Right To Freedom [Article 19-22]: Constitutional Law Notes

Right To Freedom [Article 19-22]: Constitutional Law Notes- Prolawctor

Right To Freedom: Personal liberty is the most important of all fundamental rights. Articles 19 to 22 deal with different aspects of this basic right. The rights guaranteed under Article 19 are available only to citizens and not to an alien or a foreigner. Citizens under Article 19 mean only natural persons and not legal or juristic persons, such as corporation or a company which cannot claim a right under Article 19 because they are not natural persons.

Article 19: Protection of certain rights regarding freedom of speech etc

  • Art. 19 (1)(a): Right to Freedom of Speech and Expression
  • Art. 19 (1)(b): Right to Freedom to assemble peacefully and without arms
  • Art. 19 (1)(c): Right to Freedom to form associations and unions
  • Art. 19 (1)(d): Right to Freedom to move freely throughout the territory of India
  • Art. 19 (1)(e): Right to Freedom to reside and settle in any part of India
  • Art. 19 (1)(g): Right to Freedom to practise any profession or to carry on any occupation, trade or business

The purpose of providing these freedoms is to build and maintain an environment for proper functioning of democracy. However, these six freedoms are not absolute. The guarantee of each of the above rights is, therefore, restricted by the Constitution itself by conferring upon the State to impose certain reasonable restrictions on each of them as may be necessary in the larger interest of the community. The restrictions on these freedoms are provided in clauses (2) to (6) of Article 19 of the Constitution.


8 Grounds namely-

  • Security of the State
  • Friendly relations with Foreign States
  • Public order
  • Decency or Morality
  • Contempt of Court
  • Defamation
  • Incitement of an offence
  • Sovereignty and integrity of India
RIGHT TO FREEDOM TO ASSEMBLE PEACEFULLY WITHOUT ARMS ARTICLE 19 (3) The assembly must be peaceful and must be unarmed, restrictions may be imposed in the interest of public order and the sovereignty and integrity of India
RIGHT TO FREEDOM TO FORM ASSOCIATIONS OR UNIONS ARTICLE 19 (4) In the interest of public order, morality and sovereignty and integrity of India
for example, restrictions may be imposed onmovement and travelling,
so as to control epidemics; or for the protection of the interest of Scheduled Tribes
RIGHT TO FREEDOM TO RESIDE AND SETTLE IN ANY PART OF THE TERRITORY OF INDIA ARTICLE 19 (5) In the interest of the general public, for example, restrictions may be imposed on movement and travelling, so as to control epidemics; or for the protection of the interest of Scheduled Tribes
RIGHT TO FREEDOM TO PRACTICE ANY PROFESSION OR TO CARRY ON ANY OCCUPATION, TRADE OR BUSINESS ARTICLE 19 (6) In the interest of the general public. Also, the professional or technical qualifications may be prescribed for practicing any profession or carrying on any trade.

The restrictions on the rights under Article 19 (1) can only be imposed by a ‘Law’ and not executive or departmental instructions. Restrictions should not be arbitrary or of an excessive nature, beyond what is actually required in the interest of the public. It is the Courts and not the Legislature which has to decide finally whether a restriction is reasonable or not.


In Romesh Thapar v. State of Madras [AIR 1950 SC 124], Patanjali Shastri, Justice observed: “Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.”

Territorial extent of freedom– In a landmark judgement of Maneka Gandhi v. Union of India [AIR 1978 SC 597], the Supreme Court held that the right to freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.


The Supreme Court observed in Union of India v. Association for Democratic Reforms– “One sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes that voters have a right to know about their candidates and also freedom to hold opinions”.

Bijoe Emmaneul v. State of Kerala [(1986)3 SCC 615]
The Supreme Court held that no person can be compelled to sing National Anthem, “if he has
genuine conscientious objections based on religious faith”. Standing up respectfully while the National Anthem is being sung is good enough as freedom under Art. 19 (1) (a) also includes freedom of silence.

Secretary, Minister of I & B v. Cricket Association od Bengal [(1995)2 SCC 161]
Government has no monopoly on the electronic media and a citizen has under Article 19(1), a right to telecast and broadcast to the viewers/listeners through electronic media any important event.
The Government can impose restrictions on such a right only on grounds specified in Clause (2) of
Article 19 and not on any other ground.

Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. [(1995) 5 SCC 139] & Hamdard Dawakhana v. Union of India [AIR 1960 SC 554]
Commercial advertisement also forms a part of right to freedom of speech and expression. Commercial speech cannot be denied the protection of Article 19(1) (a) merely because the same are issued by businessmen.

People’s Union for Civil Liberties v. Union of India [AIR 1997 SC 568]
Telephone tapping is an invasion on right to privacy.


The phrase, “freedom of press” has not been used in Article 19, but freedom of expressionincludes freedom of press. Freedom of press is implied from Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provided under the Article 19(2) of the Constitution.

Before Independence, there was no Constitutional or statutory provision to protect the freedom of press. The Preamble of the Indian Constitution ensures to all its citizens the liberty of

Freedom of the press has been included as part of right to freedom of speech and expression under the
Article 19 of the Universal Declarations of Human Rights. The heart of Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Indian Express Newspapers v. Union of India [(1985) 1 SCC 641]
It has been held that the press plays a very significant role in the democratic machinery. The
courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Freedom of press has three essential elements.

  1. Freedom of access to all sources of information,
  2. Freedom of publication, and
  3. Freedom of circulation.

There are instances when the freedom of press has been suppressed by the legislature. The
authority of the government, in such circumstances, has been under the scanner of judiciary. In the case of Brij Bhushan v. State of Delhi (AIR 1950 SC 129), the validity of censorship previous to the publication (pre-censorship) of an English Weekly of Delhi, the Organiser was questioned. The court struck down the Section 7 of the East Punjab Safety Act, 1949, which directed the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before the publication, till the further orders, all communal matters all the matters and news and views about Pakistan, including photographs, and cartoons”, on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.

Romesh Thapar v. State of Madras [AIR 1950 SC 124]
Entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The same was held to be violative of the freedom of speech and expression, as “without liberty of circulation, publication would be of little value”.

Prabha Dutt v. Union of India [AIR 1982 SC 6]
The Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed.

Sakal Papers Ltd. v. Union of India [AIR 1962 SC 305]
The Daily Newspapers (Price and Page) Order, 1960, which fixed the number of pages, size and the price in which a newspaper could be published challenged as unconstitutional being violative of freedom of press and not a reasonable restriction under the Article 19(2). It was held that the right under Article 19 cannot be curtailed with the object of placing restrictions on the business activity of a citizen.

Bennett Coleman and Company v. Union of India [AIR 1973 SC 106]
The validity of the Newsprint Control Order, which fixed the maximum number of pages, was struck down by the Supreme Court of India holding it to be violative of provision of Article 19(1 (a) and not to be reasonable restriction under Article 19(2). The Court struck down the rebuttal of the Government that it would help small newspapers to grow.

R. Rajagopal v. State of Tamil Nadu (Known as ‘Auto Shankar Case’) [(1994) 6 SCC 632] Supreme Court held that Government has no authority in law to impose a prior-restraint upon
publication of defamatory material against its officials. It was held that no action could be initiated against the press if the publication was based on public records including Court records.

K.A. Abbas v. Union of India [AIR 1971 SC 481]
This is the first case where the question whether prior censorship of films under Cinematograph Act, 1952 is included in Article 19(2) came for the consideration of the Supreme Court. Court held that the censorship and categorisation of films into ‘U’ and ‘A’ category was reasonable and justified.

Ranjit D. Udeshi v. State of Maharashtra [AIR 1965 SC 881]
The word ‘obscenity’ of English law is identical with the word ‘indecency’ under the Indian
Constitution. In an English case of R. v. Hicklin, the test was laid down according to which it is seen whether the tendency of the matter charged as obscene tend to deprave and corrupt the minds which are open to such immoral influences’. This test was upheld by the Supreme Court in Ranjit D. Udeshi case. In this case the Court upheld the conviction of a book seller who was prosecuted under Section 292, Indian Penal code, for selling and keeping the book Lady Chatterley’s Lover. The standard of morality varies from time to time and from place to place.


Article 19(1)(b) guarantees to all citizens of India right to assemble peacefully and without arms. The right of assembly also includes right to hold meetings and to take out processions. This right is subject to following restrictions-

  • The assembly must be peaceful
  • It must be unarmed
  • Reasonable restrictions can be imposed under Clause 3 of Article 19

Chapter VIII of the Indian Penal code, 1860 lays down the conditions when an assembly becomes “unlawful”. Under Sec. 141 of the IPC, an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is-

  1. To resist the execution of any law or legal process,
  2. To commit any mischief or criminal trespass
  3. Obtaining possession of any property by force
  4. To compel a person to do what he is not legally bound to do or omit which he is legally
    entitled to do
  5. To overawe the Government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.

