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Article 21: Expanding Horizons

The Constitution of India under Part III provides for fundamental rights. Article 21 of our Constitution is one of the important fundamental rights among those rights and it is read as “no person shall be deprived of his life or personal liberty except according to the procedure established by law.” This article is known to be heart of the fundamental rights. The rights that are mentioned under Article 21 are available to all persons whether citizens of India or not.

The most important words in this provision are procedure established by law, which means enacted piece of law. The right to live with human dignity is available to every person and even the state has no authority to violate that right except according to the procedure established by law. Said right is also protected by other constitutional provisions and also by statutory provisions. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

Prior to Maneka Gandhi’s Decision-

The words “personal liberty” under Article 21 if interpreted widely are capable of including the rights that are mentioned in Article 19. But in AK Gopalan V. State of Madras[1], the Supreme Court took a very literal view and interpreted these words very narrowly. “Personal liberty” was said to mean only liberty relating to, or concerning the person or body of the individual and in this sense, it was the antithesis. It was further limited to freedom from punitive and preventive detention. The meaning which is accepted for the purpose of Article 21 of the Constitution was very restricted to the limits which were set by Dicey, according to whom “personal liberty” means a personal right not to be subjected to imprisonment, arrest or physical coercion in any manner that does not admit of legal justification.

Gopalan held the field for almost three decades, i.e. 1950 to 1978. Gopalan settled two major points in relation to Article 21. Firstly, Article 19, 21 and 22 were mutually exclusive and independent of each other and that Article 19 was not to apply to a law affecting personal liberty to which Article 21 would apply. Secondly, a ‘law’ affecting life or personal liberty could be declared unconstitutional merely because it lacked natural justice or due procedure. The legislature was free to lay down any procedure for this purpose. As interpreted in Gopalan, Article 21 provided no protection or immunity against competent legislative action. Article 21 gave a carte blanche to the legislature to enact a law and to provide for the arrest of a person without much procedural safeguard. Therefore, it actually gave a final say to the legislature to determine one, what was going to be the procedure to curtail the personal liberty of a person in a given situation and second, what procedural safeguards he would enjoy.

We cannot assume that the constitutional provision was of no value just because of the importance of Article 21 as protection against legislative action. Article 21 served as a restraint upon the executive which could not proceed against an individual to curtail his personal liberty which is saved within the four corners of the law. In a case, it was held that the expression ‘life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence. In this case, the petitioner has been charged in a dacoity case but was released as there was no evidence against him. Police opened a history-sheet for him and he was kept under police surveillance which included checking of this house, domiciliary visits at nights and verification of each and every movement and activity. It was like they were breathing down his neck. The Supreme Court held that there was an invasion of the petitioner’s personal liberty. Therefore, a person could not be deprived of his life or personal liberty merely by executive fiat without there being a proper valid law to support it.

In the area of preventive detention, the courts introduced some elements of administrative law with a view to control somewhat the executive power to order preventive detention. Thus, Article 21 provides a safeguard against the arbitrary or despotic executive action. Its chief value lay in that the person whose life or personal liberty had been put in jeopardy otherwise than in accordance with the procedure established by law could immediately take recourse to Article 32 or 226 of the Constitution. If any private individual violates personal liberty was not within the purview of Article 21, and in such a situation remedy was sought under the ordinary law and not under Article 21.

Maneka Gandhi’s Case- New Dimension-

Maneka Gandhi v. UOI[2] is a landmark case of the post-emergency period. For the protection of personal liberty, a great transformation has come about in the judicial attitude after the harrowing experience of the emergency during 1975-1977 when personal liberty had reached its depths. This case has shown how liberal tendencies have influenced the Supreme Court in the matter of interpreting Fundamental Rights, particularly, Article 21 and could not provide protection to a person of his life or personal liberty against any harsh law as interpreted in the Gopalan case.

Since Maneka Gandhi’s case the Supreme Court has shown great protection to personal liberty and the Court re-interpreted Article 21 and practically overruled Gopalan. Further, Article 21 has proved to be a very fruitful source of rights of the people.

This case has been exerting a multidimensional impact on the development of our constitution. Article 21 was brought to life by Maneka Gandhi and now it is playing a ‘highly activist’ role. It has deeply influenced the prison administration and administration of criminal justice and proved to be a very productive source of Fundamental Rights which are mentioned in our Constitution.

