Article 21 As A Source of Law

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
SABBAVARAM, VISAKHAPATNAM, A.P. INDIA
TITLE
CONSTITUTION AS A SOURCE OF LAW
LEGAL METHODS
NAME OF FACULTY
MS. SOMA BHATTACHARJY
NAME – RISHIKA RAI
ROLL NO - 2019LLB2019
1
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher MA’AM SOMA
BHATTACHARJYA who gave me the golden opportunity to do this wonderful project on
the topic (CONSTITUTION AS A SOURCE OF LAW), which also helped me in doing a lot
of Research and I came to know about so many new things I am really thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.
2
ABSTRACT
A Constitution is the basic principles and laws of a nation, state, or social group that
determine the powers and duties of the government and guarantee certain rights to the people
in it. It is a set of fundamental ground rules setting out the powers of the different branches of
government and how these entities operate and interrelate. The Constitution is , in some
cases like India a written document and in others such as the United Kingdom a collection
of documents , statutes and traditional practices . The idea of Constitution and
Constitutionalism originated in Ancient Greek, in the writings of Aristotle.
In this project we will discuss how the constitution is a fundamental source of law ,
discussing its history and origin in brief and going on to elaborate how the legislature,
judiciary and executive interpret the constitution and its provisions to form the law through
various case laws , statutes and legislations.
3
TABLE OF CONTENTS
CONTENTS PAGE
Introduction 5
Objective of the study 5
Scope of the study 5
Significance of the study 5
Literature Review 6
Research Methodology 7
How the Constitution is a source of law. 8
Constitution as a source of law in Indian legal system 9
Article 21 10
Article 21 as a source of law 15
Rights that have evolved from Article 21 20
Is Article 21 a feasible source of law 26
Conclusion 28
Bibliography 29
4
INTRODUCTION
The main sources of law in India are the Constitution, statutes (legislation), customary law
and case law.
The constitution is the organic and fundamental law of a nation or state, which may be
written or unwritten, establishing the character and conception of its government, laying the
basic principles to which its internal life is to be conformed, organizing the government, and
regulating, distributing, and limiting the functions of its different departments, and
prescribing the extent and manner of the exercise of sovereign powers.
The constitution is the fundamental source of law from which both legislations and statutes
originate. It is the supreme law of the land and it contains generally accepted fundamental
rules. The Constitution of India was drafted by the Constituent Assembly from 1946-1950. It
came into force on 26 January 1950.
OBJECTIVE OF THE STUDY

 To understand how the constitution is a source of law.
 To understand how the constitution is interpreted by the executive, legislature and
judiciary.
SCOPE OF THE STUDY
The study is limited to the Indian Constitution as a source of law focusing particularly on
Article 21 and its interpretation .
SIGNIFICANCE OF THE STUDY
The study helps us to know the origin of the constitution in brief and discusses in detail
how the Indian constitution is a source of law and how it is interpreted and its ambit is
widened by the legislature, executive and judiciary.
5
LITERATURE REVIEW
The researcher has used various books , web sources , articles , journals and case laws for the
research .
JOURNALS
 Dalal, Rajbir Singh. “FUNDAMENTAL RIGHTS ENSHRINED IN INDIAN

CONSTITUTION Provisions and Practices.” The Indian Journal of Political Science,
vol. 70, no. 3, 2009, pp. 779–786. JSTOR, www.jstor.org/stable/42742760.
This journal refers to all the fundamental rights in the constitution, giving them a historical
background and talking about them in detail
 Barnum, David G. “ARTICLE 21 AND POLICY MAKING ROLE OF COURTS IN

INDIA : AN AMERICAN PERSPECTIVE.” Journal of the Indian Law Institute, vol.
30, no. 1, 1988, pp. 19–44. JSTOR, www.jstor.org/stable/43951142.
This journal gives a brief idea about article 21 and talks about the difference between due
process of law in America and Procedure established by law in India.
 Anand, A.S. “The Indian Judiciary in the 21st Century.” India International Centre
Quarterly, vol. 26, no. 3, 1999, pp. 61–78. JSTOR, www.jstor.org/stable/23005468.
It goes into the very depth of judiciary in India and talks about how judicial activism has
changed the interpretation of laws in India.
ARTICLES
 N.R. Madhav Menon, Our Legal System.
This article gives a brief idea into constitution as a source of law in the Indian scenerio and
discusses the functions envisaged in the constitution regading the organs of the state.
6
OTHERS
 Constituent Assembly Debates
These debates basically give a fair idea into the intention of contitution framers about what
they wanted to convey in a certain article or provision etc.
RESEARCH METHODOLOGY
The study is done through the doctrinal method of research.
PRIMARY SOURCES
 The Constitution of India

