Constitutional

Law Project
Protection of Life and
Personal Liberty
Article 21
Submitted to :- Submitted by:-
Dr. Shruti Bedi Akshat Mittal
185/12
Acknowledgment
I humbly express my sincere gratitude to Dr. Shruti Bedi,
My Constitutional Law Teacher, who has aptly guided
us and helped us in competing the project.
I am whole heartedly thankful to
My Teacher
Akshat Mittal
I N D E X
Topic Covered Page Number
Article 21: In Brief 1
Right to Life: An Introduction 2
Right to Life with Human Dignity 3
Right to Reputation 4
Right against Sexual Harassment at Workplace 5
Right to Livelihood 5
Right to Shelter 7
Right to Clean Environment 8
Right to Education 9
Right to be Informed 10
Right to Social Security & Protection of Family 10
Right to Health & Medical Aid 10
No Right to Die or Commit Suicide 11
Euthanasia 12
Death Penalty 13
Right to Personal Liberty 13
Right to Privacy 15
Right to Privacy & Telephone Tapping 15
Right to Privacy & Disclosure of Dreadful Disease 16
Right to Go Abroad 16
Right against Illegal Detention 16
Article 21 & Prisoner Rights 17
Right to Free Legal Aid & Right to Appeal 18
Right to Speedy Trial 18
Right to Bail 20
Right to Fair Trial 21
Right against Handcufng 21
Right against Solitary Confnement 21
Right against Custodial Violence 22
Death by Hanging not Violative of Article 21 22
Right against Public Hanging 22
Right against Delayed Execution 23
Miscellaneous Rights Recognised to Prisoners 23
Compensation for Violation of Article 21 24
Procedure Established by Law 24
Interrelation between Articles 21, 19 & 14 25
Right to Education 26
Bibliography 28
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 supreme
importance in a democratic society.
1
Iyer, J., has characterized Article 21 as the procedural
magna carta protective of life and liberty.
2
This right has been held to be the heart of the
Constitution,
3
the most organic and progressive provision in our living constitution, the
foundation of our laws.
4
Article 21 can only be claimed when a person is deprived of his life or personal
liberty by the State as defned in Article 12. Violation of the right by a private individual is
not within the preview of Article 21.
5
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
Constitution of Japan, 1946.
6
Article 21 Applies to natural persons. The right is available to every person, citizen or
alien. Thus, even a foreigner can claim this right.
7
It, however, does not entitle a foreigner the
right to reside and settle in India, as mentioned in Article 19 (1) (e).
8
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
I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861.
4
Rajneesh Kapoor v. Union of India, AIR 2007 MP 204.
5
Bombay Dyeing & Mfg. Co. v. By. EA Group, AIR 2006 SC 1489.
6
Majumdar, P.K., Kataria, R.P., Commentary on the Constitution of India, 10
th
Ed., Vol. 1, Orient Publishing
Company, Allahabad, 2009, p. 928.
Page | 1
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 persons animal
existence but a quality of life. In the case of Kharak Singh v. State of Uttar Pradesh,
9
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 arm or 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,
11
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 persons tradition, culture, heritage and all that gives
meaning to a mans life. It includes the right to live in peace, to sleep in peace and the right to
repose and health.
In P. Rathinam v. Union of India,
12
the Supreme Court defned Life as follows:
the right to live with human dignity and the same does not connote continued
drudgery. It takes within its fold some of the fne graces of civilization which makes life
worth living and that the expanded concept of life would mean the tradition, culture and
heritage of the person concerned.
In Olga Tellis,
13
the Supreme Court has emphasized that the term life in Article 21 is
not only restricted to mere animal existence of a person. It means something more and the
inhibition against the deprivation of life extents to all those limits and faculties by which life is
enjoyed.
7
O. Konavalov v. Commander Coast Guard Region, (2006) 4 SCC 1489.
8
Cherchi Domenico Ferdinando v. Union of India, AIR 2004 Del. 147.
9
AIR 1963
SC 1295.
10
(1877) 94 US 113.
11
AIR 1978 SC 1675.
12
(1994) 3 SCC 394: AIR 1994 SC 1844.
13
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
Page | 2
In D.B.M. Patnaik v. State of Andhra Pradesh,
14
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.
In Akhtari Bi v. State of Uttar Pradesh,
15
the Supreme Court has recognized the right of a
child of 3 years to parental care, love and afection. The court ruled that depriving the child of
the right was not only against the interests of the child but against the interest of the society as
well.
