Some Aspects of the Right to Life in Indian...

Some Aspects of the Right to Life in Indian Law Camena Guneratne

ABSTRACT

The right to life is the most fundamental human right without which all other rights would be baseless. A right to life provision is contained in many constitutions of the world including the Constitution of India The Indian courts have developed an extensive body of jurisprudence on the basis of this Article which goes beyond what was originally envisaged by the drafters of the constitution, i.e. as guaranteeing a civil and political right.

In interpreting Article 21, the Indian courts fiave drawn upon the rights standards contained in the Directive Principles of State Policy of the Constitution as well as upon international human rights standards. The basis of the decisions was tlmt the right to life does not merely encompass the right not to be deprived of one's life and liberty, but also includes the right to a certain standard of living with the fulfillment of basic necessities. Following this line of reasoning, continuous decisions of the courts have expanded Article 21 to include the right to health and education, protection of life and liberty in the criminal trial process, the right to be free from gender based violence, to food, clothing and shelter and to a clean environmen t.

The body of jurisprudence based on Article 21, becomes relevant to other countries in tlie region facing the same political and socio-economic conditions. The Indian case law can serve as a source of inspiration to other jurisdictions but this should be done selectively and only where appropriate.

INTRODUCTION

The right to life is the most basic of human rights without which all other rights would be redundant and meaningless and this has been recognised at both national and international levels. International standards on the right to life have been incorporated into global and regional bills of rights,1 and it has also been articulated in the fundamental rights provisions of several national constitutions including the Indian Constitution.2

There are divergent views on the scope and ambit of the concept of the right to life. The early approach which viewed it restrictively is based on the assertion that it turns mainly on protection against intentional or arbitrary deprivation of human life by government agents.3 However, a more holistic approach is expressed in a resolution of the General Assembly of the United

06 - 2004-05-0784-OUP-300 41

Cametta Gtmeratne

42

Nations adopted on 18th December 1982 in which it expressed "its firm conviction that all peoples and all individuals have an inherent right to life and that the safeguarding of the foremost right is an essential condition for the enjoyment of the entire range of economic, social and cultural as well as civil and political rights."4

The discourse on the right to life in both the domestic and international spheres necessarily focuses on the questions whether, and to what extent, it can, as a justiciable right, be expanded to embrace the varying facets of an adequate quality of life for individuals and peoples and what these facets essentially envisage. Perhaps nowhere has this issue received as much attention as it has in Indian courts where it has been addressed in the light of the constitutional guarantee of the protection of life and liberty contained in Article 21 of the Constitution. This paper will focus on selected procedural and substantive aspects of these constitutional developments including interpretations of the right and its various attributes and the factors that impacted on these developments.

FUNDAMENTAL RIGHTS IN T H E INDIAN CONSTITUTION

Granville Austin describing the Indian Constitution says it is "first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. Yet despite the permeation of the entire constitution by the aim of national renascence, the core of the commitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and in the Directive Principles of State Policy. These are the conscience of the Constitution.""'

In order to understand the nature and meaning of Parts III and IV of the Constitution of India, it is necessary to view them in their historical context. As Austin points out "the Fundamental Rights and the Directive Principles had their roots deep in the struggle for independence. And they were included in the Constitution in the hope and expectation that one day that tree of true liberty would bloom in India. The Rights and Principles thus connect India's future, present and past adding greatly to the significance of their inclusion in the Constitution, and giving strength to the pursuit of the social revolution in India."6 Pylee says that these two chapters of the Constitution - the Fundamental Rights and Directive Principles - express the dominant

Some Aspects of the Right to Life in Indian Law

43

desire of its framers for the rapid modernisation of the country's political, social and economic institutions.7

Both the fundamental rights and the Directive Principles of State Policy enunciate varying rights in relation to the citizens of India. It could be said that while the fundamental rights chapter reflects the ideals of political justice, the provisions of Part IV reflect those of social and economic justice. According to writers on the constitutional history of India, the debates on the two Parts centred on the question of which principles were to be made justiciable and to what extent.8 The final solution was reached by placing within a chapter on fundamental rights those rights which were a prerequisite of a political democracy. They were inviolable and required immediate protection under the aegis of the Courts. The Chapter on Fundamental Rights is thus essentially a brake on State power and requires the State to desist from taking any action which would impinge upon the rights and liberties of citizens which were specified in it. They were deemed essential for the protection of minorities and the disempowered, as well as for creating a stable political and social order. As Bhagwati ] described them in Maneka Gandhi v. Union of India" these fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a 'pattern of guarantee' on the basic structure of human rights, and impose negative obligations on the State not to encroach on individual liberty in its various dimensions".

The Directive Principles, on the other hand, reflect the essential elements of what was described in the Constituent Assembly as an "economic democracy". 1 0 They were envisaged as charting the course to the ultimate goal of establishing a socialist welfare State under the direct intervention of the Government. Thus, while the fundamental rights required the State to refrain from infringing the rights of citizens, the Directive Principles placed the onus upon it to take positive action to realise the ultimate objectives of the social and economic upliftment of the population. However, it was considered desirable that those responsible for realising these goals should be held accountable politically but not legally and Article 37 of the Constitution explicitly makes the Principles non-justiciable.11

Camena Guneratne

T H E SCOPE AND AMBIT OF ARTICLE 21 The fundamental rights set out in Part III have been divided into two

categories:' 2

(a) injunctions restraining the State from denying certain fundamental rights - for instance, Articles 14 1 3 and 21.

(b) a positive conferment of fundamental rights - for instance Articles 19 1 4 , 25, 26 etc.

According to Article 21 "No person shall be deprived of his life or personal liberty except according to procedure established by law". It has been remarked upon, that Article 21 which falls within (a) above has been couched in negative language because "the right to life and liberty inheres in every man. There is no need to provide for the same in a positive manner". 1 5

Further, by wording the provision in negative language the nature and extent of the protection conferred by the provisions can be constantly re-defined to meet changing situations. "Political, social and economic changes entail the recognition of new rights and the law in its eternal youth grows to meet the demands of society". 1 6

Early cases took a restrictive approach to the provisions of Part III including Article 21. According to the Court, each of the rights enumerated in Article 21 was distinct and mutually exclusive, in essence placing each in a specific compartment with no conceptual linkage between them. This resulted in a narrow construction being placed on each such right and thus Article 21 as a whole too was narrowly interpreted as merely providing protection from unlawful detention.1 7

This doctrine of exclusivity, as it was termed by Bhagwati J, was rejected in subsequent decisions including Maneka Gandhi v. Union of India, which held that "[e]ach freedom has different dimensions and merely because the limits of interferences with one freedom are satisfied the law is not freed from the necessity to meet the challenge of another guaranteed freedom."18

This decision paved the way for a holistic approach to the interpretation of Part III and enabled Article 21 to be construed broadly so as to include several rights not specified in it. In the words of Mohan J in Unni Krishnan "... it is not correct to say that because the article is couched in a negative language, positive rights to life and liberty are not conferred".1 9 The term "personal liberty" covers a variety of rights, some of which have been raised to the status of distinct fundamental rights and have been given special

44


4 5

protection under Article 19. 2 0 However, this does not prevent the courts from recognising other attributes of personal liberty which are not found in Part III.