 The Constituent Assembly Debate
 Supreme Court Cases
SECONDARY SOURCES

RESEARCH QUESTIONS
Is article 21 of the Indian Constitution a feasible source of law?
7
HOW THE CONSTITUTION IS A SOURCE OF LAW
India has one of the oldest legal systems in the world. Its law and jurisprudence stretches
back into the centuries, forming a living tradition which has grown and evolved with the lives
of its diverse people. India's commitment to law is created in the Constitution which
constituted India into a Sovereign Democratic Republic, containing a federal system with
Parliamentary form of Government in the Union and the States, an independent judiciary,
guaranteed Fundamental Rights and Directive Principles of State Policy containing objectives
which though not enforceable in law are fundamental to the governance of the nation.
It is a well established fact that in India the Constitution is supreme and it is the constitution
that forms the state and not the other way round. The state exists because of the constitution.
It is the constitution on behalf of the people which makes the State a “Sovereign, Socialist,
Secular, Democratic, Republic”1
Article 1 of the Constitution says that “India that is Bharat shall be a Union of States”2, so in
a way the constitution is forming the state.
As is well established that in India the state is divided into three major organs
 Legislature
 Executive
 Judiciary
When it comes to law the function of the state, it is the function of Legislature to make the
law, Executive is implement the law and the Judiciary to interpret the law.
Now the question is of authority. Under what authority, can the legislature make laws,
judiciary interprets laws and executive implement them. If there is no authority so why will
anyone follow the law made by legislature.
1
INDIA CONST. PREAMBLE.
2
INDIA CONST.Art.1.
8
The constitution provides for the functions and the ambit of power of all the three
components of the state. Part V, Article 52 says “There shall be a president of India” 3 and
this part further elaborates on the functions of the executive. Article 79 says “There shall be a
Parliament for the Union which shall consist of the President and two Houses to be known
respectively as the Council of States and the House of the People.“4 Article 124(1) reads
“There shall be a Supreme Court of India consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges.” 5 So it is
very clear that legislature, executive and judiciary derive this authority from the constitution.
Considering the fact that the legislature or the parliament, whose main function is to draft
legislations and statutes and make the law, itself derives its powers from the constitution
shows that the constitution is a primary source of law; in the way that each and every
legislation, act, bill, statute can trace its way back to the constitution.
CONSTITUTION AS A SOURCE OF LAW IN INDIAN LEGAL SYSTEM
The fountain source of law in India is the Constitution which, in turn, gives due
recognition to statutes, case law and customary law consistent with its dispensations.
Statutes are enacted by Parliament, State Legislatures and Union Territory Legislatures.
There is also a vast body of laws known as subordinate legislation in the form of rules,
regulations as well as by-laws made by Central and State Governments and local
authorities like Municipal Corporations, Municipalities, Gram Panchayats and other local
bodies. This subordinate legislation is made under the authority conferred or delegated
either by Parliament or State or Union Territory Legislature concerned. The decisions of
the Supreme Court are binding on all Courts within the territory of India. As India is a
land of diversities, local customs and conventions which are not against statute, morality,
etc. are to a limited extent also recognized and taken into account by Courts while
administering justice in certain spheres. The Constitution of a country is variously
described depending upon the nature of the policy and the aspirations of the people in a
given society. It is generally a written document and assumes the character of a federal
(several independent units joined together) or unitary form of government. India is
3
INDIA CONST.Art.52.
4
INDIA CONST.Art.79.
5
INDIA CONST.Art.124, cl. 1.
9
declared to be a Socialist, Secular, Democratic Republic. It is said to have a quasi-federal
structure. The Constitution of India represents the collective will of 700 million Indians
and, as such, the reservoir of enormous power. It describes the methods by which this
power conferred on the State is to be exercised for the benefit of the people. In other
words, it is a political document which distributes State power amongst different organs
(Central and State Governments, Legislative, Executive and Judicial wings of each
Government) and regulates its exercise in its incidence on the people. The form of
government is democratic and republican and the method is parliamentary through adult
franchise. The goals are spelt out in Preamble itself which seeks to secure to all citizens:
“Justice, social, economic and political; Liberty of thought, expression, faith and worship;
Equality of status and of opportunity, and to promote among them all.” Fraternity
assuring dignity of the individual and the “unity and integrity of Nation”.6
To achieve this goal of dignity of the individual with justice, liberty and equality the
Constitution guarantees certain Fundamental Rights and provides for its enforcement
through the High Courts and the Supreme Court. These basic Human Rights include: (a)
Equality before law, (b) Equality of opportunity in matters of public employment. (c)
Prohibition of discrimination on grounds of religion, sex etc. (d) Protection of life and
personal liberty. (e) Protection of right to freedom of speech, of assembly, of association,
of movement and of profession or occupation. (f) Prohibition of forced labour, (g) Right
to freedom of religion, (h) Protection of interest of minorities, and (i) Right to
constitutional remedies for enforcement of the above rights Further, towards achieving
the goals set out in the Preamble, the Constitution gives certain Directives to State to
follow in its policies and programmes. Principles of State Policy have been recognized to
be as sacrosanct as Fundamental Rights. In other words, they together constitute a
reference for State action in every sphere.7
The Constitution envisages a unique place for the judiciary. Apart from overseeing the
exercise of State power by the Executive and the Legislatures of the State and the Central
Governments, the Supreme Court, and the High Courts are charged with the responsibility
of effectively protecting citizens' rights through its writ jurisdiction. This offers a cheap
and expeditious remedy to the citizen to enforce the guaranteed rights. The Supreme
6
N.R. Madhav Menon, Our Legal System.
7
Supra note 6.
10
Court liberalized the rules so as to enable poor and illiterate citizens to have easy access
to courts for enforcing their basic rights.8
The Rule of Law is supreme and the independence of judiciary is reality in our country.
This forms the bulwork of democracy and compels every one to abide by the law in his
own interest. Constitutional government principles involved in it ought to be understood
and subscribed to by every Indian if we are to succeed in our declared goals.9
ARTICLE 21
The constitution is a representation of values and ideals that were cherished by the framers of
the constitution. With changing times, new problems are arising, so it is the basic function of
the Judiciary to widen the horizons of the constitution within permissible limits.
Many provisions in the constitution of India, have been left undefined or ambiguous, the
reason of the constitution framers behind this was to leave those provisions for interpretation
of future generations.
The constitution as a source of law has developed over the years, many amendments have
been made, it has been interpreted by the judiciary and its scope has been widened in view of
contemporary problems. One provision of the constitution that has been developed
tremendously is Article 21.
Article 21 states “No person shall be deprived of his life or personal liberty except according
to procedure established by law.” What it was when the constitution was frame and what it is
at this point of time is very different.
Right to life and personal liberty finds a place of prominence in the Magna Carta of India. No
fundamental right has attracted so much debate and deliberation at the time of framing the
Constitution as the Article containing the right to life and personal liberty.
8
Supra note 6.
9
Supra note 6.
11
HISTORICAL BACKGROUND
To understand this right it is important to refer to the constituent assembly debates to see
what the constitution framers had in mind while formulating the constitution, particularly this
right. Constituent assembly debates are particularly helpful in understanding the intents and
purposes of a provision. Their views are discussed below.
Article 15, Draft Constitution of India, 1948