Right to Life with Human Dignity
As already discussed Right to Life is not only confned to physical existence but
includes within its ambit the right to live with human dignity.
In Francis Coralie v. Union Territory of Delhi
16
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
ofcer.
In Peoples Union for Democratic Rights v. Union of India,
17
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 benefts
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 benefts, 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.
14
AIR 1974 SC 2094.
15
AIR 2001 SC 1528.
16
AIR 1981 SC 746.
17
AIR 1982 SC 1473.
Page | 3
In Chandra Raja Kumar v. Police Commissioner Hyderabad,
18
it has been held that
the right to life includes right to life with human dignity and decency and, therefore, holding
of beauty contest is repugnant to dignity or decency of women and ofends Article 21 of the
Constitution only if the same is grossly indecent, scurrilous, obscene or intended for
blackmailing. The government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition
Act, 1956.
In State of Maharashtra v. Chandrabhan,
19
the Court struck down a provision of
Bombay Civil Service Rules, 1959, which provided 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 ground that it was
violative of Article 21 of the Constitution.
Right to Reputation
The Supreme Court referring to D.F. Marion v. Minnie Davis,
20
in Smt. Kiran Bedi
v. Committee of Inquiry,
21
held that good reputation was an element of personal security and
was protective by the Constitution, equally with the right to the enjoyment of life, liberty and
property. The court afrmed that the right to enjoyment of life, liberty and property. The
court afrmed that the right to enjoyment of private reputation was of ancient origin and was
necessary to human society. The same American Decision has also been referred to in the
case of State of Maharashtra v. Public Concern of Governance Trust,
22
where the court
held 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.
In State of Bihar v. Lal Krishna Advani,
23
a two member commission of inquiry
appointed to inquire into the communal disturbances in Bhaglapur district on 24
th
October,
1989, made some remarks in their report, which impinged upon the reputation of the
respondent as a public man, without afording him an opportunity of being heard. The apex
court ruled that it was amply clear that one was entitled to have and preserve ones reputation
18
AIR 1998 AP 302.
19
(1983) 3 SCC 387.
20
55 American LR 171.
21
AIR 1989 SC 714.
22
AIR 2007 SC 777.
23
AIR 2003 SC 3357.
Page | 4
and one also had the right to protect it. The court further said that in case any authority ,
in discharge of its duties fastened upon it under the law, transverse into the realm of
personal reputation adversely afecting him, it must provide a chance to him to have his
say in the matter. The court observed that the principle of natural justice made it
incumbent upon the authority to give an opportunity to the person, before any comment was
made or opinion was expressed which was likely to prejudicially afect that person.
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, 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 ofends her
self-esteem and dignity.
In Vishakha v. State of Rajasthan,
24
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.
25
In Apparel Export Promotion Council v. A.K. Chopra,
26
the Supreme Court took a
serious 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 livelihood. In Re Sant Ram,
27
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 defning of the word life in
Article 21 in broad and expansive manner, the court came to hold that the right to life
24
AIR 1997 SC 3011 : (1997) 6 SCC 241.
25
See Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, p.
1235.
26
AIR 1999 SC 625.
27
AIR 1960 SC 932.
Page | 5
guaranteed by Article 21 includes the right to livelihood.
28
The Supreme Court now
implied that right to livelihood out of right to life.
In Olga Tellis v. Bombay Municipal Corporation
29
, popularly known as the
Pavement Dwellers Case a fve judge bench of the Court has fnally 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
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 afrmative 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 ofending the right to life conferred in
Article 21.
In Sodhan Singh v. New Delhi Municipal Committee,
30
the fve judge bench of the
Supreme Court held, 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 case of trade and business. The
petitioners, hawkers doing business of the pavement roads in Delhi, had claimed that the
refusal by the Municipal authorities to them to carry on business of their livelihood amounted
to violation of their right under Article 21 of the Constitution. The court opined that while
hawkers have a fundamental right under Article 19(1) (g) to carry on trade or business of
their choice, they have no right to do so in a particular place. They cannot be permitted to
carry on their trade on every road in the city. If the road is not wide enough to be
conveniently accommodate the trafc on it, no hawking may be permitted at all, or may be
permitted once a week. Footpaths, streets or roads are public property and are intended to
28
Board of Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni, AIR 1983 SC 109.
