But, in State of Punjab v.

Ram Lubhaya Bagga[liii], the Supreme Court has recognized

that provision of health facilities cannot be unlimited. The court held that it has to be to
the extent finance permits. No country has unlimited resources to spend on any of its
projects.

In Confederation of Ex-servicemen Association v. Union of India[liv], right to get free and

timely legal aid or facilities has been held to be not a fundamental right of ex-
servicemen. A policy decision in formulating a contributory scheme for ex-servicemen
and asking them to pay one-time contribution does not violate Art. 21 nor is it
inconsistent with Part IV of the constitution.

No Right to Die
Art. 21 confers on a person the right to live a dignified life. Does, it also confers a right
not to live or a right to die if a person chooses to end his life? If so, what is the fate
of Sec. 309, I.P.C., 1860, which punishes a person convicted of attempting to commit
suicide? There has been a difference of opinion on the justification of this provision to
continue on the statute book.

This question came for consideration for the first time before the High Court of Bombay
in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held
that the right to life guaranteed under Article 21 includes right to die, and the Hon’ble
High Court struck down Section 309 of the IPC that provides punishment for an attempt
to commit suicide by a person as unconstitutional.

In P. Rathinam v. Union of India[lv], a two-judge Division Bench of the Supreme Court,
took cognizance of the relationship/contradiction between Sec. 309, I.P.C., and Art. 21.
The Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s
Case held that the right to life embodies in Art. 21 also embodied in it a right not to live a
forced life, to his detriment disadvantage or disliking.

The court argued that the word life in Art. 21 means right to live with human dignity and
the same does not merely connote continued drudgery. Thus the court concluded that
the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to
live a forced life. The court further emphasized that “attempt to commit suicide is in
reality a cry for held and not for punishment.”

The Rathinam ruling  came to be reviewed by a full Bench of the Court in Gian Kaur v.
State of Punjab[lvi]. The question before the court was that if the principal offense of
attempting to commit suicide is void as being unconstitutional vis-à-vis Art.21, then how
abetment can thereof be punishable under Sec. 306, I.P.C., 1860. It was argued that ‘the
right to die’ having been included in Art.21 (Rathinam ruling), and Sec. 309 having been
declared unconstitutional, any person abetting the commission of suicide by another is
merely assisting in the enforcement of his fundamental right under Art. 21.

The Court overruled the decision of the Division Bench in the above-stated case and has
put an end to the controversy and ruled that Art.21 is a provision guaranteeing the
protection of life and personal liberty and by no stretch of imagination can extinction of
life’ be read to be included in the protection of life. The court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural

termination or extinction of life and, therefore, incompatible and inconsistent with the
concept of right to life”

Euthanasia and Right to Life

Euthanasia is termination of the life of a person who is terminally ill or in a permanent
vegetative state. In Gian Kaur v. State of Punjab[lvii], the Supreme Court has
distinguished between Euthanasia and attempt to commit suicide. The court held that
death due to termination of natural life is certain and imminent and the process of
natural death has commenced. These are not cases of extinguishing life but only of
accelerating conclusion of the process of natural death that has already commenced.

The court further held that this may fall within the ambit of Right to live with human
dignity up to the end of natural life. This may include the right of a dying man to also die
with dignity when his life is ebbing out. This cannot be equated with the right to die an
unnatural death curtailing the natural span of life.

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 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.

In Jagmohan v. State of U.P[lviii], the Supreme Court had held that the death penalty
was not violative of Articles 14, 19 and 21. It was said that the judge was to make the
choice between the death penalty and imprisonment for life on the basis of
circumstances, facts, and nature of crime brought on record during trial. Therefore, the
choice of awarding death sentence was done in accordance with the procedure
established by law as required under article 21

But, in Rajindera Parsad v. State of U.P.[lix],  Krishna Iyer J., speaking for the majority,
held that capital punishment would not be justified unless it was shown that the
criminal was dangerous to the society. The learned judge plead for the abolition of the
death penalty and said that it should be retained only for “white collar crimes”

However, in Bachan Singh v. State of Punjab[lx], the leading case of on the question, a

constitution bench of the supreme court explained that article 21 recognized the right of
the state to deprive a person of his life in accordance with just, fair and reasonable
procedure established by valid law. It was further held that the death penalty for the
offense of murder awarded under section 302 of I.P.C did not violate the basic feature
of the constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar[lxi], it has held that a Public Interest Litigation is
maintainable for ensuring enjoyment of pollution-free water and air which is included in
‘right to live’ under Art.21 of the constitution. The court observed:

“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.