No person shall be deprived of his life or personal liberty except according to procedure
established by law, nor shall any person be denied equality before the law or the equal
protection of the laws within the territory of India.10
Most members who took part in the debate proposed amendments that wanted to replace
‘according to procedure established by law’ with ‘without due process of law’.
Members argued that this term was insufficient as the legislature of the day could pass laws
establishing procedures that can place civil liberties in danger; the judiciary could only
check if the established procedures were followed could not review the law itself for
adherence to fundamental rights. The inclusion of the ‘due process’ term into the provision,
therefore, would allow the judiciary to investigate if the law itself is consistent with
provisions of fundamental rights and would be in a position to protect civil liberties.11
Other members that pointed out the dangers of ‘due process’ term argued that allowing for
judges, who are not immune to prejudices and biases, to sit in judgment of laws passed by the
legislature would be undermining the authority of the legislature and hence, un-democratic.
At voting, the Assembly passed the Draft article with the term ‘according to procedure
established by law’ intact.12
Article 21 states “No person shall be deprived of his life or personal liberty except according
to procedure established by law.”13
10
https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021
11
Supra note 10.
12
Supra note 10.
13
INDIA CONST.Art.21.
12
Now the question here is what is life, personal liberty, and procedure established by law.14
The word life and personal liberty are very uncertain and are subject to interpretation. In law
there are no definite rules or definitions. The meaning of life and personal liberty for me is
different to that of some other person. So this is where the role of judiciary comes in- to
interpret these ambiguous provisions.
The constitution framers on using the word “personal” have to say:
The first is the insertion of the word 'personal' before liberty, and the reason given is that
unless this word `personal' finds a place there, the clause may be construed very widely so as
to include even the freedoms already dealt with in article 1315.
Initially some constitution framers were in the favor of using “due process of law” instead of
“procedure established by law” the rationale behind it was
“According to the present section procedure is held sacrosanct whereas the word 'law' really
connotes both procedural law as well as substantive law. I have used the word 'law' in the
general sense. Though these words "without due process of law" which are sought to be
substituted for the words in the section have not been defined anywhere, their meanings and
implications should be understood fully. By using these words "without due process of law"
we want that the courts may be authorized to go into the question of the substantive law as
well as procedural law. When an enactment is enacted, according to the amendment now
proposed to be passed by this House, the courts will have the right to go into the question
whether a particular law enacted by parliament is just or not, whether it is good or not,
whether as a matter of fact it protects the liberties of the people or not. If the Supreme Court
comes to the conclusion that it is unconstitutional, that the law is unreasonable or unjust,
then in that case the courts will hold the law to be such and that law will not have any further
effect.”16
Dr. B.R. Ambedkar on explaining the reason for using “procedure established by law”
instead of “due process of law” said
14
INDIA CONST.Art.21.
15
Constituent Assembly Debates,7,6 Dec 1948,
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-06.
16
Supra note 15.
13
The question of "due process" raises, in my judgment, the question of the relationship
between the legislature and the judiciary. In a federal constitution, it is always open to the
judiciary to decide whether any particular law passed by the legislature is ultra
vires or intra vires in reference to the powers of legislation which are granted by the
Constitution to the particular legislature. If the law made by a particular legislature exceeds
the authority of the power given to it by the Constitution, such law would be ultra vires and
invalid. That is the normal thing that happens in all federal constitutions. Every law in a
federal constitution, whether made by the Parliament at the Centre or made by the legislature
of a State, is always subject to examination by the judiciary from the point of view of the
authority of the legislature making the law. The 'due process' clause, in my judgment, would
give the judiciary the power to question the law made by the legislature on another ground.
That ground would be whether that law is in keeping with certain fundamental principles
relating to the rights of the individual. In other words, the judiciary would be endowed with
the authority to question the law not merely on the ground whether it was in excess of the
authority of the legislature, but also on the ground whether the law was good law, apart from
the question of the powers of the legislature making the law. The law may be perfectly good
and valid so far as the authority of the legislature is concerned. But, it may not be a good
law, that is to say, it violates certain fundamental principles; and the judiciary would have
that additional power of declaring the law invalid. The question which arises in considering
this matter is this. We have no doubt given the judiciary the power to examine the law made
by different legislative bodies on the ground whether that law is in accordance with the
powers given to it. The question now raised by the introduction of the phrase 'due process' is
whether the judiciary should be given the additional power to question the laws made by the
State on the ground that they violate certain fundamental principles.17
There are two views on this point. One view is this; that the legislature may be trusted not to
make any law which would abrogate the fundamental rights of man, so to say, the
fundamental rights which apply to every individual, and consequently, there is no danger
arising from the introduction of the phrase 'due process'. Another view is this: that it is not
possible to trust the legislature; the legislature is likely to err, is likely to be led away by
passion, by party prejudice, by party considerations, and the legislature may make a law
which may abrogate what may be regarded as the fundamental principles which safeguard
the individual rights of a citizen. We are therefore placed in two difficult positions. One is to
17
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-13
14
give the judiciary the authority to sit in judgment over the will of the legislature and to
question the law made by the legislature on the ground that it is not good law, in consonance
with fundamental principles. Is that a desirable principle? The second position is that the
legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite
conclusion. There are dangers on both sides. For myself I cannot altogether omit the
possibility of a Legislature packed by party men making laws which may abrogate or violate
what we regard as certain fundamental principles affecting the life and liberty of an
individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or
Supreme Court examining laws made by the Legislature and by dint of their own individual
conscience or their bias or their prejudices be trusted to determine which law is good and
which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla
and I therefore would not say anything. I would leave it to the House to decide in any way it
likes.18
The proposed amendment to replace “procedure established by law” with “due process of
law” was negatived and Article 15 of the draft constitution which was later called Article 21
was adopted by the constitution.
ARTICLE 21 AS A SOURCE OF LAW
Since the adoption of the constitution, the meaning and ambit of article 21 has evolved
greatly. It has been interpreted by the judiciary over the years, its ambit has been widened and
its meaning has changed drastically.
Article 21 has led to both precedent by the judiciary and legislations by the parliament.
Where Article 21 has led to precedent
A.K. Gopalan v. State of Madras Union of India19
In this case the Constitutional Validity of Preventive Detention Act, 1950 was challenged.
The Petitioner was detained under Act, and under Article 32, writ of habeas corpus,
approached the court. His contention was that the Preventive Detention Act, 1950 contravene
18
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-13.
19
A.K. Gopalan v. State of Madras Union of India, 1950 AIR 27, 1950 SCR 88.
15
provisions of Articles 13, 19, 21 and 22 of the Constitution and therefore his detention, was
illegal.
Here the words “according to the procedure established by law” were up interpretation.
The question specifically posed was whether they should receive an interpretation in strict
positivist terms or whether they need to be interpreted in a manner which would ensure a