Maneka Gandhi also gave an expansive interpretation to the second aspect of Article 21, that a person may be deprived of life and liberty only in accordance with procedure established by law. Krishna Iyer J refused to give a literal construction to the phrase and declared that "Procedure which deals with modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre". 2 1 The Court has thus declined to be bound by the bare words of the provision and has refused to validate laws including those relating to Article 21, which, though enacted in accordance with formalistic procedure, are intrinsically unjust and are substantially a breach of fundamental rights.

T H E A P P L I C A B I L I T Y OF T H E D I R E C T I V E P R I N C I P L E S OF STATE POLICY TO ARTICLE 21

As discussed earlier, in the view of the Constitution makers, the provisions contained in Part IV were merely guiding principles for the legislature in enacting laws and it was not envisaged that they would be judicially enforceable. The original position of the Court therefore was that the Directive Principles were subordinate to the fundamental rights and could not be enforced at the expense of the latter.2 2 Over a period of time however, judicial opinion has shifted from this position to one of holding that there is no intrinsic conflict between the two and the Directive Principles must guide the Court in interpreting and enforcing the fundamental rights. According to a judge of the Supreme Court "... the Directive Principles of State Policy are complementary to the fundamental rights guaranteed under the Constitution of India as they spell out the obligations of the State towards the citizens in the discharge of its functions. Resort had by the judiciary to the directive principles for interpreting the content of the fundamental rights is therefore logical." 2 3

This view had been taken by the Court in several early cases interpreting the scope and ambit of Article 21. Bhagwati J in Minerva Mills Ltd v. Union of India2* argued that as far as the importance and significance of the rights were concerned, no distinction was drawn by the constitution makers

Camena Guneratne

between those contained in Part III and Part IV. Both were treated as forming the rubric of fundamental rights and the only difference was that some were to be enforceable in a court of law and others were not. He pointed out that the non-justiciability clause was included so as not to put too great a burden on a fledgling State to fulfil those obligations when it was unable to do so. The implementation of those rights would necessarily depend on the resources of the Government and the way in which it prioritises its goals and objectives. However, this does not mean that the Directive Principles are in any way inferior or subservient to the fundamental rights. According to Chandrachud J in the same case, "the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution". He said the rights contained in Part III are not an end in themselves but are the means to an end, the end being specified in Part IV. 3 5

The present position of the Court, therefore, is that in as much as the Directive Principles are meant to guide the State in meeting the socialist goals of the country, they would also guide the Courts in interpreting the fundamental rights provisions of Part III so as to achieve the same objective. In Minerva Mills, Bhagwati J held that "merely because the Directive Principles are not enforceable in a court of law, it does not mean that they cannot create obligations or duties binding on the State." 2 6 He clarified the point further in Bandh.ua Mttkti Morcha v. Union of India,27 which concerned the working conditions of bonded labourers, where he said that since the Directive Principles are not enforceable in a court of law it would not be possible to compel the State through the judicial process to make statutory provisions to ensure that people are provided with basic essentials to live a life of dignity- However, where such legislation is already enacted by the State, it can be compelled to ensure that such laws are implemented and failure to do so would amount to a denial of the right to life as enshrined in Article 21. He also pointed out that "When the Directive Principles of State Policy have obligated the Central and State Governments to take steps and adopt measures for the purpose of ensuring social justice to the have-nots and the handicapped, it is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected." 2 8

The Court has relied on the Directive Principles particularly in cases concerning public health and education. In Vincent Panikurlmigara v. Union of India29 the issue in question was the quality and standard of medicinal

46

http://Bandh.ua


47

drugs in circulation among the public. Quoting Article 47 of the Directive Principles which refers to the improvement of public health, Ranganath Misra J said that the Court has culled out from Part IV the several obligations of the State, and attending to public health is of high priority. This obligation includes ensuring that useful drugs are available at reasonable prices for the common man.

This position was endorsed in Unni Krishna^30 where the Court was called upon to decide whether the right to life under Article 21 included the right to education. Jeevan Reddy J in discussing the interplay of Parts III and IV cited several cases where it had been held that the provisions of both Parts are of equal importance in realising the rights envisaged in the Constitution.31

He further stated "If life is so interpreted as to bring within it right to education, it has to be interpreted in the light of directive principles. This Court has uniformly taken the view that harmonious interpretation of the fundamental rights vis-a-vis the directive principles must be adopted/' 3 2

T H E APPLICABILITY OF INTERNATIONAL STANDARDS IN T H E INTERPRETATION OF ARTICLE 21

Article 51 (c) of the Indian Constitution obliges the State to "foster respect for international law and treaty obligations in the dealings of organised people with one another". While maintaining that in the light of this Article, it is domestic law that binds it, the Supreme Court has however, taken the position that such law must be interpreted in the light of India's treaty obligations. In Varghese v. Bank of Cochin, while acknowledging that the Court is bound by municipal rather than international law, Krishna Iyer J nevertheless pointed out that "with regard to interpretation however, it is a principle generally recognised in national legal systems that in the event of doubt, the national rule is to be interpreted in accordance with State's obligations".3 3 He relied on Article 11 of the International Covenant on Civil and Political Rights (ICCPR) to determine the question whether subjecting a judgement debtor to arrest and detention for non-payment of debts constituted a violation of Article 21.

The Court has thus been influenced by international conventions entered into by the State and even by commitments made by the State at international fora, when interpreting the ambit of Article 21. In Visakha v. Rajasthan34 and Chairman, Railways Board v. Chandrima DasVj which both concerned sexual abuse of women, it referred extensively to the Universal Declaration of

Camena Guneratne

Human Rights (1948), the Declaration on the Elimination of Violence Against Women (1993) and the Convention on the Elimination of All Forms of Discrimination Against Women (1979). In the former case it was also pointed out that, at the Fourth World Conference on Women in Beijing, the Government of India had made an official commitment to set up a Commission on Women's Rights, to formulate a national policy on women and to set up a national level mechanism to monitor the implementation of the Platform for Action. Verma CJ stated that he has, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of the constitutional guarantee of gender equality in the Constitution.3 6

In the same case Verma CJ also cited international documents to define the obligation of the Court under Article 32 of the Constitution. He referred to the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region accepted by the Chief Justices of the Asia Pacific region in Beijing in 1995, as a basis on which to uphold the Court's obligation to enforce fundamental rights and stated that these principles constitute the minimum standards to be observed to maintain the independence of the judiciary and its effective functioning.

The Court has further taken the position that where there is a lacuna in the domestic law or it is insufficient to deal with a particular issue, then too it may look to international conventions and also to commitments made by the State at international fora as guidelines to be followed in taking remedial measures. In the view of Verma CJ "It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law". 3 7 In Consumer Education and Research Centre v. Union of India,28 where the occupational safety of workers in the asbestos industry was at issue, the Court referred to Convention 162 of the International Labour Conference held in June 1986 - the Asbestos Convention and the Rules issued in this regard by the Internationa] Labour Office in Geneva, in giving orders as to what remedial measures should be taken. In Nilabati Behera v. State of Orissa™ the Court, in determining the question of whether compensation should be awarded in the case of the custodial death of a person, relied on Article 9 (5) of the ICCPR. This Article provides that anyone who has been the victim of unlawful arrest and detention shall have an enforceable right to compensation.

