Articl e 21

DOES A day go past without our reading in the newspapers about the role that the Supreme Court plays in every aspect of the life of the country? Many lawyers, and perhaps judges, would admit an objective analysis would show most often that the Supreme Court would be encroaching upon the areas reserved by the Constitution for the legislative and executive wings of the state. But what is to be noted is that intervention in these areas by the Supreme Court has been compelled by the inaction, apathy and the indifference of the Executive and the Legislature. Though today the Executive and the Legislature do not protest against such encroachment, that was not the case in the first three decades of the working of the Constitution of India. The first three decades were a time of conflict between the Executive and the Legislature on the one hand, and the Judiciary on the other, a series of confrontations arising by reason of the Supreme Court's interpretation of various pieces of legislation, including some relating to land reforms. The last straw on the camel's back, as it were, was the Supreme Court judgment in the Kesavananda Bharati case, arising from Kerala, where it denied to Parliament the power to amend the Constitution if such amendments were to affect the basic structure or the foundation on which the Constitution rested. Matters came to a head during the Emergency when the then Union Law Minister, H.R. Gokhale, in a speech reminiscent of F.D. Roosevelt's radio broadcast to the nation after his New Deal Legislation had been struck down by the U.S. Supreme Court, said: "An atmosphere of confrontation was sought to be created by those whose duty it was to see that they did not encroach upon the field which did not legitimately belong to them. Nothing should be left undone now to ensure that such a situation did not recur. If even after the amendment (that is, the 42nd amendment to the Constitution) confrontation continues, then I think it will be a bad day for the Judiciary." And again: "We are trying to save them from the temptation to intrude into powers which do not belong to them. What we are doing today is not to save the people from the judges but really enabling the judges to save them from themselves." The Emergency declared in 1975, and its aftermath, brought about a sea change in the attitude of the Congress Government to the Judiciary, and the Supreme Court in particular. It is only due to the lessons learnt from the Emergency that a restrained and subdued Government that came back to power in February 1980, decided that it was no more prudent and wise to continue such confrontation with the Judiciary. The post-1980 Court embarked upon a path of judicial activism unparalleled in the history of any modern democracy. Activists, lawyers and public interest groups invoked its jurisdiction, which was exercised, untrammelled by the limitations that applied to the High Courts. The Supreme Court identified Article 142 of the Constitution and its inherent power as an unlimited source of power, a veritable Kamadhenu, on which it could draw for whatever the judges felt were the demands of justice.

The Court compelled obedience to its will through its power of contempt drawn from its inherent power as a court of record, which it held was not subject to the limitations and restrictions in the law passed by Parliament, namely, the Contempt of Courts Act, 1971. In seeking to aid the poor, the illiterate and the disadvantaged sections of society, it did away with the existing cumbersome procedures, as long as public interest was subserved. With its newly developed craftsmanship it was able to achieve goals that the Government was unable to or unwilling to achieve. The Supreme Court succeeded in the space of a year where the Government had failed in the span of a decade. As a result of its activism, in the realm of the right to life and liberty, it embarked upon ensuring the rights of prisoners and rescuing them from the barbaric prison rules, which prevailed during the British colonial rule. The names of Hussainara Khatoon, Sunil Batra, Sheila Barse and many others, would all bring tears to the eyes of people who believed that it was part of their fate, ordained by the gods, to suffer at the hands of the Government and its public servants. A whole new catena of rights was also read into Article 21, which embodies the right to life and liberty. These, in various decisions, have been held to include the right to legal aid, right to go abroad, right to reputation, right to shelter, right to privacy, right against sexual harassment of women, right to education and the right to a clean and healthy environment. The Supreme Court, without being concerned any more about the political wing of the state seeking to fetter its powers, and without fearing any more confrontation with the Executive and the Legislature, expanded its area of adjudication to cover every conceivable aspect of human enterprise in the country. It dealt with pollution in the Ganga, guidelines for adoption of Indian children by foreigners, forced prostitution of girls and Devadasis and Jogins, the extreme poverty and starvation in Kalahandi, the elimination of injurious drugs and maintenance of approved standards in drugs, management of mental hospitals, employment of children in match factories, police `encounters' causing loss of life, x-ray hazards to public sector employees and numerous other areas of concern to the country. No wonder a former Chief Justice of India once described the Supreme Court as the most powerful court in existence in any democracy in the world. If you ask me whether many of the orders issued by the Supreme Court were within its jurisdiction or competence, I would hesitate to answer in the affirmative, but "we the people" will not question the legitimacy of the Supreme Court and its orders because it has used all the powers at its command to ensure that the fundamental rights are enforced and the mandate of the Constitution is implemented. The writ of the Supreme Court runs through every aspect of life and human endeavour. In , it found to its horror that thousands of under-trials were incarcerated for a far longer period than the maximum sentence which could have been imposed on them if they had been found guilty of the offence with which they were charged. This happened because of the huge backlog in the courts, as a result of which cases were taking five to eight years for disposal in the trial courts. By a single stroke of pen, the Supreme Court directed the release of these thousands of prisoners.

