Right to Freedom Article 19-22

August 26, 2024

Article 19

Article 19(1) – Article 19 guarantees to the citizens of India the following six fundamental freedoms:

○ Freedom of Speech and Expression

○ Freedom of Assembly

○ Freedom to form Associations

○ Freedom of movement

○ Freedom to reside and to settle

○ Freedom of profession, occupation, trade or business.

Dimensions of the Right to Freedom of Speech and Expression

Right to Silence: The right to speech implies the right to silence, meaning one cannot be forced to listen. The use of loudspeakers, for instance, is not a matter of right under Article 19(1).

Right to Receive Information: This right includes acquiring and disseminating information through any media, including print, electronic, or audio-visual forms. The Supreme Court in People’s Union for Civil Liberties emphasized that the right to information, especially regarding public acts and election candidates, is integral to Article 19(1)(a).

Freedom of the Press in India

Freedom of the press in India is implied from the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. There is no specific provision ensuring press freedom, and it stands on the same footing as the freedom of speech of citizens, without any distinct privilege.

Key Cases on Press Freedom

Romesh Thapar v. State of Madras: The Supreme Court ruled that freedom of speech and press is essential for democratic organization. The ban on the circulation of the English journal “Cross Road” by the Government of Madras was deemed a violation of this freedom.

Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer: The Supreme Court reiterated that while press freedom is not expressly guaranteed, it is implicit in the

freedom of speech and expression. The press is considered the fourth estate, and its freedom is a measure of a state’s democratic credentials.

Sakal Papers Case: An Act and a government order regulating the number of pages, supplements, and advertisement size in relation to the newspaper’s price were challenged. The Supreme Court held that such regulations violated the freedom of the press.

Censorship of Films

In K.A. Abbas v. Union of India, the Supreme Court upheld film censorship under Article 19(1)(a), stating that films can stir emotions more deeply than other art forms and can therefore be censored on the grounds mentioned in Article 19(2).

Telecasting

In Cricket Association of Bengal, the Supreme Court addressed the freedom of telecasting vis-a-vis Article 19(1)(a). The Court held that telecasting and broadcasting are forms of communication protected by the freedom of speech and expression, subject to reasonable restrictions under Article 19(2).

Key Propositions by the Supreme Court

1. Public Property: Airwaves or frequencies are public property and must be regulated by a public authority to prevent rights violations and monopolization.

2. Right to Information: The right to impart and receive information is a facet of the right to freedom of speech and expression. This includes access to telecasting but with limitations due to the public nature of airwaves.

3. Public Control: Broadcasting should be under public control, not government control. The government must establish an independent authority to regulate airwaves.

Supreme Court’s Broad Interpretation

The Supreme Court has broadly interpreted Article 19(1)(a) to include broadcasting and telecasting within its ambit, emphasizing the need to free these activities from government monopolistic control. This ensures the right to receive and impart information, educating and entertaining the public.

Right to know

The fundamental principle involved here is the people’s right to know. In National Anthem case (1936) 3 SCC 615, held that the freedom of speech and expression under

Art. 19(1)(a) also includes the freedom of silence.

Freedom of Speech and Expression and Press/Print

The Press has the same rights as those of an individual. It cannot claim better rights. The freedom of press is not confined to newspapers and periodicals. It includes also pamphlets, circulars, and every sort of information which affords a vehicle of information and opinion [Lowell v Griffin ]

In Express Newspapers v Union of India (AIR 1958 SC 578) the validity of the Working Journalists Act, 1955 was challenged The Act was enacted to regulate conditions of services of persons employed in newspaper industry e g hours of work, leave, fixation of wages, etc. It was contended that the Act would adversely affect the financial position of newspaper, and would curtail circulation, arid hence the Act was violative of Art. 19(1 )(a). The Court held the Act valid. It said that press was not immune from laws of general application or ordinary forms of taxation, or laws of industrial relations The Act was passed to improve the service condition of workmen in the newspaper industry, and, therefore, impose reasonable restriction on the right guaranteed by Art. 19( l)(a)

Freedom of Speech and Expression and Contempt of Court

In Re Arundhati Roy, as a mark of protest against the Narmada Bachao Andolan judgement, the respondents led a huge crowd and held a ‘dharna’ in front of the Supreme Court shouting abusive slogans against the Court including slogans ascribing lack of integrity and dishonesty to this institution. The Court observed: The Constitution of India has guaranteed freedom of speech and expression to every citizen as a fundamental right. While guaranteeing such freedom, it has also provided under Art. 129 that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Need for Restrictions on Freedoms

In A.K. Gopalan v State of Madras (AIR 1951 SC 21), the court observed: “Man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals.”

Tests of ‘Reasonable Restriction’

The Supreme Court has laid down the following guidelines for determining the reasonableness of restrictions:

1. The term “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of his right should not be arbitrary or of an excessive nature beyond what is actually required in the interest of the public.