48


07 - 2004-05-0784-OUP-300 49

VI. T H E IMPACT OF PUBLIC INTEREST LITIGATION ON ARTICLE 21

A notable feature of the human rights litigation in India including that relating to Article 21, is that much of it has been initiated in the context of public interest litigation or social action litigation as it is sometimes called. As Pylee observes, a declaration of fundamental rights is meaningless unless there is an effective machinery for its enforcement4 0. Article 32 which gives all persons the right to move the Supreme Court "by appropriate proceedings" for the enforcement of the rights conferred by Part III, has enabled the Court to devise such a procedure to take speedy and far reaching action for doing so. 4 1

The Court has refused to allow rigid rules of procedure to inhibit it in devising ways of bringing social and economic justice to the poorer strata of society. Pathak J in Bandhua Mukti Morcha42 was of the view that "appropriate proceedings" should be proceedings which can appropriately lead to an adjudication of the claim made for the enforcement of a fundamental right and can result in the grant of effective relief. Since the only constitutional requirement is that the proceedings should be "appropriate", the Court has resorted to somewhat unorthodox methods in disposing of petitions brought under Part III, refusing to be constrained by the traditional rules of procedure. Bhagwati CJ in the same case held that the Court must be guided not by "verbal or formalistic canons of construction" but instead by "the paramount object and purpose for which this Article has been enacted". 4 3 The salient features of this type of litigation in the context of Article 21 are briefly discussed below. 4 4

Perhaps the most important feature of public interest litigation as it evolved in India is the relaxation of the rule of locus standi. This has enabled public interest groups and individuals, though unaffected themselves, to bring petitions before the court on behalf of peoples and communities whose rights have been infringed but who, by reason of polit ical and economic disempowerment, are unable to seek redressal themselves. Thus in Bandhua Mukti Morcha,45 the petitioner was an organisation dedicated to the cause of releasing bonded labourers throughout the country and in Dr. Upendra Baxi v. State of Uttar Pradesh/1'' the petitioner filed a public interest suit in order to remedy the inhuman and degrading conditions in which the female inmates of a protective home were being kept. In Sheela Barse v. State of Maharashtra,47

a journalist complained of custodial violence against women detained in a

Camenii Guneratne

5 0

jail in Bombay and in Hussainara Khatoon v. State of Bihar,43 an advocate filed action on behalf of prisoners languishing in jail for several years without being brought to trial. In Subash Kumar v. State of Bihar and Others;-' although the Court rejected the petition before it, it reiterated that a public interest petition is available under Article 32 for the prevention of environmental pollution. Petitioners have also brought public interest suits on behalf of individuals, as when a practising advocate of the Calcutta High Court filed an action claiming compensation for the victim of a gang rape in a railway station.30 On the other hand, an action filed as a public interest suit under Article 21 was rejected where it was evident on the facts that it concerned a private dispute which was not of public interest, the Court declaring that it was not for the benefit of the public.3'

The task of the petitioner (whether the actual victim or not), in public interest litigation has been facilitated by the flexibility with which such action can be initiated. Bypassing the usual procedures of instituting action in a court of law, the Supreme Court has accepted letters and telegrams addressed to it as petitions valid in law and has acted on them. The epistoLary jurisdiction of the Court has been invoked in Shukla v. Delhi Administration52

Bandhua Mukti Morcha5:\ Sheela Barse v. State of Maharashtra*4 and Upcndra Baxi v. State of Uttar Pradesh IP5.

Another characteristic of this type of litigation lies in the nature of the proceedings which are inquisitorial rather than adversarial. Judges have taken proactive measures to inform themselves of the realities of the situation in order to not only arrive at a decision, but also to provide appropriate remedies. Bhagwati CJ categorically rejected the contention that in fundamental rights litigation an adversarial procedure with the judge "playing a passive role" as umpire should be followed, and stated that the Court has the power to adopt such procedure as it thinks fit in this regard. Pointing out that when the poor come before court they are not in a position to present the necessary evidence in support of their case, he said it was for this reason that the Court had evolved the practice of appointing commissions in order to gather facts and data.5 6

A third distinctive feature of public interest litigation, particularly in cases concerning Article 21, is found in the type of reliefs prayed for and granted and it is these which often appear to categorise the suits as being in the public interest. In Chandrima Das, the victim had been raped by employees in a railway station. Overruling the objection of the respondents that the petitioner had no locus standi, the Court pointed out that while one of the


51

reliefs claimed was compensation for the victim, others included compelling the authorities to eliminate anti social and criminal activities from the railway station. "The true nature of the petition, therefore, was that of a petition filed in public interest". 5 7 The case of Visakha v. State of Rajasthan5S was brought as a class action by social activists and non governmental organisations asking the Court to find methods of preventing women from being sexually harassed in the workplace and of realising gender equality for women. The catalyst for the action was the gang rape of a social worker in a village in Rajasthan, but the petition did not seek any remedy for her. It appears then that in order to invoke the jurisdiction of the Court under Article 32, there is no longer a need for an identifiable victim or even for a specific dispute between the parties. In the context of fundamental rights litigation the court has moved away from its conventional role of judicial arbitrator to one of policy maker and social engineer.5 9

VII . ARTICLE 21 IS ENFORCEABLE AGAINST NON STATE ACTORS

The question of whether fundamental rights provisions in general are enforceable against non-State actors is not entirely clear from the case law. Writers on the Indian constitution have asserted that with the exception of three Articles 6 0, the provisions of Part III are justiciable only as against the State. 6 1 In M C Mehta v. Union of Jndiah2 although the question was specifically discussed, Bhagwati J declined to give a ruling on the matter. On the other hand, in the context of the enforcement of Article 21 as well as in other areas, the Court has frequently upheld fundamental rights as against non-State actors, and given directions for remedial action against them.

The case of Consumer Education and Research Centre v. Union of India was filed as a public interest petition by the petitioner organisation which was concerned with the issue of occupational health hazards and diseases to workmen in the asbestos industry. The petitioner sought the implementation of several measures to protect workers such as maintaining their health records, compulsory insurance of employers, medical treatment of affected workers and better working conditions. The Court, having held that the right to health of a worker "is an integral facet of a meaningful right to life", further said "The State, be it Union or State-Government or an industry, public or private, is enjoined to take all such action which will promote health, strength and vigour of the workman". 6 3

Camena Guneratnc

52

It cited several decisions where directions had been issued by it to private persons or entities, 6 4 referring in particular to the case of National Textile Workers Union v. PR Ramakrishnan^ where a Constitutional Bench considered the role of a company in the modern economy. That decision held that the socio-economic objectives of Part IV of the Constitution should "guide and shape the new corporation philosophy". It was therefore held that where appropriate the Court would give directions to employers, whether State or private, to make the right to life meaningful and even non-State actors are bound by its directions under Article 32 and 142 of the Constitution.

Since the wording of Article 21 in its negative form does not explicitly refer to the State, it could be argued that a flexible interpretation of its provisions would include both State and non-State actors. The non-State sector is playing an increasingly prominent role in the social and economic environment and this factor together with the corresponding restriction of the regulatory role of the State gives the former a great deal of potential to impact on the lives of citizens. Under the circumstances it is desirable that the supervision of the Court should be extended to it but the constitutional basis of doing so is not entirely clear.

Although the extension of the fundamental rights provisions to the latter in a public interest context is a logical extension of the Court's proactive stance in fulfilling the goals of the Directive Principles, more questionable is the applicability of its jurisdiction under Article 32 to disputes between two private persons in situations where the State is not in any way involved and nor does it appear to be a matter of public interest. In Bodhisattwa Gautam v. Subra Chakraborty^ criminal charges had been instituted against the petitioner in the Magistrates Court for entering into a false marriage with the respondent, and compelling her to have abortions on two occasions. The petitioner appealed to the High Court to quash the proceedings but the action was dismissed. He then appealed to the Supreme Court in the present action by way of a Special Leave Petition. The Supreme Court having dismissed the petition, proceeded to find him liable for the infringement of the fundamental rights of the respondent under Article 21 and declared that fundamental rights can be enforced even against private bodies and individuals. The basis of the Court's conclusion is however, quite unclear.


