What is life? Whether it is breathing, taking foods, having shelter and clothes or more than this! It is not defined under a definite parameter, every one who spends one’s day to day may be it grave or glad says this is my life which he/she lives on its own capacity. When I consider life, ‘tis all a cheat. Yet fool’d with hope, men favour the deceit; life is not a crust of bread and a corner to sleep in, a minute to smile and an hour to weep in! life is real ! life is earnest! And grave is not its goal. Apart from this life is one’s personal , one is free to live one’s life as he likes but whether it means one can end his natural life, I mean whether one is free to die or not, in legal sense whether right to life includes right to die or not?
Our Indian constitution provides right to life under Article 21. It says that “ no person shall be deprived of his life or personal liberty except according to procedure established by law.” Prior to Maneka Gandhi’s decision , Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive, and not from the Lesislative action. But after the Maneka Gandhi case Article 21 now protects the right to life and personal liberty of citizen not only from the executive action but from the Lesislative action also.
Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. . If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person. Such violation would not fall under the parameters set for the Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21.
US supreme court interpreted the term life. Life does not mean breathing, taking the foods etc. life does not mean animal life because life of animal can be deprived at any time without any procedure established by law but human life is more than animal life.
Justice P.N. Bhagwati observed that life under Article 21 does not include only faculty of body, breathing but all the means of life, means right to live with human dignity. Life does not mean to protect the faculty, limb and body of person but to protect the life with human dignity. To protect the dignity of life. The term life has been extended in number of cases by the supreme court.
Right to life can not be confined to a guarantee against the taking away of life ;it must have a wider application. In Munn V. Illinois[1], field j, observed that 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 scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in Gopalans case that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles.
Thus, in Maneka Gandhi case the court gave a new dimention to Article 21. It was held that procedure can not be arbitrary,unfair or unreasonable one. Right to life is not merely confined to physical existence but it 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[2], said that right to life is not restricted to mere animal life.
Supreme court in Subhas Kumar V. State of Bihar[3] observed that all the means for the protection of life are included within the meaning of life. In area of Dhanbad, certain establishment were proving dangerous to public interest at large and as a social activist Subhas Kumar referred Article 48A of the constitution as a duty of the state to protect the environment from pollution even though directive principles of state policy is not enforceable as per Article 37 of our Constitution. But Supreme Court in this case held that environment is related to life, if state fails to protect the environment it automatically transgress the life of people and it has became the mandatory duty of state to protect the environment from pollution. So, right of pollution free environment is a fundamental right under Article 21. The same observation has been made in the M.C. Mehta V. Union of India and Bandhua Mukti Morcha case. In Bandhua Mukti Morcha, Supreme Court observed that life under Article 21 derives its breath from directive principles of state policy and when state fails to provide this breath, then Supreme Court declared this duty as fundamental rights of citizens under Article 21.
Now, the question is whether life includes public health or not? This issue came before the Supreme Court first of all in case of Permanand Katara V Union of India. Hindustan times published a news titled as— “ Law helps injured person to die “ as Article 47 impose an obligation on state to protect and improve the public health. Supreme Court held that it is duty of all the doctors give the treatment to injured persons. Even certain provisions of CrPc provides that injured person will be treated in government hospital and treatment will be in the presence of police the supreme court said there is no need to call the police. It is the duty of doctors to first prevent the injured persons from death. Supreme Court held that public health is related to life and life can not be deprived by a procedure which is not just, fair and reasonable.
Apart from this right to life also includes right to education. Education is necessity of human life and without education mind can not work properly. The right to education flows from right to life. The right to life under article Article 21 of the constitution and the dignity of an individual can not be assured unless accompanied by the right to education. The fundamental right to speech and expression can not be fully enjoyed unless a citizen is educated and conscious of his individual dignity. Therefore in a landmark Judgement in Mohini Jain v. State of Karnataka[4] the Supreme Court held that right to education is a Fundamental Right under Article 21 of the constitution which can not be denied to a citizen by charging higher fee known as the capitation fee.
In Unni Krishnan case it was held that right to education is a fundamental right under Article 21 as it directly flows from right to life. But as regards its content the court partly overruled the Mohini Jain’s case and held that right to free education is available only to children until they complete the age of 14 years, after that the obligation of the state to provide education is subject to the limits of its economic capacity and development. The obligation created by Article 41, 45 and 46 can be discharged by the state either establishing its own institutions or by aiding, recognizing or granting affiliation to private institutions. In TMA PIA FOUNDATION case an 11-judges bench of the supreme court has over ruled the Unni Krishnan’s decision partly.