fair and reasonable procedure. The Court opted for a narrow positivist interpretation.
"Law” in Art. 21 does not mean the jus naturale of civil law but means positive or State-made
law. "Procedure established by law" does not however mean any procedure which may be
prescribed by a competent legislature, but the ordinary well established criminal procedure,
i.e., those settled. 20
There is nothing revolutionary in the view that "procedure established by law "must include
the four principles of elementary justice which inhere in and are at the root of all civilized
systems of law, and which have been stated by the American Courts and jurists as consisting
in (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of
procedure. These four principles are really different aspects of the same right, namely, the
right to be heard before one is condemned. Hence the words "procedure established by law
", whatever its exact meaning be, must necessarily include the principle that no person
shall be condemned without hearing by an impartial tribunal21.
The concept of the right "to move freely throughout the territory of India" referred to in Art.
19 (1) (d), of the Constitution is entirely different from the concept of the right to "personal
liberty “referred to in Art. 21, and Art. 19 should not, therefore, be read as controlled by the
provisions of Art. 2122.
Kharak Singh Vs. The State of U. P. & Others23
20
21
22
23
Kharak Singh Vs. The State Of U. P. & Others , 1963 AIR 1295, 1964 SCR (1) 332.
16
In this case the petitioner was arrested in a dacoity case but was released due to lack of
evidence. The police put him under surveillance under Regulation 236 of the U. P. Police
Regulations, whose constitutional validity was challenged by a writ petition filed by the
petitioner under article 32. The court held:
The word “life" in Article. 21 means not merely the right to the continuance of a person's
animal existence, but a right to the possession of each of his organs, arms, legs, etc24.
“Having regard to the term of Article 19(1), we must take it that the expression is used as not
to include the right to move about being excluded its narrowest interpretation would be
Article 21 which comprehends nothing more than freedom from physical restraint of freedom
from confinement within the bounds of a person. We do not hold that the term was intended to
bear only this narrow interpretation but on the other hand consider that “personal liberty” is
used in the Article on a compendious term to include within itself all varieties of rights which
go to make up the personal liberty of man other than those dealt within the several clauses of
Article 19(1)”.25
“Right of an individual to be free from restraint and encroachment are directly imposed or
indirectly brought about by calculated measures”.26
Maneka Gandhi v. Union of India27
The ambit and scope of article 21, and the meaning of life and personal liberty were further
elaborated in the case of Maneka Gandhi. In this case the widest possible interpretation to the
word “personal liberty” was given by the Supreme Court.
Here, the petitioner, Maneka Gandhi’s passport was impounded by the central government
Under Section 10(3)(c) of the Passport Act, 1967. This act authorized the government to do
so if necessary in public interest and maintainance of law and order. But here the government
24
25
26
27
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
17
of India declined to furnish the reasons for its decision. The petitioner challenged this on the
threshold of Article 21.
Now before going into the points of the judgement it must be noted that when this case came
before the Supreme Court, was the time of political unrest and this was the time period when
judicial activism started in India. Seeing the atrocities faced by the public during both the
emergencies, the court felt its responsibility to protect the rights and freedoms of the public
from state action.
Justice P.N. Bhagwati and Justice V.R. Krishna Iyer’s gave the judgement in this landmark
case. Here, Supreme Court held that “mere prescription of some kind of procedure cannot
ever meet the mandates of Article 21.” 28
Justice Krishna Iyer observed;- “India is India because of Indians. Our ancients had journey
through the wide world for commerce spiritual and material, regardless of physical and
mental frontiers”...... Remember, even democracies have experienced lawlessness and eclipse
of liberty on the one hand and “subversive” use of freedoms by tycoons and saboteurs, on the
other and then, the summons to the judges comes from the Constitution, over-riding the
necessary deference to government and seeing in perspective and overseeing in effective
operation the enjoyment of the great rights”.29
He further went on to give surety that the procedure contemplated in Article 21 could not be
unfair or unreasonable. And this cardinal principle of reasonableness which is a fundamental
postulate of equality or non-arbitrariness, pervaded Article 14 like a brooding omnipresence
and the procedure contemplated under Article 21 must answer the test of reasonableness in
order to be in conformity with Article 14. Therefore, it was held by him that the withholding
reasons for impounding the passport was not in contravention of the statutory provisions of
the passport Act but a flagrant transgression of the rules of natural justice. He went on to
observe that natural justice is “a great humanizing principle intended to invest law with
fairness and to secure justice”.30
28
29
30
18
Justice Bhagwati observed:- “The attempt of the court should be to expand the reach and
ambit of the fundamental rights rather than attenuate their meaning and can lent by a process
of judicial construction.31
The liberal interpretation of personal liberty in Maneka’s case included the dignity of the
individual and the worth of the human person. Basic human values and human dignity were
declared to be part and parcel of personal liberty.
The humanist philosophy and judicial mindset of Justice Bhagwati extended “personal
liberty” to strike of the detention of under trial prisoners in jail for a term longer than the
maximum for which they could have 6 year sentenced if convicted.32
Again the right to live was expanded to include not only the right to live with dignity but also
it included the bare necessaries of life.33
In Satwant Singh vs. Asst. Passport Officer, New Delhi,34 the Supreme Court further widened
the scope of this article and held that the right to travel abroad was a part of personal liberty
within Article 21. In that case, the petitioner being a citizen of India had to travel abroad
very often for business purposes but the government directed him to surrender his passport.
He challenge the action on the ground that it violated his fundamental rights under Article 21.
His contention was that the right to leave India or travel abroad and return to India was a part
of his personal liberty which can not be restricted except by authority of law. The government
can not deny him a passport in the exercise of its executive power. The contention of the
Union government was that the right to travel abroad was not included in the expression
personal liberty and a passport was a political document to which no one had a legal right
much less a constitutional right.
31
32
Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1360.
33
Francis Coralie vs. Union Territory ofDelhi, AIR 1981 SC 746,753.
34
Satwant Singh vs. Asst. Passport Officer, New Delhi, AIR 1967 SC 1836.
19
The Supreme Court held that the right to travel abroad was part of a person’s “personal
liberty” within the meaning of Article 21 and therefore, no person could be deprived of his
right to travel abroad except according to the procedure established by law. 35
There was no such law which the government could justify and satisfy in action. And the
court observed that the term “personal liberty” in Article 21, takes in the right of locomotion
i.e. to go where and when one places, and the right to travel abroad is included in it.
Thus in Maneka Gandhi’s case, the Supreme Court overruled the view expressed by the
majority in Gopalan’s case and held that Article 21 is controlled by Article 19, i.e. it must
satisfy the requirements of Article 19 and as such the court “The law must therefore now be
settled that Article 21 does not exclude a law prescribing a procedure for depriving a person
of personal liberty and there is consequently no infringement of the fundamental right
conferred by Article 21 such a law in so far as it abridges or takes away any fundamental
right under Article 19 would here to meet the challenges of that Article 19. Thus a law
depriving a person of “personal liberty” has not only to stand the test of Article 21 but it must
stand the test of Article 19 and 14 of the Constitution.36
Hence in Maneka Gandhi’s case the Supreme Court observed that “law” in Article 21 does
not only and merely mean an enacted piece of legislation, but it must embody the principles
of natural justice and as such must be just fair and reasonable.
 Right to Free Legal Aid