53

VIII . T H E I N T E R P R E T A T I O N O F A R T I C L E 2 1 IN T H E C O N T E X T OF CIVIL AND P O L I T I C A L RIGHTS VERSUS SOCIAL, ECONOMIC AND C U L T U R A L RIGHTS

A distinction has always been made between civil and political rights on the one hand and social, economic and cultural rights on the other. According to conventional views, the former constitute "first generational" rights, while the latter make up a second generation of human rights. In recent years further rights have been articulated, as for instance, environmental rights and the right to development, as well as the right to self determination, constituting a third generation of rights.6 7

This categorisation has been challenged however, and it has been said "The history of the evolution of human rights at the national level does not make it possible to place the emergence of human rights into clear cut stages." 6 8 Many rights are difficult to classify, as for instance, the right to cultural identity which would appear to fall within the first rather than the second category.

As discussed in the context of the Indian Constitution, the main point of difference between the two categories of rights appears to be the role of the State in relation to them, i.e. in first generational rights it is required to refrain from action which would infringe them and in second generational rights as well as environmental rights and the right to development, it is required to take positive action for their realisation. Since this demarcation corresponds to the accepted distinction between Parts III and IV of the Indian Constitution, it will be maintained in the discussion below.

IX. CIVIL AND POLITICAL RIGHTS

A. The Right to Human Dignity

The concept of the right to live with dignity underlies much of the jurisprudence on Article 21. In Francis Coralie Mullin v. Union of India Bhagwati CJ set out the parameters of this aspect of life and liberty which has formed the basis of subsequent interpretations of the clause. He maintained that Article 21 is not limited to protecting the physical aspects of the person such as limbs and faculties. It also includes the right to live with human dignity and all that goes along with it. This includes the bare necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. He went on to say "Every act which

Camena Cuneratne

offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights." 6 9

Many of tne other substantive rights which the Court has upheld were founded on the premise that their infringement affected human dignity. In Shukla v. Delhi Administration70 the Court condemned the practice of handcuffing prisoners unnecessarily, on the grounds that "all individuals are entitled to enjoy that dignity that determines the rule that ordinarily no restraint should be imposed" except when there is a reasonable fear of violence or attempt to escape. In Vikram Deo Singh Tomar v. State of Bihar, describing a "care home" maintained by the State as a crowded hovel where the inmates were "compelled to subsist in conditions of animal survival, conditions which blatantly deny their basic humanity", Pathak CJ pointed out that this was an age in which the Court has demonstrated, in the interpretation of Article 21, that every person is entitled to a quality of life consistent with his human personality, and the right to live with human dignity is the fundamental right of every Indian citizen.71

Similarly in Bandhua Mukti Morcha, discussing the plight of bonded labourers, Bhagwati J reiterated that "it is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin's case, to live with human dignity, free from exploitation". 7 2

The emphasis on the right to live with dignity is particularly visible in the Court's handling of issues concerning women. In both Vikram Deo Singh Tomar73 and Upendra Baxi v. State of Uttar Pradesh and Others,74, it criticised the inhuman and degrading conditions in which inmates of protective homes for women were being kept and held that it violated their right to live with human dignity enshrined in Article 21. More significantly the right to human dignity formed the basis of several decisions upholding the right of women to be free from sexual violence and gender inequalities,7 5 and it was declared that rape and sexual harassment violates their right to life including the right to live with human dignity, and their right to gender equality.

54


55

B. Protection of Life and Liberty in the Criminal Trial Process

A narrow construction of Article 21 indicates that it gives protection to persons only from illegal arrest and detention per se. However, the Court has given an expanded interpretation to the scope of the Article in the context of the criminal justice system and has held that it applies at every stage of arrest, detention, trial, sentencing and incarceration, even where the action in question is in accordance with formal procedure. The Court has based its decisions on the premise that being convicted of a crime does not deprive a person of his/her fundamental rights.7 6 In Shukla v. Delhi Administration,77

the petitioner filed a habeas corpus application protesting against being handcuffed while being taken to and from court. Admitting the application, the Court held that such rights have to be investigated within the human rights parameters of Part III. Referring to the writ of habeas corpus, Krishna Iyer j stated that

[n]o longer is this liberating writ trammelled by the traditional limits of English vintage, for, our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in America, the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture of persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates Articles 21, 14, and 19 enlivened by the Preamble.

In disposing of cases brought by or on behalf of those subject to arrest and detention, the Court has followed the rule in Maneka Gandhi that the procedure should not only be "prescribed by law" but also that the law in question should be reasonable, just and fair. In Francis Coralie Mullin7S, the petitioner detained in jail, complained that she was not permitted to have interviews with her family members or with her lawyer. Bhagwati ] pointed out that after Maneka Gandhi the Court has expanded the scope and ambit of the right to life and personal liberty in Article 21 and sowed the seed for future development of the law, enlarging this most fundamental of fundamental rights. The position now is that Article 21 requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, just and fair and not arbitrary, whimsical or fanciful, and it is for the Court in the exercise of its constitutional

Camcna Guneratne

power of judicial review to decide whether the deprivation in a given case meets this requirement.7 9 In the instant case the Court concluded that where a person is lawfully imprisoned her rights are bound to suffer restrictions, but she would be entitled to have interviews with members of her family and with friends and any prison rule regulating this right would be considered unconstitutional unless it is reasonable, just and fair.

Article 21 has been applied to several cases challenging aspects of the criminal justice process. In Hussainara Khatoon v. State of Bihar80 the matter under review was the large number of men, women and children languishing in the jails of Bihar awaiting trial, sometime for periods longer than they would have served on conviction. Upholding the right of accused persons to a speedy trial, Bhagwati J pointed out that a procedure which does not ensure a reasonably quick trial cannot be considered to be "reasonable, just and fair" and would fall foul of Article 21. Although the right to a fair trial is not specified as a fundamental right, it is implicit in Article 21 as interpreted in Maneka Gandhi. The remedial measures ordered by the court included providing the detenues with free legal services to secure bail, and the immediate release of those who had been confined for periods longer than the maximum term of imprisonment which could be imposed on them. Citing Article 39-A of the Constitution8 1, the Court also declared that access to free legal services is an unalienable element of reasonable, fair and just procedure and is the constitutional right of every person who is unable to engage a lawyer due to economic or other reasons. If free legal aid is not provided the trial may be vitiated as being contrary to Article 21. 8 2 Similarly, it has been held that keeping prisoners in solitary confinement and in bar fetters was also contrary to the right to life and liberty.8 3

The validity of capital punishment has also been raised in several cases. Interestingly, the Court has refused to declare the death sentence to be a violation of Article 21, and in Bachan Singh v. State of Punjab** upheld its constitutionality under Section 302 of the Indian Penal Code. It pointed out that the State is permitted to deprive a person of his life and liberty if it is done according to "fair, just and reasonable procedure established by valid law". Several provisions of the Constitution show that the constitution makers were fully cognisant of the existence of capital punishment at the time it was enacted and there are several references to the death sentence in it. Therefore it cannot be said that the death penalty constitutes unreasonable, cruel or unusual punishment.8 5 However, the Court also made it clear that "[a] real and abiding concern for the dignity of human life postulates