2. The word “reasonable” implies intelligent care and deliberation, i.e. choice of a course which reason dictates.

3. Reasonableness demands proper balancing.

4. The restrictions on the rights can only be imposed by a “law” and not executive or departmental instructions.

5. It is the courts and not the legislature which has to judge finally the reasonableness of the restriction.

Permissible Restrictions under Art 19

Security of State and Public Order

Article 19(2) distinguishes between “public order” and “security of state,” with the former being broader. Public order encompasses minor disturbances like small riots or breaches of peace, whereas security of state pertains to more severe threats. In Kedar Nath v. State of Bihar, the Supreme Court upheld Section 124A of the IPC (punishing sedition) by interpreting it to penalize only activities intended or tending to incite disorder.

Sovereignty and Integrity of India

The Criminal Law Amendment Act, 1961, penalizes questioning India’s territorial integrity in a manner prejudicial to national security.

Friendly Relations with Foreign States

Restrictions on speech to maintain friendly relations with foreign states are to prevent propaganda that could embarrass India. However, this can also restrict legitimate criticism of foreign policy.

Incitement to an Offence

Article 19(2) includes “incitement to an offence,” allowing punishment for inciting crimes. While serious offences like murder may affect public order, lesser offences like bribery or forgery may not.

Contempt of Court

Freedom of speech is balanced with the judiciary’s independence and integrity. The Supreme Court (Article 129) and High Courts (Article 215) can punish contempt. The Contempt of Courts Act, 1952, allows High Courts to punish contempt of other courts.

Defamation

Defamation, a crime and a tort, involves publishing statements that harm a person’s reputation. Section 499 of the IPC defines defamation, protecting an individual’s reputation.

Decency or Morality

Standards of decency and morality vary over time and across societies. Sections 292 to 294 of the IPC address offences like selling obscene materials or committing obscene acts in public. These laws aim to promote public decency and morality and have been upheld as valid.

Article 20

Protection in Respect of Conviction for Offences

Under Art. 20, the Constitution of India has taken care to safeguard the rights of persons accused of crimes (citizens or non-citizens, including a corporation). This Article cannot be suspended even during an emergency by an order under Art. 359. Art. 20 constitutes a limitation on the legislative powers of the Union and State Legislatures. Art. 20 has three clauses. Each of these clauses gives protection in respect of conviction for offences:

Art. 20 (I): Ex-Post Facto Law

(a) Prohibition against enacting ex post facto penal law. In other words, if an act or omission was innocent when done the legislature cannot make a law which declares such act or omission a crime. The legislature cannot make law which provides for punishment of acts or omissions which were committed prior to the date when the Act came into force.

(b) A law cannot aggravate the crime. A law cannot change the punishment and make it greater and apply it to previous offences. The new punishment (if greater) may be applied only from a future date.

Prohibition against conviction – Art. 20(1) not only prohibits the legislature from enacting ex post facto laws depriving a person of the protection given by this article but it also lays down that no person shall be convicted of an offence. This indicates that the courts too are forbidden to pronounce conviction on the basis of a law violating the two protections set out in Art. 20(1).

In Transmission Corpn., A.P. v Ch. Prabhakar, a Division Bench of the Supreme Court referred the following question for the decision of the larger Bench: Whether constitutional guarantee enshrined in Art. 20(1)… also prohibits legislation which aggravates the degree of crime or makes it possible for the accused to receive greater punishment even though it is also possible for him to receive the same punishment under the new law as could have been imposed under the prior law or deprives the

accused of any substantial right or immunity possessed at the time of the commission of the offence charged .

Benefit of reduction in punishment – Art. 20(1) does not bar the accused from taking benefit of the reduction in punishment (i.e. modifications of the rigour of a criminal law). The rule of beneficial construction required that an ex-post facto law could be applied to reduce the punishment.

where a boy of 16 years of age was undergoing rigorous imprisonment for six months for house trespass and outraging the modesty of a girl, and meanwhile the Probation of Offenders Act, 1958 was passed which provided that a person below the age of 21 years should not ordinarily be sentenced to imprisonment, it was held’ that the ex-post facto law, which was beneficial to the accused did not fall within the prohibition of Art. 20(1) (Ratan Lal v State of Punjab AIR 1965

SC 444) It may be noted that the Probation of Offenders Act was not a penal statute; it was a social welfare legislation aiming to reform the offenders. It is the penal laws which have a prospective operation. In that case, the accused boy could not have the benefit of the legislation.

A rt. 20(2): DoubleJeopardy

Art. 20(2) provides that “no person shall be prosecuted and punished for the same offence more than once.” The principle of double jeopardy has been already recognized in the Sec. 26, General Clauses Act and Sec. 300, Cr. PC The object is to avoid the harassment, which must be caused to a person for successive criminal proceedings where only one crime has been committed by him.

This embodies the common law (English) maxim nemo debet bis vexari- ‘no man shall be put twice in peril for the same offence.’ The U.S. Constitution also contains this provision- ‘no person shall be twice put in jeopardy of life or limb.’ This is commonly called ‘double jeopardy.’ Double jeopardy has two aspects: (a) autrefois convict and (b) autrefois acquit.

