ARTICLE 21 AS THE SOURCE OF SUBSTANTIVE RIGHT

The Constitution of India 1950 (the Constitution) is a transformative document, in which

provisions embodying level-headed practicality and administrative detail stand alongside
articles which aim to spark and shape social and economic revolutions within India. In
particular, Parts III and IV of the Constitution the Fundamental Rights and the Directive
Principles of State Policy comprise the conscience of the Constitution, allowing for the
simultaneous achievement of massive social and economic transformation and the preservation
of individual liberties.i
The Fundamental Rights are generally phrased in negative terms as it prohibits the State from
restricting individual liberty or requiring that the State abstain from prejudicial action.
Fundamental Rights listed in Part III of the Constitution are enforceable against state as defined
by Article 12 of the Constitution on Constitution. The State is also enjoined not to make any law
which takes away or abridges the rights conferred by Part III of the Constitution of India and any
law made in contravention shall be void to the extent of the contravention.ii
So far as Article 21 under Chapter III of the Constitution on India is concerned, it guarantees all
its citizens fundamental rights to life, to dignity, to speech and expression, to education and
information. Despite its ordinary terms, that is, no person shall be deprived of his life or personal
liberty except according to procedure established by law, it has become an extraordinarily broad
guarantee of the right to live with human dignity iii, encompassing, when interpreted in light of
the Directive Principles, implicit rights to the basic necessities of human existence, education,
healthcare, and a healthy and sustainable environment.
Article 21 as source of Substantive Rights
Article 21 of the Constitution of India read as
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 can only be claimed when a person is deprived of his life or personal liberty by
the State as defined in Article 12. Article 21 applies to natural human beings. The right is
available to every person, citizen or alien. Thus, even a foreigner can claim a right under this
article.
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This Article is couched in a negative form and enjoins the State not to deprive any person not
necessarily only a citizen, of his life or personal liberty except according to procedure
established by law.
Article 21 secures two rights:
(i)
(ii)

Right to life; and

Right to personal liberty.

3.1 Right to Life

The right to life is undoubtedly the most fundamental of all rights. Everyone has the right to life,
liberty and the security of person. All other rights add quality to this right and depend on the preexistence of life itself for their operation. As human rights can only attach to living beings, one
might expect the right to life itself to be in some sense primary, since none of the other rights
would have any value or utility without it. There would have been no Fundamental Rights worth
mentioning if Article 21 had been interpreted in its original sense.
The term life as mentioned in the Article 21 of the Constitution has been broadly interpreted by
the Supreme Court. Right to Life does not merely mean the continuance of a persons animal
existence but a quality of life. In the case of Kharak Singh v. State of Uttar Pradesh iv, the
Supreme Court held that, By the term life is meant something more 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 amputation of an
armor leg or the pulling out of an eye, or the destruction of any other organ of the body through
which the soul communicates with the outer world.v
Article 21 has a much wider meaning which includes right to live with human dignity, right to
livelihood, right to health, right to pollution free air, etc. Right to life is fundamental to our very
existence without which we cannot live as human being and includes all those aspects of life
which go to make a man's life meaningful, complete and worth living. It is the only article in the
Constitution which has received the widest possible interpretation. Under the canopy of Article
21 so many rights have found shelter, growth and nourishment. Thus, the bare necessities, the
minimum and basic requirements which are essential and unavoidable for a person is the core
concept of right to life.

In case of Francis Coralie v. Union Territory of Delhivi, the Supreme Court observed that the
right to life includes the right to live with human dignity and all that goes along with it, namely
the bare necessities of life such as adequate nutrition, clothing, and shelter and facilities for
reading, writing, and expressing oneself in diverse forms, freely moving about, mixing and
commingling with fellow human beings, of course the magnitude and economic development of
the country, but it must in any view of the matter, include the right to the basic necessities of life
and also the right to carry on such functions and activities to constitute the bare minimum
necessities of the human life.
Again in the case of Sunil Batra v. Delhi Administrationvii, the Supreme Court observed that the
right to life included the right to lead a healthy life so as to enjoy all faculties of the human
body in their prime conditions. It would even include the right to protection of a persons
tradition, culture, heritage and all that gives meaning to a mans life. It includes the right to live
in peace, to sleep in peace and the right to repose and health.
The expanded scope of Article 21 has been explained further in the case of Unni Krishnan v.
State of A.P.viii In the case the court provided the list of some of the rights covered under Article
21. Some of them are listed below:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)

The right to go abroad

The right to privacy
The right to education
The right against solitary confinement
The right against hand cuffing
The right against delayed execution
The right to shelter
Right to livelihood
Right to health and medical aid
The right against custodial death
The right against public hanging
Doctors assistance

Through various judgments the Court also included many of the non-justifiable Directive
Principles embodied under part IV of the Constitution. Some of them are:
(a) Right to pollution free water and air
(b) Protection of under-trial
(c) Right of every child to a full development
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(d) Protection of cultural heritage.ix