Freedom to assemble peacefully without arms can be reasonably restricted by the State in the interest of public order and the sovereignty and integrity of India.


Freedom to reside and settle in any part of the territory of India is also subject to reasonable restrictions by the State in the interest of the general public or for the protection of the scheduled
tribes because certain safeguards as are envisaged here seem to be justified to protect indigenous and tribal peoples from exploitation and coercion. Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.


The State may impose reasonable restrictions in the interest of the general public on this right.
Thus, there is no right to carry on a business which is dangerous or immoral. Also, professional or
technical qualifications may be prescribed for practicing any profession or carrying on any trade.

Sodan singh v. New Delhi Municipal Committee [AIR 1989 SC 1988]
Supreme Court held that the hawkers have a fundamental right to carry on trade on pavement
of roads, but subject to reasonable restrictions under article 19 Clause (6).


Article 20 affords protection against arbitrary and excessive punishment to any person who commits an offence.

  1. 1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence [Protection against Ex post facto law]
    This has two basic implications-
    1. (a) A person can be convicted of an offence only if he has violated a law in force at the time when he is alleged to have committed the offence.
    2. (b) No person can be subjected to a greater penalty than what might have been given to him under the law that was prevalent when he committed the offence.
  2. No person shall be prosecuted and punished for the same offence more than once. [Protection against Double jeopardy]
  3. No person accused of any offence shall be compelled to be a witness against himself [Prohibition against self-incrimination]

According to Article 20(1), no one can be awarded punishment which is more than what the law of
the land prescribes at that time
. This legal axiom is based on the principle that no criminal law can be made retrospective, that is, for an act to become an offence, the essential condition is that it should have been an offence legally at the time of committing it.

Protection against double jeopardy- Article 20(2) establishes what is known as “principle of double jeopardy”, that is, no person can be convicted twice for the same offence. This principle was first established in the Magna Carta. This clause embodies the common law rule of ‘nemo debet vis vexari pro una et eadem causa’ which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction.

Prohibition against self-incrimination: As per Article 20(3), no person accused of any offence shall be compelled to be a witness against himself. “Compulsion” in this article refers to what in law is called “Duress” (injury, beating or unlawful imprisonment to make a person do something that he does not want to do). This article is known as a safeguard against self incrimination.
Self-incrimination is the act of exposing oneself (generally, by making a statement) “to an accusation or charge of crime; to involve oneself or another person in a criminal prosecution or the danger thereof.”

Self-incrimination can occur either directly or indirectly:

  • directly, by means of interrogation where information of a self-incriminatory nature is disclosed;
  • indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

Selvi v. State of Karnataka [AIR 2010 SC 1974]
People on whom this test is conducted often allege it to be violation of their right to self-
incrimination guaranteed under Article 20(3) of the Constitution of India.

What is Narco Analysis test?
Narco-Analysis test, also known as ‘Truth Serum Test’, is done with the main intent and aim of extracting information from the accused when he is in hypnotic state. The Hon’ble Supreme Court of India is of the view that narco analysis, polygraph or brain mapping tests cannot be conducted on any person, whether an accused or a suspect, without their consent.

The Court further stresses that no person should be compelled to go through such test as it amounts to violation of Art 21 i.e. Right to Personal Liberty and prohibits self-incrimination and thereby violates Art 20 (3). In short according to Supreme Court, conducting Narco Analysis Test is Unconstitutional and Illegal.


“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Read full article on Article 21 of Indian Constitution here

This means that a person’s life and personal liberty can only be disputed if that person has committed a crime. However, the right to life does not include the right to die, and hence, suicide or an attempt thereof, is an offence.

“Personal liberty” includes all the freedoms which are not included in Article 19 (that is, the six freedoms). The right to travel abroad is also covered under “personal liberty” in Article 21.

The words “No person…” simply indicates that this right is available to every individual, be it a citizen or a non- citizen. The right guaranteed in Article 21 is available to ‘citizens’ as well as ‘non-

“..procedure established by law..”
Constitution make no distinction between a law made by the legislature & ordinance issued by president, both are equally subject to limitation which the Constitution has placed upon that power i.e. “..procedure established by law..”