The plea of autrefois convict avers that the defendant has been previously convicted in respect of the same offence and autrefois acquit is the plea that the accused has been acquitted on a charge for the same offence for which he is being prosecuted. Under the U.S. law, the protection is available not only against a second punishment but even against the second trial for the same offence, irrespective of whether the accused was acquitted or convicted in the first trial.

The Constitution of India protects a person from being prosecuted and convicted more than once for the same offence. Both prosecution and punishment must co-exist for the operation of Art. 20(2). Where a person having been prosecuted is acquitted, he can be prosecuted for the same offence again. In other words, Art. 20(2) contains the principle of autrefois convict only and does not include autrefois acquit. It is narrower than the American and English doctrine of double jeopardy.

Administrative and Departmental Proceedings – The protection afforded by Art. 20(2) is attracted only in respect of punishment inflicted by court of law or judicial tribunal. In other words, the term “prosecution”, in the context of Art 20(2), means initiation or starting of any proceeding, criminal in nature, before a court/judicial tribunal. Thus, if the proceedings are held under any revenue authorities, Art. 20(2) has no application.

Thus, a Government servant prosecuted and convicted by a court of law can be punished under departmental proceedings for the same offence, A person who has been fined under the Customs Act can still be prosecuted under the Foreign Exchange Regulation Act because the customs authority is not a court (Maqbool Hussain v State of Bombay AIR 1953 SC 325). An inquiry and subsequent dismissal of a government servant is no bar to prosecution for an offence under the Indian Penal Code and Prevention of Corruption Act. The inquiry is not prosecution in a court and disciplinary action is not a punishment given by a court (S. A. Venkataraman v UOI AIR 1954 SC 375).

Art. 20(3): Protection against Self-Incrimination

Art. 20(3) lays down that “no person accused of any offence shall be compelled to be a witness against himself. In other words, the accused person is protected against incriminating himself under compulsion e g. ‘making a statement which makes the case against the accused person at least probable considered by itself. It can be claimed by natural persons as well as by corporations.

This clause is based on the maxim nemo tenetur prodere accussare seipsum, which means that ‘no man is bound to accuse himself. The accused is presumed to be innocent till his guilt is

proved and it is the duty of the prosecution to establish his guilt. Thus, the accused need not make any admission or statement against his free will.

Clause (3) of Art. 20 is an attempt to prevent torture of the accused by investigating agencies for the purpose of extracting confession from him. In the 18th century in England and even in the 20fh century in communist Russia, Nazi Germany and many other countries torture was a legal procedure. The Universal Declaration of Human Rights proclaims: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ (Art. 5).

Person accused of an offence – This immunity is available only to a person who is ‘accused of an offence’ (M R Sharma v Satish Chandra AIR 1954 SC 300) A person cannot claim the protection if at the time he made the statement, he was not an accused but becomes an accused thereafter. Further, unlike the USA and England, the protection in India is confined to ‘accused’ only and not other witnesses.

In Nandini Sathpathy v PL Dani (AIR 1978 SC 1025), during the course of the investigation, the accused was interrogated with reference to a long list of questions given to her in writing. She refused to answer those questions claiming the protection of Art.20(3). It was held that the protection contained in A>1 20(3) extends back to the stage of police investigation not commencing in court only, since such inquiry was of an accusatory nature Further, the ban on self-accusation and the ‘right to silence’ extends beyond that case and protects the accused in regard to other offences, pending or imminent, which might deter him or her from voluntary disclosure of incriminatory nature.

Article 21

“No person shall be deprived of his life or personal liberty except according to the procedure established by law’ (Art. 21).

Article 21 is one article which has been so transformed by the Supreme Court that it now encompasses all conceivable human rights within its ambit. On a plain reading it is a directive to the State to refrain from infringing the right to life or personal liberty of a person. The courts have taken a very liberal view and transformed the negative injunction to a positive mandate to do aii things which will make life worth living. It is now well-settled that Art. 21 has both negative and affirmative dimension. After the Maneka Gandhi’s decision, Art. 21 now protects the right of life and personal liberty not only from the executive action but from the legislative action also. Prior to it, the State could interfere with the liberty of citizens if it could support its action by a valid law. The right guaranteed in Art. 21 is available to citizens as well as non- citizens (Chairman, Railway Board v Chandrima Das AIR 2000 SC 988).

Personal Liberty: Meaning and Scope

In A.K. Gopalan v State of Madras (AIR 1950 SC 27), the petitioner challenged the validity of his detention under the Preventive Detention Act, 1950, on the ground that it was violative of his right to freedom of movement under Art. 19(1 )(d) which is the very essence of personal liberty guaranteed by Art, 21 The court took the view that since the word ‘liberty’ is qualified by the word ‘personal’, which is a narrower concept and so it does not include all that is implied in the term ‘liberty’ (i.e. all the freedoms). Thus, personal liberty’ only means ‘liberty relating to or concerning the person or body of the individual.’

