This is transcript of video lectures from the series of [[15 Video Lectures on Indian Constitution]] **Navigate to other lectures in this series:** [[Introduction to Indian Constitution]] | [[Constituent Assembly Debates]] | [[Preamble of Indian Constitution]] | [[Citizenship in India]] | [[Right to Equality]] | [[Reservation Policies and Indian Constitution]] | [[Freedom of Speech & Expression]] | [[Right to Life and Personal Liberty]] | [[Freedom of Religion]] | [[Rights of Minorities]] | [[Directive Principles]] | [[Fundamental Rights, Directive Principles & Fundamental Duties’ Relationship]] | [[Union Executive Powers & Position of President & Prime Minister]] | [[Indian Judiciary]] | [[Constitutional Amendments & the Basic Structure Theory]] # Chapter 8 - Lecture 8 By Prof. (Dr.) Faizan Mustafa Namaskar, welcome to online course on Indian Constitution offered by NALSAR University of Law and sponsored by Ministry of Law and Justice Government of India. Today we are going to talk about the most important of all rights, the right to life and personal liberty. Now why right to life and personal liberty is so important? Right to life and personal liberty is rightly said to be the heart of fundamental rights. Because only when you are alive you can exercise other rights. If you are dead you cannot exercise your right to speech. If you are dead you cannot practice or propagate any religion. If you are dead you don't need equality. So first of all your life must be protected and guaranteed. Then only you can exercise other rights. Therefore right to life and personal liberty is indeed the heart of fundamental rights. Now this right is the pre-module right which every human being anywhere in the world at all times ought to have. This is a natural right, basic right, it has been included in universal declaration of human rights and all other international covenants. And this is an inelienable right. You do not have a right to eliminate your life or extinguish your life or you take away your life. Now right to life and personal liberty did find a reference in Magna Carta of 1250. Now Magna Carta is said to be the first major document. Of course Magna Carta largely guaranteed just the procedural rights. Nevertheless we need to understand its importance. Magna Carta was basically giving rights to the balance, to the elite. And Magna Carta within no time was revoked by the Pope because the then Pope said that King John's consent for Magna Carta was not a free consent. Still one must concede that it was a mild stone in the history of rights. And what did Magna Carta say that no man shall be taken or imprisoned or diseased or outlawed or banished or anyways destroyed. Nor will the king pass upon him or commit him to prison unless by the judgment of his peers or the law of the land. It was a mild stone. It is guaranteeing rule of law. It is guaranteeing rights of the arrested people. It is guaranteeing right not to be condemned without the due process of law. So what is the significance of Article 21 which in India in our constitution guarantees right to life and personal liberty. The state itself was brought into existence for protection of life and properties. Therefore the very reason of creating a state if you go by the social contract theory was that people's lives are to be protected and their properties are to be protected. Article 21 is important because it protects the sanctity of human life. Life of each and every human being is precious. Article 21 embodies constitutional value of supreme importance in a democratic society. Human life is impossible without protection of life and personal liberty. Now if you look at the drafting history of Article 21 originally it was Article 15 and it was debated in our Constituent Assembly on 6th and 13th of December 1948. There was a difference of opinion amongst the members because we had an option of including due process of law which is an American doctrine. But many members in the Constituent Assembly felt due process doctrine is vague. It gives too much of powers to the judges and therefore to bring in certainty in our constitution we opted for procedure established by law which is inspired by the Japanese constitution. So the original Article 15 said no person shall be deprived of his life or personal liberty except according to procedure established by law. Nor shall any person be denied equality before the law or equal protection of laws within the territory of India. So right to equality and right to life and personal liberty were initially clapped together. Subsequently they were separated and the second part of draft Article 15 finally became Article 14 and the first part became Article 21 and what does Article 21 say? No one shall be deprived of his life or personal liberty except according to the procedure established by law. We have discussed earlier that there are fundamental rights which we have guaranteed only to citizens. Article 19 writes here in 21 just like Article 14 write to equality we are giving this right not only to our citizens but even non-citizens. Even foreigners will have a right to life and personal liberty in India. What is the meaning of life? What is life? Life does not mean mere animal existence. If you are just allowed to survive and breed that is not life. Life extends to all those limbs and faculties by which life is enjoyed. In many Kagandhi verses Union of India 1978, judgment of the Supreme Court it was held right to life is not confined to physical existence but it includes right to life with human dignity. This is important. Right to life is not mere animal existence. It includes right to live with human