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. </