Fazal Ali, J., however, in his dissenting opinion, gave a wide and comprehensive meaning to the words ‘personal liberty’ as consisting of freedom of movement and locomotion. Thus, any law which deprives a person of his personal liberty must satisfy the requirements of Arts 19 and 21 both.

In Kharak Singh v State of Punjab (AIR 1963 SC 1295), the term ‘personal liberty’ was interpreted to be a compendious term including within itself all the varieties of rights which go to make up the personal liberty of man other than those dealt with in Art. 19(1) While Art. 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Art. 21 takes in and comprises the residue. It is true

that in Art. 21, the word ‘liberty’ is qualified by a word ‘personal’, but this qualification is employed in order to avoid overlapping between those incidents of liberty which are mentioned in Art. 19(1).

However, in Govind v State of M.P. (AIR 1975 SC 1379), held that depending upon the character and antecedents of the persons subjected to surveillance, and the object and limitations under which surveillance is made, it cannot be said that surveillance by domiciliary visits would always be unreasonable restriction upon the 5 ht of privacy. The petitioner in this case was shown to be a dangerous criminal Vvh0se conduct showed that he was determined to lead a criminal life. The regUlations by police, upheld by court, as they had the force of law.

In Francis Coralie v Delhi Administration (AIR 1981 SC 746), the validity of the provisions of the COFEPOSA which provided that a detenu (a person placed under preventive detention) can have interview with his lawyer only after obtaining permission of the District Magistrate, and that too, in the presence of the custom officer, and, permitted interview of the family members only once in the month, were challenged on the ground that they are arbitrary, unreasonable and violative of Arts. 14 and 21. The Supreme Court held that the detenu’s right to have an interview with his lawyer and family member is part of his ‘personal liberty guaranteed by Art. 21, and cannot be interfered with except in accordance with reasonable and just procedure established by law The word ‘personal liberty’ in Art. 21 is of the widest amplitude and it includes the “right to socialise” with members of family and friends, subject of course, to any valid reasonable prison regulations.

In the Maneka Gandhi case, the Supreme Court has given the widest possible interpretation to the word personal liberty’. A valid law interfering with personal liberty must satisfy a ‘triple test

(i) It must prescribe a procedure

(ii) The procedure must withstand the test prescribed in Art. 19

(iii)it must not infringe Art. 14. Thus, the procedure must be just, fair and reasonable. Scope of ‘Personal Liberty’

Leading Case: Facts – Maneka Gandhi V Union Of India, In this case, the petitioner’s passport was impounded by the Central Government under Sec. 10(3)(c) of the Passport Act, 1967. The Act authorised the Government to do so if it was ‘necessary in the interest of general public’. Though sub clause (5) of this section required the passport authority to record reasons for impounding passport and furnish to the

holder of the passport a copy of the same; but this sub sec, further provides that if passport authority is of the opinion that it will not be in the interest of sovereignty and integrity of or security of India, or in the interest of general public, it may decline to furnish a copy, and which was done so in the present case.

The petitioner challenged the validity of the said order on the following grounds:

(i) Sec. 10(3)(c) was violative of Art. 14 as conferring an arbitrary power, since it did not provide for a hearing of passport holder before impounding passport.

(ii) Sec. 10(3)(c) was violative of Art. 19(1)(a) and (g) since it permitted imposition of restrictions not provided in clause (2) or (6) of Art. 19.

(iii) Sec. 10 (3)(c) was violation of Art. 21, since it did not prescribe ’procedures within the meaning of the Art. 21. The reason for the order were, however, disclosed in the affidavit filed on behalf of the Government which stated that the petitioner’s presence was likely to be required in connection with the proceedings before a Commission of Inquiry.

Issues and Observations – Various issues considered in the present case, were as follows: (a) Inter-relation of Arts. 14, 19 and 21 – In Gopalan’s case, the Supreme Court held that the Art. 19 had no application to laws depriving a person of his life and personal liberty enacted under Art. 21. It was held that Arts. 19 and 21 dealt with different subjects. Thus, so long as a saw of preventive detention satisfied the requirements of Art. 22, it would not be required to meet the challenges of Art. 19. This view proceeded on the assumption that certain articles in the Constitution exclusively deal with specific matters. Thus, Art. 22 is a self-contained code.

In R.C. Cooper v Union of India (AIR 1970 SC 564), the doctrine of exclusiveness was seriously questioned. It was held that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression ‘personal liberty’ in Art. 21 must be so interpreted as to avoid overlapping between that Article and Art. 19(1).

In the present case, the Court overruled Gopalan’s view, and held that Art. 21 is controlled by Art. 19 i.e. it must satisfy the Art. 19 requirements also. Art. 21 does not exclude Art. 19, and even when there is ‘no infringement of fundamental rights under Art, 21, such a law in so far as it abridges or takes away any right under Art. 19, would have to meet the challenges of Art. 19, and ex-hypothesi of Art. 14.