29
AIR 1986
SC 180.
30
AIR 1989 SC 1988.
Page | 6
several general public and are not meant for private use. However, the court said that the
afected persons could apply for relocation and the concerned authorities were to consider the
representation and pass orders thereon.
In MX of Bombay Indian Inhabitants v. M/s. ZY
31
held that a person tested positive for
HIV could not be rendered medically unft solely on that ground so as to deny him the
employment. The right to life includes the right to livelihood. Therefore, right to livelihood
cannot hang on to the fancies of the individuals in authority.
32
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, it is not sufcient for the executive to take
away their source of livelihood by an executive fat.
Right to work has yet not been recognised as a Fundamental Right. In Secretary, State of
Karnataka v. Umadevi,
33
the Court rejected that right to employment at the present point of
time can be included under Right to Life under Article 21.
Right to Shelter
In Shantisar Builders v. Narayan Khimlal Totame,
34
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 diference 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.
It was stated in U.P. Avas Vikas Parishad v. Friends Coop. Housing Society
Limited,
35
that 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.
In Chameli Singh v. State of Uttar Pradesh,
36
the Supreme Court emphasised on the
importance of the right to shelter as one of the basic human rights designed to ensure all
facilities to the man to develop himself as a member of a civilised society.
31
AIR 1997 Bom. 406.
32
Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101.
33
(2006) 4
SCC 1 : AIR 2006 SC 1806.
34
AIR 1990 SC 630 : (1990) 1 SCC 520.
35
AIR 1996 SC 114.
36
AIR 1996 SC 1051.
Page | 7
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.
37
Maintenance of health,
preservation of the sanitation and environment have been held to fall within the purview of
Article 21 as it adversely afects 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.
38
The following are some of the well-known cases on environment under Article 21:
39
In M.C. Mehta v. Union of India,
40
the Supreme Court ordered closure of tanneries
which were polluting water.
In M.C. Mehta v. Union of India,
41
the Supreme Court issued several guideline and
directions for the protection of the Taj Mahal, an ancient monument, from environmental
degradation.
In Vellore Citizens Welfare Forum v. Union of India,
42
the Court took cognizance of the
environmental problems being caused by tanneries which were polluting the water
resources, rivers, canals, underground water and agricultural land. The Court issued several
directions to deal with the problem.
In Milk Men Colony Vikas Samiti v. State Of Rajasthan
43
, the Supreme Court held that
the right to life means clean surrounding which lead to healthy body and mind. It
includes right to freedom from stray cattle and animals in urban areas.
In M.C. Mehta v. Union of India,
44
the Court held that the blatant and large scale
misuse of residential premises for commercial use in Delhi, violated the right to salubrious
and decent environment. Taking note of the problem the Court issued directives to the
Government on the same.
37
See Ratlam Municipality v. Vardhi Chand, AIR 1980 SC 1622.
38
L.K.
Koolwel v. State of Rajasthan, AIR 1988 Raj 2.
39
See for more case law: Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur,
Gurgaon, 2010, p. 1244.
40
AIR 1988 SC 1037 : (1987) 4 SCC 463.
41
AIR 1997 SC 734 : (1997) 2 SCC 353.
42
AIR 1996 SC 2721 : (1996) 5 SCC 647.
43
(2007) 2 SCC 413.
44
(2006) 3 SCC 399.
Page | 8
In Murli S. Deora v. Union of India,
45
the persons not indulging in smoking
cannot be compelled to or subjected to passive smoking on account of act of smokers. Right to
Life under Article 21 is afected as a non-smoker may become a victim of someone
smoking in a public place.
46
Noise pollution has also been dealt within the preview of Article 21 by the Apex
Court in In re: Noise Pollution.
47
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 artifcial 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
The Supreme Court in Bandhu Mukti Morcha v. Union Of India,
48
while interpreting
the scope of the right to life under article 21, held that it included educational facilities.
In Mohini Jain v. State of Karnataka,
49
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 dignifed enjoyment of life. The court further
observed that the right to life under article 21 and the dignity of an individual could not be
assured unless it was accompanied by the right to education. The court thus declared: the
right to education fows directly from right to life.
The Supreme Court in Unni Krishnan v. State of Andhra Pradesh
50
held that the
right to education was a fundamental right under Article 21 and that it directly fows from the
right to life.