Post Maneka Gandhi’s decision

As Article 21 was brought to life after the case of Maneka Gandhi. Since then, Article 21 has been on its way to emerge as the Indian version of the American concept of due process. Article 21 assures every person the right to life and personal liberty.  The Judiciary played a crucial role in interpreting Art. 21 of the Constitution of India. Life not only merely relates to physical existence but includes within its sphere right to live with human dignity or having the quality of life. If any statutory provisions run counter to such right, it must be held unconstitutional.

Elaborating the same view the court in Francis Coralie v. Union Territory of Delhi[3], said that the right to live is not restricted to a mere animal existence. It means something more than just physical survival.

Life includes everything like livelihood, education, information, dignity, privacy, health, environment and etc. A person’s reputation is a facet of his/her right to life under Article 21 of the Constitution. The right to live with human dignity is a roadmap to several other rights that are recognized under Article 21. It was the first right that received supreme consideration and the Supreme Court held for the first time that “any law that deprives a person of his/her life or personal liberty must pass the test of reasonability and the law should be just and fair and must provide for a procedure.” It covers three triangles of Article 14, 19 and 21 of our Constitution.

Personal Liberty under Article 21 does not merely mean the liberty of the body, i.e. freedom from false imprisonment or arrest or wrongful confinement, but it means more than that.  The term is not used in narrow sense but as a compendious term to include within it all those rights of a person which goes to make up the personal liberty of a man. Liberty of an individual need to be balanced in such a way that someone else rights are not been disturbed. The expression “personal liberty” in Article 21 is of the wildest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct Fundamental Rights and given protection under Article 19.

If any law is interfering with a person’s personal liberty then they should satisfy a triple test (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the Fundamental Rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with the conference to Article 14.

Besides these two rights life and personal liberty, there are several other rights that come within the scope and meaning of Article 21. These rights are not expressly mentioned in Article 21 but impliedly embedded under it. Following rights are

Right to livelihood

The ‘right to life’ guaranteed by Article 21 includes the ‘right to livelihood’. In Olga Tellis[4] case, popularly known as the ‘pavement dwellers case a five judges bench of the court has finally ruled that the word ‘life’ includes the ‘right to livelihood’ as no person can live without the means of living. It has been held by the Supreme Court that the imposition of Tehbazari by the Municipal Corporation is in violation of the rights of hawkers to carry on the business fetching them livelihood. If we don’t treat the right to livelihood as part and parcel of the constitutional right to life, then 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. In short, deprive a person of his right to livelihood is equal to deprive him of his life.

Right to travel abroad

In Satwant Singh[5] case, the petitioner who was a citizen of India had to travel abroad frequently for business purpose. The government ordered him to surrender his passport. He challenged the action of the government on the ground that it was violative of his fundamental rights under Article 21. His contention was that right to leave or travel and return back to India was a part of his personal liberty and which could be restricted only by authority of law. The government cannot deny him a passport in the exercise of its executive power. The Supreme Court held that right to travel abroad was part of a person’s personal liberty within the meaning of Article 21 and, therefore, no person could be deprived of his right to travel abroad except according to the procedure established by law. In fact, if we see, there was no such law on which the government could justify their action. The court observed that the expression ‘liberty’ in Article 21 is a comprehensive term. ‘Personal liberty’ in Article 21 takes in the right of locomotion to go where and when one pleases, and the right to travel abroad is included in it.

Quality of life

A grand step was taken by the Court in expanding the scope of Article 21. ‘Life’ does not merely mean ‘animal existence’ but to live with ‘human dignity’. Elaborating the same view the court in Francis Coralie[6] case, said that right to live is not restricted to mere animal existence. It means something more than just physical survival. Life with dignity and life without exploitation can be found in Bandhua Mukti Morcha[7] case. The court gave it an expanded interpretation-“to live with human dignity, free from exploitation. It includes protection of health and strength of workers, men and women, and of the tender age of the 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 human conditions of work and maternity relief. These are minimum conditions which must exist in order to enable a person to live with human dignity. No government can take any action to deprive of the enjoyment of these basic rights.”

Right to Privacy

It goes through case to case basis as it has been developed through series of decisions. Earlier, it was not enumerated as a fundamental right in the constitution and also our constitution does not grant in specific and expressed terms. The first time it was raised in the case of Kharak Singh[8] case which was a 6 judges bench, it was held by majority of judges that “our constitution does not in terms confer any like constitutional guarantee.” On the other hand, the minority were in opinion of inferring right to privacy from the expression ‘personal liberty’ in Article 21.

In the words of Subba Rao, J…. “The right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our constitution does not expressly declare a right to privacy as a Fundamental Right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life…”

But, in the case of Govind[9], a 3 judges bench, where it was held that right to privacy is a Fundamental Right but not an absolute right as reasonable restrictions can be placed thereon in public interest under Article 19(5). Yes, nobody should interfere in your personal space until and unless it’s not in the interest of public. A right to be let alone.