In Bandhua Mukti Morcha v UOI (AIR 1984 SC 802), an organisation dedicated to the cause of release of bonded labours informed the Supreme Court about a large number of labourers working in some stone-quarries under “inhuman and intolerable conditions”. The court observed that right to live with human dignity,

derives its life breath from the Directive Principles of State Policy, and therefore, it must include protection of health and strength of workers, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, just and humane conditions of work. Since the Directive Principles are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials, but where legislation is already enacted providing these basic requirements to workmen, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State would amount to denial of the right to live with human dignity enshrined in Art. 21. without exploitation.

IMPLIED FUNDAMENTAL RIGHTS (UNDER ART. 21)

Right to Dignity

In Maneka Gandhi case, the court held that the right to iive is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. In Francis Coralie case, held that the right to live includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life, such as adequate nutrition, clothing and shelter, and facilities for reading and writing, freely moving about and mixing with fellow human being.

In P.U.D.R. v UOI (AIR 1982 SC 1473), held that non-payment of minimum wages to 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 Art. 21. Rights and benefits conferred on the workmen under various labour laws are “clearly intended to ensure basic human dignity to workmen and if they are deprived of these rights and benefits that would clearly be a violation of Art. 21.” Thus, nonimplementation by the private contractors and non- enforcement by the State authorities of the provisions of various labour laws violate the fundamental right of workers to “live with human dignity”.

In Vishaka v State of Rajasthan (AIR 1997 SC 3011), the Apex Court’s attention was focussed towards prevention of sexual harassment of working women in all work-places. Held that it resulted in violation of the fundamental rights of “Gender Equality” and the “Right to Life and Liberty” enshrined in Arts. 14, 15 and 21. It was also held to be violation of the victim’s fundamental right under Art. 19(1 )(g) to practise any profession or to carry on any occupation, etc. as a “safe” working environment is needed for that. The court observed: “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally accepted basic human right. In the absence of suitable domestic

legislation in this sphere, international conventions/norms, so far as they are consistent with the constitutional spirit, can be relied on, viz. Convention on the Elimination of All Forms of Discrimination against Women.”

The court laid down some guidelines/ norms to be strictly observed by the employers/responsible persons in work places and other institutions, until a suitable legislation were enacted to occupy the field. The guidelines are to be applicable to both public and private sector.

Right to Privacy

In Kharak Singh v State of U.P (AIR 1963 SC 1295) the court held that the term life as used in Art. 21 meant something more than mere animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed. An unauthorised intrusion into a person’s home (by way of domiciliary visits of policemen) and the disturbance caused to him is the violation of personal liberty of the individual. But, in Govind v State ofM.P. (AIR 1975 SC 1379), the court held that Police Regulations authorising domiciliary visits were constitutional. As regards the right of privacy, the court said that right to privacy would necessarily have to go through a process of case by case development.

In Malak Singh v State of Punjab (AIR 1981 SC 760), the right of privacy of a citizen as a fundamental right was emphasised by the court. In State of Maharashtra v Madhulkar Narain (AIR 1991 SC 207), held that the right to privacy is available even to a woman of easy virtue and no one can invade her privacy.

In a landmark judgment (The Hindustan Times, 3.12.93), the Madras High Court held that a minor girl had the right to bear a child. In this case, a 16-year old minor girl became pregnant and wanted to have the child against the opposition from her father. The public prosecutor, on behalf of the girl, argued that she had the right to bear the child under the broader right to privacy. Even a minor had a right to privacy under Art. 21. The Constitution does not make any distinction between minor and major in so far as fundamental rights are concerned. The court held that in the case of a mature and understanding minor, the opinion of parent/guardian was not relevant

In R. Rajagopal v State of T.N. (1994) 6 SCC 632, held that the right to privacy or the right to be let alone is included in Art. 21 and a “citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters”. None can publish anything concerning the above matters without the person’s consent, whether truthful or otherwise and whether laudatory or critical. If he does so he would be violating the right of privacy of the person concerned and would be liable for action for damages However, this

principle would not apply if the citizen were a busy body vvith a penchant for throwing himself into controversies. Moreover, whatever is on public records can be published. And the right to privacy or the remedy of action for damage is simply not available to public official as long as the criticism concerns the discharge of their public duties.

In Mr. ‘X’ v Hospital ‘Z’ (Dr. Tokugha Yepthomi v Apollo Hospital) (AIR 1999 SC 495), the appellant (Mr. ‘X’, a doctor) was to marry a girl, but the marriage was called off on the ground of blood test conducted at the respondent’s hospital (‘Z’) in which the appellant was found to be HIV positive. The appellant moved the Supreme Court for violation of his ‘right of privacy’. The court rejected the appellant’s contentions by holding that right to privacy is not absolute. It may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others In the instant case, another person (appellant’s would-be-bride) was saved in time by the disclosure (‘right to be informed’). Moreover, where there is a clash of two fundamental rights, namely, the appellant’s right to privacy as part of right to life and his fiancee’s right to lead a healthy life which is her fundamental right under Art. 21, the right which would advance the public morality or public interest, would alone be enforced through the Process of court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the hall known as courtroom, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.”

