JUDICIAL INTERPRETATION OF ARTICLE 21 OF THE INDIAN CONSTITUTION
TABLE OF CONTENTS
List of Abbreviations................................... 5
List of Law Reports................................... 6
1.1 Introduction................................... 8
2.1 Meaning and Concept of ‘Right to life’................................... 13
2.2 Meaning and Concept of ‘Personal Liberty’................................... 15
2.3 Procedure Established by Law................................... 17
2.4 Article 21 and Directive Principles of the State Policy................................... 22
2.5 Article 21 and International Human Rights Documents................................... 25
Article 32 of the Indian Constitution: A Provision to Enforce Article 21................................... 29
3.1 The Traditional Approach................................... 32
3.2 The Foundations of Change and the Beginning of New Era................................... 33
4.1 The Current Trend................................... 36
4.2 Judicial Activism................................... 38
4.3 How far Judicial Activism is justified? ................................... 43
4.4 Judicial Activism v Doctrine of Separation of Powers................................... 59
4.5 Judicial Activism and Self-Restraint................................... 63
5.1 Conclusion................................... 67
International Human Rights Instruments /
Declarations / Resolutions................................... 79
Selected Daily Newspapers and Other Sources................................... 80
I take this opportunity to thank all who have been of immense help to me while writing this research paper. I am extremely indebted to Prof. Dr. Adrian Hunt, University of Birmingham, UK for his valuable guidance, timely advice and constant support while writing this work, which has helped me to streamline my thoughts and writing.
Over and above all, I owe more than I could express my immense debt of gratitude to my grandfather ‘Dadaji’ Mr. Kantilalji M. Ostwal whose presence I shall always miss. I would also like to thank my parents, Dilip K. Ostwal and Ujjwala D. Ostwal, who stood by me all along and without whose moral and financial support I would not have been what I am today.
I also extend my deep sense of gratitude to the learned authors whose works I have consulted and referred and which has been enlisted in the Bibliography. Last but not least, I extend my sincere thanks to all my friends who have given me a lot of confidence while I was working on this essay. The opinions expressed in this essay are entirely mine and I alone take the full responsibility for any shortcomings.
CAD Constituent Assembly Debates
CONST Constitution of India, 1950
CR.P.C. Code of Criminal Procedure, 1973
ICCPR International Covenant on Civil and Political Rights, 1966
GA General Assembly of the United Nations
IPC Indian Penal Code, 1860
NHRC National Human Rights Commission, India
SC Supreme Court [Supreme Court of India]
SLP Special Leave Petition
UDHR Universal Declaration of Human Rights, 1948
WP Writ Petition
LIST OF LAW REPORTS
Abbreviation Title Jurisdiction
AIR All India Reporter India
SCC Supreme Court Cases India
SCR Supreme Court Reports India
Cr.LJ Criminal Law Journal India
WLR Wales Law Reports UK
JUDICIAL INTERPRETATION OF ARTICLE 21 OF
THE INDIAN CONSTITUTION
Indian Judiciary though is restrained, in many ways has evolved itself as a saviour of mankind by applying its judicial activism. This article discusses few recent landmark cases of India wherein it threw focus on how the Indian Supreme Court by taking the resort of Article 21 of the Indian Constitution evolved itself as a saviour of mankind. It discusses in detail the traditional and modern approach, and the current trend of the Supreme Court in interpreting Article 21 of the Constitution. Further, it discusses the need for such judicial activism and concludes by justifying the activist role played by the Supreme Court.
“Right to life is an inalienable and inherent right of every human being.”
This paper is a study of judicial interpretation of Article 21 of the Indian Constitution and judicial activism on the part of the Supreme Court of India. This article comprehensively examines Supreme Court of India’s judicial activism and thus the broad interpretation of Article 21 of the Indian Constitution. It explores the reasons for such liberal interpretation when there was no such mandate by the framers of the Constitution. It examines the reasons for judicial creativity and justifies the role played by the Supreme Court of India in protecting the fundamental rights of the citizens when the legislative and executive failed in performing their duties. To some extent, judicial activism on the part of judiciary derives from underlying weakness and failure on the part of other machineries of the State to perform their duties.
