Article 21 - A strive towards human well being

Balasubrahmanyam Kamarsu

Advocate,

Supreme Court of India

bala.kamarsu@gmail.com

WHETHER it is by the British Magna Carta (year 1215) -- “No free man shall be taken, or imprisoned or deceased or outlawed or banished or any ways destroyed, nor will the King pass upon him or commit him to prison unless by the judgment of his peers or the law of the land”.

 Or by the

Universal Declaration, 1948 – Article 3 saying “Everyone has the right to life, liberty and security of person”

Or according to the

 Article 9 provides – “No one shall be subjected to arbitrary arrest, detention or exile.”

Or by the statement of the

European Convention on Human Rights, 1950  Article 2  -- “Everyone ‘s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Or simply by

The Covenant on Civil and Political rights – Article 9 (1) of the UN Covenant on Civil and Political Rights, 1966 says – “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

--All of these   have considered a human being as a physical entity and attempted to safeguard him from the excesses by rulers or State by itself.

However, It is only in India that has envisaged the human being in totality and strived for his complete well being, all-round development, prosperity and freedom from suffering and attempted to protect his life and limb from any kind of external aggression by State or its agencies such as the Government Departments, Legislature, administration, local Authorities exercising statutory powers.

Inspired by the Indian values and ethos most commonly expressed in one of our shanti mantra --

“Sarve bhavantu sukhinah

Sarve santu niraamayaah

Sarve bhadraani pashyantu

Maakaschit duhkha bhaag bhavet”

May all be happy! (sukhinah)

May all be free from disabilities! (niraamayaah)

May all look (pashyantu)to the good of others!

May none suffer from sorrow! (duhkha)   

--our Constitution makers perceived the human being beyond a meager physical entity and incorporated Article 21—“No person shall be deprived of his life or personal liberty except according to procedure established by law”. The quintessence of Article 21 was categorically expressed by the former Chief Justice of India, J S Verma as:

The Indian Judiciary lived up to the expectations of the Constitution makers both in interpreting and implementing the Article 21. Initially there was a little amount conservativeness in interpreting the Article 21. However the Indian judiciary, in no time, eschewed its conservative approach and expanded the scope and horizon of the Article 21.

The humane approach adopted by the Indian judiciary with regard to interpretation and implementation of Article 21 grew leaps and bounds and paved way for multi-faceted  development of a citizen. The possible extensive interpretation by the Indian judiciary to Article 21 endowed a wide range of facilities as right to the citizen of this country. The humanitarian approach and explanation by the Indian judiciary made Article 21 an excellent role model for the entire world. It is difficult to find such an all encompassing integral human approach elsewhere in the world. 

Horizons and scope of the Article 21 is augmented enormously as the Indian judiciary provides a detailed explanation and a most suitable definition to the phrases expressed in the Article 21 such ‘deprived’, ‘life’, ‘privacy’, ‘liberty’ and ‘procedure established by law”. These terms were not analyzed on a mere relation with dictionary terminology or with worldly or materialistic approach. The Indian judiciary critically examined each word keeping two aspects in mind – a) the spirit of the word and b) the purpose it ought to serve. Prevailing concepts, definitions, procedures, international charters, Constitutions of various countries were studied thoroughly to interpret, define and implement the Article 21 of Constitution of India.

RIGHT TO LIFE:  MEANINGFUL AND WORTH LIVING

While defining Right to life, the Supreme Court in Francis Coralie Mullin Vs Administrator, Union Territory of Delhi said: “ We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing, and shelter and facilities for reading, writing, and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, of course the magnitude and economic development of the country,  but it must in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities to constitute the bare minimum necessities of the human life.”

Further elaborating the argument, In the same judgment , the Supreme Court  observed: “protection against arbitrary privation of life is no longer means mere protection of death, or physical injury, but also an invasion of the right to live with human dignity and would include all these aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage.”

Right to life embodies several aspects of life and it includes opportunity. Explaining this premise, the Supreme Court in “Chameli Singh Vs State of Uttar Pradesh” observed:  “In any organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhabit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore is not a mere protection of his life and limb. It is home where opportunities grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, include adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water and electricity, sanitation and other civic amenities like roads etc., so as to have easy access to daily avocation. ………….As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens of course subject to its budgeting. ………The ultimate object of making a man equipped with a right to dignity of person and equality of statues is to enable him to develop himself into a cultured being. ….”

PROCEDURE ESTABLISHED BY LAW:

The attitude shown by the Supreme Court in A.K.Gopalan Vs State of Madras case in 1950 where it presented a vague interpretation to “procedure established by law” and attempts to read in the background of the US Constitution expression – “due process of law” underwent revolutionary changes and true interpretation in the Indian environment could be witnessed in Kharak Singh Vs State of U.P. in 1963.  While examining the width, scope and content of the expression ‘personal liberty’ the Supreme Court observed—“while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Article 21 takes on and comprises the residue.”