Right to Food

In PUCL v Union of India [2000 (5) SCALE], the Supreme Court recognizing the right to food’ has held that the people who are starving because of their inability to purchase food grains have right to get food under Art. 21 and therefore they ought to be provided the same free of cost by the States out of surplus stock lying with the States The people entitled in such situation are those who are aged, infirm, disabled, destitute women/men, pregnant and lactating women and destitute children.

Right to Livelihood (Right to Work)

In Olega Tellis v Bombay Municipal Corpn. (AIR 1986 SC 180), (also known as pavement dwellers’ case), the petitioners challenged the validity of Bombay Municipal Corporation Act, 1888, which empowered municipal authorities to remove their huts from pavement and public places on the ground that their removal amounted to depriving them of their right to livelihood, and hence it was violative of Art. 21. The court held that the world life in Art. 21 includes the right to livelihood also, because no person can live without the means of livelihood. If it is not so, the easiest way of depriving a person of his right to life would be to deprive him of his

means of livelihood. The court, however, held that right to livelihood can be curbed or curtailed by following just and fair procedure. The restrictions placed on the right of livelihood of slum dwellers are reasonable because it is in the interest of general public. Public streets are not meant for carrying on trade or business.

Right to Shelter

In Chameli Singh v State of U.P. (1996) 2 SCC 549, it was held that the right to shelter is a fundamental right under Art. 21. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society.

Right to Legal Aid

Art. 22(1) of the Constitution provides that no person who is arrested shall be denied the right to consult a legal practitioner of his choice. Further, the State is under a constitutional mandate (as implicit in Art. 21) to provide free ‘legal-aid’ to an indigent or poor person (a detainee or an accused person). The right of the arrested person to have a counsel of his choice is fundamental and essential to fair trial.

In Hussainara Khatoon v Home Secy., State of Bihar (1980) 1 SCC 98, the Supreme Court observed: “The right to free services is dearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Art. 21.”

Right to Clean Environment

In recent times, the judiciary in India has extended to new dimensions, the concepts ‘right to life’ and ‘procedure established by law’ in Art. 21. The Supreme Court, in several cases, interpreted the right to life and personal liberty to include the right to a wholesome environment. The High Courts of the States like Rajasthan, Himachal Pradesh and Kerala too, have observed that environmental degradation violates the fundamental right to life.

Similarly, while interpreting Art. 21, in Ganga Pollution (Tanneries) Case (AIR 1988 SC 1037), Justice Singh justifying the closure of polluting tanneries observed:’ “We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people”

Also in Shriram Gas Leak Case (AIR 1987 SC 1086), the court evolved the principle of absolute liability of compensation through interpretation of the constitutional, provisions relating to right to live and to the remedy under Art. 32 for violation of fundamental rights. The premises on which the decision is rendered is clear and unambiguous – the fundamental right to a clean and healthy environment The court

said that the State had power to restrict hazardous industrial activities for the purpose of protecting the right of the people to live in a healthy environment. Further, the right to live contains the right to claim compensation for the victims of pollution hazards.

While the apex court was reluctant for a short period to confer specifically a right to a clean and humane environment under Art. 21 of the Constitution, various High Courts in the country went ahead and enthusiastically declared that the right to environment was included in the right to life concept in Art 21. In comprehending the right to environment, the High Courts were more specific and direct.

Article 21A

Right to Education

The following Article has been added by the Constitution 86th Amendment Act, 2002 in the Constitution of India (taking into consideration the 165th Report of the Law Commission of India and the recommendations made by the Standing Committee of the parliament.

“Art. 21-A: The State shall provide free and compulsory education to all children between the age of 6 and 14 years in such manner as the State may, bylaw, determine” (Fundamental Right).

It casts a duty on the State to provide free and compulsory education to all children between the age of 6 to 14 years. To implement this right the State will enact appropriate laws. Education being a concurrent subject laws may be enacted either by the Union or the States.

In Mohini Jain v State of Karnataka (AIR 1992 SC 1858), the two-judge bench of the Supreme Court held that every citizen has a ‘right to education’ under the constitution. The framers of the Constitution made it obligatory for State to provide education for its citizens. The right to education is concomitant to the fundamental rights. Thus, right to freedom of speech and expression cannot be fully enjoyed unless a citizen is educated and conscious of individualistic dignity. Without education, dignity of the individual can’t be assured. Art. 21 includes the right to live with human dignity and all that goes along with it. The ‘right to education’ flows directly from the right to life because of its inherent fundamental importance (in the life of an individual).

The court further observed: The State is under a constitutional mandate to provide education at all levels and thus establish educational institutions at all levels (including professional education like medicine, engineering) for citizens (either State owned or State-recognised). The ‘Capitation fee’ (charging amount beyond

what is permitted by law i.e. in excess of prescribed fee) brings to the fore a clear class basis, and makes the availability of education beyond the reach of poor. Admission of non-meritorious students by charging capitation fee strikes at the very root of the Constitutional scheme and our educational system. Education in India has never been a commodity for sale.

