LIC of India” and that it must be within the paying capacity and means of the insured.

Right to Health & Medical Aid

Duty to Preserve Life

The right to life guaranteed under Article 21 includes within its ambit the right to
health and medical care, to protect the health and vigour of a worker while in service or post-
retirement.

In Parmananda Katarav.Union of India, it was held that it is the professional

obligation of all doctors (government or private) to extent medical aid to the injured
40
AIR 1989 SC 190.
41
AIR 1995 SC 1811.

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immediately to preserve life without legal formalities to be complied with the police. Article
21 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.

Also more recently in the case of Poonam Sharma v. Union of India, the Court
held that it is the duty of the doctor to aid the injured and not to delay the same as it is of
utmost importance. Any delay, here wait for police before treatment, is taken to be violation
of one‟s fundamental right under Article 21.

No Right to Die or Commit Suicide

Section 309 of the Indian Penal Code, 1860, punishes a person convicted of
attempting to commit suicide. There had 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 hon‟ble
High Court struck down Section 309 of the IPC which provides punishment for attempt to
commit suicide by a person as unconstitutional.

In P. Rathinam v. Union of India a Division Bench of the Supreme Court,

supporting the decision of the High Court of Bombay in Maruti Sripati Dubal Case, held
that under Article 21 right to life also include right to die and laid down that section 309 of
Indian Penal Court which deals with „attempt to commit suicide is a penal offence‟
unconstitutional.

A five-judge Constitution Bench of the Supreme Court in Gian Kaur v. State

ofPunjab,overruled the decision of the Division Bench in the above stated case and has
putan end to the controversy and ruled that Section 309, IPC was neither violative of Article
21 nor Article 14. The court held that the “right to life” under Article 21 did not include “the
right to die.”

CONSTITUTIONAL LAW
 Euthanasia

Aruna Ramchandra Shanbaug v. Union of India

Passive euthanasia is legal in India. On 7 March 2011 the Supreme Court of India
legalised passive euthanasia by means of the withdrawal of life support to patients in a
permanent vegetative state. The decision was made as part of the verdict in a case involving
Aruna Shanbaug, who has been in a vegetative state for 37 years at King Edward Memorial
Hospital. The Court rejected active euthanasia by means of lethal injection. In the absence of
a law regulating euthanasia in India, the court stated that its decision becomes the law of the
land until the Indian parliament enacts a suitable law. Active euthanasia, including the
administration of lethal compounds for the purpose of ending life, is still illegal in India, and
in most countries.

While rejecting Pinki Virani's plea for Aruna Shanbaug's euthanasia, the court laid out
guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves
the withdrawing of treatment or food that would allow the patient to live. As India had no law
about euthanasia, the Supreme Court's guidelines are law until and unless Parliament passes
legislation. The following guidelines were laid down:

1. A decision has to be taken to discontinue life support either by the parents or the
spouse or other close relatives, or in the absence of any of them, such a decision can
be taken even by a person or a body of persons acting as a next friend. It can also be
taken by the doctors attending the patient. However, the decision should be taken
bona fide in the best interest of the patient.

2. Even if a decision is taken by the near relatives or doctors or next friend to withdraw
life support, such a decision requires approval from the High Court concerned.
3. When such an application is filed the Chief Justice of the High Court should forthwith
constitute a Bench of at least two Judges who should decide to grant approval or not.
A committee of three reputed doctors to be nominated by the Bench, who will give
report regarding the condition of the patient. Before giving the verdict a notice
regarding the report should be given to the close relatives and the State. After hearing
the parties, the High Court can give its verdict.

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 Death Penalty

The Supreme Court addressed the question of constitutionality of the death penalty
for the first time in Jagmohan Singh v State of Uttar Pradesh.42 The facts established
premeditated murder motivated by ill-feeling nurtured for years – and the death sentence was
held proper. The Court concluded that death penalty was constitutionally permissible
provided it was imposed after a fair trial pursuant to a procedure established by law. In
rendering its decision the Court also emphasised that the discretionary judgments of the trial
Courts were subject to appellate review.

