Article 21 – An Analysis

Right to Life and Personal Liberty I would like to present a brief statement how the Supreme court has crystallized, case after case, various rights while interpreting fundamental rights guaranteed under Article 21 of our Constitution. Speedy trial, right against illegal arrest, right to compensation in case of custodial torture or death, rights of  arrestees, right to consult a lawyer, right to free legal aid, right to life and liberty, right to live with human dignity, right to fair trial etc., are just a few pointers in that directions, need not multiply illustration. I have tried to cover all the se theories expounded by the Supreme Court in various cases in the light of Article 21. Article 21 of the Constitution of India forbids deprivation of personal liberty except in accordance with the procedure established by law. It mandates that no person shall be deprived of his life or personal liberty except according to proce dure established by law. While interpreting article 21 of the Constitution of India, the Supreme Court has granted certain safeguards and rights covered under r ight to life and personal liberty. To find out these rights and safeguards and to arranging, analyzing, and producing them in a systematic manner is the aim of this work .

Noteworthy contribution.

Article 21 has become the source of many important rights and procedural safeguards t o the people. The Supreme Court has adopted new approach and granted various rights. These are right to 2 fair trial, right to legal aid, right to speedy trial, and declared procedural safeguards as to right against bar-fetters, right against custodial violence, right against delayed exe cution, right against handcuffing, right against solitary confinement, etc.

Safeguarding against illegal Arrest

Arrest is permissible under law but a person is said to be deprived of his life or personal liberty if he is arrested or detained not in accordance acc ordance with the procedure established by law. In Prem Shankar Shukla v. Delhi Admn., AIR 1980 SC 1535, the Supreme Court has laid down that handcuffing of a person without adequate reasons in writing has also been found against article 21. In Joginder Kumar v. State of  U.P. and others (1994) 4 SCC 260, the Apex Court laid down certain requirements for effective enforcement of the fundamental rights inherent in Articles 21.It was emphasised that a person should not be arrested exce pt for heinous offences and to have some one informed of the arrest and to consult privately with lawyers is inherent in Article 21 .

Again in case of D.K. Basu v. State of West Bengal (1997) 1 SCC 416, the Supreme Court has issued requirements to be followed in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures. The Supreme court has cautioned that failure to comply with the requirements herein above mentioned shall apart from r endering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. 3 Safeguarding against illegal Bar fetters

Prisoner also has a right not to be held in bar fetters , as held in Charls Sobraj v. Supdt. Central Jail, New Delhi,AIR 1978 SC 1514. Custodial Torture Custodial violence, perhaps one of the worst c rimes in a civilized society, is a matter of concern for many reasons. Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the executive should not only be derived from law but also that they should be limited by law. In State of M. P. v. Shyamsunder Trivedi - 1995 (4) SCC 262 , the Supreme Court has rightly observed t hat "Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. Due to the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent to save their colleagues. Therefore, the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, often results in miscarriage of justice and makes the j ustice delivery system a suspect. In the ultimate analysis the soc iety suffers and a criminal gets encouraged. Tortures in police custody, which are on the increase, receive encouragement by this type of an unrealistic approach of the Courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up, because there would hardly be any evidence available to the prosecution to directly implicate them with the torture." 4 Right to Compensation

In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, The Supreme Court directed to the State of Orissa to pay a sum of Rs. 1,50,000/- as compensation to the appellant, Nilabati, who was the mother of the deceased, who was the victim of a custodial death. The Supreme Court innovated principle that to undo

the wrong done and give judicial redress for legal injury to the victim is a compulsion on judicial conscience. The Supreme Court has awarded compensation against the State in case of an established infringement of a fundamental right under Article 21, by the State agency. Cases where violation of Article 21 involving custodial death or torture is established, compensation may be granted under public law. In cases where custodial death or custodial torture or other violation of the rights guaranteed under Article 21 is established, courts may award compensation in a procee ding under Article 32 or 226. Custodial violence, perhaps one of the worst crimes in a civilized society.

Due process of law

In Sunil Batra v. Delhi Administration, [1978]4 SCC 494, Justice Krishna Iyer has r ightly observed that though our Constitution has no Due process clause but after Maneka Gandhi case the consequence is the same. The effect of Maneka Gandhi case is to import the concept of ‘due process of law’ from the

American Constitution into our jurisprudence. 5 Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law, as held in Zahira Habibullah Sheikh v. State of Gujarat", AIR 20 06 SC 1367. Fundamental right guaranteed under Article 21 of Constitution of India,inter alia, provides that none shall be deprived of his life without due process of law.

