dissertation on article 21

Article 21: Understanding The Right to Life and Personal Liberty from Case Laws-Academike Explainer

Article 21 (and its many interpretations) is the perfect example of the transformative character of the Constitution of India. The Indian judiciary has attributed wider connotation and meaning to Article 21, extending beyond the Constitution makers’ imagination. These meanings derived from the ‘right to life’ present unique complexities. It is impossible to understand the expansive jurisprudence on Article 21 within the length of this piece. Therefore, Riya Jain understands the various components of freedom that stem from the ‘right to life’. She presents a straightforward and comprehensive explainer on the case laws that have interpreted the right.

By Riya Jain, UILS Panjab University.

*The piece was first published by Riya in 2015, this is the updated form. 

Introduction of Article 21

Article 21 of Indian constitution reads:

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

In Francis Coralie Mullin vs The Administrator (1981), Justice P. Bhagwati had said that Article 21 ’embodies a constitutional value of supreme importance in a democratic society’. Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of life and liberty’.

Article 21 is at the heart of the Constitution . It is the most organic and progressive provision in our living Constitution. Article 21 can only be claimed when a person is deprived of his ‘life or ‘personal liberty’ by the ‘State’ as defined in Article 12. Thus, violation of the right by private individuals is not within the preview of Article 21.

Article 21 secures two rights:

1)  Right to life, and

2) Right to personal liberty.

It prohibits the deprivation of the above rights except according to a procedure established by law. Article 21 corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution of Japan, 1946.

It is also fundamental to democracy as it extends to natural persons and not just citizens. The right is available to every person, citizen or alien. Thus, even a foreigner can claim this right. It, however, does not entitle a foreigner to the right to reside and settle in India, as mentioned in Article 19 (1) (e).

This Article is an all tell for Article 21. The first part will understand the meaning and concept of ‘right to life’ as understood by the judiciary. Further, the piece will lay out how several violations of the body, reputation and equality have been understood and brought under the purview of the right to life and the right to live with dignity.

Meaning, Concept and Interpretation of ‘Right to Life’ under Article 21

‘Everyone has the right to life, liberty and the security of person.’

The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right to life as interpreted and applied by the Supreme Court of India.

Article 21 of the Constitution of India , 1950 provides,

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

‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider, including, including the right to live with human dignity, Right to livelihood, Right to health, Right to pollution-free air, etc.

The right to life is fundamental to our very existence, without which we cannot live as human beings and includes all those aspects of life, which make a man’s life meaningful, complete, and worth living. It is the only Article in the Constitution that has received the broadest possible interpretation. Thus, the bare necessities, minimum and basic requirements for a person from the core concept of the right to life.

In Kharak Singh v. State of Uttar Pradesh [i] , the Supreme Court quoted and held:

By the term ‘life’ as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armored leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

In Sunil Batra v. Delhi Administration [ii] , the Supreme Court approved the above observations. It held that the ‘right to life’ included the right to lead a healthy life to enjoy all faculties of the human body in their prime conditions. It would even include the right to protect a person’s tradition, culture, heritage and all that gives meaning to a man’s life. In addition, it consists of the Right to live and sleep in peace and the Right to repose and health.

Right To Live with Human Dignity

In Maneka Gandhi v. Union of India [iii] , the Supreme Court gave a new dimension to Art. 21. The Court held that the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi [iv]  observed:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”

Another broad formulation of life to dignity is found in Bandhua Mukti Morcha v. Union of India [v] . Characterising Art. 21 as the heart of fundamental rights, the Court gave it an expanded interpretation. Bhagwati J. observed:

“It is the fundamental right of everyone in this country… to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. “These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials.”

Following the above-stated cases, the Supreme Court in Peoples Union for Democratic Rights v. Union of India [vi] , held that non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with basic human dignity and violative of Article 21 of the Constitution.

Bhagwati J. held that rights and benefits conferred on workmen employed by a contractor under various labour laws are intended to ensure basic human dignity to workers. He held that the non-implementation by the private contractors engaged for constructing a building for holding Asian Games in Delhi, and non-enforcement of these laws by the State Authorities of the provisions of these laws was held to be violative of the fundamental right of workers to live with human dignity contained in Art. 21 [vii] .

In Chandra Raja Kumar v. Police Commissioner Hyderabad [viii] , it has been held that the right to life includes the right to live with human dignity and decency. Therefore, keeping of beauty contest is repugnant to the dignity or decency of women and offends Article 21 of the Constitution only if the same is grossly indecent, scurrilous, obscene or intended for blackmailing. Therefore, the government is empowered to prohibit the contest as objectionable performance under Section 3 of the Andhra Pradesh Objectionable Performances Prohibition Act, 1956.

In State of Maharashtra v. Chandrabhan [ix] , the Court struck down a provision of Bombay Civil Service Rules, 1959. Thi provision provided for payment of only a nominal subsistence allowance of Re. 1 per month to a suspended government servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of Article 21 of the Constitution.

Right Against Sexual Harassment at Workplace

Sexual harassment of women has been held by the Supreme Court to be violative of the most cherished of the fundamental rights, namely, the Right to Life contained in Art. 21.

“The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse. “

The above statement by Justice Verma in the famous Vishakha judgment liberalised the understanding of Article 21. Therefore, making it even more emancipatory.

In Vishakha v. State of Rajasthan [x] , the Supreme Court declared sexual harassment at the workplace to violate the right to equality, life and liberty. Therefore, a violation of Articles 14, 15 and 21 of the Constitution.

In this case, in the absence of a relevant law against sexual harassment, the Supreme Court laid down the following guidelines to ensure gender parity in the workplace:

This meant that all employers or persons in charge of the workplace, whether in the public or private sector, should take appropriate steps to prevent sexual harassment.

• Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated inappropriate ways.
• The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
• As regards private employers steps should be taken to include the prohibitions above in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
• Appropriate work conditions should be provided for work, leisure, health, and hygiene to ensure that there is no hostile environment towards women at workplaces. No employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
• Where such conduct amounts to specific offences under IPC or under any other law, the employer shall initiate appropriate action by making a complaint with the appropriate authority.
• The victims of Sexual harassment should have the option to seek the transfer of the perpetrator or their own transfer.

In Apparel Export Promotion Council v. A.K. Chopra [xi] , the Supreme Court reiterated the Vishakha ruling and observed that:

“There is no gainsaying that each incident of sexual harassment, at the place of work, results in the violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India…. “In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated….”

Understanding Article 21 Through Against Sexual Assault and Rape 

Rape has been held to be a violation of a person’s fundamental life guaranteed under Article 21. Therefore, the right to life would include all those aspects of life that go on to make life meaningful, complete and worth living.

In Bodhisattwa Gautam v. Subhra Chakraborty [xii] , the Supreme Court observed:

“Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society, which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life with human dignity contained in Art 21”.

Right to Reputation and Article 21

Reputation is an essential part of one’s life. It is one of the finer graces of human civilisation that makes life worth living. The Supreme Court referred to D.F. Marion v. Minnie Davis [xiii] in Smt. Kiran Bedi v. Committee of Inquiry [xiv] . It said:

“good reputation was an element of personal security and was protected by the Constitution, equally with the right to the enjoyment of life, liberty, and property. The Court affirmed that the right to enjoyment of life, liberty, and property. The Court affirmed that the right to enjoyment of private reputation was of ancient origin and was necessary to human society.”

The same American decision has also been referred to in State of Maharashtra v. Public Concern of Governance Trust [xv]. The Court held that good reputation was an element of personal security and was protected by the Constitution, equally with the right to enjoy life, liberty and property.

It has been held that the right equally covers a person’s reputation during and after his death. Thus, any wrong action of the state or agencies that sullies the reputation of a virtuous person would undoubtedly come under the scope of Article 21.

State of UP v. Mohammaad Naim [xvi] succinctly laid down the following tests while dealing the question of expunction of disgracing remarks against a person or authority whose conduct comes in consideration before a court of law. These are:

• whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself.
• whether there is evidence on record bearing on that conduct justifying the remarks.
• Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct, it has also been recognised that judicial pronouncements must be judicial. It should not normally depart from sobriety, moderation, and reserve.

In State of Bihar v. Lal Krishna Advani [xvii] , a two-member commission got appointed to inquire into the communal disturbances in the Bhagalpur district on  October 24, 1989. The commission made certain remarks in the report, which impinged upon the respondent’s reputation as a public man without allowing him to be heard. The Apex Court ruled that it was amply clear that one was entitled to have and preserve one’s reputation, and one also had the right to protect it.

The Court further said that if any authority, in the discharge of its duties fastened upon it under the law, transverse into the realm of personal reputation adversely affecting him, it must provide a chance to have his say in the matter. Finally, the Court observed that the principle of natural justice made it incumbent upon the authority to allow the person before any comment was made or opinion was expressed, likely to affect that person prejudicially.

Right To Livelihood

To begin with, the Supreme Court took the view that the right to life in Art. 21 would not include the right to livelihood. In Re Sant Ram [xviii] , a case arose before the Maneka Gandhi case, where the Supreme Court ruled that the right to livelihood would not fall within the expression ‘life’ in Article 21. The Court said curtly:

“The Right to livelihood would be included in the freedoms enumerated in Art.19, or even in Art.16, in a limited sense. But the language of Art.21 cannot be pressed into aid of the argument that the word ‘life’ in Art. 21 includes ‘livelihood’ also.”

But then the view changed. The definition of the word ‘life’ in Article 21 was read broadly. The Court, in Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni [xix] , came to hold that ‘the right to life’ guaranteed by Article 21 includes ‘the right to livelihood’.

The Olga Tellis v. Bombay Municipal Corporation [xx] , popularly known as the ‘Pavement Dwellers Case’, is important. Herein, a five-judge bench of the Court implied that the right to livelihood is borne out of the right to life. It said so as no person can live without the means of living, that is, the means of livelihood. The Court further observed:

“The sweep of the right to life conferred by Art.21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”

If the right to livelihood is not treated as part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation [xxi] .

In the instant case, the Court further opined:

“The state may not by affirmative action, be compelled to provide adequate means of livelihood or work to the citizens. But, any person who is deprived of his right to livelihood except according to just and fair procedure established by law can challenge the deprivation as offending the right to life conferred in Article 21.”

Emphasising upon the close relationship of life and livelihood, the Court stated:

“That, which alone makes it impossible to live, leave aside what makes life livable, must be deemed to be an integral part of the right to life. Deprive a person from his right to livelihood and you shall have deprived him of his life [xxii] .”

Article 21 does not place an absolute embargo on the deprivation of life or personal liberty and, for that matter, on the right to livelihood. What Article 21 insists is that such lack ought to be according to procedure established by law which must be fair, just and reasonable. Therefore, anyone deprived of the right to livelihood without a just and fair procedure set by law can challenge such deprivation as being against Article 21 and get it declared void [xxiii] .

In DTC v. DTC Mazdoor Congress [xxiv] , the Court was hearing a matter where an employee was laid off by issuing a notice without any reason. The Court held that the same was utterly arbitrary and violative of Article 21.

In M. Paul Anthony v. Bihar Gold Mines Ltd [xxv] , it was held that when a government servant or one in a public undertaking is suspended pending a departmental disciplinary inquiry against him, subsistence allowance must be paid to him. The Court has emphasised that a government servant does not have his right to life and other fundamental rights.

However, if a person is deprived of such a right according to procedure established by law which must be fair, just and reasonable and in the larger interest of people, the plea of deprivation of the right to livelihood under Article 21 is unsustainable.

In Chameli Singh v. State of Uttar Pradesh [xxvi] , the SC held that the state acquired a landowner’s land following the procedure laid down in the relevant law of acquisition. So even though the right to livelihood of the landowner is adversely affected, it is not violated.

The Court opined that the state acquires land in exercising its power of eminent domain for a public purpose. The landowner is paid compensation in place of land. Therefore, the plea of deprivation of the right to livelihood under Art. 21 is unsustainable.

In M. J. Sivani v. State of Karnataka & Ors [xxvii] , the Supreme Court held that the right to life under Article 21 does protect livelihood. However, the Court added a rider that its deprivation could not be extended too far or projected or stretched to the recreation, business or trade detrimental to the public interest or has an insidious effect on public moral or public order.

The Court further held that regulating video games of pure chance or mixed chance and skill are not violative of Article 21, nor is the procedure unreasonable, unfair or unjust.

An important case that needs to be mentioned when speaking about the right to livelihood is MX of Bombay Indian Inhabitants v. M/s. ZY [xxviii].   In this case, the Court had held that a person could not be denied employment if they tested positive for HIV. And they cannot be rendered ‘medically unfit’ owing to the same. In interpreting the right to livelihood, the Court emphasised that the same couldn’t hang on to the fancies of the individuals in authority.

Is Right to Work a Fundamental Right under Article 21?

In Sodan Singh v. New Delhi Municipal Committee [xxix] , the five-judge bench of the Supreme Court distinguished the concept of life and liberty within Art.21 from the right to carry on any trade or business, a fundamental right conferred by Art. 19(1)(g). Regarding the same, the Court held that the right to carry on trade or business is not included in the concept of life and personal liberty. Thus, Article 21 is not attracted in the case of trade and business.

The petitioners in the case were hawkers doing business off the paved roads in Delhi. They had claimed against the Municipal authorities who did not allow former to carry out their business. The hawkers claimed that the refusal to do so violated their Right under Article 21 of the Constitution.

The Court opined that the petitioners had a fundamental right under Article 19(1) (g) to carry on trade or business of their choice. However, they had no right to do so in a particular place. Hence, they couldn’t be permitted to carry on their trade on every road in the city. If the road is not wide enough to conveniently accommodate the traffic on it, no hawking may be permitted at all or permitted once a week.

The Court also held that footpaths, streets or roads are public property intended to several general public and are not meant for private use. However, the Court said that the affected persons could apply for relocation and the concerned authorities were to consider the representation and pass orders thereon. Therefore, the two rights were too remote to be connected.

The Court distinguished the ruling in Olga Tellis v. Bombay Municipal Corporation [xxx]. In the case the Court held:

“in that case, the petitioners were very poor persons who had made pavements their homes existing in the midst of filth and squalor and that they had to stay on the pavements so that they could get odd jobs in the city. It was not the case of a business of selling articles after investing some capital.”

In Secretary, the State of Karnataka v. Umadevi [xxxi] , the Court rejected that right to employment at the present point of time can be included as a fundamental right under Right to Life under Art. 21.

Right to Shelter

In UP Avas Vikas Parishad v. Friends Coop. Housing Society Limited [xxxii] , the right to shelter has been held to be a fundamental right which springs from the right to residence secured under Article 19(1)(e) and the right to life guaranteed under Article 21. The state has to provide facilities and opportunities to build houses to make the right meaningful for the poor. [xxxiii] .

Upholding the importance of the right to a decent environment and a reasonable accommodation in Shantistar Builders v. Narayan Khimalal Totame [xxxiv] , the Court held:

“The Right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.

The Court advanced:

“For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.”

In Chameli Singh v. State of U P [xxxv] , a three-judge bench of the Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen. And the same was read into Article 21 of the Constitution. Thus, ‘right to shelter’ was considered encompassing the right to life, making the latter more meaningful. The Court advanced:

“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but right to all the infrastructure necessary to enable them to live and develop as a human being [xxxvi] .”

Right to Social Security and Protection of Family

Right to life covers within its ambit the right to social security and protection of the family. K. Ramaswamy J., in Calcutta Electricity Supply Corporation (India) Ltd. v. Subhash Chandra Bose [xxxvii] , held that right to social and economic justice is a fundamental right under Art. 21. The learned judge explained:

“right to life and dignity of a person and status without means were cosmetic rights. Socio-economic rights were, therefore, basic aspirations for meaning the right to life and that Right to Social Security and Protection of Family were an integral part of the right to life.”

In NHRC v. State of Arunachal Pradesh [xxxviii]  (Chakmas Case), the SC said that the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise. Further, it cannot permit anybody or a group of persons to threaten another person or group of persons. No state government worth the name can tolerate such threats from one group of persons to another group of persons. Therefore, the state is duty-bound to protect the threatened group from such assaults. If it fails to do so, it will fail to perform its constitutional as well as statutory obligations.

In  Murlidhar Dayandeo Kesekar v. Vishwanath Pande Barde [xxxix] , it was held that the right to economic empowerment of poor, disadvantaged and oppressed Dalits was a fundamental right to make their right of life and dignity of person meaningful.

In Regional Director, ESI Corporation v. Francis De Costa [xl] , the Supreme held that security against sickness and disablement was a fundamental right under Article 21 read with Section 39(e) of the Constitution of India.

In LIC of India v. Consumer Education and Research Centre [xli] , it was further held that right to life and livelihood included right to life insurance policies of LIC of India, but that it must be within the paying capacity and means of the insured.

Further, Surjit Kumar v. State of UP. [xlii] is a crucial case that reads Article 21 as extending protection against honour killing.  In the case, a division bench of Allahabad high court took serious note on harassment, ill-treatment, and killing of a person for wanting to get married to a person of another caste or community. The accused justified the harassment and killing, claiming that the victim had brought dishonour to the family. The Court said that such a practice of ‘honor killing’ was a blot on society and inter-caste marriage was not against the law. Therefore, the Court directed the police to take strong measures against the accused.

Right to Health and Medical Care

In State of Punjab v. M.S. Chawla [xliii] , it was held that the right to life guaranteed under Article 21 includes within its ‘ambit the right to health and medical care’.

In Vincent v. Union of India , [xliv] the Supreme Court   emphasised that a healthy body is the very foundation of all human activities. Further, Article 47, a Directive Principle of State Policy, lays stress note on the improvement of public health and prohibition of drugs detrimental to health as one of the primary duties of the state [xlv] .

In Consumer Education and Research Centre v. Union of India [xlvi] , the Supreme Court laid down:

“Social justice which is a device to ensure life to be meaningful and livable with human dignity requires the state to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilised living. The health and strength of worker, the Court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”

In Parmananda Katara v. Union of India [xlvii] , the Supreme Court has very specifically clarified that preservation of life is of paramount importance. The Apex Court stated that ‘once life is lost, status quo ante cannot be restored’. [xlviii] It was held that it is the professional obligation of all doctors (government or private) to extent medical aid to the injured immediately to preserve life without legal formalities to be complied with by the police.

Article 21 casts the obligation on the state to preserve life. It is the obligation of those in charge of the community’s health to protect life so that the innocent may be protected and the guilty may be punished. No law can intervene to delay and discharge this paramount obligation of the members of the medical profession.

The Court also observed:

“Art. 21 of the Constitution cast the obligation on the state to preserve life. The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment…. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.”

This link between the right to medical care and health and Article 21 played out most vividly during the pandemic. Especially since the state couldn’t manage the crisis and many people were left to fend for themselves.

To read about the right to health and Article 21, click here

Coming back to understanding the right to medical care pre-covid era, another case that understands this interlink better is Paschim Banga Khet Mazdoor Samity v. State of West Bengal. [xlix] In this case, a person suffering from severe head injuries from a train accident was refused treatment at various hospitals on the excuse that they lacked the adequate facilities and infrastructure to provide treatment.

Through this case, the Supreme Court developed the right to emergency treatment. The Court went on to say that the failure on the part of the government hospital to provide timely medical treatment to a person in need of such treatment results in the violation of his right to life guaranteed under Article 21.

It acknowledged the limitation of financial resources to give effect to such a right. Still, it maintained that the state needed to provide for the resources to give effect to the people’s entitlement of receiving emergency medical treatment [l] .

It has been reiterated, time and again, that there should be no impediment to providing emergency medical care. Again, in Pravat Kumar Mukherjee v. Ruby General Hospital & Others [li] , it was held that a hospital is duty-bound to accept accident victims and patients who are in critical condition and that it cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet the expenses or on the ground that there is no close relation of the victim available who can give consent for medical treatment [lii] .

The Court has laid stress on a crucial point, viz., the state cannot plead lack of financial resources to carry out these directions meant to provide adequate medical services to the people. The state cannot avoid its constitutional obligation to provide adequate medical assistance to people on account of financial constraints.

But, in State of Punjab v. Ram Lubhaya Bagga [liii] , the Supreme Court recognised that provision of health facilities could not be unlimited. The Court held that it has to be to the extent finance permits. No country has unlimited resources to spend on any of its projects.

In Confederation of Ex-servicemen Association v. Union of India [liv] , the right to get free and timely legal aid or facilities was not held as a fundamental right of ex-servicemen. Therefore, a policy decision in formulating a contributory scheme for ex-servicemen and asking them to pay a one-time contribution does not violate Art. 21, nor is it inconsistent with Part IV of the Constitution.

No Right to Die

While Article 21 confers on a person the right to live a dignified life, does it also confers a right to a person to end their life? If so, then what is the fate of Section 309 Indian Penal Code (1860), which punishes a person convicted of attempting to commit suicide? There has been a difference of opinion on the justification of this provision to continue on the statute book.

This question came for consideration for the first time before the High Court of Bombay in State of Maharashtra v. Maruti Sripati Dubal. In this case, the Bombay High Court held that the right to life guaranteed under Article 21 includes the right to die. The Hon’ble High Court struck down Section 309 of the IPC that provides punishment for an attempt to commit suicide on a person as unconstitutional.

In P. Rathinam v. Union of India [lv] , a two-judge Division Bench of the Supreme Court took cognisance of the relationship/contradiction between Section 309 IPC and Article 21. The Court supported the decision of the High Court of Bombay in Maruti Sripati Dubal’s Case held that the right to life embodies in Article 21 also embodied in it a right not to live a forced life, to his detriment, disadvantage or disliking.

The Court argued that the word life in Article 21 means the right to live with human dignity, and the same does not merely connote continued drudgery. Thus the Court concluded that the right to live of which Article 21 speaks could bring in the right not to live a forced life. The Court further emphasised that an ‘attempt to commit suicide is, in reality, a cry for held and not for punishment’.

The Rathinam ruling came to be reviewed by a full bench of the Court in Gian Kaur v. State of Punjab [lvi] . The question before the Court was:  if the principal offence of attempting to commit suicide is void as unconstitutional vis-à-vis Article 21, then how abetment can thereof be punishable under Section 306 IPC?

It was argued that ‘the right to die’ had been included in Article 21 (Rathinam ruling) and Sec. 309 declared unconstitutional. Thus, any person abetting the commission of suicide by another is merely assisting in enforcing his fundamental Right under Article 21.

The Court overruled the decision of the Division Bench in the above-stated case and has put an end to the controversy and ruled that Art.21 is a provision guaranteeing the protection of life and personal liberty and by no stretch of imagination can extinction of life’ be read to be included in the protection of life. The Court observed further:

“……’Right to life’ is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life”

However, in this regard, in 2020, the Supreme Court had sought a response from the central government. The Court had asked the center to explain its stance on the conflict between Section 309 and the Mental Healthcare Act, promulgated in 2017 (MHCA). As opposed to Section 309, which criminalises attempts to suicide, the MHCA proscribes prosecution of the person attempting it. Given that the Section is colonial legislation, many have vocalised to do away with the same altogether. Additionally, in 2018, in a 134-page-long judgment, Justice DY Chandrachud said it was ‘inhuman’ to punish someone who was already distressed .

Euthanasia and Right to Life

Euthanasia is the termination of the life of a person who is terminally ill or in a permanent vegetative state. In Gian Kaur v. State of Punjab [lvii] , the Supreme Court has distinguished between Euthanasia and an attempt to commit suicide.

The Court held that death due to termination of natural life is certain and imminent, and the process of natural death has commenced. Therefore, these are not cases of extinguishing life but only of accelerating the conclusion of the process of natural death that has already started.

The Court further held that this might fall within the ambit of the right to live with human dignity up to the end of natural life. This may include the right of a dying man to also die with dignity when his life is ebbing out. However, this cannot be equated with the right to die an unnatural death curtailing the natural span of life.

Sentence of Death –Rarest of Rare Cases

The law commission of India has dealt with the issue of abolition or retention of capital punishment, collecting as much available material as possible and assessing the views expressed by western scholars. The commission recommended the retention of capital punishment in the present state of the country.

The commission held recognised the on-ground conditions of India. By that, it meant the difference in the social upbringing, morality and education, its diversity and population. Given all these factors, India could not risk the experiment of the abolition of capital punishment.

In Jagmohan v. State of U P [lviii] , the Supreme Court had held that the death penalty was not violative of Articles 14, 19 and 21. It was said that the judge was to make the choice between the death penalty and imprisonment for life based on circumstances, facts, and nature of crime brought on record during trial. Therefore, the choice of awarding death sentence was done in accordance with the procedure established by law as required under article 21

But, in Rajindera Parsad v. State of U.P. [lix] , Krishna Iyer J., speaking for the majority, held that capital punishment would not be justified unless it was shown that the criminal was dangerous to society. The learned judge plead for the abolition of the death penalty and said that it should be retained only for ‘white collar crimes’

However, in Bachan Singh v. State of Punjab [lx] , the leading case of on the question, a constitution bench of the Supreme Court explained that article 21 recognised the right of the state to deprive a person of his life in accordance with just, fair and reasonable procedure established by valid law. It was further held that the death penalty for the offence of murder awarded under section 302 of IPC did not violate the basic feature of the Constitution.

Right to get Pollution Free Water and Air

In Subhas Kumar v. State of Bihar [lxi] , it has held that a Public Interest Litigation is maintainable for ensuring enjoyment of pollution-free water and air which is included in ‘right to live’ under Art.21 of the Constitution. The Court observed:

“Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art.32 of     the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”  

Right to Clean Environment

The “Right to Life” under Article 21 means a life of dignity to live in a proper environment free from the dangers of diseases and infection. Maintenance of health, preservation of the sanitation and environment have been held to fall within the purview of Article 21 as it adversely affects the life of the citizens and it amounts to slow poisoning and reducing the life of the citizens because of the hazards created if not checked.

The following are some of the well-known cases on the environment under Article 21:

In M.C. Mehta v. Union of India (1988) [lxii] , the Supreme Court ordered the closure of tanneries polluting the water.

In M.C. Mehta v. Union of India (1997) [lxiii] , the Supreme Court issued several guidelines and directions for the protection of the Taj Mahal, an ancient monument, from environmental degradation.

In Vellore Citizens Welfare Forum v. Union of India [lxiv] , the Court took cognisance of the environmental problems being caused by tanneries that were polluting the water resources, rivers, canals, underground water, and agricultural land. As a result, the Court issued several directions to deal with the problem.