Right to life and personal liberty is the most cherished and pivotal fundamental human rights around which other rights of the individual revolve and, therefore, the study assumes great significance. The study of right to life is indeed a study of the Supreme Court as a guardian of fundamental human rights. Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place as a fundamental right. It guarantees right to life and personal liberty to citizens and aliens and is enforceable against the State. The new interpretation of Article 21 in Maneka Gandhi’s case has ushered a new era of expansion of the horizons of right to life and personal liberty. The wide dimension given to this right now covers various aspects which the founding fathers of the Constitution might or might not have visualized.
The above stated revolution in the basic concept makes it imperative that the concept of right to life and personal liberty should be examined a new with reference to development, meaning, width and depth, along with judicial interpretation, justification for such liberal interpretation, and relation of Article 21 with the provisions of Article 32 and Directive Principles of the State Policy and International Human Rights Istruments. Further, the protection of this right is burning topics of the day. Hence an attempt has been made in this essay to examine the modern day standards adopted for protecting the right to life and personal liberty.
The Constitution said Woodrow Wilson, is “not a mere lawyer’s document.” It is, he said, “the vehicle of a nation’s life.” The Indian Supreme Court has created major reforms in the protection of human rights. Taking a judicial activist role, the Court has put itself in a unique position to intervene when it sees violations of these fundamental rights. “[I]n India the guardian of democracy is not the legislative wisdom but the wisdom of the highest court of the land.” “[T]he court has acted as protector of the workers, and at time played the role [of] legislator where labour legislation is silent or vague.”
The Supreme Court, as the arbiter and interpreter of the Constitution, serves not merely the negative purpose of checking excesses in judicial practice, but also the vital and dynamic function of modulating the life of the nation. The Supreme Court is the guardian of the Constitution under whose protective wings the nation has prospered and grown to greatness. Thus, the law as seen in the wordings of the enactment gets a dynamic and wider scope in day to day events by the legal processes advanced by judicial creativity.
‘Right to life’ and ‘personal liberty’ is the modern name for what have been traditionally known as ‘natural right.’ It is the primordial rights necessary for the development of human personality. It is the moral right which every human being everywhere at all times ought to have simply because of the fact that in contrast with other beings, he is rational and moral. It is the fundamental right which enable a man to chalk out his own life in the manner he likes best. Right to life and personal liberty is one of the rights of the people of India preserved by the Constitution of India, 1950 and enforced by the High Courts and Supreme Court under article 226 and 32 respectively. In this essay we will discuss the modern and liberal interpretation given to the concept of right to life and personal liberty by the Indian Judiciary. Chapter I deals with the introductory part of right to life and personal liberty. In this chapter, an attempt is being made to trace the meanings of ‘life’, ‘right to life’, and ‘personal liberty’. In Chapter II of the essay we will overlook the provision of Article 32 of the Constitution to understand the power of the Supreme Court of India to interpret Article 21 and a remedy for human beings to approach the apex court when there is infringement of fundamental rights, particularly Article 21. In Chapter III we will discuss in detail the facets which comprise Article 21 i.e. ‘right to life’, ‘personal liberty’, and ‘procedure established by law’. Further, we explore the relation and interpretation given to Article 21 with special reference to ‘Directive Principles of the State Policy’ and ‘International Human Rights Documents’. In Chapter IV we will have an overlook on the traditional and narrow approach of the Indian judiciary in interpreting Article 21 of the Constitution. Further, in the next part the discussion will focus on the modern approach of the Courts, by referring to a historical case which changed the interpretation of right to life in India. In Chapter 4 it will be demonstrated how judicial interpretation enhanced the ambit of right to life by discussing some selected cases. In the next section we will discuss the meaning of judicial activism and arguments for and against judicial activism. We will also discuss the justification for judicial activism and I would argue in favour of judicial activism. Further, we will overlook the controversy between judicial activism and separation of powers. (Judicial Activism v Doctrine of Separation of Powers) and discuss in detail the judicial restraint (self-restraint) necessary for the judiciary while interpreting Article 21 by looking into the minds of the framers of the Indian Constitution. The article concludes by justifying judicial activism as it is the creativity of the Indian judiciary that has preserved the basic human rights of the citizens of the largest democracy of the world.