dignity and whatever is required for human dignity must be guaranteed. And then Managagandhi further held that all that goes with it namely 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 etc. They are all part of right to live with human dignity and they are part of right to life and personal liberty. They are included within the expression life. Right under Article 21 as I already told you is available only to natural citizens. In Article 14 we had discussed even companies are entitled to equality but companies cannot have a life like human beings. So this is a right available to natural persons and of course I told you even non citizens. In all that tell this verses Bombay Municipal Corporation 1985 judgment of the Supreme Court it was held right to life includes right to livelihood. You must have means of livelihood then only you can sustain life. Many a times we come across a situation where somebody is injured in an accident. He is taken to the private hospital unless you make a payment the hospitals refuse to start treatment. In Pashim Banga Ket Masdur Samithi was a state of West Bengal it was held by the Supreme Court that right to health is included within right to life and personal liberty and right to emergency medical aid even in private hospitals. So generally the address of rights is a state. Generally you can move in rich jurisdiction against state but when it comes to right to health the private medical colleges hospitals too must start your treatment immediately because it is part of your right to life. There are series of cases which were filed by MCMATA in one such case in 1987 Supreme Court held right to unpolluted environment is part of right to life. Of course if air is not clean if you have pollution all over you can't get oxygen then your life is either going to be shortened or may even come to an end right to shelter is included within right to life. In only Krishna verses state of Andhra Pradesh 1993 judgment of Supreme Court Supreme Court said right to education of children till 14 years of age is also included within right to life. Of course this was one of the directive principles as well but remember higher education is not included in the new education policy which the government recently launched there are possibilities of expanding this right to include even higher education. In 2002 86 amendment of the constitution was made and article 21 A was inserted which now guarantees as a fundamental right as a part of right to life free education for children between the ages of 6 to 14 and subsequently to implement this constitutional mandate. The right of children to free and compulsory education RTE Act was passed in 2009 right to reputation is included within right to life we discussed it in the freedom of speech lecture defamation is a restriction on freedom of speech why it is a restriction because somebody else have a right to reputation. Similarly right to free an SPD trial is implicit within article 21 why because justice delayed is just denied of course justice harried is just is buried but we have huge backlog of cases and therefore we don't get SPD trial. Now Supreme Court has said getting SPD trial getting a fair trial are very much part of right to life and personally but in image Huskot versus state of Maharashtra Supreme Court said right to legal aid is also part of right to life. And in Ramdev versus home secretary right to sound sleep there was a protest going on in Ramlila madan and then there was a police raid in the night Supreme Court said right to sound sleep is very much part and parcel of right to life and personally but in. Now what is not included in right to life there is a famous case of Supreme Court P Ratinam versus Union of India where Supreme Court is strangely held that right to life includes right to die they also quoted my article at number of places in this judgment. So, this judgment was overruled rightly overruled in Gyan Kaur versus state of Punjab in 1996 so no one has a right to take his or her own life right to life does not include right to die right to vote is not included with an article 21. Right to property is not included with an article 21 therefore, if somebody is displaced due to land acquisition he cannot claim a right under article 21 right to revision of pay all the time government employees keep asking that our salaries are low and they be revised there is no right to revision of pay. There is no right to minimum support price MSP under article 21 for the crops lot of debate is going on on MSP. Now let us come to personal liberty what is personal liberty the expression liberty in American constitution is given much wider meaning and it is said word liberty takes in all the freedoms. So, liberty is not confined just to bodily restraints and extends to full range of activities which an individual is free to pursue. In our article 21 this word liberty is preceded by another word what is that word personal right to life and personal liberty what article 21 says no one shall be deprived of his life or personal liberty. Now it is argued that since this word personal comes before liberty does that mean that Indian guarantee of liberty is narrower compared to American right to liberty in collapsing versus state of UP it was an interesting case. This man was involved in some daquiti when he was released the police will come in the night make domicillary visit knock his door to find out whether collapsing is in the house or not and collapsing challenged those rules of code of criminal procedure saying that they are not allowed to go to the house. So, they are violating my right privacy my right to liberty