In Milk Men Colony Vikas Samiti v. State Of Rajasthan [lxv] , the Supreme Court held that the “right to life” means clean surroundings, which leads to a healthy body and mind. It includes the right to freedom from stray cattle and animals in urban areas.

In  M.C. Mehta v. Union of India (2006) [lxvi] , the Court held that the blatant and large-scale misuse of residential premises for commercial use in Delhi violated the right to a salubrious sand decent environment. Taking note of the problem, the Court issued directives to the government on the same.

In  Murli S. Deora v. Union of India [lxvii] , the persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of the act of sTherefore, rights. Right to Life under Article 21 is affected as a non-smoker may become a victim of someone smoking in a public place.

Right Against Noise Pollution

In Re: Noise Pollution [lxviii] , the case was regarding noise pollution caused by obnoxious noise levels due to the bursting of crackers during Diwali. The Apex Court suggested to desist from bursting and making use of such noise-making crackers and observed that:

“Article 21 of the Constitution guarantees the life and personal liberty to all persons. It guarantees the right of persons to life with human dignity. Therein are included, all the aspects of life which go to make a person’s life meaningful, complete and worth living. The human life has its charm and there is no reason why life should not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort, and quiet within his house has a right to prevent the noise as pollutant reaching him.”

Continued…

“No one can claim a right to create noise even in his own premises that would travel beyond his precincts and cause the nuisance to neighbors or others. Any noise, which has the effect of materially interfering with the ordinary comforts of life judged by the standard of a reasonable man, is nuisance…. While one has a right to speech, others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can indulge in aural aggression. If anyone increases his volume of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised to unpleasant or obnoxious levels then the person speaking is violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21 [lxix] “.

Right to Know

Holding that the right to life has reached new dimensions and urgency the Supreme Court in RP Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the state.

In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link between Art.21 and the right to know, particularly where secret government decisions may affect health, life, and livelihood.

Reiterating the above observations made in the instant case, the Apex Court in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, ruled that the citizens who had been made responsible for protecting the environment had a right to know the government proposal.

Read more about right to know here .

Personal Liberty

The liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that,

No freeman shall be taken or imprisoned… but… by the law of the land.

The smallest Article of eighteen words has the greatest significance for those who cherish the ideals of liberty. What can be more important than liberty? In India, the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognised as being essential to the orderly pursuit of happiness by free men.

The meaning of the term’ personal liberty’ was considered by the Supreme Court in Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary visits secret picketing.

Oddly enough, both the majority and minority on the bench relied on the meaning given to the term ‘personal liberty’ by an American judgment (per Field, J.,) in Munn v Illinois , which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which life was enjoyed.

This provision equally prohibited the mutilation of the body or the amputation of an arm or leg or the putting of an eye or the destruction of any other organ of the body through which the soul communicated with the outer world. The majority held that the U. P. Police Regulations authorising domiciliary visits [at night by police officers as a form of surveillance, constituted a deprivation of liberty and thus] unconstitutional.

The Court observed that the right to personal liberty in the Indian Constitution is the right of an individual to be free from restrictions or encroachments on his person, whether they are directly imposed or indirectly brought about by calculated measures.

The Supreme Court has held that even lawful imprisonment does not spell farewell to all fundamental rights. A prisoner retains all the rights enjoyed by a free citizen except only those ‘necessarily’ lost as an incident of imprisonment

Right to Privacy and Article 21

Although not explicitly mentioned in the Constitution, the right to privacy was considered a ‘penumbral right’ under the Constitution, i.e. a right declared by the Supreme Court as integral to the fundamental right to life and liberty. After the KS Puttuswamy judgment, the right to privacy has been read and understood by the Court in various landmark judgments.

The Supreme Court has culled the right to privacy from Article 21 and other provisions of the Constitution, read with the Directive Principles of State Policy.

Although no single statute confers a crosscutting ‘horizontal’ right to privacy, various statutes had provisions that either implicitly or explicitly preserved this right . [lxx]

For the first time in Kharak Singh v. State of UP , [lxxi] the Court questioned whether the right to privacy could be implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the Court. “Surveillance” under Chapter XX of the UP Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to violate Article 21.  A seven-judge bench held that:

“the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this Court in Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held that “an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilisation”

In a minority judgment, in this case, Justice Subba Rao held that:

“the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his ‘castle’; it is his rampart against encroachment on his personal liberty”.

This case, especially Justice Subba Rao’s observations, paved the way for later elaborations on the right to privacy using Article 21.

In Govind v. State of Madhya Pradesh [lxxii] , The Supreme Court took a more elaborate appraisal of the right to privacy. In this case, the Court was evaluating the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations, which provided for police surveillance of habitual offenders including domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down these invasive provisions holding that:

“It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”

The Court accepted a limited fundamental right to privacy as an emanation from Arts.19(a), (d) and 21. Mathew J. observed in the instant case,

“The Right to privacy will, therefore, necessarily, have to go through a process of case by case development.        Hence, assuming that the right to personal liberty. the right to move freely throughout India and the freedom of speech create an independent fundamental right of privacy as an emanation from them that one can characterise as a fundamental right, we do not think that the right is absolute….. …… Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right that fundamental right must be subject to restrictions on the basis of compelling public interest.”

Scope and Content of Right to Privacy Pre-Puttaswamy Judgment

Read more about the right to privacy as part of Academike’s Constitutional Rights Series here

Tapping of Telephone

Emanating from the right to privacy is the question of tapping of the telephone.

In RM Malkani v. State of Maharashtra, the Supreme Court held that Courts would protect the telephonic conversation of an innocent citizen against wrongful or high handed’ interference by tapping the conversation. However, the protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.

Telephone tapping is permissible in India under Section 5(2) of the Telegraph Act, 1885 . The Section lays down the circumstances and grounds when an order for tapping a telephone may be passed, but no procedure for making the order is laid down therein.

The Supreme Court in PUCL v. Union of India held that in the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the fundamental rights of citizens under Section 19 and 21. Accordingly, the Court issued procedural safeguards to be observed before restoring to telephone tapping under Section 5(2) of the Act.

The Court further ruled:

“right to privacy is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”. The Court has further ruled that Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. The procedure has to be just, fair and reasonable.”

Disclosure of Dreadful Diseases

In Mr X v. Hospital Z [lxxv] , the question before the Supreme Court was whether the disclosure by the doctor that his patient, who was to get married had tested HIV positive, would be violative of the patient’s right to privacy.

The Supreme Court ruled that the right to privacy was not absolute and might be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.

The Court explained that the right to life of a lady with whom the patient was to marry would positively include the right to be told that a person with whom she was proposed to be married was the victim of a deadly disease, which was sexually communicable.

Since the right to life included the right to a healthy life to enjoy all the facilities of the human body in prime condition, it was held that the doctors had not violated the right to privacy.

Right to Privacy and Subjecting a Person to Medical Tests

It is well settled that the right to privacy is not treated as absolute and is subject to such action as may be lawfully taken to prevent crimes or disorder or protect health or morals or protection of rights and freedom of others. If there is a conflict between the fundamental rights of two parties, which advances public morality would prevail.

In the case Sharda v. Dharmpal [lxxvi] , a three-judge bench ruled that a matrimonial court had the power to direct the parties in a divorce proceeding to undergo a medical examination. A direction issued for this could not be held to violate one’s right to privacy. The Court, however, said that there must be sufficient material for this.

Right to Privacy: Woman’s Right to Make Reproductive Choices

A woman’s right to make reproductive choices includes the woman’s right to refuse participation in the sexual activity or the insistence on using contraceptive methods such as undergoing sterilisation procedures. The woman’s entitlement to carry a pregnancy to its full term, to give birth subsequently raise children.

Right to Travel Abroad

In Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi [lxxvii] , the Supreme Court has included the right to travel abroad contained in the expression “personal liberty” within the meaning of Article 21.

In Maneka Gandhi v. Union of India [lxxviii] , the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered the government to impound the passport of a person, in the interest of the general public, was challenged before the seven-judge Bench of the Supreme Court.

It was contended that, right to travel abroad being a part of the right to “personal liberty” the impugned Section didn’t prescribe any procedure to deprive her of her liberty and hence it was violative of Art. 21.

The Court held that the procedure contemplated must stand the test of reasonableness in order to conform to Art.21 other fundamental rights. It was further held that the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding a passport under the Passport Act. Bhagwati, J., observed:

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and that It must be “‘right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Right against Illegal Detention

In  Joginder Kumar v. State of Uttar Pradesh [lxxix] , the petitioner was detained by the police officers and his whereabouts were not told to his family members for a period of five days. Taking serious note of the police high headedness and illegal detention of a free citizen, the Supreme Court laid down the guidelines governing arrest of a person during the investigation:

An arrested person being held in custody is entitled if he so requests to have a friend, relative or other person told as far as is practicable that he has been arrested and where he is being detained.

The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.

In the case of  DK. Basu v. State of West Bengal [lxxx] , the Supreme Court laid down detailed guidelines to be followed by the central and state investigating agencies in all cases of arrest and detention. Furthermore, the Court ordered that the guidelines be followed till legal provisions are made on that behalf as preventive measures. It also held that any form of torture or cruel, inhuman or degrading treatment, whether it occurs during interrogation or otherwise, falls within the ambit of Article 21.

Article 21 and Prisoner’s Rights

The protection of Article 21 is available even to convicts in jail. The convicts are not deprived of all the fundamental rights they otherwise possess by mere reason of their conviction. Following the conviction of a convict is put into jail he may be deprived of fundamental freedoms like the right to move freely throughout the territory of India. But a convict is entitled to the precious right guaranteed under Article 21, and he shall not be deprived of his life and personal liberty except by a procedure established by law [lxxxi] .

In Maneka Gandhi v. Union of India , the Supreme Court gave a new dimension to Article 21. The Court has interpreted Article 21 to have the widest possible amplitude. On being convicted of a crime and deprived of their liberty following the procedure established by law. Article 21 has laid down a new constitutional and prison jurisprudence [lxxxii] .

The rights and protections recognised to be given in the topics to follow.

Right to Free Legal Aid & Right to Appeal

In  M.H. Hoskot v. State of Maharashtra [lxxxiii] , while holding free legal aid as an integral part of fair procedure, the Court explained:

“the two important ingredients of the right of appeal are; firstly, service of a copy of a judgement to the prisoner in time to enable him to file an appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise disabled from securing legal assistance. This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.”

In other words, an accused person, where the charge is of an offence punishable with imprisonment, is entitled to be offered legal aid if he is too poor to afford counsel. In addition, counsel for the accused must be given sufficient time and facility for preparing his defence. Breach of these safeguards of a fair trial would invalidate the trial and conviction.

Right to Speedy Trial

In  Hussainara Khatoon v. Home Secretary, State of Bihar [lxxxiv] , the Supreme Court observed that an alarming number of men, women and children were kept in prisons for years awaiting trial in courts of law.

The Court noted the situation and observed that it was carrying a shame on the judicial system that permitted incarceration of men and women for such long periods without trials.

The Court held that detention of undertrial prisoners in jail for a period more than what they would have been sentenced to if convicted was illegal. And the same violated Article 21. The Court ordered to release of undertrial prisoners who had been in jail for a longer period than the punishment meted out in case of conviction.

In  A.R. Antulay v. R.S. Nayak [lxxxv] , a Constitution Bench of five judges of the Supreme Court dealt with the question and laid down specific guidelines for ensuring speedy trial of offences some of them have been listed below [lxxxvi] :

Fair, just and reasonable procedure implicit in Article 21 creates a right in the accused to be tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, appeal, revision, and retrial.

The concerns underlying the right of the speedy trial from the point of view of the accused are:

The period of remand and pre-conviction detention should be as short as possible.

The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and

Undue delay may well result in impairment of the ability of the accused to defend him.

While determining whether the undue delay has occurred, one must regard all the attendant circumstances, including the nature of the offence, the number of accused and witnesses, and the Court’s workload concerned. Every delay does not necessarily prejudice the accused. An accuser’s plea of denial of the speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial

In the case of  Anil Rai v. State of Bihar [lxxxvii] , the Supreme Court directed the Judges of the High Courts to give quick judgments, and in certain circumstances, the parties are to apply to the Chief Justice to move the case to another bench or to do the needful at his discretion.

Right to Fair Trial

The free and fair trial has been said to be the sine qua non of Article 21. The Supreme Court in  Zahira Habibullah Sheikh v. State of Gujarat [lxxxviii] said that the right to free and fair trial to the accused and the victims, their family members, and relatives and society at large.

Right to Bail

The Supreme Court has diagnosed the root cause for long pre-trial incarceration to bathe present-day unsatisfactory and irrational rules for bail, which insists merely on financial security from the accused and their sureties. Many of the undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to languish in prisons awaiting their trials.

But incarceration of persons charged with non-bailable offences during the pendency of trial cannot be questioned as violative of Article 21 since the same is authorised by law. In Babu Singh v. State of Uttar Pradesh [lxxxix] , the Court held that the right to bail was included in the personal liberty under Article 21. Its refusal would be the deprivation of that liberty, which could be authorised in accordance with the procedure established by law.

Anticipatory bail is a statutory right, and it does not arise out of Article 21. Therefore, anticipatory bail cannot be granted as a matter of right as it cannot be granted as a matter of right as it cannot be considered as an essential ingredient of Article 21.

Right Against Handcuffing

Handcuffing has been considered prima facie inhuman and therefore unreasonable, over-harsh and at first flush, arbitrary. It has been held to be unwarranted and violative of Article 21.

In Prem Shankar v. Delhi Administration [xc] , the Supreme Court struck down the Rules that provided that every undertrial accused of a non-bailable offence punishable with more than three years prison term would be routinely handcuffed. Instead, the Court ruled that handcuffing should be resorted to only when there was “clear and present danger of escape” of the accused under  -trial, breaking out of police control.

Right Against Solitary Confinement

It has been held that a convict is not wholly denuded of his fundamental rights, and his conviction does not reduce him into a non – person whose rights are subjected to the whims of the prison administration. Therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguard.

In Sunil Batra v. Delhi Administration [xci] , the petitioner was sentenced to death by the Delhi session court and his appeal against the decision was pending before the high Court. He was detained in Tihar Jail during the pendency of the appeal. He complained that since the date of conviction by the session court, he was kept in solitary confinement.

It was contended that Section 30 of the Prisoners Act does not authorise jail authorities to send him to solitary confinement, which by itself was a substantive punishment under Sections 73 and 74 of the Indian Penal Code, 1860 and could be imposed by a court of law. Therefore, it could not be left to the whim and caprice of the prison authorities. The Supreme Court accepted the petitioner’s argument and held that the imposition of solitary confinement on the petitioner was violative of Article 21.

Right Against Custodial Violence

The incidents of brutal police behaviour towards persons detained on suspicion of having committed crimes are routine. There has been a lot of public outcry from time to time against custodial deaths.

The Supreme Court has taken a very positive stand against the atrocities, intimidation, harassment and use of third-degree methods to extort confessions. The Court has classified these as being against human dignity. The rights under Article 21 secure life with human dignity and the same are available against torture.

Death by hanging is Not Violative of Article 21

In  Deena v. Union of India [xcii] , the constitutional validity of the death sentence by hanging was challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21.

The Court, in this case, referred to the Report of the UK Royal Commission, 1949, the opinion of the Director-General of Health Services of India, the 35 th Report of the Law Commission and the opinion of the Prison Advisers and Forensic Medicine Experts. Finally, it held that death by hanging was the best and least painful method of carrying out the death penalty. Thus, not violative of Article 21.

Right against Public Hanging

The Rajasthan High Court, by an order, directed the execution of the death sentence of an accused by hanging at the Stadium Ground of Jaipur. It was also directed that the execution should be done after giving widespread publicity through the media.

On receipt of the above order, the Supreme Court in  Attorney General of India v. Lachma Devi [xciii] held that the direction for the execution of the death sentence was unconstitutional and violative of Article 21.

It was further made clear that death by public hanging would be a barbaric practice. Although the crime for which the accused has been found guilty was barbaric, it would be a shame on the civilised society to reciprocate the same. The Court said,

“a barbaric crime should not have to be visited with a barbaric penalty.”

Right Against Delayed Execution

In T.V. Vatheeswaram v. State of Tamil Nadu [xcv] , the Supreme Court held that the delay in execution of a death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence be commuted to life imprisonment. The cause of the delay is immaterial. The accused himself may be the cause of the delay.

In Sher Singh v. State of Punjab [xcvi] , the Supreme Court said that prolonged wait for the execution of a death sentence is an unjust, unfair and unreasonable procedure, and the only way to undo that is through Article 21.

But the Court held that this could not be taken as the rule of law and applied to each case, and each case should be decided upon its own facts.  

Procedure Established by Law and Article 21

The expression ‘procedure established by law’ has been the subject of interpretation in a catena of cases. A survey of these cases reveals that courts in judicial interpretation have enlarged the scope of the expression.

The Supreme Court took the view that ‘procedure established by law’ in Article 21 means procedure prescribed by law as enacted by the state and rejected to equate it with the American ‘due process of law’.

But, in Maneka Gandhi v Union of India, the Supreme Court observed that the procedure prescribed by law for depriving a person of his life and personal liberty must be ‘right, just and fair’ and not ‘arbitrary, fanciful and oppressive’.

It also held that otherwise, it would be no procedure, and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

Justice V. R. Krishna Iyer, speaking in Sunil Batra v Delhi Administration said:

“(though) our Constitution has no due process clause (but after Maneka Gandhi’s case) the consequence is the same, and as much as such Article 21 may be treated as counterpart of the due process clause in American Constitution.”

In December 1985, the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman, Lichma Devi, to death for killing two young women by setting them on fire. In an unprecedented move, the Court ordered both prisoners to be publicly executed.

In response to a review petition by the Attorney General against this judgment, the Supreme Court in December 1985 stayed the public hangings, observing that ‘a barbaric crime does not have to be met with a barbaric penalty’.

Furthermore, the Court observed that the execution of a death sentence by public hanging violates Article 21, which mandates the observance of a just, fair and reasonable procedure.

Thus, an order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme Court on the ground, among other things, that it was violative of Article 21. Again, in Sher Singh v State of Punjab , the Supreme Court held that unjustifiable delay in execution of death sentence violates Article 21.

The Supreme Court has taken the view that this Article read is concerned with the fullest development of an individual, ensuring his dignity through the rule of law. Therefore, every procedure must seem to be ‘reasonable, fair and just’.

The right to life and personal liberty has been interpreted widely to include the right to livelihood, health, education, environment and all those matters that contributed to life with dignity.

The test of procedural fairness has been deemed to be proportional to protecting such rights. Thus, where workers have been deemed to have the right to public employment and the right to livelihood, a hire-fire clause in favour of the state is not reasonable, fair and just, even though the state cannot affirmatively provide a livelihood for all.

Under this doctrine, the Court will examine whether the procedure itself is reasonable, fair and just. And whether it has been operated in a fair, just and reasonable manner.

This has meant, for example, the right to a speedy trial and legal aid is part of any reasonable, fair and just procedure. The process clause is comprehensive and applicable in all areas of State action covering civil, criminal and administrative action.

In one of the landmark decisions in the case of Murli S. Deora v. Union of India , the Supreme Court of India observed that the fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law.

The Court observed that smoking in public places is an indirect deprivation of life of non-smokers without any process of law. Considering the adverse effect of smoking on smokers and passive smokers, the Supreme Court directed the prohibition of smoking in public places.

It issued directions to the Union of India, State Governments and the Union Territories to take adequate steps to ensure the prohibition of smoking in public places such as auditoriums, hospital buildings, health institutions etc.

In this manner, the Supreme Court gave a liberal interpretation to Article 21 of the Constitution and expanded its horizon to include the rights of non-smokers.

Further, when there is an inordinate delay in the investigation – it affects the right of the accused, as he is kept in tenterhooks and suspense about the outcome of the case. If the investigating authority pursues the investigation as per the provisions of the Code, there can be no cause of action.

But, if the case is kept alive without any progress in any investigation, then the provisions of Article 21 are attracted. The right is against actual proceedings in Court and against police investigation.

The Supreme Court has widened the scope of ‘procedure established by law’ and held that merely a procedure had been established by law, a person cannot be deprived of his life and liberty unless the procedure is just, fair and reasonable.

Hence, it is well established that to deprive a person of his life and personal liberty must be done under a ‘procedure, established by law’. Such an exception must be made in a just, fair and reasonable manner and must not be arbitrary, fanciful or oppressive. Therefore, for the procedure to be valid, it must comply with the principles of natural justice.

Article 21 and The Emergency 

In ADM Jabalpur v. S. Shukla [xcviii] , popularly known as the habeas corpus case, the Supreme Court held that Article 21 was the sole repository of the right to life and personal liberty.

Therefore, if the presidential order suspended the right to move any court to enforce that right under Article 359, the detune would have no locus standi to a writ petition for challenging the legality of his detention.

Hence, such a wide connotation of Article 359 denied the cherished right to personal liberty guaranteed to the citizens. Experience established that during the emergence of 1975, the people’s fundamental freedom had lost all meaning.

So that it must not occur again, the constitution act, 1978, amended article 359 to the effect that during the operation of the proclamation of emergency, the remedy for the enforcement of the fundamental right guaranteed by article 21 would not be suspended under a presidential order.

Given the 44 th amendment, 1978, the observations in the above-cited judgments are left merely of academic importance.

India, legal Service. Article 21 of the Constitution of India – the Expanding Horizons , www.legalserviceindia.com/articles/art222.htm.

“Article 21 of the Constitution of India.” Scribd , Scribd, www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India.

Math, Suresh Bada. “10. Rights of Prisoners.” Nimhans.kar.nic.in , www.academia.edu/1192854/10._RIGHTS_OF_PRISONERS.

“SC Agrees to Examine Right to Shelter for PAVEMENT DWELLERS-INDIA News , Firstpost.” Firstpost , Sept. 2013, www.firstpost.com/india/sc-agrees-to-examine-right-to-shelter-for-pavement-dwellers-1108073.html.

admin on August 31, 2016 4:32 PM, et al. Human Rights and Jurisprudence: Right to Life / Livelihood Archives , www.hurights.or.jp/english/human_rights_and_jurisprudence/right-to-lifelivelihood/.

“Article 21 of the Constitution of India – DISCUSSED!” Your Article Library , 24 Feb. 2014, www.yourarticlelibrary.com/constitution/article-21-of-the-constitution-of-india-discussed/5497/.

“Honour Killing.” LAW REPORTS INDIA , 29 Apr. 2011, lawreports.wordpress.com/category/honour-killing/.

Grewal, Puneet Kaur. “Honour Killings and Law in India.” IOSR Journal of Humanities and Social Science , vol. 5, no. 6, 2012, pp. 28–31., doi:10.9790/0837-0562831.

Annavarapu, Sneha. “Honor Killings, Human Rights and Indian Law.” Economic and Political Weekly , www.academia.edu/5386926/Honor_Killings_Human_Rights_and_Indian_Law.

Nandimath, Omprakash V. “Consent and Medical Treatment: The Legal Paradigm in India.” Indian Journal of Urology : IJU : Journal of the Urological Society of India , Medknow Publications, July 2009, www.ncbi.nlm.nih.gov/pmc/articles/PMC2779959/.

http://www.hrln.org/hrln/peoples-health-rights/pils-a-cases/1484-sc-reaffirms-workers-right-to-health-and-medical-care.html

Cases as appearing in the Article:

[i] AIR 1963 SC 1295

[ii] AIR 1978 SC 1675

[iii] 1978 AIR 597, 1978 SCR (2) 621

[iv] 1981 AIR 746, 1981 SCR (2) 516

[v] 1984 AIR 802, 1984 SCR (2) 67

[vi] 1982 AIR 1473, 1983 SCR (1) 456

[vii] J.N. Pandey, Constitutional Law of India, Central Law Agency, 42 nd Ed. (2005), p. 222

[viii] AIR 1998 AP 302

[ix] 983 AIR 803, 1983 SCR (3) 327

[x] AIR 1997 SC 3011 : (1997) 6 SCC 241

[xi] AIR 1999 SC 625

[xii] 1996 AIR 922, 1996 SCC (1) 490

[xiii] 55 American LR 171

[xiv] 1989 AIR 714, 1989 SCR (1) 20

[xv] AIR 1989 SC 714.

[xvi] 1964 AIR 703, 1964 SCR (2) 363

[xvii] AIR 2003 SC 3357

[xviii] AIR 1960 SC 932

[xix] AIR 1983 SC 109: (1983) 1 SCC 124

[xx] AIR 1986 SC 180

[xxii] http://rshrc.nic.in/07%20Human%20Right%20Article-21.pdf

[xxiii] M.P. Jain, Indian Constitutional Law, Wadhwa, 5 th Ed. (2003), p. 1315

[xxiv] AIR 1991 SC 101

[xxv] AIR 1999 SC 1416 : (1999) 3 SCC 679

[xxvi] Air 1996 SC 1051 : (1996) 2 SCC 549

[xxvii] AIR 1995 SC 1770, JT 1995 (4) SC 141, (1995) 2 MLJ 38 SC

[xxviii] AIR 1997 Bom. 406

[xxix] AIR 1989 SC 1988

[xxx] Supra Note ( 10 to be corrected.. olgatellis)

[xxxi] 2006) 4 SCC 1: AIR 2006 SC 1806.