Expanding Horizons of Art. 21

The Apex court has expanded the m eaning of right to life and personal liberty guaranteed under Article 21 and granted right to compensation, right to free legal aid, right to Speedy trial, right of prisoners, right to compensation, right to fair trial, etc.

Fundamental Rights

In number of cases the Supreme Court has repeatedly held that Article 21 which is one of the luminary provisions in the Constitution of India. The fundamental rights occupies a place of pr ide in the Constitution. The Article 21 mandates that no person shall be deprived of his life and personal liberty

except according to the procedure established by law. This sacred and cherished right of personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. In Bhim Singh v. State of J and K [1985] (4) SCC 677, it was held that Principle of sovereign immunity is not available to the State where fundamental rights are infringed by its officers. 6 Right to Fair Trial

Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair t rial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a tr ial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair t rial. Failure to accord fair hearing either to the accused or the prosecution violates even m inimum standards of due process of  law, as held in "Zahira Habibullah Sheikh v. State of G ujarat", AIR 2006 SC 1367.

Goal of the Constitution

One of the Constitutional goals is to secure justice for every one and the Supreme court has endeavoured to achieve this goal with t he aid of article 21. Human dignity Custodial torture often figures in the news these days. It is a serious violation of human dignity which can destroy the personality of any individual. Torture ruins the victim both physically and mentally. Human dignity is a dear value of our Constitution not to be bartered away for the me re apprehensions entertained by jail officials. 7 Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person, including a foreigner, as held in Munshi Singh Gautam v. State of M. P." AIR 2005 S C 402.

“I. R. Coelho”case

In case of “I. R. Coelho” the Apex Court held that -- “Article 21 is the heart of the Constitution.”

Judicial Review

In each case where a person complains of the deprivation of his life or personal liberty, the court, in exercise of its constitutional power of j udicial review, has to decide whether there is a law authorizing such deprivation and whether in the given case , the procedure prescribed by such law is reasonable, fair and just, and not arbitrary, whimsical and fanciful. In Indira Nehru Gandhi v. Raj Narayan, AI R 1975 SC 2299, the apex Court has held that Judicial Review is an essential element of the basic structure of our constitution. Justice H. R. Khanna, former judge of the Supreme Court has emphasized that as long as some fundamental rights exist and part of the constitution, the power of   judicial review has to be exercised with a view to see that guarantees afforded by those rights are not contravened. A bench of 7 judges in L. Chandra Kumar v. U.O.I., AIR 1997 SC 1125, held that power of judicial review cannot be ousted or excluded even by a Constitutional amendment. 8 Kartar Singh case.

In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, held that the existence of an alternative remedy is no ground for refusal of proper relief. Liberty Protection of life and liberty under ar ticle 21 covers the right against solitary confinement as held in Sunil Batra v. Delhi Administration, [1978]4 SCC 494. Liberty is the most precious of all the human rights. The Supreme Court of India has innovated new tools and techniques in the light of Article 2 1 so as to make criminal justice system effective, vibrant, and sensitive. The Supreme Court is the c ustodian of the right to life and personal liberty. It has given a liberal interpretation to Article 21 o f the Constitution by giving more content, meaning and purpose in these fields.

We have a sense of pride and feel satisfied to note that the Supreme Court has endeavoured to act in harmony with the spirit of the right to life and liberty guaranteed under Article 21 of the Constitution of  India. The Article 21 mandates that no pe rson shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right of personal liberty has an important role to play in the life of every citizen. Right to Life or personal liberty includes a right to live with human dignity. 9 Legal Aid

In Madhav H. Hoskot v. State of Maharashtra", AIR 1978 SC 1548, to provide free legal aid to a prisoner who is indigent or disabled is State's re sponsibility under Art.21 for securing fair trial. The Supreme Court is a custodian of the right to life and personal liberty, and guardian of the human rights, responsive to the changing Indian society. The Supreme Co urt has given a liberal interpretation to Article 21 of the Constitution by giving more content, meaning and purpose in these fields.