In Bachan Singh v. State of Punjab,43 the Supreme Court explained that Article
21 recognised the right of the State to deprive a person of his life in accordance with just, fair
and reasonable procedure established by valid law. It was further held that death penalty
awarded under Section 302 of IPC did not violate basic feature of the Constitution.

In Allauddin Mian v. State of Bihar,the Supreme Court referred to their earlier

pronouncements and held that death sentence should be reserved for the rarest cases which
are of exceptional nature.

Right to Personal Liberty

The expression „personal liberty‟ used in Article 21 has also been given a liberal
interpretation. It does not mean merely the liberty of the body, .i.e., freedom from physical
restraints or freedom from confinement within bounds of a prison. In other words, it means
not only freedom from arrest or detention, from false imprisonment or wrongful confinement,
but it means much more than that. The term personal liberty is not used in a narrow sense but
has been used in Article 21 as compendious term to include within it all those variety of
rights of a person which go to make up the personal liberty of a man.

42
AIR 1973 SC 947.
43
AIR 1989 SC 1456

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 In A.K. Gopalanv.State of Madras,44 the petitioner, a leader of the communist
party, was detained under the Preventive Detention Act, 1950, as violative of his right to
personal liberty conferred in Article 21. The Supreme Court took a liberal view of the
expression “personal liberty”. The court held that since the word “liberty” was qualified by
the word “personal” which was a narrow concept, the expression “personal liberty” did not
include all that was implied in the term “liberty”. So interpreted the expression “personal
liberty” meant nothing more than the liberty of physical body i.e., freedom from arrest and
detention from false imprisonment or wrongful confinement.

This judgement was followed by Kharak Singh v. State of Uttar Pradesh,45

where the court did not follow the narrow interpretation laid down by the above mentioned
case and held that:

“Personal Liberty” is used in Article 21 as a compendious term to include within itself

all the varieties if rights which go to make up the „personal liberty‟ of a man other than those
dealt with in several Clauses under Article 19(1). While Article 19(1) deals with particular
species or attributes of that freedom, „personal liberty‟ in Article 21 takes in and comprises
the residue.

The Court further also said in the said case that unauthorised intrusion into a person‟s
home and the disturbance caused to him thereby violated his right to “personal liberty”
enshrined in Article 21.

In Maneka Gandhi v. Union of India,the Supreme Court expanded the horizons

of the term “Personal Liberty” to give it the widest possible meaning. The Court held:

“The expression „personal liberty‟ in Article 21 is of the widest amplitude and it

covers a variety of rights which go to constitute the personal liberty of a man and some of
them have been raised to the status of distinct fundamental rights and given additional
protection under Article 19.”

In this case the Supreme Court gave a new dimension to Article 21 and it was with
this decision that the court started laying down new constitution jurisprudence. Various

44
AIR
1950 SC 27.
45
AIR 1978 SC 597.

CONSTITUTIONAL LAW
aspect of the right to personal liberty are discussed in the various facets of personal liberty
that follow.

Right to Privacy

“Privacy” has been defined as “the state of being free form intrusion or disturbance in
one‟s private life and in affairs.”46

In R. Sukhanya v. R. Sridhar, Court held publication of matrimonial proceedings,

meant to be conducted in camera, as invasion of right of privacy and more importantly the

Court also held that “the rightful claim of an individual to determine to which he wishes to
share himself with others and control over the time, place and circumstances to communicate
with others.”

In Malak Singh v. State of Punjab, the question related to as to when surveillance

of a person would be infringement of his “right to privacy”. In this case, the name of the
petitioner was included in the surveillance register by the police under section 23 of the
Punjab Police Act, he not being given an opportunity of being heard. Since he was not heard
and including his name in the register, he argued, had infringed his right to privacy under
Article 21. The Court held that “organised crime cannot be successfully fought without close
watch of suspects. But, surveillance may be intrusive and it may so seriously encroach on the
privacy of a citizen as to infringe his fundamental right to personal liberty guaranteed by
Article 21 of the Constitution and the freedom of movement guaranteed by Article 19(1) (d).
That cannot be permitted.”

In R. Rajagopal v. State of Tamil Nadu,the Supreme Court has asserted in recent

times the right to privacy has acquired constitutional Status; it is “implicit in the right to life
and liberty guaranteed to the citizens” by Article 21.