[xxxii] AIR 1996 SC 114

[xxxiii] http://www.scribd.com/doc/52481658/Article-21-of-the-Constitution-of-India

[xxxiv] AIR (1990) SC 630 : (1990) 92 BOMLR 145 : JT 1990 (1) SC 106

[xxxv] 1996 AIR 1051, 1995( 6 )Suppl. SCR 827, 1996( 2 )SCC 549

[xxxvi] http://nsm.org.in/2008/08/29/judicial-activism-on-right-to-shelter-rights-of-the-urban-poor/

[xxxvii] AIR (1992)573 :(1991) SCR Supl. (2) 267 (Minority Opinion)

[xxxviii] AIR (1996) 1234 :(1996) SCC (1) 742

[xxxix] (1995) Supp 2 SCC 549

[xl] AIR 1995 SC 1811

[xli] AIR (1995)1811 :(1995) SCC (5) 482

[xlii] AIR 2002 NOC 265

[xliii] AIR (1997) SC 1225

[xliv] 1987 AIR 990 : 1987 SCR (2) 468

[xlv] Supra note p.1639

[xlvi] AIR (1995) 922, (1995) SCC (3) 42

[xlvii] AIR (1989) 2039, (1989) SCR (3) 997

[xlviii] M.P. Jain, Indian Constitutional Law, Ed. 6 th (2010), p. 1616

[xlix] 1996 SCC (4) 37, JT 1996 (6) 43

[l] http://blog.medicallaw.in/supreme-court-of-india-on-emergency-healthcare/

[li] II (2005) CPJ 35 NC

[lii] Supra note 41 paschim bagga case online like at end of paragraph

[liii] AIR 1998 SC 1703 : (1998) 4 SCC 117

[liv] AIR 2006 SC 2945 : (2006) 8 SCC 199

[lv] 1994 AIR 1844, 1994 SCC (3) 394

[lvi] 1996 AIR 946, 1996 SCC (2) 648

[lvii] Ibid

[lviii] AIR 1973 SC 947

[lix] AIR 1979 SC 916

[lx] AIR 1980 SC 898

[lxi] 1991 AIR 420, 1991 SCR (1) 5

[lxii] AIR 1988 SC 1037 : (1987) 4 SCC 463

[lxiii] AIR 1997 SC 734 : (1997) 2 SCC 353

[lxiv] AIR 1996 SC 2721 : (1996) 5 SCC 647

[lxv] (2007) 2 SCC 413

[lxvi] (2006) 3 SCC 399

[lxvii] AIR 2002 SC 40 : (2001) 8 SCC 765

[lxviii] Writ Petition (civil) 72 of 1998

[lxix] Forum, Prevention of Environment & Sound Pollution v. Union Of India &Anr, AIR 2005 SC 3136 : (2005) 5 SCC 439

[lxx] https://www.privacyinternational.org/reports/india/ii-legal-framework-0

[lxxi] AIR 1963 SC 1295

[lxxii] 1975 AIR 1378, 1975 SCR (3) 946

[lxxiii] 1995 AIR 264, 1994 SCC (6) 632

[lxxiv] AIR 1997 SC 568

[lxxv] AIR 1995 SC 495

[lxxvi] AIR 2003 SC 3450

[lxxvii] 967 AIR 1836, 1967 SCR (2) 525

[lxxviii] 1978 AIR 597, 1978 SCR (2) 621

[lxxix] AIR 1994 SC 1349

[lxxx] AIR 1997 SC 610

[lxxxi] Pandey, J.N., The Constitutional Law of India 47 th Ed., Central Law Agency, Allahabad, 2010, p. 269

[lxxxii] See Kumar, Narender, The Constitutional Law of India, 1 st Ed., Allahabad Law Agency, Allahabad, 2009, p-158

[lxxxiii] AIR 1978 SC 1548

[lxxxiv] AIR 1979 SC 1360

[lxxxv] AIR 1992 SC 170

[lxxxvi] Jain, M.P., Indian Constitutional Law, 6 th Ed., LexisNexis Butterworths Wadhwa Nagpur, Gurgaon, 2010, p.1200

[lxxxvii] AIR 2001 SC 3173

[lxxxviii] AIR 2006 SC 1367

[lxxxix] AIR 1978 SC 527

[xc] AIR 1980 SC 1535

[xci] AIR 1978 SC 1675

[xcii] AIR 1983 SC 1155

[xciii] AIR 1986 SC 467

[xciv] AIR 1983 SC 1155

[xcv] AIR 1981 SC 643

[xcvi] AIR 1983 SC 465

[xcvii] AIR 1966 SC 424

[xcviii] AIR 1976 SC 1207

Related Posts:

47 thoughts on “Article 21: Understanding The Right to Life and Personal Liberty from Case Laws-Academike Explainer”

The information is quite helpful. Thanks

above the information sufficient for my case……….thanks

thanks ? If u need any help please let me know

very very informative…thanks..god bless you for spreading knowledge….

Awesome .this is 360′ information canopy .

very well presented…very useful and informative article

it is very nice work to 21 artices i am very heipful in all my acadimc year .LLb

what about right to choice falling under the same article?

I would expect, that falls within the ambit of “personal liberty.”

Sir how could I get natural justice as poor man, I am not able to afford fees of court etc. Help me. Facts with related land disputed.

Very Well drafted after depth research on the topic. Good reference specially to the judgments/law passed by Hon’ble Supreme Court. THANK YOU for serving society. Very useful for everyone.

Good work. It is very helpful to everyone to know about Article 21, especially to law students.Thanks a lot.

Thanks for the details

it’s good relay helping to the staudy

1. Thanks for a very exhaustive discussion and its footnotes. 2. I am an accused in a fake criminal case filed by my sibling about misappropriation of funds from our father’s firm. Based on this the IO sealed all bank accounts belonging to my father, me, my wife etc., in year-2014. They continue to be sealed. 3. My father died in 2016, so anyways the banks have sealed his accounts till a successor is decided. The charge sheet was filed in Feb-2017. 4. There is a nexus between my sibling and the IO and whatever information that I provide to the IO reaches my sibling, which is detrimental to me. 5. U/s 173(8) CrPC, (ongoing investigation), can the IO force me to provide details of my new bank accounts, which I started after the date when he sealed all accounts in 2014? 6. Can I refuse to provide the IO this information using the protection offered by Article 21 of the Constitution? 7. Thanks.

It’s really help me for my clat preparation ….

can a resident of society ,write on Facebook /social media that association members are goonda/goons ,related to apartment owners association

thank u for the wonderful explanation

Thank u so much This information is really helpful

its very effective

A wonderful article

Is there any special format for filing cases in supreme court for the violation of dignity?

Floods, due to human negligence and loss of human lives, loss of livestock and agricultural loss that disrupts Right to Life which also comes under Article 21, have not been covered in the article.

People are fighting for resarvations these days why? Art 21 of our constitution embodies Equal right to life and liberty still why they fight for Resarvations why?

Reservation is politically motivated, every political party wants to continue reservation for seeking votes, since in our country caste and religion play a vital role In every election. The only solution is to give up reservation by those who don’t really need it.

It is in article 15 where suoreme court held that the state is permitted to make any provision for the advancement of any social and educationally backward classes. I prefer you to go through RIGHT TO EQUALITY article(14-18) Its clear all your fought regarding reservation and quota etc

If you desire to know what is a hard work. Then this thesis on Article 21 shows the brilliant work done by a student. I wish great success to the author.

It is my first comment. If you desire to know what is a hard work. Then this thesis on Article 21 shows the brilliant work done by a student. I wish great success to the author.

If you are going for finest contents like me, simply go to see this site daily as it offers quality contents, thanks

Is premature termination from employment without any reason against Article 21 of our Constitution?

Awesome post.

thankyou your feedback

The whole Article is explained in a very easy laungage, with land mark cases this is the best example of compilation of the work. I appreciate the efforts taken by the author

reservations in education and jobs are supposed to be for 10 years. But they appear to be perennial. In this context in have got certain doubts. 1. Did Dr Ambedkar suggest reservations only based on cast. regardless of merit,aptitude and capability? 2. Is it fair for a collector or doctor to retain the reservation facility for his children? 3.Reservation is snatching away opportunities from poor eligible, so called upper class candidates. Is it not against his fundamental right to live ?

The very purpose of Reservations is Adequate Representation in all feilds mandated by the Indian Constitution.But people from certain communities think Reservations means earmarking certain number of posts in the field of employment for the SC and ST communities.Here one more thing is to mention. Reservations are extended after every ten years.Why? Becasue in the knowledge of Govt the goals set by are not acheived. But the occupancy in high level posts by the non reserved communities is abnormal.It is an open secret but nobody questions.The answer is best known to the people who points their finger at the SC and STs only.

what is the relation between liberty and life

Excellent Information provides To read more visit the link :

‘The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognized as being essential to the orderly pursuit of happiness by free men.’ Can somebody please cite the case in which this was held by Supreme Court of India?

This article is so informative and yet not too exhaustive to understand! Thankyou so much, it’s of great help

Greetings, Usually I never comment on blogs but your article is so convincing that I never stop myself to say something about it. You’re doing a great job, Keep it up. You can check out this article, might be of help 🙂

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RIGHT TO PRIVACY AND DATA PROTECTION UNDER INDIAN LEGAL REGIME

DME Journal of Law, Volume 1, 2020, available at, https://dmejl.dme.ac.in/article/bandita-das/

21 Pages Posted: 19 Apr 2021

Jayanta Boruah

North-Eastern Hill University (NEHU)

Bandita Das

Independent.

Date Written: March 16, 2021

Privacy has emerged as a basic human right across the globe and in India too it has been recognized as a Fundamental Right under Article 21 of the Indian Constitution. Right to Privacy is closely related to the protection of data which in this technological and globalized world, has become very difficult to achieve. Further, violation of privacy rights by the Ruling majority through discriminatory legislation has also become possible due to lack of legal protection to this Right. In India, this Right was not initially recognized as a Fundamental Right, neither any specific law on data protection for securing the Rights of Privacy of the citizens was enacted. At the same time, there had been many allegations regarding violation of privacy rights both by the Government as well as by the Private Commercial Entities from time to time in India. Such allegations were also placed before the Courts of Law where the Courts had given landmark Judgements including guidelines and rulings. It thus becomes very important to analyze all these legal developments relating to the Right to Privacy and Data Protection to understand the extent of security granted by the Indian legal framework to the citizens over Right to Privacy. It has however been found that adequate recognition has been given to the Right to Privacy by the Indian Legal Regime and therefore significant steps were taken to prevent data theft and misutilization of sensitive information, yet a major extent of progressive developments is still needed to enhance the scope of data protection in the contemporary times for securing the Right to Privacy of the Indian citizens.

Keywords: Privacy; Data Protection; Personal Information; Sensitive Information; Confidentiality; and Public Interest

Suggested Citation: Suggested Citation

Jayanta Boruah (Contact Author)

North-eastern hill university (nehu) ( email ).

Meghalaya India

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The Right to Privacy — Article 21, Cases, Acts, GDPR etc.

RABI PANDIT

Right to Privacy

Welcome to Barristery.in , where we dive deep into the essence of one of the most vital human rights in today’s digital era — the Right to Privacy . In a world where our lives are increasingly online, and personal data can easily become public, the significance of privacy has never been more pronounced.

This Article will guide you through the intricate landscape of privacy rights, exploring its legal battles, societal impacts, and personal ramifications. We’ll uncover how landmark judgements have shaped the way we understand privacy today and what it means for your personal freedom in a world of constant surveillance.

From protecting your digital footprint to understanding your rights against data breaches, join us as we navigate the complex interplay between privacy, technology, and individual liberty.

On December 15, 1890, young law partners from Boston, Samuel D. Warren and Louis D. Brandeis, contributed a seminal article titled “The Right to Privacy” to the Harvard Law Review. This article suggested solutions for addressing intrusions into personal privacy by the press. Fast forward over ninety years, and the legal system has elevated the protection of privacy to a principal concern. A comprehensive body of case law on privacy has been systematically compiled by legal experts into a unified common law of privacy. Additionally, the Supreme Court has recognized the right to privacy as implicitly protected by the Bill of Rights, and Congress has passed further protective measures.

What is the Right to Privacy?

The right to privacy is a fundamental human right recognized in many countries around the world. It protects individuals against unwarranted invasions of their personal space, communications, and information by the government, organizations, and other individuals. Privacy enables individuals to make personal choices without interference, live their lives with dignity and autonomy, and express themselves freely.

The scope of the right to privacy can vary from one jurisdiction to another but generally includes aspects such as:

• The protection against searches of one’s body or home without consent.
• Safeguards against the collection, use, and disclosure of personal data without consent.
• The right to communicate freely without surveillance or interception.
• Protection against unauthorized entry into one’s private premises.
• The right to control the collection and sharing of data about oneself.

In the digital age, the right to privacy has become increasingly complex, encompassing issues related to data protection, online identity, and digital surveillance. Countries have developed various laws and regulations to address these challenges, such as the General Data Protection Regulation (GDPR) in the European Union, which aims to give individuals control over their personal data and simplify the regulatory environment for international business.

The right to privacy is not absolute and can be limited under certain conditions, such as national security, public safety, or the prevention of crime. However, any infringement on privacy rights must be justified as necessary, proportionate, and in accordance with the law.

Famous Persons Quote on Right to Privacy

One of the most cited definitions of the right to privacy comes from Samuel D. Warren and Louis D. Brandeis in their famous 1890 Harvard Law Review article, “The Right to Privacy.” They defined privacy as:

Samuel D. Warren and Louis D. Brandeis

“The right to be let alone; the most comprehensive of rights, and the right most valued by civilized men.”

This definition, though over a century old, captures the essence of privacy as a fundamental human right, emphasizing the importance of personal space and autonomy. Warren and Brandeis articulated this concept in response to the increasing reach of newspapers and photographs into private lives, showing how concerns about privacy have evolved alongside technology. Their work laid the groundwork for the legal and philosophical discussions on privacy that continue to this day.

Alan Westin

Alan Westin, a pioneer in privacy studies, defined privacy in his 1967 book “Privacy and Freedom” as:

“The claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”

Westin’s definition emphasizes the control over personal information, which has become increasingly relevant in the digital age.

Article 12 of the Universal Declaration of Human Rights (UDHR)

While not a definition per se, Article 12 of the UDHR, adopted by the United Nations General Assembly in 1948, lays down a foundational principle of privacy rights:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

This article highlights the universal importance of privacy as a human right, protected against arbitrary interference.

Justice Louis Brandeis

Before the famous Harvard Law Review article with Samuel Warren, as a Supreme Court Justice, Louis Brandeis famously articulated the concept of privacy in the case of Olmstead v. United States in 1928, concurring opinion:

“The right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”

This quote, though echoing the earlier work, was significant in its judicial context and has been influential in shaping American privacy law.

European Union’s General Data Protection Regulation (GDPR)

The GDPR, which came into effect in May 2018, doesn’t provide a direct definition of privacy but is one of the most comprehensive legal frameworks for protecting personal data. It is grounded in the broader concept of data protection as a fundamental right, as articulated in Article 8 of the Charter of Fundamental Rights of the European Union:

“Everyone has the right to the protection of personal data concerning him or her.”

This emphasizes the right to data protection as an aspect of privacy in the context of personal data.

International recognition of the right to privacy as a fundamental right

The right to privacy is internationally recognized as a fundamental human right, enshrined in various global and regional human rights instruments. This recognition underscores the universal acknowledgment of privacy as essential to the dignity and autonomy of individuals. below are the key documents and conventions that establish the right to privacy on the international stage:

Universal Declaration of Human Rights (UDHR) — Article 12 of the UDHR, adopted by the United Nations General Assembly in 1948, explicitly mentions privacy. It states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

International Covenant on Civil and Political Rights (ICCPR) — Article 17 of the ICCPR, which came into force in 1976, provides a more detailed right to privacy. It prohibits arbitrary or unlawful interference with an individual’s privacy, family, home, or correspondence, and unlawful attacks on their honor and reputation, mirroring the protections offered in the UDHR.

European Convention on Human Rights (ECHR) — Article 8 of the ECHR, enforced by the European Court of Human Rights, protects the right to respect for private and family life, one’s home, and correspondence. The ECHR applies to the member states of the Council of Europe.

American Convention on Human Rights — Article 11 of this convention provides for the protection of personal privacy, the privacy of the family, the home, and correspondence. This convention applies to member states of the Organization of American States (OAS).

African Charter on Human and Peoples’ Rights — Also known as the Banjul Charter, it implicitly recognizes privacy rights through protections against arbitrary arrest (Article 6) and the right to receive information and express and disseminate opinions (Article 9), which can be interpreted to include aspects of privacy.

General Data Protection Regulation (GDPR): Enacted by the European Union in 2018, the GDPR is one of the most comprehensive data protection regulations globally. It has set a new standard for privacy rights, emphasizing consent, transparency, and control over personal data for individuals within the EU. The GDPR’s influence extends beyond Europe, as international businesses must comply with its provisions to offer goods and services to EU residents.

United Nations Guidelines for the Regulation of Computerized Personal Data Files : Adopted in 1990, these guidelines were among the first international efforts to address data protection and privacy in the context of emerging digital technologies. They set out principles for the collection, processing, and storage of personal data.

These instruments reflect a global consensus on the importance of protecting privacy rights. However, the implementation and interpretation of these rights can vary significantly across different legal and cultural contexts. In recent years, the right to privacy has gained renewed attention, especially concerning digital privacy, data protection, and surveillance. Legislative and judicial bodies worldwide have been tasked with balancing these rights against national security interests, technological advancements, and other competing rights.

Right to privacy in different countries

The right to privacy is recognized and protected to varying degrees around the world, reflecting diverse legal traditions, cultural values, and technological landscapes. In today’s data-centric world, where personal information is more accessible than ever, the establishment of data protection and privacy laws by various countries is crucial.

The United Nations Conference on Trade and Development (UNCTAD) reports that out of 194 countries globally, 137 have implemented legislation concerning privacy and data protection. In regions like Asia and Africa, there is a notable embrace of such legislation, with 57% and 61% of the countries, respectively, having adopted laws to safeguard privacy. These international data protection laws are grounded in five fundamental global privacy principles.

United States

The U.S. Constitution does not explicitly mention the right to privacy, but the Supreme Court has interpreted several amendments to imply this right, particularly through the Fourth Amendment (protection against unreasonable searches and seizures) and the Due Process Clause of the Fourteenth Amendment.

The U.S. has a sector-specific approach to privacy law, with various statutes addressing privacy in contexts such as healthcare (HIPAA), financial information (GLBA), and online privacy for children (COPPA).

European Union

General Data Protection Regulation (GDPR) , The GDPR is a comprehensive data protection law that came into effect in May 2018. It emphasizes consent, data protection by design, and the rights of individuals to control their personal data, including the right to be forgotten. European Convention on Human Rights, Article 8 protects the right to respect for private and family life, home, and correspondence.

In 2017, the Supreme Court of India ruled that the right to privacy is a fundamental right protected under the Constitution of India , underlining its importance to freedoms and personal liberty.

India also has specific regulations for the protection of personal data in the digital environment, though a comprehensive data protection law is under consideration to enhance privacy protections under the Information Technology Act, 2000 and Rules.

Enacted in August 2020, the LGPD is influenced by the General Data Protection Law (LGPD) and establishes detailed rules for the collection, use, processing, and storage of personal data. It emphasizes consent and grants individuals rights over their data.

Implemented in November 2021, Personal Information Protection Law (PIPL) is China’s first comprehensive data protection law. It shares similarities with the GDPR but also reflects China’s unique legal and social context, with a notable focus on national security and social governance.

Personal Information Protection and Electronic Documents Act (PIPEDA) governs how private sector organizations collect, use, and disclose personal information in the course of commercial activities across Canada, except in provinces with substantially similar laws.

Privacy Act 1988 includes the Australian Privacy Principles (APPs), which outline how most Australian Government agencies, all private sector and not-for-profit organisations with an annual turnover of more than $3 million, and all private health service providers must handle, use, and manage personal information.

Act on the Protection of Personal Information (APPI) Revised significantly in 2020, the APPI regulates the use of personal data and is considered Japan’s counterpart to the GDPR, with a focus on data subject rights and cross-border data transfer protections.

These examples illustrate the global landscape of privacy law, which ranges from comprehensive data protection regimes in places like the EU and Brazil to more sector-specific approaches in the U.S., and evolving frameworks in countries like India and China. Despite these differences, there is a growing global consensus on the importance of protecting individuals’ privacy rights in the face of rapid technological advancements and increasing data flows.

Right to Privacy in India

The right to privacy in India has evolved significantly, especially in recent years, to become a fundamental right protected under the Indian Constitution. This evolution reflects India’s commitment to protecting the personal freedoms and dignity of its citizens in the face of technological advancements and growing concerns about data protection.

Constitutional Recognition

The landmark judgment that established the right to privacy as a fundamental right in India came from the Supreme Court in August 2017, in the case of Justice K.S. Puttaswamy (Retd.) vs Union Of India And Ors. The Court unanimously ruled that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Indian Constitution .

Implications of the Judgment

This judgment has wide-ranging implications for various aspects of law and policy, including:

Data Protection: It laid the foundation for more stringent data protection laws and policies, acknowledging the need for regulations that safeguard personal data against unauthorized use.

Aadhaar Case: The verdict played a crucial role in the Aadhaar case (Justice K.S. Puttaswamy (Retd.) vs Union Of India, September 2018), where the Supreme Court upheld the constitutional validity of the Aadhaar scheme but with conditions to ensure privacy, such as striking down Section 57 of the Aadhaar Act to prevent private companies from demanding Aadhaar for identification.

Sexual Orientation: The judgment also had implications for the recognition of privacy concerning personal choices, including sexual orientation, leading to the decriminalization of homosexuality in India in 2018 (Navtej Singh Johar vs Union Of India).

Legal and Regulatory Framework

Following the Supreme Court’s decision, there has been a push toward establishing a more robust legal framework for data protection in India:

Personal Data Protection Bill: Inspired by global standards such as the GDPR, India has been working on its own data protection law, the Personal Data Protection Bill, which aims to regulate the use of individual data by the government and private entities. However, as of my last update in April 2023, the Bill was still under consideration and had not been enacted into law.

Information Technology Act, 2000: Before the Personal Data Protection Bill, the primary law dealing with data protection in India was the Information Technology Act, 2000, and its rules, which address electronic commerce and cybercrime, including certain provisions about data privacy.

The right to privacy in India represents a critical balance between individual freedoms and the needs of the digital economy and state security. The legal landscape continues to evolve, reflecting the ongoing dialogue between privacy rights, technological innovation, and regulatory frameworks.

Article 21 of the Constitution and the right to privacy

Article 21 of the Indian Constitution is a fundamental provision that guarantees the protection of life and personal liberty. It states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Historically, Article 21 was interpreted narrowly, focusing mainly on physical restraints or deprivations. However, the Supreme Court, through various judgments, expanded the interpretation to include a wide range of rights that are essential for the enjoyment of life and personal liberty, effectively embedding the right to privacy within its ambit.

Over the years, the interpretation of Article 21 has significantly evolved, especially with the landmark judgment by the Supreme Court of India in the case of Justice K.S. Puttaswamy (Retd.) vs Union Of India And Ors. in 2017, which explicitly recognized the right to privacy as an intrinsic part of the right to life and personal liberty.

Landmark Judgment: Justice K.S. Puttaswamy (Retd.) vs Union Of India And Ors.

The Supreme Court’s unanimous decision in the Puttaswamy case marked a turning point for the right to privacy in India. The nine-judge bench overruled previous Supreme Court judgments that had held that privacy was not a fundamental right, thereby affirming that privacy is protected under Article 21 and other parts of the Constitution that guarantee fundamental rights.

The court recognized privacy as a conglomeration of various rights, including the rights to personal autonomy, bodily integrity, protection of personal information, and the freedom to make choices about one’s own life. This broad understanding of privacy extends to various aspects of existence, encompassing the physical realm, informational privacy, and the autonomy to make personal choices.

The recognition of the right to privacy as a fundamental right under Article 21 has several implications:

Data Protection and Privacy Laws: The judgment served as a catalyst for the development of more stringent data protection and privacy laws in India, emphasizing the need to protect individuals’ data from unauthorized access and use.

Aadhaar and Other Policies: It critically examined the Aadhaar project, leading to significant changes to ensure that the use of Aadhaar complies with privacy principles. It also impacts various policies and practices that must now align with the privacy standards set by this judgment.

Personal Freedoms: The ruling supports the protection of a range of personal freedoms, including sexual orientation, marital choices, and food preferences, among others, affirming that these choices are part of the right to privacy.

State Surveillance: The judgment imposes limits on state surveillance, requiring that any invasion of privacy by the state must satisfy the conditions of legality, necessity, and proportionality.

The Supreme Court’s decision to include the right to privacy within Article 21’s guarantee of life and personal liberty represents a pivotal enhancement of constitutional rights in India. It underscores the Constitution’s living nature, adapting to contemporary challenges and advancing the protection of fundamental human rights in the digital age. This judgment reaffirms the importance of personal freedoms, autonomy, and dignity in the face of growing technological advancements and state powers.

Right to Privacy and Government Surveillance

The intersection of the right to privacy and government surveillance has been a contentious issue globally, balancing individual privacy rights against national security and law enforcement needs. With the advancement of technology, the capability of governments to conduct surveillance — be it through internet tracking, phone tapping, or the use of drones and other monitoring devices — has significantly increased, raising concerns about the potential for privacy infringements.

In India, the Supreme Court’s landmark judgment in Justice K.S. Puttaswamy (Retd.) vs Union Of India And Ors. (2017) recognized privacy as a fundamental right under Article 21 of the Constitution, which protects life and personal liberty. This recognition imposes a constitutional check on government surveillance activities, ensuring they must meet the criteria of legality, necessity, and proportionality to be deemed valid.

Legal and Ethical Considerations

Any surveillance by the government must be authorized by law. This means there must be a legal framework in place that explicitly allows such surveillance, detailing the scope, manner, and conditions under which surveillance can be carried out.

Government surveillance must serve a legitimate state aim, such as national security, prevention of crime, or protection of public health.

The surveillance measures must be proportionate to the needs of the legitimate aim being pursued. This implies that the measures should be the least intrusive means necessary to achieve the objective and should be accompanied by adequate safeguards against abuse.

To protect the right to privacy while allowing for necessary government surveillance, several safeguards and forms of oversight are essential:

Many democracies require that surveillance activities, especially those potentially infringing on individual privacy, be approved by a court or judicial body.

Legislative bodies often have committees or oversight mechanisms to review and regulate surveillance practices, ensuring they comply with legal standards and respect privacy rights.

While operational details of surveillance programs may not be publicly disclosed, the existence of such programs, their legal basis, and oversight mechanisms should be transparent to ensure accountability.

Individuals should have avenues to seek redressal if their privacy rights are violated by government surveillance.

Global Perspective

The debate over privacy and government surveillance is not unique to India; it’s a global concern. Different countries have different legal frameworks and societal norms regarding surveillance. For example, the European Union’s General Data Protection Regulation (GDPR) sets strict limits on data collection and processing, emphasizing individual privacy rights. In contrast, other countries may grant their governments relatively broad surveillance powers in the interest of national security.