2.1 MEANING AND CONCEPT OF ‘RIGHT TO LIFE’
‘Everyone has the right to life, liberty and the security of person.’ The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence 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. This chapter will examine the right to life as interpreted and applied by the Supreme Court of India.
Article 21 of the Constitution of India, 1950 provides that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It 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 the next part we will discuss the meaning and concept of personal liberty as interpreted by the Supreme Court of India.
2.2 MEANING AND CONCEPT OF ‘PERSONAL LIBERTY’
Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that,
No freeman shall be taken or imprisoned... but... by the law of the land.
The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty. What can be more important than liberty? In India the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint; and has held that it encompasses those rights and privileges which have long been recognized as being essential to the orderly pursuit of happiness by free men. The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations which provided for surveillance by way of domiciliary visits and secret picketing. Oddly enough both the majority and minority on the bench relied on the meaning given to the term “personal liberty” by an American judgment (per Field, J.,) in Munn v Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which the life was enjoyed. This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorising domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional. The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.
The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment. To understand broadly the composition of Article 21 we will overlook one of the facets of Article 21 - ‘procedure established by law’ in the next part.
2.3 PROCEDURE ESTABLISHED BY LAW
The expression “procedure established by law” has been subject matter of interpretation in a catena of cases. A survey of these cases reveals that courts in the process of judicial interpretation have enlarged the scope of the expression. The Supreme Court took the view that “procedure established by law” in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American “due process of law.” But, in Maneka Gandhi v Union of India the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be “right, just and fair” and not “arbitrary, fanciful and oppressive,” otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the “procedure established by law” has acquired the same significance in India as the “due process of law” clause in America. Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administaration has said that though “our Constitution has no due process clause” but after Maneka Gandhi’s case “the consequence is the same, and as much as such Article 21 may be treated as counterpart of the due process clause in American Constitution.”
Recently the Supreme Court has dealt with an increasing number of people sentenced to death for “bride-burning”. In December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for two separate cases of killing two young woman by setting them on fire. In an unprecedented move the court ordered both prisoners to be publicly executed. In a response to a review petition by the Attorney-General against this judgment the Supreme Court in December 1985 stayed the public hangings, observing that “a barbaric crime does not have to be met with a barbaric penalty.” The Court observed that the execution of death sentence by public hanging is violation of article 21, which mandates the observance of a just, fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground inter alia, that it was violative of article 21. In Sher Singh v State of Punjab the Supreme Court held that unjustifiable delay in execution of death sentence violates art 21.
The Supreme Court has taken the view that this article read as a whole is concerned with the fullest development of an individual and ensuring his dignity through the rule of law. Every procedure must seem to be ‘reasonable, fair and just.’ The right to life and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters which contributed to life with dignity. The test of procedural fairness has been deemed to be one which is commensurate to protecting such rights. Thus, where workers have been deemed to have the right to public employment and its concomitant right to livelihood, a hire-fire clause in favour of the State is not reasonable, fair and just even though the State cannot affirmatively provide livelihood for all. Under this doctrine the Court will not just examine whether the procedure itself is reasonable, fair and just, but also whether it has been operated in a fair, just and reasonable manner. This has meant, for example the right to speedy trial and legal aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State action covering civil, criminal and administrative action.
The Supreme Court of India in one of the landmark decision in the case of Murli S. Deora v Union of India  observed that, the fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law. The Court observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Taking into consideration the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed prohibition of smoking in public places. It issued directions to the Union of India, State Governments and the Union Territories to take effective steps to ensure prohibition of smoking in public places such as auditoriums, hospital buildings, health institutions etc. In this manner the Supreme Court gave a liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers.
