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Article 21: A Key Stone of the Indian Constitution

An Overview of Indian Constitution


The Indian Constitution, which stands for national goals like Democracy, Socialism, Secularism and National Integration, was framed by the representatives of Indian people after a long period of debates and discussions. It is the most detailed constitution in the world. No other constitution has gone into such minute details as the Indian Constitution. The Constitution of India was framed by a Constituent Assembly which was established in 1946. Dr. Rajendra Prasad was elected President of the Constituent Assembly. A Drafting Committee was appointed to draft the Constitution. Dr. B.R. Ambedkar was appointed the Chairman of the Drafting Committee. The Assembly met for 166 days spread over a period of 2 years, 11 months and 18 Days. The Constitution was adopted on 26 November, 1949. It came into force on 26 January, 1950. It had incorporated some of the salient features of the British, Irish, Swiss, French, Canadian and the American Constitutions. 


The Constitution of India begins with a Preamble which contains the basic ideals and principles of the Constitution. It lays down the objectives of the frames of the Constitution. The Constitution contains 395-Articles and 12 Schedules. A number of amendment passed have also become a part of this Constitution. The Constitution declares India to be a Sovereign, Secular, Socialist, and Democratic Republic. At the same time, India has federal features. The powers of the government are divided between the centred government and the state governments. The Constitution demarcates the powers of the central and estate governments into different lists of subjects. These lists ire called the Union List, the State List and the Concurrent List. The constitution provides for an independent and impartial judiciary and the Supreme Court is the highest court of the country. It decides disputes between the people and the government. The Constitution provides for the establishment of parliamentary form of government in India.

The President is the nominal head of the state. In actual practice the administration is run by the Prime Minister and the Council of Ministers. The council of Ministers is responsible to the Parliament. The Constitution of India guarantees Fundamental Rights to all its citizens. They have Right to Equality, Right to Freedom, right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. Taking inspiration from the Constitution'' of Ireland, framer of our constitution included the directive principles directions given to the central government and state governments to adopt such policies which would help establish a just society in our country. There are times when the country could not be run as in ordinary times. To cope with such difficult times, the constitution provides for the emergency provisions, which are it's another important features.

Yet another unique feature of our constitution is that it is not as rigid as the American Constitution or as flexible as the British constitution. It means it is partly rigid and partly flexible. And so it can easily change and grow with the change of times. The Indian Constitution, which stands for national goals like Democracy, Socialism, Secularism and National Integration, was framed by the representatives of Indian people after a long period of debates and discussions. It is the most detailed constitution in the world. No other constitution has gone into such minute details as the Indian Constitution. The Constitution of India was framed by a Constituent Assembly which was established in 1946. Dr. Rajendra Prasad was elected President of the Constituent Assembly. A Drafting Committee was appointed to draft the Constitution. Dr. B.R. Ambedkar was appointed the Chairman of the Drafting Committee. The Assembly met for 166 days spread over a period of 2 years, 11 months and 18 Days. The Constitution was adopted on 26 November, 1949. It came into force on 26 January, 1950. It had incorporated some of the salient features of the British, Irish, Swiss, French, Canadian and the American Constitutions.

The Constitution of India begins with a Preamble which contains the basic ideals and principles of the Constitution. It lays down the objectives of the frames of the Constitution. The Constitution contains 395-Articles and 12 Schedules. A number of amendment passed have also become a part of this Constitution. The Constitution declares India to be a Sovereign, Secular, Socialist, and Democratic Republic. At the same time, India has federal features. The powers of the government are divided between the centred government and the state governments. The Constitution demarcates the powers of the central and estate governments into different lists of subjects. These lists ire called the Union List, the State List and the Concurrent List. The constitution provides for an independent and impartial judiciary and the Supreme Court is the highest court of the country. It decides disputes between the people and the government. The Constitution provides for the establishment of parliamentary form of government in India. The President is the nominal head of the state. In actual practice the administration is run by the Prime Minister and the Council of Ministers. The council of Ministers is responsible to the Parliament.

The Constitution of India guarantees Fundamental Rights to all its citizens. They have Right to Equality, Right to Freedom, right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. Taking inspiration from the Constitution'' of Ireland, framer of our constitution included the directive principles directions given to the central government and state governments to adopt such policies which would help establish a just society in our country. There are times when the country could not be run as in ordinary times. To cope with such difficult times, the constitution provides for the emergency provisions, which are it's another important features. Yet another unique feature of our constitution is that it is not as rigid as the American Constitution or as flexible as the British constitution. It means it is partly rigid and partly flexible. And so it can easily change and grow with the change of times.

Article 21 of the Constitution of India 

Article 21 of The Constitution of India states that "Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law"

Article 21 of the Constitution of India, a very familiar fundamental right, applicable to all persons under Part III of the Constitution of India. Meaning of term "life" is defined in Munn v. Illinois, 94 US 11, Field, J. spoke of the right to life in the following words:

"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with outer world."

Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only. If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person, such violation would not fall under the parameters set for the Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers. For example: company, autonomous body and others. Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State which are not according to procedure established by law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country. As far as Personal Liberty is concerned, it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). at that time Gopalans case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.

This view has been further relied upon in a case of Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others as follows:

Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful. The law of preventive detention has therefore now to pass the test not only for Article 22, but also of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. In another case of Olga Tellis and others v. Bombay Municipal Corporation and others, it was further observed: Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right must conform the norms of justice and fair play. Procedure, which is just or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. As stated earlier, the protection of Article 21 is wide enough and it was further widened in the case of Bandhua Mukti Morcha v. Union of India and others in respect of bonded labour and weaker section of the society.

