Article 21 reads as:
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws. Article 21 can be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of Article 21.
- 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.
- Article 21 applies to natural persons. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right.
- According to Bhagwati, J., Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Iyer, J., has characterized Article 21 as “the procedural magna carta protective of life and liberty.
Article 21 secures two rights: (1) Right to life and (2) Right to personal liberty
(1) RIGHT TO LIFE
The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it.
Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing or living. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very existence, and includes all those aspects of life, which go to make a man’s life meaningful, complete, and worth living. This article has received the widest possible interpretation.
The Supreme Court 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 person’s tradition, culture, heritage and all that gives meaning to a man’s life. It includes the right to live in peace, to sleep in peace and the right to repose and health.
Right To Live with Human Dignity
In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21 and held that the right to live the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi,observed 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 human self.”
Right Against Sexual Harassment at Workplace
The court in this context has observed that: “The meaning and content of fundamental right guaranteed in the constitution of India are of sufficient amplitude to encompass all facets of gender equality including prevention of sexual harassment or abuse.”
Sexual Harassment of women has been held by the Supreme Court to be violative of the most cherished of the fundamental rights, namely, the Right to Life contained in Art. 21. In Vishakha v. State of Rajasthan, 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. In the landmark judgment, Supreme Court in the absence of enacted law to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment laid down the following guidelines:
- All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
- The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
- Where such conduct amounts to specific offences under I,P,C, or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with appropriate authority.
- The victims of Sexual harassment should have the option to seek transfer of perpetrator or their own transfer.
Right Against Rape
Rape has been held to a violation of a person’s fundamental life guaranteed under Art. 21. Right to life right to live with human dignity. Right to life, would, therefore, include all those aspects of life that go on to make life meaningful, complete and worth living.
The supreme court held that “Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.
Right to Reputation
Reputation is an important part of one’s life. It is one of the finer graces of human civilization that makes life worth living. The Supreme Court 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 affirmed that the right to enjoyment of life, liberty and property. The court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to human society.”
Right To Livelihood
The Supreme Court observed that: “The sweep of right to life conferred by Art.21 is wide and far reaching. 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.”
Art. 21 does not place an absolute embargo on the deprivation of life or personal liberty and for that matter on right to livelihood. What Art. 21 insists is that such deprivation ought to be according to procedure established by law which must be fair, just and reasonable. Therefore anyone who is deprived of right to livelihood without a just and fair procedure established by law can challenge such deprivation as being against Art. 21 and get it declared void.
HIV Not a Sound ground for Termination – a person tested positive for HIV could not be rendered “medically unfit” solely on that ground so as to deny him the employment. The right to life includes the right to livelihood.
Right to Work Not a Fundamental Right under Art.21
Right to Shelter
The right to shelter has been held to be a fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21. To make the right meaningful to the poor, the state has to provide facilities and opportunities to build houses.
Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful.
Right to Social Security and Protection of Family
The right to social and economic justice is a fundamental right under Art. 21. The State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit anybody or group of persons to threaten other person or group of persons. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations.
Right Against Honour Killing – Ill treatment and killing of a person who was a major, for wanting to get married to a person of another caste or community, for bringing dishonor to family since inter caste or inter community marriage was not prohibited in law.
Right to Health
The right to life guaranteed under Article 21 includes within its ambit the right to health and medical care.
The Supreme Court emphasized that a healthy body is the very foundation of all human activities. Art.47, a directive Principle of State Policy in this regard lays stress note on improvement of public health and prohibition of drugs injurious to health as one of primary duties of the state.
No Right to die – Right to die is not a Fundamental Right under the Article
Sentence of death –Rarest of rare cases
The issue of abolition or retention of capital punishment was dealt with by the law commission of India. After collecting as much available material as possible and assessing the views expressed by western scholars, the commission recommended the retention of the capital punishment in the present state of the country. The commission held the opinion that having regard to the conditions of India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country, India could not risk the experiment of abolition of capital punishment.
Right to get Pollution Free Water and Air
“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”
Right to Clean Environment
The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects 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.
Right to Know or Right to Be Informed
The Supreme Court observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the State.The citizens who had been made responsible to protect the environment had a right to know the government proposal.
(2) RIGHT TO PERSONAL LIBERTY
Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that, No freeman shall be taken or imprisoned… but… by the law of the land.
The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment
Right to Privacy
The Supreme Court observed that:
We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.
Scope and Content of Right to Privacy:
Tapping of Telephone
Disclosure of Dreadful Diseases – 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 patient’s 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.
Woman’s Right to Make Reproductive Choices – A woman’s right to make reproductive choices includes the woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods such as undergoing sterilization procedures woman’s entitlement to carry a pregnancy to its full term, to give birth and subsequently raise children.
Article 21 & Prisoner’s 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 that 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.
Right to Free Legal Aid & Right to Appeal
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; firstly, service of a copy of a judgement to the prisoner in time to enable him to file 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.
Right to speedy and Fair trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, appeal, revision and retrial.
Right to Bail – The Supreme 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.
No right to Anticipatory Bail – 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.