Maneka Gandhi Vs Union of India case ignited a revolutionary change in interpreting the expression – ‘procedure established by law’. Interpretations to Article 21 have undergone total transformation and a new dimension has been laid down in this regard.  The Supreme Court considered A K Gopalan case with a static, mechanical and literal attitude. One should keep in mind that Gopalan’s case was the very first case which came up before the court under Article 21 immediately after the inauguration of the Constitution. Interpreting the Article 21 in mechanical terms, the Supreme Court opined that the expression ‘procedure established by law’ only meant any procedure which was laid down in the statute by the competent legislature to deprive a person of his life or personal liberty. It also felt that the Courts are not permitted to read the Article in the background of any concept as natural justice or the due process of law or reasonableness.

Branching out the Article with one another, the Supreme Court then said that each fundamental right was independent of each other and that Article 19 did not apply where Article 21 applied. Article 19 applied to a free man and not to a person in preventive detention. Thus the procedure could not be challenged even if it were not reasonable or not consistent with natural justice.

The traumatic experiences of highly oppressive emergency imposed by the then Prime Minister Indira Gandhi in 1975 had also revolutionized the thought process of Indian judiciary. Maneka Gandhi’s was the first case immediately after lifting the emergency. Immensely concerned over the suppression of fundamental rights for almost two years, the Judiciary adopted a pro-active role and defined the Constitution of India with a sole objective of protecting the fundamental rights of a citizen. Two important outcomes of this judgment were 1) by majority the Supreme Court decided that Articles 21 and 19 were not mutually exclusive, they had to be read together and so the procedure affecting

any of the rights had to be reasonable. 2) Imposed  a limitation upon law making, the court said that while prescribing a procedure for depriving a person of his life or personal liberty, it must prescribe a procedure which is reasonable, fair and just. That means the procedure to deprive a person’s liberty should not be arbitrary, fanciful, or oppressive. Thus, the Supreme Court had engineered a revolution in interpreting the provision of Right to Life and Liberty as envisaged in Article 21 of the Constitution of India and expanded the horizons of life and liberty.

The Indian judiciary did not confine its role only to examine whether the procedure itself is reasonable, fair and just but went a step ahead and observed whether it has been executed in a fair, just and reasonable manner. The Supreme Court has also established the process clause in all areas of State actions.

This approach can be seen in an interesting case: In December 1985 the Rajasthan High Court sentenced a man Jagdish Kumar and a woman Lichma Devi to death for two separate cases of killing two young women by setting them on fire. In an unprecedented move the High Court ordered both prisoners to be publicly executed. In a response to a review petition by the Attorney-General against this judgment, the Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime does not have to be met with a barbaric penalty.” The Court observed that the execution of death sentence by public hanging is violation of article 21, which mandates the observance of a just, fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of Article 21.

ARTICLE 21 AND DIRECTIVE PRINCIPLES: A PERFECT BLEND

 A Proper blend of Article 21 with the Directive Principles of State Policy by the Supreme Court is another historic development in the Indian judiciary. This revolutionary step not only enlarged the scope of right to life and personal liberty but in true spirits enhanced the concept of public good. Host of issues that are very vital and essential for social wellbeing are mandatory and obligatory for Union of India. 

The Directive Principles of State Policy enumerated in Chapter- IV is another distinctive feature of our Constitution. Equitable distribution of wealth, employment for all, protection of health, compulsory education for children up to the age of fourteen and the establishment of village panchayats are some of such important aspects mentioned in the Directive Principles of State Policy. The Constitution makers, as a facility, did not make implementation of Directive Principles compulsory by the Union and State governments as sometimes they may face the problem of paucity of resources and expected that the respective governments would execute them as and when they mobilize necessary funds and machinery. The Directive Principles of State Policy are non-justiciable. No legal remedy can be sought in a court of law if the Government fails to follow or implement any of these principles. Several amendments to the Constitution, more particularly, some judgments of the Supreme Court have paved the way for the effective implementation of the Directive Principles.

In one of the historic judgment in --Confederation of Ex-Servicemen Association and Others v Union of India-- the apex court observed: “Apart from fundamental rights guaranteed by Part III of the Constitution, it is the duty of the respondents [Government of India] to implement Directive Principles of State Policy under Part IV of the Constitution.”

Justice Bhagavati referring to Francis Coralie Mullin v Administrator, Union Territory of Delhi In Bandhua Mukti Morcha v Union of India observed: “It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen's case, 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 …... 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. Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21.”