45
AIR 2002 SC 40 : (2001) 8 SCC 765.
46
Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private Limited, New Delhi, 2008,
p. 682.
47
AIR 2005 SC 3136 : (2005) SCC 733.
48
AIR 1984 SC 802.
49
AIR 1992 SC 1858.
50
AIR 1993 SC 2178.
Page | 9
The stance taken by the Supreme Court in the feld has been refected 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. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd.,
51
observed that if democracy had
to function efectively, people must have the right to know and to obtain the conduct of afairs
of the State.
52
Right to Social Security & Protection of Family
Right to life guaranteed under Article 21 includes within its ambit the right to social
security and protection of the family.
Socio-economic rights have been said to be basic aspirations for meaningful right to
life and that the right to social security and protection of family are integral part of the right
to life.
53
The Supreme Court in LIC of India v. Consumer Education and Research Centre,
54
held
that the right to life and livelihood included the right to life insurance policies of LIC of India and
that it must be within the paying capacity and means of the insured.
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,
55
to protect the health and vigour of a worker while in service or
post-retirement.
56
In Parmananda Katara v. Union of India,
57
it was held that it is the professional
obligation of all doctors (government or private) to extent medical aid to the injured
51
AIR 1989 SC 190.
52
See Kumar, Narender, The Constitutional Law of India, 1
st
Ed., Allahabad Law Agency, Allahabad, 2009, p.
151.
53
See Regional Director, ECI Corporation v. Francis De Costa, (1993) Supp. 4 SCC 100.
54
AIR 1995
SC 1811.
55
State of Punjab v. M.S. Chawla, AIR 1997 SC 1225.
56
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922.
Page | 10
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 may be punished. No law or state action can intervene to delay and discharge
this paramount obligation of the members of the medical profession.
Also more recently in the case of Poonam Sharma v. Union of India,
58
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 ones
fundamental right under Article 21.
No Right to Die or Commit Suicide
Section 309 of the Indian Penal Code, 1860, punishes a person convicted of
attempting to commit suicide. There had been diference of opinion on the justifcation of this
provision to continue on the Statute Book.
This question came for consideration for frst time before the High Court of Bombay in
State of Maharashtra v. Maruti Sripati Dubal
59
. In this case the Bombay High Court held that
the right to life guaranteed under Article 21 includes right to die, and the honble High Court
struck down Section 309 of the IPC which provides punishment for attempt to commit suicide by
a person as unconstitutional.
In P. Rathinam v. Union of India
60
a Division Bench of the Supreme Court,
supporting the decision of the High Court of Bombay in Maruti Sripati Dubal Case, held
that under Article 21 right to life also include right to die and laid down that section 309 of
Indian Penal Court which deals with attempt to commit suicide is a penal ofence
unconstitutional.
A fve-judge Constitution Bench of the Supreme Court in Gian Kaur v. State of
Punjab,
61
overruled the decision of the Division Bench in the above stated case and has put
an end to the controversy and ruled that Section 309, IPC was neither violative of Article 21
57
AIR 1989 SC 2039.
58
AIR 2003 Del. 50.
59
(1987) CrLJ 549 Bom.
60
AIR 1994 SC 1844.
61
AIR 1996 SC 946.
Page | 11
nor Article 14. The court held that the right to life under Article 21 did not include the right
to die.
Euthanasia
Aruna Ramchandra Shanbaug v. Union of India
62
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 attending the patient. However, the decision should be taken
bona fde 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 fled 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
62
Judgment can be found at: http://www.supremecourtofndia.nic.in/outtoday/wr1152009.pdf
Page | 12
regarding the report should be given to the close relatives and the State. After hearing
the parties, the High Court can give its verdict.
Death Penalty
The Supreme Court addressed the question of constitutionality of the death penalty for
the frst time in Jagmohan Singh v State of Uttar Pradesh.
63
The facts established
premeditated murder motivated by ill-feeling nurtured for years - and the death sentence was
held proper. The Court concluded that death penalty was constitutionally permissible
provided it was imposed after a fair trial pursuant to a procedure established by law. In
rendering its decision the Court also emphasised that the discretionary judgments of the trial
Courts were subject to appellate review.
In Bachan Singh v. State of Punjab,
64
the Supreme Court explained that Article 21
recognised the right of the State to deprive a person of his life in accordance with just, fair
and reasonable procedure established by valid law. It was further held that death penalty
awarded under Section 302 of IPC did not violate basic feature of the Constitution.