In an era of advancing technologies, the Court recognized the critical need to safeguard individuals’ informational privacy more effectively. While the right to privacy is not absolute and can be limited by law, any restrictions must follow a legally established procedure. The Court emphasized that the government must implement adequate mechanisms to protect the personal and biometric information of citizens, ensuring that data is used solely for its intended purpose and not for surveillance.

In summary, while government surveillance is sometimes necessary for national security and public safety, it must be conducted within the bounds of law, respecting the fundamental right to privacy. Balancing these interests requires a nuanced approach, ensuring that surveillance practices are subject to strict legal standards, oversight, and accountability mechanisms.

Important Cases on Right to Privacy

The potential for government misuse of surveillance capabilities poses significant concerns. Authorities may exploit these powers to establish a regime of constant monitoring, effectively stifling any opposition. Such practices constitute a violation of individuals’ privacy rights. High-profile cases like the Pegasus Spyware attacks and the Cambridge Analytica scandal illustrate instances where governments are accused of conducting surveillance on individuals. These incidents have been widely condemned as severe breaches of privacy, highlighting the risks associated with such invasive monitoring techniques.

The legality of surveillance provisions was scrutinized in several landmark cases, including M.P. Sharma v. Satish Chandra (1954), Kharak Singh v. State of Uttar Pradesh (1963), and Govind v. State of Madhya Pradesh (1975), all of which centered on allegations of privacy infringement. The Supreme Court’s stance varied across these cases.

M.P. Sharma v. Satish Chandra (1954): the Court ruled that search and seizure operations do not infringe on the right to privacy, arguing that the Constitution does not explicitly guarantee such a right. It justified these powers as essential for upholding law and order and facilitating police functions.

Kharak Singh vs State of Uttar Pradesh (1963): This case involved a challenge to the Uttar Pradesh Police Regulations, which allowed for surveillance activities like domiciliary visits and secret picketing. The Supreme Court held that certain aspects of the regulations violated the “personal liberty” of individuals. However, the court did not explicitly recognize a fundamental right to privacy at this time.

Gobind vs State of Madhya Pradesh (1975): In this case, the Supreme Court took a step forward by acknowledging that the right to privacy could be inferred from the Constitution’s provisions on the “right to life” and “personal liberty.” This case set the stage for the recognition of privacy as a constitutional right.

R. Rajagopal vs State of Tamil Nadu (1994): Also known as the Auto Shankar case, this marked a significant moment in the recognition of the right to privacy in India. The Supreme Court explicitly recognized the right to privacy as a part of the right to life under Article 21 of the Constitution, establishing that individuals have a right to privacy against state and non-state actors.

People’s Union for Civil Liberties (PUCL) vs Union of India (1997): This case was pivotal for privacy in the context of communication surveillance. The Supreme Court laid down guidelines for wiretapping under the Indian Telegraph Act, emphasizing the need to protect individuals’ privacy.

You can read full article on our Website: https://www.barristery.in/2024/02/the-right-to-privacy-article-21-cases.html

Written by RABI PANDIT

Student of Law and Admin of BARRISTERY.IN

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• Constitution
• Constitutional law
• Fundamental Right
• Indian Constitution
• Right to life

Article 21 of the Indian Constitution : Right to Life and Personal Liberty

This article is written by Jessica Kaur and Naincy Mishra . The article explores the meaning, scope, and various aspects of the Fundamental Right to Protection of Life and Personal Liberty under Article 21.

Table of Contents

Introduction

The sanctity of human life is probably the most fundamental of human social values. It is recognised in all civilized societies and their legal systems, as well as in internationally recognized statements of human rights. Every person is entitled to live their life on their own terms, with no unfair interference from others. A successful democracy can only be one that guarantees its citizens the right to protect their own life and liberty.

In India, the Protection of Life and Personal Liberty is a Fundamental Right granted to citizens under Part III of the Constitution of India, 1950. These Fundamental Rights represent the foundational values cherished by the people and are granted against actions of the state, meaning that no act of any state authority can violate any such right of a citizen except according to the procedure established by law. Article 21 of this part states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”, and this is known as the Right to Life and Personal Liberty.

Hence, this Article prohibits the encroachment upon a person’s right to life and personal liberty against the state. The state here refers to all entities having statutory authority, like the Government and Parliament at the Central and State level, local authorities, etc. Thus, violation of the right by private entities is not within its purview.

Evolution from International Charters

The principle of ensuring the right to life and personal liberty was not new to the Indian Constitution makers before they incorporated it into the Constitution. In fact, this principle was recognized much earlier in the Magna Carta of England (1215) and in the US Constitution (1791) . In England, it was reiterated in the Petition of Rights 1628 , and since then, the observance of this principle has established what is known as the Rule of Law in the UK. The Americans also appeared to have borrowed the phrase ‘due process of law’ which was first used in a statute of the 14th century. However, the expression ‘law of the land’ used in England has a different meaning than the ‘due process of law’ used in the US Constitution. 

Internationally, on a broader level, the Universal Declaration of Human Rights 1948 recognised this principle for the first time. Article 3 of the Declaration says, “Everyone has the right to life, liberty, and security of person.” Article 9 further provides that “No one shall be subjected to arbitrary arrest, detention, or exile.” This right has also been strongly emphasized in the European Convention on Human Rights 1950 (Articles 2, 3, and 5) and the Covenant on Civil and Political Rights 1966 (Articles 6, 7, 9, 10, and 11). While ensuring the specific right to life and personal liberty, these international documents also recognise the subsidiary rights at great length. These rights are often taken into account while deciding cases related to the movement of refugees/illegal migrants across national borders. 

In Vishakha v. State of Rajasthan (1997) , the Hon’ble Supreme Court of India held that the provisions of international instruments and norms can be read into justiciable fundamental rights in order to fill any gaps or to enlarge the scope thereof as a canon of statutory construction unless there is any inconsistency between them. Thus, several aspects of this right have evolved in Indian jurisprudence through the accepted principles of the international arena itself. 

Understanding Article 21 of the Indian Constitution 

Though couched in negative language, Article 21 confers the fundamental right to life and personal liberty on every person, including foreigners, and these two rights have been given paramount importance by the courts. These rights enjoy a fundamental ascendancy over all other attributes of the political and social order, and thus, the Legislature, Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. Moreover, though the word ‘person’ indicates an individual, through ‘Public Interest Litigation’ under Articles 32 and 226 , the collective rights of the people have also come to be enforced under Article 21.  

The early approach to Article 21 was circumscribed by the ‘literal interpretation’. But over the course of time, the scope of application of the Article has been expanded by ‘liberal interpretation’ of the components of the article in tune with the relevant international understanding. Thus, protection against arbitrary privation of ‘life’ no longer means mere protection against physical injury/death but also an invasion of the right to ‘live’ with human dignity and would include all these aspects of life that would go to make a man’s life meaningful and worth living. 

In fact, citizens who are detained in prison either as under-trials or as convicts are also entitled to the benefits of the guarantee, subject to reasonable restriction. The state can’t violate their rights merely because the person is an under-trial or a convict, as the prisoner doesn’t cease to be a human being. 

It must also be noted that while the protection of Article 21 is extended to foreigners as well, the same is confined to the article for life and liberty and does not include the right to reside or stay in India. It has been held in the case of Sarbananda Sonowal v. Union of India, (2005 ) that the power of the Government to expel foreigners, when necessary, is absolute and unlimited, and there is no provision in the Indian Constitution fettering its discretion. 

Important cases to understand basic evolution of Article 21 of the Indian Constitution

The terms ‘life’ and ‘personal liberty’ encompass a wide variety of rights of the people, which are a result of the evolution in the interpretation of Article 21 by the courts over the years. Here, we shall examine the various aspects of this Fundamental Right. However, before that, it is important to have a look at the jurisprudential evolution of this concept and the significance of most famous judgements related to it.

A.K. Gopalan v. State of Madras (1950): Prevention Detention

In this case , the Petitioner, a communist leader, was detained under the Preventive Detention Act, 1950. He claimed that such detention was illegal as it infringed upon his freedom of movement granted in Article 19(1)(d) of the Constitution of India and thus also violated his Personal Liberty as granted by Article 21 since freedom of movement should be considered a part of a person’s personal liberty.

The court stated that personal liberty meant liberty of the physical body and thus did not include the rights given under Article 19(1) . Hence, Personal liberty was considered to include some rights like the right to sleep and eat, etc. while the right to move freely was relatively minor and was not included in one’s “personal” liberty.

Kharak Singh v. State of U.P. and Ors. (1964): Personal Liberty Curtailed

Facts .

The petitioner, in this case , was accused of dacoity but was released due to a lack of evidence against him. The Uttar Pradesh Police then began surveillance over him which included domiciliary visits at night, periodical enquiries, verification of movements and the like. The petitioner filed a writ petition challenging the constitutional validity of this State action.

It was held that the right to personal liberty constitutes not only the right to be free from restrictions placed on one’s movements but also to be free from encroachments on one’s private life. Thus, personal liberty was considered to include all the residual freedoms of a person not included in Article 19(1).

Maneka Gandhi v. Union of India (1978): Right to Travel

The petitioner, in this case , was ordered by the Regional Passport Office, Delhi to surrender her newly-made passport within 7 days due to the Central Government’s decision to impound it “in public interest”, in accordance with the Passport Act of 1967. Upon requesting a statement of the reasons for such impounding, the Government replied that they could not furnish a copy of the same “in the interest of the general public.” A writ petition was filed by the petitioner challenging the Government’s decision of impounding and also of not providing the reasons, as well as not allowing the petitioner to defend herself.

The Honourable Supreme Court held that the right to travel and go outside the country must be included in the Right to Personal Liberty. It stated that “personal liberty” given in Article 21 had the widest amplitude and covered a variety of rights related to the personal liberty of a person. The scope of personal liberty was, hence, greatly increased and it was held to include all the rights granted under Article 21, as well as all other rights related to the personal liberty of a person. Such a right could only be restricted by a procedure established by law, which had to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Hence, the Court adjudged in the case that:

• The Government action was not justified as there was no pressing reason for the impounding of the petitioner’s passport and it was a violation of her Fundamental Rights.
• The principles of Natural Justice were violated as the petitioner was not given the opportunity to be heard.

Since this landmark case, the courts have sought to give a wider meaning to “personal liberty”. The principles of natural justice have also been emphasized upon, as any procedure which restricts the liberty of a person must be fair, just and reasonable.

Interrelation between Articles 14, 19 and 21 of the Indian Constitution

As discussed above, it can be deciphered that the interrelation between Articles 14, 19 and 21 has evolved with the evolution in the meaning of Personal Liberty. 

Firstly, let’s consider Articles 14 and 19 given in the Indian Constitution. Article 14 grants equality before the law and equal protection of the laws to all persons in the Indian territory and prohibits discrimination on the basis of religion, race, caste, sex and place of birth.

Clause 1 of Article 19 grants all citizens the right to freedom of speech and expression, to assemble peaceably and form associations, to move freely and reside anywhere throughout the country, and to practice any profession, occupation or trade.

All other clauses of this Article allow the State to impose reasonable restrictions on the rights granted in the above clause “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Earlier, Articles 19 and 21 were held to be completely exclusive and separate from each other. The position changed slowly as Personal Liberty evolved to include all rights other than those mentioned in Article 19, and they were considered complementary to each other. 

The Maneka Gandhi case (supra) however, brought a sea change. The Supreme Court held that Articles 19(1) and 21 are not mutually exclusive as the Right to Life and Personal Liberty covers a wide variety of rights, some of which have been given additional protection under Article 19(1).

Article 19 and Article 21 go hand-in-hand and the procedure established by law restricting these rights should stand the scrutiny of other provisions of the Constitution as well – including Article 14. Thus, a law encroaching upon one’s personal liberty must not only pass the test of Article 21 but also of Article 14 and Article 19 of the Constitution. These three rights are, hence, interconnected and provide safeguards against arbitrary actions of the government. They are meant to be read together and interpreted in accordance with each other. All three of them grant basic human rights and freedoms to the citizens and their immense collective importance has given them the name “Golden Triangle” in jurisprudence.

Scope of Article 21 of the Indian Constitution : Right to Life and Personal Liberty

After elucidating upon the expansion of purview of Article 21, it is important to understand the wide array of different rights and privileges this single right holds as per its meaning in the present era. This part discusses various case laws to examine the various aspects of Right to Life and Personal Liberty. 

Right to live with human dignity

It is not enough to ensure that a person has a Right to Live. An essential element of life is one’s dignity and respect; therefore, each person has been guaranteed the right to live with dignity – which means having access to the necessities of human life as well as having autonomy over one’s personal decisions. 

Occupational Health and Safety Association v. Union of India (2014)

In this case , a non-profit organization filed a petition seeking guidelines for occupational safety and health conditions in various industries, especially thermal power plants. This was in view of the various skin diseases, lung abnormalities, etc. suffered by their workers due to unhealthy working conditions. It also called for compensation to victims of occupational health disorders.

The court recognised the State’s duty to protect workers from dangerous or unhygienic working conditions and remanded the matter to various High Courts to check the issue of thermal power plants in their respective states. Thus, in this case, the protection of health and strength of workers and their access to just and humane conditions of work were taken as essential conditions to live with human dignity.

Right over one’s intimate relations

The Supreme Court, in the case of Navtej Singh Johar v. Union of India (2018), said that the Right to dignity means the right to “full personhood”, and “includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.” In this case, a very important aspect of human dignity was talked about – the control over one’s own intimate relations.

Navtej Singh Johar v. Union of India (2018)- Homosexuality

In this case , the petitioner NGO filed a Writ Petition challenging Section 377 of the Indian Penal Code, 1860 as it criminalised sexual acts between LGBT persons, claiming that it was against the Fundamental Rights.

The court, applying the principle of human dignity, said that Section 377 was violative of Articles 14 , 15 , 19 , and 21 of the Constitution to the extent that it criminalised consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private. Hence, sexual acts between LGBT adults conducted with the free consent of the parties involved were declared legal.

As can be observed, human dignity is not a straightjacket idea. Rather, it involves all those rights and freedoms which enable a person to live life without encroachment upon his or her self-respect, pride and safety.

Right to livelihood

To survive, a person requires access to financial and material resources to fulfill his various needs. The law recognises that every person, whether man or woman, has an equal right to livelihood so that he or she may acquire the necessary resources like food, water, shelter, clothes and more. No person deserves to live in poverty and squalor because of being deprived of the chance to earn for himself.

Olga Tellis and Ors. v. Bombay Municipal Corporation (1986)

The petitioners, in this case , were slum and pavement dwellers in the city of Bombay. They filed a writ petition against an earlier decision of the State of Maharashtra and the Bombay Municipal Corporation to forcibly evict dwellers and deport them, which led to the demolition of certain dwellings. They challenged these actions on the grounds that evicting a person from his pavement dwelling or slum meant depriving him of his right to livelihood, which should be considered a part of his constitutional right to life. 

The court concluded that though the slum and pavement dwellers were deprived of their Right to Livelihood, the government was justified in evicting them as they were making use of the public property for private purposes. However, they should not be considered trespassers as they occupied the filthy places out of sheer helplessness. It was ordered that any evictions would take place only after the approaching monsoon season and the persons who were censused before 1976 would be entitled to resettlement.

While the case failed to bring successful resettlement to the dwellers and, in fact, is sometimes cited as justification for eviction of people by the State, it did play its part in establishing the Right to Livelihood as part of the Fundamental Right to Life.

Right to shelter

Chameli singh v. state of u.p (1995).

In this case , the appellants were the landowners of the land that was being acquired by the government for providing houses to Scheduled Castes. It was contended that the appellants will be deprived of their lands, which was the only source of their livelihood, violating Article 21 of the Constitution.

Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. Right to live as guaranteed in any civilized society implies the basic human rights to food, water, a decent environment, education, medical care, and shelter. Further, the right to shelter includes within itself adequate living space, a safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation, and other civic amenities like roads, etc., so as to have easy access to his daily avocation. Court held that to bring the Dalits and Tribes into the mainstream of national life by providing these facilities and opportunities to them is the duty of the State as they are their fundamental and constitutional rights. Thus, in every acquisition, by its very compulsory nature for public purposes, the owner may be deprived of the land, the means of his livelihood.

Right to nutritional food 

People’s union for civil liberties v. union of india & ors. (2002).

This case was filed by PUCL against overflowing of grains in godown, leading to food wastage, and concerns over increasing starvation and the deaths of poor people in India. 

The Supreme Court explicitly established a constitutional human right to food under Article 21. The court reconfigured specific government food schemes into legal entitlements, setting out the minimum allocations of food grains and supplemental nutrients for India’s poor in a detailed manner. It also clearly articulated the ways in which those government schemes are to be implemented and identified the public officials who can be held accountable in the event of non-compliance. FCI was requested to provide food grains to the people in the drought hit area. 

Right to make reproductive choices

Suchita Srivastava v. Chandigarh Administration (2010)

In this case , an orphan woman of age 19-20 years who was already suffering from mild mental retardation was found pregnant while staying in a government-run welfare institution.  

Judgement 

A woman’s right to make reproductive choices is a dimension of ‘personal liberty’ within the meaning of Article 21 and the reproductive choices can be exercised to procreate as well as to abstain from procreating. The woman’s right to privacy, dignity, and bodily integrity should be respected. However, there is also a “compelling State interest” in protecting the life of the prospective child, and termination of pregnancy could only be permitted under the conditions specified in the Medical Termination of Pregnancy Act, 1971 . 

Right to choose one’s partner

Lata singh v. state of uttar pradesh & anr (2006).

In this case , a major woman named Lata married a person from another caste at her own free will, and this inter-caste marriage was opposed by her family members, which led to a huge fight, violence, and chaos in the two families, including the threat of life to the husband and his family members. 

The Supreme Court held that the right to marry a person of one’s own choice is protected within Article 21 of the Constitution. The court also directed the police to take action against anyone who threatens, harasses, or performs any kind of violence against the petitioner, the petitioner’s husband, or relatives of the petitioner’s husband in accordance with the law. This was one of the first cases that validated the right of a major to choose a partner of his/her own choice, be it an inter-caste marriage. 

The current jurisprudence has gone up to protect inter-faith marriages (marriages between different religions) under Article 21 as well. 

Right to reputation 

Subramanian swamy v. union of india, ministry of law and ors. (2016).

In this case , the petitioners challenged the validity of the criminal defamation under Section 499 and 500 of the Indian Penal Code, 1860 , claiming that it violated their right to freedom of expression under Article 19(1)(a) of the Indian Constitution.

The Court examined the meaning and interpretation of the terms “defamation” and “reputation.” Further, it discussed a number of international treaties highlighting the value of honour and respect for one’s life. It was emphasized that once the reputation of an individual has been held to be a basic element of Article 21 of the Constitution, it is extremely difficult to accept the view that criminal defamation has a chilling effect on freedom of speech and expression.

Right against indecent representation of women

Chandra rajkumari v. police commissioner, hyderabad (1998).

In this case , a PIL was instituted under Article 226 by a group of women organisations to condemn and oppose the proposed holding of a beauty competition ‘Miss Andhra Personality’ by one such woman organisation. The PIL sought that beauty contests be declared immoral and unconstitutional by the court. 

It was held that beauty contests, in their true form, are not objectionable. However, if there is indecent representation of a woman or if there is any matter derogatory of women, then it would offend the Indecent Representation of Women Act of 1986 as well as Article 21 of the Constitution. 

Right to go abroad

Satwant singh sawhney v. d. ramarathnam (1967).

In this case , the petitioner carrying out the business of import, export, and manufacture of automobile parts was asked to surrender his passports when it was necessary for him to travel abroad. He filed a petition under Article 32 against infringement of his rights under Articles 14 and 21 of the Constitution.

A  person living in India has a fundamental right to travel abroad under Article 21 of the Constitution  and  cannot  be denied a passport because, factually, a  passport  is  a necessary condition for traveling abroad, and by withholding the passport, the Government can effectively deprive him of his right.

Right against illegal detention

Meera nireshwalia v. state of tamil nadu (1991).

In this case , a woman was allegedly illegally detained by the policemen while she was complaining about some miscreants who tried to damage the structure of her house. It was also alleged that she was denied food or water and even information about the grounds on which she was detained. She was also taken to a mental hospital without letting anything known to her family.

In its judgment, the court ordered the State of Tamil Nadu to pay her compensation of Rs 50,000 as she was illegally detained, depriving her of her right to life and personal liberty guaranteed under Article 21 of the Constitution. It was held that one of the ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured is to mulct its violaters in the payment of monetary compensation.

Right against harsh living conditions of prisoners 

Sunil batra v. delhi administration & ors. (1978).

This case was filed by Sunil Batra, who was a convict serving a death sentence at the Tihar Central Jail. He wrote a letter to a Supreme Court Judge entailing the poor living conditions and questionable treatment of inmates at the jail. He also complained of the brutal assault and torture by Head Warden Maggar Singh in order to extract money from the visiting relatives of the victims.

The Supreme Court held that during the prisoner’s time in jail, the jail authorities do not have any rights to punish, torture, or in any way discriminate against them without the explicit permission or orders of the court. It was held that the provisions of the Prison Act, 1894 , must not be misinterpreted as a right or freedom to torture the inmates. 

Right to privacy

Right to Privacy sounds like a very basic and obvious right to possess, but for a long time, it was not recognised as a distinct right by the Government because of not being mentioned explicitly by the drafters in the Constitution of India. Over time, there has been a growing recognition of a person’s autonomy over his or her personal body, mind and information which has been given due emphasis by the courts in various judgements. The Right to Privacy first saw mention in the following case. 

R. Rajagopal v. State of Tamil Nadu (1994)

In this case , a person convicted of murder wrote his autobiography, in which he also disclosed his relationship with the prison officials, some of whom were his partners in crime. His wife sent it for publishing to the Tamil magazine ‘Nakkheeran’, but the prison officials interfered in the publication. The editors of the magazine filed a petition to restrain the government or the prison authorities from stopping the publication of the autobiography.

The court held that it was the right of the criminal Auto Shankar to do whatever he wanted with his private information. Thus, the magazine could not be stopped from publishing what it called the “autobiography” of the criminal.

This case set the stage for future judgements regarding the Right to Privacy and paved the path for it to be established as a part of the Fundamental Rights granted under Part III of the Constitution.

Is right to privacy an absolute right

Although Right to Privacy is one of the most essential rights of a person, especially in a modern democracy, it is not an absolute and untouchable right. There are certain situations where reasonable restrictions can be placed on this right of a person for the greater good. One such situation can be seen in the infamous case of Mr X v. Hospital Z.

Mr. X v. Hospital Z (1998)

The appellant, in this case , was found to be HIV(+) when his blood sample was tested. This fact was disclosed by the Hospital to others without the appellant’s express consent. Due to such disclosure, the appellant’s proposed marriage to Ms. Y was called off and he was shunned by society.

The aggrieved person approached the National Consumer Dispute Redressal Commission claiming that there was a breach of confidentiality on the part of the Hospital, but his complaint was dismissed. The appellant then approached the Supreme Court contending that the Duty of Care of the medical professionals as well as his Right to Privacy were violated.

The court held that the appellant’s Right to Privacy was superseded by Ms. Y’s right to know such a material fact about the person she was about to marry, as it was bound to affect her life as well. It was further held that a medical professional’s duty to maintain confidentiality could be breached in cases where public interest was at stake.

Telephone-tapping : an invasion of right to privacy

In today’s digital world, Right to Privacy has acquired a new meaning. In a world where your finger controls everything you put out for everyone to see, can you imagine your personal information being secretly spied on by someone? In the 90s, telephone-tapping of private conversations by the State became a much-talked-about issue in the case of People’s Union for Civil Liberties v. Union of India (1997). Let us take a look at the facts of the case.

People’s Union for Civil Liberties v. Union of India (1997)

In this case the petitioner, a voluntary organisation, challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 which empowered the Central or State government or its authorised officer to intercept and record messages in case of public emergency or in public interest. This came in the wake of the report on telephone-tapping of politicians which showed that many interceptions were not backed by proper authorizations and in many cases, no proper records or logs of the same were maintained.

The court held that interception can be made only by specific top government officials, only when it is necessary, and it should not exceed a total of six months. The copies of such intercepted messages should be destroyed as soon as they are no longer useful. Recognizing a person’s Right to Privacy, it ordered the formation of a Review Committee to check that such interception was not in contravention of Section 5(2) and if it was, the messages shall be destroyed immediately.

Right to privacy and Aadhaar Card

One of the most important judgements related to Right to Privacy came in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2015). This case established the Right to Privacy as a Fundamental Right granted to the citizens by the Constitution.

Justice K.S. Puttaswamy (Retd.) v. Union of India (2015)

The case was brought by a retired Karnataka High Court Justice before a nine-judge Constitutional bench, challenging the government’s scheme of making the Aadhaar card (a uniform system of biometrics-based identity card) for all citizens. He claimed that it was a violation of the Right to Privacy, and the fact that there were no strict data protection laws in India meant that people’s personal information could be misused. The Attorney General argued that the Constitution did not guarantee a separate Right to Privacy.

The bench unanimously held that Right to Privacy was a part of one’s Right to Life granted by Article 21 and included the right to keep personal information private. While it upheld the constitutional validity of the Aadhaar Card, it struck down certain provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Right to health and medical assistance

The Right to Life, of course, cannot be upheld if every person is not given access to proper health and medical assistance. It is the most primary prerequisite to living a full life. 

However, sometimes doctors and medical institutions hesitate to assist the ailing persons due to fear of long formalities and complications, especially in medico-legal cases. An example of such a situation is given below.

Pt. Parmanand Katara v. Union of India (1989)

In this case , a scooterist faced an accident upon crashing with a car but upon being brought to a hospital, he was refused treatment and directed to another hospital 20 km away due to the non-occurrence of legal and police formalities. A writ petition was filed in public interest to make it an obligation for doctors to provide medical assistance immediately and not have to wait for completion of formalities.

It was recognised that Article 21 renders paramount importance to the preservation of human life. Thus, it is the obligation of all medical professionals to give immediate health assistance to all patients, without being put under any legal impediment. It was decided that no medical professional shall be harassed for any investigation and he or she would not be asked to testify in court unless necessary and absolutely relevant.