In M.H. Hoskot v. State ofMaharashtra37,the Supreme Court laid down that right to free legal
aid at the cost of the State to an accused, who could not afford legal services for reasons of
poverty, indigence or incommunicado situation, was part of fair, just and reasonable
procedure implicit in Article 21. Free legal aid to the indigent has been declared to be a
“State’s duty and not government charity”.38
35
Satwant Singh vs. Asst. Passport Officer, New Delhi, AIR 1967 SC 1836.
36
37
M.H. Hoskot v. State ofMaharashtra, AIR 1978, S.C., 1548.
38 M.H. Hoskot v. State ofMaharashtra, AIR 1978, S.C., 1548.
20
In Khatri vs. State of Bihar,39 The court held Constitutional obligation to provide free legal
services to an indigent accused does not arise only when the trial commences but also
attaches when he is for the first time produced before the magistrate.40
 Right to Speedy Trial

In Hussainara Khatoon (No.l) vs. Home Secretary, State of Bihar41, it was brought to the
notice of the Supreme Court that an alarming large number of men, women, children,
including, were kept in prisons for years awaiting trial in courts of law. The offences with
which they were charged were trivial and if proved would not have warranted punishment for
more than a few months, perhaps for a year or two. It was held by the court that a procedure
cannot be "reasonable, fair or just unless it ensures a speedy trial for determination of the
guilt of the person deprived ofhis liberty”.42 They further added that “it is implicit in the
broad sweep and content of Article 21 as interpreted by the Court in Maneka Gandhi vs.
Union of India (AIR 1978 SC 597)”.
 Right to Bail
In Baku Singh vs. State of U.P.43, the Apex Court, recognizing right to bail as a part of
“personal liberty” it was held that after all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’.44
 Right against Solitary Confinement

