Article 21

Article 21

“No person shall be deprived of his life or personal liberty except

according to the procedure established by law.”

Borrowed from 5th US Constitutional Amendment: “ no person shall be

deprived of his life, liberty or property, without the due process of law”.

“Life”

“Personal liberty”

“Procedure established by law”

Procedure Established by Law: Initial Interpretation

A.K. Gopala v. Union of India 1950

The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas
corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the
Constitution and was consequently ultra rites and that his detention was therefore illegal.

The mai question was whether the ‘procedure established by law’ envisaged under Article 21 was to mean any procedure or a procedure which is
just and fair?

Fair law: The Court ruled by majority that the word ‘law’ in Article 21 could not be read as including the principles of natural justice. The term law
would mean procedure as laid down under the enacted law and not which lays down some vague standard.

Relationship between Article 21, 22 and 19: Court pointed out that term ‘personal liberty’ in Article 21 in itself had a comprehensive content and,
ordinarily would include freedoms from arrest or detention, but also various freedoms guaranteed by Article 19. However, reading Article 19 and
21 together, Article 19 must be held to deal with a few specific freedoms mentioned herewith and not freedom from detention and punitive action.

Thus a law depriving personal liberty had to conform with Article 20 and 22 and not with Article 19. Hence a preventive detention law would be
valid so long as it conformed with Article 22 and would not be required to meet the challenge of Article 19.
Due process vs procedure established by law

“Due process” is interpreted to mean just, proper and reasonable. It has two aspects
Substantive due process ( substantive provision of law should be reasonable and not
arbirtrary)
Procedural due process (reasonable procedure, notice, opportunity to be heard, an
impartial tribunal, orderly procedure).
Constituent Assembly deliberately dropped the phrase “due process” from Article 21.
Court in A.K. Gopalan held that to deprive a person of life or personal liberty there
must be (a) law (b) it should lay down a procedure © the executive should follow the
procedure while depriving a person of right to life and personal liberty.
Gopalan to Maneka Gandhi 1978

The historical Backdrop of Emergency and inadequacy of A.K. Gopalan.

A.D.M. Jabalpur v. Shivkant Shukla 1978

In maneka Gandhi Court laid down some important aspect of Art 21:
- Art 14, 19 and 21 are not mutually exclusive. The Golden Triangle
which means that a law prescribing a procedure for depriving a
person of ‘personal liberty’ has to meet the requirement of Art 19.
Procedure established by law in Art 21 must meet the requirement
of Article 14 as well.
The narrow interpretation given to Article 21 in Gopalans case was rejected by a 9-Judge Bench of the Supreme Court in Maneka
Gandhi case . Court held as follows: … The expression “personal liberty” in Article 21 is of widest amplitude and it covers a variety
of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental
rights and given additional protection under Article

…. The Court held that the expression “personal liberty” is not confined to the person or body of the individual but it includes all
those rights which constitute the making of a man. It was also held that “procedure established by law” means “fair, just and
reasonable procedure” and that it should not be “fanciful, oppressive or arbitrary”. By holding so, the Supreme Court accepted due
process clause which was expressly rejected in Gopalan case.
‘ life’

Munn v. Illinois: Life means more than mere animal existence

Francis Coralie v. Delhi 1981: Right to live with human dignity and all
that goes along with it.

Olga Tellis v. Bombay Municipal Corporation 1986

Right to Environment

Right to Education (Art 21- A) Unnikrishnan v. State of A.P.

‘Personal Liberty’

Sunil Batra v. Delhi Administration 1980

Hussainara Khatoon v. State of Bihar 1979
Right to Privacy

In 1962, while deciding the Kharak Singh vs State of UP (AIR 1963 SC 1295),
the Court examined the power of police surveillance with respect to
historysheeters and it ruled in favour of the police, saying that the right of
privacy is not a guaranteed right under the Constitution.