There are many aspects of Right to Privacy as well;

(1) Right to Procreate- This is also known as “the right of reproductive autonomy.” The right to use condoms, the right of a woman to abort, all these falls within the ambit of the right to privacy[10].

(2)  Virginity test- Where a husband filed an application for the virginity test of his wife in defense that he wasn’t impotent and wife was not a virgin. Punjab and Haryana high court has held that allowing medical examination of a woman for her virginity amounts to violation of her right to privacy and personal liberty enshrined under article 21 of the Constitution. And also, a test cannot prove the virginity[11].

(3) Telephone tapping- Whether the tapping of telephone is an invasion of individual’s right of privacy. The very famous PUCL[12] case, where the Supreme Court held- “telephone tapping is a serious breach of an individual’s right to privacy which is an integral part of right to life and personal liberty enshrined under Article 21. State is not allowed to intervene in the individual’s right unless there is a matter of public emergency or interest of public safety.” Conversations on the telephone are of an intimate and confidential character. Right to Privacy will certainly include telephone conversation in the privacy of one’s home or office. This means that it will violate Article 21 unless it is permitted under the procedure established by law. And the procedure needs to be ‘just, fair and reasonable.’

(4) Aadhar Card- In Justice K.S. Puttaswamy[13] case, challenging the Aadhar scheme of the government to be violative of Article 21. The Aadhar scheme which includes the biometric of an individual and which was proposed to make it mandatory in order to access the government policies and benefits. The petitioner challenged it. In this case the Court gave landmark judgments by recognizing right to privacy as an intrinsic part of right to life and personal liberty by referring to the cases of M.P. Sharma v. Satish Chandra[14] and Kharak Singh v. State of Uttar Pradesh[15]. Right to privacy is not an absolute right as it is enshrined with certain limits as provided by the law. The law must provide strict data protection and regulate national security. Therefore, it was held that the scheme of Aadhar card is no more mandatory.

Capital Punishment (Death Penalty) 

The constitutionality of death sentence has been raised many a times before the Supreme Court vis-à-vis Article 14, 19 and 21. A death sentence is a legal process where a person is put to death by the state as a punishment for a crime committed by him. In Jagmohan[16], a five judges constitutional bench held that capital punishment is not violative of Article 21 as it is not imposed arbitrary, but according to a procedure established by criminal courts. The right to live is a basic to the enjoyment of all these freedoms and, therefore, freedom to live could not be denied by a law unless it is reasonable and in the interest of public. Eleven offences are punishable under Indian Penal Code, 1860 which prescribes death sentence. In Rajendra Prasad[17] case, justice Krishna Iyer, held that since India follows a reformatory theory of punishment. Thus, capital punishment should only be given if the criminal is extremely dangerous to the society. He also pleaded that parliament should gradually move towards abolishment of death penalty. While in, Machhi Singh[18] case, the Supreme Court has emphasized that “death penalty need not be inflicted except in the ‘gravest of cases of extreme culpability’ and that ‘life imprisonment is the rule and death sentence is an exception.” The Supreme Court has formulated broad guidelines for determining the “rarest of rare cases.” According to the recent judgement in the infamous 2012 Delhi gang rape case where the justice was delayed for eight years and the convicts were given capital punishment by hanging recently in February, 2020.

Right to Die

    If  Article 21 gives us right to live a dignified life, then does it or not include right to die if a person chooses to do so? In P.Rathinam[19] case,  a two judges bench of the Supreme Court were it was agreed with a view of the Bombay High Court in Maruti Shripati Dubal[20] case, a person has a ‘right to die’ and declared Section 309 of the Indian Penal Code, 1860 unconstitutional which makes ‘attempt to commit suicide’ a penal offence. The ‘right to live’ in Article 21 of the Constitution includes the ‘right not to live’. The bench even called for the deletion of Section 309, IPC, labelling it as cruel, and irrational which results actually in punishing an individual twice. This section violates the Article 21 and is therefore void. The court emphasized that attempt to commit suicide is in reality a cry for help and not for punishment. The P. Rathinam case was overruled by the Gian Kaur[21] case where court held that right to die is not a part of right to life. In this case the question was raised that if an attempt to commit suicide is not regarded as penal then what about who abets suicide. It was argued that Section 306 was unconstitutional just like 309, IPC as it’s violative of Article 21. But later, after reconsidering they ruled that Section 309, IPC, not be unconstitutional and accordingly, Section 306, IPC, has also been held to be constitutional.