In Allauddin Mian v. State of Bihar,
65
the Supreme Court referred to their earlier
pronouncements and held that death sentence should be reserved for the rarest cases
which are of exceptional nature.
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 confnement within bounds of a prison. In other words, it means
not only freedom from arrest or detention, from false imprisonment or wrongful confnement, 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 rights
of a person which go to make up the personal liberty of a man.
66
63
AIR 1973 SC 947.
64
AIR 1980 SC 898.
65
AIR 1989 SC 1456.
66
Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010, p.
1190.
Page | 13
In A.K. Gopalan v. State of Madras,
67
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 qualifed 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 confnement.
This judgement was followed by Kharak Singh v. State of Uttar Pradesh,
68
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 persons
home and the disturbance caused to him thereby violated his right to personal liberty
enshrined in Article 21.
In Maneka Gandhi v. Union of India,
69
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
67
AIR 1950 SC 27.
68
AIR 1963 SC 1295.
69
AIR 1978 SC 597.
Page | 14
aspect of the right to personal liberty are discussed in the various facets of personal liberty
that follow.
Right to Privacy
Privacy has been defned as the state of being free form intrusion or disturbance in
ones private life and in afairs.
70
In R. Sukhanya v. R. Sridhar,
71
Court held publication of matrimonial proceedings,
meant to be conducted in camera, as invasion of right of privacy and more importantly the
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.
In Malak Singh v. State of Punjab,
72
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.
In R. Rajagopal v. State of Tamil Nadu,
73
the Supreme Court has asserted in recent
times the right to privacy has acquired constitutional Status; it is implicit in the right to life
and liberty guaranteed to the citizens by Article 21.
Right to Privacy & Telephone Tapping
In Peoples Union for Civil Liberties v. Union of India,
74
the Supreme Court
explained that the right to hold a telephone conversation in privacy from ones home or
70
Distt. Registrar & Collector v. Canara Bank, (2005) 1 SCC 496.
71
AIR 2008 Mad. 244.
72
AIR 1981 SC 760 : (1981) 1 SCC 420.
73
AIR 1995 SC 264.
74
AIR 1997 SC 568.
Page | 15
ofce, 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 Privacy & Disclosure of Dreadful Disease
In Mr. X v. Hospital Z,
75
the question before the Supreme Court was whether the
disclosure by the doctor that his patient, who was to get married had tested HIV positive,
would be violative of the patients right to privacy. The Supreme Court ruled that the right to
privacy was not absolute and might be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection of rights and freedom of others. The
court explained that the right to life of a lady with whom the patient was to marry would
positively include the right to be told that a person, with whom she was proposed to be
married, was the victim of a deadly disease, which was sexually communicable. Since the
right to life included right to healthy life so as to enjoy all the facilities of the human body in
the prime condition it was held that the doctors had not violated the right to privacy.
In another case, Mr. X v. Hospital Z,
76
the Court ruled that there no violation of the
right to privacy tests conducted on aborted foetus.
Right to go Abroad
In the case of Satwant Singh v. Assistant Passport Ofcer, New Delhi,
77
the
Supreme Court has included Right to travel abroad contained in by the expression personal
liberty within the meaning of Article 21.
The same was also resonated in the case of Maneka Gandhi v. Union of India,
78
the
court 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
In Joginder Kumar v. State of Uttar Pradesh,
79
the petitioner was detained by the
police ofcers and his whereabouts were not told to his family members for a period of fve
75
AIR 1999 SC 495.
76
AIR 2003 SC 664.
77
AIR 1967 SC 1836.
78
AIR 1978 SC 597.
79
AIR 1994 SC 1349.
Page | 16
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 ofcer 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.
In the case of D.K. Basu v. State of West Bengal,
80
the Supreme Court laid down
detailed guidelines to be followed by the central and state investigating agencies in all cases
of arrest and detention till legal provisions are made in that behalf as preventive measures and
held that any form of torture or cruel inhuman or degrading treatment, whether it occurs
during interrogation, investigation or otherwise, falls within the ambit of Article 21.
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
deprived of his life and personal liberty except by a procedure established by law.
81
In Maneka Gandhi v. Union of India,
82
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 convicted of crime and deprived of their liberty in accordance with the procedure
80
AIR 1997 SC 610.