Further, when there is inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action. But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted and the right is not only against actual proceedings in court but also against police investigation. The Supreme Court has widen the scope of ‘procedure established by law’ and held that merely a procedure has been established by law a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable. It is thus now well established that the “procedure established by law” to deprive a person of his life and personal liberty, must be just, fair and reasonable and that it must not be arbitrary, fanciful or oppressive, that the procedure to be valid must comply with the principles of natural justice. To understand broadly the co-relation between Article 21 and Directive Principles of the State Policy, in the next section, we will overlook the interpretation given by the apex court to the said provisions.
2.4 ARTICLE 21 AND DIRECTIVE PRINCIPLES OF THE STATE POLICY
The Directive Principles of the State Policy as enumerated in Chapter-IV are not enforceable in a court of law. Nevertheless, they are fundamental in the governance of the nation as the name itself implies “Directive Principles of the State Policy”. The Constitution makers evolved what was then a novel constitutional device which classified entitlements into ‘fundamental rights’ which were justiciable in a court of law and ‘directive principles of state policy’ which though not judicially enforceable, were nevertheless fundamental in the governance of the nation. In one of the historic judgment in the case of Confederation of Ex-Servicemen Association and Others v Union of India the apex court observed that,
Apart from fundamental rights guaranteed by Part III of the Constitution, it is the duty of the respondents [Government of India] to implement Directive Principles of State Policy under Part IV of the Constitution.
In Bandhua Mukti Morcha v Union of India Justice Bhagwati referring to Francis Coralie Mullin v Administrator, Union Territory of Delhi, stated;
It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen's case, to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work etc. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21.
Thus the Court held that where a law has already been enacted to enforce Article 21 with reference to the directive principles of the state policy it can compel the state to implement the said legislation in letter and spirit.
In 1993, relying on the directive principle of the state policy, the Court ruled that the right to education until the age of fourteen is a fundamental right and therefore falls under the protection of Article 21 in conjunction with Article 41. Article 41 states: “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education...” Thus, the Court has interpreted the Directive Principles of the State Policy in conjunction with Article 21 and gave a wider meaning to Article 21 so as to give life to that article.
In the next part we will discuss in detail the relationship between Article 21 and international human rights documents. We will elaborate and discuss the interpretation given by the Supreme Court to Article 21 to interpret it in a manner so as to include within its ambit basic human rights recognised by various international human rights instruments.
2.5 ARTICLE 21 AND INTERNATIONAL HUMAN RIGHTS DOCUMENTS
While international treaties do not automatically become part of domestic law upon ratification, the Constitution provides, as Directive Principles of Sate Policy, that the government “shall endeavour to foster respect for international law and treaty obligations in dealings of organized people with one another,” and also authorises the central government to enact legislation implementing its international law obligations without regard to the ordinary division of central and state government powers. The Supreme Court of India has frequently interpreted in light of India’s international law obligations.
Justice A .S. Anand argues that any interpretation of a national law or constitution which advances the cause of human rights and seeks to fulfil the purposes of international instruments must be preferred to a sterile alternative. He further argues that it is a proper part of the judicial process and a well established judicial function for national courts to have regard to the international obligations undertaken by the country in question whether or not these have been incorporated into domestic law for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
In Nilabati Behera v State of Orissa while justifying its award of compensation for infringement of the right to life, the Court referred to the ICCPR, which indicates that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right.
In Prem Shankar Shukla v Delhi Administration while dealing with the handcuffing of prisoners and other humiliations inflicted on persons in custody, the Supreme Court of India observed:
After all, even while discussing the relevant statutory provisions and constitutional requirements, court and counsel must never forget the core principle found in Article 5 of the Universal Declaration of Human Rights, 1948: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.
In Hussainara Khatoon cases, the Supreme Court not only advanced the prison reform in favour of under-trials but also declared the right to speedy trial as an essential ingredient of Article 21. Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the International Covenant on Civil and Political Rights which lays down that everyone is entitled “to be tried without delay” and Article 16 of the Draft Principles on Equality in the Administration of Justice which provides that everyone shall be guaranteed the right to prompt and speedy hearing the Court directed the release of all those under trials against whom the police had not filed charge sheets within the prescribed period of limitation. Such persons were directed to be released forthwith as any further detention of such under trials would be according to the court, a clear violation of Article 21.
