Download Journey from Gopalan to Maneka: Expansion of Fundamental Rights under Article 21 and more Study notes Constitutional Law in PDF only on Docsity!
ARTICLE 21
JOURNEY FROM GOPALAN TO MANEKA
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
21. Protection of life and personal liberty.—
• No person shall be deprived of his life or
personal liberty except according to
procedure established by law.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
Early days: Little room for judicial creativity
- The framers of the constitution wanted to use specific words with definitive meaning - leaving little room for judicial creativity.
- The adjective ‘personal’ was used to qualify the noun ‘Liberty’ and
- the expression ‘procedure established by law’ was borrowed from Article 31 of the Japanese constitution and was substituted in place of the original phrase ‘due process of law’. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS A K Gopalan vs State of Madras, AIR 1950 SC 27
- Fact: A K Gopalan was put behind bars under the Preventive Detention Act 1950, which had just been enacted by the parliament.
- this detention order, along with the law under which it was passed, was subject to examination before the Supreme Court
- Issue: whether the supreme court, under the constitution, was enabled to decide on the reasonableness of the Preventive Detention Act. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
Justice Das:
- our constitution was a compromise between the notions of Legislative supremacy and judicial supremacy, which are respectively prevalent in the UK and in the USA.
- subject to the limitations imposed by the constitution, the legislature was supreme in India. Therefore, if within the sphere of its authority the legislature abused its power, the courts could not provide a remedy.
- the court must take the constitution as it finds it. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS THE MAJORITY JUDGES (4)
- Were not ready to read articles 19 and 21 together.
- Article 19 talked of restriction, whereas Article 21 provided for total deprivation;
- Article 19 applied only to citizens whereas Article 21 applied to all persons
- Article 19 did not contain anything equivalent to the right to life guaranteed under article 21
- nor did it contain several aspects of personal liberty guaranteed under the article, such as the right to eat, drink, work or play
- ‘ personal liberty’ would mean Liberty of the physical body and is quite different from the freedom guaranteed under article 19(1),
- Including the freedom to move throughout the territory of India DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
Justice Fazal Ali (Minority view)
- He disagreed with the approach of the above four judges
- held that ‘ law’ meant valid law and procedure meant a certain definite rule of proceeding and not something which was a mere pretence for the same.
- Referring to the book of Professor Willis on Constitutional law, he said that such procedure should have four elements: 1. Notice 2. opportunity to be heard 3. an impartial Tribunal 4. orderly course of procedure
- the provisions of articles 19, 21 and 22 were not mutually exclusive, and there was considerable overlapping between them.
- In his view, the right to free movement was the essential part of the right to DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY personal liberty. ATUL KUMAR TIWARI’S CLASS POST GOPALAN DEVELOPMENT H M Seervai has pointed out that
- if the term personal liberty is interpreted so liberally as to include the freedoms
guaranteed under article 19 (1), the whole purpose of restricting the scope of Article
19 (1) rights limited to citizens alone would get defeated
- It was possible to interpret personal liberty much more expensively and without
disturbing the strategic proposition that article 19 (1) right and personal liberty in
article 21 were distinct and separate from each other. In subsequent years
opportunities arose for the supreme court to do the same.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
…KHARAK SINGH
- COURT: ● unanimously held that part of the regulation which authorised domiciliary visits at night was violative of personal liberty under Article 21. ● The majority judgement for four judges was delivered by justice Ayyangar ● liberty was qualified by the adjective personal ● the only function that the adjective served was to keep the scope of the freedom under Article 19 (1) (a) separate from that of Article 21 ● Personal liberty in Article 21 was used as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties of men other than the rights separately guaranteed under several clauses of article 19(1) ● the majority was not ready to interpret personal liberty to include the right to privacy DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS JUSTICE SUBBA RAO (MINORITY OPINION)
● Two judges (minority) - held that the rest of the regulation was also void for
violation of Articles 19 (1) (a) and (d)
● personal liberty is wide enough in its meaning so as to include the right to
privacy
● right to personal liberty under Article 21 had many attributes, some of which
were already guaranteed under article 19 (1)
● this would mean that a law interfering with some such aspect of personal liberty
must satisfy the requirements of both articles 19 and 21.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
SATWANT SINGH SAWHNEY V. D. RAMARATHNAM, AIR 1967 SC 1836
● It was held that personal liberty under Article 21 includes the right to travel
abroad.
● Chief Justice Subba Rao speaking for the majority, said that the essence of
personal liberty lay in the right of free movement.
● Since movement within the territory of India is covered under Article 19 (1)(d)
● the residue, i.e. the right to move outside the territory of India, must be understood
to be comprised of the guarantee of personal liberty under Article 21.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS (II) APPLICABILITY OF ARTICLE 19
- Question- can a petitioner call into question a law both under Article 19 (1) and Article 21 on the ground that the rights under the two provision overlap?