In State ofMaharashtra vs. Prabhakar Pandurang,. 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 subject to the whim of the prison administration.
45
In Sunil Batra vs. Delhi Administration ,the petitioner, Sunil Batra was sentenced to death
by the Delhi Sessions 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
39
Khatri vs. State of Bihar, AIR 1981, S.C. 928.
40 Khatri vs. State of Bihar, AIR 1981, S.C. 928.
41
Hussainara Khatoon (1) vs. Home Secretary, Bihar, AJR 1979, S.C. 1360.
42 Hussainara Khatoon (1) vs. Home Secretary, Bihar, AJR 1979, S.C. 1360.
43
Baku Singh vs. State of U.P., 12 AIR 1978 SC 527.
44
Baku Singh vs. State of U.P., 12 AIR 1978 SC 527.
45
Sunil Batra v. Delhi Administratio, 17 AIR 1978 SC 1675.
21
since the date of his conviction by the Session Court, he was kept in solitary confinement.
Batra contended that Section 30 of the Prisons Act, 1894, did not authorize the Jail authorities
to impose the punishment of solitary confinement, which by itself was as substantive
punishment Under Section 73 and 74 of the Indian Penal Code, 1860 and could be imposed
by a Court of Law. That, it could not be left to the whim and impulse of the prison
authorities. The Supreme Court accepting the argument of the petitioner held that imposition
of solitary confinement on the petitioner was violation of Article 21.
‘Personal liberty of the person who is incarcerated is to a great extent curtailed by punitive
detention. It is even curtailed in preventive detention. The liberty to move, mix, mingle, talk,
share company with coprisoners, if substantially curtailed, would be violative of Article 21,
unless the curtailment has the backing of law. ‘46
The Court thus held that Section 30(2) of the Prison Act, 1894 must be read in the light of the
interpretation of the term “law” as given in Maneka Gandhi.
 Right against Torture and Custodial Violence