81
Pandey, J.N., The Constitutional Law of India, 47
th
Ed., Central Law Agency, Allahabad, 2010, p. 269.
82
AIR
1978 SC 597.
Page | 17
established by law. Article 21, has laid down a new constitutional and prison jurisprudence.
83
The rights and protections recognised to be given in the topics to follow.
Right to Free Legal Aid & Right to Appeal
In M.H. Haskot v. State of Maharashtra,
84
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; frstly, service of a copy of a judgement to the prisoner in
time to enable him to fle 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 ofence
punishable with imprisonment is entitled to be ofered legal aid, if he is too poor to aford
counsel. Counsel for the accused must be given sufcient time and facility for preparing his
defence.
85
Breach of these safeguards of fair trial would invalidate the trial and conviction.
86
Right to Speedy Trial
As stated in Moses Wilson v. Karluriba,
87
a procedure cannot be reasonable, fair and
just unless it ensures a speedy trial for determination of the guilt of the person deprived of his
liberty.
It was observed in Maneka Gandhi v. Union of India,
88
that No procedure which does
not ensure a reasonably quick trial can be regarded as reasonable, fair and it would fall foul on
Article 21.
In Hussainara Khatoon v. Home Secretary, State of Bihar,
89
it was brought to the
notice of the Supreme Court that an alarming number of men, women and children were kept
in prisons for years awaiting trial in courts of law. The Court took a serious note of the
83
See Kumar, Narender, The Constitutional Law of India, 1
st
Ed., Allahabad Law Agency, Allahabad, 2009, p.
158.
84
AIR 1978 SC 1548.
85
See Kashyap, Subhash C., Constitutional Law of India, Vol. 1, Universal Law Private Limited, New Delhi, 2008, p.
677.
86
Sukh Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 : (1986) 2 SCC 401.
87
AIR 2008
SC 379.
88
AIR 1978 SC 597.
89
AIR 1979 SC 1360.
Page | 18
situation and observed that it was carrying a shame on the judicial system which permitted
incarceration of men and women for such long periods of time without trials.
In Hussainara Khatoon v. Home Secretary, State of Bihar,
90
the Court held that
detention of under-trial prisoners, in jail for period longer than what they would have been
sentenced if convicted, was illegal as being in violation of Article of 21. The Court, thus,
ordered the release from jail of all those under-trial prisoners, who had been in jail for longer
period than what they could have been sentenced had they been convicted.
In A.R. Antulay v. R.S. Nayak,
91
a Constitution Bench of fve judges of the Supreme
Court dealt with the question and laid down certain guidelines for ensuring speedy trial of
ofences some of them have been listed below:
92
Fair, just and reasonable procedure implicit in Article 21 creates a right in the
accused to be tried speedily.
Right to speedy trial fowing from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry, appeal, revision and retrial.
The concerns underlying the right of speedy trial from the point of view of the
accused are:
o The period of remand and pre-conviction detention should be as short
as possible.
o The worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, enquiry or trial
should be minimal; and
o Undue delay may well result in impairment of the ability of the
accused to defend him.
While determining whether undue delay has occurred, one must have regard to
all the attendant circumstances, including nature of ofence, number of
accused and witnesses, the workload of the court concerned.
Each and every delay does not necessarily prejudice the accused.
An accusers plea of denial of speedy trial cannot be defeated by saying that
the accused did at no time demand a speedy trial.
90
AIR 1979 SC 1369.
91
AIR 1992 SC 1701.
92
See for complete guidelines: Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur,
Gurgaon, 2010, p. 1200.
Page | 19
The Court has to balance and weigh the several relevant factors - balancing
test or balancing processes - and determine in each case whether the right to
speedy trial has been denied in a given case.
An objection based on denial of right to speedy trial and for relief on that
account should frst be addressed to the High Court. Such, proceedings in the
High Court must be disposed on a priority basis.
In the case of Anil Rai v. State of Bihar,
93
the Supreme Court directed the Judges of
the High Courts to give quick judgements and in certain circumstances the parties are to
submit application to the Chief Justice to move case to other bench or to do the needful at his
discretion.
Right to Bail
The Supreme Court has diagnosed the root cause for long pre-trial incarceration to be
the present-day unsatisfactory and irrational rules for bail which insists merely on fnancial
security from the accused and their sureties. Many of the under trials being poor and indigent
are unable to provide any fnancial security. Consequently they have to languish in prisons
awaiting their trials.
