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Right to Life: Challenges & Modifications


The fundamental rights granted in part III of the Indian constitution has their roots deep in the struggle of independence. They were indelibly written in the subconscious memory of the race which fought for nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when constitution was enacted. The fundamental rights are nothing, but values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every individual can develop its personality to the fullest extent.

Article 21 of the Indian Constitution states:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 though coughed in negative language, confers the basic fundamental right to life and personal liberty to citizens as well as non-citizens.

The meaning and scope of article 21 has been widened by the judiciary over the period.


Natural justice, is justice based on human values and good conscience following a just and fair procedure. The principles of Natural Justice have enriched the law worldwide. Though the Indian Constitution does not use the expression natural justice, the concept of natural justice divested of all its metaphysical and theological trappings pervades the whole scheme of the Constitution.

Fazal Ali in AK GOPALAN V. STATE OF MADRAS AIR 1950 SC . , relied on Willies ‘ Constitutional Law’ and accordingly accepted four essentials to the concept of natural justice namely,

  1. Notice

  2. Opportunity of being heard

  3. Impartial tribunal

  4. Orderly course of justice


The Vth amendment of the US Constitution lays down inter alia that “no person shall be deprived of his life, liberty, or property, without due process of law”

The word ‘due’ in this clause is interpreted to mean just, proper or reasonable, according to the judicial view. Therefore a court can pronounce whether a law affecting a person’s life, liberty or property is reasonable or not. The court may declare a law invalid if it does’ t accord with its notion of what is just and fair in the circumstances.

Due process has two aspect. Substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary.

Procedural due process envisages a reasonable procedure, ie the person affected should have fair right of hearing which includes four element (i) notice, (ii) opportunity to be heard, (iii) an impartial tribunal and (iv) an orderly procedure.


Immediately after constitution became operative interpretation of article 21 arose in famous case of AK GOPALAN V. STATE OF MADRAS AIR 1950 SC . where the validity of the Preventive Detention Act, 1950, was challenged. The main question was whether article 21 envisaged any procedure laid down by a law enacted by a legislature, or whether the procedure should be fair and reasonable.

Three main arguments presented on behalf of Gopalan were:

  1. The word “law” in article 21 doesn’t merely mean law enacted by a legislature but also incorporates principles of “Natural Justice”

  2. Reasonableness of “Preventive Detention Act,1950” ought to be judged in the light of Article 19.

  3. The term “procedure established by law” incorporates the American concept of “Due process”

The majority held that , to deprive a person of his life and personal liberty

  1. There must be law

  2. Should lay down a procedure

  3. Executive should follow this procedure

The majority took a view that Natural justice is a vague concept and a preventive law would be valid if it conform to article 22 and there is no need for it to comply with article 19.

They took a view that “ Due process” doctrine would also bring Doctrine of police power to restrict the ambit of “Due process”, which would a complicated situation in Indian Scenario.

However dissent was given by justice Fazal Ali, who took a more liberated view of Article 21. He held that,” the right to life and personal liberty is an elementary right and to deprive someone of its elementary right, would have to impose some restraint on the legislature to make laws affecting personal liberty of an individual”.


Post A.K Gopalan it was an accepted approach that articles in part 3 of the Indian Constitution was not mutually inclusive, but in R.C cooper v. Union of India (1970) (BANK NATIONALIZATION CASE) it was first time that supreme court was more solicitous to protect the right to protect the right to property than the right to personal freedom. In this case article 19(1)(f) was applied to a law enacted under article 31(2).

So after this case it could be legitimately argued that if article 19 was linked with article 31, then there is no reason why article 19 could not be linked article 21.

In the case of BENNETT COLEMAN & CO. V. UOI, AIR 1973 , the court overruled the argument that, article 19(1)(a) could not apply to a law affecting freedom of speech but not enacted directly with respect to article 19(1)(a). The court declared that if a law affected freedom of speech, its reasonableness become assessable with reference to article 19(2) even though it was not enacted directly to control freedom of speech.

This completely knocked out the majority view in famous Gopalan case that, article 19 applied only when a law was passed directly in respect to matter falling under it, and not when a law not directly in respect of right under article 19, though it abridged such right. Further in SAMBHU NATH SARKAR V. THE STATE OF WEST BENGAL [AIR 1973] , a bench of seven judges it was held that, a law of preventive detention which deprives a person of his life and personal liberty and thus falls indisputably within article 22 have to satisfy the requirement inter alia of article 19(1)(d).


This case changed the total perception of article 21 of the Indian constitution. It was a landmark case post emergency period and in this the liberal tendencies shown by the court was remarkable.