In Sunil Batra v Delhi Administration the Supreme Court took note of Article 10 of the ICCPR which states as that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The Court then opined that:
The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. In this latter aspect, the observations we have made of holistic development of personality shall be kept in view.
The Court further emphasized that the Declaration of the Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by U.N. General Assembly has relevance to our decision.
Thus, the Court has interpreted article 21 with the widest possible amplitude so as to include within its ambit basic human rights guaranteed by international human rights instruments though that has not been incorporated in national legislation. In the next part we will discuss the traditional and narrow approach of the Supreme Court in interpreting right to life.
2.6 ARTICLE 32 OF THE INDIAN CONSTITUTION:
A PROVISION TO ENFORCE ARTICLE 21
The most unique feature of the Indian Constitution is Article 32. It is a fundamental right guaranteed to citizens of India under Part-III of the Constitution. The provision of the article states that:
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part [Part-III] is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. 
In the Constituent Assembly Debates Dr. Babasaheb Ambedkar once said, ‘if I am asked which is the most important provision of the Indian Constitution, without which the Constitution would not survive I would point to none other than article 32 which is the soul of the Indian Constitution.
The judicially enforceable “fundamental rights” provisions of the Indian Constitution are set forth in part III in order to distinguish them from the non-justiciable “directive principles” set forth in part IV, which establish the aspirational goals of economic justice and social transformation. Overtime, case law has come to interpret Article 32 as allowing for ordinary citizens to petition the Supreme Court in matters where the government is accused of infringing upon the “fundamental rights” [particularly Article 21] of the constitution. In addition, the Constitution includes Article 226 which the Courts have interpreted as giving any claimant the opportunity to file suit on behalf of the public in a High Court, when there is a violation of fundamental right or a right guaranteed by statute. Thus, Article 32 is the soul of the Indian Constitution. When there is infringement of Article 21 the aggrieved person can approach the Supreme Court of India for enforcement of his fundamental rights.
3.1 THE TRADITIONAL APPROACH
It is hard to appreciate fully the extent of development of right to life without an overview of the traditional approach. In A. K. Gopalan v Union of India,  the traditional interpretation of Article 21 of the Constitution was that a procedure established by law can deprive a person of his right to life. Thus, the earliest understanding of this provision was a narrow and procedural one. The state had to demonstrate the interference with the individual’s right to life is accorded with the procedure laid down by properly enacted law. It didn’t matter whether the law was just & fair. Moreover, in Gopalan case the Court declined to infuse the guarantee of due process of law, contained in article 21, with substantive content, holding that as long as the preventive detention statutes had been duly enacted in accordance with the procedures of article 22, the requirements of due process were satisfied. The interpretation as made by the Court was nothing more than the freedom from arrest and detention, from false imprisonment or wrongful confinement of the physical body. Thus, “personal liberty” said to mean only liberty relating to person or body of individual and in this sense it was the antithesis of physical restraint or coercion. In the next Chapter it will be demonstrated how the traditional and narrow approach of the Supreme Court in interpreting Article 21 changed with changing time. Reference will be made to the Maneka Gandhi’s case and the dramatic change of attitude by the Court in interpreting Article 21 in a manner so as to impliedly include ‘due process of law’ into the contents of Article 21.
3.2 The Foundations of Change and the Beginning of New Era
In this section it will demonstrated how judiciary dramatically changed the traditional interpretation of right to life to a modern and flexible interpretation. It was not until 1978 that the Supreme Court breathed substantive life into Article 21 by subjecting state action interfering with a person’s right to life to a test of reasonableness; requiring not only that the procedures be authorized by law, but that they are ‘right, just, fair and reasonable.’ This transformation paved the way for a substantive re-interpretation of constitutional and legal guarantees and positive judicial intervention. In the case of Maneka Gandhi v Union of India, the petitioners passport was impounded 'in public interest' by an order dated July 2, 1977. The Government of India declined ‘in the interests of the general public’ to furnish the reasons for its decision. Thereupon, the petitioner filed a writ petition under Article 32 of the Constitution to challenge the order. The petitioner contended before the Court that the order of the Government of India does not prescribe 'procedure' within the meaning of Article 21 and if it is held that procedure has been prescribed, it is unfair, unjust and unreasonable. The Supreme Court held that the order passed against the petitioner was neither fair nor proper according to the procedure established by law. The decision given by the Supreme Court in this case is historic and landmark because it is the first of its kind which enhanced the scope of right to life. Specifically, Maneka Gandhi’s case recognized an implied substantive component to the term ‘liberty’ in article 21 that provides broad protection of individual freedom against unreasonable or arbitrary curtailment. This paved the way for a dramatic increase in constitutional protection of human rights in India under the mantle of the Public Interest Litigation movement (PIL).