In Nilabati Behera vs. State of Orissa47, where the 22 year old deceased was taken into
police custody, for petty theft in the village. He was handcuffed and kept in police custody.
Later his mother brought him food, which he ate but a few hours later his dead body with
handcuffs and multiple injuries were found on the railway tracks. The police version was that
the accused had escaped police cutody, but medical reports suggested otherwise. Here the
victims family was compensated by the Supreme Court.
In D.K. Basu v. State of West Bengal,48 the Supreme Court laid down the guidelines followed
by the Central and State investigating and security agencies in all cases of arrest and
detention. It was held that any form of torture or cruel, inhuman or degrading treatment,
would fall within the inhibition of Article 21 of the Constitution whetherit occurs during
investigation, interrogation or otherwise.49
 Right to Livelihood
46
Sunil Batra v. Delhi Administratio, 17 AIR 1978 SC 1675.
47
Nilabati Behera vs. State of Orissa, 21 (1993) 2 SCC 746.
48
D.K. Basu v. State of West Bengal, 22 AIR 1997 SC 610.
49D.K. Basu v. State of West Bengal, 22 AIR 1997 SC 610.
22
The right to livelihood is an important aspect of the right to life. In Olga Tellis & Ors vs
Bombay Municipal Corporation,50 where the BMC had removed the slum dwellers from the
footpaths by force. Their contention was whether Right to life include Right to Livelihood. It
was held by the Supreme Court that:
It is these men and women who have come to this Court to ask for a judgment that they
cannot be evicted from their squalid shelters without being offered alternative
accommodation. They rely for their rights on Article 21 of the Constitution which guarantees
that no person shall be deprived of his life except according to procedure established by law.
They do not contend that they have a right to live on the pavements. Their contention is that
they have a right to live, a right which cannot be exercised without the means of livelihood.
They have no option but to flock to big cities like Bombay, which provide the means of bare
subsistence. They only choose a pavement or a slum which is nearest to their place of work.
In a word, their plea is that the right to life is illusory without a right to the protection of the
means by which alone life can be lived. And, the right to life can only be taken away or
abridged by a procedure established by law, which has to be fair and reasonable, not fanciful
or arbitrary such- as is prescribed by the Bombay Municipal Corporation Act or the Bombay
Police Act. They also rely upon their right to reside and settle in any part of the country
which is guaranteed by Article 19(1)(e).51
 Right to Privacy
52
In Justice K.S.Puttaswamy(Retd) vs Union Of India , in this case it was decided whether
privacy is a fundamental right or not.
It might be broadly necessary to determine the nature and content of privacy in order to
consider the extent of its constitutional protection. As in the case of ‘life’ under Article 21, a
precise definition of the term ‘privacy’ may not be possible. This difficulty need not detain us.
Definitional and boundary-setting challenges are not unique to the rights guaranteed
in Article 21. This feature is integral to many core rights, such as the right to equality.
Evidently, the expansive character of any right central to constitutional democracies like
50
Olga Tellis & Ors vs Bombay Municipal Corporation, 1986 AIR 180, 1985 SCR Supl. (2) 51.
51
Olga Tellis & Ors vs Bombay Municipal Corporation, 1986 AIR 180, 1985 SCR Supl. (2) 51.
52
Justice K.S.Puttaswamy(Retd) vs Union Of India , W.P.(civil) No. 494 of 2012.
23
ours has nowhere stood in the way of recognizing a right and treating it as fundamental
where there are strong constitutional grounds on which to do so.53
The first and natural home for a right of privacy is in Article 21 at the very heart of ‘personal
liberty’ and life itself. Liberty and privacy are integrally connected in a way that privacy is
often the basic condition necessary for exercise of the right of personal liberty. There are
innumerable activities which are virtually incapable of being performed at all and in many
cases with dignity unless an individual is left alone or is otherwise empowered to ensure his
or her privacy. Birth and death are events when privacy is required for ensuring dignity
amongst all civilized people.54
 Right to die with dignity
In Aruna Ramchandra Shanbaug vs Union Of India & Ors,55 initially the right to die with
dignity was not included within the scope of Right to life but in the latest judgement in
Common Cause v. Union of India,56it was held by the Supreme court that
The purpose of saying so is only to highlight that the law must take cognizance of the
changing society and march in consonance with the developing concepts. The need of the
present has to be served with the interpretative process of law. However, it is to be seen how
much strength and sanction can be drawn from the Constitution to consummate the changing
ideology and convert it into a reality. The immediate needs are required to be addressed
through the process of interpretation by the Court unless the same totally falls outside the
constitutional framework or the constitutional interpretation fails to recognize such
dynamism. The Constitution Bench in Gian Kaur, as stated earlier, distinguishes attempt to
suicide and abetment of suicide from acceleration of the process of natural death which has
commenced. The authorities, we have noted from other jurisdictions, have observed the
distinctions between the administration of lethal injection or certain medicines to cause
53
54
55
Aruna Ramchandra Shanbaug vs Union Of India & Ors,W.P.(criminal)No. 115 of 2009.
56
Common Cause v. Union of India, W. P.(Civil) NO. 215 OF 2005.
24
painless death and non- administration of certain treatment which can prolong the life in
cases where the process of dying that has commenced is not reversible or withdrawal of the
treatment that has been given to the patient because of the absolute absence of possibility of
saving the life. To explicate, the first part relates to an overt act whereas the second one
would come within the sphere of informed consent and authorized omission. The omission of
such a nature will not invite any criminal liability if such action is guided by certain
safeguards. The concept is based on non-prolongation of life where there is no cure for the
state the patient is in and he, under no circumstances, would have liked to have such a
degrading state. The words ―no cure‖ have to be understood to convey that the patient
remains in the same state of pain and suffering or the dying process is delayed by means of
taking recourse to modern medical technology. It is a state where the treating physicians and
the family members know fully well that the treatment is administered only to procrastinate
the continuum of breath of the individual and the patient is not even aware that he is
breathing. Life is measured by artificial heartbeats and the patient has to go through this
undignified state which is imposed on him. The dignity of life is denied to him as there is no
other choice but to suffer an avoidable protracted treatment thereby thus indubitably casting
a cloud and creating a dent in his right to live with dignity and face death with dignity, which
is a preserved concept of bodily autonomy and right to privacy. In such a stage, he has no old
memories or any future hopes but he is in a state of misery which nobody ever desires to
have. Some may also silently think that death, the inevitable factum of life, cannot be invited.
To meet such situations, the Court has a duty to interpret Article 21 in a further dynamic
manner and it has to be stated without any trace of doubt that the right to life with dignity has
to include the smoothening of the process of dying when the person is in a vegetative state or
is living exclusively by the administration of artificial aid that prolongs the life by arresting
the dignified and inevitable process of dying. Here, the issue of choice also comes in. Thus
analysed, we are disposed to think that such a right would come within the ambit of Article
21 of the Constitution.57
Instances where Article 21 has led to Legislation
Prevention of Sexual Harassment of Working Women
57Common Cause v. Union of India, W. P.(Civil) NO. 215 OF 2005.
25
In a landmark judgment in Vishaka vs. State of Rajasthan,58 the Supreme Court laid down
exhaustive guidelines to prevent sexual harassment of working women inplaces of their work
until a legislation is enacted for the purpose. The Court held that it is the duty of the employer
or other responsible person in work-places or other institutions, whether public or private, to
prevent sexual harassment of working women. Here it was held that Right to Life means life
with dignity.
The guidelines given by the Supreme Court in this case led the legislature to pass the Sexual
Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for protection
of women against sexual harassment at workplace.
Right to Education
The original Constitution of India included the right to education as a directive principle of
State policy with a 10 year time-limit for implementation.
Subsequently, the Supreme Court of India Court affirmed the fundamental right to education
in Mohini Jain v State of Karnataka59and held that;
"Right to life" is the compendious expression for all those rights which the Courts must
enforce because they are basic to the dignified enjoyment of life. It extends to the full range of
conduct which the individual is free to pursue. The right to education fiows directly
from right to life. The right to life under Article 21 and the dignity of an individual cannot be
assured unless it is accompanied by the right to education. The State Government is under an
obligation to make endeavour to provide educational facilities at all levels to its citizens.60
In Unni Krishnan, J.P. And Ors. Etc.vs State Of Andhra Pradesh And Ors.61 It was held by
the Supreme Court that;
58
Vishaka vs. State of Rajasthan, 41 AIR 1997 SC 3011.
59
Mohini Jain v State of Karnataka,1992 AIR 1858, 1992 SCR (3) 658.
60
Mohini Jain v State of Karnataka,1992 AIR 1858, 1992 SCR (3) 658.
61
Unni Krishnan, J.P. And Ors. Etc.vs State Of Andhra Pradesh And Ors, 1993 AIR 2178, 1993 SCR (1) 594.
26
The first question is whether the right to life guaranteed by Article 21 does take in
the right to education or not. It is then that the second question arises whether the State is
taking away that right. The mere, fact that the State is not taking away the right as at present
does not mean that right to education is not included within the right to life. The content of
the right is not determined by perception of threat. The content of right to life is not to be
determined on the basis of existence or absence of threat of deprivation. The effect of holding
that right to education is implicit in the right to fife is that the State cannot deprive the citizen
of his right to education except in accordance with the procedure prescribed by law.62
In December 2002, the Constitution (Eighty-Sixth Amendment) Act was passed, entrenching
the right to education in Article 21A63 which reads:
‘The State shall provide free and compulsory education to all children of the age of six to
fourteen years in such manner as the State may, by law, determine.’64
Later , The Right of Children to Free and Compulsory Education Act or Right to Education
Act (RTE),was passed by the Parliament, on 4 August 2009, which describes the modalities
of the importance of free and compulsory education for children between 6 and 14 in India
under Article 21A of the Indian Constitution.
Is article 21 of the Indian Constitution a feasible source of law?
Article 21, has its scope widened as has been demonstrated through various landmark
judgements of the apex court. The fact is that the precedent of the Supreme Court is binding
and in a very practical, broad sense it is the law.
Through Article 21, Various rights have evolved and new laws formed. As can be seen in
case of Visakha, where the guidelines were given by the supreme court which led to the
Sexual Harassment of Woman at workplace Act being passed by the Parliament. The
guidelines given by the apex court in Sunil Batra and D.K. Basu led to prision reforms in
India and formation of various laws with regards to rights of prisioners.
62
Unni Krishnan, J.P. And Ors. Etc.vs State Of Andhra Pradesh And Ors, 1993 AIR 2178, 1993 SCR (1) 594.
63
INDIA CONST.Art.21A.
64
INDIA CONST.Art.21A.
27
In the same way laws with regards to passive euthnasia and right to privacy and various other
rights have been interpreted by the judiciary. So it can be said that the Article 21 is in fact a
feasible source of law.
CONCLUSION
As stated before, Constutional law and the articles and provisions under it have evolved
steadily over the years. This can be attributed in parts to the legislature and the activism
shown by the Judiciary, specially in the later part on the 20th century.
As mentioned, Article 21 is a feasible source of law, in the same way all the fundamental
rights, the directive principles, provisions regarding citizenship and various other provisions
have in some way or the other led to formation of laws.
So, Constitution can be regarded as the fundamental, supreme source of law.
28
BIBLIOGRAPHY
Journals
Articles
Web Sources
 Advance.LexisNexis.com
 www.jstor.org
 www.manupatrafast.in
others
 The Constituent Assembly Debates

