This is the first article in a series of articles on Article 21 of the Constitution of India.
Article 21 says-
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Bhagwati, J., defines Article 21 as “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
This right has been held to be the soul of the Constitution, the most natural and dynamic arrangement in our living constitution, the founding stone of our laws.
Article 21 must be sought when an individual is denied of his “life” or “individual freedom” by the “State” as characterized in Article 12. Infringement of the privilege by private people isn’t within the ambit of Article 21.
Article 21 protects two rights: 1) Right to life, and 2) Right to personal liberty.
The Article restricts the hardship of the above rights according to the procedure established by law. Article 21 compares 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.
It applies to natural persons. The right is available to every person, citizen or alien. Hence, even a foreigner can claim this right. It, however, does not give a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e).
MEANING AND CONCEPT OF ‘RIGHT TO LIFE’
‘Everyone has the right to life, liberty and the security of person.’ The right to life is undeniably the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right to life as interpreted and applied by the Supreme Court of India.
Article 21 of the Constitution of India, 1950 gives that, “No Person shall be deprived of his life or personal liberty except according to the procedure established by law.” ‘Life’ in Article 21 of the Constitution isn’t only the physical act of relaxing. It doesn’t imply simple animal existence or proceeded with drudgery through life. It has a lot more extensive significance which incorporates option to live with human respect, right to the occupation, right to wellbeing, right to contamination-free air, etc.
Right to life is central to our very presence without which we can’t live as a person and incorporates each one of those parts of life, which go to make a man’s life significant, complete, and worth living. It is the main article in the Constitution that has gotten the broadest conceivable translation. Under the shade of Article 21, such a large number of rights have discovered shelter, development and growth. Along these lines, the minimum essentials, least and fundamental prerequisites that are basic and unavoidable for an individual is the center idea of the Right to life.
In the case of Kharak Singh v. State of Uttar Pradesh, the Supreme Court observed and held that:
“By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”
In Sunil Batra v. Delhi Administration, the Supreme Court again quoted with the approval the above judgement and held that the “right to life” included the right to lead a healthy life so as to enjoy all functions of the human body in their prime conditions. It would even incorporate the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. It also incorporates the right to live in peace, to sleep in peace and the right to repose and health.
Right To Live with Human Dignity
In Maneka Gandhi v. Union of India, the Supreme Court gave a new scope to Art. 21 and observed that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Applying the same scope, the Court in Francis Coralie v. Union Territory of Delhi, held that:
“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”
Another broad dimension of the right to life with the dignity is to be found in Bandhua Mukti Morcha v. Union of India. Defining Art. 21 as the heart of fundamental rights, the Court gave it an elobrative interpretation. Bhagwati J. observed:
“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.“
“These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”
Following the above-mentioned cases, the Supreme Court in Peoples Union for Democratic Rights v. Union of India, held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was not allowing them of their right to live with basic human dignity and violative of Article 21 of the Constitution.
Bhagwati J. held that rights and benefits given to workmen employed by a contractor under various labor laws are clearly intended to safeguard basic human dignity to workmen. He held that the non-implementation by the private contractors working for the constructing a building for holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21.
In Chandra Raja Kumar v. Police Commissioner Hyderabad[viii], it has been held that the Right to life incorporates option to live with human pride and fairness and, in this way, holding of beauty pageants is repugnant to nobility or conventionality of ladies and violates Article 21 of the Constitution in particular if the equivalent is terribly profane, revolting, foul or intended for blackmailing. The administration is empowered to prohibit the pageants as frightful presentation under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.
In State of Maharashtra v. Chandrabhan, the Court removed a provision of Bombay Civil Service Rules, 1959, which mentioned provisions 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 basis that it was contradictory of Article 21 of the Constitution.
Right Against Sexual Harassment at Workplace
Art. 21 guarantees the right to life guaranteed under the right to life with dignity. The court in this situation has observed that:
“The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.”
Sexual Harassment of women has been held by the Supreme Court to be in violation of the most basic fundamental rights, namely, the Right to Life contained in Art. 21.
In Vishakha v. State of Rajasthan, the Supreme Court has observed that sexual harassment of a working woman at her work will amount to the violation of rights of gender equality and rights to life and liberty which is a clear violation of Articles 14, 15 and 21 of the Constitution. In the landmark judgment, the Supreme Court in the absence of any enacted law to provide for the enforcement of basic human rights of gender equality and guarantee against sexual harassment laid down the following guidelines:
All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health, and hygiene to further ensure that there is no hostile environment towards women at workplaces and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Where such conduct amounts to specific offenses under I.P.C, or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own transfer.
In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court referred to the Vishakha ruling and held that:
“There is no gainsaying that each incident of sexual harassment, at the place of work, results in the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India….
“In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honor of a female and needs to be eliminated….”
Right Against Rape
Rape is the violation of a person’s fundamental life guaranteed under Art. 21. Right to life right to live with human dignity. The right to life, would, hence, it includes all those aspects of life that make life meaningful, complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court observed that:
“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.
Right to Reputation
Reputation is an integral part of one’s life. It is one of the important aspects of human civilization that makes life worth living. The Supreme Court referring to D.F. Marion v. Minnie Davis in Smt. Kiran Bedi v. Committee of Inquiry observed 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. The court affirmed that the right to the enjoyment of life, liberty, and property. The court affirmed that the right to the enjoyment of private reputation was of ancient origin and was necessary to human society.”
The same judgement has also been referred to in the case of State of Maharashtra v. Public Concern of Governance Trust, where the Court observed that good reputation was an aspect of an individual’s security and was protected under the constitution along-with the right to the enjoyment of life, liberty, and property.