In Unni Krishnan v State of A.P. (“Capitation Fee Case”) (AIR 1993 SC 2178), the five- judge bench, by 3-2 majority held that admission to all recognised private educational institutions particularly medical and engineering, shall be based on merit, but 50% of seats in all professional colleges are filled by candidates prepared to pay a higher fee. The system devised by us, the court said, would mean correspondingly more financial burden on affluent students; whereas in the system prevalent in Andhra Pradesh, the financial burden is equally distributed among all the students, as a result of which a poor meritorious student often unable to pay the enhanced fee prescribed by the government for such colleges. This is unjust and a violation of Art. 14.

Article 22

As Indian constitution is wedded to Democracy and Rule of Law, the concept of free and fair trial is a constitutional commitment for which the cardinal principle of Criminal Law revolves around the Natural Justice wherein, even the accused or guilty person is treated with a human treatment. The law of the land requires the prosecution to stand at its own legs and to prove the guilt of the accused beyond the shadow of a reasonable doubt.

The accused persons are also granted certain rights, the most basic of which are found in the Indian Constitution. An accused has certain rights during the course of any investigation; enquiry or trial of offence with which he is charged, and he should be protected against arbitrary or illegal arrest.

Our constitution is based on fundamental that Let Hundreds Go Unpunished, But Never Punish An Innocent Person Right to get a fair representation in a criminal procedure is a facet of Right to Equality (Article 14). Article 20 says that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Thus, accused is given fair equality as par with other citizen.

Also by the judicial voice, a wider ambit has been given to right to life and liberty and thus accused are given a human treatment in jails fulfilling reformative approach (Article 21). Article 22 talks that No person shall be detained in custody

without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, legal practitioner of his choice. The exception to the right is that it is not to be applied on alien. Thereby, these rights under constitution are inherent rights and cannot be altered or changed.

Cases

In, Nandini Sathpathy v. P.L.Dani 1978 SCR (3) 608,wherein it was held that no one can forcibly extract statements from the accused and that the accused has the right to keep silent during the course of interrogation (investigation).

In, D.K. Basu v. State of W.B (1997) 1 SCC 416,the Supreme Court, in this case, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention which include, the arresting authority should bear accurate, visible, and clear identification along with their name tags with their designation, the memo be signed by the arrestee and family member, the family or the friend must be told about the arrest of the accused, The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation and many other.

PREVENTIVE DETENTION LAWS (Art. 22)

Preventive detention means to detain a person so that to prevent that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions may be done by the person concerned which will be prejudicial to the state. Preventive Detention is the most contentious part of the scheme fundamental rights in the Indian constitutions Article 22(3) provides that if the person who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available to that person.

History of The Preventive Detention Law And Position In Other Countries

India became free in 1947 and the Constitution was adopted in 1950. It is extraordinary that the framers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity to the Preventive Detention Laws and that too in the Fundamental Rights chapter of the Constitution. Some parts of Article 22 are not Fundamental Rights but are Fundamental Dangers to the citizens of India for whom and allegedly by whom the Constitution was framed, to usher in a new society, with freedom of expression and freedom of association available to all. In 1950 itself, a Prevention Detention Act

was piloted by Sardar Patel, who said that he had several ‘”sleepless nights'” before he could decide that it was necessary to introduce such a Bill The first Preventive Detention Act was enacted by the Parliament on 26th February 1950. And in 1950, under this Act, ordinary disturbers of order and peace were not arrested, but a political leader of A.K. Gopalan’s eminence was arrested. Even from that initial action, it was evident that these Acts were meant to curb political dissent, and that legacy has been and is being followed.

From the time the country secured its Independence till 1977, except for a period of nearly two years from 1969-1971, free India had the dubious distinction of having these extraordinary, mischievous and ‘unlawful’ laws throughout. It is worth bearing in mind that no other civilized country, including Britain which brought Preventive Detention laws here, felt compelled to introduce such laws during peace time. Even during the last World War, most European countries and the USA, who were all directly involved in the war, had no such law. During the War, England introduced a Preventive Detention Law to the effect that a person could be detained only on the subjective satisfaction of the Home Minister of Great Britain and not on the subjective satisfaction of a puny magistrate, as it the case here. Further only one person.

Sir Osward Mosley, a rabid Nazi, was detained under this Act. In1971, because of tremendous political turmoil which resulted in assassinations and destruction all over Ireland, the British Government introduced preventive Detention Act for Ireland. But it immediately formed a committee headed by Lord Gardiner to probe and to find out if it was necessary to have such an Act even in Ireland. The Gardiner Committee Report reads: ‘”Preventive Detention can only be tolerated in any democratic society in the most extreme circumstances. It must be used with the utmost restraint and retained only so long as it is strictly necessary. Our Constitution, since its enactment, has had a peculiar feature the fundamental rights guaranteed under it allow preventive detention without trial. Article 22 after providing that any person arrested must be produced before a court within 24 hours of arrest tenders this almost nugatory by permitting the state to preventively detain persons without any judicial scrutiny. The debates in the Constituent Assembly show that the need to provide for preventive detention was generally accepted.