Right to Privacy & Telephone Tapping

In People’s Union for Civil Liberties v. Union of India, the Supreme Court
explained that the right to hold a telephone conversation in privacy from one‟s home or

46
Distt. Registrar & Collector v. Canara Bank, (2005) 1 SCC 496.

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office, without interference, could certainly be claimed as right to privacy, a part of the right
to life and personal liberty under Article 21. This right however may not be absolute.

Right to Privacy & Disclosure of Dreadful Disease

In Mr. ‘X’v.Hospital ‘Z’, the question before the Supreme Court was whether the
disclosure by the doctor that his patient, who was to get married had tested HIV positive,
would be violative of the patient‟s right to privacy. The Supreme Court ruled that the right to
privacy was not absolute and might be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others. The
court explained that the right to life of a lady with whom the patient was to marry would
positively include the right to be told that a person, with whom she was proposed to be
married, was the victim of a deadly disease, which was sexually communicable. Since the
right to life included right to healthy life so as to enjoy all the facilities of the human body in
the prime condition it was held that the doctors had not violated the right to privacy.

In another case, Mr. ‘X’ v. Hospital ‘Z’, the Court ruled that there no violation of the
right to privacy tests conducted on aborted foetus.

Right to go Abroad

In the case of Satwant Singh v. Assistant Passport Officer, New Delhi, the
Supreme Court has included Right to travel abroad contained in by the expression “personal
liberty” within the meaning of Article 21.

The same was also resonated in the case of Maneka Gandhi v. Union of India, the
court held that a procedure established by law was required in depriving a person of his
personal liberty which included the right to travel abroad. The procedure mentioned herein
should not be arbitrary, unfair or unreasonable.

Right against Illegal Detention

In Joginder Kumar v. State of Uttar Pradesh, the petitioner was detained by

the police officers and his whereabouts were not told to his family members for a period of
fivedays. Taking the serous note of the police high headedness and illegal detention of a free

CONSTITUTIONAL LAW
citizen, the Supreme Court laid down the guidelines governing arrest of a person during
investigation:

x An arrested person being held in custody is entitled, if he so requests to

have a friend, relative or other person told as far as is practicable that he
has been arrested and where he is being detained.

x The police officer shall inform the arrested person when he is brought
to the police station of this right.

x An entry shall be required to be made in the diary as to who was

informed of the arrest.

In the case of D.K. Basu v. State of West Bengal,47 the Supreme Court laid down
detailed guidelines to be followed by the central and state investigating agencies in all cases
of arrest and detention till legal provisions are made in that behalf as preventive measures and
held that any form of torture or cruel inhuman or degrading treatment, whether it occurs
during interrogation, investigation or otherwise, falls within the ambit of Article 21.

Article 21 & Prisoner 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 which 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.48

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension
to Article 21. The Court has interpreted Article 21 so as to have widest possible amplitude.
On being convicted of crime and deprived of their liberty in accordance with the procedure

47
AIR 1997 SC 610.
48
Pandey, J.N., The Constitutional Law of India, 47 th Ed., Central Law Agency, Allahabad, 2010, p. 269.

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established by law. Article 21, has laid down a new constitutional and prison jurisprudence.49

The rights and protections recognised to be given in the topics to follow.

Right to Free Legal Aid & Right to Appeal

In M.H. Haskot 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 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

defence.85 Breach of these safeguards of fair trial would invalidate the trial and conviction.86

Right to Speedy Trial

As stated in Moses Wilson v. Karluriba, a procedure cannot be reasonable, fair

and just unless it ensures a speedy trial for determination of the guilt of the person deprived
of his liberty.

It was observed in Maneka Gandhi v. Union of India, that “No procedure which
does not ensure a reasonably quick trial can be regarded as reasonable, fair and it would fall
foul on Article 21.”

In Hussainara Khatoon v. Home Secretary, State of 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

49
See Kumar, Narender, The Constitutional Law of India, 1 st Ed., Allahabad Law Agency, Allahabad, 2009,
p.200

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situation and observed that it was carrying a shame on the judicial system which permitted
incarceration of men and women for such long periods of time without trials.