It extends both to substantive as well as procedural laws. A procedure not fulfilling these attributes is no procedure at all in the eyes of art.21

In American Constitution, the corresponding provision is-


Here, ‘..due process..’ refers to a just, fair and a reasonable procedure.

A.K. Gopalan v. State of Madras [1950 SC 27]
A communist leader A. K. Gopalan was detained under Preventive Detention Act, 1950. The
first major constitutional issue came out of the preventive detention of communist leader A. K.
Gopalan. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?

In this case, the Supreme Court, taking a narrow view of Article 21, refused to consider if the
procedure established by law suffered from any deficiencies. Three decades later, Supreme Court took a new approach on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.

Kharak Singh v. State of U.P. [AIR 1963 SC 1295]
UP Police performed domiciliary visits to make sure that he was at home in the nights. This was challenged. SC held the following-

  1. Personal liberty is not confined only to bodily restraint or confinement in prisons but includes all those things through which life is enjoyed.
  2. Personal Liberty means much more that mere animal existence.
  3. Article 19 gives some of the freedoms required to enjoy personal liberty, while Article 21
    constitutes the rest.
  4. Since there was no law which could justify domiciliary visits, they were held to be an
    unauthorized intrusion into a person’s life and were held to be in violation of Article 21.

Maneka Gandhi v. Union of India [AIR 1978 SC 597]
Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty to citizens only against arbitrary action of the executive, and not from legislative action. But after this case Article 21 now protects the right to life and personal liberty of citizen not only from the executive action but from the legislative action also.
Facts : Maneka Gandhi’s passport was impounded by the Central government under the Passport Act in the interest of the general public and in the name of security reasons. Maneka filed a writ petition challenging the order on the ground of violation of fundamental right of personal liberty under Article The major ground of challenge was the order impounding the passport was null and void as it had been made without affording her an opportunity of being heard in her defence. Also, that such an impounding order was not in accordance with the procedure established by law.
After Maneka Gandhi’s case, there has been a new interpretation of this right. Earlier the concept as understood was that Article 21 gives a safeguard only against executive action which is unsupported by law. In this case, the Supreme Court made it clear that a procedure established by the legislature must also be reasonable, just and fair and not an arbitrary one. In order that the procedure was just, fair and reasonable, it should conform to the principles of natural justice. The Constituent Assembly in 1948 eventually omitted the phrase “due process” in favour of “procedure established by law”. As a result, Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law, was, until 1978, construed narrowly as being restricted to executive action. However, in 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India extended the protection of Article 21 to legislative
action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21. In the same case, the Supreme Court also ruled that “life” under Article 21 meant more than a mere “animal existence”; it would include the right to live with human dignity and all other aspects which made life “meaningful, complete and worth living”. Subsequent judicial interpretation has broadened the scope of Article 21 to include within it a number of rights including those to livelihood, clean environment, good health, speedy trial and humanitarian treatment while imprisoned. The right to education at elementary level has been made one of the Fundamental Rights under Article 21A by the 86th Constitutional amendment of 2002.

Francis Coralie v. Union territory of Delhi [AIR 1981 SC 746]
Right to life is not only about mere animal existence rather it means something more than just physical survival. It rather involves many other basic rights which are necessary to lead a life with human dignity.

People’s Union for Democratic Rights v. Union of India [AIR 1982 SC 1473]
It was held that if the government fails to ensure the proper implementation of the labour laws, it is a deemed denial of the right to life and personal liberty of the workers.

Bandhua Mukti Morcha v. UoI [AIR 1984 SC 802]
Supreme Court held that right to life should be taken to mean right to live with human dignity free from exploitation.

Neerja Choudhary v. State of M.P. [AIR 1984 SC 1099]
It was held that bonded labourers should not only be identified and released but also they must be rehabilitated after their release.

Parmanand Katara v. Union of India [AIR 1989 SC 2039]
SC held that it is the professional duty of all doctors, whether government or private, to extend medical aid to the injured persons so as to preserve his life without waiting for the compliance of the legal formalities like form filling etc.

M.C. Mehta v. Union of India [AIR 1988 SC 1115]
SC held that a pollution free environment i.e. pure air, pure water, edible food do form an essential part of right to life.

Subhash Kumar v. State of Bihar [AIR 1991 SC 420]
Right to pollution free air and water falls within the ambit of Article 21.

