Article 21 of the Indian Constitution – A Fundamental Right
Article 21 of the Constitution of India states that “No person shall be deprived of his life or his personal liberty except according to a procedure established by law.” This right applies to every person and not just to citizens. The words “life” and “personal liberty” have been interpreted in a wide manner by the Supreme Court of India. Therefore Article 21 itself is a code of rights that captures the heart and soul of the Constitution by prioritizing the freedoms of an individual and protecting them from the might of the State. The Indian constitution has a unique balance between fundamental duties in India and rights.
"Article 21 lies at the soul of the constitution of India. If any individual, including an individual not being a citizen, is aggrieved by the action of the State brought about by law under Article 13, and such action leads to a violation of the right to life and liberty of such an individual, then a writ petition can be filed under Art 32 to the Supreme court or under Art 226 to the High Court," says Advocate Pushkar Taimni.
Table of Content:
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Remedy Against Violation
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Protection of Life and Personal Liberty
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Article 226
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Article 21 A - Right to Elementary Education
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Procedure Established by Law to due process
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Frequently Asked Questions
In its expansive meaning, the words “procedure established by law” has also been interpreted in a manner to protect the life, liberty, and dignity of an individual. The expansive reading of Article 21 ushered in a new socio-economic wave of liberty that focuses on education, livelihood, shelter, and the environment. The liberal interpretation of Article 21 also focuses on the protection of liberty against police excesses and State violence. This Code of rights includes the following fundamental rights that have been interpreted to be a part of “life” or “personal liberty”:
In the Francis Coralie Mullin v. Administrator, Union Territory of Delhi [1], the Supreme Court recognized that “life” is more than just mere animal existence. The Supreme Court stated that,
“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of the human self.”
This ratio has been followed in a number of cases. Moreover, the right to live with dignity has also been recognized in cases such as Bandhua Mukti Morcha v Union of India.
The Supreme Court has recognized that the right to life under Article 21 includes the right to die with dignity. Therefore, the dignity of a person must be secured in life as well as in death. In a landmark judgment delivered in March 2018, the Supreme Court in Common Causes v. Union of India[3] recognized the right of terminally ill persons to die with dignity by refusing prolonged medical treatment.
It is the fundamental right of every citizen under Article 21 of this country to live with human dignity, free from exploitation and practice any profession to support his livelihood. The magnitude and contents of the components of this right would depend upon the extent of the economic development of the country.
A 5 judge bench of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation[4] held that the right to life includes the right to livelihood. Thereby, the court recognized the rights of the pavement dwellers and the hawkers in Bombay. However, this does not mean that the State can be held accountable for not providing livelihood through affirmative action programs and policy. This recognition of the right to livelihood only bars the state from denying the right to livelihood to any individual without any procedure established by law.
As good as this right sounds, as citizens, we must provide at least basic shelter to those who are in need and ignored by the government because no human being must be deprived of food, shelter, or water.
On multiple occasions, the Supreme Court has recognized that the Right to clean environment, sanitation, pollution-free air, and water are the fundamental rights under Article 21 of the Constitution. In M.C Mehta v. Union of India[5] and Vellore Citizens Welfare Forum v. Union of India[6], the Court recognized the pollution caused to the water bodies because of tanneries. Further, in Subhas Kumar v. State of Bihar[7], the Court recognized that pollution-free air and water are essential for the enjoyment of the right to life.
Social security is usually a State-sanctioned policy which provides for a system that provides for the social welfare of those with inadequate means. This includes the economic empowerment of the poor, disadvantaged and oppressed. It also includes sickness and disablement allowances provided to workers.
In Calcutta Electric Supply Corporation (India) v. Subhas Chandra Bose [8], it was held that the means to achieve the right to life and liberty are also an essential fundamental right under Article 21. According to the Court, ‘these means’ include the right to social security.
The constitutionality of the death penalty has been challenged multiple times. However, in Bachan Singh v. State of Punjab[15], the Supreme Court settled the question by declaring that the death penalty is a necessary evil that does not violate the Constitution. It further held that the death penalty must be provided in the rarest of rare cases to restrict arbitrary use of the power to sentence convicts to death.