In Hussainara Khatoon v. Home Secretary, State of Bihar, 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:

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

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

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

o The period of remand and pre-conviction detention should be as shortas

possible.

o The worry, anxiety, expense and disturbance to his vocation and

peace,resulting from an unduly prolonged investigation, enquiry or
trial should be minimal; and

o Undue delay may well result in impairment of the ability of theaccused

to defend him.

x 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, the workload of the court concerned.

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 x Each and every delay does not necessarily prejudice the accused.

x An accuser‟s plea of denial of speedy trial cannot be defeated by saying that

the accused did at no time demand a speedy trial.

x The Court has to balance and weigh the several relevant factors – „balancing
test‟ or „balancing processes‟ – and determine in each case whether the right
to speedy trial has been denied in a given case.

x An objection based on denial of right to speedy trial and for relief on that
account should first be addressed to the High Court. Such, proceedings in the
High Court must be disposed on a priority basis.

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.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to be
the present-day unsatisfactory and irrational rules for bail which insists merely on financial
security from the accused and their sureties. Many of the under trials being poor and indigent
are unable to provide any financial security. Consequently they have to languish in prisons
awaiting their trials. But incarceration of persons charged with non-bailable offences during
pendency of trial cannot be questioned as violative of Article 21 since the same is authorised
by law.

In the case of Babu Singh v. State of Uttar Pradesh, the Court held that right to
bail was included in the personal liberty under Article 21 and its refusal would be deprivation
of that liberty which could be authorised in accordance with the procedure established by
law.

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 Anticipatory bail is a statutory right and it does not arise out of Article 21.
Anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of
right as it cannot be considered as an essential ingredient of Article 21.50

Right to Fair Trial

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 Gujaratsaid that right to free and fair
trial not only to the accused but also to the victims, their family members and relatives, as
also, the society at large.

Right against Handcuffing

Hand cuffing has been held to be prima facie inhuman and therefore unreasonable,
over-harsh and at first flush, arbitrary. It has been held to be unwarranted and violative of
Article 21. In Prem Shankar v. Delhi Administration,the Supreme Court struck down
the Rules which provided that every under-trial who was accused of a non-bailable offence
punishable with more than three years prison term would be routinely handcuffed. The Court
ruled that handcuffing should be resorted to only when there was “clear and present danger of
escape” of the accused under-trial, breaking out of police control.

Right against Solitary Confinement

In Sunil Batra v. Delhi Administration,51 the petitioner was sentenced to death

by the Delhi session court and his appeal against the decision was pending before the high
court. He was detained in Tihar Jail during the pendency of the appeal. He complained that
since the date of conviction by the session court, he was kept in solitary confinement. It was
contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to
solitary confinement, which by itself was a substantive punishment under Sections 73 and 74
of the Indian Penal Code, 1860 and could be imposed by a court of law and it could not be
left to the whim and caprice of the prison authorities. The Supreme Court accepted the

50
State of Madhya Pradesh v. Ram Krishna Balothia, AIR 1995 SC 1198 : (1995) 3 SCC 221.

51
AIR 1978 SC 1675.

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argument of the petitioner and held that imposition of solitary confinement on the petitioner
was violative of Article 21.

Right against Custodial Violence

The incidents of brutal police behaviour 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.

In Sheela Barse v. State of Maharashtra, the Supreme Court condemned

violence committed on women prisoners confined in the police lock up in the city of
Bombay.

This was followed by D.K. Basu v. State of West Bengal,the Supreme Court
held that torture by police struck a blow at the Rule of Law, custodial violence has been held
calculated assault on human dignity, perhaps one of the worst crimes in a civilized society
governed by rule of law. The Court held that any such acts would fall within the inhibition of
Article 21.