Thus, this case freed the medical professionals of any legal restrictions and thereby made it an obligation and duty for them to provide immediate assistance to patients to uphold the Right to Life.

Right to sleep

All of us love sleeping, right? But many are not aware that the Right to Sleep is a distinct part of one’s Fundamental Rights, which protects against any actions of the State leading to the unlawful deprivation of a person’s sleep.

Re-Ramlila Maidan Incident v. Home Secretary and Ors. (2012) was the case which led to the establishment of this Right.

Re-Ramlila Maidan Incident v. Home Secretary and Ors. (2012)

In this case , a Yoga training camp was to be held in Ramlila Maidan during June, 2011 but on 4th June it turned into a hunger strike against black money and corruption led by Baba Ramdev. The protests took place all day and at 12:30 at night, when all the protestors were sleeping, a large number of CRPF, Delhi Police force and Rapid Action Force personnel reached the venue to bring the sadhu out. A scuffle ensued between the personnel and the sadhu’s supporters which ended in throwing teargas shells on the people.

The court acknowledged that sleep is an essential part of a healthy life and a necessity for the maintenance of individual peace. Thus, it held that every person is entitled to sleep as comfortably and freely as he breathes. If any person’s sleep is disturbed without any reasonable justification, it amounts to torture and is a violation of his human rights. Therefore, making the sleeping persons flee and causing mayhem at the location was held as unlawful, since there was no illegal activity taking place there.

Arrest and detention of a judgement-debtor

The first question that comes to mind is, who is a judgement-debtor? A judgement-debtor refers to a person against whom a judgement has been made ordering him to pay a sum of money i.e. damages, which remains unsatisfied. Thus, he is a debtor of those damages with respect to the judgement passed. Now, if the judgement-debtor continues to fail to pay the money, what is the recourse?

Jolly George Varghese and Anr. v. Bank of Cochin (1980)

In this case , a court warrant was made for the arrest and detention of two judgement-debtors as they had not paid the money due to the Bank. Their property was also encroached upon for the purpose of selling it and obtaining the money. All this was done without ascertaining that the judgement-debtors had the means to pay but had intentionally evaded it, i.e. had committed an act of bad-faith. Hence, an appeal was filed by the two.

The court declared that it was necessary to ascertain whether an act of bad faith had been committed, and only then the judgement-debtors should be arrested and detained.

Thus, the court, keeping in mind the life and personal liberty of the judgement-debtor, narrowed down the circumstances in which he can be arrested. Therefore, if a judgement-debtor fails to pay the money, he can be arrested – provided that he deliberately avoided paying it even while possessing the means to do so.

Bonded labour system

Having to work in a bonded labour system is one of the most obvious violations of one’s Right to Life to Personal Liberty. Treated as slaves, the bonded labourers face working conditions full of destitution and misery and are often greatly exploited. The Bonded Labour System (Abolition) Act was passed in 1976 as a step towards ending this system, but it isn’t always abided by completely. It is in times like these that the court has to step in and ensure that the labourers can enjoy their Fundamental Rights. To truly achieve personal liberty, the labourer must not only be freed but also rehabilitated in order to establish an independent life. This was reiterated in the following case.

Neeraja Chaudhary v. State of M.P. (1984)

In this case , a writ petition was filed in the matter of 135 bonded labourers working in stone quarries in Faridabad, who had been released as per an earlier court order and returned to their home villages in Madhya Pradesh with the promise of rehabilitation. However, even six months down the line, they had not been rehabilitated and, in fact, were living on the verge of starvation. Because of this, many wanted to go back to bonded labour rather than starve.

The court emphasized upon the need for proper rehabilitation of the labourers to uphold their Right to Life and Personal Liberty granted by Article 21, and ordered the State government to undertake appropriate measures for the same.

Right to die

The Right to Life confers upon the person the right to live a full life and dictates that the State cannot interfere in this right except through procedure established by law. But, what if a person chooses to end his own life? Can he interfere in his own Right to Life?

Section 309 of the Indian Penal Code, 1860 criminalises attempt to suicide, with the convicted person facing up to two years of imprisonment, or a fine, or both. Section 306 , meanwhile, criminalises the abetment to suicide i.e., the assistance given by a person in the process of the commitment of suicide by another.

We might say that such a view is inhumane because a person, especially one who is depressed or frustrated to the point of wanting to die, should not be criminalised for attempting suicide. A person has the Right to Life which should naturally imply the Right to end his life too. Such a view was taken by the court in the case of P. Rathinam v. Union of India (1994).

P. Rathinam v. Union of India (1994)- Right to Die

In this case , two petitions were filed challenging Section 309 of the IPC on the grounds that it stood in violation of Articles 14 and 21 of the Constitution.

Keeping Article 21 as well as the principles of natural justice in mind, the two-judge bench ruled that Right to Life also included the right to not live a forced life. Therefore, Section 309 of the Indian Penal Code was declared void.

However, the court then changed its position in the subsequent case of Smt. Gian Kaur v. State of Punjab (1996).

Smt. Gian Kaur v. State of Punjab (1996)

In this case , Gian Kaur and her husband Harbans Singh were convicted under Section 306 of the IPC due to abetment to the suicide of Kulwant Kaur. Subsequently, the constitutional validity of Sections 306 and 309 was challenged.

Here, the judgement given in the previously-mentioned case was overruled and it was held that Section 309 of the IPC was not unconstitutional and that Section 306, criminalising abetment to suicide, was Constitutional. The court concluded that suicide being an unnatural termination of life, it was against the concept of Right to Life.

Euthanasia 

The term euthanasia comes from two Greek words – eu meaning ‘good’ and thantos meaning ‘death’. Thus, it essentially means ‘good death’. It is the practice of ending the life of a person suffering from an incurable disease but still breathing, thus undergoing great agony and distress. It helps him or her go through a gentle and painless death instead, by either an act or omission upon his or her body. It is, thus, also known as “mercy killing” or “assisted suicide”.

There may be two types of euthanasia- active and passive.

• Active Euthanasia involves doing something to a patient to end his or her life, with their consent. For eg. giving an injection.
• Passive Euthanasia involves withdrawing medical services with the intention to end the patient’s life. In other words, it means not doing something to a patient, which if done would have saved his or her life. For eg. stop feeding the patient.

In Smt. Gian Kaur v. State of Punjab , the court observed that euthanasia could be made lawful only by legislation. The reasoning behind this was to prevent unscrupulous actions by ill-intentioned people. 

The landmark case in this matter, however, was Common Cause (A Regd. Society) v. Union of India (2018), which made passive euthanasia lawful.

Common Cause (A Regd. Society) v. Union of India (2018)

In this case , an NGO filed a Public Interest Litigation in the Supreme Court to legalize living will and passive euthanasia. It contended that a person’s right to life included the right to have a dignified death as well, but modern technology enabled the unnecessary prolonging of an incurable patient’s life, only causing pain and suffering to him and his family. Thus, living will by the patient could authorize the family and the hospital to end his agony.

A five-judge Constitution bench ruled that Right to Life also includes a person’s Right to Die with dignity, and thus allowed passive euthanasia i.e. the will of patients to withdraw medical support in case of slipping into an irreversible state of coma.

Thus, currently, active euthanasia is illegal in India, just as in most other countries. On the other hand, passive euthanasia is legal in our country, subject to certain strict guidelines.

Right to a healthy environment

Nature has showered us with its gifts since the beginning of time, and these gifts and resources act as the backbone of human existence. A clean, healthy and harmonious environment is one of the necessities for the true enjoyment of life, and thus, it comes as no surprise that our right to live in a pollution-free environment is included in the expansive Right to Life.

The rapid growth of technology beginning with the Industrial Revolution and growing over the centuries has, however, not helped the environment at all. The establishment of more and more industries and a rise in the demand for products manufactured by them has increased the waste churned out by them. Where does all this waste go? Unfortunately, it ends up in the land, water, and air.

Several court judgements have led to the establishment of our right to a healthy environment and the measures to curb the pollution of the Earth. 

Right to get pollution-free water and air 

Without clean drinking water, we can’t last half a week, and without air, we can’t even last half an hour. It is very important to have access to pollution-free water and air for a sound mind and body. The case of Subhash Kumar v. State of Bihar (1991) emphasized this right as a part of Article 21.

Subhash Kumar v. State of Bihar (1991)

In this case , a Public Interest Litigation was filed against two iron and steel companies alleging that they were polluting the nearby river Bokaro by dumping waste into it. The petitioner pointed fingers at the State Pollution Control Board for failing to prevent this and offered to collect the waste and sludge himself.

The court confirmed that the Fundamental Right to Life includes the right to enjoy pollution-free water and air, and if anything endangers the quality of water and air then a citizen can file a petition in court.

However, this particular PIL was dismissed on the grounds that it had been filed in personal interest for the petitioner’s own gains, and that it lacked any basis as the State Pollution Control Board had taken appropriate measures to control pollution.

Protection of ecology and environmental pollution

Nature needs to be protected not just for our own eating, drinking and breathing, but also to preserve the entire ecosystem which maintains the ecological balance on Earth. Let’s examine the cases below to understand some of the judgements which have contributed towards greater protection of the environment.

Rural Litigation and Entitlement Kendra v. State of U.P. (1985) or the Dehradun Valley Litigation

In this case , an NGO filed a petition against the limestone quarries in the Dehradun-Mussoorie area, alleging that their work was unauthorised and was leading to ecological imbalance in the surroundings due to the landslides caused.

The court only allowed a few mines to remain open while all the others, which were causing harm, were shut down. The Valley was declared as an ecologically sensitive area and measures were taken for its restoration. Most importantly, this case led to the enactment of the Environment Protection Act, 1986 .

M.C. Mehta and Anr. v. Union of India (1987) or the Shriram Food and Fertilizer Case

In this case , the chemical plant Shriram Food and Fertilizer Ltd. in Delhi suffered a major leakage of the deadly oleum gas in October 1986 and faced another minor leakage two days later. This incident affected almost two lakh people in the near radius.

The court held the industry liable for its negligence and ordered it to pay Rs 20 lakh as compensation to the victims. It also ordered the establishment of an Expert Committee to overlook the operation of the industry. It was directed for all workers to be properly trained, and for loudspeakers to be installed in the premises to warn people in case of any leakage.

Thus, this proved to be a landmark case in environmental legislation as it established the principle of absolute liability, which involves holding the industry dealing in hazardous substances absolutely liable for all damages caused by its faulty operations.

Indian Council for Enviro-Legal Action v. Union of India and Ors. (2011)

In this case , Heavy chemical industry plants were being operated in the Udaipur district of Rajasthan, producing dangerous chemicals like oleum and the “H” acid. The petition was filed to prevent and remedy the pollution caused by them.

The court condemned the pollution caused by the industrial company Hindustan Agro Chemicals Ltd. and imposed a heavy fine of almost Rs. 38 crores for remedying the environmental damages caused.

Vellore Citizens Welfare Forum v. Union of India and Ors. (1996) 

In this case , large-scale pollution was being caused to River Palar in Tamil Nadu due to the discharge of untreated waste by the nearby industries into it. Moreover, over 35,000 hectares of agricultural land had become unfit for cultivation. A Public Interest Litigation was filed against the same.

The court admitted that on one hand, the industries were contributors to the development and a source of employment to thousands of people but on the other, they were the cause of environmental degradation. Therefore, it imposed a fine of Rs. 10,000 on them and emphasized the setting-up of a Green Bench in court to deal with environmental cases in a speedy manner.

Mining in Aravalli hills range banned

The court has emphasized the need to protect the Aravalli hills, one of the few non-concrete areas left in the National Capital Region. Mining activities being undertaken here were banned in the case of M.C. Mehta v. Union of India and Ors. (2004).

M.C. Mehta v. Union of India and Ors. (2004)

The petition, in this case , was raised against mining activities 5 km away from the Delhi-Haryana border and the Aravalli hills area, which was causing environmental pollution due to the blasting operations involved.

The court held that the Aravalli hill range had to be protected at any cost and so prohibited any mining activities in the area. It appointed a Monitoring Committee to oversee the restoration of the environment quality.

Freedom from noise pollution : another component of Article 21 

In this fast-paced, chaotic urban world, the noise has become a major deterrent to a peaceful and healthy lifestyle. The huge public loudspeakers, noisy firecrackers, and even the incessant honks of vehicles on the road have become a source of great annoyance and also of serious health hazards. In the Re: Noise Pollution case (2005), the court addressed the issue of noise pollution and moved a step towards controlling it.

Re: Noise Pollution case (2005)

In this case , a petition was filed against the use of loudspeakers in religious congregations, political rallies, social occasions, etc. and the use of firecrackers which created a lot of noise pollution and disturbance. This was in the wake of a thirteen-year-old rape victim’s cries for help going unheard due to the blasting of music on loudspeakers in the locality.

The court acknowledged the grave adverse effects of loud noise and gave certain directions to prevent the same-

• Prohibition of bursting noisy firecrackers at night.
• Fixation of cap on the noise levels of loudspeakers.
• Prohibition of honking vehicles in residential areas at night.
• Spreading awareness about the hazardous effects of noise pollution.
• Directing the state to confiscate loudspeakers operating beyond permitted noise limits.

The environmental-pollution situation probably stands on a better legal platform than it did a couple of decades ago, but there is still a very long way to go in its implementation if we want to save the Earth in the face of alarming climate change statistics.

Prisoner’s rights and Article 21 of the Indian Constitution

Fundamental Rights form the basis of human existence and are not denied to anyone except under special circumstances. A person convicted of a crime too, therefore, is not deprived of his Fundamental Rights. Restrictions are usually placed on a criminal’s movement, the practice of the profession, etc. but the Right to Life and Personal Liberty is one right that is not snatched from him, except through procedure established by law (for eg. a death sentence). What constitutes the Right to Life and Personal Liberty of a convict? We shall examine that below.

Right to free legal aid

Article 39A of the Constitution provides that the State must secure a proper legal system based on the equal opportunity by offering free legal services to people (in the form of lawyers to represent them in a trial), in order to ensure that no one is denied justice due to his economic weakness. This is in consonance with Article 14 which provides equal protection before the law and Article 22(1) which states that every arrested person must get the chance to be represented by a legal practitioner of his choice.

Hence, this right helps to ensure one of the most essential elements of justice – that it is made accessible to all.

Right to a speedy trial

Right to speedy trial means that the accused should be put under trial as soon as possible to ascertain whether they are guilty or not. It safeguards against the accused being put into prison for a long time with no foreseeable date in the near future to face trial. It is available to the accused at all stages including investigation, inquiry, trial, appeal etc. This right is based on the principle which says that “justice delayed is justice denied.” This right was discussed by the court in detail in the following case.

Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar (1979)

In this case , a petition for a writ of habeas corpus was filed by a number of undertrial prisoners who were in jail in Bihar for years, awaiting their trial.

The Supreme Court held that though the right to a speedy trial is not specifically listed as a Fundamental Right in the Indian Constitution, it is implicit in the broad scope of Article 21. Speedy trial is the essence of criminal justice and hence, no procedure which does not ensure a reasonably quick trial could be “reasonable, fair or just.” Thus, the Bihar Government was ordered to start the trials of the prisoners as soon as possible.

Right to fair trial

A fair trial is a trial characterized by the complete impartiality and fairness of judges during the hearings. What use is the trial for the accused if the people making the decisions are inherently biased towards them?

Every person undergoing a trial should be given a fair chance, so as to ensure the application of fundamental elements of human rights and proper administration of justice. It forms part of International Law as well, given under Article 10 of the Universal Declaration of Human Rights.

The qualitative difference between a speedy trial and fair trial

Speedy trial and fair trial are alienable elements of the judicial process and must go hand-in-hand for the best-possible administration of natural justice. Every party to a case has the right to get a reasonably quick dispersion of justice as well as fair treatment and decision by the court.

However, there does exist a qualitative difference between these two elements. Seen at face-value, we can say that the principle of fair trial holds dearer value in the judicial process, as its denial would mean a direct snatching of the person’s right to be properly examined before being declared guilty. Justice must not only be done but also clearly appear to be done, and hence, the principle of fair trial must be followed at all times.

Constitutionality of a death sentence

The death sentence is a type of punishment awarded to criminals who have committed the grossest or serious offences. Oxford Dictionary defines it as the “legally authorized killing of someone as punishment for a crime.” But, does that mean that the State can take the life of a person as per its will? Doesn’t that completely nullify the person’s Right to Life?

The constitutional validity of a death sentence has been much discussed and debated, with many arguing that it is inhumane, that it violates the Fundamental and Human Rights, or that the ‘eye for an eye’ ideology behind it achieves no purpose in law and justice. Take a look at this landmark case.

Bachan Singh v. State of Punjab (1980)

In this case , Bachan Singh was convicted of the murders of three people and sentenced to death by the Sessions Judge, which was confirmed by the High Court. Bachan Singh appealed whether the facts of the case fell in the category of “special reasons” to warrant the death penalty.

The court upheld the constitutional validity of the death penalty saying that it did not violate Articles 14, 19 and 21, but reiterated that it could only be awarded in the “rarest of rare” cases, and not as a substitute for life imprisonment.

Thus, while capital punishment is a very harsh punishment, it is essential in the grossest and most serious cases like the murder of several persons, a brutal rape, etc. to properly administer justice and act as a deterrent in society. Its constitutional validity has been upheld by the Supreme Court. However, a high burden must be placed on the judge to duly consider and be satisfied with the awarding of a death sentence.

Public hanging

Public hanging means the execution of a convict by hanging in a public space where the members of the general public are allowed to attend voluntarily. While today they are regarded with a general distaste, public executions used to be more commonplace earlier as they acted as a strong deterrent for others, showing the power of the State to deal with unfavourable elements of society.

In India, convicts have a Right against Public Hanging as part of their Fundamental Right to Life, due to the barbaric nature of such an execution. This was established in the Attorney General of India v. Lachma Devi and Ors. (1985).

Attorney General of India v. Lachma Devi and Ors. (1985)

In this case, Lachma Devi set her daughter-in-law Pushpa on fire due to bad relations and dissatisfaction with the dowry brought by her, causing her death. She was sentenced to death by public hanging in a place like Ramlila Maidan by the Rajasthan High Court. An appeal was filed by her against this decision.

The bench condemned public hanging as being unconstitutional and grossly violative of Article 21 of the Constitution, thus deleting that order of the High Court.

Thus, while a death sentence remains a method of punishment in the most serious crimes, it need not be taken to the extent of a public hanging to further humiliate the convict and cause turmoil in society.

Right against delayed execution

The Apex court has ruled that an unreasonable and undue delay in the execution of the sentenced person is akin to torture and is in violation of the Right to Life. The Supreme Court is further of the opinion that delay in execution is enough grounds for commuting the punishments to, say, a life sentence. This is because an unduly delayed execution means the distortion of proper justice and causes great psychological distress to the convict, which is unnecessary.

Police atrocities and custodial death 

Police are one of the most necessary institutions of a State as it is the acting arm of law and legislation. Police keep a check on unwanted activities and ensure order in society, for which it is given considerable powers. 

However, sometimes, certain members of the police get caught up in the power and try to take undue advantage of it. They cease to abide by the law and instead, take it in their own hands. It is a sad sight to see the very guardians of law compromising it – leading to cases of police brutality and atrocities.

Police officers sometimes unfairly arrest individuals, beat and torture the prisoners, and commit various other crimes. One example of such a situation was seen in Smt. Nilabati Behera Alias Lalita Behera v. State of Odisha and Ors. (1993).

Smt. Nilabati Behera Alias Lalita Behera v. State of Odisha and Ors. (1993)

In this case , the 22-year-old son of the petitioner was taken into police custody. The next day, his dead body was found on the railway tracks. The death was unnatural as the body was found with multiple injuries. The petitioner alleged custodial death.

The court confirmed the allegation and awarded compensation to the petitioner. It directed the state to ascertain the responsibility of the officials involved in the death and take appropriate actions against them. It upheld the Right to Life of accused under trials and persons in custody and the fact that no police official can deprive someone of their life and liberty without a lawful procedure.

Trial of rape cases

Rape is one of the most horrific crimes of all, and one of the few crimes for which no reason given can be considered justified by any member of society. Unfortunately, it is also a crime that threatens to never die in our country, with India being the most dangerous country for women according to a Thomson Reuters Foundation report in 2018. Government data says that over 90 rape cases are reported in the country every day – but the actual number is probably much higher.

Rape has remained a grossly under-reported crime, which can be attributed to the psychological stress and fear of ostracisation by society in the minds of victims and their families, and also to the long-drawn, painful and often unsatisfactory trial procedure. Over time, efforts have been made by the courts to enable dispersion of easier, quicker and greater justice to victims of rape.

It was in the brutal rape case of Delhi Domestic Working Women’s Forum v. Union of India (1995), that the court laid down parameters to assist the victims of rape in the trial process.

Delhi Domestic Working Women’s Forum v. Union of India (1995)

In this case , a Public Interest Litigation was filed against the rape of six women travelling in a train from Ranchi to Delhi, by seven army personnel.

The Court recognised the defects in the system where complaints are not handled properly and victims are often humiliated by the police and suffer grave psychological stress. The parameters laid down include-

• Provision of legal representation to the victims from the moment they arrive at the police station for the complaint, and the duty of the police to inform them of this right.
• Maintenance of anonymity of the victims as far as necessary.
• Establishment of Criminal Injuries Compensation Board to award compensation to victims even before conviction of offender takes place.

Prevention of sexual harassment of working women

When we think of a good life, it probably includes living with respect in the community without any unfavourable actions taken by others against you. However, in this patriarchal society, women are often treated as sexual objects meant for the pleasure of men, and it leads to unwanted sexual advances towards them. 

Women’s safety outside their homes has been one of the reasons why even in the urban areas in modern times, there is a dearth of women in the workspace. For a woman, the Right to Life includes the right to not face any sexual harassment while they go out to earn a living and achieve their professional goals – thereby enabling them to exercise their right of practising any profession, occupation or trade. 

Keeping this issue in mind, various provisions have been ordered by the Court and implemented by the Government to prevent sexual harassment of women, which can be mainly credited to the following landmark case.

Vishaka and Ors. v. State of Rajasthan and Ors. (1997)

In this case , a writ petition was filed to prevent the hazards to the safety of working women in the wake of an alleged gang rape of a social activist in a Rajasthani village. It contended that sexual harassment faced by women in the workplace was in violation of the Fundamental Rights granted in Articles 14, 15 and 21.

The court defined sexual harassment and laid down certain guidelines for prevention of sexual harassment in the workplace, which include (but are not limited to) the following-

• Duty of employers and responsible people to prevent sexual harassment.
• Duty of employers to provide a safe and appropriate working environment for women.
• Establishment of a complaint committee (headed by a woman) and a complaint mechanism to redress grievances.
• Rules for disciplinary actions to be taken against misconduct.
• Spread of awareness regarding the rights of working women.

Eve-teasing

Unwanted remarks and advances towards women don’t just stop at closed professional or domestic settings. Unfortunately, they also occur in public places like trains, metros, and even streets, and this is known as Eve-teasing. While eve-teasing has often been dismissed as harmless or less serious than other issues, it acts as a big blot on women’s safety and can lead to violent situations as well. Let’s examine the case of Dy. Inspector-General of Police and Anr. v. S. Samuthiram (2012), which led to the formation of guidelines to prevent and punish eve-teasing.

Dy. Inspector-General of Police and Anr. v. S. Samuthiram (2012)

In this case , a police personnel eve-teased and misbehaved with a woman who was waiting with her husband at a bus station in Tamil Nadu.

The guidelines laid down by the court include (but are not limited to) the following-

• All governments to ensure the presence of plain-clothed female police officers in public places.
• Installation of CCTV cameras in strategic locations.
• Orders to persons in-charge of public institutions and public service vehicles to immediately report any acts of eve-teasing to the police, failure of which would lead to adverse consequences.
• Establishment of Women Helpline in all states and union territories.

While noteworthy guidelines have been formulated by the court for both, sexual harassment and eve-teasing, the fact that these horrid practices still prevail questions the quality of their enforcement. One gets no points for observing that women’s safety is still a gigantic problem in our country, and it is the responsibility of law and order to buckle up and ensure that the unequally-placed half of the population gets the right environment to live and flourish, which has been long overdue.

Emergency and Article 21 of the Indian Constitution

Emergency refers to a situation where immediate action is required by the authorities in the State to deal with dangerous conditions involving internal rebellion, external aggression or financial bankruptcy. In India, an Emergency can be any of these three types-

• National Emergency
• Failure of Constitutional Machinery in a state (hence, President’s rule)
• Financial Emergency

In a situation of Emergency, the liberties of the people may be temporarily suspended, with the reasoning that the State needs to prevent mayhem and effectively cope with the dangerous situation. Article 359 of the Indian Constitution empowers the President to suspend the Fundamental Rights of the people given in Part III for a specific period of time. However, this is not without exceptions.

Article 21, granting the Right to Life and Personal Liberty, is one of the only two rights that can not be suspended by the authorities even in case of an Emergency. It says that no person is deprived of his life or personal liberty except through a procedure established by law, and this procedure must not be arbitrary or unreasonable (as recognised in the Maneka Gandhi case).

The fact that Article 21 cannot be suspended ensures that people are not exploited during times of stress and danger and that they still possess their basic and cherished human rights.

This provision of non-suspension of Article 21 was brought about by the 44th Amendment to the Constitution in 1978 , which amended Article 359 to exclude Articles 20 and 21 from its scope.

Right to education : Fundamental Right under Article 21A of the Indian Constitution

Life without education remains to be a mere animal existence, as it is education that broadens the horizons of a person’s mind, making him capable of not only earning a livelihood but also of achieving happiness and respect and making a mark for himself in the world. The Right to Education in India was added under Article 21A of the Indian Constitution by the Constitution (Eighty-Sixth) Amendment Act, 2002 . This Article provides free and compulsory education to all children in the age group of six to fourteen years (6–14) as a Fundamental Right.

Two cases had an important bearing on the establishment of the Right to Education. We shall take a look at them below.

Miss Mohini Jain v. State of Karnataka and Ors. (1992)

In this case ,  a student of a Government Medical College in Karnataka was refused admission as she could not afford to pay the Rs. 60,000 capitation fee which was charged from the students not belonging to Karnataka. She filed a petition against this action.