This right which is a subset of Article 21 was transformed into an act known as 'Right to Information Act, 2002' allowing any citizen to request information from a public authority and bounding the governing authorities to reply within a stipulated time of 30 days.
In R.P Limited v. Indian Express Newspapers[16], it was held by the Supreme Court that Article 21 is wide enough to accommodate the essential features of a democracy such as the right to know and the right to be informed.
Solitary confinement is a form of punishment where the prisoner is confined to living alone with no meaningful contact and is confined in a closed space, at times even cut off from sunlight. In this context, it is important to realize that Article 21 applies to all persons, including convicts. There is a restriction on the liberty of convicts, yet it is not wholly denuded.
In Sunil Batra v. Delhi Administration[17], the petitioner had complained about being punished with solitary confinement since the day of his conviction by the Session Court. The Supreme Court held that Solitary confinement is violative of the convict’s right to life under Article 21 and that such kinds of punishments cannot be justified under the Prisoners Act.
In a landmark judgment, the Supreme Court in T. Vatheeswaram v. State of Tamil Nadu[18] held that delayed execution of death sentence is contrary to the idea of life under Article 21 of the Constitution. Therefore, if the execution is delayed 2 years after such a death sentence is finalized then such a sentence may be commuted. The cause of the delay is immaterial.
When the Rajasthan High Court ordered the execution of death sentence at the stadium grounds of Jaipur, the Supreme Court stepped in, in Attorney General v. Lachma Devi[19] to hold the order as violative of Article 21 by stating that “a barbaric crime should not be visited with a barbaric penalty.”
Section 5(2) of the Telegraphs Act,1885 allows for telephone tapping. However, in PUCL v. Union of India[20], the Supreme Court recognized procedural safeguards that are required for the exercise of Section 5(2) of the Act. It was held that the right to privacy is a part of the right to life and personal liberty under Article 21 and therefore telephone tapping would violate Article 21 unless due regard and just process are not followed.
In light of the past few incidents where the privacy of an individual was subject to debate by our members of the parliament, one must remember that it is one of the essential rights under personal liberty. Thus it is a part of Article 21 and it is a right to be free from restrictions or encroachments on his person whether they are imposed directly or indirectly. Though it is nowhere mentioned under the Constitution or under Article 21 or any other Article of Part IV of the constitution, an unauthorized intrusion would amount to a violation of privacy.
In Sharda v. Dharmpal[21], it was ruled that a matrimonial court has the power to direct parties to divorce proceedings can be compelled to undergo a medical examination. Such a direction is not violative of Article 21 as long as material exists to order such medical tests.
In Satwant Singh Sawhney v. Assistant Passport Officer, Delhi[22], the right to go abroad was, for the first time, recognized under Article 21 of the Constitution. The right to travel within the territory of India was distinguished with the right to go abroad. The latter was recognized as an important aspect of Article 21. However, this right to go abroad does not exist for all persons and is not to be interpreted as a positive right. This judgment only ensures that a person qualified to travel abroad cannot be arbitrarily denied this right without any procedure of law.
The cases of illegal detention mostly reach the corridor of courts when individuals being investigated are illegally confined or detained by police officers. In this regard, the Supreme Court in Joginder Kumar v. State of Uttar Pradesh[23] laid down the guidelines regarding the detention of persons. The Court recognized that illegal detention was an arbitrary denial of personal liberty by the State and was a gross violation of Article 21.
This right as a part of Article 21 reminds us of a famous dialogue: “‘Na’ sirf ek shabd nahi ek poora vaakya hai... isko kisi explanation ki zarurat nahi hoti... when said by a girl.” And to uphold this right, the Supreme Court in the State of Maharashtra vs. Madukar Narayan Mandikar (1991) stated that every woman is entitled to privacy and no one can invade her privacy as an when one likes. The Act of Rape against women is definitely a violation of her fundamental rights especially violation of her right to life with liberty as provided under Article 21 of the Indian Constitution.
This right under Article 21 of the Indian constitution covers a wide variety of rights not just for humans but also for wildlife, forests, lakes, ancient monuments, fauna-flora, unpolluted air, water, and maintenance of the ecological balance. This has been recognized by the Courts in numerous cases.