As we know our constitution provides life can be deprived only by procedure established by law. In Deena V. Union of India, the constitutional validity of Section 354(5) CRPC was challenged on the ground that hanging by rope as prescribed by this section was barbarous, inhuman and degrading and therefore violative of Article 21. Relying on the report of UK royal Commission, 1949, the opinion of the director general of health services of India, the 35th report of the law Commission and the opinion of prison advisors and forensic medicine the court held that hanging by rope is the best and least painful method of carrying out the death sentence than any other methods.
In Attorney General of India V. Lachman Devi, it has been held that the execution of death sentence by public hanging is barbaric and violative of Article 21. It is true that the crime of which the accused have been found to be guilty is barbaric, but a barbaric crime does not have to be visited with a barbaric penalty such as public hanging.
Custodial death is perhaps one of the worst crimes in a civilized society governed by the rules of law. The court held that any kind of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the constitution whether it occurs during investigation, interrogation or otherwise. In a landmark Judgement of Nilabati Behra V. State of Orissa[5] the Supreme Court awarded compensation of Rs. 1,50,000 to the mother of the deceased who died in the police custody due to beating.
Similarly, a landmark Judgement in DK BASU V STATE OF W.B. the supreme court has laid down detailed guidelines to be followed by the central and the state investigating and securities agencies an all cases of arrest and detention. The matter was brought before the court by Dr. D.K. Basu, executive chairman of the legal aid services, west Bengal through a public interest litigation. He addressed a letter to the chief justice drawing his attention to certain news items published in the Telegraph and the Statesman and Indian Express regarding deaths in police lock-ups and custody. This letter was treated as a Writ Petition by the Court.
Because Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
—Article 6.1 of the International Covenant on Civil and Political Rights
The right to life describes the essential right to live, particularly that a human being has the right not to be killed by another human being. The concept of a right to life is central to debates on the issues of abortion, capital punishment, euthanasia, self defense and war. According to many human rights activists, the death penalty violates this right. There are a number of situations where states may deprive individuals of life itself and to which international human rights law does not raise an objection. The use of the death penalty is one such example. Human rights law does not prohibit the use of the death penalty as a punishment for crimes but does encourage its abolition and seek to limit its use.
The question whether the right to die is included in Article 21 of the constitution came for consideration for the first time before the Bombay High Court in the State of Maharastra V. Maruty Sripati Dubal. Bombay High Court held that Section 309 of IPC is violative of Article 21, Sripati Dubal argued that right to life includes right to die. He said right to life means right to live with human dignity. In reference of R.C. Cooper case Supreme Court held that every person has right to speak or to be silent I.e. freedom of speech and expression, right to carry on the business or not to carry on the business. Every fundamental Rights has positive as well as negative aspect , So this principle should also be applied in Article 21 in case of right to life and right to die. Therefore Bombay High Court held that Section 309 of IPC is unconstitutional because it prohibits right to attempt to suicide because right to life in Article 21 does not include right to die i.e. deprivation of life and liberty except procedure established by Law.
On the other side Andhra Pradesh High Court gives dissenting opinion against Bombay High Court and held that right to life does not include right to die.
In case of P. Rathinam, who was accused before the Court for attempt to suicide filed a petition under Article 32 in the Supreme Court and referred the earlier Judgement of Sripati Dubal and R.C. Cooper.
Justice Hansari accepted the contention of P. Rathinam and upheld the Judgement of Bombay High Court and R.C. Cooper and held that right to life includes right to die. Supreme Court of India referred ancient system i.e. Sati system and religious view that if in a vegetative stage a person wants to end or terminate his life then no one can compel him to continue his life. But Supreme court differentiated between right to die and mercy killing. Right to die involves only the person who is attempting but in mercy killing there is involvement of third person.
But in Gyan Kaur case, Supreme Court settled the matter and held that right to life does not include right to die. Section 306 and 309 of IPC was challenged against Article 21. Gyan kaur and her husband abated one lady to commit suicide and the lady tried to commit suicide but due to interruption of some people the lady was saved and on the evidence of lady, both Gyan Kaur and her husband were prosecuted. An special leave petition was filed by both husband and wife in the Supreme Court and argued that as in P. Rathinam case Section 309 was held violative of Article 21 so, Section 306 is equally violative of Article 21. The second contention of Gyan Kaur was that she was assisting the lady to commit suicide i.e. enforcement of her right to die. So as per Section 309, Section 306 is equally constitutional.
J ; Fali S Nariman and Sali Sorabjee criticized that Judgement of P Rathinam[6] case. Thereafter the case was referred to constitutional bench of Supreme Court. Justice Verma on the following grounds :———-
i) firstly, Article 21 includes only negative aspect of right i.e. no one shall be deprived of his life and liberty. It is termination of right, whereas Article 19 is suspension of right. It is both positive and negative right.
ii) Right to die is unnatural termination of life whereas life means right to live till natural termination of life.
