Thursday, October 20, 2016

Article 21 of Indian Constitution Right to Life and Personal Liberty

The Article 21 of Indian Constitution sates that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It is headed under Protection of life and personal liberty. Although, the sentence structure here starts with no, which might suggest negativity, it means deprived. It is a fundamental right included in Part 3 of the Indian Constitution. In simpler words, it means that invading or inhibiting or obstructing a person’s liberty, i.e. freedom, or depriving him of the opportunity to live is prohibited, except through some legal procedure. Moreover, this right is for the Indian citizens as well or foreigners.

Before I proceed and explain what all is included in the right to life and liberty, I think it would be really beneficial if we govern the phrase, "procedure established by law". This phrase, although pretty straightforward, has a great significance. Another phrase which might have been used in place of this is, "due process of law". It was intentionally left out of the constitution by the members of the assembly. The due process of law doctrine is being followed in the United States of America but in recent judgments, it is coming back into light. I am going to explain the difference between the two phrases in a moment. Right now, all you need to know is that "due process of law" has a wider scope than "procedure established by law". Think of it as a super-set to the latter.

Procedure Established by Law:

We are all familiar with the process of passing of a new law. Before being called a law, it is known as a bill, introduced in either the lok sabha or the rajya sabha. Then there's the final nod from the president. It’s a very basic simplification. There's a lot more that goes into this, but we'll go over that some other time.

Now, there are some laws that are passed in the parliament which we hear through our media being called as immoral or unfair. But they are still passed and enacted.
Article 21 of Indian Constitution
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"Procedure Established by Law" simply means any law that has been passed by the parliament is final and ultimate.  In regards to Article 21 of Indian Constitution, it means that the right to life and liberty is subject to a procedure established by law. If a law, which has been passed in the parliament, seemingly unfair, which might stand in the way of a person's right to life and his personal liberty, even then it would not be considered as a violation and will not be nulled. This gives way for a rather unfair treatment in case the authorities pass an unfair law. For example, one of the most controversial topic in this regard is the right to privacy.

Even in America, we have heard about the various immoral eaves droppings by government bodies like the CIA on private conversations.

Talking about India, a case came into light in Gujarat when the current Prime Minister Narendra Modi was the chief minister when a suspected group of terrorists were spied upon. There phones and other personal means of conversations were being eavesdropped. This spread like a wildfire and the question about the right to privacy caught speed.

The use of the phrase "procedure established by law" makes it clear that an act of parliament may override all that comes under the right to life. That doesn’t mean that they can take our right to life. The right to live contains not only the privilege to breathe, but the quality of our life too like clean air and such. I will talk about it in a few moments.

Due process of Law:

Under due process of law, it is important to check if a law that is either being passed or has been passed in the past, violates a fundamental right or not. In other words, the fairness of a law is under very high consideration. If in any case, the Supreme Court thinks that a law is unfair on any level, it can render it null and void. This procedure gives great value and importance for a law to be fair and just, keeping a just view of the fundamental rights.

I hope the difference is now clear. Because of this difference, the need of due process of law replacing procedure established by law is being felt by the apex court. Although it will prove to be a little difficult but will consequently improve the quality of our lives and the justice we are served.

Right to live:

The right to live in accordance with this Article 21 of Indian Constitution not only includes our right to keep breathing, but over the years, various judgments have been passed by the supreme court which make it clear that the right to live should also incorporate the quality of life led by the citizens of our country. Not only our country, but also, any human being, who comes in India can claim this right. The quality of life may include many things. When we combine the quality of life and the right to live, we get Implied Fundamental rights. Meaning, the rights which are implied and need not be mentioned separately.

Implied Fundamental Rights under Article 21 of Indian Constitution:

Right to Speedy Trial
Right to Travel Abroad
Right to Dignity
Right to Privacy
Right to Clean Environment
Right to Livelihood
Right to Marriage
Right against Torture
Right against Bondage
Right to Legal Aid
Right to Food.

Right to Liberty as Interpreted under Article 21 of Indian Constitution:

Liberty means freedom in a wide sense. To be free doesn’t simply mean immunity from arrest and detention. It also includes the right to speech and association even a right to protest, peacefully that is.

Article 21(a) of Indian Constitution -

In 2002, with the 86th Amendment act, the right to free and compulsory education was added. It makes it mandatory for the state to provide free and compulsory education to all children from 6 to 14 years of age.

Rape as a violation of right to life:

Yes. The right to life includes the right to dignity. And I think we can all agree that rape is the ultimate violation of this right. Don’t take my word for it. Here’s an example.

In Bodhisattawa Gautham v. Subhira Chakroborthy, it was concluded that rape is a crime against the person and also against our society. It destroys the psychology of a woman, taking away her feeling of security and pushes her into deep emotional crisis. It is a crime against basic human rights, violating the right to life”

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