- in Gopalan, the majority refused to adjudge the constitutionality of the preventive detention law on the touchstone of Article 19.
- this has been construed as representing the thesis that each article embodying a fundamental right was a separate Island, conceptually separated from other fundamental rights.
- -this is one of the sins attributed to Gopalan decision, and the accusation has been repeated in several cases, including in Maneka Gandhi DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
MANEKA GANDHI V. UNION OF INDIA, AIR 1978 SC 597 7 JUDGES After the Supreme Court decision in Satwant Singh that personal liberty under article 21 included within its fold the right to travel abroad, Parliament passed the Passport Act 1967, and clothed the then existing executive authority of the Government of India with law in the matter of- ● Issue ● impounding and ● cancellation of passports
- Section 10 (3) (c ) - The passport officer as well as the Government of India have the power to impound the passport for various reasons including the ‘interest of the general public’.
- Section 10 (5) - Reasons must be recorded for taking the decisions and supplied to the aggrieved person if he demands. But this may be withheld for certain regions including the ‘interest of the general public’.
- Section 11 - If the decision is of an authority other than the central government, an appeal can be preferred to the central government under the Act. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS …MANEKA GANDHI FACTS: ● Maneka Gandhi’s passport was impounded by the government ● When she asked the reasons for the decision, she was told that the same could not be disclosed in the ‘interest of the general public. ● She filed a writ petition in the Supreme Court challenging the constitutionality of the order and that of section 10 (3) (C), for violation of Article 14 because of their arbitrary nature. ● The petition was amended and it was also contended that the impugned order and the provisions of the Passport Act, 1967 also violated her fundamental rights under Article 21 and Article 19 (1) (a) and (g). ● At the hearing, the attorney-general gave an undertaking that the government would consider expeditiously any representation made by the petitioner, and that, in case the decision was finally to impound the passport, it would not be for more than 6 months. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
…MANEKA GANDHI
SEVEN JUDGE BENCH OF THE COURT DIFFERED ON CERTAIN ISSUES
(6:1)
● The petition was disposed of without any formal order and pending the final decision by
the government, the petitioner's passport was to remain with the registry of the
Supreme Court
● Justice Kailasham Took a different view
● the principal majority judgement was delivered by Justice Bhagwati for himself and two
other judges
○ Chief justice Baig, Justice Chandrachud and Justice Krishna Iyer in separate but
brief judgements expressed their general concurrence with justice Bhagwati.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS …MANEKA GANDHI
- The right to travel abroad was a part of the right under Article 21 and not that of Article 19 (1) (a) or 19 (1) (g)
- If a citizen was prevented from going abroad so as to interfere with the exercise of his right under Article 19 (1) (a) and (g), the action of the government will have to satisfy the requirements of not only Article 21 but also of Article 19(2) or (6) as the case may be
- Fundamental rights guaranteed under different articles overlapped with each other and did not constitute exclusive separate zones
- Content of personal liberty guaranteed under Article 21 to a large extent also partook of the rights guaranteed under Article 19 (1)
- The ‘procedure established by law’ under Article 21 meant ‘fair and reasonable procedure’ and not an arbitrary procedure. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
ARTICLE 21
EXPANSION OF THE RIGHT TO ‘LIFE’ AND ‘PERSONAL LIBERTY’
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
RIGHT TO LIFE:
IT'S MEANING AND CONTENT
- Judges have generally borrowed the content either from
- Directive Principles of State Policy or
- from International conventions to which India is a party, even though the convention
has not yet been made a part of domestic law by appropriate legislation.
- This way it cannot be alleged that the judges are translating their own personal preferences as part of enforceable constitutional law.
- And in the process a large number of unenumerated rights have been judicially created most of these rights are part of the right to life. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
Judicial creativity: two different ways
- If the constitution uses a term which has the potential of having a very broad meaning, for example, - the right to freedom of expression in Article 19 (1) (a) or the right to personal liberty in Article 21, - it becomes a matter of pure policy and practicability regarding how much of it should be earmarked as part of a legally or constitutionally protected right.
- But the courts, at times, also resort to creating concomitant rights, rights which help to make the expressly guaranteed rights more effective and meaningful. - For example the right to life in its narrowest meaning will be the right to remain alive. - Little broader meaning of the term will bring into its fold the right to the sanctity of bodily Limbs and sense-organs as well. - A concomitant meaning will add things which help to sustain life, like food, shelter and clothing. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS RIGHT TO LIFE: GENERAL SCOPE
- All the rights, legal or constitutional, belong to the living.
- Therefore the right to life must be accepted as the most important, indeed the Paramount right of each individual.