So, it was held that right to life does not include right to die. Supreme court argued that as per RC Cooper case it is true that fundamental rights have both negative and positive aspect but it is not true in case of Article 21 because it only talks about negative aspect of right i.e. no one shall deprive the life and liberty of a person.
In Delhi Domestic Working Women’s Forum V. Union of India, the petitioner women’s forum through a PIL brought the pathetic condition of four domestic women servants who were raped by seven army personnel in a running train. Court expressed the serious concern about the increase of crimes against women and laid down certain guidelines for trial of rape cases. It is necessary having regard to the directive principles contained under Article 38(1) of the Constitution, to set criminal injuries compensation board.
Similarly in Chairman,Railway Board V. Chandrima Das[7], the Supreme Court has held that where a foreign national, a Bangladeshi woman was gang raped compensation can be granted under public law for violation of Fundamental Rights on the grounds of domestic jurisdiction based on constitutional provisions and human rights jurisprudence. The Supreme Court held a writ filed by the victim against the government for compensation is mentionable under article 226 of the constitution. According to language used in Article 21 the state is under an obligation to protect the life of the persons who are not citizens because they also have the right to live so long as they are here, with dignity.
Supreme Court in a landmark Judgement of Bodhisathwa Gautam V. Subhra Chakraborty held that women also have the right to life and liberty. Rape is a crime against basic human rights and is also violative of the victim’s right to life contained in Article 21.
Article 21, 14 and 19 are inter-related. Starting with the Anwarali Sarkar we have a whole chain of cases where validity of laws providing for deprivation of personal liberty has been tested under Article 14 and 19.
Thus Article 21 includes all the invisible rights which are contained in part IV of the constitution even though these are not enforceable under Article 37 of the constitution. But supreme court has interpreted Article 21 as doctrine of invisible rights which are mentioned in part IV but they are enforceable as fundamental rights whenever the state fails to provide the protection of just, fair and reasonable life.
Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.
The expanded scope of Article 21 has been explained by the Apex Court in the case of Unni Krishnan v. State of A.P.[8] and the Apex Court itself provided the list of some of the rights covered under Article 21 on the basis of earlier pronouncements and some of them are listed below:
(1) The right to go abroad.
(2) The right to privacy.
(3) The right against solitary confinement.
(4) The right against hand cuffing.
(5) The right against delayed execution.
(6) The right to shelter.
(7) The right against custodial death.
(8) The right against public hanging.
(9) Doctors assistance.
It was observed in Unni Krishnan’s case that Article 21 is the heart of Fundamental Rights and it has extended the Scope of Article 21 by observing that the life includes the education as well as, as the right to education flows from the right to life.
As a result of expansion of the scope of Article 21, the Public Interest Litigations in respect of children in jail being entitled to special protection, health hazards due to pollution and harmful drugs, housing for beggars, immediate medical aid to injured persons, starvation deaths, the right to know, the right to open trial, inhuman conditions in after care home have found place under it. Through various Judgments the Apex Court also included many of the non-justifiable Directive Principles embodied under part IV of the Constitution and some of the examples are as under:
(a) Right to pollution free water and air
.(b)Protection of under-trial.
(c)Right to every child to a full development.
(d) Protection of cultural heritage.
Maintenance and improvement of public health, improvement of means of communication, providing human conditions in prisons, maintaining hygienic condition in slaughter houses have also been included in the expanded scope of Article 21. This scope further has been extended even to innocent hostages detained by militants in shrine who are beyond the
control of the state.
References:
Books:
i) Pandey J.N., the constitution of India, 48th edition, Central Law Agency.
ii) Shukla V. N. , The Constitution of India,10th Edition; Eastern Book Company, Lucknow.
iii) Jain M.P., Constitutional Law; volume-2 ; 5th Edition, 2003.
Web References:
i) http://www.constitution.org/cons/india/p03019.html
ii) http://indiankanoon.org/doc/1218090/
iii) ibnlive.in.com
iv) www.thehindu.com
[1] (1876) 94 U.S. 113.
[2] AIR 1978 SC 597.
[3] AIR 1991 SC 420.
[4] (1992)3 SCC 666
[5] (1993) 2 SCC 746.
[6] (1994) 3 SCC 394.
[7] AIR 2000 SC 988.
[8] (1993) 1 SCC 645.
Writer Manisha Singh is 3rd YEAR (5th SEM) student of Chanakya National Law University, Patna