Indian Council for Enviro Legal Action v. Union of India [(1996)3 SCC 212]
Private companies are also bound under statutes and under constitution not to affect the right to life of the citizens.

Vellore Citizens Welfare Forum v. Union of India [(1996)5 SCC 650]
Precautionary principle and polluter pays principal have been accepted as part of the law of land. “Green benches” have been formed in pursuance of these two principles. Thus the two concepts aim towards ensuring a pollution free atmosphere and creates an extra burden on the private companies and factories etc to be have more self monitoring mechanisms towards ensuring rights of the citizens.

Olga Tellis V. Bombay Municipal Corporation [AIR 1986 SC 180]
The right to livelihood is borne out of the right to life, as no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part and parcel of the Constitutional right to life, the easiest way of depriving a person of his right to life would be deprived him of means of livelihood to the point of abrogation.

Murali S. Deora v. Union of India [AIR 2002 SC 40]
Smoking in public places was banned. By no means, the passive smokers must be allowed to get affected by the act of a active smoker. It was here when smoking in public places such as auditoriums, hospital buildings, health institutions or hospitals, educational institutions, libraries, court buildings, public offices, public conveyances including railways, is banned.

People’s Union for Civil Liberties(PUCL) v. Union of India [AIR 1997 SC 568]
Popularly known as “Phone Tapping case”. Supreme Court held that telephone tapping is a serious invasion of an individual’s right to privacy which is a part of the right to life and personal liberty and it should not be resorted by the State unless there is public emergency or interest of public safety requires.

Kishore Singh v. State of Rajasthan [AIR 191 SC 625] & Sheela Barse v. State of Maharashtra [(1983) 2 SCC 96]
Supreme Court held that the use of ‘third degree’ method by police is violative of Article 21.

Vishaka v. State of Rajasthan [AIR 1997 SC 3011]
The SC has declared sexual harassment of a working woman at her place of work as amounting to violation of rights of gender equality and right to life and liberty which is clear violation of Article 14, 15 and 21. In this case, the Supreme Court has formulated the basic guidelines as to the conditions of work of working women at their work places and factories etc. The guidelines basically relates to the number of working hours and the phase of work i.e. the female workers can only work in between 8 A.M. to 5 P.M.

Hussainara Khatoon v. State of Bihar [AIR 1979 SC 1360]
Right to speedy trial was recognised to be a part of Art. 21

A.R. Antulay v. R.S. Nayak [AIR 1988 SC 1531]
The SC laid down detailed guidelines for speedy trials of an accused in a criminal trial. However, the SC declined to fix any time limit for trial of offences. The Court held that the right to speedy trial flowing from Article 21 is available to accused at all stages namely the stage of investigation, inquiry, trial, appeal, revision and retrial.

ADM, Jabalpur v. Shivkant Shukla [AIR 1976 SC 1207] {Also known as “Habeas
Corpus case”}

The detenue challenged Sec. 16-A of the MISA (now repealed). The detention was challenged as being violative of Art. 21. The Court held that Article 21 is the sole repository of the right to life and personal liberty and if the right to move to any court for the enforcement of that right was
suspended by the Presidential Order under Article 359 the detenue had no locus standi to file a writ petition for challenging the validity of their detention.

To know more about Writs visit here

Sunil Batra v. Delhi Administration [AIR 1978 SC 1575]
It was held that custodial violence to the arrested person is a grave violation of person’s right to life.

Rudal shah v. State of Bihar [AIR 1983 SC 1086]
Supreme Court held that the Court has power to award monetary compensation in appropriate cases where there has been a violation of the Constitutional rights of the citizens. In this case, the SC directed the Bihar Government to pay compensation of Rs. 30,000/- to Rudal Shah who had to remain in the jail for 14 years because of the irresponsible behaviour of the State Govt. Officers even after his acquittal.

Bhim Singh v. State of J & K [(1985) 4 SCC 677]
The Court awarded a compensation of Rs.50,000/- to the petitioner as compensation for the violation of his right to personal liberty. The petitioner, an MLA, was arrested and detained in police custody and deliberately prevented from attending the sessions of the Legislative Assembly.

Bodhisathwa Gautam v. Subhra Chakravorthy [(1996) 1 SCC 490]
Interim compensation to a rape victim was awarded considering his right to life.

M.H. Hoskot v. State of Maharashtra [AIR 1978 SC 1548]
The right to legal aid is one of the ingredients of fair procedure. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, for want of legal assistance, there is implicit in the court under article 142 read with article 21 and 39-A of the Constitution, power to assign council for such imprisoned individual for doing complete justice. Where the prisoner is disabled from engaging a lawyer, on reasonable grounds such as indigence or incommunicado situation, the court shall, if the circumstances of the case, the gravity of the sentence, and the ends of justice so required, assign competent counsel for the prisoners defence, provided the party doesn’t object to that lawyer.

Prem Shankar Shukla v. Delhi Administration [AIR 1980 SC 1535]
The petitioner was an under-trial prisoner in Tihar jail. He was required to be taken from jail to magistrate court and back periodically in connection with certain cases pending against him. The trial court has directed the concerned officer that while escorting him to the court and back, handcuffing should not be done unless it was so warranted. But handcuffing was forced on him by the escorts. He therefore sent a telegram to one of the judges of Supreme Court on the basis of which the present habeas corpus petition has been admitted by the court. To handcuff is to hoop harshly and to punish humiliatingly. The minimum freedom of movement, under which a detainee is entitled to under Art.19, cannot be cut down by the application of handcuffs. Handcuffs must be the last refuge as there are other ways for ensuring security.

Saheli v. Commissioner of Police [AIR 1990 SC 513]
In this case, a 9 year old boy died after being beaten by the Indian Police. The Court directed a payment of Rs 75,000 to the mother of the deceased child and permitted the Delhi Administration to take appropriate steps for the recovery of the amount paid as compensation or part thereof from the officers responsible for this dastardly act. The ambit of right to life has thus widened with the changing times. Many corollary and incidental rights have now been considered to fall under Art.21 and these are now to be ensured as fundamental rights. In a nutshell, various rights involved under article 21 may be enumerated as-


Article 21-A reads as:-

“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 21-A added by the Constitution (86th Amendment) Act, 2002 makes the education from 6 to 14 years old, a fundamental right, within the meaning of Part III of the Constitution.

Article 21-A may be read with the new substituted Article 45 and new clause(k) inserted in Article 51-A bythe Constitution (86th Amendment) Act, 2002. To study the status of right to education, it is necessary to understand the relationship between Art.21-A, Art.45 and Art. 51-A (k)

Article 45 calls upon the State “to endeavour to provide early childhood care and education for all children until they complete the age of six years” Clause (k) inserted in Article 51-A imposes a fundamental duty on parent/guardian “to provide opportunities for education to his child or, as the case may be, ward, between the age of six and fourteen years.”

Mohini Jain V. State of Karnataka [AIR 1992 SC 1858](Also known as “Capitation Fee case”)
Supreme Court held that right to education is a fundamental right under Art. 21 of the Constitution which cannot be denied by charging a higher fee in the name of ‘Capitation fees’. Facts : In this case, the petitioner Mohini Jain of Meerut, U.P. had challenged the validity of a Notification issued by the government under the Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 which was passed to regulate tuition fees to be charged by private Medical colleges in the State.

The Notification provided for the following tuition to be charged at the time of admissions-

  • Candidates on Govt seats – Rs.2,000/- per annum.
  • Karnataka students – Rs.25,000/- per annum.
  • Students from outside Karnataka – Rs.60,000/-

The petitioner was denied admission on the ground that she was unable to pay such higher tuition fee. The SC held that such a notification is violative of Art.14 and it’s arbitrary, unfair and unjust. “The right to education flows directly from the right to life,” and the right to education being concomitant to the fundamental right, “The state is under a Constitutional mandate to provide educational institutions at all levels for the benefit of the citizens.”

Unni Krishnan v. State of Andhra Pradesh [(1993) 1 SCC 645]

In this case, SC examined the correctness of the Mohini Jain’s case judgment. The SC rejected the view held in Mohini Jain’s case and held that State is bound only till the age of 14 years to provide free education and the private colleges are no ways bound to provide free education. But, they should be allowed to run their institutions under strict regulatory controls in order to prevent education sector being commercialised. The majority view was that in all such institutions, 50% seats should be filled on merit basis and rest 50% seats may be filled by charging a higher fee.

TMA Pai Foundation v. State of Karnataka [AIR 2003 SC 355]
The scheme as laid down by Unni Krishnan case was rejected and it was held that the private
institutions may charge a capitation fee but that always remains in the strict regulation of the State Govt.


Various issues involved are-

    In T.V. Vatheeswaram v. State of Tamil Nadu [AIR 1981 SC 643], the Supreme Court held that delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence would be commuted to life imprisonment.
    In Sher Singh v. State of Punjab [AIR 1983 SC 465], the Supreme Court said that prolonged wait for execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo that is through Article 21. But the Court held that this cannot be taken as the rule of law and applied to each case and each case should be decided upon its own faces.
    The Rajasthan High Court, by an order directed the execution of the death sentence of an accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity through the media. On receipt of the above order, the Supreme Court in Attorney General v. Lachma Devi [AIR 1986 SC 467], held that the said direction for execution of the death sentence was unconstitutional and violative of Article 21. It was further made clear that death by public hanging would be a barbaric practice. Although the crime for which the accused has been found guilty was barbaric it would be a shame on the civilised society to reciprocate the same. The Court said “a barbaric crime should not have to be visited with a barbaric penalty.”

This question came for consideration for first time before the High Court of Bombay in State
of Maharashtra v. Maruti Sripati Dubal [1987 Cr.L.J. 549]

In this case the Bombay High Court held that the right to life guaranteed under Article 21 includes right to die, and the Hon’ble High Court struck down section 309, IPC which provides punishment for attempt to commit suicide by a person as unconstitutional.

In P. Rathinam v. Union of India [(1994) 3 SCC 394] a Division Bench of the Supreme Court
supporting the decision of the High Court of Bombay in Maruti Sripati Dubal Case held that under
Article 21, right to life also include right to die and laid down that Section 309 of Indian Penal Court which deals with attempt to commit suicide is a penal offence and is unconstitutional as well.
This issue again raised before the court in Gian Kaur v. State of Punjab [(1996)2 SCC 648].
In this case a five judge Constitutional Bench of the Supreme Court overruled the P. Ratinam’s case and held that “Right to Life” under Article 21 of the Constitution does not include “Right to die” or “Right to be killed” and there is no ground to hold that the section 309, IPC is constitutionally invalid. The true meaning of the word ‘life’ in Article 21 means life with human dignity. Any aspect of life which makes life dignified may be included in it but not that which extinguishes it. The ‘Right to Die’ if any, is inherently inconsistent with the “Right to Life” as is “death” with “Life”

A question may arise, in case of a dying man, who is, seriously ill or has been suffering from virulent and incurable form of disease he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of ‘Right to Die’ with dignity as a part of life with dignity. According to the court these are not cases of extinguishing life but only of accelerating the process of natural death which has already commenced.


Aruna Ramchandra Shanbaug v. Union of India(2011)
On 7 March 2011, the Supreme Court of India legalised passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who has been in a vegetative state for 37 years at King Edward Memorial Hospital. The Court rejected active euthanasia by means of lethal injection. In the absence of a law regulating euthanasia in India, the court stated that its decision becomes the law of the land until the Indian parliament enacts a suitable law. Active euthanasia, including the administration of lethal compounds for the purpose of ending life, is still illegal in India, and in most countries. While rejecting Pinki Virani’s plea for Aruna Shanbaug’s euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live. As India had no law about euthanasia, the Supreme Court’s guidelines are law until and unless Parliament passes legislation.

The following guidelines were laid down:-
A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

The question remained as to who is to decide what is the patient’s best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive. It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision.

Even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned.

When such an application is filed the Chief Justice of the High Court should forthwith constitute a
Bench of at least two Judges who should decide to grant approval or not. A committee of three reputed doctors to be nominated by the Bench, who will give report regarding the condition of the patient. Before giving the verdict a notice regarding the report should be given to the close relatives and the State. After hearing the parties, the High Court can give its verdict.


Article 22 of the Constitution provides preventive detention laws. The object of preventive detention is to prevent a person from committing a crime and not to punish him as is done under punitive detention.
Article 22 provides specific rights to arrested and detained persons, in particular the rights to be informed of the grounds of arrest, consult a lawyer of one’s own choice, be produced before a magistrate within 24 hours of the arrest, and the freedom not to be detained beyond that period without an order of the magistrate.

The Constitution also authorises the State to make laws providing for preventive detention,
subject to certain other safeguards present in Article 22. Article 22 Clause (4) to (7) provides for the rights of a person detained under preventive detention. Art. 22 provides that when a person is detained under any law of preventive detention, the State can detain such person without trial for only three months, and any detention for a longer period must be authorised by an Advisory Board. The person being detained also has the right to be informed about the grounds of detention, and be permitted to make a representation against it, at the earliest opportunity.

Preventive detention has not been unknown in other democratic countries like England and
Canada but their recourse has been had to it only in war time. In A.K. Gopalan v. State of Madras,[AIR 1950 S.C. 27], the Supreme Court had expressed the view that a detenue could not claim the right to freedom guaranteed by Article 19(l)(d) if it was infringed by his detention. But this view of the court changed in R.C. Cooper v. Union of India, [AIR 1970 S.C. 564], and in Maneka Gandhi’s case. The court expressed the view in these cases that a law relating to preventive
detention must satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution.

The legislative capacity of Parliament or the State legislatures to enact a law of preventive detention is however, limited to Clauses (4) to (7) of Article 22 which lay down a few safeguards for a person subjected to such detention. The scheme of these clauses is to classify preventive detention in three categories, viz.:

  • A preventive detention up to two months, provision for which may be made either by Parliament or a State legislature, in such a case, no reference may be made to an Advisory Board; However, Constitution (44th Amendment Act, 1978) has substituted a new clause for clause (4) which now reduces the maximum period for which a person may be detained without obtaining the opinion of Advisory Board from 3 months to 2 months. The detention of a person for a longer period than 2 months can only be made after obtaining the opinion of the Advisory Board.
  • Preventive detention for over three months subject to safeguard of an Advisory Board consisting of persons qualified to act as High Court judges. No person can remain in preventive detention for more than 3 months unless the Board holds that in its opinion, there are sufficient causes for detention.
  • Preventive detention for over three months without the safeguard of an Advisory Board. Such detention is possible if Parliament prescribes by law the circumstances under which, and the class or classes of cases in which a person may be detained for over three months without reference to Advisory Board. Parliament may also prescribe the maximum period for which a person can be detained in cases (b) and (c). This provision, it has been held is merely permissive and does not oblige Parliament to prescribe any maximum period. Further, Parliament may by law prescribe the procedure to be followed by an Advisory Board in an inquiry under Clause (4).

The following safeguards have been provided to a detenue:

  1. Grounds of detention must be communicated Article 22(5) gives the right to the detenue to be communicated the grounds of detention as soon as possible, the detaining authority making the order of detention must as soon as possible communicate to the person detained the grounds of his arrest and to give the detenue the earliest opportunity of making representation against the order of the detention. The clause (5) of Article 22 imposes an obligation on the detaining authority to furnish to the detenue the grounds for detention, “as soon as possible”. The grounds of detention must be clear and easily understandable by the detenue.
  2. Right of representation
    Article 22 imposes an obligation upon the Government to afford the detenue the opportunity to make representation under clause (5) of Article 22. It makes no distinction between order of detention for only two months and less and for those for a longer duration. The obligation applies to both kinds of orders. It is clear from clauses (4) and (5) of Article 22 that there is dual obligation on the appropriate Government and dual right in favour of detenue, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government, and (ii) to have once again in the light of the circumstances of the case considered by Board before it gives its opinion. If in the light of the representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenue.
  3. Advisory Board
    Article 22 provides that the detenue under the preventive detention law shall have the right to have his representation against his detention reviewed by an Advisory Board. If the Advisory Board reports that the detention is not justified, the detenue must be released forthwith. If the Advisory Board reports that the detention is justified, the government may fix the period for detention.
    The Advisory Board must conclude its proceedings expeditiously and must express its opinion within the time prescribed by law. Failure to do that makes detention invalid. Along with its opinion, the Board must forward the entire record to the Government who is supposed to take a decision on the perusal of the entire record.
    The Constitution (44th Amendment Act, 1978) has amended Article 22 and reduced the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board from 3 months to 2 months. It has also changed the constitution of the Board which shall now consist of a Chairman and two other members. The Chairman must be a sitting judge of the appropriate High Court and other members shall be either a sitting or retired judge of a High Court. The detenue has no right of legal assistance in the proceedings before the Advisory Board. But if the Government is given a facility, it should equally be provided to the detenue. ADM, Jabalpur v. Shivkant Shukla [AIR 1976 SC 1207] (Also known as “Habeas Corpus case”)


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