- The right to self-preservation is the natural instinct.
- That it is an inherent right of each of us is exemplified by the fact that criminal laws of all societies conceived the legitimate exercise of force of self-defence.
- Therefore it is in the fitness of things that the constitution of India guarantees the right to life which cannot be taken away except according to procedure established by law. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
EXPANSION OF FUNDAMENTAL RIGHTS For the sake of clarity, we shall discuss the judicially recognised interests related to the right to life by putting them into three categories:
- Rights which are purely constitutional in character and possess an element of legal sanction
- Rights which are simultaneously ordinary legal rights and constitutional rights and carry legal sanction at both the levels.
- Interests which are judicially recognised but still fall short of the standard required for calling them a right, legal or constitutional. DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS EXCLUSIVELY CONSTITUTIONAL RIGHTS DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
In this category, we shall discuss two rights - the right to education and the right to
livelihood.
Right to Education:
- After the enactment of the Constitution (Eighty-Sixth Amendment) Act 2002 Article 21-A
has been inserted into the Constitution.
- It says that “The State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may, by law, determine.”
- Article 45 in part IV now read that “the state shall endeavour to provide early childhood
care and education for all children until they complete the age of six years”. therefore,
now the right to education is no more unenumerated.
MOHINI JAIN VS STATE OF KARNATAKA (1992) 3 SCC 666 DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
- A two-judge bench declared education as a concomitant right related to the right to life because
- without it other rights would lose their vitality.
- the right was declared in a positive tone and apparently in an absolute form.
- It was said that the right to education extended to all stages, including Medical and Technical Education. …MOHINI JAIN DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
- The court held that to ask students admitted against a non- government seat to pay Rs. 60000/- as a fee
- when a student admitted against a government seat was required to pay only Rs. 2000/- amounted to imposition of capitation fee.
- The court held that the prescribed fee structure was invalid because it violated Articles 14 and 21 of the Constitution.
- The right to equality under article 14 was infringed because the rule prescribing Rs. 60000/- per annum as fee was arbitrary.
… UNNI KRISHNAN DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
- Unni Krishnan did not reverse the creative advance made by the Supreme Court in Mohini Jain.
HELD:
- while the right to primary education including upper primary was a fundamental right,
- the right to education at other levels was dependent on the states resources, its financial capacity and the
comparative priority given to it in the midst of other basic demand.
- Though the court was not ready to equate private educational enterprise with private commercial
Enterprise, it, nevertheless, could not ignore the basic fact that an unaided institution have to find
resources somewhere.
- in the absence of any better alternative, the court could not say that the institution should be disabled
from charging extra fees from the candidate to be admitted, especially when there were many who
were willing to pay,
- But, then, education could not be allowed to go to the highest bidder.
- The court created a judicially enforceable right to education in a limited sense as part of the right to life
under article 21 of the constitution.
RIGHT TO LIVELIHOOD OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION, (1985) 3 SCC 545
- The Bombay Municipal Corporation (BMC) was going to evict pavement dwellers and slum dwellers.
- It contended that they caused obstruction to the exercise of the ‘right of passage’ and ‘re-passage’ by the pedestrian and also created difficulties in repair and other work.
- Writ petitions were filed contending that this threatened action amounted to unwarranted interference with the ‘right to life’ of the pavement dwellers.
- It was argued that the pavement dwellers comprised poor people who had migrated to Bombay in search of some work to earn their livelihood.
- They lived on the pavements because they had no other place to go to and also because their place of work was nearby.
- Their eviction was tantamount to depriving them of their livelihood which was part of the ‘right to life’ DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY^ guaranteed under Article 21. ATUL KUMAR TIWARI’S CLASS
CHIEF JUSTICE CHANDRACHUD,
DELIVERING THE JUDGEMENT OF THE UNANIMOUS CONSTITUTION BENCH
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
- Held the ‘right to life’ included ‘right to livelihood’.
- He pointed out that none could live or survive without the means of livelihood.
- The easiest way to deprive a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
- Therefore, to ensure that constitutional protection was not indirectly breached it would be necessary to recognise this realistic and pragmatic preposition as a principle of law that the right to life included the right to livelihood. ARTICLES 39(A) AND 41
- The Chief Justice also referred to Articles 39(a) and 41 in the chapter on Directive
Principles of State Policy.
- The former provision provides that the state shall direct its policy towards securing that
all citizens, both men and women, have the right to adequate means of livelihood.
- The latter provision directs the state within the limits of economic capacity and
development to make effective provisions for securing the right to work.
- He conceded that given the constraints of Article 37 the directives are not specifically
enforceable by a court of law. But they are fundamental in the Governance of the country
and they are to be kept in view in the making of laws.
DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY ATUL KUMAR TIWARI’S CLASS