and here Supreme Court said personal liberty is not confined just to a personal right not to be subjected to imprisonment arrest or other physical coercion in any manner that does not admit of legal justification. Whether it includes all liberties of man not included in article 19 clause one you know article 19 clause one is called charter of liberty number of rights are guaranteed there freedom of speech freedom to form association or unions right to move freely throughout the territory of India freedom of trade and occupation or business. Here Supreme Court said whatever is not included in article 19 is included in article 21 therefore article 19 talks of specific liberties an article 21 talks of residual liberties in many Kaganadi versus union of India Supreme Court said expression personal liberty is of widest amplitude and the law of freedom. So, what is included in personal liberty we had a leading case in 2017 on right to privacy in justice came to Swami versus union of India so Supreme Court said right to privacy is the part of constitutional core of human dignity. It is included within article 21 the court said even silences of the constitution are important therefore even though right to privacy is not mentioned in article 21 yet it is part of 21 of course like any other fundamental right right to privacy is not an important thing. But privacy is important because it is part of personal liberty and part of human dignity thus even a women of easy virtue is entitled to right to privacy telephone tapping will be a violation of right to privacy. But if somebody is HIV positive and the doctor discloses his status to the would be wife it will not be treated as violation of right to privacy right to travel abroad is part of personal liberty right of prisoner to write a book is part of personal liberty. He also has a right to socialize with family members hand-cuffing of the accused is permitted only in extraordinary situations passive euthanasia I just told you right to die is not there. P. Ratinam judgment was wrong. Gyan Kaur Akoopa is the field today but if somebody is suffering from an incurable disease and is in vegetative state then passive euthanasia can be opted for right to choose a spouse whom you want to marry is definitely included within right to privacy. So, I will give you personal liberty right to compensation in Rudhal's or versus state of behar Supreme Court said even while exercising rich jurisdiction for the violation of article 21 compensation can be avoided. So, the remarkable new development because generally in rates orders are issued but here compensation was given delay in execution you have been given death sentence but you have not yet been executed. So, all the time you are having the horror of death Supreme Court said delay in execution is violative of right to life and personal liberty. Rajasthan High Court in one case said there should be public hanging the matter went to the Supreme Court and Supreme Court said public hanging would be cruel punishment in human punishment and therefore it is violative of right to life. Right to electricity right to pollution free water are also included within article 21 because you cannot enjoy your life if you do not get water and do not get electricity. What is the meaning of procedure established by law? We understood what is life what is personal liberty now this is the third major expression in article 21 procedure established by law means procedure established by statute or prescribed by law. This procedure must be under valid law. We are discussed in the beginning of this lecture that deliberately the framers of the constitution did not adopt due process doctrine for our right to life and personal liberty because it is a wider expression because court would then examine the justness and fairness of law and the subject of law. And the certainty of law will be a casualty. So, initially in AK Gopalan versus state of Madras 1950 judgment of our Supreme Court, Supreme Court said procedure established by law means nothing more than the procedure enacted by the state. So, if a state has passed the law that law takes away somebody's life or liberty it is enough. So, Supreme Court said in Gopalan that procedure established by law does not include due process of law. But 28 years later in Manikagandhi, Supreme Court said it is not enough that there is a law which has provided a procedure for deprivation of right to life or personal liberty. But that law must also be just fair, reasonable, non-arbitrary, fanciful or oppressive. So, merely if you have a law your procedure established by law requirement is not met. If that law does not meet the requirement of due process. So, in a way due process has come back through activist judiciary. What is the relationship between article 40 in 19 and 21? Article 14 talks of right to equality, Article 19 talks of freedom of speech and expression, an article 21 talks of right to life and personal liberty. In a Gopalan case it was held that these articles are not interrelated but they are exclusive. So, article 19 is not applicable to preventive detention. In Manikagandhi in 1978 Supreme Court said they are interconnected and ought to be read together. In recent privacy judgment also Supreme Court said rights are not to be read in silos. So, now we have to read 14, 19, 21. Since in article 14 we talked of reasonableness, in 19 we talked of reasonableness, the requirement of reasonableness will come in 21 as well. So, when can right to life and personal liberty be suspended? Every nation at times has to declare emergency. So, article 352 provides emergency can be declared when