The Supreme Court observed that where a law has already been enacted to enforce Article 21 with reference to the directive principles of the state policy it can compel the state to implement the said legislation in letter and spirit. Uitilizing this foundation, the Supreme Court, in 1993, ruled that the right to education until the age of fourteen is a fundamental right and therefore falls under the protection of Article 21 in conjunction with Article 41. Article 41 states: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education...” Thus, the Court has interpreted the Directive Principles of the State Policy in conjunction with Article 21 and gave a wider meaning to Article 21.

This attitude of the Supreme Court was clearly exhibited in a catina of cases subsequently. The authority of Article 21 has been elevated to new levels. These sincere, committed and development oriented efforts and inclusive approach by the Indian judiciary resulted in a most comprehensive and benevolent articulation and execution of Article 21.

As a consequence many rights such as a) right not to live a forced life, b) right to protective home, c) right to reputation, d) right to education, e) right to livelihood, f) right to live with human dignity, g) right to health and medical care, h) right to water i) right to fair trail which includes right to speedy trial, j) right to privacy, k) right to growth and nourishment etc have taken shelter under the canopy of Article 21. 

The Supreme Court in several cases held that the social justice enables the courts to uphold legislations to remove economic inequalities, to provide a decent standard of living to the working people and to protect the interests of the weaker sections of the society.

ARTCLE 21--SUSTAINABLE DEVELOPMENT --SUPREME COURT:

Taking resort of Article 21, the Supreme Court gave utmost importance to the sustainable development of the society. The principle object of the Article 21 is to protect the life and personal liberty. In a broader sense, no one shall be deprived of his life or personal liberty. While interpreting Article 21, the Supreme Court brought all necessities for a peaceful and prosperous living under the gamut of this Article.

In a sensational ruling of the Kudremukh case in 2002, the Supreme Court observed that: “duty is cast upon the Government under Article 21 of the Constitution of India to protect the environment and the two salutary principles which govern the law of the environment—1) the principles of sustainable development and 2) the precautionary principle.”

Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which the continued activity and further development depends. In simple words, Environmental Protection aims at sustainable development which in turn fulfils a person’s right to life under Article 21 of the Indian Constitution.

In 1969, Kudremukh Iron Ore Company Limited (KIOCL) took over 3703

hectares of Shola forest land in the Kudremukh area of the Western Ghats of Southern  Karnataka on a 30-year lease from the Karnataka State Government to extract iron ore. Even after the expiry of lease period in 1999, the company carried out mining activity based on the temporary working permission granted by the Ministry of Environment and Forests. In the meantime, the Government in 1987 declared Kudremukh as a National Park and was thus brought under the Wildlife (Protection) Act, 1972 which disallows any non-forestry operations including mining activity within the protected area. Despite this notification, KIOCL continued its operations on the basis of the lease granted to it two decades prior to this notification.  Continuance of mining activity was challenged on the grounds that it would cause an everlasting damage not only to the environment of the Kudremukh region but also to the Bhadra river and reservoirs to agricultural land downstreams. Millions of farmers were found dependent on the river for their cultivation, thereby livelihood being placed in a hazardous situation due to a huge impact of the sediments from the mines brought down through the river.

While ordering the closure of mining operations by Kudremukh in 2002, the Apex court constituted a Supreme Court Monitoring Committee to oversee the closure proceedings.

The activist role of the Indian Judiciary clubbed with humanistic approach can be clearly seen in the Olga Tellis and Others Vs Bombay Municipal Corporation and others case.   Several writ petitions were filed by the slum and pavement dwellers, which constitute nearly half of the population of Mumbai before the Supreme Court against the decision of State of Maharashtra and Bombay Municipal Corporation to forcibly evict them and deport to their respective places outside the city of Bombay.  The slum dwellers challenged this order as being unreasonable and unjust without providing alternative living facility. Stating that the mala fide act has no existence in the eye of law, the Supreme Court held the slum dwellers must get an alternative shelter if they are evicted from the pavements though the eviction orders were held to be valid under Article 14 and 19 of the Constitution.  The decision of the Court was focused on the concept of the welfare state. In this case, the Supreme Court focused on both the premises – reformation and superiority of law.

CEMENTING THE CONCEPT OF SOCIAL JUSTICE:

While establishing the right to life with dignity and freedom from exploitation stated in Article 21, the Supreme Court, in unequivocal terms,   put the concept of social justice on a higher pedestal in a case between Bandhua Mukti Morcha Vs Union of India and others. In this case the Supreme Court lays down as: “Article 21 assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are therefore bound to ensure observance of the various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the directive principles of the state policy.”

Observing that the Article 21 is the heart of Fundamental Rights in Unni Krishhnan Vs State of A.P the Supreme court  itself provided the list of some of the rights  covered under this  Article on the basis of earlier pronouncements and some of them are listed below:

(1) The right to go abroad.

(2) The right to privacy.

(3) The right against solitary confinement.

(4) The right against hand cuffing.

(5) The right against delayed execution.

(6) The right to shelter.