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 Death by Hanging not Violative of Article 21

In Deena v. Union of India,52 the constitutional validity of the death sentence by

hanging was challenged as being “barbarous, inhuman, and degrading” and therefore
violative of Article 21. Referring to the Report of the UK Royal Commission, 1949; the

opinion of the Director General of Health Services of India, the 35th Report of the Law

Commission; and the opinion of the Prison Advisers and Forensic Medicine Experts, the
Court held that death by hanging was the best and least painful method of carrying out the
death penalty, and thus not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order directed the execution of the death sentence of
an accused by hanging at the Stadium Ground of Jaipur. It was also directed that the
execution should be done after giving widespread publicity through the media.
On receipt of the above order, the Supreme Court in Attorney General of India
v.Lachma Devi,held that the direction for execution of the death sentence
wasunconstitutional and violative of Article 21. It was further made clear that death by public
hanging would be a barbaric practice. Although the crime for which the accused has been
found guilty was barbaric it would be a shame on the civilised society to reciprocate the
same. The Court said “a barbaric crime should not have to be visited with a barbaric penalty.”

Right against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu,the Supreme Court held that

delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke
protection under Article 21 and the death sentence would be commuted to life imprisonment.
The cause of the delay is immaterial, the accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab, the Supreme Court said that prolonged wait for
execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only

52
AIR 1983 SC 1155.

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way to undo that is through Article 21. But the Court held that this cannot be taken as the rule
of law and applied to each case and each case should be decided upon its own faces.

Miscellaneous Rights Recognised to Prisoners

x Right to Escape from Imprisonment: The Supreme Court inD.B.M. Patnaik

v.State of Andhra Pradesh,held that the convicts have no right to escape
fromimprisonment.

x Right against Bar Fetters: InSunil Batra v. Delhi Administration,the

SupremeCourt gave Right against Bar Fetters and held that treatment that offended
human dignity and reduced man to a level of beast would certainly be arbitrary and
could be questioned under Article 21, but the right is not absolute.

x Right to Write a Book: In State of Maharashtra v. Prabhakar Pandurang, the

petitioner while under detention in jail wrote a book on science and sought the
permission from the Government to send the manuscript of the book to his wife for
publication, to which the Government refused. The Court held that this was an
infringement of personal liberty and that Article 21 included the right to write the
book and get it published.

Compensation for Violation of Article 21

In Rudal Singh v. State of Bihar, the Supreme Court has held that the Court has
the power to award monetary compensation in appropriate cases where there has been a
violation in the constitutional right of the citizens. In the present case the Supreme Court
directed Bihar Government to pay “Compensation” of Rs. 30,000 to Rudal Singh who had to
remain in jail for 14 years because of irresponsible behaviour of the State Government
Officers even after acquittal.

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 Procedure Established by Law

The expression “procedure established by law” has been borrowed from Article
31 of the Japanese Constitution. The expression came to be interpreted by the Supreme
Court in

A.K. Gopalan v. State of Madras.53The petitioner, a Communist leader, detained

under the

Preventive Detention Act, 1950, contended that the term “law” in Article 21 should be
understood as signifying the universal principles of natural justice and not merely on the
sense of an enacted piece of legislation. He, therefore, argued that a law which did not
incorporate the principles of natural justice, could not be valid under Article 21. It was
further argued that the expression “procedure established by law” meant the same thing as
the American phrase “due process of law.” The Court rejected the above contention and
referred to the discussions of the Constituent Assembly and said that the framers
deliberately adopted the expression “procedure established by law which was held to be
more specific than the American phrase “due process of law.” The majority of the
Supreme Court thus held that the expression meant procedure prescribed by the law of the
State and not natural justice. The decision highlighted that Article 21 was a protection
against the Executive but not the Legislature.

In Maneka Gandhi v. Union of India,the Supreme Court overruled A.K.

GopalanCase and held that in order to comply with the mandate of Article 21,
the mere prescription of some kind of procedure was not enough. But, the
procedure must be just, fair, reasonable and not arbitrary, fanciful or oppressive

Again in Olga Tellis v. Bombay Municipal Corporation, the Supreme Court

has again emphasised that “the procedure prescribed by law for the deprivation of the
right conferred by Article 21 must be fair, just and reasonable.” The procedure prescribed
by law for depriving a person of his right to life must conform to the norms of justice and
fair play.

53
AIR 1950 SC 27.

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“Procedure which is unjust or unfair in the circumstances of a case, attacks the vice of
unreasonableness, thereby vitiating the law which prescribes that procedure and,
consequently, the action taken under it.”

Natural Justice, the Court said, was a great humanising principle intended to
invest law, with fairness. In order that the „procedure‟ was just, fair and reasonable, it
should conform to the principles of natural justice.

