Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. This provision of Indian Constitution resembles with the 5th and 14th Amendment of the U.S. Constitution, which provides that,
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“No person shall be deprived of his life, liberty or property without due process of law.”
The most important words in Indian provision are “procedure established by law”. The question of the interpretation of these words arose in the famous case, A.K. Gopalan v. State of Madras, AIR 1950 S.C. 27, where the validity of the Preventive Detention Act, enacted by Parliament in 1950 was challenged.
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The Government argued that the words “procedure established by law”, meant nothing else but such procedure as may be laid by a law made by legislature and that the courts could not, under Article 21, go into the reasonableness of the law so made, or the procedure so laid down.
On behalf of A.K. Gopalan, a three pronged agreement was advanced:
(1) That the word “law” in Article 21 does not mean merely enacted laws but also incorporates principles of natural justice;
(2) That a law of preventive detention affects the right of movement of the person detained and therefore the reasonableness of Article 19 (5);
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(3) The “procedure established by law” introduces in India the American concept of “procedural due process” which enables the courts to see whether the law fulfils the requisite elements of due process.
The Supreme Court rejected all the above arguments. The Supreme Court held in this case that the word “Law” in Article 21 could not be read as meaning rules of natural justice. Such rules are vague, indefinite and defined nowhere. The Constitution cannot be read as laying down a vague standard.
In Kharak Singh v. State of U.P., AIR 1963 S.C. 1295, it was held that the expression “life” was not limited to bodily restraint or confinement to person only but something more than mere animal existence. In this case the petitioner, Kharak Singh was charged in a dacoity case but was released as there was no evidence against him.
The Police opened a history-sheet against him and he was kept in Police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and unification of his movement and activities.
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The Supreme Court held that the domiciliary visits by the police were an invasion on the petitioner’s personal liberty. By the term, “Life” as used here, means something more than mere existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.
The Court held that the unauthorised intrusion into a person’s home and the disturbance caused to him is the violation of the personal liberty of an individual. Hence, the Police Regulation authorising domiciliary visits was plainly violative of Article 21 as there was no law on which it could be justified and it must be struck down as unconstitutional.
In Satwant Singh vs. Asstt. Passport Officer, New Delhi, AIR 1967 S.C. 1836, the Supreme Court further extended the scope of this Article and held that “right to travel abroad”, was part of a person’s personal liberty within the meaning of Article 21 of the Constitution.
In this case the petitioner, who was a citizen of India, had to travel frequently for business purposes. The Government ordered him to surrender the passport but the petitioner challenged it on the ground that the right to travel abroad and return to India was part of his personal liberty.
The Supreme Court accepted the contention of the petitioner and held that the right to travel abroad was part of a person’s personal liberty within the meaning of Article 21 and therefore no person can be deprived of his right to travel abroad except according to procedure established by law. In fact, there was no law on which the Government could justify its action.
The Supreme Court had held in Maneka Gandhi vs. Union of India, AIR 1978 S.C. 597, wherein the petitioner’s passport was impounded that the Government was not justified in withholding the reasons for impounding the passport from the petitioner. Delivering majority judgment. Justice Bhagwati asked: “Is the presentation of some sort of procedure enough or must the procedures comply with any particular requirement?”
He then held that the procedure contemplated in Article 21 could not be unfair or unreasonable. And this principle of reasonableness which was an essential element of equality or non-arbitrariness pervaded Article 14 like a brooding omnipresence and the procedure contemplated in Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.
Hence, any procedure which permitted impairment of individuals’ right to go abroad without giving him a reasonable opportunity to be heard, could not but be condemned as unfair and unjust. The order withholding reasons for impounding the passport was therefore not only in breach of statutory provisions of Passport Act but also in violation of the rule of natural Justice embodied in the maxim “audi alteram partem”.
Although there are no positive words in the statute (Passport Act) requiring that the party shall be heard, yet the justice of the Common Law shall supply this omission of the legislature. The power conferred on the Passport authority to impound the passport under Section 10 (3) (c) of the Act, was a quasi-Judicial power.
The rules of natural justice would therefore be applicable in the exercise of this power. Fairness in action, therefore, demands that an opportunity to be heard should be given to the person affected. Thus, the court gave a new dimension to Article 21 in the Maneka Gandhi case. The Supreme Court held that the right to live is not merely confined to physical existence but it includes within its ambit the right to live with human dignity.
Elaborating the principle of life and freedom of personal liberty. Justice Bhagwati held in Neeraja Choudhary vs. State of M.P… AIR 1984 S.C. 1099, that under the Bonded Labour System (Abolition) Act, 1976, it is not enough merely to identify and release bonded labourers but it is more important that they must be rehabilitated because without rehabilitation they would be driven to poverty, helplessness and despair thus into serfdom once again.
This is the plainest requirement of Article 21 that the bonded labourers must be identified and released and suitably rehabilitated. The Act has been enacted pursuant to the Directive Principles of State Policy with a view to ensure basic human dignity to bonded labourers and any failure of action on the part of the State in Implementing the provisions of this legislation would be the clearest violation of Article 21 of the Constitution.
In State of Himachal Pradesh v. Umed Ram, AIR 1986 S.C. 847, the Supreme Court has held that the right to life In Article 21 “embraces not only physical existence of life but also the quality of life and for residents of hilly areas, access to road is access to life itself. Further, in Damodar Rao v. S.D. Municipal Corporation, AIR 1987 S.C. 2486, right to unpolluted environment and preservation and protection of nature’s gifts has been conceded under Article 21 of the Constitution.
Thus, the decision of the Supreme Court in Maneka Gandhi’s case that the word, “Law” used in Article 21, does not mean only enacted legislation, but also includes principles of natural justice, is still the present view of the Court.