The Supreme Court while hearing the Gobind vs State of MP & ANR [1975
SCC(2) 148] case introduced the compelling state interest test from the
American jurisprudence. The court stated that right to privacy of an individual
would have to give way to larger state interest, the nature of which must be
convincing. With time, the domain of privacy has expanded and it has come to
incorporate personal sensitive data such as medical records and biometrics
In 2015, this interpretation was challenged and referred to a larger
Bench of the Supreme Court in the writ petition of Justice K.S
Puttaswamy & Another vs. Union of India and Others [Writ Petition
(civil) No. 494 of 2012] 4 . The Court in a landmark judgement on 24
August, 2017 unanimously ruled that privacy is a fundamental right,
and that the right to privacy is protected as an intrinsic part of the
right to life and personal liberty, as a part of the freedoms guaranteed
by Part III of the Constitution. The Bench also ruled that the right to
privacy is not absolute, but is subject to reasonable restrictions
 Declaring that any action of the State has to be tested on the touchstone of Article 14, 19 and 21 of the Indian Constitution, the Court
noted that a restriction on any right must also satisfy the test of judicial review under (a) the grounds specified under Article 19(2) of
the Constitution (primarily in the interest of sovereignty and security of the State, public order, decency, morality etc.) and (b) the
restriction should be reasonable. On the latter, the Court sought to apply various standards, including application of the test of
legitimate aim and the doctrine of proportionality. Notably, the Court also analysed if it should apply “strict scrutiny” standard or the
“just, fair and reasonableness” standard to determine the legality of the Act. These aspects are analysed in detail below:

Doctrine of Proportionality:

Under the principle of proportionality, an action of the State allegedly violating the right to privacy is required to be tested on three
parameters: (a) the action must be sanctioned by law; (b) the proposed action must be necessary in a democratic society for a
legitimate aim; and (c) the extent of such interference must be proportionate to the need for such interference. Subsequent to an
exposition of the understanding of proportionality in various jurisdictions, the Court settled that four sub components of
proportionality need to be satisfied, these include:

(a) a measure restricting a right must have a legitimate goal (legitimate goal stage);

(b) it must be a suitable means of furthering this goal (suitability or rationale connection stage);

(c) there must not be any less restrictive but equally effective alternative (necessity stage); and

(d) the measure must not have a disproportionate impact on the right holder (balancing stage).
In determining the application of the proportionality principle with respect to the necessity stage (component ‘c’), the Court, relying
on the judgment in Puttaswamy I, adopted David Bilchitz’s analysis to declare that the following can be adopted to preserve a
meaningful but not unduly strict role for the necessity stage. First, a range of possible alternatives to the measure employed by the
Government must be identified. Second, the effectiveness of these measures must be determined individually; the test here is not
whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a “real and
substantial manner.” Third, the impact of the respective measures on the right at stake must be determined. Finally, an overall
judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable. In
doing so, the Court also emphasized the importance of having a legitimate goal that is of sufficient importance to warrant overriding a
constitutionally protected right.

In applying the test of proportionality – the Court held that (a) since Aadhaar Act serves a legitimate State aim (legitimate goal stage),
restriction on the right to privacy is justified, (b) since there is no alternative “less restrictive” measure which can achieve the same
purpose, the Aadhaar Act also passed the muster of necessity (necessity stage), (c) there was a rational nexus between the provisions
of the Act and the goals which it sought to attain (rationale connection stage), and (d) the Aadhaar Act struck a fair balance between
competing fundamental rights (i.e.) (balancing stage).
ARt 21 and DPSP

Article 37

State of Madras v. Champakam Dorairajan 1951 (Art 15(1), 29(2) vs. Art. 46)

Kesavananda Bharti v. State of Kerala 1973 (Article 31 C, Harmonious Interpretation)

42nd Constitutional Amendment – Article 31C (Supremacy of Part IV over Art 14, 19, and 31)

Minerva Mills Ltd. V. Union of India 1978

State of Kerala v. N.M. Thomas 1976

Slaughter of animals- Qureshi v. State of Bihar 1958, State of Gujrat v. Mirzapur Moti Kureshi Kassab Jamat 2005 (Art 19(1)(g) v. Ar 48)

Article 21 and its role in enforcing DPSP

Unnikrishnan v. State of Andhra Pradesh 1993 (Art 45, 41)

Art 21- A

Bandhua Mukti Morcha v. UoI 1984

Subhash Kumar v. State of Bihar 1991, M.C. Mehta v. UoI 1988, 1999, 1997, Vellore Citizens Welfare Forum 1996 (Right to Environment)

CERC V. UOI 1995 (Health of labours- Art 39, 41, 43, 48 A)