 The following are some of the well-known cases on the environment under Article 21:

In  M.C. Mehta v. Union of India (1988)[lxii], the Supreme Court ordered the closure of
tanneries that were polluting water.
In  M.C. Mehta v. Union of India  (1997)[lxiii], the Supreme Court issued several
guidelines and directions for the protection of the Taj Mahal, an ancient monument,
from environmental degradation.

In Vellore Citizens Welfare Forum v. Union of India[lxiv], the Court took cognizance of

the environmental problems being caused by tanneries that were polluting the water
resources, rivers, canals, underground water, and agricultural land. The Court issued
several directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan[lxv], the Supreme Court held that
the “right to life” means clean surrounding which leads to healthy body and mind. It
includes the right to freedom from stray cattle and animals in urban areas.

In  M.C. Mehta v. Union of India (2006)[lxvi], the Court held that the blatant and large-
scale misuse of residential premises for commercial use in Delhi violated the right to
salubrious sand decent environment. Taking note of the problem the Court issued
directives to the Government on the same.

In  Murli S. Deora v. Union of India[lxvii], the persons not indulging in smoking cannot be
compelled to or subjected to passive smoking on account of the act of smokers. Right
to Life under Article 21 is affected as a non-smoker may become a victim of someone
smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution[lxviii], the case was regarding noise pollution caused by
obnoxious levels of noise due to bursting of crackers during Diwali. The Apex Court
suggested to desist from bursting and making use of such noise making crackers and
observed that:

“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It
guarantees the right of persons to life with human dignity. Therein are included, all the
aspects of life which go to make a person’s life meaningful, complete and worth living.
The human life has its charm and there is no reason why life should not be enjoyed along
with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet
within his house has a right to prevent the noise as pollutant reaching him.

“No one can claim a right to create noise even in his own premises that would travel
beyond his precincts and cause the nuisance to neighbors or others. Any noise, which
has the effect of materially interfering with the ordinary comforts of life judged by the
standard of a reasonable man, is nuisance…. While one has a right to speech, others have
a right to listen or decline to listen. Nobody can be compelled to listen and nobody can
claim that he has a right to make his voice trespass into the ears or mind of others.

“Nobody can indulge in aural aggression. If anyone increases his volume of speech and
that too with the assistance of artificial devices so as to compulsorily expose unwilling
persons to hear a noise raised to unpleasant or obnoxious levels then the person
speaking is violating the right of others to a peaceful, comfortable and pollution-free life
guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21[lxix]”.

Right to Know or Right to Be Informed

Holding that the right to life has reached new dimensions and urgency the Supreme
Court in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., 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.

In Essar Oil Ltd. v. Halar Utkarsh Samiti,  the Supreme Court said that there was a strong
link between Art.21 and Right to know, particularly where “secret government decisions
may affect health, life, and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in  Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens
who had been made responsible to protect the environment had a right to know the
government proposal.

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 smallest Article of eighteen words has the greatest significance for those who
cherish the ideals of liberty. What can be more important than liberty? In India, the
concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court
of India has rejected the view that liberty denotes merely freedom from bodily restraint,
and has held that it encompasses those rights and privileges that have long been
recognized as being essential to the orderly pursuit of happiness by free men.
The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the
Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U.
P. Police Regulations that provided for surveillance by way of domiciliary visits and
secret picketing. Oddly enough both the majority and minority on the bench relied on the
meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in
Munn v Illinois, which held the term ‘life’ meant something more than mere animal
existence. The prohibition against its deprivation extended to all those limits and
faculties by which the life was enjoyed.

This provision equally prohibited the mutilation of the body or the amputation of an arm
or leg or the putting of an eye or the destruction of any other organ of the body through
which the soul communicated with the outer world. The majority held that the U. P.
Police Regulations authorizing domiciliary visits [at night by police officers as a form of
surveillance, constituted a deprivation of liberty and thus] unconstitutional. The Court
observed that the right to personal liberty in the Indian Constitution is the right of an
individual to be free from restrictions or encroachments on his person, whether they are
directly imposed or indirectly brought about by calculated measures.