56


08 - 2004-05-0784-OUP-300 57

resistance to taking life through laws' instrumentality. That ought not to be done except in the rarest of rare cases when the alternative option is unquestionably foreclosed".8 6 While upholding the death sentence per se, the Court has held that a mandatory death sentence was unconstitutional, and invalidated Section 203 of the Indian Penal Code accordingly. This section imposed mandatory capital punishment on a person who committed murder while serving a sentence of life imprisonment, which, in the view of the Court, was arbitrary and unreasonable.8 7

Having held that the death penalty is constitutional, the Court has held that its enforcement must take place humanely. In Lachma Devi88 it deleted an order of the High Court of Rajasthan for the public hanging of convicted offenders declaring that it would be a barbaric practice and in violation of the right to life. Undue delay in carrying out the sentence has also been successfully challenged under Article 21 as being unjust, unfair and unreasonable. 8 9

C. Gender Violence

Indian judges have embarked on a vigorous defence of women's rights and gender equality under the aegis of Article 21. The Court's response to two cases brought before it by way of public interest petitions, requesting it to act to protect women from gender violence aptly illustrates the proactive stance it has taken on this issue.

hi Visakha v. Rajasthan90 the Court declared that incidents such as that described earlier violated the fundamental rights of gender equality and the right to life and liberty and further held that they also violated the right to practice a profession or to carry out any occupation, trade or business guaranteed under Article 19 (1) (g). The right to life means the right to live with dignity, and sexual violence is necessarily a violation of that right. In the view of the Court "gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right".

The position that gender violence constitutes a breach of Article 21 was reinforced in the recent case of Chairman, Railways Board and Others v. Chandrima Das and Others91. In this case the victim was gang raped in a railway station by several people including employees of the Railways Board. The Court declared "In the instant case, it is not a mere matter of violation

Camena Guneratne

of an ordinary right of a person but the violation of fundamental rights which is involved." The victim was entitled to be treated with dignity and to the protection of her person as guaranteed under Article 21 of the Constitution. She could not be subject to treatment which was below dignity nor could she be subject to violence at the hands of government employees who outraged her modesty. Her rights under Article 21 were thus infringed.92

The same view was taken in Bodhisattwa Gautam v. Subra Chakraborthy in which it was reiterated that rape constitutes a violation of the right to life and human dignity, observing that it is "the most hated crime, violative of the victim's most cherished of the Fundamental Rights, namely the Right to Life contained in Article 2 1 . 9 3

D. "The Right to Die"

The positive and negative aspects of Article 21 discussed earlier have been analysed in two interesting decisions of the Supreme Court which addressed the issue of whether the right to life encompasses the right to die.

The question was first considered in the context of Section 309 of the Indian Penal Code which criminalises attempted suicide. In the first of these cases, P Raihiman v. Union of India1** the Court held that Section 309 violates Article 21 and is, therefore, void.

In this case the court considered the question of whether, if a person has the right to live, he/she also has the right not to live or the right to die. In reply to this question Hansaria J held that fundamental rights have positive as well as negative aspects. For instance, the right to speak includes the right not to speak, and the freedom to do business includes the freedom not to do business. Logically it must then follow that the right to live includes the right not to do so or in other words to end one's own life.

Hansaria J referred to criticisms of this analogy where it was argued that the negative aspect of other rights merely resulted in their suspension, while the negative aspect of the right to life resulted in its total extinction. It was further argued that since all other rights are derived from the right to life, an analogy between the latter and other rights cannot be drawn. He agreed that the negative aspects may not be inferable on the analogy of the rights conferred by different clauses of Article 19, but held that "... one may refuse to live, if his life be not according to the person concerned worth living or if the richness or fullness of life were not to demand living further. ... In any

58


59

case a person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking".9 5

In coming to this conclusion he emphasised that the argument did not mean that the right to life conferred by Article 21 had been waived. He cited the case of Olga Tellis v Bombay Municipal Corporation96 where it was held that a fundamental right cannot be waived. He pointed out that the issue in the present case was not a question of waiver, but one of not taking advantage of the right conferred under Article 21. While the point appears to be merely academic, waiving a right would necessarily imply that a third person would be allowed to violate it, whereas not taking advantage of it would not carry that premise.

This decision was however, overruled by Gian Kaur v. State of Punjab.97 In this case the two appellants were charged and convicted under Section 306 of the Indian Penal Code for abetting the suicide of a third person. They challenged their convict ion on the ground that Section 306 was unconstitutional on the basis of the decision in Rathiman. They argued that since Rathiman had held that the right to die was included in Article 21 and consequently Section 309 was held to be unconstitutional, it therefore followed that any person abetting the suicide of another was merely assisting in the exercise of the right. Therefore Section 306 is equally unconstitutional.

The Court in Gian Kaur re-visited the question of whether Section 309 in fact violated Article 21 of the Constitution. It again considered the issue of the negative and positive aspects of all rights but came to a different conclusion from that of Rathinam, stating that in cases where the fundamental rights are of a positive kind, e.g. freedom of speech, freedom of association, freedom of movement, etc, inclusion of the negative aspect means that there is no compulsion to exercise the right by doing the guaranteed positive act. Referring to previous decisions on this point cited in Rathiman,9* the Court said that "those decisions merely held that the right to do an act includes also the right not to do an act in that manner. It does not flow from those decisions that if the right is for protection from any intrusion thereof by others or in other words the right has the negative aspect of not being deprived by others of its continued exercise, e.g. the right to life or personal liberty, then the converse positive act also flows therefrom to permit expressly its discontinuance or extinction by the holder of such right. In those decisions it is the negative aspect of the right that was invoked for which no positive or overt act was required to be done by implication. This difference in the

Camena Guneratne

60

nature of rights has to be borne in rnind when making the comparison for the application of the principle."

The argument of the Court was that when a man commits suicide he does certain positive acts and the genesis of those acts cannot be traced to or included in Article 21. Suicide is an unnatural termination of life. There can be no comparison with the positive/negative aspects of other rights. "The right to die, if any, is inherently inconsistent with the right to life as is death with life". A distinction can be made in the case of a dying man who is terminally ill being permitted to terminate life by a premature extinction of it. Such cases may fall within the ambit of the right to die with dignity as part of the right to live with dignity, in a situation where the process of dying has already commenced. However, the Court emphasised that such argument would not be available to curtail the natural span of life. It concluded therefore that neither Section 309 nor 306 violated Article 21.

The distinction between the positive/negative aspects of the right to life and the positive/negative aspects of other fundamental rights is based on the reasoning that in order to exercise the negative aspect of other rights the holder simply remains passive, while in order to exercise the negative aspect of the right to life the holder must do a positive act to extinguish life. This distinction is untenable and does not cover the situation of a person who for instance, chooses to starve himself / herself to death. Would this be considered a positive or a negative act? Further, by holding that a person is not permitted to end his/her own life, the Court is in effect saying that a person could violate his/her own right to life. The further distinction made by the Court between a person who has commenced the "process of dying" and one who has not, is also artificial and difficult to apply in varying circumstances.

It should be noted that the decision in Rathinam in fact drew a distinction between suicide and the aiding and abetting of suicide. While the former was held to fall within the ambit of Article 21 the latter was not." Therefore it would have been quite consistent for the Court in Gian Kaur to uphold Section 306 of the Penal Code without over ruling the decision in Rathinam. It is also unfortunate that while the Court has emphatically denied that any person has the right to terminate his or her own life, it has upheld the right of the State to do so if it is in accordance with procedure established by law.