The High Court declared that it was illegal to charge capitation fees from students under any circumstances. Moreover, it acknowledged that education was what ensured a life of dignity and happiness to a person and not transforming the right to education mentioned under Article 41 of Part IV of the Constitution into a Fundamental Right would defeat its purpose and also keep all existing Fundamental Rights beyond the reach of the illiterate. Thus, it declared that Right to Education is a part of the Fundamental Rights.

Unni Krishnan, J.P. and Ors. Etc. v. State of A.P. and Ors.

The petition in this case was filed by certain educational institutions in Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu challenging the decision made by the court in the above case of Mohini Jain v. the State of Karnataka (1992) . They claimed that a person had the right to open an educational institution with a profit motive and if that institution was self-financed, then the quantum of fees charged by it would be at the discretion of the institution and not the State.

It was held that every Indian citizen has a Fundamental Right to Education. No person can be deprived of his or her education by the State. This right includes free education until the person attains 14 years of age and thereafter, it will depend on his or her personal economic capacity as well as that of the State.

It is clear that the recognition of Right to Education as a Fundamental Right was mainly brought about by the above-mentioned cases, which ultimately led to the Eighty-Sixth Amendment.

Conclusion 

The Right to Life and Personal Liberty has a wide ambit which is only growing over time. There has been increasing awareness about the various aspects of a person’s life which he or she is entitled to control and which would, thus, facilitate the enhancement in quality of his or her life. This Right has been described as the “heart and soul” of the Constitution of India by the Supreme Court and certainly proves to be so – representing the very basic necessities of human life.

• Durga Das Basu, Commentary on the Constitution of India, 9th ed., Vol 5 (Articles 20 to 24)

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Indian Journal of Law and Legal Research ISSN: 2582-8878 | PIF: 6.605 Indexed at Manupatra, Google Scholar, HeinOnline & ROAD

Indian Journal of Law and Legal Research

• Apr 12, 2022

A Study On Expanding Horizons Of Article 21 Of The Constitution Of India

Kavyansh Jain, BBA LLB(H), UPES, Dehradun

INTRODUCTION

Everyone has right to life, liberty and security of person including the right to privacy. This right is embedded in Article 21 of our Constitution. Article 21 reads:-

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

It shall not be exaggeration if we call Article 21 of the Constitution to be heart of the Constitution. Article 21 is the most progressive provision of our constitution which has changed its horizons with passage of time. The Article 21 of the constitution though secures two fundamental rights i.e. Right to Life and Right to personal liberty however, its expanding horizons have evolved various other rights which fall within the purview of right to life and right to personal liberty. With the changing horizons it includes right to live with human dignity, right to reputation, right to livelihood, right to work, right to shelter, right to social security and protection of the family right to pollution free environment, right to health and medical care, right to know, right to privacy etc. The Hon’ble Apex Court from time to time has defined the rights included in right to life and personal liberty and included all above rights in various pronouncements.

• Volume IV Issue II

Abbreviation : IJLLR

ISSN: 2582-8878

Website: www.ijllr.com

Accessibility: Open Access

License: Creative Commons 4.0

Submit Manuscript: Click here

​All research articles published in The Indian Journal of Law and Legal Research are fully open access. i.e. immediately freely available to read, download and share. Articles are published under the terms of a Creative Commons license which permits use, distribution and reproduction in any medium, provided the original work is properly cited.

Disclaimer:

The opinions expressed in this publication are those of the authors . They do not purport to reflect the opinions or views of the IJLLR or its members. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the IJLLR.

Environmental Disputes Settlement And Article 21 Of Indian Constitution

• Author(s): Journal of Legal Studies and Research
• Publication Date: April 21, 2017
• Tags: Article 21 of Indian Constitution , Environmental Disputes Settlement

Written by Arup Poddar,

Professor of Law, WBNUJS, Kolkata

Environmental protection can be done with the help of implementation of various provisions of environmental statutes available in India. However, because of lack of declaration of right to pollution free environment as a statutory right, the Indian courts struggled to find out that how this right, if not within any statute in India, at least can be brought within the purview of Article 21 of Indian Constitution. The struggle ended in the year 1991 with the decision of Subash Kumar case and was further nurtured in number of subsequent cases. The Supreme Court of India became proactive to protect this right to pollution free environment as fundamental right and settled many environmental disputes while analysing Article 21 of the Indian Constitution. The present article, aims to analyse the situation that how it was necessary to incorporate the right to get pollution free environment within the scheme of Article 21 of Indian Constitution successfully and by this declaration the environmental disputes settlement will became easy and effective.

KEYWORDS: Right to life, right to pollution free environment, state responsibility, forest, wildlife, water pollution,

INTRODUCTION

In India, there was no specific legislation on environmental protection till 1986, because immediately after the commencement of the Indian Constitution in the year 1950, I could see only Indian Forest Act, 1927, which again is a legislation to control the collection of revenues from forest resources. Prior to 1976 the items like wildlife and forest were placed in the state list, however, after the 42 nd Amendment to Indian Constitution in the year 1976 those two items have been placed in the concurrent list. It is interesting to note here that, after perusal of few initial legislations on environmental protection I could find a very specific legislation in the name of the Wild life (Protection) Act, 1972 [1] . Though, this legislation only deals with the measures to be initiated for the protection of wild animals and also declare certain animals as endangered, as they are rare species in India and at the same time few medicinal plants, which also required some sort of protection, all have been enlisted in the schedule of above-mentioned wildlife legislation. In the year 1974, almost 12 states [2] in India passed a resolution in the State assembly and requested the union Parliament to enact a law on control of water pollution. The union Parliament considered those resolutions and enacted the Water (Prevention and Control of Pollution) Act, 1974 under Article 252 clause 1 of Indian Constitution. The item ‘Water’ comes under entry number 17 of the state list for regulation of water bodies, drinking water, irrigation, et cetera. The entry number 56 of list one also mentions water for the purpose of River boards and River valleys.

It was a moral obligation for India to bring policy and legislation for the purpose of protection of environmental resources, after participating in the Stockholm Declaration, 1972. What I find that India enacted a law in the year 1981 under Article 253 of Indian Constitution to control the atmospheric pollution. The law was made in the name of the Air (Prevention and Control of Pollution) Act, 1981 [3] . Again, I think all will agree that this legislation was also not our law to provide also protection to the environment, because it deals only with protection of the atmosphere.

In the year 1980 the union Parliament enacted a law in the name of the Forest (Conservation) Act, 1980 [4] . This law was brought to control the functions of the states in India, because the forest coverage of India was shrinking considerably as there was no check and balance from the union government over the state government, when the state government decides to convert the forest land for non-forest purposes. I find this as a good to retain the forest coverage essential for the purpose of preservation and conservation of nature. What I have found after reading Section 2 [5] of the above-mentioned Act, that for the purpose of converting the forest land for non-forest purposes, now the state government will have to apply to the Ministry of environment and Forest, government of India for permission.

Meanwhile, a tragedy which was written in the fate of many people was finally expressed through the Bhopal gas tragedy in the year 1984 [6] . And immediately within a year in 1985 another not very serious but a tragedy occurred as Oleaum gas leak [7] incident in New Delhi. In both the cases, I feel that the kind of pollution which affected life and property of the nation is the example of atmospheric pollution. Therefore, in spite of having legislation on air pollution of 1981, the law was not sufficient to control the above-mentioned serious incidents of atmospheric pollution.

Finally, in the year 1986 union Parliament enacted a law in the name of the Environment (Protection) Act, 1986 [8] . After going through the Act and provisions thereof, I find that this Act/Legislation can be considered as efficient legislation to protect and preserve the wholesome environment. I also find that this legislation has been enacted under the provisions of Article 253 [9] of Indian Constitution and I could relate this legislation with the promises made by India during Stockholm conference of 1972 [10] , that India will bring the policy and legislation to control the environmental pollution. Now, I can find that a compact legislation to protect the wholesome environment has come up in the year 1986, but how far Indian Constitution through its provisions protect the rights of the citizens against the degradation of the environment, still remains a vital question.

INDIAN CONSTITUTION AS A SILENT SPECTATOR OF ENVIRONMENTAL DEGRADATION

Schedule seven of the Indian Constitution from the very inception included the items, such as, water, wildlife, forest, et cetera. In fact, I find that part III of the Indian Constitution had no direct fundamental rights which could declare that right to clean environment is a fundamental right. Though, rights like, right to equality, right to life, they are strong enough to suggest for right to pollution free environment, but there was no such direct expression of right made in the Constitution right from its inception. Even I have seen that part IV of the Indian Constitution was silent about directly giving any directive principles of state policy on conservation and preservation of environment till the year 1976. It was the 42 nd amendment [11] to Indian Constitution which inserted two important Articles, for example, Article 48 A [12] and Article 51 A (g) [13] to the directive principles of state policy. However, surprisingly I see that Article 47 [14] of Indian Constitution though speaks of public health and safety. Again, the Article 47 only indirectly recognises that the public health cannot be promoted in an environment which is full of pollution.

Why I say that the Indian Constitution became a silent spectator of environmental degradation, that is because of twofold reasons, first, when massive environmental disaster occurred in India, for example, Bhopal gas tragedy, the Indian courts could not find any specific provisions from the Indian Constitution about right to pollution free environment for its citizens and also legislations in India had ever conferred a statutory right to persons/citizens in India about right to pollution free environment and second, Article 48 A is a part of directive principles of state policy, is merely a set of guidelines, which the states will have to adopt at its discretion, which I consider at its whims and fancies, therefore, the guideline is not a mandatory one that any machinery can pressurise the state to consider the right as right to pollution free environment to its citizens. Moreover, till today Article 21 of Indian Constitution is a silent spectator and it is the honourable Supreme Court and high courts in India analysed the above-mentioned article and gave life that it has another responsibility to its citizens that they are having right to pollution free environment.

I have made my observations, that most of the environmental Justice that could be possible to deliver by the Indian judiciary is because of interpretation of various articles from the Indian Constitution. As Right to Education is not only a fundamental right but also statutory right as well, but this was not possible and was not so easy to be declared so without the continuous reasonable intervention made by the Indian judiciary. What I find that it was a tireless effort which was initiated by the Indian judiciary in number of relevant case laws and provided its valuable judgements, by which ultimately the same right gained a status of fundamental and statutory right. Then, why not also for right to clean environment.

ENVIRONMENTAL DISPUTE SETTLEMENT BY STATE HIGH COURTS THROUGH ARTICLE 21

Public interest litigation is one of the important mechanisms in India which has been used by citizens to come up with the environmental Justice. This mechanism is not only helpful to the citizens to appear before the courts for easy access of Justice, but also the judiciary, in particular Writ Courts played a vital role for environmental Justice delivery system. The State high courts in India can entertain any petition with relation to public interest litigation under Article 226 and issue Writs.

What I have seen that High Court came forward to analyse the scope of Article 21 of Indian Constitution in the light of right to get pollution free environment rather than the honourable Supreme Court, though Supreme Court already decided many cases connected with the environmental jurisprudence by the year 1987, but the expansion of the meaning of the “Right to Life” was not done so properly.

One of the important cases, which I would like to mention here is the contribution made by the Andhra Pradesh High Court. In the year 1987 a writ petition was filed by Mr T Damodhar [15] (hereinafter the petitioner) before the High Court of Andhra Pradesh seeking orders to make the open space/public park free from any sort of private constructions. The case is connected with the master plan of the municipality and earmarking the open space/public space for public purposes only. However, the government of Andhra Pradesh allotted a portion of the open space, so earmarked, and given to life insurance Corporation of India for construction of residential houses. After some time the life insurance Corporation of India allotted a portion of the land from their original allotment to the income tax department again, for the construction of residential houses. The question is, if open space/public space is made for public purposes only, then whether allotment of a portion of the open space by the government of Andhra Pradesh to life insurance Corporation of India, can that be considered for public purposes?

When this case was filed, what I feel that at the time the concept of public trust doctrine was not at all available or applicable in India. Otherwise, that concept might have been taken into consideration to decide this case. However, after reading the case I found that the High Court of Andhra Pradesh meticulously examined the fact of the case and counter affidavits filed by the respondents. After examining the counter affidavits, the High Court found that not only the Hyderabad municipality, who has prepared the master plan, but also the government of Andhra Pradesh, life insurance Corporation of India and the Hyderabad Urban development authority all have accepted the fact that the land so allotted to life insurance Corporation of India for the purpose of construction of residential units are basically the land earmarked as open space/public space in the original master plan prepared by the municipality. Therefore, there is no contradictory opinion filed in the counter affidavit by the respondents that originally the land is earmarked for open space and that is also for public purposes. In this regard, in order to understand that the open space shall be utilised for public purposes only, the High Court went further to analyse the situation. After reading the judgement what I felt that the honourable High Court wanted to examine the sanctity of the open space, for example, if open space is for public purpose then allotting the land to those entities who will construct the residential houses cannot be called as for public purpose. Similarly, I also felt that the honourable High Court examined the purview of the open space as earmarked in the master plan that if the open space/public park is to be maintained efficiently then allotting the land for the construction of residential houses will no more serve the purpose of open space, because those constructions will slowly occupy the open space and continuously allotting the land finally will lead to no open space.

The High Court, before awarding the final judgement, analysed few international obligations for India and thereafter analysed the spirit of Article 21 of Indian Constitution. The High Court deliberated upon the very concept of Law and ecology and stated the variation in the concept of ownership. As I have already stated above that when this case was decided at the time public trust doctrine was alien to Indian judiciary, because the concept was adopted by the honourable Supreme Court only in the year of 1997 [16] . The concept of ownership as developed by the common-law countries are very specific and gives huge freedom to the original owner and the owner can decide how such property shall be utilised and for that purpose the freedom of owner cannot be challenged before any authority, though, unless such pattern of use of the property reasonably affects other neighbours/persons. What I feel that the honourable High Court brought this idea to show to the government of Andhra Pradesh that open space is not the property of the government and the common-law concept of ownership is not applicable that the government of Andhra Pradesh not only can change the temporary ownership in the name of life insurance Corporation of India and also can decide the way in which opens spaces can be utilised.

In order to support the above stand, the honourable High Court had taken the reference of Stockholm declaration 1972 and stated that various resources of nature not only be safeguarded for the purpose of meeting the need of the present generation, but also, they should be preserved efficiently for the future generation as well. Moreover, the honourable High Court also clarified a very important point that economic development of the nation can be well achieved with the help of proper planning and management. Accordingly, the court wanted to give a message to the government and municipality that allotting a portion of the land, which is earmarked for open space, to life insurance Corporation of India is very much against the terms of proper planning and management for economic development. It is contrary to such provisions.

According to me, the wonderful part the honourable High Court has efficiently pronounced is the description of Article 48 A and Article 51 A (g). The court not only pronounced the mandates of these two articles by describing the importance, but also linked these mandates with the present case and clarified that government of Andhra Pradesh, Hyderabad municipality and Hyderabad Urban development authority all are the example of state and as per the mandates of Article 48A, the state shall make all endeavours and efforts to protect and preserve the natural environment and for that purpose whatever the steps are to be taken and initiated, they should be reasonably planned and managed. Accordingly, for petitioner, the High Court stated that as per the mandates of Article 51 A (g), it is now the fundamental duties of the citizen that they should come forward not only to take participation in proper planning and management initiated by the state but also to point out the difficulties and irregularities, which will affect the preservation and promotion of natural environment.

Moreover, under the Indian Constitution, the municipality is considered to be a state having a mandatory function to perform for the preservation and conservation of natural environment. The 74 th Amendment [17] to Indian Constitution, 1992 has not only revived the status of state to municipality, but also declared various functions to municipality to perform as mandates of the Constitution of India. Therefore, it is quite surprising that in spite of having those mandates from the Constitution the municipality instead of raising objections against the state government of Andhra Pradesh about not to convert the open space for transferring the ownership of a part of that land in the hand of life insurance Corporation of India for the purpose of construction of residential units, the municipality agreed with such conferment of ownership and supported the stand of the government.

Now, I will come to the very specific area which is the subject matter of this heading, that is, Article 21 of Indian Constitution. The High Court stated that the above-mentioned two articles are sufficient enough to claim that common law concept of ownership, that is, the liberty and privileges given to individual ownership is no more functional in India and any space meant for public purposes there will be no question of individual ownership. Even if those ownerships are sanctioned by the state, those mistakes can be rectified by the court. The honourable High Court examined the scope of Article 21 of Indian Constitution and asserted that with the description of Article 48 A and Article 51 A (g) “ it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gift, without which life cannot be enjoyed ”.

Now, it is clear for me that till this case was decided by the Andhra Pradesh High Court in the year 1987, there was no such cases ever decided by the honourable Supreme Court while analysing the very scope of Article 21 of Indian Constitution. Therefore, I can assert that it is the state high court who for the first time recognised the importance of Article 21 and deliberated upon to bring the pollution free water and air under the right to life. I will bring here discussion that how the honourable Supreme Court first ever recognise the importance of Article 21 of Indian Constitution through its unique judgement. Before, I start analysing the judgement relating to environmental dispute settlement under article 21, it would be wise to state that the right to life and liberty as enshrined under article 21 of Indian Constitution has been analysed meticulously by the honourable Supreme Court and number of other rights which are related with right to life and personal liberty have been declared by the honourable Supreme Court. Therefore, now we can see that right to travel [18] , right to privacy [19] , right to speedy trial [20] , right to prisoners to interview [21] , right to fair trial [22] , right against torture and custodial violence [23] , right to free legal aid [24] , right to primary education [25] , right to health and medical care [26] , right to pollution free environment [27] , right to safe drinking water [28] , right of working women against sexual harassment [29] , right to a quality life [30] and right to family pension [31] have become integral part of right to life and personal liberty under article 21 of Indian Constitution. Now, I will analyse the judgement decided by the honourable Supreme Court to show how environmental dispute settlement has been handled under article 21 of Indian Constitution.

ENVIRONMENTAL DISPUTE SETTLEMENT BY SUPREME COURT THROUGH ARTICLE 21

I have observed that till 1991, the honourable Supreme Court was not very particular to come forward and protect the environmental concern in every aspect. The cases decided between 1985 to 1990 were entertained by the honourable Supreme Court under public interest litigation with the help of Article 32 of the Indian Constitution, which itself is a fundamental right. However, the claiming the right to pollution free environment within the ambit of Article 21 of Indian Constitution, still was not addressed by the apex court. It is not the case that the court was not aware of the different dimensions of Article 21, but various environmental statutes were being analysed by the Supreme Court for delivering environmental Justice. As I have already observed that there is no environmental legislation which confers to the people in India the right to environment as a statutory right, accordingly, the people in India would not approach before the court of law for requesting to issue directions to protect such rights, because of absence of the right in any environmental statute. Therefore, the struggle for bringing a right to pollution free environment under the purview of article 21 of Indian Constitution can easily be witnessed by the readers that how the apex court was making effort to explain and analyse further the very concept of right to life under article 21. There was another necessity for which the apex court was struggling hard to declare such a right as fundamental right because of the mass environmental disaster faced by the people in the city like Bhopal. It is also true that while declaring such a right as fundamental right will not completely eradicate pollution problem or larger environmental degradation issues, but the people will have recourse to the court of law easily not only for the protection of their fundamental right, once this right is declared as such, but also for the preservation and conservation of natural environment. An excellent effort was made by the honourable Supreme Court while analysing the ambit of Article 21 of Indian Constitution in Subhash Kumar case [32] .

In this case a public interest litigation was filed before the honourable Supreme Court to issue directions against the directorate of collieries and against the Tata iron and steel company, that is, TISCO, to stop industrial discharge into the River water of Bokaro. According to this petition, the main issue was concerned with prevention of River water pollution from industrial waste water. It is not the case that in the state of Bihar, there was no existence of state pollution control board, rather the concerned board was very much in its existence and could be witnessed from the incident of frequent visitor to the devices of the industry and collection of samples and analyses of the samples thereof. Since, the petitioner filed the case before the honourable Supreme Court under article 32 of the Indian Constitution, hence, the apex court had to look into the serious issues of water pollution problem.

The petitioner claimed that, it is not only the industrial waste water which is polluting the River water of Bokaro, but also along with the waste water the coal particles are also being deposited on the agricultural land including the petitioner’s land and this incident making the agricultural land infertile, because of presence of Carboniferous layer on such land. Accordingly, there is loss of livelihood issues to the farmers and this loss is not temporary but for long period of time as the removal of presence of coal particles over the agricultural land will not be that easy.

The petitioner also claimed that the pollution is happening not only because of the inefficient and unprofessional approach from the Tata iron and steel company including the casual approach of directorate of collieries, but also it is gross failure of statutory duty on behalf of the state of Bihar state pollution control board. In this regard, to prevent the agricultural land pollution with the help of coal particles, the petitioner requested the apex court to allow him to collect these particles from the outlet of the industrial waste water, so that before these particles approach over the agricultural land, they are being collected by the petitioner.

In order to support problem of River water pollution, the petitioner mentioned the importance of the preamble of the Water (Prevention and Control of Pollution) Act, 1974 and stated in the petition that the above legislation is enacted only for the purpose of prevention and control of water pollution. For the purpose of prevention and control of water pollution, the statute also establishes an authority in the name of central and state pollution control board respectively. Under 17 of the above legislation, the state pollution control board has been imposed with various important functions to make the concerned board efficient in the administration of prevention and control of water pollution. Similarly, Section 24 of the above legislation defines the prohibited functions and it is the board, in order to exercise its statutory duties, to look into whether any polluter/industry discharging those pollutants, which are prohibited activities. According to the petitioner the Tata iron and steel company has violated the provisions of Section 24 of the above-mentioned legislation.

While describing the extent of pollution, the petitioner the process that the coal washeries within the Tata Iron and Steel Company industrial premise, after extracting the coals, they are broken into graded pieces to make them further ash free, so that these coal particles can be utilised by the Steel Plant for metallurgical processes. To make the coal particles ash free a method is applied which is called ‘Froth Floatation Process’ and in this process diesel oil and pine oil including certain harmful chemicals are used. Once the coal particles are treated with this above process, to make these particles free from those oil and harmful chemicals, gallons of fresh water are applied to these coal particles. In this process, not only the graded pieces of coal particles are produced, but also many graded pieces of coal particles are further broken into tiny particles, which are also ash free coal particles. These tiny particles which are ash free has exorbitant market value, because these are used by fuel industry. The fresh water applied to coal particles are not only carrying with themselves harmful chemicals and other processed materials, which are though sent to settling tanks, but also most of the untreated trade effluents coming out from the industrial outlets mixes with the River water of Bokaro and flows over the nearby agricultural land as well. The petitioner claimed that it was the statutory duty of the state pollution control board to inspect the premises of the Steel industry and should have ensured that untreated trade effluents should be sent 1 st to settling tanks and after depositing of the coal particles in the said tanks the treated trade effluents should have been released outside the industry premises. If there are not sufficient settling tanks, the pollution control board should have instructed the steel plant to dig a few more settling tanks within the premises to treat the trade effluents before discharging such influence outside the premises. Based on these developments, the petitioner was seeking relief while filing this public interest litigation before the apex court.

The counter affidavits filed by the state of Bihar and state pollution control board are interesting to observe. The state pollution control board has clearly mentioned in its counter affidavit that frequent inspection to industrial premises have been made. While claiming so the concerned board also expressed its views while reading out the provisions from Sections 25 and 26 of the Water Act 1974. The board has stated that Section 25 and Section 26 of the Water Act, 1974 clearly instructed that the industries if they are renovating their discharge outlet or making any modification in the existing industrial outlet or bringing any new construction within the existing industrial premises in all these cases the concerned industry must apply for no objection certificate to the pollution control board. In this regard, since, neither there was any such application made by the industry for modification or innovation of any existing outlet nor even there was any application regarding construction within the existing premises, hence, it is the state pollution control board who requested the industries to construct two more settling tanks because of enhancement of volume of coal particles and use of froth floatation process and equally application of use of enhanced fresh water resources. Similarly, the industry accepted the directions of the state pollution control board and they were about to construct two more settling tanks within the premises, but before that the petition was filed before the apex court. Moreover, in the counter affidavit the pollution control board clarified and emphasised upon that the River Bokaro remains dry for nine months and there is no question that the industrial waste water including sludge was carried away by the water of River Bokaro and polluted the downstream villages.

From the counter affidavit of the Tata iron and steel company, it was revealed before the honourable Supreme Court that Subhash Kumar was earlier associated with this company and used to collect coal particles for his own business. Since, Mr Subhash Kumar could not get the contract for the subsequent years, therefore, he filed this case. Because, when he came to know that his contract has been terminated, then he went to meet with the management of the Tata steel and Iron Company, however, there was failure from sis part to convince the management of the Tata steel and iron company to take his contract back. Out of personal interest and vengeance Mr Subhash Kumar has filed this case and it is nothing but abuse of article 32 of Indian Constitution. Moreover, it was revealed before the Supreme Court that a criminal case is pending to be decided against Mr Subhash Kumar regarding transfer of title deed of the agricultural land.

The Supreme Court has taken the note of pollution aspects and found that there is no such considerable amount of pollution, for this, the present writ petition should be dismissed, moreover, the petitioner has filed this case not as public but private interest litigation to settle the personal score with the company. Finally, the apex court dismissed the petition. However, before concluding the judgement the honourable Supreme Court made an Obiter that article 21 of Indian Constitution proclaims right to life which also includes right to get pollution free water and air.

Many cases approached before the Supreme Court for environmental dispute settlement and the apex court with the help of article 21 of Indian Constitution delivered environmental Justice.

OTHER IMPORTANT CASES ON ARTICLE 21 AND RIGHT TO POLLUTION FREE ENVIRONMENT

Environmental dispute settlement has been done comprehensively by the honourable Supreme Court in number of cases while raising the legal implications under Article 21 of Indian Constitution. Settling the environmental dispute by the Supreme Court started basically from the Shriram fertiliser [33] case, however, in Subhas Kumar [34] case the Apex Court explained that the right to get pollution free water and air is fundamental right under the right to life as enshrined under article 21 of Indian Constitution. Thereafter, the honourable Supreme Court did not look back and proceeded to enlarge the scope of right to environment in multi facet way. Few important cases dealing with environmental dispute settlement and proclamation of right to environment, under article 21 of the Indian Constitution, are given below.