3.2 Right to Personal Liberty
The expression personal liberty used in Article 21 has also been widely interpreted by the
Supreme Court. It does not merely mean freedom from physical restraints or freedom from
confinement within bounds of a prison. In other words, it means not only freedom from arrest or
detention from wrongful confinement or false imprisonment, but it means much more than that.
The term personal liberty is not used in a narrow sense but has been used in Article 21 as
compendious term to include within it all those variety of rights of a person which go to make up
the personal liberty of a man.
In the case of A.K. Gopalan v. State of Madrasx, the Supreme Court took a liberal view of the
expression personal liberty. The court held that the expression personal liberty did not
include all that was implied in the term liberty. So interpreted the expression personal liberty
meant nothing more than the liberty of physical body i.e., freedom from arrest and detention
from false imprisonment or wrongful confinement.xi
In Maneka Gandhi v. Union of Indiaxii, the Supreme Court expanded the horizons of the term
Personal Liberty to give it the widest possible meaning. The Court held:
The expression personal liberty in Article 21 is of the widest amplitude and it
covers a variety of rights which go to constitute the personal liberty of a man and
some of them have been raised to the status of distinct fundamental rights and given
additional protection under Article 19.
Various aspect of the right to personal liberty are discussed in the various facets of personal
liberty that follow:
Right to Privacy
Privacy can be defined as the state of being free form intrusion or disturbance in ones private
life and in affairs.
In the case of R. Sukhanya v. R. Sridhar,xiii the Court held that the publication of matrimonial
proceedings, meant to be conducted in camera, as invasion of right of privacy and more
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importantly the Court also held that the rightful claim of an individual to determine to which he
wishes to share himself with others and control over the time, place and circumstances to
communicate with others.
In R. Rajagopal v. State of Tamil Naduxiv, the Supreme Court has asserted in recent times the
right to privacy has acquired constitutional Status; it is implicit in the right to life and liberty
guaranteed to the citizens by Article 21.
Right to go Abroad
In the year 1967 the court for the first time in the case of Satwant Singh v. Assistant Passport
Officer, New Delhixv held that right to travel abroad contained in by the expression personal
liberty within the meaning of Article 21. Later in Maneka Gandhi v. Union of Indiaxvi, it was
held that a procedure established by law was required in depriving a person of his personal
liberty which included the right to travel abroad. The procedure mentioned herein should not be
arbitrary, unfair or unreasonable.
Right against Illegal Detention
The Supreme Court in the case of Joginder Kumar v. State of Uttar Pradesh xvii laid down the
guidelines governing arrest of a person during investigation:
(i)

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

(ii)

where he is being detained.

The police officer shall inform the arrested person when he is brought to the police

(iii)

station of this right.

An entry shall be required to be made in the diary as to who was informed of the
arrest.

Further in the D.K. Basu v. State of West Bengal,xviii 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.
Thus the principles of natural justice are firmly grounded in Article 21 of the Constitution. With
the introduction of concept of substantive and procedural due process in Article 21, all that
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fairness which is included in the principles of natural justice can be read into Art. 21. Though the
sun of Article 21 would never set completely in a democratic set up like India but this article
would live in all its sublimit for eternity to serve the people of India whenever and whatever they
would be in distress relating to anything having to do with their lives and personal liberties.

i Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court (2009) 8

Washington University Global Studies Law Review. Also see Albert H. Y. Chen, Pathways of Western
Liberal Constitutional Development in Asia: A Comparative Study of Five Major Nations (2010) 8
International Journal of Constitutional Law 849, 855: The Indian Constitution was designed not only
to establish political structures and declare fundamental rights and freedoms but also to bring about
social reform. cited in McDonald Douglas, The Meaning of Life:Socio-Economic Rights under Article
21of the Indian Constitution
ii H. R. Khanna, Making of Indias Constitution (2nd ed, 2008) 87
iii CERC v Union of India AIR 1995 SC 922.
iv AIR 1963 SC 1295
v MP Jain, THE CONSTITUTION OF INDIA, LexisNexis Butterworths WadhwaNagpur, Gurgaon,

2010
vi AIR 1981 SC 746
vii AIR 1978 SC 1675
viii AIR 2178, 1993 SCR (1) 594
ix Vidhan Maheshwari, Article 21 of The Constitution of India - The Expanding Horizons
x AIR 1950 SC 27
xi Vijay Jaiwal, Right to Life and Personal Liberty in Indian Constitution posted in Indian Constitution on

September 3, 2013
xii AIR 1978 SC 597
xiii AIR 2008 Mad. 244
xiv AIR 1995 SC 264
xv AIR 1967 SC 1836

xvi AIR 1978 SC 597

xvii AIR 1994 SC 1349
xviii AIR 1997 SC 610