61

X. ECONOMIC AND SOCIAL RIGHTS

As discussed above, while Part III of the Constitution provides for the protection of civil and political rights, the Directive Principles contain provisions which are now recognised as social and economic rights. While these Principles were considered fundamental in the governance of the country and in achieving its social and economic objectives, they were not intended to give absolute guarantees in this regard. It is not within the jurisdict ion of the Court to enforce these objectives, but judicial pronouncements reflect that it has used the Directive Principles as the basis on which to expand Article 21 to cover second generation rights. The Court has based its reasoning on the premise that "the Constitution envisages the establishment of a welfare State at the federal level as well as at the state level. In a welfare State the primary duty of the Government is to secure the welfare of the people", 1 0 0 and that "India is a welfare State ... It lays special emphasis on the protection and well being of the weaker sections of society and seeks to improve their economic and social status on the basis of constitutional guarantees spelled out in its provisions".1 0 1

Olga Tellis v. Bombay Municipal Corporation102 and Francis Coralie Mullinm

are two significant cases which extended the right to life to include social and economic rights. In Francis Coralie Mullin Bhagwati J held that Article 21 is not limited to protecting limb or faculty but includes the necessities of life such as "adequate nutrition, clothing and shelter, as well as facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings". This was reinforced in Olga Tellis where it was held that protection of life per se is only one aspect of the right to life. An equally important facet was the right to livelihood. Deprivation of the latter would, in effect, not only deprive life of any meaning but would make it impossible to live.

The interpretation being established, it has been echoed in several cases which have recognised various specific rights under Article 21. In Shantistar Builders v. Narayan Khimlal Totame and Othersm it was held that the basic needs of persons have been traditionally accepted to be food, clothing and shelter, as well as the right to a decent environment. In a more recent case 1 0 5

the Court said "Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society" and pointed out that the civil, political, social and economic rights contained in the Universal Declaration of Human Rights or in the Preamble to the Constitution

Camena Guneratne

62

of India cannot be exercised without these basic rights. This reflects the view of the Court that the two categories of rights are inextricably interlinked and civil and political rights become meaningless when the basic needs of a human existence are lacking. The right to life must then necessarily incorporate all the attributes of a meaningful life and the distinction between various categories of rights becomes blurred.

A. The Right to Health and Education

Access to health care and education are particularly important aspects of economic and social rights and this issue has frequently surfaced before the Supreme Court in the context of Article 2 1 . 1 0 6 In early cases such as Vincent Panikuriangara v. Union of India107 the Court took the view that in a welfare State it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. It cited Article 47 of the Directive Principles 1 0 8 saying that the improvement of public health has to rank high as it is indispensable to the very physical existence of the community and therefore is of the highest priority. Similarly in Pt Parmanand Katara v. Union of India10'1 referring to the need for emergency medical care, it was categorically stated that Article 21 of the Constitution casts the obligation on the State for preserving life.

In Consumer Education and Research Centre v. Union of India110 the Court upheld the right of workers in the asbestos industry to health care." 1 More specific issues have also arisen in this sphere. For instance in Paramanand Katara112 the Court addressed the issue of hospitals refusing medical treatment to people injured in accidents as they did not wish to become involved in police inquiries and in Vincent Paniknrlangara113 the point in issue was the quality and availability of medicinal drugs. The High Court of Andhra Pradesh has gone to the extent of hearing a petition for medical negligence under Article 21 in which it held that the negligence of the doctors in the government hospitals gave rise to an action for breach of the right to life. 1 1 4

This case provides an interesting interface between constitutional provisions and negligence actions in tort law.

The right to health has been further expanded upon in later cases. In State of Punjab v. Mohindcr Singh Chawla115 the Court declared that "It is now a settled law that right to health is integral to right to life. Government has a constitutional obligation to provide health facilities." In the case of Paschim Banga Khet Mazdoor Samiiy v. State of West Bengal"6 the second


63

petitioner fell off a train and was seriously injured. He was taken from hospital to hospital, each hospital refusing treatment on the grounds that it did not have the necessary facilities. The Court held

In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. ... Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention.' ' 7

The right to education was addressed in Unni Krishnanu& where Jeevan Reddy J said that it was implicit in the right to life, pointing out that reference to education occurs in several Articles of Parts III and IV. 1 1 9 However, in enforcing the Directive Principles, especially in regard to health and education, the Court has taken the pragmatic view that they do not confer absolute rights. Referring to Article 45 of the Principles 1 2 0 it was held that a citizen has a fundamental right to free education upto fourteen years of age, but thereafter the obligation of the State to provide education would be subject to the limits of its economic capacity. A similar view was expressed in the case of health care where it was reiterated that the State does not have unlimited resources to spend on any project and medical facilities can be provided only to the extent that it is feasible.1 2 1

B. The Right to a Healthy Environment

The proliferation in the last decade of actions seeking to prevent environmental degradation have contributed to the expansion of the attributes of Article 21 and has resulted in the recognition of a right to a

Camena Guneratnc

64

clean and life sustaining environment as falling within the right to life. In some early cases Article 21 was not argued and the Court did not explicitly make the connection between the two actions, but the judicial dicta makes it clear that the impact of environmental damage on communities was a crucial factor in its decisions. In Rural Litigation and Entitlement Kendrar, in closing down limestone quarries in Uttar Pradesh, it was held that although it would cause hardship to the lessees of the quarries, "it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment/' 1 2 2 Similarly in Municipal Council Ratlam v. Vardhichand, Article 21 was not in issue and the case was brought as a public nuisance action against the Council protesting against its failure to provide adequate sanitation and protection from pollution to the slum dwellers and poorer sections of the population. The dicta of the Court carries overtones of the right to life in constitutional cases. "Public nuisance because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law ... Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies." 1 2 3

More recently the Court has been more explicit in linking environmental issues to Article 21. In A P Pollution Control Board v. Prof. A P Nayadu it declared that "Environmental concerns arising in this Court under Article 21 ... are in our view of equal importance as human rights concerns. In fact, both are to be traced to Article 21 which deals with the fundamental right to life and liberty. While environmental aspects concern 'life', human rights aspects concern 'liberty'". 1 2 4 Thus it has been held that the discharge of highly toxic pollutants into the environment constituted a violation of the right to life and liberty of nearby residents 1 2 5, and that the constitutional and statutorv provisions protect a person's right to fresh air, clean water and pollution free environment. 1 2 6

X L CONCLUSION

The jurisprudence of the right to life under the Indian constitution highlights the creative role played by the Supreme Court in harmonising constitutional interpretation with the endeavour to achieve social justice. Beginning with Maneka Gandhi which overruled the formalistic construction of Part III including Article 21, it has moved forward to interpret the Article


09 - 2004-05-0784-OUP-300 65

as encompassing a large proportion of the gamut of human rights and in doing so has ignored the artificial classification of civil and political rights on the one hand and social and economic rights on the other.