94
But incarceration of persons charged with non-bailable ofences during
pendency of trial cannot be questioned as violative of Article 21 since the same is authorised
by law.
95
In the case of Babu Singh v. State of Uttar Pradesh,
96
the Court held that right to bail
was included in the personal liberty under Article 21 and its refusal would be deprivation of
that liberty which could be authorised in accordance with the procedure established by law.
Anticipatory bail is a statutory right and it does not arise out of Article 21.
Anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of
right as it cannot be considered as an essential ingredient of Article 21.
97
93
AIR 2001 SC 3173.
94
Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010, p.
1204.
95
Kalyan Chandra Sarkar v. Rajesh Rajan, (2005) 2 SCC 42 : AIR 2005 SC 921.
96
AIR
1978 SC 527.
97
State of Madhya Pradesh v. Ram Krishna Balothia, AIR 1995 SC 1198 : (1995) 3 SCC 221.
Page | 20
Right to Fair Trial
Free and fair trial has been said to be the sine qua non of Article 21. The Supreme
Court in Zahira Habibullah Sheikh v. State of Gujarat
98
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.
Right against Handcufng
Hand cufng has been held to be prima facie inhuman and therefore unreasonable,
over-harsh and at frst fush, arbitrary. It has been held to be unwarranted and violative of
Article 21. In Prem Shankar v. Delhi Administration,
99
the Supreme Court struck down the
Rules which provided that every under-trial who was accused of a non-bailable ofence
punishable with more than three years prison term would be routinely handcufed. The Court
ruled that handcufng should be resorted to only when there was clear and present danger of
escape of the accused under-trial, breaking out of police control.
Right against Solitary Confnement
In Sunil Batra v. Delhi Administration,
100
the petitioner was sentenced to death by
the Delhi session court and his appeal against the decision was pending before the high court.
He was detained in Tihar Jail during the pendency of the appeal. He complained that since
the date of conviction by the session court, he was kept in solitary confnement. It was
contended that Section 30 of Prisoners Act does not authorize jail authorities to send him to
solitary confnement, which by itself was a substantive punishment under Sections 73 and 74
of the Indian Penal Code, 1860 and could be imposed by a court of law and it could not be
left to the whim and caprice of the prison authorities. The Supreme Court accepted the
argument of the petitioner and held that imposition of solitary confnement on the petitioner
was violative of Article 21.
98
AIR 2006 SC 1367.
99
AIR 1980 SC 1535.
100
AIR 1978 SC 1675.
Page | 21
Right against Custodial Violence
The incidents of brutal police behaviour towards persons detained on suspicion of
having committed crimes are a routine matter. There has been a lot of public outcry from
time to time against custodial deaths.
The Supreme Court has taken a very positive stand against the atrocities, intimidation,
harassment and use of third-degree methods to extort confessions. The Court has classifed
these as being against human dignity. The rights under Article 21 secure life with human
dignity and the same are available against torture.
In Sheela Barse v. State of Maharashtra,
101
the Supreme Court condemned violence
committed on women prisoners confned in the police lock up in the city of Bombay.
This was followed by D.K. Basu v. State of West Bengal,
102
the Supreme Court held
that torture by police struck a blow at the Rule of Law, custodial violence has been held
calculated assault on human dignity, perhaps one of the worst crimes in a civilized society
governed by rule of law. The Court held that any such acts would fall within the inhibition of
Article 21.
Death by Hanging not Violative of Article 21
In Deena v. Union of India,
103
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 35
th
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.
Right against Public Hanging
The Rajasthan High Court, by an order directed the execution of the death sentence of an
accused by hanging at the Stadium Ground of Jaipur. It was also directed that the
execution should be done after giving widespread publicity through the media.
101
AIR 1983 SC 378.
102
AIR 1997 SC 610.
103
AIR 1983 SC 1155.
Page | 22
On receipt of the above order, the Supreme Court in Attorney General of India v.
Lachma Devi,
104
held that the direction for execution of the death sentence was
unconstitutional and violative of Article 21. It was further made clear that death by public
hanging would be a barbaric practice. Although the crime for which the accused has been
found guilty was barbaric it would be a shame on the civilised society to reciprocate the
same. The Court said a barbaric crime should not have to be visited with a barbaric penalty.