During Emergency – The supreme court held that article 21 was the sole repository of the right to life and personal liberty and therefore, if the right to move any court for the enforcement of that right was suspended by the presidential order under article 359, the detune would have no locus standi to a writ petition for challenging the legality of his detention.
The remedy for the enforcement of the fundamental right guaranteed by article 21 would not be suspended under a presidential order. In view of the 44th amendment, 1978, the observation made in the above cited judgments are left merely of academic importance.
Right to Education
It recognized right to free education until the completion of 14 years as a Fundamental Right overruling its earlier judgement in 1992, which declared that there was a Fundamental Right to education to any level including professional education like medicine and engineering. The 86th Constitutional Amendment Act of 2002 inserted Article 21A for making only elementary education a Fundamental Right.
Importance of Right to Privacy
- The right to personal liberty of human is unsubstantial without adequate protection for right to privacy.
- The right to dignity of each individual as a human being is incomplete without the right to privacy and reputation.
- The ability to make choices and decisions autonomously in society free of surrounding social pressure, including the right to vote, freedom of religion — all of these depend on the preservation of the “private sphere”.
- The advent of modern tech tools has made the invasion of privacy easier and made cyber data more vulnerable to theft and misuse.
National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.
The collection and use of personal data of citizens for Aadhaar — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights.
Both the government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties.
The apprehension expressed by the Supreme Court about collection and use of data was the risk of personal information falling in the hands of private players and service providers. The Supreme Court had repeatedly asked the government whether it has plans to set up a “robust data protection mechanism”.
The government informed the Bench a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, has already been constituted on July 31, 2017 to identify “key data protection issues” and suggest a draft data protection Bill.
The Present status of Right to Privacy
Right to Privacy does not find any mention in the Constitution. This right has been picked from Article 19 and 21 which deals with right to life and liberty. In the absence of clarity, it has been defined only by a string of judgements. As early as 1954, the supreme court observed in a ruling that right to privacy is not a recognised right listed under Article 19 of the Constitution.
The judgement finally reconcile Indian laws with the spirit of Article 12 of the Universal Declaration of Human Rights (1948) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the arbitrary interference with one’s privacy, honour and reputation, family, home and correspondence.
Possible Positives of the verdict
- This will ensure the dignity of the citizens.
- It will impose restrictions on the government’s approach to encroach upon the private data of citizens.
- It gives impetus to the Right to personal liberty, under Article 21 of the Constitution.
Possible Negative of the Court verdict
- It can hinder the implementation of welfare schemes like Aadhar and Direct Benefits Transfer, which requires personal data of citizens, for better identification of marginalised sections and effective implementation by preventing leakages.
- Right to Privacy will also restrict police and intelligence agencies to collect private information about accused and criminals.
Future Implications of the Supreme Court Judgement
- Future of Aadhar – The judgment’s immediate impact will also be felt the most in the Aadhar project. This will significantly limits the stand that the union government will be able to take in support of the validity of the Aadhaar Act.
- Homosexuality – The judgment also implicitly overrules the 2013 judgment of the Supreme Court that upheld the validity of IPC Section 377, which criminalises homosexuality. The verdict held that the sexual identity of the LGBT community is inherent in the right to life.
- Right to Die – As an individual’s rights to refuse life prolonging medical treatment is another aspect that falls within the zone of the right of privacy, this revives the question of passive-euthanasia.
- Data Protection – As India has no statute regarding privacy or data protection, concerns were raised by the court. It expressed hope that the government would undertake this exercise after a careful balancing of privacy concerns and legitimate state interests.
- Beef & Alcohol consumption – the Supreme Court in the current judgment has held that the right to food of one’s choice is part of the right to privacy. It is therefore clear that the ‘privacy judgment’ will have a bearing on matters like consumption of beef and alcohol.
Issues with Aadhar card
- Services Denied: Many instances occurred in which government and its agencies have been found insisting on producing Aadhar number as a precondition to avail public services.
- Consent: No well- informed consent about the uses of the huge amount of private data of citizens being collected.
- Exit Option: The absence of an exit option to get out of the UIDAI data base.
- No Statutory backing: The UIDAI and the Aadhar project are still functioning on the basis of an executive action since it was set up. Any action of the government should be backed by a formal statute or legislation.
- Lack of accountability: The UIDAI also lacks accountability to Parliament if there is a failure in the system and in cases of unfortunate consequence.
- Private Players: There are many private players involved in the whole chain of registering for and generation of Aadhaar numbers before the database finally goes to the government-controlled Central Identities Data Repository (CIDR), which also raises doubts about the safety of citizen’s data.
- Government should Strengthening cyber security system of the Aadhar and other programme dealing with large amount of citizens’ data.
- It is imperative that the Union Government enact a privacy legislation that clearly defines the rights of citizens consistent with the promise of the Constitution. And also bringing out appropriate law against violation of right to privacy.
- The government should factor in privacy risks and include procedures and systems to protect citizen information in any system of data collection.
- It should create institutional mechanism such as Privacy Commissioner to prevent unauthorised disclosure of or access to such data.
- Our national cyber cell should be strengthen to deal with any kind of cyber attack