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
As per Black’s Law Dictionary, privacy means “right to be let alone; the right of a person
to be free from unwarranted publicity; and the right to live without unwarranted
interference by the public in matters with which the public is not necessarily concerned.”

Although not specifically referenced in the Constitution, the right to privacy is

considered a ‘penumbral right’ under the Constitution, i.e. a right that has been declared
by the Supreme Court as integral to the fundamental right to life and liberty. Right to
privacy has been culled by the Supreme Court from Art. 21 and several other provisions
of the constitution read with the Directive Principles of State Policy. Although no single
statute confers a crosscutting ‘horizontal’ right to privacy; various statutes contain
provisions that either implicitly or explicitly preserve this right[lxx].

For the first time in Kharak Singh v. State of U.P.[lxxi] question whether the right to
privacy could be implied from the existing fundamental rights such as Art. 19(1)(d),
19(1)(e) and 21, came before the court. “Surveillance” under Chapter XX of the U.P.
Police Regulations constituted an infringement of any of the fundamental rights
guaranteed by Part III of the Constitution. Regulation 236(b), which permitted
surveillance by “domiciliary visits at night”, was held to be in violation of Article 21.  A
seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were
considered by this court in Kharak Singh’s case. Although the majority found that the
Constitution contained no explicit guarantee of a “right to privacy”, it read the right to
personal liberty expansively to include a right to dignity. It held that “an unauthorized
intrusion into a person’s home and the disturbance caused to him thereby, is as it were
the violation of a common law right of a man -an ultimate essential of ordered liberty, if
not of the very concept of civilization”

In a minority judgment in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions placed on
his movements but also free from encroachments on his private life. It is true our
Constitution does not expressly declare a right to privacy as a fundamental right but the
said right is an essential ingredient of personal liberty. Every democratic country
sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind
and security. In the last resort, a person’s house, where he lives with his family, is his
‘castle’; it is his rampart against encroachment on his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later
elaborations on the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh[lxxii], The Supreme Court took a more elaborate

appraisal of the right to privacy. In this case, the court was evaluating the constitutional
validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which
provided for police surveillance of habitual offenders including domiciliary visits and
picketing of the suspects. The Supreme Court desisted from striking down these
invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable
restriction upon the right of privacy. It is only persons who are suspected to be habitual
criminals and those who are determined to lead a criminal life that is subjected to
surveillance.”

The court accepted a limited fundamental right to privacy as an emanation from

Arts.19(a), (d) and 21. Mathew J. observed in the instant case,

“The right to privacy will, therefore, necessarily, have to go through a process of case by
case development.              Hence, assuming that the right to personal liberty. the right to
move freely throughout India and the freedom of speech create an independent
fundamental right of privacy as an emanation from them that one can characterize as a
fundamental right, we do not think that the right is absolute…..

…… Assuming that the fundamental rights explicitly guaranteed to a citizen have

penumbral zones and that the right to privacy is itself a fundamental right that
fundamental right must be subject to restrictions on the basis of compelling public
interest.”

In R. Rajagopalan v. State of Tamil Nadu[lxxiii], The right to privacy of citizens was dealt
with by the Supreme Court in the following terms:

“(1) the right to privacy is implicit in the right to life and liberty guaranteed to the citizens
of this country by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard
the privacy of his own, his family, marriage, procreation, motherhood, childbearing and
education among other matters. None can publish anything concerning the above
matters without his consent – whether truthful or otherwise and whether laudatory or
critical.

If he does so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages. Position may, however, be different, if a person
voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception that any publication concerning the
aforesaid aspects becomes unobjectionable if such publication is based upon public
records including court records. This is for the reason that once a matter becomes a
matter of public record, the right to privacy no longer subsists and it becomes a
legitimate subject for comment by press and media among others.

We are, however, of the opinion that in the interests of decency [Article 19(2)] an
exception must be carved out to this rule, viz., a female who is the victim of a sexual
assault, kidnap, abduction or a like offense should not further be subjected to the
indignity of her name and the incident being publicized in press/media.”