Right against Delayed Execution
In T.V. Vatheeswaram v. State of Tamil Nadu,
105
the Supreme Court held that delay
in execution of death sentence exceeding 2 years would be sufcient ground to invoke
protection under Article 21 and the death sentence would be commuted to life imprisonment.
The cause of the delay is immaterial, the accused himself may be the cause of the delay.
In Sher Singh v. State of Punjab,
106
the Supreme Court said that prolonged wait for
execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only
way to undo that is through Article 21. But the Court held that this cannot be taken as the rule
of law and applied to each case and each case should be decided upon its own faces.
Miscellaneous Rights Recognised to Prisoners
Right to Escape from Imprisonment: The Supreme Court in D.B.M. Patnaik v.
State of Andhra Pradesh,
107
held that the convicts have no right to escape from
imprisonment.
Right against Bar Fetters: In Sunil Batra v. Delhi Administration,
108
the Supreme
Court gave Right against Bar Fetters and held that treatment that ofended human
dignity and reduced man to a level of beast would certainly be arbitrary and could be
questioned under Article 21, but the right is not absolute.
Right to Write a Book: In State of Maharashtra v. Prabhakar Pandurang,
109
the
petitioner while under detention in jail wrote a book on science and sought the
permission from the Government to send the manuscript of the book to his wife for
publication, to which the Government refused. The Court held that this was an
104
AIR 1986 SC 467.
105
AIR 1981 SC 643.
106
AIR 1983 SC 465.
107
AIR 1974 SC 2092.
108
AIR 1978 SC 1675.
109
AIR 1966 SC 424.
Page | 23
infringement of personal liberty and that Article 21 included the right to wright the
book and get it published.
Compensation for Violation of Article 21
In Rudal Singh v. State of Bihar,
110
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
Ofcers 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. Gopalan v. State of Madras.
111
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 specifc than the
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.
In Maneka Gandhi v. Union of India,
112
the Supreme Court overruled A.K. Gopalan
Case and held that in order to comply with the mandate of Article 21, the mere prescription
110
(1983) 4 SCC 141.
111
AIR 1950 SC 27.
112
AIR 1978 SC 597.
Page | 24
of some kind of procedure was not enough. But, the procedure must be just, fair, reasonable
and not arbitrary, fanciful or oppressive.
Again in Olga Tellis v. Bombay Municipal Corporation,
113
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 principles of natural justice.
114
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.
115
As regards the relationship between Articles 21 and 19, in A.K. Gopalan v. State of
Madras,
116
the Supreme Court held that these two Articles dealt with diferent 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 accordance with procedure established by law. The Court ruled that such a
procedure would not be required to meet the challenge of Article 19.
But in Maneka Gandhi v. Union of India,
117
the Supreme Court overruled Gopalans ruling
and held that Article 21 was controlled by Article 19. That, a procedure established by law under
Article 21 to deprive a person of his life and liberty must satisfy the requirements of Article 19
also.
113
AIR 1986 SC 180 : (1985) 3 SCC 545.
114
See Procedure: Jain, M.P., Indian Constitutional Law, 6
th
Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon,
2010, p. 1194.
115
See State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
116
AIR
1950 SC 27.
117
AIR 1978 SC 597.
Page | 25
Thus, it was held that a law depriving a person of personal liberty has not only to
stand the test of Article 21 but it must also satisfy the requirements of Articles 19 and 14.
In I.R. Coelho v. State of Tamil Nadu,
118
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 (86
th
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 notifed by the Department of
Education in the Ministry if Human Resource Development.
The term child for the purpose of Article 21-A is held to be a child who is a citizen of
India. The Kerala High Court in Zeeshan v. District Education Ofcer, Kannur,
119
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.
118
AIR 2007 SC 861.
119
AIR 2008 Ker. 226.
Page | 26
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 v. State,
120
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.
In Associated Management of (Government Recognised Unaided English Medium)
Primary and Secondary Schools in Karnataka v. State of Karnataka,
121
a full Bench of
Karnataka High Court held that by virtue of Article 21-A, the medium of instructions was to be
entirely the choice of the parents and the student and that no one could claim to know
better than the parents about the child, to decide as to what the child required in the sphere of
education, the shape the career and destiny.
120
AIR 2005 Pat. 38.
121
AIR 2008 (NOC) 2790 (Kar.).
Page | 27
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st
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th
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