In the context of its decision making process in the public law sphere, the boundaries of the judicial role in the constitutional framework appear to have become increasingly blurred. In the words of Pathak J , "The Constitution envisages a broad division of the power of the State between the legislature, the executive and the judiciary. ... It is common place that while the Legislature enacts the law, the executive implements it and the Court interprets it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. And yet it is well recognised that in a certain sphere the Legislature is possessed of judicial power, the executive possesses a measure of both legislative and judicial functions, and the Court in its duty of interpreting the law, accomplishes in its perfected action a marginal degree of legislative exercise/ ' 1 2 7

Both its activist interpretation of constitutional provisions discussed in this paper and the remedial measures granted by the Court often take on the colour of "legislative exercise". Article 32 gives it the discretion to provide a variety of remedies to enforce the provisions of Part III. These have included on the one hand, the more usual remedies which have given direct relief to affected persons as for instance monetary compensation 1 2 8 and orders to administrative officers to take remedial action in the instant case. 1 2 9 However, the rule making power of the Court is more visible in instances where it has taken steps to address the issue prospectively in a wider context and in order to regulate future action. It has for instance issued detailed guidelines to assist victims of rape 1 3 0 , prevent sexual harassment of women in the workplace 1 3 1 and improve working conditions of workers in the asbestos industry. 1 3 2 In several other cases it has issued a series of continuous directions for reliefs to affected persons. 1 3 3

The developments in fundamental rights litigation in India and the scope of judicial activism in this context is unique and perhaps unprecedented in any other jurisdiction. It is obvious that the ability of the Court to bring social justice to the mass of the population is necessarily limited and it cannot supersede the role of the other two branches of the State in implementing measures for human development. In many cases, particularly those in regard to social and economic rights, while the Court may give such rights its judicial

Camena Cuneratne

stamp, it can do little in effect to make them a reality. That remains an essentially political function. However, in the constitutional framework it is both an equal partner with, and supervisor over the legislature and the executive and its capacity within this role to effect far reaching changes cannot be underestimated and can serve as a source of inspiration for lawyers and judges of other countries striving to achieve an adequate quality of life for the people.

(Endnotes)

1 For instance the Universal Declaration of Human Rights (Art. 3) . the Internationa] Covenant on Civil and Political Rights (ICCPR) (Art. 6) , the American Convention on Human Rights (Art. 4). the European Convention on Human Rights (Art. 2). the African Charter on Human and Peoples' Rights (Art 4).

I See also for instance, the Constitutions of Pakistan (Art. 9) . Bangladesh (An. 3-1. South Africa (Art. 11), Vietnam (Art. 7 1 ) , Lao Peoples Democratic Republic (An. 29).

* Ramcharan 15. G.. (1985) Concepts and Dimensions of the Right to Life, in Ramcharan B G (ed) The Right to Life in International Law. Dordrecht: Martinus Nijoliff.

' Id at 4.

Austin. Granville. ( I960) . Thejndian Constitution - Cornerstone of a Nation . Oxford University Press; New Delhi at page 50.

'' Austin, /c /3t50 .

' IMce, A V. (1965) . Constitutional Govem,inent in India, Asia Publishing House. London at 187. 8 See Austin, supra note 5 at 75 and IMee. id at 306. J ( 1 9 7 8 ) 1 S C C 2 4 8 a t 247. w See J N P-jndcy, (1998). Constitutional Law of India (33rd ed.') Central Liu- Agency, Allahabad at 324. I I Art. 37 - The Provisions contained in this Part shall not \ye enforceable by any Court, but the principles

therein laid down are nevertheless fundamental in the governance of the country and it shall he the duty of the Stale to apply these principles in making laws.

u See UnniKHsbnanv. State ofAitdbra / -Wes/>(1993) 1 SCC6i5at 665. y An. 14: ffquality before law - 'Hie State shall not deny to any person equality liefore die law or the equal

protection of the laws within the territory of India.

" Ait. 19; Protection of certain rights regarding freedom of speech, etc - ( I ) All citizens shall have the right-(a) to freedom of speech and expression: (b> to assemble peaceably and without amis; ( c ) to fomi associaiions or unions; id) to move freely throughout the lerritoiy of India: (e) to reside and settle in any part of the temtory of India; (f) [omitted by the Constitution (Forty-fourth Amendment) Act 1978] (g) to practise any profession, or to cany on any occupation, trade or business. Other provisions confer positive nghlssuch as the freedom of religion, rights of minorities, etc.

^ Mohan J in than krisbitoii,supra iYA<z\2M 666<i67.

hid r See A KGvpalanw State nfMadnis MR 1950 SC 27 and die majority decision in KbarakSingbv. Stale of

Uttar Pradesh m 1963 SC 1295. * note 9 at 279.

66


67

B MohanJ mUnniKrishnan, stipnmote 12 at 668. B ManekaGandhi, supra'note9at 280. * Idem 2.1 338. B See State of Madras v. Cbampakam Doraimjan AIR 1951SC 228. s Dr. Justice A S Anand, Protection of Human Rights-Judicial Obligation orJudicial'Activism?, (1997) 7 SCC

'(J) 11 at 21.

* AIR 1980 SC 1789 at 1844. K Idemat 1806. See also Jagat Narain, Judicial Law rmkir^ and theplacxofDirectuv Principles in Iridium

Constitution, (1985) 27Journal of the Indian Law Institute 198.

* Supra note 24 at 1848. r (1984) 3 SCC 161.

* Wat 175. s (1987) 2 SCC 165.

* Supra note 12. a See in particular Kesavananda liharutiv. State of Kerala (1975) 4SCC225. s Supra note 12 at 674.

•B AIR 1980 SC 470 at 473.

* (1997) 6 SCC 241.

* (2000) 2 SCC 465.

* Supra note 34 at 251. r Ibid. This view was reiterated in Apparel Export Promotion Council v. A K Chopra AIR 1999 SC 625. * AIR 1995 SC 922.

* (1993) 2 SCC 746.

* Pylee supra note 7 at 286.

"* Ait 226 of the Constitution confers similar powers on the High Courts and reads - (1) Notwithstanding anything in article 32. every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories, directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Pan III and for any other purpose." The powers of the High Courts to Issue writs are therefore greater than those of the Supreme Court as they are not restricted to the enforcement of fundamental rights.

* Supra note 27 at 227.

* Idax 186. SeealsoA/CMehtav. Union ofIndia (1987) 1 SCC 395 and S/J Gupta v. Union of India MR 1982 SC 149 for a description of the nature of public interest litigation.

* For a detailed study of public interest litigation see G L Peiris, Public Interest Litigation in the Indian Subcontinent, (1991) 40ICLQ 66; Clark D Cunningham, PublicInterest Litigation in Indian Supreme Court A study in the light ojAmerican experience, (1987) 29Journal of the Indian Law Institute 495 See also, J N Pandey, supm note lOatCh. 17.

* Supm note 27.

* Dr. UpendraBaxiandOtheisv.StateftflJttarPmdesb I (1983) 2 SCC 308; Dr. IJpendm EaxiandOthersv. State of Uttar Pradesh II (1986) 4 SCC 106.

* (1983) 2 SCC 96.

Cameim Guneratne

* (19801 1 SCC 81.

" AIR 1991 S C 4 2 0 .

™ See Cbandrima Das. supra n< ae 35.

Per Sabyasachi MukharjiJ in Ramsfutra Atttyauuprasi\:. Union of India A IK 1989SC

^ (1980) 3 SCC 526. In this case the fxrtitioner who was in jail sent a telegram to tlie Coun stating "In spue of Coun order and direction of your Lordship in Sunii Batra v. Delhi Administration, handcuffs are forced on me and others. Admit writ of habeas corpus".

* Supra nore 27.

*" Supm note -17.

" 5»/?m note 46. 5,1 Se^ for u\^x^ BcuuIImui MidHi A!<>n'ba supra nAe27. See also A!hkv/'Litigation andEntitlement Kendra v.