As discussed above the ghost of Gopalan was finally laid in Maneka Gandhi’s case. A Constitutional Bench of Seven judges (overruling Gopalan) read into Article 21 a new dimension: it was not enough, said the Court, that the law prescribed some semblance of procedure for depriving a person of his life or personal liberty; the procedure prescribed by the law had to be reasonable, fair and just; if not, the law would be held void as violating the guarantee of Article 21. This fresh look at Article 21 has helped the apex court in its new role as the institutional ombudsman of human rights in India. The decision in Maneka Gandhi became the starting point, the springboard, for a spectacular evolution of the law relating to judicial intervention in (individual) human rights cases. Thus, the principle laid down by the apex court in this case is that the procedure established by law for depriving a person of his right to life must be right, just, fair, and reasonable. In the next part we will discuss some selected cases which enhanced the scope and ambit of right to life and personal liberty in India and the current trend (judicial activism) of judiciary in interpreting Article 21.
4.1 THE CURRENT TREND
Maneka Gandhi’s case demonstrate how judicial activism can expand the reach of law with a view to curbing and controlling executive discretion and ensuring the basic human rights of the citizen. In this part it will be demonstrated how judicial interpretation enhanced right to life and personal liberty in India with regard to the present scenario. Few landmark cases will be discussed which has drastically changed the interpretation of Article 21. The modern interpretation of right to life is one of the historical developments of constitutional law.
In the Delhi Pollution Case, the Supreme Court held in 1989 that Article 21 of the Constitution guaranteeing the right to life must be interpreted to include the “right to live in a healthy environment with minimum disturbance of ecological balance,” and “without avoidable hazard to [the people] and to their cattle, house and agricultural land, and undue affection (sic) of air, water, and environment.”
The subsequent ruling in Charan Lal Sahu v. Union of India expanded upon this decision when Justice Kuldip Singh described the government’s role in the protection of fundamental rights: “[I]t is the obligation of the State to assume such responsibility and protect its citizens.” The Court held that the government’s obligation to protect fundamental rights forces it to protect the environment. Thus, from time to time the Supreme Court interpreted Article 21 broadly so as to infuse real life in the said article. It also waived the rule of locus standi so as to make the life of the citizens of India meaningful.
In Francis Coralie Mullin v Administrator, Union Territory of Delhi, the Honourable Supreme Court stated that,
The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Thus, the Supreme Court interpreted Article 21 in a widest possible manner and included within its ambit the right to live with human dignity.
The cases examined in this part primarily relate to the modern approach of the Indian judiciary which demonstrated the enhanced interpretation of right to life and personal liberty. Thus, the scope of Article 21 of the Constitution has been considerably expanded by the Indian Supreme Court, which has interpreted the right of life to mean the right to live a civilized life. In the next part of the essay we will discuss briefly the meaning of judicial activism so as to understand the creativity of the Indian judiciary in interpreting Article 21.
4.2 JUDICIAL ACTIVISM
Judicial review [activism] means power of court of law to examine the actions of the legislative, executive and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are unconstitutional and therefore, null and void. Activism means an institution extending its mechanism of decision making into the domain of other institution’s tasks. The term judicial activism is explained as “judicial philosophy which motives judges to depart from strict adherence to judicial precedent in favour of progressive and new social policies which are not always consistent with the restraint of appellate judges.