The Supreme Court has directed the Government to use only CNG vehicles as a form of public transport in Delhi and has banned the running of diesel buses in Delhi, in light of the deteriorating air quality in the Capital.
Every citizen has a right to free education under Article 21 until the minimum age of 14 years. Though we don’t get to see such rights being practiced as stated but then we must encourage those who are deprived of education, due to their economic capabilities, to study via government-aided schools and to entitle them of their right as provided under Article 21 and Article 21 A of the Indian constitution. However, the situation earlier, was that the Right to education was only a directive principle of state policy under Article 45. The Supreme Court insisted that DPSPs must be read along with fundamental rights and recognized the right to education as a fundamental right under Article 21 in Mohini Jain v. State of Karnataka 1992[24].
As good as it sounds, we all are aware of how speedy trials take place in India where dialogues like “tareekh pe tareekh” are used to mock the system. But when it comes to fair and open trials even an accused of rape or a terrorist like Kasab were given a chance to present their cases. This shows that Article 21 of the Indian Constitution is there not just for ordinary citizens but is also guaranteed to prisoners. In Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court has emphasized that the right to a speedy trial, though not mentioned explicitly, “is implicit in the broad sweep and content of Article 21.”
The Supreme Court, after a series of cases, has held that the ‘right to life’ under Article 21 of the Indian Constitution along with other fundamental rights are guaranteed to us by constitutional amplitude to cover gender equality including the Right against Sexual Harassment. The scope of Article 21 has been widened by the Supreme Court to a great extent. While declaring that sexual harassment of women at the workplace is violative of gender equality, the Supreme Court, in Vishaka v. State of Rajasthan[25] observed that “The meaning and content of the Fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including the prevention of sexual harassment or abuse”
Man being a social animal thrives on the fact that one's reputation and dignity go hand in hand for making life worth living. The Supreme Court in Kiran Bedi’s case held that a good reputation was an element of personal security and is protected by the Constitution under Article 21 of the Indian Constitution. The right to the enjoyment of private reputation was of ancient origin and was necessary to human society. In Sukhwant Singh v. State of Punjab[26] the Supreme Court reiterated that the right to reputation is a person’s valuable asset and is a facet of his right under Article 21 of the Constitution.
Not everyone can afford legal expenses when it comes to fighting long and exhausting cases in courts. In such scenarios, the government organizes legal aid camps to provide legal aid to those who are deprived or are economically weak as a right given to them under Article 21. In case an accused is not told of this right and therefore he remains unrepresented by a lawyer, his trial would be considered as an act of arbitrariness and would be subject to set aside. This right to legal aid has been recognized as a directive principle of State policy under Article 39A of the Constitution. However, the Supreme Court has also recognized this right as a fundamental right under Article 21, In fact, in Khatri v. State of Bihar[27] the Court reiterated that financial and administrative inability of the State cannot be grounds to deny free legal aid to any individual.
This right under Article 21 can be challenged by an already established law, stating that to arrive at a sentence of death is valid under CrPC. Courts are thus bound to decide whether the execution of the sentence should be carried out or should be altered into imprisonment for life.
The Supreme Court recognized that the right to livelihood is a fundamental right under Article 21 of the Constitution. However, in Olga Tellis v Bombay Municipal Corporation[28], the Court observed that “The State may not by affirmative action be compellable to provide adequate means of livelihood or work to citizens.” Therefore the right to livelihood is a fundamental right but the right to be provided work is not a fundamental right under Article 21.
In a recent decision in the case of Hadiya, a 25-year-old woman from Kerala, the Supreme Court held that the right to choose a life partner is a fundamental right. In this case, the Court set aside the order of the Kerala High Court that bestowed this right on the father of the Girl. The Supreme Court overruled on this point of law and observed that marriage is a fundamental aspect of one’s being and an adult capable of forming an independent decision has the fundamental right to choose a life partner.
Custodial torture and death is an inhumane practice that illegally and brutally punishes those that are already being punished by the law. In the landmark D.K. Basu v State of West Bengal case[29], the Supreme Court has observed that “Custodial violence including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from the law but also that the same should be limited by it”.
