“INTERPRETION OF ARTICLE 21 OF THE INDIAN CONSTITUTION THROUGH JUDICIAL REVIEW: AN ANALYSIS.”
DISSERTATION
SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF
MASTER OF LAWS(LL.M)
Under the supervision ofSUBMITTED BY:
PROF. S. K. GAUR AARTI PAL
(AMITY LAW SCHOOL) LL.M FINAL YEAR E. NO. A8101817041
Session- 2017-2018
DEPARTMENT OF LAW
FACULTY OF LEGAL STUDIES
AMITY UNIVERSITY,
LUCKNOW (U.P.) INDIA
SYNOPSIS OF DESERTATION
My dissertation deals with the topic: INTERPRETATION OF ARTICLE 21 OF THE INDIAN CONSTITUTION THROUGH JUDICIAL REVIEW: AN ANALYSIS.
OBJECTIVE
I came across various cases through which the SC has evolved Art.21 in a creative way. I became interested in knowing the extent to which the Supreme Court has extended the scope of Article 21 of the Constitution of India and so I decided to pursue the matter further through my research.
HYPOTHESIS
1. Indian Judiciary has played creative role in the interpretation of the Article 21 of the Indian Constitution.
2.There is an enlargement of the ambit of Article 21 of the Indian Constitution.
3.There are various other components of right to life and personal liberty which were included under Article 21 of the Indian Constitution.
METHODOLOGY
The research is primarily analytical and it is a library based. The primary data is collected from the debates of Constitutional Assembly, the debates in Parliament on important Constitutional amendments, the judgments of Supreme Courts on the various Constitutional amendments and on Article 21 of the Indian Constitution, on various enacted laws and of executive orders.
The secondary data consists of various interpretations made in commentaries on the Indian Constitution, the books, articles and research papers published in different journals.
The purpose of research is to analyze the scope of Article 21 expanded by the Supreme Court in its various decisions.
PRIMARY SOURCES
The primary data is collected from the debates of Constitutional Assembly, the debates in Parliament on important Constitutional amendments, the judgments of Supreme Courts on the various Constitutional amendments and on Article 21 of the Indian Constitution, on various enacted laws and of executive orders.
SECONDARY SOURCES
The secondary data consists of various interpretations made in commentaries on the Indian Constitution, the books, articles and research papers published in different journals.
PROJECT INFORMATION
Project Duration-16 Weeks
Date of commencement (02/01/2018)
Date of completion (20/04/2018)
Project Title
INTERPRETATION OF ARTICLE 21 OF THE INDIAN CONSTITUTION THROUGH JUDICIAL REVIEW: AN ANALYSIS
Project Objective(s):
The objective of working upon this dissertation was that I came across various cases through which the SC has evolved Art.21 in a creative way. I became interested in knowing the extent to which the Supreme Court has extended the scope of Article 21 of the Constitution of India and so I decided to pursue the matter further through my research.
Methodology adopted:
The research is primarily analytical and it is a library based. The primary data is collected from the debates of Constitutional Assembly, the debates in Parliament on important Constitutional amendments, the judgments of Supreme Courts on the various Constitutional amendments and on Article 21 of the Indian Constitution, on various enacted laws and of executive orders.
The secondary data consists of various interpretations made in commentaries on the Indian Constitution, the books, articles and research papers published in different journals.
Summary of the project:
From the brief survey of the relevant provisions of the chapters of the dissertation we find that judicial pronouncement on right to life and personal liberty has varied due to the desire of bringing about required change in the society for the purpose of achieving the constitutional goals and objectives, especially with regard to Human Right situations of course, it will be not inappropriate to sum up that while the variation in judicial pronouncements from Gopalan to Maneka has primarily been influenced due to change in the society as a result of law and order situation, political situation and other factors, the post-Maneka variation of judicial pronouncements has been mainly due to the desire of bringing about required change in the society so as to achieve constitutional goals and objectives declared in the Preamble and detailed in the Part III and Part IV of the Constitution of India.
Signature SignatureSignature
(Student) (External Guide) (Faculty Guide)
INTRODUCTION
Greatness of the bench lies in creativity…
There are cases where a decision one way or the other will count for the future, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction. It is in these types of cases where the judge is to leap into the heart of legal darkness, where the lamps of precedent and common law principles flicker and fade, that the judge gets an opportunity to mold the law and to give it its shape and direction. This is what we have been trying to do in India.