‘Judicial activism’ is a term that, to the non-lawyer, has come to mean strident judicial intervention that holds the executive to account for its sins of commission and, often, omission. The reach of judicial activism is also believed to extend to filling in spaces of silence where legislatures have not spoken – a belief reinforced by verdicts such as Vishaka v State of Rajasthan, which set out a law of sexual harassment at the workplace till a law is enacted by Parliament. In this context, it is judicial activism, as it has emerged through PIL that has given the court vibrancy and relevance among social factors beyond the rarefied confines of the legal community. S. P. Sathe argues that judicial review [judicial activism] means overseeing by the judiciary of the exercise of power by other co-ordinate organs of government with a view to ensuring that they remain confined to the limits drawn upon their powers by the Constitution.’
Surya Deva rightly argues that judicial activism refers to the phenomenon of the court dealing with those issues which they have traditionally not touched or which were not in he contemplation of the founding fathers... It is a state of mind, the origin of which lies in the ‘inactivism’ of other two wings of the government. Justice V. G. Palshikar asserts that judicial activism means “an active interpretation of existing legislation by a judge, made with a view to enhance the utility of legislation for social betterment.” Whereas Justice J. S. Verma has been more emphatic in laying down the exact norms of sufficient activist criterion. The learned judge has remarked:
Judicial activism is required only when there is inertia in others. Proper judicial activism is that which ensures proper functioning of all other organs and the best kind of judicial activism is that which brings about results with the least judicial intervention. If everyone else is working, we don’t have to step in.
It is, no doubt, true that the judge has to interpret the law according to the words used by the legislature. But, as pointed out by Mr. Justice Holmes: “A word is not a crystal, transparent and unchanged; it is the skein of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.” It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of the judge. The judge is required not only to temper his role to the individual case, but to constantly invent new rules to more justly handle recurrent fact situations that the law has not fully anticipated. It is there that the judge takes part in the process of law-making-what Mr. Justice Holmes called “interstitial legislation.”
Judicial Activism is nothing but court’s move to reach at the doorstep of the ‘lowly and lost’ to provide them justice. Lord Hewart has asserted, “It ... is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Judicial activism is the response to this reaction. It is worthwhile to mention the observations of the Supreme Court of India in one of the landmark decision that the function of the court is not merely to interpret the law but to make it imaginatively sharing the passion of the Constitution for social justice. I would describe judicial activism as a form of “creative constitutional development.” Having discussed briefly what constitutes judicial activism, it is important to understand the legitimacy of judicial activism. In the next section the discussion will focus on one of the most important and debatable question – how far judicial activism is justified?
4.3 HOW FAR JUDICIAL ACTIVISM IS JUSTIFIED?
Of all the institutions established by the Constitution the higher judiciary seems to have acquitted itself in the last 60 years as the best in a relative sense. The most respected public institution in India is the Supreme Court, respected by the elite and the illiterate alike. If the Court has come increasingly effective in its role as the final arbiter of justice, it is because of the confidence the common man has placed in it. The Court has no army at its command. It does not hold any purse strings. Its strength lies largely in the command it has over the hearts and minds of the public and the manner in which it can influence and mould public opinion. As the distinguished French author Alexis de Toquevulle describes the power wielded by judges is the power of public opinion.
Hamilton called the court system the weakest organ of government because it had control over neither the sword nor the purse. A court becomes strong only when it identifies itself with the disadvantaged minorities and they see the court as an independent institution, a bulwark against oppression and tyranny. A court gains strength only by carving a niche for itself in the minds of the people. A court must appear to the people as their protector. It must not only be, but also must appear to be impartial, principled, and capable of achieving results. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense.
Judges participating in judicial review of legislative action should be creative and not mechanistic in their interpretations. According to Justice Cardozo, a written constitution “states or ought to state not rules for the passing hour but principles for an expanding future.” Judges who interpret a written constitution cannot merely apply the law to the facts that come before them. The scope of judicial creativity expands when a constitution contains a bill of rights. It is one thing to consider whether a legislature has acted within its powers and another to consider whether its acts, although within its plenary powers, are violative of any of the basic rights of the people. Therefore, judges who interpret a bill of rights must expound upon the philosophy and ideology that underlies the bill of rights. When judges interpret the law or a constitution by not merely giving effect to the literal meaning of the words, but by trying to provide an interpretation consistent with the spirit of that statute or constitution, they are said to be activist judges. In this sense, the judges who developed the common law were also activist.