The final case that makes up the ‘privacy quintet’ in India was the case of PUCL v. Union
of India[lxxiv], 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

Emanating from the right to privacy is the question of tapping of the telephone.

In  R.M. Malkani v. State of Maharashtra, the Supreme Court held that the telephonic
conversation of an innocent citizen will be protected by Courts against wrongful or high
handed’ interference by tapping the conversation. The protection is not for the guilty
citizen against the efforts of the police to vindicate the law and prevent corruption of
public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act,

1885. The Section lays down the circumstances and grounds when an order for the
tapping of a telephone may be passed, but no procedure for making the order is laid
down therein.

The Supreme Court in PUCL v. Union of India  held that in the absence of just and fair
procedure for regulating the exercise of power under Section 5(2) of the Act, it is not
possible to safeguard the fundamental rights of citizens under Section 19 and 21.
Accordingly, the court issued procedural safeguards to be observed before restoring to
telephone tapping under Section 5(2) of the Act.

The Court further ruled 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”. The court has further ruled that
Telephone conversation is an important facet of a man’s private life. Right to privacy
would certainly include telephone conversation in the privacy of one’s home or office.
Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law. The procedure has to be just, fair and
reasonable.”

Disclosure of Dreadful Diseases

In Mr. X v. Hospital Z[lxxv], 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.

Right to privacy and subjecting a person to medical tests

It is well settled that the right to privacy is not treated as absolute and is subject to such
action as may be lawfully taken for the prevention of crimes or disorder or protection of
health or morals or protection of rights and freedom of others. In case there is a conflict
between the fundamental rights of two parties that which advances public morality
would prevail.

A three-judge bench in case of Sharda v. Dharmpal[lxxvi], ruled that a matrimonial court

had the power to direct the parties to divorce proceedings, to undergo a medical
examination. a direction issued for this could not be held to the violative of one’s right to
privacy but court, however, said that for this there must be a sufficient material.

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 the sexual activity or alternatively the insistence on the 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.

Right to go abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi[lxxvii], the Supreme

Court has included Right to travel abroad contained in by the expression “personal
liberty” within the meaning of Article 21.

In Maneka Gandhi v. Union of India[lxxviii], the validity of Sec. 10(3)(c) of the passport

Act 1967, which empowered the government to impound the passport of a person, in
the interest of the general public was challenged before the seven-judge Bench of the
Supreme Court.

It was contended that, right to travel abroad being a part of the right to “personal liberty”
the impugned section didn’t prescribe any procedure to deprive her of her liberty and
hence it was violative of Art. 21.
The court held that the procedure contemplated must stand the test of reasonableness
in order to conform to Art.21 other fundamental rights. It was further held that as the
right to travel abroad falls under Art. 21, natural justice must be applied while exercising
the power of impounding passport under the Passport Act. BHAGWATI, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an essential

element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence and that It must be “‘right and just and fair” and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the requirement of Article 21
would not be satisfied.

Right against Illegal Detention

In  Joginder Kumar v. State of Uttar Pradesh[lxxix], the petitioner was detained by the
police officers and his whereabouts were not told to his family members for a period of
five days. Taking the serious note of the police high headedness and illegal detention of
a free citizen, the Supreme Court laid down the guidelines governing arrest of a person
during the investigation:

An arrested person being held in custody is entitled if he so requests to have a friend,

relative or other person told as far as is practicable that he has been arrested and where
he is being detained.

The police officer shall inform the arrested person when he is brought to the police
station of this right. An entry shall be required to be made in the diary as to who was
informed of the arrest.

In the case of D.K. Basu v. State of West Bengal[lxxx], the Supreme Court laid down
detailed guidelines to be followed by the central and state investigating agencies in all
cases of arrest and detention till legal provisions are made in that behalf as preventive
measures and held that any form of torture or cruel inhuman or degrading treatment,
whether it occurs during interrogation, investigation or otherwise, falls within the ambit
of Article 21.

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 the 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[lxxxi].

In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Article
21. The Court has interpreted Article 21 so as to have widest possible amplitude. On
being convicted of a crime and deprived of their liberty in accordance with the
procedure established by law. Article 21, has laid down a new constitutional and prison
jurisprudence[lxxxii]. The rights and protections recognized to be given in the topics to
follow: