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Wednesday, September 28, 2011

Q. What is meant by right to security and personal liberty ? What are the constitutional provisions in this regard?

Ans. One of the most important Fundamental Rights is the right to life and personal liberty as provided in Article 21 of the Constitution. According to this article, no person shall be deprived of his life and personal liberty except according to procedure established by law.
The purpose of right to life and personal liberty, as given in Article 21 is to prohibit the interference of the Executive in the field of personal liberties of people. In Gopalan Vs. State of Madras, the Supreme Court ruled that the executive can restrict the personal liberty of citizens only on the ground of procedure established by law. Again, the Supreme Court in Basina Vs. State of Uttar Pradesh (1969), held That the procedure established by law should be strictly and minutely followed by the Executive before depriving a person of right to life and personal liberty. The procedure established by law should not be violated in such a way that it harms the affected person. In the case of Narendra Vs. Gujral, the court ruled that it is the prime responsibility of the judiciary to ensure that those penal and preventive detention laws which are framed for the protection of individuals’ right to life and personal liberty. arc scrupulously enforced. In two separate cases—Bhuvan Vs. State of Andhra Pradesh (1974) and Sunil Vs. Delhi Administration (l97) the court maintained that the right to life and personal liberty is available to both Indian citizens and other individuals and also to those who are serving imprisonment after the conviction in criminal cases, within the limits imposed by law.
It should also be mentioned that the words and expressions used in Article 21, like ‘deprive’, ‘life’, ‘personal liberty’ or the ‘procedure established by law’ have specific connotations in this respect. The courts have interpreted these terms from time to time, which are given below—
Deprive—It means to ‘snatch away’. In Gopalan Vs. State of Madras, the Supreme Court ruled that Article 21 is applicable only when all rights of a persons are snatched away. If merely some restrictions are imposed on the right to free movement of a person. it will invite the provisions of Article 19 and that of Article 21.
However, in subsequent decisions, the court has modified its view given in Gopalan case. In Malak Vs. State of Punjab case (1981) the court held that the excessive monitoring of the movements of a person is a violation of the right of personal liberty given in Article 21. Also, in Kharag Singh Vs. State of Uttar Pradesh (1963), the court reiterated its stand and stated that the interference in the personal liberty of a person in his house by the police force without a legal ground, is the violation of Article 21. In State of Maharastra Vs. Prabhakar (1966). the Supreme Court ruled that any restriction imposed by the Executive, without any legal basis, on the personal liberty of persons is to be considered as violation of Article 21. In another case Govind Vs. State of Madhya Pradesh (1975) the Supreme Court held that the restrictions imposed by the M.P. police on the petitioner are in accordance with the Sections 855 and 856 of M.P. Police Act and, therefore, these restrictions are legal and should not be considered as violation of Article 21. The foregoing discussion indicates that there must be a legal basis to impose restrictions on the personal liberty of persons.
Life—It means existence as a living being. In two separate cases


Sunil Vs. Delhi Administration (1978) and Vikram Vs. State of Bihar (1988), the Supreme Court has ruled that the right to life means right to live with human dignity and in terms with human civilization. In Ramsharan Vs. Union of India (1989), the court interpreted that the term ‘life’ includes human culture, traditions and heritage which give meaning to human life. Thus this has to be protected and preserved. In order to take recourse to Article 21, the affected person should submit concrete evidences in the court which prove that his life is really threatened.

In two other cases—Vapi Vs. State of Andhra Pradesh (1983) and Nachane Vs. Union of India (1982) the Supreme Court ruled that the inclusion of right to earn livelihood is within the ambit of right to life. But in another case Olga Vs. Bombay Corporation (1986), the court established that depriving a person of his means of livelihood, without the procedure established by law, comes under the violation of Article, 21. In Maharastia Vs. Basanti Bai. (he court held the view that a person may be deprived of his property in usual course but if such deprivation leads to snatching his means of livelihood, it should be considered as the violation of right to life under Article 21. Yet in two other cases—Sodan Vs. N.D.M.C. (1989) and Municipal Corporation Vs. Gurnani (1989) the court decided that the restrictions imposed on freedom of trade under Article 19(6) %hall not be considered illegal under article 21.

The Supreme Court, in Parmanand Vs. Union of India (1989) held that every person, whether found guilty or not, has the right to protection of his life. For example. a sick person is entitled to get medical and other such facilities. And for this purpose, some formalities may be overlooked. In Subhash Kumar Vs. State of Bihar, the right to avail pollution free water and air has been included within the right to life by the Supreme Court.
Personal Liberty was decided in Gopalan Vs. State of Madras by the Supreme Court that the right to personal liberty under Article 21 means freedom from illegal  or invalid imprisonment or captivity of a person. However, the scope of right to personal liberty has been extended by the court in subsequent decisions. In Kharag Singh Vs. State of Uttar Pradesh (1963) the court interpreted to include all those freedoms within the am bit of personal liberty, which are not covered by Article 19. For example, right to visit foreign countries and other places, right to privacy, right to humane treatment to Convicts etc. are included under right to personal liberty. In Menka Gandhi Vs. Union of India (1978), the right to personal liberty was further extended.

