C​ONSTITUTIONAL​ ​LAW​ ​FINAL​ ​DRAFT

DR. RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

2018-2019

CONSTITUTIONAL LAW

TITLE OF THE PROJECT:

ARTICLE 21: RESULT OF JUDICIAL

PRONOUNCEMENTS

SUBMIITED BY: UNDER THE GUIDANCE OF:

Vipul Gautam Dr. ATUL KUMAR TIWARI

Enrolment No. 170101162 Associate Professor (Law)

Section ‘B’ Dr. Ram Manohar Lohiya National

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BA.LL.B. (Hons.) SEMESTER III Law University, Lucknow

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me
during the writing of this project.

Words are inadequate in offering my deep sense of gratitude to my Professor for

his precious guidance.

With his enthusiasm, his inspiration and his great efforts to explain things
clearly and simply, she helped throughout my analysis of work with lots of
encouragement, sound advice, and good innovation.

I would also like to thank the librarians of Dr. Madhu Limaye Library who
extended their assistance to me by helping me out consult the relevant books.

I know that despite my best efforts some discrepancies might have crept in
which I believe my humble Professor would forgive.

Thanking You All.

VIPUL GAUTAM

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ARTICLE 21: IN BRIEF

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 supremeimportance

1
in a democratic society.”

Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and
2
liberty. This right has been held to be the heart of the Constitution, the most organic and
progressive provision in our living constitution, the foundation of our laws.

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

Article 21 secures two rights:

• Right to life; and

• 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
3
Constitution of Japan, 1946.

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

1
Francis Coralis v. Union Territory of Delhi, AIR 1981 SC 746.
2
P.S.R. Sadhanantham v. R.S Naik, AIR 1992 SC 1701.
3
Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, 10th Ed., Vol. 1, Orient Publishing
Company, Allahabad, 2009, p. 928.

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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
4
a quality of life. In the case of ​Kharak Singh v. State of Uttar Pradesh,​
5
The supreme Court quoted with approval Field, J.‟s observation in Munn v. Illinois, 10 and
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
armor leg or the pulling out of an eye, or the destruction of any other organ of the body
throughwhich the soul communicates with the outer world.‟
6
In Sunil Batra v. Delhi Administration,

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.

7
In D.B.M. Patnaik v. State of Andhra Pradesh, 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.

4
AIR 1963 SC 1295.
5
(1877) 94 US 113.
6
AIR 1978 SC 1675.
7
AIR 1974 SC 2094.

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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.
8
In Francis Coralie v. Union Territory of Delhi 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.
9
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 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.”

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,

8
AIR 1981 SC 746.
9
AIR 1982 SC 1473.

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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.
10
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.

11
In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court took aserious
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
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livelihood. In Re Sant Ram ,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
13
livelihood‟. The Supreme Court now implied that right to livelihood‟ out of “right to life.”
14
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:

“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

10
AIR 1997 SC 3011 : (1997) 6 SCC 241.
11
AIR 1999 SC 625.
12
AIR 1960 SC 932.
13
Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni, AIR 1983 SC 109
14
AIR 1986 SC 180. 30 AIR 1989 SC 1988.

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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.”

Right to Shelter
15
In Shantisar Builders v. Narayan KhimlalTotame , 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.
16
It was stated in U.P. Avas Vikas Parishad v. Friends Coop. Housing Society ​Limited ,t​ hat
the right to shelter is a fundamental right which springs from the right to residence secured in
Article 19 (1) (e) and the right to life guaranteed under Article 21

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

15
AIR 1990 SC 630 : (1990) 1 SCC 520.
16
AIR 1996 SC 114.

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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
17
are some of the well-known cases on environment under Article 21:
18
In M.C. Mehta v. Union of India , the Supreme Court ordered closure of tanneries which
were polluting water.
19
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.
20
Court in In re: Noise Pollution .

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
21
The Supreme Court in BandhuMuktiMorcha v. Union Of India, while interpreting the scope
of the “right to life” under article 21, held that it included “educational facilities”.
22
In Mohini Jain v. State of Karnataka, the court referred to Bandhu Mukti Morcha

Case and held that “right to life” was the compendious expression for all those rights which
the 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

17
Jain,  M.P.,  Indian  Constitutional  Law,  6th  Ed.,  LexisNexis  ButterworthsWadhwa  Nagpur,  Gurgaon,  2010,  p. 
1244.
18
AIR 1988 SC 1037 : (1987) 4 SCC 463.
19
AIR 1997 SC 734 : (1997) 2 SCC 353.
20
AIR 2005 SC 3136 : (2005) SCC 733. 
21
AIR 1984 SC 802. 
22
AIR 1992 SC 1858.

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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”.
23
The Supreme Court in Unni Krishnan v. State of Andhra Pradesh held that the right to
education was a fundamental right under Article 21 and that “it directly flows from the right
to life.”

The stance taken by the Supreme Court in the field has been reflected in the Constitution
(86​th​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.
24
Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy
had to function effectively, people must have the right to know and to obtain the conduct of
25
affairs of the State.

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.
26
In Parmananda Katara v. Union of India, it was held that it is the professional obligation
of all doctors (government or private) to extent medical aid to the injure 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

23
AIR 1993 SC 2178.
24
AIR 1989 SC 190
25
Kumar, Narender, The Constitutional Law of India, 1st Ed., Allahabad Law Agency, Allahabad, 2009, p. 151.
26
AIR 1989 SC 2039.