In this case validity of section 10(3)(c) of the passport act was challenged . The passport act authorised the passport authority to impound a passport if it deems necessary to do so in the interest of sovereignty and integrity of India, security of India, friendly relation of India with other countries , Interest of general public.

A bench of seven judges with majority held had article 14,19,21 are mutually inclusive. It means a law prescribing a procedure for depriving “Personal liberty “ has to meet with the requirement of article 14 and 19.

This case was Indian adaptation of American concept of “Due Process”.


Privacy is a concomitant of an individual’s right to exercise control over his own personality and finds its origin in the notion that certain natural or inherent rights are inseparable from the human personality.

A 9 Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy. Thus , through this judgement supreme court further liberalized the interpretation of Article 21 .

Maneka Gandhi case also has a deep impact on criminal justice system of the country. Administration of criminal justice is a state matte. Fortunately , by interpreting article 21 in Maneka Gandhi , and giving up the sterile approach of Gopalan, the supreme court has found a potent tool to seek to improve matters, and to fill vacuum arising from governmental inaction and apathy to understand reform, in the area of criminal justice. The court now has been seeking to humanise and liberalise the administration of criminal justice.


Article 21 envisages a fair trail, a fair procedure and a fair investigation. By the virtue of this article it is now constitutional right of the accused to be informed about his rights. Fair trail and fair investigation are two basic component of article 21. Although fair trail and fair investigation are sine qua nom of article 21, the apprehension of denial must be reasonable and not imaginary.


Arrest is lawful restriction on the movement of a person.

In order to maintain the peace of the society it is the duty of the police to arrest and detain the wrongdoers and put them behind bars, but this right of arrest is not to be used arbitrarily and fancifully and as a tool to harass an individual. Depriving someone of its liberty is a serious matter and the right to arrest is not to be used in a routine manner.


Conducting fair trial of a person who are accused of criminal offence is the cornerstone of a democracy. At the present stage of civilization , it has been universally accepted as a human value that a person accused of an offence should not be punished unless he has been given a fair trail and his guilt has been proved in such trail. Right of an accused to get a fair trial is enshrined in article 21 and post adaptation of American concept of ‘due process’ in Maneka Gandhi case , any procedure which is partial or is unreasonable is not a valid procedure.


Right to speedy trail is not as such mentioned in the Indian constitution, but the whole purpose of Criminal Judicial System will be defeated if there is delayed justice. There are instances where undertrial prisoners languish in jail for a very substantial period without their guilt being proved. Faith of a victim is also shaken when it has to wait for a long time to get justice. Article 21 grants right to life and its not just an animal existence, but everything that is needed to live a dignified life. Right to speedy trail is a facet of article 21.


Pre trail incarceration is one of the major problem of the criminal justice system of our country that needs to be solved. Supreme court has, now and then diagnosed this problem and interpreted the bail provisions in criminal procedure code liberally. Grant of bail is a rule, denial of same is an exception. It is when, for the interest of the society and for proper functioning of the criminal procedure it is imperative to put the accused in the custody, then only bail application of an accused should be rejected. Courts need to harmonise between the interest of the society and interest of an accused.


The supreme court has taken a big step forward in humanising the administration of criminal justice system. In a country like ours, there is need to provide free legal aid to the poor accused or prisoner facing prison sentences. Lawyer’s services is very essential to a person who is poor and diligent and facing criminal charges. In a landmark judgement of Hussainara Khatoon v. State of Bihar 1979, justice Bhagwati held that,

“Now, a procedure which does not make available free legal aid to the accused person who is too poor to afford a lawyer and who would, therefore ,have to go through the trail without legal assistance, cannot possibly be regarded as ‘reasonable, just and fair’.”


Policemen are entrusted with a role to maintain peace in the society by catching hold of persons who try to disturb the tranquillity of the society. However, there are instances where policemen have exceeded their power and tortured and even assaulted accused persons whose guilt are yet to be proved in the court of law. Human life is to live with dignity. Article 21 guarantees that to every individual. There is inbuilt protection against torture or assault by state or its functionaries. Torture, assault, and death in policy custody raises a serious question on administration of law and justice of the country. The supreme court of this country has held on several occasions that ,

“ Right against custodial torture or police torture is now a well settled right under article 21. A person lawfully detained by the police is entitled to be treated with dignity befitting human beings”


Right to life granted under article 21 is not mere animal existence but right to live a dignified life, and all that is required to live a dignified life comes under the purview of article 21. Despite of this wide and liberal interpretation there is frequent encroachment upon this right by the state or its functionaries. I think the time has come where this problem need to be addressed seriously and take appropriate measures to tackle it, and make this country exactly how our forefathers have imagined it to be.

By Sourav Suman, Law Student

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