The observations of Alladi Krishnaswamy Ayyar, a distinguished jurist is typical: he described preventive detention a necessary evil because in his view there were people detained to undermine the sanctity of the Constitution, the security of the State and even individual liberty. What the members tried to do was not to prohibit preventive detention but to incorporate safeguards against its abuse in the Constitution by limiting the period, by giving effective powers to the advisory board to review detention orders, etc. This they failed to get. It was left to Parliament to

prescribe the period and even that limit was flouted in spirit by the device, often adopted, of serving a fresh detention order a few hours after releasing the detenu, advisory boards had no power to go into the merits of the detention. The solution is simple; scrap all laws of preventive detention. It is, however, difficult to see that happening in the near future.

I would suggest a first step which would remove some of the more undesirable features of preventive detention. The only justification for preventive detention is to safeguard society from persons who are out to destroy it. If that is the justification and that is the only justification officially given, let it be provided that all those detained under any detention law be kept either in the ordinary jails or in special detention centerâ€TMs run by the jail authorities. Such a change does not require fresh legislation. Both the National Security Act and Cofeposa authorize the State to specify the place and conditions of detention. The state must be directed to ensure that detenus must be taken to ordinary jails within 24 hour of detention and be kept there. In the past, that was the pattern of preventive detention. Thousands of nationalists rounded up by the British during the Independence movement were so detained. NO order of detention can be passed to aid the police or other authorities to investigate the crime or other offences; what justifies to investigate the crime or other offences what justifies detention is the satisfaction of the appropriate authority that the detention of a particular person is necessary.

Once a detention order is passed, that is the end of the matter as far as the detaining authorities are concerned that being so the detaining authority must have no access to the detenus. Even after such a change since the laws will enable the detaining authorities to detain without trial persons believed to be indulging in grave anti-social activities the object, and ostensibly at least, the only object of such laws can still be achieved. The state cannot have any rational objection to such a change. Both the National Security Act and Cofeposa merely authorize the detention of persons who see. It is argued, a danger to society if free. If the state does object to such changes

it will expose its true motive and also the manner in which detention laws are being abused persons are detained so as to extract information from them.

Object of The Preventive Detention:

The object of Preventive Detention is not to Punish but to prevent the detenu from doing something which is prejudicial to the State. The satisfaction of the concerned authority is a subjective satisfaction in such a manner. It comes within any of the grounds specified like

# Security of the State,

# Public Order,

# Foreign affairs,

# Services essential to the community.

Mariappan vs The District Collector And others

It was held that object of detention and the detention laws, is not to punish, but, to prevent the commission of certain offences.

Grounds For Preventive Detention:

Preventive detention can, however, be made only on four grounds. The grounds for Preventive detention are:

# Security of state, maintenance of public order,

# maintenance of supplies and essential services and defense,

# foreign affairs or security of India.

A person may be detained without trial only on any or some of the above grounds. A detainee under preventive detention can have no right of personal liberty guaranteed by Article 19 or Article 21.

Safeguards Provided In Constitution:

To prevent reckless use of Preventive Detention, certain safeguards are provided in the constitution.

# Firstly, a person may be taken to preventive custody only for 3 months at the first instance. If the period of detention is extended beyond 3 months, the case must be referred to an Advisory Board consisting of persons with qualifications for appointment as judges of High Courts. It is implicit, that the period of detention may be extended beyond 3 months, only on approval by the Advisory Board.

# Secondly, the detainee is entitled to know the grounds of his detention. The state, however, may refuse to divulge the grounds of detention if it is in the public interest to do so. Needless to say, this power conferred on the state leaves scope for arbitrary action on the part of the authorities.

# Thirdly, the detaining authorities must give the detainee earliest opportunities for making representation against the detention.

These safeguards are designed to minimize the misuse of preventive detention. It is because of these safeguards that preventive detention, basically a denial of liberty,

finds a place on the chapter on fundamental rights. These safeguards are not available to enemy aliens.

Constitutional Validity Of Preventive Detention Law:

A three-Judge Bench of the Supreme Court in

Ahmed Noor Mohamad Bhatti V. State of Gujarat, AIR 2005

while upholding the validity of the power of the Police under section 151 of the Criminal Procedure Code 1973 to arrest and detention of a person without a warrant to prevent the commission of a Cognizable offense ruled that a provision could not be held to be unreasonable as arbitrary and therefore unconstitutional merely because the Police official might abuse his authority.

This preventive detention act is a necessary tool in the hands of the executive which authorizes them to arrest any person from whom reasonable suspicious arises that he can commit any cognizable offense or his activities are prejudicial to law and order to state and the police can arrest that person without warrant.

A.K. Gopalan Vs. The State of Madras

The preventive Detention Act, 1950, with the exception of section 14 thereof did not contravene any of the Articles of the Constitution and even though section 14 was ultra vires inasmuch as it contravened the provisions of Article 22 of the Constitution, as this section was severable from the remaining sections of the Act, the invalidity of Section 14 did not affect the validity of the Act as a whole and the detention of the petitioner was not illegal.

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