It lays down as follows:
Article 21 assures the right to live with human dignity, free from exploitation. The state is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker section of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are therefore bound to ensure observance of the various social welfare and labour laws enacted by Parliament for the purpose of securing to the workmen a life of basic human dignity in compliance with the directive principles of the state policy.

The meaning of the word life includes the right to live in fair and reasonable conditions, right to rehabilitation after release, right to live hood by legal means and decent environment. The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P. and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:

  • The right to go abroad.
  • The right to privacy.
  • The right against solitary confinement.
  • The right against hand cuffing.
  • The right against delayed execution.
  • The right to shelter.
  • The right against custodial death.
  • The right against public hanging.
  • Doctors assistance
  • It was observed in Unni Krishnans case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life.

    As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in aftercare home have found place under it.

    Through various judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under.

  • Right to pollution free water and air.
  • Protection of under-trial.
  • Right of every child to a full development.
  • Protection of cultural heritage.
  • Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21. this scope further has been extended even to innocent hostages detained by militants in shrine who are beyond the control of the state.

    The Apex Court in the case of S.S. Ahuwalia v. Union of India and others it was held that in the expanded meaning attributed to Article 21 of the Constitution, it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered. If in any circumstance the state is not able to do so, then it cannot escape the liability to pay compensation to the family of the person killed during riots as his or her life has been extinguished in clear violation of Article 21 of the Constitution. While dealing with the provision of Article 21 in respect of personal liberty, Hon'ble Supreme Court put some restrictions in a case of Javed and others v. State of Haryana, AIR 2003 SC 3057 as follows: at the very outset we are constrained to observe that the law laid down by this court in the decisions relied on either being misread or read divorced of the context. The test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights. The lofty ideals of social and economic justice, the advancement of the nation as a whole and the philosophy of distributive justice- economic, social and political- cannot be given a go-by in the name of undue stress on fundamental rights and individual liberty. Reasonableness and rationality, legally as well as philosophically, provide colour to the meaning of fundamental rights and these principles are deducible from those very decisions which have been relied on by the learned counsel for the petitioners.

    The Apex Court led a great importance on reasonableness and rationality of the provision and it is pointed out that in the name of undue stress on Fundamental Rights and Individual Liberty, the ideals of social and economic justice cannot be given a go-by. Thus it is clear that the provision Article 21 was constructed narrowly at the initial stage but the law in respect of life and personal liberty of a person was developed gradually and a liberal interpretation was given to these words. New dimensions have been added to the scope of Article21 from time to time. It imposed a limitation upon a procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure which prescribed for depriving a person of life and personal liberty by saying that the procedure must be reasonable, fair and such law should not be arbitrary, whimsical and fanciful. The interpretation which has been given to the words life and personal liberty in various decisions of the Apex Court, it can be said that the protection of life and personal liberty has got multi dimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprived the life or personal liberty of a person would be against the provision of Article 21 of the Constitution.

    Scope of the Article 21

    The scope of Article 21 have been expands over the years through judicial pronouncements over the years.The Supreme Court of India in the famous Gopalan Case (1950) held that protection under Article 21 is available only against arbitrary executive action and not against arbitrary legislative action. It clarified that if personal liberty of an individual is taken away by a law, the validity of the law cannot be questioned. In the same case the Supreme Court held personal liberty would only mean liberty relating to the person or body of the individual.

    However, in the Maneka Gandhi Case (1973) the Supreme Court overruled its judgement in the Gopalan Case by widely interpreting Article 21. It stated that protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action by introducing the American concept of 'due process of law'. It pronounced the expression 'Personal Liberty' in Article 21 is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties of a man.

    The court's decision in Maneka Gandhi Case has been reaffirmed in the subsequent cases. In the way of widening the implications of personal liberty, in 1993, the Supreme Court recognized primary education as a fundamental right under Article 21.

    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.

    Right to Life Extends to Livelihood

    In 1960, the Apex Court was of the view that Article 21 of Indian Constitution does not guarantee right to livelihood.

    In Re Sant Ram, AIR 1960 SC 932 a case which arose before Maneka Gandhi, the Supreme Court ruled that the right to livelihood would not fall within the expression "life" in Article 21. The Court said curtly:

    "The argument that the word "life" in Article 21 of the Constitution includes "livelihood" has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21."

    Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 is case was brought by pavement dwellers to resist eviction of their habitat by the Bombay Municipal Corporation, that the right to livelihood is born out of the right to life, as no person can live without the means of living, that is, the means of livelihood. The Court has observed in this connection:

    "….the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 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 the death sentence, except according to procedure established by law. That is but one aspect of the right to life an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood."

    If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

    Deprivation of livelihood would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet such deprivation of life would not be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life.

    Right to work has not yet been recognised as a Fundamental Right. In Secretary, State of Karnataka v. Umadevi (3), AIR 2006 SC 1806 the argument of infringement on an expansive interpretation of Article 21 i.e., the right of employment was not accepted by the Supreme Court and the reason for that was amongst others, that the employees accepted the employment on their own violation and with eyes open as to the nature their employment. The Court also rejected the argument that the right to life under Article 21 would include the right of employment at the present point of time.

    (Justice Madan Mohan Das/December/NAM Today/2015)

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