In M.C. Mehta v. Union of India [35] case, there was claim of money in the form of compensation to be paid to those persons who suffered harm because of oleum gas leak from one of the plants of Shriram fertilizer. The opposite Council stated that for fixing compensation the petitioner may go to apply before the civil court. However, the apex court clarified that since the present case involves substantial question of law to be decided in the light of article 21 of Indian Constitution, therefore, this court can issue directions to authorities for the protection of fundamental right.

In Unni Krishnan V. State of Andhra Pradesh [36] case, the apex court, while analyzing one of the MC Mehta cases of 1988, stated that article 21 of Indian Constitution is the genesis of many human rights jurisprudence, in particular, right to pollution free environment.

In Consumer Education and Research Center V. Union of India [37] case, the honorable Supreme Court while taking reference from Kanpur Tanneries case (AIR 1988 SC 1037) stated that right to life under Article 21 includes right to clean and healthy environment.

In Vellore Citizens Welfare Forum v. Union of India [38] case, the apex court clarified the constitutional and statutory mandates for pollution free environment and stated that individual’s right to clean water, fresh atmosphere should be protected by the provisions of Constitution and environmental legislation. Common law provides an inalienable right to clean environment. Right to life and personal liberty as guaranteed under article 21 of Indian Constitution, also includes right to fresh air.

In K.M. Chinnappa and T.N. Godavarman Thirumalpad V. Union of India [39] case, the honourable Supreme Court while defining the ambit of full enjoyment of life clarified that, though article 21 protects right to life as fundamental right, but the meaning is more than that, it also speaks of right to life with human dignity, therefore, it includes ecological balance, pollution free water and air, sanitation, protection and preservation of natural environment, without which life cannot be enjoyed in its full extent.

In N.D. Jayal V. Union of India [40]  case it was stated by the apex court that article 21 of Indian Constitution makes a balance between right to development and right to pollution free environment.

In In Re: Noise Pollution [41]  case it was stated by Supreme Court stated that if a person is exposed to high level of noise with the help of amplifiers, which creates noise in the nature of unbearable, unpleasant and obnoxious type, will violent the right to comfortable, peaceful and pollution free life as enshrined under article 21 of Indian Constitution.

In Tirupur Dyeing Factory Owners Association V. Noyyal River Ayacutdars Protection Association [42] case, the honourable Supreme Court asserted that it is compulsion for the state to make the River water pollution free as per the mandate of article 21 of Indian Constitution, accordingly, Noyyal River to be free from pollution is available under Article 21.

In Court on its Own Motion v. Union of India [43] case it was stated by the Supreme Court that the right to life as guaranteed under article 21 of Indian Constitution includes right to live with dignity, safety and in a clean environment.

In T.N. Godavarman Thirumulpad V. Union of India [44] case it was accepted by the SC that right to live in a clean and pollution free environment can be vitiated if the forest lands are degraded and deforestation is promoted. Therefore, as per the mandates of article 21 of Indian Constitution protection and preservation of forest is an essential element under ‘right to life’ for maintaining clean and pollution free environment.

In Gulf Goans Hotels Company Ltd V. Union of India [45] case the honorable Supreme Court stated that “ Violation of Article 21 of Constitution on account of alleged environmental violation could not be subjectively and individually determined when parameters of permissible/impermissible conduct were required to be legislatively or statutorily determined ”.

In Hindustan Zinc Ltd. V. Rajasthan Electricity Regulatory Commission [46] case it was stated by Supreme Court that right to live with healthy life guaranteed under article 21 of Indian Constitution is nothing but right to live in a pollution free environment. Energy generated from renewable sources is the best example of environment which is pollution free.

It is clear now that Indian Constitution is pro towards declaring and protecting the right to development and right to pollution free environment. Right to pollution free environment is not a statutory right, yet, in India. However, right to pollution free environment, right to clean water and fresh air, right to clean environment, et cetera are the integral rights declared under right to life and personal liberty in article 21 of Indian Constitution. Article 48 A and article 51A (g) of the Indian Constitution play vital role in preservation, conservation and protection of environment in India. From the above-mentioned cases, it can be concluded that on the one hand when the courts in India are settling the environmental disputes with the help of constitutional mandates and environmental legislation for successfully delivering environmental Justice, on the other hand, making a balance that violation of fundamental right or right to pollution free environment cannot be claimed whimsically, that is, unless it is proved that the parameters fixed under environmental Law or constitutional mandates have been violated one cannot ask constitutional relief. Therefore, it can be concluded that because of various mandates including article 21 of Indian Constitution environmental dispute settlement has seen the light of the day.

[1] The Wildlife Protection Act, 1972 which we read today is a product of process which started long ago in 1887 for the protection of a few wild birds and after addition of wild animals in 1912 and specified plants in 1991 it covered almost all the wildlife resources which need protection and management. Available at http://www. publishyourarticles.net/knowledge-hub/environmental-studies/brief-notes-on-the-wildlife-protection-act-of-1972 /3163/ (Last visited on 03.03.2017)

[2] “…in pursuance of clause (1) of article 252 of the Constitution resolutions have been passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujrat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law; BE it enacted by Parliament in the Twenty-fifth Year of the Republic of India…”. Available at (Last visited on 01.03.2017)

[3] The Government passed this Act in 1981 to clean up our air by controlling pollution. It states that sources of air pollution such as industry, vehicles, power plants, etc., are not permitted to release particulate matter, lead, carbon monoxide, sulfur dioxide, nitrogen oxide, volatile organic compounds (VOCs) or other toxic substances beyond a prescribed level. Available at http://www.yourarticlelibrary.com/law/acts/summary-on-air-prevention-and-control-of-pollution-act-1981-of-india/30191/ (Last visited on 03.03.2017)

[4] Forest Act would also come within the purview of the Forest Conservation Act 1980. The Supreme Court has also held that “forest” as understood in the dictionary sense would also be included under “forest land”. The term “forest” shall not be applicable to the plantation raised on private land except notified private forest. Tree falling in such plantation would however be governed by state acts and rules. The term “tree” will have the same meaning as defined in section 2 of the Indian Forest Act 1927 (Rural Litigation & Entitlement Kendra Vs. State of U.P [1988] INSC 254). Available at http://www.wealthywaste.com/forest-conservation-act-1980-a-summary (Last visited on 03.03.2017)

[5] 2. Restriction on the dereservation of forests or use of forest land for non-forest purpose- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

[6] The Bhopal Gas Tragedy, 1984 was a catastrophe that had no parallel in the world’s industrial history. In the early morning hours of December 3, 1984, a rolling wind carried a poisonous gray cloud from the Union Carbide Plant in Bhopal, Madhya Pradesh (India). Forty tons of toxic gas (Methy-Iso-Cyanate, MIC) was accidentally released from Union Carbide’s Bhopal plant, which leaked and spread throughout the city. The result was a nightmare that still has no end, residents awoke to clouds of suffocating gas and began running desperately through the dark streets, victims arrived at hospitals; breathless and blind. The lungs, brain, eyes, muscles as well as gastro-intestinal, neurological, reproductive and immune systems of those who survived were severely affected. When the sun rose the next morning, the magnitude of devastation was clear. Dead bodies of humans and animals blocked the street, leaves turned black and a smell of burning chili peppers lingered in the air. An estimated 10,000 or more people died.  About 500,000 more people suffered agonizing injuries with disastrous effects of the massive poisoning. None can say if future generations will not be affected. Available at http://www.bmhrc.org/Bhopal%20Gas%20Tragedy.htm (Last visited on 04.03.2017)

[7] M.C. Mehta And Anr vs Union Of India, 1987 AIR 1086

[8] As per this Act, the Central Government shall have the power to take all such measures for the purpose of protecting and improving the quality of the environment and to prevent environmental pollution. Further, the Central Government shall have the power to give directions in writing to any person or officer or any authority for any of the purposes of the Act, including the power to direct the closure, prohibition or regulation of any industry, operation or process. Available at http://www.advocatekhoj.com/blogs/index.php?bid=5844e03567140583459245221&bcmd=VIEW (Last visited on 03.03.2017)

[9] “ Legislation for giving effect to international agreements .— Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Available at (visited on 05.05.2017)

[10] Stockholm represented a first taking stock of the global human impact on the environment, an attempt at forging a basic common outlook on how to address the challenge of preserving and enhancing the human environment. As a result, the Stockholm Declaration espouses mostly broad environmental policy goals and objectives rather than detailed normative positions. However, following Stockholm, global awareness of environmental issues increased dramatically, as did international environmental law-making proper. Available at http://legal.un.org/avl/ha/dunche/dunche.html (Last visited on 03.03.2017)

[11] A Constitution to be living must be growing.   If the impediments to the growth of the Constitution are not removed, the Constitution will suffer a virtual atrophy.  The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity. Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017)

[12] “48A.   Protection and improvement of environment and safeguarding of forests and wild life.-The  State shall endeavour  to   protect  and improve the environment and to safeguard the forests and wild life of the country.” Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017 )

[13] (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion   for living creatures; Available at http://indiacode.nic.in/coiweb/amend/amend42.htm (Last visited on 03.03.2017)

[14] “Duty of the State to raise the level of nutrition and the standard of living and to improve public health 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, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health” Available at http://www.constitution.org/cons/india/p04047.html (Last visited on 06.06.2017)

[15] T. Damodhar Rao V. The Special Officer, Municipal Corporation of Hyderabad, AIR1987AP171

[16] M.C. Mehta Vs. Kamalnath ‎(1997)1 SCC 388

[17] Article 243W …… Urban  forestry, protection of the environment and  promotion  of ecological aspects Available at http://indiacode.nic.in/coiweb/amend/amend74.htm (Last visited on 03.03.2017)

[18] Maneka Gandhi  v.  Union of India [1978] 2 SCR 621, Satwant Singh  v.  A.P.O., New Delhi [1967]3 SCR 525

[19] Kharak Singh  v.  State of U.P. 1963CriLJ329, Sharda  v.  Dharampal [2003] 3 SCR 106

[20] Common Cause, a  Registered Society  v.  Union of India 1997CriLJ195

[21] Prabha Dutt  v.  Union of India 1982CriLJ148

[22] Police Commissioner, Delhi  v.  Registrar, Delhi High Court 1997CriLJ90

[23] D.K. Basu  v.  State of West Bengal 1997CriLJ743

[24] State of Maharashtra  v.  M.P. Vashi AIR1996SC1

[25] Unnikrishnan  v.  State of A.P. [1993]1SCR594, T.M.A. Pai Foundation  v.  State of Karnataka (2002)8SCC481

[26] CERC  v.  Union of India (1995) IILLJ768SC, State of Punjab  v.  M.S. Chawla [AIR 1997 SCC 125]

[27] M.C. Mehta  v.  Union of India [1986]1SCR312

[28] APPCB  v.  M.V. Naidu  AIR 1999 SC 822

[29] Visakha  v.  State of Rajasthan AIR1997SC3011, AEPC v. A.K. Chopra (1999) ILLJ962SC

[30] (SIC) Lal Tiwari  v.  Kamala Devi and Ors. AIR2001SC3215

[31] S.K. Mastan Bee  v.  General Manager South Central Railway (2003) ILLJ561SC

[32] Subhash Kumar Vs. State of Bihar AIR 1991 SC 420

[33] 1987 SCR (1) 819

[34] See, Supra Note No. 32

[35] AIR 1987 SC 1086

[36] AIR1993SC2178

[37] AIR1995SC922

[38] AIR1996 SC 2715 at 2720

[39] AIR2003SC724

[40] (2004)9SCC362

[41] AIR2005SC3136

[42] AIR2010SC3645

[43] 2012 (12) SCALE 307

[44] AIR2014SC3614

[45] AIR2015SC2032

[46] 2015(6) SCALE706

How To Write A Dissertation Or Thesis

8 straightforward steps to craft an a-grade dissertation.

By: Derek Jansen (MBA) Expert Reviewed By: Dr Eunice Rautenbach | June 2020

Writing a dissertation or thesis is not a simple task. It takes time, energy and a lot of will power to get you across the finish line. It’s not easy – but it doesn’t necessarily need to be a painful process. If you understand the big-picture process of how to write a dissertation or thesis, your research journey will be a lot smoother.  

In this post, I’m going to outline the big-picture process of how to write a high-quality dissertation or thesis, without losing your mind along the way. If you’re just starting your research, this post is perfect for you. Alternatively, if you’ve already submitted your proposal, this article which covers how to structure a dissertation might be more helpful.

How To Write A Dissertation: 8 Steps

• Clearly understand what a dissertation (or thesis) is
• Find a unique and valuable research topic
• Craft a convincing research proposal
• Write up a strong introduction chapter
• Review the existing literature and compile a literature review
• Design a rigorous research strategy and undertake your own research
• Present the findings of your research
• Draw a conclusion and discuss the implications

Step 1: Understand exactly what a dissertation is

This probably sounds like a no-brainer, but all too often, students come to us for help with their research and the underlying issue is that they don’t fully understand what a dissertation (or thesis) actually is.

So, what is a dissertation?

At its simplest, a dissertation or thesis is a formal piece of research , reflecting the standard research process . But what is the standard research process, you ask? The research process involves 4 key steps:

• Ask a very specific, well-articulated question (s) (your research topic)
• See what other researchers have said about it (if they’ve already answered it)
• If they haven’t answered it adequately, undertake your own data collection and analysis in a scientifically rigorous fashion
• Answer your original question(s), based on your analysis findings

In short, the research process is simply about asking and answering questions in a systematic fashion . This probably sounds pretty obvious, but people often think they’ve done “research”, when in fact what they have done is:

• Started with a vague, poorly articulated question
• Not taken the time to see what research has already been done regarding the question
• Collected data and opinions that support their gut and undertaken a flimsy analysis
• Drawn a shaky conclusion, based on that analysis

If you want to see the perfect example of this in action, look out for the next Facebook post where someone claims they’ve done “research”… All too often, people consider reading a few blog posts to constitute research. Its no surprise then that what they end up with is an opinion piece, not research. Okay, okay – I’ll climb off my soapbox now.

The key takeaway here is that a dissertation (or thesis) is a formal piece of research, reflecting the research process. It’s not an opinion piece , nor a place to push your agenda or try to convince someone of your position. Writing a good dissertation involves asking a question and taking a systematic, rigorous approach to answering it.

If you understand this and are comfortable leaving your opinions or preconceived ideas at the door, you’re already off to a good start!

Step 2: Find a unique, valuable research topic

As we saw, the first step of the research process is to ask a specific, well-articulated question. In other words, you need to find a research topic that asks a specific question or set of questions (these are called research questions ). Sounds easy enough, right? All you’ve got to do is identify a question or two and you’ve got a winning research topic. Well, not quite…

A good dissertation or thesis topic has a few important attributes. Specifically, a solid research topic should be:

Let’s take a closer look at these:

Attribute #1: Clear

Your research topic needs to be crystal clear about what you’re planning to research, what you want to know, and within what context. There shouldn’t be any ambiguity or vagueness about what you’ll research.

Here’s an example of a clearly articulated research topic:

An analysis of consumer-based factors influencing organisational trust in British low-cost online equity brokerage firms.

As you can see in the example, its crystal clear what will be analysed (factors impacting organisational trust), amongst who (consumers) and in what context (British low-cost equity brokerage firms, based online).

Need a helping hand?

Attribute #2:   Unique

Your research should be asking a question(s) that hasn’t been asked before, or that hasn’t been asked in a specific context (for example, in a specific country or industry).

For example, sticking organisational trust topic above, it’s quite likely that organisational trust factors in the UK have been investigated before, but the context (online low-cost equity brokerages) could make this research unique. Therefore, the context makes this research original.

One caveat when using context as the basis for originality – you need to have a good reason to suspect that your findings in this context might be different from the existing research – otherwise, there’s no reason to warrant researching it.

Attribute #3: Important

Simply asking a unique or original question is not enough – the question needs to create value. In other words, successfully answering your research questions should provide some value to the field of research or the industry. You can’t research something just to satisfy your curiosity. It needs to make some form of contribution either to research or industry.

For example, researching the factors influencing consumer trust would create value by enabling businesses to tailor their operations and marketing to leverage factors that promote trust. In other words, it would have a clear benefit to industry.

So, how do you go about finding a unique and valuable research topic? We explain that in detail in this video post – How To Find A Research Topic . Yeah, we’ve got you covered 😊

Step 3: Write a convincing research proposal

Once you’ve pinned down a high-quality research topic, the next step is to convince your university to let you research it. No matter how awesome you think your topic is, it still needs to get the rubber stamp before you can move forward with your research. The research proposal is the tool you’ll use for this job.

So, what’s in a research proposal?

The main “job” of a research proposal is to convince your university, advisor or committee that your research topic is worthy of approval. But convince them of what? Well, this varies from university to university, but generally, they want to see that:

• You have a clearly articulated, unique and important topic (this might sound familiar…)
• You’ve done some initial reading of the existing literature relevant to your topic (i.e. a literature review)
• You have a provisional plan in terms of how you will collect data and analyse it (i.e. a methodology)

At the proposal stage, it’s (generally) not expected that you’ve extensively reviewed the existing literature , but you will need to show that you’ve done enough reading to identify a clear gap for original (unique) research. Similarly, they generally don’t expect that you have a rock-solid research methodology mapped out, but you should have an idea of whether you’ll be undertaking qualitative or quantitative analysis , and how you’ll collect your data (we’ll discuss this in more detail later).

Long story short – don’t stress about having every detail of your research meticulously thought out at the proposal stage – this will develop as you progress through your research. However, you do need to show that you’ve “done your homework” and that your research is worthy of approval .

So, how do you go about crafting a high-quality, convincing proposal? We cover that in detail in this video post – How To Write A Top-Class Research Proposal . We’ve also got a video walkthrough of two proposal examples here .

Step 4: Craft a strong introduction chapter

Once your proposal’s been approved, its time to get writing your actual dissertation or thesis! The good news is that if you put the time into crafting a high-quality proposal, you’ve already got a head start on your first three chapters – introduction, literature review and methodology – as you can use your proposal as the basis for these.

Handy sidenote – our free dissertation & thesis template is a great way to speed up your dissertation writing journey.

What’s the introduction chapter all about?

The purpose of the introduction chapter is to set the scene for your research (dare I say, to introduce it…) so that the reader understands what you’ll be researching and why it’s important. In other words, it covers the same ground as the research proposal in that it justifies your research topic.

What goes into the introduction chapter?

This can vary slightly between universities and degrees, but generally, the introduction chapter will include the following:

• A brief background to the study, explaining the overall area of research
• A problem statement , explaining what the problem is with the current state of research (in other words, where the knowledge gap exists)
• Your research questions – in other words, the specific questions your study will seek to answer (based on the knowledge gap)
• The significance of your study – in other words, why it’s important and how its findings will be useful in the world

As you can see, this all about explaining the “what” and the “why” of your research (as opposed to the “how”). So, your introduction chapter is basically the salesman of your study, “selling” your research to the first-time reader and (hopefully) getting them interested to read more.

How do I write the introduction chapter, you ask? We cover that in detail in this post .

Step 5: Undertake an in-depth literature review

As I mentioned earlier, you’ll need to do some initial review of the literature in Steps 2 and 3 to find your research gap and craft a convincing research proposal – but that’s just scratching the surface. Once you reach the literature review stage of your dissertation or thesis, you need to dig a lot deeper into the existing research and write up a comprehensive literature review chapter.

What’s the literature review all about?

There are two main stages in the literature review process:

Literature Review Step 1: Reading up

The first stage is for you to deep dive into the existing literature (journal articles, textbook chapters, industry reports, etc) to gain an in-depth understanding of the current state of research regarding your topic. While you don’t need to read every single article, you do need to ensure that you cover all literature that is related to your core research questions, and create a comprehensive catalogue of that literature , which you’ll use in the next step.

Reading and digesting all the relevant literature is a time consuming and intellectually demanding process. Many students underestimate just how much work goes into this step, so make sure that you allocate a good amount of time for this when planning out your research. Thankfully, there are ways to fast track the process – be sure to check out this article covering how to read journal articles quickly .

Literature Review Step 2: Writing up

Once you’ve worked through the literature and digested it all, you’ll need to write up your literature review chapter. Many students make the mistake of thinking that the literature review chapter is simply a summary of what other researchers have said. While this is partly true, a literature review is much more than just a summary. To pull off a good literature review chapter, you’ll need to achieve at least 3 things:

• You need to synthesise the existing research , not just summarise it. In other words, you need to show how different pieces of theory fit together, what’s agreed on by researchers, what’s not.
• You need to highlight a research gap that your research is going to fill. In other words, you’ve got to outline the problem so that your research topic can provide a solution.
• You need to use the existing research to inform your methodology and approach to your own research design. For example, you might use questions or Likert scales from previous studies in your your own survey design .

As you can see, a good literature review is more than just a summary of the published research. It’s the foundation on which your own research is built, so it deserves a lot of love and attention. Take the time to craft a comprehensive literature review with a suitable structure .

But, how do I actually write the literature review chapter, you ask? We cover that in detail in this video post .

Step 6: Carry out your own research

Once you’ve completed your literature review and have a sound understanding of the existing research, its time to develop your own research (finally!). You’ll design this research specifically so that you can find the answers to your unique research question.

There are two steps here – designing your research strategy and executing on it:

1 – Design your research strategy

The first step is to design your research strategy and craft a methodology chapter . I won’t get into the technicalities of the methodology chapter here, but in simple terms, this chapter is about explaining the “how” of your research. If you recall, the introduction and literature review chapters discussed the “what” and the “why”, so it makes sense that the next point to cover is the “how” –that’s what the methodology chapter is all about.

In this section, you’ll need to make firm decisions about your research design. This includes things like:

• Your research philosophy (e.g. positivism or interpretivism )
• Your overall methodology (e.g. qualitative , quantitative or mixed methods)
• Your data collection strategy (e.g. interviews , focus groups, surveys)
• Your data analysis strategy (e.g. content analysis , correlation analysis, regression)

If these words have got your head spinning, don’t worry! We’ll explain these in plain language in other posts. It’s not essential that you understand the intricacies of research design (yet!). The key takeaway here is that you’ll need to make decisions about how you’ll design your own research, and you’ll need to describe (and justify) your decisions in your methodology chapter.

2 – Execute: Collect and analyse your data

Once you’ve worked out your research design, you’ll put it into action and start collecting your data. This might mean undertaking interviews, hosting an online survey or any other data collection method. Data collection can take quite a bit of time (especially if you host in-person interviews), so be sure to factor sufficient time into your project plan for this. Oftentimes, things don’t go 100% to plan (for example, you don’t get as many survey responses as you hoped for), so bake a little extra time into your budget here.

Once you’ve collected your data, you’ll need to do some data preparation before you can sink your teeth into the analysis. For example:

• If you carry out interviews or focus groups, you’ll need to transcribe your audio data to text (i.e. a Word document).
• If you collect quantitative survey data, you’ll need to clean up your data and get it into the right format for whichever analysis software you use (for example, SPSS, R or STATA).

Once you’ve completed your data prep, you’ll undertake your analysis, using the techniques that you described in your methodology. Depending on what you find in your analysis, you might also do some additional forms of analysis that you hadn’t planned for. For example, you might see something in the data that raises new questions or that requires clarification with further analysis.

The type(s) of analysis that you’ll use depend entirely on the nature of your research and your research questions. For example:

• If your research if exploratory in nature, you’ll often use qualitative analysis techniques .
• If your research is confirmatory in nature, you’ll often use quantitative analysis techniques
• If your research involves a mix of both, you might use a mixed methods approach

Again, if these words have got your head spinning, don’t worry! We’ll explain these concepts and techniques in other posts. The key takeaway is simply that there’s no “one size fits all” for research design and methodology – it all depends on your topic, your research questions and your data. So, don’t be surprised if your study colleagues take a completely different approach to yours.

Step 7: Present your findings

Once you’ve completed your analysis, it’s time to present your findings (finally!). In a dissertation or thesis, you’ll typically present your findings in two chapters – the results chapter and the discussion chapter .

What’s the difference between the results chapter and the discussion chapter?

While these two chapters are similar, the results chapter generally just presents the processed data neatly and clearly without interpretation, while the discussion chapter explains the story the data are telling  – in other words, it provides your interpretation of the results.

For example, if you were researching the factors that influence consumer trust, you might have used a quantitative approach to identify the relationship between potential factors (e.g. perceived integrity and competence of the organisation) and consumer trust. In this case:

• Your results chapter would just present the results of the statistical tests. For example, correlation results or differences between groups. In other words, the processed numbers.
• Your discussion chapter would explain what the numbers mean in relation to your research question(s). For example, Factor 1 has a weak relationship with consumer trust, while Factor 2 has a strong relationship.

Depending on the university and degree, these two chapters (results and discussion) are sometimes merged into one , so be sure to check with your institution what their preference is. Regardless of the chapter structure, this section is about presenting the findings of your research in a clear, easy to understand fashion.

Importantly, your discussion here needs to link back to your research questions (which you outlined in the introduction or literature review chapter). In other words, it needs to answer the key questions you asked (or at least attempt to answer them).

For example, if we look at the sample research topic:

In this case, the discussion section would clearly outline which factors seem to have a noteworthy influence on organisational trust. By doing so, they are answering the overarching question and fulfilling the purpose of the research .

For more information about the results chapter , check out this post for qualitative studies and this post for quantitative studies .

Step 8: The Final Step Draw a conclusion and discuss the implications

Last but not least, you’ll need to wrap up your research with the conclusion chapter . In this chapter, you’ll bring your research full circle by highlighting the key findings of your study and explaining what the implications of these findings are.

What exactly are key findings? The key findings are those findings which directly relate to your original research questions and overall research objectives (which you discussed in your introduction chapter). The implications, on the other hand, explain what your findings mean for industry, or for research in your area.

Sticking with the consumer trust topic example, the conclusion might look something like this:

Key findings

This study set out to identify which factors influence consumer-based trust in British low-cost online equity brokerage firms. The results suggest that the following factors have a large impact on consumer trust:

While the following factors have a very limited impact on consumer trust:

Notably, within the 25-30 age groups, Factors E had a noticeably larger impact, which may be explained by…

Implications

The findings having noteworthy implications for British low-cost online equity brokers. Specifically:

The large impact of Factors X and Y implies that brokers need to consider….

The limited impact of Factor E implies that brokers need to…

As you can see, the conclusion chapter is basically explaining the “what” (what your study found) and the “so what?” (what the findings mean for the industry or research). This brings the study full circle and closes off the document.