Justice Krishna Iyer, in his own vivid terms, explained that ‘A Nineteenth Century text, when applied to Twentieth-Century conditions, cannot be construed by signals from the grave. Justice Krishna Iyer in the landmark decision of Rajendra Prasad v State of U.P. observed that,
When the legislative text is too bald to be self-acting or suffers zigzag distortion in action, the primary obligation is on Parliament to enact necessary clauses by appropriate amendments to S. 302 I.P.C. But if legislative under taking is not in sight, judges who have to implement the Code cannot fold up their professional hands but must make the provision viable by evolution of supplementary principles, even if it may appear to posses the flavour of law-making. [He further went on to quote] Lord Dennings’ observations: “Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision - on every new situation - is a development of the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect - thinking of the structure as a whole, building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.”
The Supreme Court of India in Charles Sobhraj’s case observed that a constitution is not to be interpreted by reference to the wishes or opinions of its framers, but by consideration of ‘the evolving standards of decency and signify that mark the progress of a mature society’.
The extension of judicial review over constitutional amendments was itself an exercise in judicial activism on the part of the Supreme Court of India. The Supreme Court, in the leading case of His Holiness Kesavananda Bharati v State of Kerala, held by a process of judicial interpretation that though there are no express words in Article 368 of the Indian Constitution limiting the power conferred by that Article on Parliament to amend the Constitution, that power is not an unlimited or unrestricted power and it does not entitle Parliament to amend the Constitution in such a way as to alter or affect the basic structure of the Constitution. This is undoubtedly a most remarkable instance of judicial activism, for that has gone to the farthest extent in limiting the constituent power of Parliament.
M. P. Jain argues that judicial interpretation of article 21, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law,” has led to a vast extension of substantive rights. Jain rightly depicts this interpretation as “the Indian version of the American concept of due process of law,” but the scope of the expansion into the substantive domain engineered by the Indian Court far exceeds that of its American counterpart. The Indian Court has emerged relatively unscathed in recent decades as a leading actor in the ordering of domestic priorities within the polity can be attributed in no small measure to a constitutional ethos that encourages all institutions, including the judiciary, to become active participants in the realization of particular ideological aspirations. In effect there exists a constitutional mandate for judicial activism.
Justice M. K. Mukherjee while restraining the use of judicial activism observed “...to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.” Pratap Bhanu Mehta argues that the evidence of judicial overreach is now too overwhelming to be ignored. He concludes: “It has to be admitted that the line between appropriate judicial intervention and judicial overreach is often tricky... courts are doing things because they can, not because they are right, legal or just.” One may question the wisdom of employing the judicial power to achieve a desirable social or economic end in the absence of an explicit constitutional mandate to do so. John Gava in his commentary titled “The Rise of the Hero Judge” has cautioned the use of judicial activism. He fears that the worst result of activism is that the judges may end up losing the public’s faith in their most important attribute – the perception that they are impartial referees deciding according to the rule of law.
Nevertheless it is obvious that unless the Executive and the Legislature begin to respond to the needs of the citizens and discharge their responsibilities, public interest litigation and judicial activism are bound to remain centre stage as long as courts continue to respond the way they do now. As Justice Pandiyan, a former judge of the Supreme Court has said on judicial creativity:
In a country like ours [India] more than eighty percent of people are economically backward and they are subjected to discrimination as a rule. In such an explosive situation causing adverse effect on society, when the executive and legislature are apathetic and fail to discharge their constitutional duties an
About the Author
Adv.Abhaykumar Dilip Ostwal
Advocate, Supreme Court of India
B.S.L. LL.B. LL.M. (University of Birmingham, UK), C.C.F.&M.J. (Gold Medallist), D.I.T.