Maneka Gandhi case

In Maneka Gandhi v. U.O.I., AIR 1978 S C 597 the Supreme Court has held that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Natural Justice

‘justice hurried is justice buried’. Therefore, sufficient, reasonable and due hearing of every ca ses with

consideration of its circumstances is the necessary requirement of natural justice. The Supreme Court emphasized that fair trial should be in such a manner in which bias or prejudice for or against the accused, the witnesses, or anybody should not be there. 10 Olga Tellis case

A path-breaking judgment in Olga Tellis v. B.M.C., [1985]3 SCC 545, the Supreme Court has held that Right to life and liberty is a fundamental right which cannot be waived by a person.

Procedure established by law

In Maneka Gandhi case it has been held that the procedure established by law contemplated by Article 21 must answer the test of reasonableness. Procedure must be ''right, just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no proc edure at all and the requirement of A rticle 21 would not be satisfied. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. "D. K. Basu v. State of W.B.", AIR 1997 S C 610, the Supreme court has held that the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials, detenu and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by laws.

Personal liberty

In Kalyan Chand Sarkar v. Rajesh Ranjan, AIR 2005 SC 921, held that It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liber ty is a constitutional guarantee. 11 However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law.

Quashing of the proceedings

Rakesh Saxena v. State through C.B.I. (1986) Supp. SCC 505, the Apex Court quashed the proceedings on the ground that any further co ntinuance of the prosecution after lapse of more than six years in the case of the appellant who was merely a trader at the lowest rung. In Srinivas Gopal v. Union Territory of Arunachal Pradesh (1988) 4 SCC 36, In an another case the Apex Court, quashed the proceedings on the ground of delay in investigation and commencement of trial. In

this case investigation commenced in 1976 and the case was registered in 1977. Cognizance was taken by the Court in March 1986.

Rule of Law.

Despite this clear enunciation of the law m any people are arrested and sent to the jail on the basis of  false and/or frivolous FIRs. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affecte d States. In a country where 60% arrest are made unwarranted, provisions for anticipatory bail is a must for the sake of rule of law. 12 In a country like ours where people consider the judges only second to G od, efforts be made to strengthen that belief of the common man. I n a country like ours where people consider the judges only second to God, efforts be made to strengthen that belief of the common man, so that rule of law shall prevail. Therefore, to evolve 'new tools' to give relief in public law by moulding it according to t he situation with a view to preserve and protect the Rule of Law. In Ajab Singh v. State of U.P., AIR 2000 S C 3421, Custodial violence, including torture and death in the lock-ups, strikes a heavy blow at the rule of law which demands that the powers of the executive should not only be derived from law but also that they should be limited by law. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of  crimes in a civilized society, governed by t he rule of law and poses a ser ious threat to an orderly civilized society. In fact equality and arbitrariness are sworn enemies; one belongs to the rule o f law in a republic, while the other, to the whim and caprice of an absolute monarch.

Solitary Confinement

Protection of life and liberty under ar ticle 21 covers the right against solitary confinement as held in Sunil Batra v. Delhi Administration, [1978]4 SCC 494. The Apex Court has laid down the principle that even prisoners have fundamental rights that cannot be taken away without following the procedure established by law. 13 Terrorist and Art. 21

Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of  society. Therefore, the Supreme Court has ruled that ordinarily, a bail application , in case where terrorist activity is alleged, which involves the security of the State should be rejected. Article 21 has no role in such cases.

Universal Declaration

The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

Violations of life and personal liberty by private person

Generally, violation of the right of personal liberty is available against the State, but in some e xceptional cases the Apex Court has exceeded this limit. The offence of rape has also been held to be a violation of  the right to life under Article 21, as held in Bodhisattwa Gautam v. subhra Chakraborty[1996]1 SCC 490. 14 Conclusion

It is a result of innovative interpretation of the Supreme Court that the right to life and personal liberty is now held to include right to legal aid, speedy trial, fair trial, privacy, to consult lawyer, to have compensation under public law, human dignity, and right against bar-fetters, against custodial violence, against delayed execution, against solitary confinement, etc. It has also been held by the Supreme court that in India doctrine of falsus in uno, falsus in omnibus does not apply, and the doctrine of Sovereign immunity is also not applicable in case of violation of  fundamental rights. The Article 21 mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law.