 The Constitution of India
29
Case Laws
 A.K. Gopalan v. State of Madras Union of India, 1950 AIR 27, 1950 SCR 88.
 Aruna Ramchandra Shanbaug vs Union Of India & Ors,W.P.(criminal)No. 115 of

2009.
 Baku Singh vs. State of U.P., 12 AIR 1978 SC 527.

 Common Cause v. Union of India, W. P.(Civil) NO. 215 OF 2005.
 D.K. Basu v. State of West Bengal, 22 AIR 1997 SC 610.

 Francis Coralie vs. Union Territory ofDelhi, AIR 1981 SC 746,753.
 Hussainara Khatoon vs. State of Bihar, AIR 1979 SC 1360.
 Justice K.S.Puttaswamy(Retd) vs Union Of India , W.P.(civil) No. 494 of 2012.
 Kharak Singh Vs. The State Of U. P. & Others , 1963 AIR 1295, 1964 SCR (1) 332.
 Khatri vs. State of Bihar, AIR 1981, S.C. 928.

 Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
 M.H. Hoskot v. State ofMaharashtra, AIR 1978, S.C., 1548.

 Mohini Jain v State of Karnataka,1992 AIR 1858, 1992 SCR (3) 658.
 Nilabati Behera vs. State of Orissa, 21 (1993) 2 SCC 746.

 Olga Tellis & Ors vs Bombay Municipal Corporation, 1986 AIR 180, 1985 SCR Supl.
(2) 51.
 Satwant Singh vs. Asst. Passport Officer, New Delhi, AIR 1967 SC 1836.
 Sunil Batra v. Delhi Administratio, 17 AIR 1978 SC 1675.
 Unni Krishnan, J.P. And Ors. Etc.vs State Of Andhra Pradesh And Ors, 1993 AIR
2178, 1993 SCR (1) 594.
 Vishaka vs. State of Rajasthan, 41 AIR 1997 SC 3011.
30
31

Article 21 As A Source of Law

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P. INDIA

CONSTITUTION AS A SOURCE OF LAW

MS. SOMA BHATTACHARJY

NAME – RISHIKA RAI

Objective of the study 5

Scope of the study 5

Significance of the study 5

How the Constitution is a source of law. 8

Constitution as a source of law in Indian legal system 9

Article 21 as a source of law 15

Rights that have evolved from Article 21 20

Is Article 21 a feasible source of law 26

OBJECTIVE OF THE STUDY

SCOPE OF THE STUDY

SIGNIFICANCE OF THE STUDY

 Dalal, Rajbir Singh. “FUNDAMENTAL RIGHTS ENSHRINED IN INDIAN

 Barnum, David G. “ARTICLE 21 AND POLICY MAKING ROLE OF COURTS IN

 N.R. Madhav Menon, Our Legal System.

 Constituent Assembly Debates

The study is done through the doctrinal method of research.

 The Constitution of India

 Dalal, Rajbir Singh. “FUNDAMENTAL RIGHTS ENSHRINED IN INDIAN

 N.R. Madhav Menon, Our Legal System.

Is article 21 of the Indian Constitution a feasible source of law?

CONSTITUTION AS A SOURCE OF LAW IN INDIAN LEGAL SYSTEM

Article 15, Draft Constitution of India, 1948

The constitution framers on using the word “personal” have to say:

ARTICLE 21 AS A SOURCE OF LAW

Where Article 21 has led to precedent

A.K. Gopalan v. State of Madras Union of India19

Kharak Singh Vs. The State of U. P. & Others23

Maneka Gandhi v. Union of India27

 Right to Free Legal Aid

 Right to Speedy Trial

 Right against Solitary Confinement

 Right against Torture and Custodial Violence

 Right to die with dignity

Instances where Article 21 has led to Legislation

Prevention of Sexual Harassment of Working Women

57Common Cause v. Union of India, W. P.(Civil) NO. 215 OF 2005.

Is article 21 of the Indian Constitution a feasible source of law?

So, Constitution can be regarded as the fundamental, supreme source of law.

 N.R. Madhav Menon, Our Legal System.

 The Constituent Assembly Debates

 Aruna Ramchandra Shanbaug vs Union Of India & Ors,W.P.(criminal)No. 115 of

 Baku Singh vs. State of U.P., 12 AIR 1978 SC 527.

 D.K. Basu v. State of West Bengal, 22 AIR 1997 SC 610.

 Khatri vs. State of Bihar, AIR 1981, S.C. 928.

 M.H. Hoskot v. State ofMaharashtra, AIR 1978, S.C., 1548.

 Nilabati Behera vs. State of Orissa, 21 (1993) 2 SCC 746.

 Vishaka vs. State of Rajasthan, 41 AIR 1997 SC 3011.

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