Stale oj 'UtiarPradesh where the Conn made a series of orders over a period of time-AIR 1985 SC 652. A 1 K SC 1259, AIR 1987 SC: 359 . AIR 1987 SC 2426. AIR 1988 SC 2 1 8 7 , AIR 1989 St; 595-

~ Supm note 35 at 478.

* Supra note 34. 1 1 See also MC'Mebta v: State of Tamil :\adu AIR 1991 SC 417 and l/iksbmi Kant Paudeyv. Union of India

(1984) 2 SCC 244. See also for instance, ParamanandKatara v. Union o/'lndia (1989) 4 SCC 286. m Aris. 15 (2 ) ; 17 and 23. 0 1 See for instance Granville \\nx\n. supra note 5 , l'ylee, supra note 7; Wincey supra note 10.

5//pm note 43 ai 419.

* Supra note 38 at 940.

*• See MCMebta v. i/)//o;/ <>/India (1987) 4 SCC 463: AIR 1988 SC 1037 where tanneries discharging effluents into the river Ganges were directed to stop doing so; Pt. Paramanand Katara v. Union of India (1989) 4 SCC 286; MR 19S9 SC 2039 where even private doctors and hospitals were directed to extend services to protect the lives ol patients.

I f i AIR 1983 SC ^59.

"' AIR 1996 St; 922.

Hide. Asbjom and Rosas, Allan (199 i). Economic, Social and Cultural Rights - A Universal Challenge, in Asbjom Hide, Catarina Kraust: iS: Allan Rosas (eds) Economic. Social and Cultural Rights - A Textlxiok Dordrecht Martinus Niiohff.

{* Ibid.

"> ( 1 9 8 1 ) 1 SCC 6 0 8 at 6l9-

^ Supra note 52. n AIR 1988SC 1782 at 1783. r i Supra note 27 at 183-1 Supra now!\.

Supra ncte '16.

^ Seefoi instance, llseMvi v. Ra/astbaii. supra note 3 1 SriPodbisatttraGautamsupra nc*.c&\ Cbandrima Das and Others supra note 35.

Constitution Bench of the Gum in Si mil Batra v. Delhi Administration (1978) i SCC <t9 i at (̂'M.

Supra note 52. % Supra note 69.

6 S


^ Maneka Gandhi'supra note 9 at 614-615. ro Supra note 48. M Art. 39-A - F.qiial justice and free legal aid - The Suite shall secure that the operation of the legal system

promotes justice, on a basis of equal opportunity, and sliall, in particular, provide free legal aid, by suitable legislation or .schemes or in any other way, to ensure tliat opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

1 2 Tliis aise was upheld in RajDeoSbarma v. Slate of Bihar MR 1998 SC 3281 where the Court again set out detailed guidelines to be followed in expediting delayed trials. See also Hoskot v. Stale of Maharashtra (1978) 3 SCC 544.

* SunilBatm v. DelhiAdministration supm note 76.

* (1980)2 SCC 684.

* PerSakariaJ idem at 70.

* Per BhagwatiJ, idem at 751. The "rarest of rare cases" standard was cited in subsequent cases. See Ammta v. State of Mabamshtm (1983) 3 SCC %}Jenxxl'Ahmed'AbdulhamklPamila v. State of Maharashtra (1983) 3 SCC 39; Macchi Singh and Others v. State of Punjab (1983) 3 SCC 470.

"> Mitbu v. State of Pin ijab(.m3) 2 SCC 277.

* Attorney General of India v. LachtnalXvi MR 1986SC467.

* TVVatheesuamn v. Stateof TamilNadu (1983) 2 SCC 68; SherSingb v. Stateoj'PnnjabQSRS) 2 SCC 344; MadbuMehta v. Union of India (1989) 4 SCC 62.

Supm note 34. 91 Supra note 35.

* See siso Delhi Domestic VfbMng Women'sfijnmiv. Union ofIndia{W5) 1 SCC 14. 18 Supm note 66 at 927. See also Apparel Export Promotion Council v. A KCbopm, supra note 37.

* (1994) 3 SCC 394.

Idem at 410. The Court further sufwtantiated its decision with an extensive discussion of the purposes of criminal provisions such as Section 309 and the sociological, psychological and other aspects of suicide. It is also interesting to note that the argument that Section 309 violated Article 14 (die equality clause) was rejected.

* (1985) 3 SCC 545.

AIR 1996 SC 946.

* Supra note 97 at 409-410.

Idem al 427.

PeT\&3Wjl]inPaschinBcingaKlx?tMazdnrr^

ioi per l'athak CJ in Vikrum Deo Singh Tomarv. State of Bihar supm wrxell. uu Supm note 96.

Supm note 69.

(1990) 1 SCC 520.

"* Chameli Singh v. Slate of UP. (1996) 2 SCC 549. Recent Constitutions have inconxjrated health and education as pan of [he fundamental rights provisions. See for instance the constitutions of Vietnam (Arts. 59 and 6l) and the Lio Republic (Arts. 25 and 26).

*r Supra note 29.

69

Camena Guneratne

w Art. 47 reads - ''The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, die State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of dnigs which are injurious to health".

m Supm note 59. 11,1 i"»/?ranote38. 1 1 1 See also C.S.E.C.Itd. v. Subbasb Chandra Bosei 1992) 1 SCC 441 at 462. 1 1 2 Srf/»»note62.

% » n note 29.

111 Sbantav.StateofAndhra Pradesh and others MR l998Andhra Pradesh 51.

(1996) 1997 SC 1225.

AIR 1996 SC 2426. 1 1 7 See 'AhoMaljetidra Ptntap Singh v. State ofOrissa AIR 1997 On 37. ,1K Supra mm 12. StxalsoMnbiniJainv. State tf'Kan uitaka (1992) 3 SCC 666. w Part III - Arts. 29 and 30; Pan IV - Arts. 4 1 , 4 5 and 46 . 1 J I Art. 45 - Hie State shall endeavour to provide will tin a period often years from the commencement of

if its Constitution free and compulsory education for all children until die)' complete die age of fourteen years.

1 J 1 See State ofPunjabv. Ram Luhba\aBagga MR 199^ SC 1703.

AIR 1985 SC 652 at 656 . i a AIR 1980 SC 1622 at 1629. ] i i ( 1 9 9 9 ) 2 SCC 7 1 8 at 740 .

'* Indian Council for Eutvv-Lcgal'Action v. Union of India (1996) 3-SCC 212.

Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 617 at 660. The Court also refenecl to Arts. 47. 48-A of the Directive Principles and 51-A (g) of the Fundamental Duties.

i r Bandhua MuktiMorcba, supm note 27 at p 231-232. 1 3 1 See for in&xnxRudulSab v. Stale of Bihar-(1983) 4 SCC 141 and Nilalxiti Belxra supra note 39 where die

Court awarded monetary compensation to the petitioners.

'-v See for instance Vikram Deo Singh Tomar. supra note 71, LpeiidmBaxiland Upendra Baxin, supm note 46.

Bodhisattua<jatttam,st^m\t^:(i\

Visakha v. State of Rajasthan, supra note 34.

Cot isumer Education arid Research Centre v. Unioi i cfIndia, si tpm note 38. w SeeHitsuiinamKlxitoonv.SiW£f//J#>«r,w/rancte^

122.

70

Some Aspects of the Right to Life in Indian...

Documents

Transcript of Some Aspects of the Right to Life in Indian...