Interrelation between Articles 21, 19 & 14

There has been no controversy about the relationship between Articles 21 and 14
and that validity of law providing for deprivation of personal liberty has been tested under
Article 14.

As regards the relationship between Articles 21 and 19, in A.K. Gopalan v.

State ofMadras, the Supreme Court held that these two Articles dealt with different
subjects.While, Article 19 empowered the State to impose responsible restrictions on the
freedoms contained therein, Article 21 provided that the State could deprive a person of
his life or personal liberty in accordance with procedure established by law. The Court
ruled that such a procedure would not be required to meet the challenge of Article 19.

But in Maneka Gandhi v. Union of India, the Supreme Court overruled

Gopalan’s ruling and held that Article 21 was controlled by Article 19. That, a procedure
established by law under Article 21 to deprive a person of his life and liberty must satisfy
the requirements of Article 19 also.

Thus, it was held that a law depriving a person of personal liberty has not only to
stand the test of Article 21 but it must also satisfy the requirements of Articles 19 and 14.

In I.R. Coelho v. State of Tamil Nadu,the Supreme Court ruled that Articles
14, 19 and 21 represented the foundational values, which formed the basis of judicial
review apart from the rule of law and separation of powers. These Articles, the Court
ruled, “is the golden triangle, the basic feature of the Constitution, as it stands for equality
and rule of law.

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 Right to Education

Article 21-A reads:

“The State shall provide free and compulsory education to all children of the age
of six to fourteen years in such manner as the State may, by law, determine.”

Article 21-A added by the Constitution (86th Amendment) Act, 2002 makes the

education from 6 to 14 years old, fundamental right, within the meaning of Part III of the
Constitution.

Article 21-A may be read with the new substituted Article 45 and new clause (k)

inserted in Article 51-A by the Constitution (86th Amendment) Act, 2002.

While the new Article 45 calls upon the State “to endeavour to provide early
childhood care and education for all children until they complete the age of six years,”
Clause
(k) inserted in Article 51-A imposes a fundamental duty on parent/guardian “to provide
opportunities for education to his child or, as the case may be, ward, between the age of
six and fourteen years.”

The 86th Amendment will be enforced from a date to be notified by the

Department of Education in the Ministry if Human Resource Development.

The term “child” for the purpose of Article 21-A is held to be a child who is a
citizen of India. The Kerala High Court in Zeeshan v. District Education Officer,
Kannur,upheld the denial of admission to Standard V in a School of a child who was a
citizen of Pakistan, under Section 22(ii) of the Kerala Education Act, 1959.

Holding the right to appear in Class VIII Board Examination was another facet of
the right to education guaranteed under Article 21-A, the Patna High Court in Anil
Kumar RoySharma v. State, directed the Board to permit the students of a private
school to appear inClass VIII Board examination.

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 If Article 21-A is read with Article 19(1)(a), all children shall have the freedom to
have primary education in a language of their choice.

In Associated Management of (Government Recognised Unaided

English Medium)Primary and Secondary Schools in Karnataka v.
State of Karnataka,54a full Bench ofKarnataka High Court held that by virtue
of Article 21-A, the medium of instructions was to be entirely the choice of the
parents and the student and that no one could claim to know better than the parents
about the child, to decide as to what the child required in the sphere of education,
the shape the career and destiny.

54
AIR 2008 (NOC) 2790 (Kar.).

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 BIBLIOGRAPHY

x Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law Publishing Co.,
Delhi, 2008.
x Jain, M.P., Indian Constitutional Law, 6th Edition, LexisNexis Buttorworths Wadhwa
Nagpur, Gurgaon, 2010.
x Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private
Limited, New Delhi, 2008.
x Kumar, Narender; Introduction to the Constitutional Law of India, 1st Ed., Allahabad
Law Agency, Allahabad, 2009.
x Majumdar, P.K. & Kataria, R.P, Commentary on the Constitution of India, 10 th
Edition, Volume 1, Orient Publishing Company, Allahabad, 2009.
x Pandey, J.N., The Constitution of India, 47th Edition, Central Law Agency,
Allahabad, 2010.
x The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New
Delhi, 2010.

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