(7) The right against custodial death.

(8) The right against public hanging.

(9) Doctors assistance.

ARTICLE 21 + ARTICLE 32 = A REVOLUTION:

Articles 32 and 226 are the provisions of the Constitution that together provide an effective guarantee that every person has a fundamental right of access to courts. Article 32 confers powers on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the Fundamental Rights because a person can go straight to the Supreme Court without having to undergo the dilatory process of proceeding from the lower to higher court as he has to do in other ordinary litigation. The Supreme Court is thus the protector and guarantor of the fundamental rights.

The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said, ‘if I am asked which is the most important provision of the Indian Constitution, without which the Constitution would not survive I would point to none other than article 32 which is the soul of the Indian Constitution. Article 32 is the soul of the Indian Constitution. When there is infringement of Article 21 the aggrieved person can approach the Supreme Court of India for enforcement of his fundamental rights.

As a result of expansion of the scope of Article 21, the Public Interest Litigations (PIL) in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it. Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21.

Maneka Gandhi’s case recognized an implied substantive component to the term ‘liberty’ in article 21 that provides broad protection of individual freedom against unreasonable or arbitrary curtailment.[87] This paved the way for a dramatic increase in constitutional protection of human rights in India under the mantle of the Public Interest Litigation movement (PIL).

NEED FOR AGGRESSIVE PRO-ACTIVENESS:

A time has come where the Judiciary has to be aggressively pro-active. It should not satisfy itself by pronouncing few judgments. The judiciary should give top most priority for the cases that affect the human life system. The spirit of Article 21 would dampen if cases like coca-cola are kept pending for long years. Since the year 2003, the villagers of Plachimada in Palghat district of Kerala mostly dalits, adivasis, women and children are fighting to protect their water bodies from the exploitation of multi-national soft drink producer Coca-Cola. The villagers are also demanding adequate compensation from the government and coca-cola management for the immense damage done to their water bodies and the pollution caused in the region. Enormous extraction of ground water by this company resulted in decline of ground water in the region besides polluting the wells all around. Due to excessive exploitation of water by Coca-Cola the plachimada villaged faced acute drinking water shortage. In all counts, the Coca-Cola company violated the fundamental right to live guaranteed under Article 21. Almost seven years lapsed and the poor villagers are still agitating for their compensation. Due to the delay in pronouncing the judgment by the Supreme Court, the threat of re-opening of the company is looming large on them.

The lofty ideals would confine only to paper if they are not effectively implemented.  The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v Union of India observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Taking into consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed prohibition of smoking in public places. It issued directions to the Union of India, State Governments and the Union Territories to take effective steps to ensure prohibition of smoking in public places such as auditoriums, hospital buildings, health institutions etc. In this manner the Supreme Court gave a liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers. Unfortunately, implementation of this judgment is totally ignored by the executing authorities. Violation this judgment could be find everywhere. Unless a mechanism evolved, such initiatives would have zero impact. 

THE ROAD AHEAD:

Justice V R Krishna Iyer once observed that the procedure established by law in implementing the Article 21 that -- the procedure prescribed by law for depriving a person of his life and personal liberty must be ‘right’, ‘just’ and ‘fair’ and ‘not arbitrary, fanciful and oppressive’ -- has acquired the significance in India as the ‘due process of law’ clause in United States of America. “Our Constitution has no due process clause” but after Maneka Gandhi’s case the consequence is the same, and as much as such Article 21 may be treated as counterpart of the due process clause in American Constitution,”

But, the fact is the scope of the expansion into the substantive rights organized by the Supreme Court went much beyond the concept of due process of law of the USA. This is mainly because of the gentle, compassionate and civilized manner adopted by our judiciary.

The Indian Judiciary provided excellent elucidation to Article 21. The Supreme Court not only explored the instinctive humane qualities of the Article 21 but also established certain procedure to implement them. Each interpretation or the procedure laid down with the regard to Article 21 is particularly aimed at well being of the citizen. Each explanation provided vis a vis Article 21 attempts to fulfill the basic needs of the human being while safeguarding his dignity.  The Supreme Court went to the extent of declaring that: “Right to dignity and fair treatment is not only available to a living man, but also to his dead body, and the same principle is applied to homeless deceased.”

It is great difficult to find such noble, lofty, dignified, magnificent illustrations and interpretations -- as provided the Supreme Court of India to the concept of right to life and personal liberty -- elsewhere in the world. The Indian concept did not confine the right life and personal liberty only to his physical entity. Call it Indian-ness or Bharateeya tatva, the intrinsic qualities inspired the Indian judiciary to strive for all-round development of a human being.

But, the road does not end here. Let’s keep on striving for the fulfillment of the task of Article 21 – 'Sarve Janah Sukhino Bhavantu' – MAY ALL BE HAPPY.