– Justice P.N. Bhagwati
In the common law system judiciary plays a creative role by formulating, developing, re-molding and at times breaking down legal concepts from among the ideas and views prevailing in the community and by adapting legal concepts to the changing times. Thus we find the emergence, through judicial process, of different principles, concepts, rules and standards (norms) in various branches of law. Though the self-imposed rule of stare-decisis, which came into existence at a later stage of development of common law, imposed some restraint on judicial creativity, judicial decisions were considered a major source of law. It is evident that there is high scope for play of judicial wisdom in the inductive process, which is the hallmark of common law. In other words, judiciary had played a very significant role in the making of law.
Supreme Court has crystallized, case after case, various rights while interpreting fundamental rights guaranteed under Article 21 of our Constitution. Speedy trial, right against illegal arrest, right to compensation in case of custodial torture or death, rights of arrestees, right to consult a lawyer, right to free legal aid, right to life and liberty, right to live with human dignity, right to fair trial, right to living will and euthanasia etc., are just a few pointers in that directions, need not multiply illustration. I will try to cover all these theories expounded by the Supreme Court in various cases in the light of Article 21. Article 21 of the Constitution of India forbids deprivation of personal liberty except in accordance with the procedure established by law. It mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. While interpreting article 21 of the Constitution of India, the Supreme Court has granted certain safeguards and rights covered under right to life and personal liberty. To find out these rights and safeguards and to arranging, analyzing, and producing them in a systematic manner is the aim of this work.
ORGANIZATION OF THE STUDY-
In order to find the answers to the above mentioned questions the present work has been divided in different parts the schedule of which is under mentioned:-
The first part is introduction it acquaints us with the objective of the study on the enlargement of the ambit of Article 21 of the Indian Constitution through the process of judicial review, the questions involved in the study and the methodology used towards it. It is further divided in-
a)Origin of the concept of Fundamental Rights,
b)Evolution of Fundamental Rights in India,
c)Meaning of word ‘Life’ and ‘Personal Liberty’.
SECOND CHAPTER-
RETROSPECTIVE PERSPECTIVE AND CONSTITUTIONAL INTENT OF RIGHT TO LIFE AND PERSONAL LIBERTY.
An attempt has been made to discuss the historical background and constitutional intent of Right to Life and Personal Liberty with the help of various theories proponded by various philosophers on the right to life and personal liberty, from UDHR, ICCPR, and from the debates in the constituent assembly on the Article 21 of the Indian Constitution.
THIRD CHAPTER-
SOCIAL CHANGE AND JUDICIAL REVIEW
An attempt will be made to discuss the social changes in the concept of right to life and personal liberty and its judicial review.
FOURTH CHAPTER-
RIGHT TO LIFE AND PERSONAL LIBERTY : JUDICIAL INTERPRETATION FROM GOPALAN TO MANEKA
An attempt will be made to discuss the Supreme Court’s judgments interpreting Article 21 of the Indian Constitution from A. K. Gopalan’s case to Maneka Gandhi’s case.
FIFTH CHAPTER-
RIGHT TO LIFE AND EXTINCTION OF LIFE THROUGH DEATH SENTENCE, SUICIDE AND “EUTHANASIA”
An attempt has been made to discuss the Supreme Court’s Judgment dealing the concept of extinction of life through death sentence, suicide and euthanasia, concept of living will under the ambit of Article 21 of the Indian Constitution.
SIXTH CHAPTER-
RIGHT TO LIFE AND PERSONAL LIBERTY AND THEIR EVER EMERGING NEW ASPECTS AFTER MANEKA.
An attempt has been made to discuss the Supreme Court’s judgments interpreting Article 21 of the Indian Constitution after Maneka Gandhi’s case till date.
SEVENTH CHAPTER-
CONCLUSION AND SUGGESTIONSIn this chapter I tried to summaries my work.
CONCLUSION
The decisions in Gopalan case, Habeas Corpus case and Maneka case are some of the glaring examples of the fact that judicial pronouncements with respect to life and personal liberty have played a great role in extending the scope of Article 21 of the Indian Constitution.