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may be punished. No law or state action can intervene to delay and discharge this paramount
obligation of the members of the medical profession.
27
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.

Euthanasia
28
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

27
AIR 2003 Del. 50.
28
http://www.supremecourtofindia.nic.in/outtoday/wr1152009.pdf

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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.

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
29
rights of a person which go to make up the personal liberty of a man.

30
In A.K. Gopalan v. State of Madras, 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.

29
  Jain,  M.P.,  Indian  Constitutional  Law,  6th  Ed.,  LexisNexis  ButterworthsWadhwa  Nagpur, Gurgaon, 2010, p. 
1190
30
AIR 1950 SC 27.

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31
This judgement was followed by Kharak Singh v. State of Uttar Pradesh, 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.
32
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 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.”
33
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

31
AIR 1963 SC 1295.
32
AIR 1978 SC 597.
33
AIR 2008 Mad. 244. 

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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.”
34
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.”

Right to Privacy & Telephone Tapping

35
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 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 go Abroad
36
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.
37
The same was also resonated in the case of Maneka Gandhi v. Union of India,

34
AIR 1981 SC 760 : (1981) 1 SCC 420.
35
AIR 1997 SC 568.
36
AIR 1967 SC 1836
37
AIR 1978 SC 597

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Thecourt 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

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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 five days. Taking the serous note of the police high
headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines
governing arrest of a person during investigation:

• 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.

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

• An entry shall be required to be made in the diary as to who was informed of the arrest.

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
39
deprived of his life and personal liberty except by a procedure established by law.
40
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

38
AIR 1994 SC 1349.
39
Pandey, J.N., The Constitutional Law of India, 47th Ed., Central Law Agency, Allahabad, 2010, p. 269.
40
AIR 1978 SC 597.

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convicted of crime and deprived of their liberty in accordance with the procedure established
41
by law. Article 21, has laid down a new constitutional and prison jurisprudence.

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

Right to Free Legal Aid & Right to Appeal

42
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
43
for the accused must be given sufficient time and facility for preparing his defence. Breach
of these safeguards of fair trial would invalidate the trial and conviction.

Right to Fair Trial

Free and fair trial has been said to be the sine qua non of Article 21. The Supreme
44
Court in Zahira Habibullah Sheikh v. State of Gujarat said 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.

Death by Hanging not Violative of Article 21

41
Kumar, Narender, The Constitutional Law of India, 1st Ed., Allahabad Law Agency, Allahabad, 2009, p. 158.
42
AIR 1978 SC 1548.
43
Kashyap,  Subhash  C.,  Constitutional  Law  of  India,  Vol.  1,  Universal  Law  Private  Limited, New Delhi, 2008, 
p. 677.
44
AIR 2006 SC 1367.

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45
In Deena v. Union of India, 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.

Compensation for Violation of Article 21

46
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.

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.
47
Gopalan v. State of Madras. The 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

45
AIR 1983 SC 1155.
46
(1983) 4 SCC 141.
47
AIR 1950 SC 27.

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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.
48
In Maneka Gandhi v. Union of India, the Supreme Court overruled A.K. Gopalan

Case 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.

49
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.

“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
50
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 of ​Madras,
51
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

48
AIR 1978 SC 597.
49
AIR 1986 SC 180 : (1985) 3 SCC 545.
50
  Procedure:  Jain,  M.P.,  Indian  Constitutional  Law,  6th  Ed.,  LexisNexis  ButterworthsWadhwa  Nagpur, 
Gurgaon, 2010, p. 1194.
51
AIR 1950 SC 27.

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accordance with procedure established by law. The Court ruled that such a procedure would
not be required to meet the challenge of Article 19.
52
But in Maneka Gandhi v. Union of India, the Supreme Court overruled Gopalan’sruling
and held that Article 21 was controlled by Article 19. That, a procedure established bylaw
under Article 21 to deprive a person of his life and liberty must satisfy the requirementsof
Article 19 also.Thus, it was held that a law depriving a person of personal liberty has not only
tostand the test of Article 21 but it must also satisfy the requirements of Articles 19 and 14.
53
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.

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 (86 th 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 86 th Amendment will be enforced from a date to be notified by the Department of

Education in the Ministry if Human Resource Development.

52
AIR 1978 SC 597.
53
AIR 2007 SC 861.

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The term “child” for the purpose of Article 21-A is held to be a child who is a citizen of
54
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 Roy Sharma
55
v. State, directed the Board to permit the students of a private school to appear in

Class VIII Board examination. 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.

​ BIBLIOGRAPHY

54
AIR 2008 Ker. 226.
55
AIR 2005 Pat. 38.

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• Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law Publishing Co.,

Delhi, 2008.

• Jain, M.P., Indian Constitutional Law, 6th Edition, LexisNexis Buttorworths Wadhwa

Nagpur, Gurgaon, 2010.

• Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private

Limited, New Delhi, 2008.

• Kumar, Narender; Introduction to the Constitutional Law of India, 1st Ed., Allahabad

Law Agency, Allahabad, 2009.

• Majumdar, P.K. &Kataria, R.P, Commentary on the Constitution of India, 10 th

Edition, Volume 1, Orient Publishing Company, Allahabad, 2009.

• Pandey, J.N., The Constitution of India, 47 th

Edition, Central Law Agency, Allahabad,

2010.

• The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New

Delhi, 2010.

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