Procedure Established by Law
—The scope of application of law has two categories—the procedure established by law and the due process of law. American Constitution and courts have adopted the notion of due process of law, which incorporates the idea of Natural Justice, that is, the government can not deprive the people of their liberty or properly in an arbitrary manner even if such manner has some legal basis. In India, the notion of procedure established by law has been adopted, which means in accordance with the law duly enacted by the Legislature. This does not include the idea of Natural Justice and more emphasis is placed on the legal basis of the State action rather than on an external element. Again, the Legislature also has the right to modify and change the law.

In Gopalan Vs. State of Madras, the Supreme Court ruled that the term 'law’ used in Article 21 does not imply Natural Law or Natural Justice because, no where in the Constitution has, this term been used in the sense of ‘Natural Justice’. Thus, the court can inquire into the validity of laws with respect to Article 21 and 22 only on the following grounds—
(I) Whether the concerned law is enacted by an authorised body or not?
(2) Whether the law violates the provisions relating to Fundamental Rights or not ?
The courts in India do not enjoy my further jurisdiction to interpret  the laws which are duly enacted by he Legislature. In other words, the courts cannot go into the question of reasonability of laws. ‘The court, in Jagmoban Singh Vs. State of Uttar Pradesh, upheld the view expressed in Gopalan case. However, the Supreme Court did not uphold this, view in Menka Gandhi Vs. Union of India (1978) and determined that-,
1) if the procedure established by law is arbitrary or dictatorial, it should not be considered as legal procedure;
(2) if the procedure is unreasonable, it cannot be considered to be in accordance with the provision of equal protection of law or equality of justice as provided in Article 14 of the Constitution.
It is evident that if the reasonableness of law is questioned or examined, the principle of natural justice will crop in automatically. This means, if the concerned law is not impartial. just and reasonable, it should be considered as violation of Article 21.
In Francis Corelli Mulin Vs. Administration, Union Territory of India (1981), the Supreme Court held the view that if a law or a port ion of that law deprives a person of hi life or personal liberty, the reasonableness, impartiality or justness of that law should be examined, otherwise, it would lead to the violation of Article 21. Thus, the court has adopted the principle of ‘due process of Law’ with respect to provisions of Article 21.
The scope of Article 21 has been extended by the court in many cases and now it covers many new principles, which are given below—
1. Immediacy of starting judicial proceedings—In Hussain Arra Khatoon Vs. Home Secretary, State of Bihar (1979), a Supreme Court Bench presided by Justice D.
N. Bhagwati, held that the undue delay in starting judicial proceedings with respect to an accused, is . violation of Article 21.,
2. Free Legal Aid—If a person is not in a position to bear the expenses of legal advice, such person should be giving free legal aid, otherwise, it would be considered as violation of Article 21. This view was given by the Supreme Court in two separate cases—Hussain Arra Khatoon Vs. State of Bihar (1979) and Khatri Vs. State of Bihar (1981).
3. Holding an Indebted person into Custody—In Jolly George Verghese Vs. The Bank of Cochin (1980), the Supreme Court decided that if an indebted person is not in a position to repay his debt, taking such person into custody is violation of Article 21. However, if such person has the capacity to repay his debts but is not willing to pay such debts, taking such person into custody is not violation of Article 21.
4. Public Hanging of person to death—In Attorney General Vs. Laxaman Devi (1986) the Supreme Court reversed the decision of Rajasthan High Court and ruled that the public hanging of a person to death is a violation of the provisions of Article 21.
The Suspension of Article 21— It has been provided in the Constitulion by 44th Amendment, 1978 that Articles 20 and 21 cannot be susp ended even during the enforcement of National Emergency. Thus, a person can approach the courts for the enforcement of Fundamental Rights given in Article 20 and 21 during the period when National Emergency is in force. However, with respect to the State of Punjab, the 59th Amendment authorizes the President of India to suspend personal liberty as given in Article 21 in that State. This provision has come under severe criticism. Consequently the provision authorizing the President to suspend personal liberty (Article 21) in Punjab has been withdrawn by 63rd Constitutional Amendment Act. Therefore, the present situation i that the Articles 20 and 21 cannot be suspended even during National Emergency and affected persons are entitled to move the courts for the enforcement of these rights during such period also.

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