 Right to Education-

    It was made a Fundamental right by the Constitution 86th Amendment Act, 2002. It added new Article 21-A. It directly flows out from right to life. Earlier this right to education was covered under directive principles of state policy but with the change in needs and circumstances in the society, it has been now categorized as fundamental right. In Mohini Jain[22] case, the Supreme Court opined that the right to education is a fundamental right under Article 21. The Court laid down in this case that the right to education flows directly from right to life. The right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education. In Unni Krishnan[23] case, the Supreme Court overruled the above mentioned case and partly agreed with the decision that right to education is a fundamental right and flows from right to life but, the right to free and compulsory education is available only to children until they complete the age of 14 years, after this age right to higher education is not absolute but subjects to the limits of the economic capacity and development of the state.

Right to Speedy Trial

 It is not mentioned as a specific Fundamental Right in the constitution. The Criminal Procedure Code does not guarantee specifically any right to speedy trial. In the case of Hussainara Khatoon[24] case, the Supreme Court has provided liberty to poor persons to apply to the state for free legal services and it shall be the duty of the state to provide assistance to such poor persons and have their claims adjudicated without burden of legal fees and expenses. Right to free legal aid has been held to be the fundamental right and it is the duty and obligation of any trial court to inform the accused about his right to free legal aid. The right to speedy trial has also been held as inalienable right of every citizen of the country.

  Sexual Harassment

The Supreme Court in the Vishakha Case[25] has laid down important guidelines to protect and prevent any kind of sexual harassment of a woman at workplace. Where after the legislature has also promulgated Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It not only violates Article 21 but also attracts Article 14,15 and 19(1)(g) and 32 of the Constitution.There are many other rights which are covered under the ambit of Article 21 of the Constitution.


This right is the heart of the Constitution. The frontiers of Article 21 are still expanding and its new dimensions are still being explored. Article 21 is not about itself but it covers other Articles within it. It connects all the dots with other Articles from case to case basis when someone’s right related to life and personal liberty is been infringed. It also exists by virtue of human beings. The right is still not absolute but Courts are trying to expand the scope and the application in each and every aspect.

[1] AIR 1950 SC 27: 1950 SCR 88

[2] AIR 1978 SC 597 : (1978) 1 SCC 248

[3] AIR 1981 SC 746, 753 : (1981) 1 SCC 608

[4] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 : (1985) 3 SCC 545

[5] Satwant Singh v. Assistant Passport Officer New Delhi, AIR 1967 SC 1836 : (1967) 3 SCR 525

[6] Francis Coralie v. Delhi, AIR 1981 SC 746, 753 : (1981) I SCC 608

[7] Bandhua Mukti Morcha v. UOI, AIR 1984 802, 1984 SCR (2) 67

[8] Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 : (1964) 1 SCR 332

[9] Govind v. State of Madhya Pradesh, AIR 1975 SC 1378

[10] Roe v. Wade, the matter was very widely discussed in the US Supreme Court.

[11] Surajit Singh Thind v. Kanwajit Kaur, AIR 2003 P&H 353

[12] People’s Union for Civil Liberties v. UOI, AIR 1991 SC 207, 211

[13] Justice KS Puttaswamy (Retd) v. UOI, Writ Petition (Civil) no. 494 of 2012 vide order and judgment dated 24th August, 2017.

[14] 1954 AIR 300, 1954 SCR 1077

[15] AIR 1963 SC 1295 : (1964) 1 SCR 332

[16] Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 : (1973) 1 SCC 20

[17] Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916 : (1979) 3 SCC 646

[18] Machhi Singh v. State of Punjab, AIR 1983 SC 947 : (1983) 3 SCC 470

[19] P Rathinam v. UOI, AIR 1994 SC 1844 : (1994) 3 SCC 394

[20] Maruti Shripati Dubal v. State of Maharashtra, AIR 1987 (1) BomCR 499, (1986) 88 BOMLR 589

[21] Gian Kaur v. State of Punjab, AIR 1996 SC at 953

[22] Miss Mohini Jain v. State of Karnataka and Ors, 1992 AIR 1858, 1992 SCR (3) 658

[23] Unni Krishnan v. State of Andra Pradesh and Ors, AIR 1993 2178, 1993 SCR (1) 594

[24] Hussaina Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360

[25] Vishaka v. State of Rajasthan, AIR 1997 SC 3011 : (1997) 6 SCC 241

[26]  MP Jain, Indian Constitutional Law






This article is authored by Pratibha Vyas, student at the Lloyd Law College, Greater Noida.

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