It has been observed that the right equally covers the reputation of a person during and after his death. Hence, any wrong action of the state or agencies that taints the reputation of a virtuous person would come within the ambit of Art. 21.
In State of U.P. v. Mohammaad Naim, in a nutshell, observed the following tests while dealing the question of expunction of disgracing remarks against a person or authority whose action comes in question before a court of law:
- whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself.
- whether there is evidence on record bearing on that conduct justifying the remarks.
- whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation, and reserve.
In State of Bihar v. Lal Krishna Advani[xvii], a commission was constituted to ask into the collective aggravations in Bhagalpur locale on 24th October, 1989, offered a few comments in their report, which encroached upon the respondent of the respondent as an open man, without giving him a chance of being heard. The Apex Court decided that it was sufficiently certain that one was entitled to have and safeguard one’s reputation and one likewise reserved the right to ensure it.
The court additionally observed that in case of any authority, in the release of its obligations affixed upon it under the law, transverse into the domain of individual reputation unfavorably influencing him, it must give an opportunity to him to have his opinion in the matter. The court held that the principle of Natural Justice made that a chance must be offered to the individual before any remark was made or a conclusion was communicated which was probably going to preferentially influence that individual.
Right To Livelihood
In the first place, the Supreme Court took the view that the Right to life in Art. 21 would exclude the Right to Livelihood. In Re Sant Ram[xviii], a case which emerged before Maneka Gandhi case, where the Supreme Court decided that the Right to Livelihood would not fall inside the meaning “life” in Article 21. The court said :
“The right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”
But then the opinion underwent a scrutiny. With the definition of the word “life” in Article 21 in a wide and explanatory manner, the court in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, observed that “the right to life” guaranteed by Article 21 includes “the right to livelihood”. The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge bench observed that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of lives, that is, the means of Livelihood. That the court, in this case, observed that:
“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect if the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”
If the right to livelihood is not included under the constitutional right to life, then it will become the easiest way of depriving a person of his right to life and means of livelihood to the point of abrogation.
In the given case, the court further held:
“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.”
While focusing on the close relationship of life and livelihood, the court said:
“That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life.”
Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be according to procedure established by law which must be fair, just and reasonable. Therefore anyone who is deprived of the right to livelihood without a just and fair procedure established by law can challenge such deprivation as being against Art. 21 and get it declared void.
In D.T.C. v. D.T.C. Mazdoor Congress, a regulation empowering the authority to terminate the services of a permanent and confirm employee by issuing a noticing without giving him any reasons and without giving him a fair chance of hearing has been held to be a wholly arbitrary and violative under Art. 21.
In M. Paul Anthony v. Bihar Gold Mines Ltd., it was observed that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has held that a government servant does not withdraw his right to life and other fundamental rights under any circumstances.
But, if an individual is denied of such Right as given under the procedure established by law which must be reasonable, just and sensible and which is in the bigger benefit of individuals, the plea of denying of the Right to work under Art. 21 is not maintainable. In, Chameli Singh v. Province of Uttar Pradesh, it was held by the Hon’ble Supreme Court that when the place that is known for a landowner was obtained by state as per the procedure laid down in the applicable law of acquisition, the right to employment of such a landowner despite the fact that unfavorably affected, his entitlement to Right to livelihood isn’t violated.
The Court observed that the state acquires land in accordance of its power of eminent domain for a public purpose. The landowner is paid compensation in lieu of land, and therefore, the plea of deprivation of the right to livelihood under Art. 21 is not maintainable.
In M. J. Sivani v. Province of Karnataka and Ors., the Supreme Court held that Right to life under Article 21 ensures occupation yet included a rider that its hardship can’t be expanded excessively far or anticipated or extended to the hobby, business or exchange harmful to open intrigue or has a harmful impact on the public health. It was, subsequently, held that guidelines of computer games or restriction of some computer games of unadulterated possibility or blended possibility and expertise are not violative of Article 21 nor is the procedure unfair, unjust, or unreasonable.
HIV Not a ground for Termination
In MX of Bombay Indian Inhabitants v. M/s. ZY, it was observed that a person tested positive for HIV could not be rendered “medically unfit” only on that ground to terminate his employment. The right to life includes the right to livelihood. Hence, the right to livelihood cannot depend on to the personal whims and fancies of the individuals in authority. Even though the petitioner might have been a nuisance to others and conducted themselves either in a disorderly way or unbecoming on their profession but, that in itself, is not sufficient ground for the executive to take away their source of livelihood by executive arbitrariness.
Right to Work Not a Fundamental Right under Art.21
In Sodan Singh v. New Delhi Municipal Committee, the five-judge bench differentiated between the concept of life and liberty within Art.21 from the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)(g) and observed that 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 the case of trade and business.
The Petitioners, peddlers working together in the paved streets of Delhi, had claimed that the refusal by the Municipal authorities to them to carry on the matter of their job violated their Rights under Article 21 of the Constitution. The court observed that while vendors have a fundamental right under Article 19(1) (g) to continue trade and business of their decision; they reserve no right to do as such in a specific place. They can’t be allowed to carry on their trade on each street in the city. The street isn’t sufficiently wide enough to handle the traffic on it, no peddling might be allowed at all or might be allowed once per week.
The court differentiated the ruling in Olga Tellis v. Bombay Municipal Corporation and observed that “in that case, the petitioners were very poor persons who had made pavements their homes existing in the midst of filth and squalor and that they had to stay on the pavements so that they could get odd jobs in the city. It was not the case of a business of selling articles after investing some capital.”
In Secretary, State of Karnataka v. Umadevi the Court denied that right to employment at the present point of time can be included as a fundamental right under Right to Life under Art. 21.