The trend of restricted and conservative interpretation of the Article 21 set by the Supreme Court in Gopalan continued till Maneka’s case came into picture. However, three successive important events that took place in 1977 brought about a totally different change of the situation in the Country. Firstly, in the 1977 parliamentary election, the National Congress Party, got defeated. Secondly, the internal emergency got revoked and thirdly, the newly formed Janata Party had promised to undo the emergency-excesses. All these events brought in the wind of libertarianism in the society. This change of society towards libertarianism had its due impact on the judicial pronouncement which becomes very much evident from the liberal and expansive interpretation of the right to life and personal liberty in Maneka’s case. This spirit of libertarianism enthused and activated the Apex Court to give “pro-liberty” interpretation by judicial incorporation of the “procedural due process” clause in the expression “procedure established by law” in Article 21. This incorporation of the procedural due process, which implies that the procedure must be fair, just and reasonable and not fanciful, oppressive or arbitrary has brought about a vast change in judicial pronouncements and given rise to new jurisprudence with respect to Human Rights and right to life and personal liberty in post-Maneka period.
It is the judiciary who extended the ambit of Article 21 of the Constitution and hold that ‘mandatory death sentence’ mentioned under Section 303 of I.P.C., is unjust, unfair, irrational and violative of Article 21. Similarly, through judicial pronouncement it was held that a person awarded with death sentence continues to be a human being with his life intact and will get protection of Article 21, even at the stage of execution of death sentence, and this same consideration led the Supreme Court to hold that public hanging was inhuman, barbaric and unconstitutional, being violative of fair, just and reasonable procedure under Article 21. Thus the ambit of Article 21 of the Constitution has been extended with respect to the right of the person awarded with death penality.
The judiciary in the post-Maneka period with a view to helping in achieving the declared goals and objectives of the Constitution has given up its traditional role of mechanical interpreter of the provisions of law and has adopted activist and dynamic role. The judiciary with this aim in view has started interpreting the Article 21 in the light of the Preamble and the Directive Principles of State Policy of the Constitution and it is discovering more and more components of the right to life and personal liberty.
Now right to life does not mean merely animal existence which can be taken away only by execution of death sentence. It includes many more new rights. Through judicial activism right to life has been interpreted in such a way that now it includes right to livelihood, right to means to livelihood, right to reasonable shelter, right to environmental protection, right of children to education upto the age of fourteen years, right of the children against employment in “hazardous concern”, right of the children against exploitation in jails and “observation homes” and their right to develop in healthy manner in conditions of freedom and dignity, right of every individual to live with human dignity, right of the workers to receive minimum wages as prescribed by the Minimum Wages Act, 1948 and their right to benefits of various provisions of labour welfare laws, right of the workers against forced and bonded labour which are violative of human dignity and contrary to basic human values, right to receive minimum wages even when employed by the Government to exact work of utility and value at the time of drought, scarcity and famine, right of the workers against the sub-human and intolerable conditions of work which make them worse than an animal, right to rehabilitation from bondage, right to reputation, right to privacy, right against sexual harassment, right to clean environment and right to live includes right to die with human dignity and so passive euthanasia and living will has been conferred the status of fundamental right in the light of right to life and personal liberty and so on and so forth.
The judiciary has observed that imprisonment does not spell farewell to all Fundamental Rights and has criticized in strong words the cruel and barbarous treatment meted out to prisoners by putting them under solitary confinements, bar-fetters and handcuffing even when not called for. Similarly, the detenu’s right to have interview with his or her lawyer, family members and friends has been considered to be part of the right to live with human dignity and also to be a necessary component of the right to life. It is again that the judiciary has directed that prisoners be “assigned work not of monotonous, mechanical or degrading type, but of a mental, Intellectual or like type mixed with a little manual labour”.
However, one of the most revolutionary break through in the Human Right Jurisprudence with respect to right to life and personal liberty has been to award monetary compensation in case of illegal arrest and detention.
From the brief survey of the relevant provisions of the chapters of the dissertation we find that judicial pronouncement on right to life and personal liberty has varied due to the desire of bringing about required change in the society for the purpose of achieving the constitutional goals and objectives, especially with regard to Human Right situations of course, it will be not inappropriate to sum up that while the variation in judicial pronouncements from Gopalan to Maneka has primarily been influenced due to change in the society as a result of law and order situation, political situation and other factors, the post-Maneka variation of judicial pronouncements has been mainly due to the desire of bringing about required change in the society so as to achieve constitutional goals and objectives declared in the Preamble and detailed in the Part III and Part IV of the Constitution of India.