The three-judge bench in Sucheta Srivasata v. Chandigarh Administration, the reproductive rights of women are part of the right to privacy, dignity and body integrity of a woman. This view has been upheld by the Supreme Court in the landmark privacy judgment. In K.S Puttaswamy v Union of India, the Court specifically recognized a woman’s right to make reproductive choices as a part of the personal liberty covered under the Right to privacy under Article 21 of the Constitution.
The walls of the prison cannot exclude the applicability of the Constitution of India, particularly Article 21 of Part III of the Constitution. In the State of Andhra Pradesh v. Challa Ramakrishna Reddy[30], the Supreme Court has rightly observed that “A prisoner, be he a convict or an under trial or a detenu does not cease to be a human being. Even when lodged in jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution.” Some of the rights enjoyed by these prisoners include, right to the integrity of his physical person and mental personality, the right against solitary confinement and cruel torture, the right to approach the Courts with his or her grievance, etc.
Remedy Against Violation
With ever-growing hatred and polarisation of religious and political thoughts, one must always remember his/her rights when encountering actions taken by executive members or by someone who has violated the right of personal liberty as provided under Article 21 of the Indian Constitution.
Article 32 (Right to Constitutional Remedies) of the Constitution can be invoked by any citizen in case his/her fundamental rights have been violated by any member of the State or executive.
The provision of Article 21 and Article 21A itself being a part of the fundamental rights, cannot be denied to any citizen except in the case of State emergency (Article 359).
An application made under Article 32 in violation of the fundamental rights under Article 21 cannot be dismissed on technical grounds. Such applications can be made under any prescribed writs, and the Supreme Court shall protect these rights by providing appropriate relief as deemed fit.
We must also not forget that these rights are given to us by the State and hence, available only against the State and not against an individual, in that case, one must seek remedy under ordinary law and not under Article 21 of the Indian Constitution.
Protection of Life and Personal Liberty
Remember Ajmal Kasab, one of the terrorists who were caught during the 26/11 attacks? Despite the fact that he was a terrorist and all evidence was against him, he was given a fair trial and proper living conditions due to the Right to speedy, fair, and open trial and Prisoners Right to be served the basic necessities of life. In a series of cases, the Supreme Court has validated the rights that have been guaranteed to us by stating that any procedure established by law and enacted by the legislature should be fair, reasonable, and must be in due accordance to the law while underlining the theme that Article 14, Article 19, and Article 21 are not mutually exclusive but they coexist, empower, and support each other.
"The scope of Article 21 of the Constitution is extremely wide. The words 'life' and 'personal liberty' have been interpreted to accommodate the right to education, right to clean environment and even recognizes the rights of prisoners. These rights can only be curbed by the State through a procedure established by law and such procedure must be just, fair and reasonable," says Advocate Pushkar Taimni.
Article 226
The Supreme Court of India, often referred to as the guardian of the Constitution and the protector of the fundamental rights, have liberally interpreted Article 21 by giving the widest possible definitions to the terms ‘life’ and ‘personal liberty’. Therefore, the court strictly protects individual freedoms and also acts as a court of original jurisdiction for the violation of fundamental rights, especially for the violation of Article 21.
The relief for violation of Article 21 is in the nature of a writ. The writ jurisdiction is exercised by the Supreme Court under Article 32 and by the High Court under Article 226 of the Constitution of India.
Article 226, empowers the high courts to issue orders against any person or authority, including the government (in appropriate cases), directions, orders or writs, or any of them for the violation of Article 21 of the Constitution, as well as for violation of fundamental rights enshrined in Part III of the Constitution.
There are 5 types of writs that are the remedy provided for violation of Article 21. These are-
1. Habeas Corpus
2. Mandamus
3. Certiorari
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Means “to be certified” in latin.
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Issued by Supreme Court or High Court to quash an order of the inferior court, tribunal or public authority.
4. Prohibition
5. Quo Warranto
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Means, “by what authority?”
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Issued with a view to restraining a person from holding a public office, which he has no authority to hold.
Article 21 A - Right to Elementary Education
Article 21A of the Indian Constitution was added in the constitution in the year 2002 by way of the 86th Amendment and guarantees the Right to Elementary Education. It states that it is the right of children between 6 to 14 years to get free education. Article 21A came into effect on 1st April 2010 and if anybody violates Article 21 A of the constitution, he/she can be punished for the same.
Procedure Established by Law to due process
In A.K. Gopalan v. Union of India, “procedure established by law” was given a very narrow interpretation and limited it to a procedure as established by any statue. There was no scope to contend that laws which prescribed the procedure for deprivation of life and personal liberty should also be tested on the basis of reasonableness. Thus opposition of a law on the basis of principles of natural justice was not accepted in this case.
But later on, the courts decided in Maneka Gandhi v. Union of India that limitations have to be posted on the formation of laws that deprive individuals of life and liberty. The procedure prescribed by the law should also satisfy the test of reasonableness, justice, and fairness.
Frequently Asked Questions:
What are the types of writs?
There are 5 types of writs that are the remedy provided for violation of Article 21, that are, writ of Habeas Corpus, writ of Mandamus, writ of Certiorari, writ of Prohibition and Writ of Quo Warranto.
What are other fundamental rights apart from Article 21?
Fundamental rights in Part III of the Indian Constitution can be categorized as follows-
- Right to equality (Article 14-18)
- Right to freedom (Article 19-22)
- Right against exploitation (Article 23-24)
- Right to freedom of religion (Article 25-28)
- Cultural and Educational Rights (Article 29-30)
- Right to constitutional remedies (Article 32-35)
When was Article 21A inserted in the Constitution and by which amendment?
The Constitution (Eighty-Sixth Amendment) Act, 2002 inserted Article 21-A into the Constitution of India to provide free and compulsory education of all children between 6-14 years of age. This is a fundamental right.
[1] AIR 1981 SCC 746: Francis Coralie Mullin v. Administrator, Union Territory of Delhi
[2] (1997) 10 SCC 549: Bandhua Mukti Morcha v Union of India
[3] 2018 5 SCC 1: 2018 SCC OnLineSC 208: Common Causes v. Union of India
[4] 1985 SCC (3) 545: Olga Tellis v. Bombay Municipal Corporation
[5] 1987 SCR (1) 819: M.C Mehta v. Union of India
[6] 1996 (5) SCC 647: Vellore Citizens Welfare Forum v. Union of India
[7] AIR 1991 SC 420: Subhas Kumar v. State of Bihar
[8] 1992 AIR 573: Calcutta Electric Supply Corporation (India) v. Subhas Chandra Bose
[9] 1980 (2) SCC 684: Bachan Singh v. State of Punjab
[10] 1989 AIR 190: R.P Limited v. Indian Express Newspapers
[11] 1980 AIR 1579: Sunil Batra v. Delhi Administration
[12] 1983 AIR 361: T. Vatheeswaram v. State of Tamil Nadu
[13] AIR 1988 SC 1785: Attorney General v. Lachma Devi
[14] 1997 (1) SCC 288: PUCL v. Union of India
[15] 1980 (2) SCC 684: Bachan Singh v. State of Punjab
[16] 1989 AIR 190: R.P Limited v. Indian Express Newspapers
[17] 1980 AIR 1579: Sunil Batra v. Delhi Administration
[18] 1983 AIR 361: T. Vatheeswaram v. State of Tamil Nadu
[19] AIR 1988 SC 1785: Attorney General v. Lachma Devi
[20] 1997 (1) SCC 288: PUCL v. Union of India
[21] (2003) 4 SCC 493: Sharda v. Dharmpal
[22] 1967 AIR 1836: Satwant Singh Sawhney v. Assistant Passport Officer, Delhi
[23] 1994 AIR 1349: Joginder Kumar v. State of Uttar Pradesh
[24] AIR 1858: Mohini Jain v. State of Karnataka 1992
[25] AIR 1997 SC 3011: Vishaka v. State of Rajasthan
[26] 2009 (7) SCC 559: Sukhwant Singh v. State of Punjab
[27] AIR 1981 SC 928: Khatri v. State of Bihar
[28] AIR 1986 SC 180: Olga Tellis v Bombay Municipal Corporation
[29] AIR 1997 SC 610: D.K. Basu v State of West Bengal
[30] AIR 2000 SC 2083: State of Andhra Pradesh v. Challa Ramakrishna Reddy