Let’s recap – how to write a dissertation or thesis

You’re still with me? Impressive! I know that this post was a long one, but hopefully you’ve learnt a thing or two about how to write a dissertation or thesis, and are now better equipped to start your own research.

To recap, the 8 steps to writing a quality dissertation (or thesis) are as follows:

• Understand what a dissertation (or thesis) is – a research project that follows the research process.
• Find a unique (original) and important research topic
• Craft a convincing dissertation or thesis research proposal
• Write a clear, compelling introduction chapter
• Undertake a thorough review of the existing research and write up a literature review
• Undertake your own research
• Present and interpret your findings

Once you’ve wrapped up the core chapters, all that’s typically left is the abstract , reference list and appendices. As always, be sure to check with your university if they have any additional requirements in terms of structure or content.  

Psst... there’s more!

This post was based on one of our popular Research Bootcamps . If you're working on a research project, you'll definitely want to check this out ...

20 Comments

thankfull >>>this is very useful

Thank you, it was really helpful

unquestionably, this amazing simplified way of teaching. Really , I couldn’t find in the literature words that fully explicit my great thanks to you. However, I could only say thanks a-lot.

Great to hear that – thanks for the feedback. Good luck writing your dissertation/thesis.

This is the most comprehensive explanation of how to write a dissertation. Many thanks for sharing it free of charge.

Very rich presentation. Thank you

Thanks Derek Jansen|GRADCOACH, I find it very useful guide to arrange my activities and proceed to research!

Thank you so much for such a marvelous teaching .I am so convinced that am going to write a comprehensive and a distinct masters dissertation

It is an amazing comprehensive explanation

This was straightforward. Thank you!

I can say that your explanations are simple and enlightening – understanding what you have done here is easy for me. Could you write more about the different types of research methods specific to the three methodologies: quan, qual and MM. I look forward to interacting with this website more in the future.

Thanks for the feedback and suggestions 🙂

Hello, your write ups is quite educative. However, l have challenges in going about my research questions which is below; *Building the enablers of organisational growth through effective governance and purposeful leadership.*

Very educating.

Just listening to the name of the dissertation makes the student nervous. As writing a top-quality dissertation is a difficult task as it is a lengthy topic, requires a lot of research and understanding and is usually around 10,000 to 15000 words. Sometimes due to studies, unbalanced workload or lack of research and writing skill students look for dissertation submission from professional writers.

Thank you 💕😊 very much. I was confused but your comprehensive explanation has cleared my doubts of ever presenting a good thesis. Thank you.

thank you so much, that was so useful

Hi. Where is the excel spread sheet ark?

could you please help me look at your thesis paper to enable me to do the portion that has to do with the specification

my topic is “the impact of domestic revenue mobilization.

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The Graduate School

University information technology (uit), main navigation, published articles as dissertation chapters.

• Submission Procedure
• Policies for Theses and Dissertations
• Coauthored Theses and Dissertations
• Approval Requirements
• Publication Requirements
• Copyright Page
• Statement of Thesis/Dissertation Approval
• Dedication, Frontispiece, and Epigraph
• Table of Contents and List of Figures/Tables
• Acknowledgements
• General Formatting Requirements
• Parts Composed of Related Chapters
• Headings and Subheadings
• Tables and Figures
• Footnote and Reference Citations
• Appendix or Appendices
• References or Selected Bibliography
• Documentation Styles
• Writing Styles
• Print Quality
• Accessibility in the PDF
• Electronic Version Submitted for Thesis Release
• Distribution of Theses and Dissertations
• Alternate Text
• Color Contrast
• Accessibility Issues in Table Construction
• Heading Space
• Double Space
• Single Space

Previously Published, Accepted, and Submitted Articles as Chapters of a Dissertation

• Alternate Figure/Table Placement

In the case where students use a previously published, submitted, or accepted article as one or more chapters of their dissertation, the following rules apply. 

Each previously published reprint and accepted or submitted article (or chapter as an article prepared for publication) is treated as a separate chapter. The dissertation must have a general abstract that covers all components. A general introduction and general conclusion are recommended. If a dissertation incorporating previously published articles as chapters is selected, references must be placed at the end of each chapter—not at the end of the manuscript. Each set of references may follow a different style guide, depending on the journal in which the chapter is published or will be published. Table titles and figure captions must be locally numbered. 

Copyright issues frequently arise with previously published material. Students need to obtain permission to duplicate copyrighted material (and, possibly, multiple author releases). A full credit line (stating “Reprinted with permission from” followed by the source) must be placed on the part-title page preceding a reprint or as a footnote on the first page of a chapter that contains a previously published article that has been reformatted to the University of Utah’s format requirements outlined herein. 

For all previously published chapters, permission to reuse or reprint or adapt must be provided by the student to the Thesis Office. Releases from coauthors must also be provided, even if the coauthors are members of the student’s committee or even if the student is the leading author. 

Reprints (published article pages inserted as images on the pages of the manuscript) are acceptable. However, some departments require that previously published articles be reformatted to match all other chapters. Check with your department and committee to see if they accept the use of reprints. 

Reprints are preceded by a part-title page. The chapter title must match exactly the title of the journal article. The part-title page must include the attribution required by the publisher. The reprints are accepted as they are except that they must fit within the thesis margins and manuscript pages must be numbered consecutively with the rest of the text. All other chapters (whether accepted, submitted, or in preparation) must fit University of Utah guidelines, as specified in the handbook (margins, subheads, figure and table placement, etc.). 

In the List of Figures and List of Tables, figures and tables from reprints are treated as if they are numbered with respect to the rest of the text. A local numbering scheme must be used. For example, in the List of Figures, the first figure in Chapter 5, which is a reprint, is listed as 5.1. 

The requirement that all print be at least 2 mm does not apply to reprints. The text may be smaller than that as long as the words, figures, and tables are of sufficient resolution to remain crisp. 

Students using reprints should check the accessibility of the document and make adjustments to the document to make sure that it is accessible to screen readers.

As for any other thesis or dissertation, students are urged to submit their manuscripts prior to the defense for a preliminary review. 

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• Reading, Notetaking, and Time Management

What is a thesis?

What is a dissertation, getting started, staying on track.

A thesis is a long-term project that you work on over the course of a semester or a year. Theses have a very wide variety of styles and content, so we encourage you to look at prior examples and work closely with faculty to develop yours. 

Before you begin, make sure that you are familiar with the dissertation genre—what it is for and what it looks like.

Generally speaking, a dissertation’s purpose is to prove that you have the expertise necessary to fulfill your doctoral-degree requirements by showing depth of knowledge and independent thinking.

The form of a dissertation may vary by discipline. Be sure to follow the specific guidelines of your department.

• PhD This site directs candidates to the GSAS website about dissertations , with links to checklists,  planning, formatting, acknowledgments, submission, and publishing options. There is also a link to guidelines for the prospectus . Consult with your committee chair about specific requirements and standards for your dissertation.
• DDES This document covers planning, patent filing, submission guidelines, publishing options, formatting guidelines, sample pages, citation guidelines, and a list of common errors to avoid. There is also a link to guidelines for the prospectus .
• Scholarly Pursuits (GSAS) This searchable booklet from Harvard GSAS is a comprehensive guide to writing dissertations, dissertation-fellowship applications, academic journal articles, and academic job documents.

Finding an original topic can be a daunting and overwhelming task. These key concepts can help you focus and save time.

Finding a topic for your thesis or dissertation should start with a research question that excites or at least interests you. A rigorous, engaging, and original project will require continuous curiosity about your topic, about your own thoughts on the topic, and about what other scholars have said on your topic. Avoid getting boxed in by thinking you know what you want to say from the beginning; let your research and your writing evolve as you explore and fine-tune your focus through constant questioning and exploration.

Get a sense of the broader picture before you narrow your focus and attempt to frame an argument. Read, skim, and otherwise familiarize yourself with what other scholars have done in areas related to your proposed topic. Briefly explore topics tangentially related to yours to broaden your perspective and increase your chance of finding a unique angle to pursue.

Critical Reading

Critical reading is the opposite of passive reading. Instead of merely reading for information to absorb, critical reading also involves careful, sustained thinking about what you are reading. This process may include analyzing the author’s motives and assumptions, asking what might be left out of the discussion, considering what you agree with or disagree with in the author’s statements and why you agree or disagree, and exploring connections or contradictions between scholarly arguments. Here is a resource to help hone your critical-reading skills:

http://writing.umn.edu/sws/assets/pdf/quicktips/criticalread.pdf

Conversation

Your thesis or dissertation will incorporate some ideas from other scholars whose work you researched. By reading critically and following your curiosity, you will develop your own ideas and claims, and these contributions are the core of your project. You will also acknowledge the work of scholars who came before you, and you must accurately and fairly attribute this work and define your place within the larger discussion. Make sure that you know how to quote, summarize, paraphrase ,  integrate , and cite secondary sources to avoid plagiarism and to show the depth and breadth of your knowledge.

A thesis is a long-term, large project that involves both research and writing; it is easy to lose focus, motivation, and momentum. Here are suggestions for achieving the result you want in the time you have.

The dissertation is probably the largest project you have undertaken, and a lot of the work is self-directed. The project can feel daunting or even overwhelming unless you break it down into manageable pieces and create a timeline for completing each smaller task. Be realistic but also challenge yourself, and be forgiving of yourself if you miss a self-imposed deadline here and there.

Your program will also have specific deadlines for different requirements, including establishing a committee, submitting a prospectus, completing the dissertation, defending the dissertation, and submitting your work. Consult your department’s website for these dates and incorporate them into the timeline for your work.

Accountability

Sometimes self-imposed deadlines do not feel urgent unless there is accountability to someone beyond yourself. To increase your motivation to complete tasks on schedule, set dates with your committee chair to submit pre-determined pieces of a chapter. You can also arrange with a fellow doctoral student to check on each other’s progress. Research and writing can be lonely, so it is also nice to share that journey with someone and support each other through the process.

Common Pitfalls

The most common challenges for students writing a dissertation are writer’s block, information-overload, and the compulsion to keep researching forever.

There are many strategies for avoiding writer’s block, such as freewriting, outlining, taking a walk, starting in the middle, and creating an ideal work environment for your particular learning style. Pay attention to what helps you and try different things until you find what works.

Efficient researching techniques are essential to avoiding information-overload. Here are a couple of resources about strategies for finding sources and quickly obtaining essential information from them.

https://owl.purdue.edu/owl/subject_specific_writing/writing_in_literature/writing_in_literature_detailed_discussion/reading_criticism.html

https://students.dartmouth.edu/academic-skills/learning-resources/learning-strategies/reading-techniques

Finally, remember that there is always more to learn and your dissertation cannot incorporate everything. Follow your curiosity but also set limits on the scope of your work. It helps to create a folder entitled “future projects” for topics and sources that interest you but that do not fit neatly into the dissertation. Also remember that future scholars will build off of your work, so leave something for them to do.

Browsing through theses and dissertations of the past can help to get a sense of your options and gain inspiration but be careful to use current guidelines and refer to your committee instead of relying on these examples for form or formatting.

DASH Digital Access to Scholarship at Harvard.

HOLLIS Harvard Library’s catalog provides access to ProQuest Dissertations & Theses Global .

MIT Architecture has a list of their graduates’ dissertations and theses.

Rhode Island School of Design has a list of their graduates’ dissertations and theses.

University of South Florida has a list of their graduates’ dissertations and theses.

Harvard GSD has a list of projects, including theses and professors’ research.

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The 100 Best Books of the 21st Century: A Printable List

By The New York Times Books Staff Aug. 26, 2024

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The New York Times Book Review I've I want THE 100 BEST BOOKS OF THE 21ST CENTURY read to it read it 1 My Brilliant Friend, by Elena Ferrante 26 26 Atonement, by lan McEwan 2 The Warmth of Other Suns, by Isabel Wilkerson 27 Americanah, by Chimamanda Ngozi Adichie 3 Wolf Hall, by Hilary Mantel 28 Cloud Atlas, by David Mitchell 4 The Known World, by Edward P. Jones 29 The Last Samurai, by Helen DeWitt 5 The Corrections, by Jonathan Franzen 30 Sing, Unburied, Sing, by Jesmyn Ward 6 2666, by Roberto Bolaño 31 White Teeth, by Zadie Smith 7 The Underground Railroad, by Colson Whitehead 32 The Line of Beauty, by Alan Hollinghurst 8 Austerlitz, by W.G. Sebald 33 Salvage the Bones, by Jesmyn Ward 9 Never Let Me Go, by Kazuo Ishiguro 34 Citizen, by Claudia Rankine 10 Gilead, by Marilynne Robinson 35 Fun Home, by Alison Bechdel 11 The Brief Wondrous Life of Oscar Wao, by Junot Díaz 36 Between the World and Me, by Ta-Nehisi Coates 12 The Year of Magical Thinking, by Joan Didion 37 The Years, by Annie Ernaux 13 The Road, by Cormac McCarthy 38 The Savage Detectives, by Roberto Bolaño 14 Outline, by Rachel Cusk 39 A Visit From the Goon Squad, by Jennifer Egan 15 Pachinko, by Min Jin Lee 40 H Is for Hawk, by Helen Macdonald 16 The Amazing Adventures of Kavalier & Clay, by Michael Chabon 41 Small Things Like These, by Claire Keegan 17 The Sellout, by Paul Beatty 42 A Brief History of Seven Killings, by Marlon James 18 Lincoln in the Bardo, by George Saunders 43 Postwar, by Tony Judt 19 Say Nothing, by Patrick Radden Keefe 44 The Fifth Season, by N.K. Jemisin 20 Erasure, by Percival Everrett 45 The Argonauts, by Maggie Nelson 21 Evicted, by Matthew Desmond 46 The Goldfinch, by Donna Tartt 22 22 Behind the Beautiful Forevers, by Katherine Boo 47 A Mercy, by Toni Morrison 23 Hateship, Friendship, Courtship, Loveship, Marriage, by Alice Munro 48 Persepolis, by Marjane Satrapi 24 The Overstory, by Richard Powers 49 The Vegetarian, by Han Kang 25 25 Random Family, by Adrian Nicole LeBlanc 50 Trust, by Hernan Diaz I've I want read to it read it

The New York Times Book Review I've I want THE 100 BEST BOOKS OF THE 21ST CENTURY read to it read it 51 Life After Life, by Kate Atkinson 52 52 Train Dreams, by Denis Johnson 53 Runaway, by Alice Munro 76 77 An American Marriage, by Tayari Jones 78 Septology, by Jon Fosse Tomorrow, and Tomorrow, and Tomorrow, by Gabrielle Zevin 54 Tenth of December, by George Saunders 55 The Looming Tower, by Lawrence Wright 56 The Flamethrowers, by Rachel Kushner 57 Nickel and Dimed, by Barbara Ehrenreich ཤྲཱ རྒྱ སྐྱ A Manual for Cleaning Women, by Lucia Berlin The Story of the Lost Child, by Elena Ferrante Pulphead, by John Jeremiah Sullivan. Hurricane Season, by Fernanda Melchor 58 Stay True, by Hua Hsu 83 When We Cease to Understand the World, by Benjamín Labatut 59 Middlesex, by Jeffrey Eugenides 84 The Emperor of All Maladies, by Siddhartha Mukherjee 60 Heavy, by Kiese Laymon 85 Pastoralia, by George Saunders 61 Demon Copperhead, by Barbara Kingsolver 86 Frederick Douglass, by David W. Blight 62 10:04, by Ben Lerner 87 Detransition, Baby, by Torrey Peters 63 Veronica, by Mary Gaitskill 88 The Collected Stories of Lydia Davis 64 The Great Believers, by Rebecca Makkai 89 The Return, by Hisham Matar 65 The Plot Against America, by Philip Roth 90 The Sympathizer, by Viet Thanh Nguyen 66 We the Animals, by Justin Torres 91 The Human Stain, by Philip Roth 67 Far From the Tree, by Andrew Solomon 92 The Days of Abandonment, by Elena Ferrante 68 The Friend, by Sigrid Nunez 93 Station Eleven, by Emily St. John Mandel 69 59 The New Jim Crow, by Michelle Alexander 94 On Beauty, by Zadie Smith 10 70 All Aunt Hagar's Children, by Edward P. Jones 95 Bring Up the Bodies, by Hilary Mantel 71 The Copenhagen Trilogy, by Tove Ditlevsen 96 Wayward Lives, Beautiful Experiments, by Saidiya Hartman 72 22 Secondhand Time, by Svetlana Alexievich 97 Men We Reaped, by Jesmyn Ward 73 The Passage of Power, by Robert A. Caro 98 Bel Canto, by Ann Patchett 74 Olive Kitteridge, by Elizabeth Strout 99 How to Be Both, by Ali Smith 75 15 Exit West, by Mohsin Hamid 100 Tree of Smoke, by Denis Johnson I've I want read to it read it

Harris' health following HBP is silver lining of rocky series finale

Mark Bowman

ATLANTA -- A quiet offensive performance combined with an ugly seventh inning doomed the Braves in a 5-1 loss to the Nationals on Sunday at Truist Park. But it turned out this productive homestand didn’t end on a sour note.

Nearly two hours after the defeat, the Braves announced that Michael Harris II didn’t suffer a fracture after getting hit in the left hand by a pitch. This was a rare positive health development for a team that has dealt with more than its share of significant injuries.

“It’s kind of like a boxing match,” Braves first baseman Matt Olson said. “You land a couple punches and then they land one on you. You’ve got to find a way to shake it off and start throwing punches again.”

Olson made this comment before he knew Harris’ imaging results. It was hard for any of the Braves to expect anything but the worst. Harris’ exit came exactly one week after Austin Riley’s right hand was fractured by a pitch in Anaheim. Riley, Ronald Acuña Jr. (ACL surgery), Spencer Strider (elbow surgery) and A.J. Minter (hip surgery) will all miss the remainder of the season.

Harris was hit by Nationals starter DJ Herz’s 93.2 mph fastball to begin the bottom of the first inning. He remained in the game through the fourth, but was pulled when Snitker noticed him favoring the hand while attempting to play catch between innings. The Braves' center fielder did take three swings while striking out in the second inning.

“The fact that [Harris] came out of the game [was] concerning for me,” Braves manager Brian Snitker said.

Maybe this Harris development was actually a sign that things are turning for the Braves, who went 4-2 against the Phillies and Nationals during this homestand. Travis d’Arnaud was hit in the hand by a pitch on Aug. 17 and returned to action one week later. Marcell Ozuna fouled a pitch off his left shin on Sunday and said he expects to play in Monday’s series opener in Minnesota.

Harris’ exit further depleted an injury-riddled lineup that produced just three hits in this series finale. Reynaldo López allowed one run over six innings and Olson tied the game with a solo homer in the sixth. But Luke Jackson’s long-term future with the Braves then became more cloudy.

With the game tied at one entering the seventh, Snitker chose to give the ball to Jackson instead of Jesse Chavez, who hadn’t pitched since Aug. 15. The skipper was asked if there was anything to Chavez going 10 days between appearances.

“We’ve been going to our leverage guys,” Snitker said. “He hasn’t been hurt or anything like that. It’s just that we’ve been winning games and going to the guys that we go to.”

Going to Jackson in any leverage situation seems questionable. He has a 5.93 ERA through 44 appearances this year and an 8.00 ERA over the eight appearances he’s made since being acquired from the Giants on July 29.

Whit Merrifield didn’t help when he committed an error to begin the seventh. But Jackson allowed hits to two of the next three batters he faced in Washington’s decisive three-run frame. He surrendered one of those runs via a wild pitch.

“[Jackson] closed games for us years ago,” Snitker said. “You’ve just got to stay with him. It’s probably just location.”

Jackson’s days as a high-leverage option may have ended when he needed Tommy John surgery after helping the Braves win the 2021 World Series. The Braves can turn to Daysbel Hernández or a couple other Triple-A Gwinnett pitchers if they want to strengthen their bullpen depth down the stretch.

Even with the disappointing conclusion, the Braves can look back on this homestand favorably. They were delivered a big blow on Monday, when they learned Riley’s hand was fractured. But they then claimed series wins over both the Phillies and Nationals.

They have been a resilient bunch all year. But had Harris received bad news, there would have been reason to wonder how much more this team could take.

“As a team, we just continue to battle,” López said. “We just continue to fight every day and that’s what is important.”

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Rookie Jackson Merrill hits walk-off homer off Díaz to give Padres a dramatic 3-2 win over Mets

San Diego Padres’ Jackson Merrill watches his walkoff solo home run during the ninth inning of a baseball game against the New York Mets, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

San Diego Padres’ Jackson Merrill celebrates after hitting a walkoff home run during the ninth inning of a baseball game against the New York Mets, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

San Diego Padres’ Jackson Merrill, right, slams his bat down after hitting a walkoff home run during the ninth inning of a baseball game against the New York Mets, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

San Diego Padres’ Jackson Merrill, left, is doused by Tyler Wade, right, after hitting a walkoff home run during the ninth inning of a baseball game against the New York Mets, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

San Diego Padres’ Jackson Merrill, left, celebrates with teammates at home plate after hitting a walkoff home run during the ninth inning of a baseball game against the New York Mets, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

New York Mets shortstop Francisco Lindor, top, smiles with second baseman Jose Iglesias, bottom, after a force out against San Diego Padres’ Jurickson Profar at second during the sixth inning of a baseball game, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

New York Mets shortstop Francisco Lindor, left, smiles with second baseman Jose Iglesias, right, after a force out against San Diego Padres’ Jurickson Profar at second during the sixth inning of a baseball game, Sunday, Aug. 25, 2024, in San Diego. (AP Photo/Brandon Sloter)

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SAN DIEGO (AP) — Rookie Jackson Merrill homered off Edwin Díaz with one out in the ninth to lift the San Diego Padres to a dramatic 3-2 win on Sunday against the New York Mets and a split of a four-game series between teams in playoff contention.

Merrill drove a 2-0 slider from Díaz (5-2) deep into the seats in right and then started an emphatic trot. He slammed down his bat, pointed to the Padres’ dugout and slapped five with Jurickson Profar, who hit a tying two-run shot in the eighth. He pointed to the Padres’ bullpen and pumped his right fist as he rounded second and was then greeted by a wild celebration after touching home.

It was the 19th homer for Merrill, a 21-year-old who is pushing Pittsburgh’s Paul Skenes for NL Rookie of the Year.

“He’s that guy,” Profar said. “He has it. Every time he steps up to the plate like that ... everyone in the dugout called it.”

Jake Cronenworth struck out before Merrill went yard.

Merrill once again deflected attention away from himself when asked how the walk-off homer felt.

“Same thing as every day we win: We won the game. That is what it felt like. Any thoughts on myself, or anything, that’s all for the team,” he said.

Cronenworth whispered something to Merrill before he went to the plate.

“I’m trying to be more in the zone, swinging at better pitches, and him telling what was happening with the pitches, it helped,” Merrill said.

Merrill was a prized shortstop prospect when the Padres converted him to center field in spring training to fill the hole left when Trent Grisham was sent to the New York Yankees along with Juan Soto in a blockbuster trade in December. Merrill made the opening day lineup and has dazzled with his bat and glove.

“I’ve said it a lot of times, since I stepped on the field with him in spring training, he showed me that he’s that type of guy,” said Profar, who is having a career year at age 31 and on a $1 million contract.

Merrill said slapping five with Profar “was cool. But we’re here for each other. It’s not just one person that did it.”

It was Merrill’s second walk-off homer. The Padres have 33 comeback wins and eight walk-offs.

Robert Suarez (8-1) pitched a perfect ninth for the win.

The Padres beat the Mets for just the second time in seven games this year.

“It was big. They’ve been beating us,” Profar said. “We got swept over there in New York and they were on the brink of winning another series against us. We had to win this one.”

The Padres are in the NL’s second wild-card spot, while the Mets trail Atlanta for the third spot. New York now heads to Arizona for a three-game series against the Diamondbacks, who have surged into the top spot by winning six straight games.

San Diego eliminated the 101-win Mets in a 2022 wild-card matchup en route to an appearance in the NL Championship Series.

The Mets had taken a 2-0 lead on homers by J.D. Martinez and Mark Vientos.

After the Padres blew a big scoring chance in the seventh, Profar homered to right off José Buttó with one out in the eighth and Mason McCoy aboard on a walk. It was his career-high 21st, and the fifth time he hit a tying homer this season.

Martinez homered to center with two outs in the fourth, his 15th.

Left-hander Martín Pérez then walked the bottom three batters in the Mets’ order to load the bases ahead of Francisco Lindor, who hit a grand slam and a solo shot in Saturday night’s 7-1 win. Manager Mike Shildt summoned Bryan Hoeing, who struck out Lindor.

Vientos homered to center with one out in the seventh, his 21st.

Mets second baseman Jose Iglesias made a sensational play in the sixth when he dove to field Profar’s hard shot and, while lying on his stomach, reached back with his left foot to touch the bag and force Mason McCoy. Lindor, the shortstop, came over and slapped five with Iglesias and hugged him.

The Padres failed to capitalize on a big scoring chance after chasing lefty Jose Quintana in the seventh. Manny Machado hit a leadoff single and Merrill walked with one out, and manager Carlos Mendoza called for Buttó. Pinch-hitter David Peralta hit a ball just foul past third base and then another ball just foul past first base.

While Shildt was hollering at the umpires, Merrill broke for second but over-slid the bag and was tagged out by a diving Lindor on Luis Torrens’ throw. Lindor showed the ump the ball and then slapped the ground four times with his glove and pumped his right fist.

Quintana held San Diego to four hits in 6 1/3 scoreless innings.

Pérez allowed one run and four hits in 3 2/3 innings.

TRAINER’S ROOM

Mets: Placed RHP Paul Blackburn on the 15-day injured list and recalled Huascar Brazobán. Blackburn has a bruised right hand after getting hit by Peralta’s line drive Friday night.

Padres: RHP Yu Darvish threw 54 pitches in a live batting practice session. He said he’ll travel with the team to St. Louis and Tampa, but doesn’t know when he’ll be ready to be activated from the IL.

Mets: LHP Sean Manaea (9-5, 3.48 ERA) is scheduled to start Tuesday night in the opener of a three-game series at Arizona, opposite LHP Eduardo Rodriguez (2-0, 3.94).

Padres: Haven’t named a starter for Monday night’s game that opens a four-game series at St. Louis.

AP MLB: https://apnews.com/hub/mlb