security of India is threatened by armed rebellion or war or external aggression. Earlier word internal disturbance was also there. On the basis of which in 1975 emergency was declared now that expression has been dropped. So, article 358 says if there is such an emergency all the rights under article 19 get automatically suspended. In respect of other rights other than article 19 writes article 359 says that right to move to the court can be suspended during emergency through a presidential order. I just told you in 1975 Mrs. Indra Gandhi imposed national emergency and suspended article 21 because right to move to the court was suspended. And when many people against illegal detentions moved to the court for heaviest corpus the supreme court in ADM Jabalpur was a shifkan shukla said that they can't do anything because if right to move to the court is suspended or article 21 is suspended then the rate of heaviest corpus cannot lie. Since right to life is sacred the 44th amendment of the constitution brought in a major change by making article 21 an article 20 which talks of three rights right against exposed factor laws. So, you cannot have retrospective operation of criminal laws right against double jupadi for the same crime you cannot be punished twice and right against self incrimination this article 20 an article 21 right to life and personal liberty after the 44th amendment are now non-derogable rights and they cannot be suspended even during emergency. Now, let us come to the Adhaar judgment there has been quite a debate and a controversy about Adhaar originally it was under an executive order subsequently in 2016 Adhaar act was passed. What is Adhaar? Adhaar is a very fiable 12 digit identification number which is issued by unique identification authority of India. Remember Adhaar is not proof of citizenship it is a proof of residence number of people went to the supreme court challenging constitutionality of the Adhaar act the court initially referred the matter of privacy to the 9th judgment to which we made a reference and subsequently this matter came to be decided. So, we have a very good constitutionality of the Adhaar act and the supreme court upheld the Adhaar act barring few provisions on disclosure of personal information cognizance of offenses and the use of Adhaar ecosystem by private corporations. This while Adhaar act was upheld supreme court quashed the circular of March 23 2017 which mandated linking of mobile number with Adhaar as unconstitutional because the court said it is not backed by any law. But the court clearly held Adhaar does not violate right to privacy of course by the majority of vote 1. The court said architecture of Adhaar as well as provisions of Adhaar act do not tend to create what is called a surveillance state. So, what protection is available to those who are arrested or detained. Article 22 says no person is to be arrested without being informed as soon as maybe of grounds for such arrest. Nourishal he be denied the right to consult and to be defended by a legal practitioner of his choice. We just discussed that personal liberty is beyond just bodily restraints but here specifically Article 22 is addressing the questions of arrest. Now, laworing as a profession is mentioned in Article 22 is strangely no other profession is mentioned in the Constitution of India. And then Article 22 says that anyone who is arrested is to be produced before the nearest magistrate within 24 hours. Now, these rights right to legal representation, right to be informed of grounds of arrest, right to be produced before a magistrate within 24 hours are not available to two category of persons. One enemy alien if there is an alien a foreigner who is at war with our country or whom our government has declared as the enemy, we will not give this protection to them. Similarly to those who are arrested under preventive detention laws like NSA National Security Act or unlawful activities prevention act or in 1975 many people were arrested under MISA. Now, these preventive detention laws are justified because prevention is better than cure. So, the man has not yet committed the crime but he is detained or arrested prior to the commission of the crime. We have seen in the context of HIV AIDS that prevention is the only cure and right now we are experiencing in COVID-19. The prevention is the cure and therefore we must not go out without all the safety protocols and always keep our mask on. So, no detention article 22 says beyond three months except on the recommendation of an advisory board consisting of members who are or have been or are qualified to be appointed as high court judges. 44th amendment in 1978 further tried to humanize preventive detention laws but this amendment has not yet been notified. So, what did we learn today? Right to life and personal liberty is the most precious and most important fundamental right. American due process clause which was not there originally in our constitution has now been judiciously incorporated by the judgements of the court. In the next lecture we will talk about another very important fundamental right freedom of religion. Thank you very much. ---  *Disclaimer: I am not asserting any claim over this content. The content is entirely from the Ministry of Law & Justice and NALSAR University of Law's joint online course on the Indian Constitution. My effort has been to make the transcript available for people like myself who prefer to read or quote it rather than to listen. This is part of my public self-archiving project. For more details, see [notes.daktre.com](https://notes.daktre.com) or [daktre.com](https://daktre.com).*