Hussainara Khatoon's case

Article 21 of the Constitution declares that no person shall be deprived of

his life or personal liberty except according to the procedure established by law. The Supreme Court breathed life into these words by expanding the meaning of the words as not mere animal existence, but as life with human dignity, with all faculties intact, a roof over one's head and the basic right to food and employment. Having held so, it started expanding this concept so as to include the right to privacy, right to go abroad, right to legal aid, right to medical assistance, right to shelter, right to speedy trial, right

"right to life"

to pollution-free water and air, right to a reasonable residence, right to food, clothing and a decent environment and even protection of the cultural heritage of the people. In Unnikrishnan's case, the Supreme Court held that the right to free education till the age of 14 is a fundamental right. Recently, in the Islamic Academy of Education's case, the Court declared that admission to professional colleges medical, engineering and others has to be on merit and the fees charged have to be reasonable even if run by private institutions. In Vishaka's case, the Court issued guidelines and directed the establishment of mechanisms to address sexual harassment of women at work place. A resurgent Supreme Court today entertains public interest litigation from every nook and corner of the country, including complaints of deprivation of human rights and basic requirements. The potent weapon of PIL has to be used with circumspection and craftsmanship. Today, we can rest content with the conviction that in the hour of need every person, irrespective of his status, wealth or education, can approach the courts, and in particular, the Supreme Court when his rights are violated, and that the Supreme Court would be ever happy and willing to extend its arms to ensure that the Constitution and the rights enshrined therein are implemented in the most vigorous manner. (Excerpted from the Justice Subramonian Potti Memorial Lecture delivered recently by the writer in New Delhi.)

Article 21: Protection of life and personal libertyNo person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life and personal liberty The foremost right among rights to freedom is the right to life and personal liberty. No citizen can be denied his or her life except by procedure as laid down under the law. Similarly no one can be denied his/her personal liberty. That means no one can be arrested without being told the grounds for such an arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also, it is mandatory for the police to take that person to the nearest magistrate within 24 hours. The magistrate, who is not part of the police, will decide whether the arrest is justified or not. This right is not just confined to a guarantee against taking away of an individuals life but has wider application. Various judgments of Supreme Court have expanded the scope of this right. The Supreme Court has ruled that this right also includes right to live with human dignity, free from exploitation. The court has held that right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood. Preventive detention Ordinarily, a person would be arrested after he or she has reportedly committed some offence. However there are exceptions to this.

Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above mentioned procedure. This is known as preventive detention. It means that if the government feels that a person can be a threat to law and order or to the peace and security of the nation, it can detain or arrest that person. This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review. On the face of it, preventive detention looks like an effective tool in the hands of the government to deal with anti-social elements or subversives. But this provision has often been misused by the government. Many people think that there must be greater safeguards in this law so that it may not be misused against people for reasons other than that which are really justified. In fact, there is a clear tension between right to life and personal liberty and the provision for preventive detention.

thou vkSj O;fDrxr Lora=krk dk vf/dkj Lora=krk osQ lcls egUoiw.kZ vf/dkjksa esa ^thou vkSj O;fDrxr Lora=krk dk vf/dkj* gSA fdlh Hkh ukxfjd dks dkuwu }kjk fu/kZfjr izfO;k dk ikyu fd;s fcuk mlosQ thou vkSj O;fDrxr Lora=krk ls oafpr ugha fd;k tk ldrkA bldk vFkZ ;g gS fd fdlh Hkh O;fDr dks fcuk dkj.k crk;s fxjY+rkj ugha fd;k tk ldrkA fxjY+rkj fd;s tkus ij ml O;fDr dks vius ilanhnk odhy osQ eke;e ls viuk cpko djus dk vf/dkj gSA blosQ vykok] iqfyl osQ fy, ;g vko';d gS fd og vfHk;qDr dks 24 ?kaVs osQ vanj fudVre eSftLVsaV osQ lkeus is'k djsA eSftLVsaV gh bl ckr dk fu.kZ; djsxk fd fxj Y+ rkjh mfpr gS ;k ughaA bl vf/dkj }kjk fdlh O;fDr osQ thou dks euekus <ax ls lekIr djus osQ fo#. gh xkjaVh ugha feyrh cfYd bldk nk;jk vkSj Hkh O;kid gSA loksZPp U;k;ky; osQ fiNys vusd fu.kZ;ksa }kjk bl vf/dkj dk nk;jk
c<+k gSA loksZPp U;k;ky; osQ fu.kZ; osQ vuqlkj blesa 'kks"k.k ls eqDr vkSj ekuoh; xfjek ls iw.kZ thou thus dk vf/dkj varfuZfgr gSA U;k;ky; us ekuk fd ^thou osQ vf/dkj* dk vFkZ gS fd O;fDr dks vkJ; vkSj vkthfodk dk Hkh vf/dkj gks D;ksafd blosQ fcuk dksbZ O;fDr knk ugha jg ldrkA fuokjd ukjcanh lkekU;r% fdlh O;fDr dks vijk/ djus ij fxjY+rkj fd;k tkrk gSA ij blosQ viokn Hkh gSaA dHkh&dHkh fdlh O;fDr dks bl vk'kadk ij Hkh fxj Y+ rkj fd;k tk ldrk gS

fd og dksbZ xSj&dkuwuh dk;Z djus okyk gS vkSj fiQj mls of.kZr izfO;k dk ikyu fd;s fcuk gh oqQN le; osQ fy, tsy Hkstk tk ldrk gSA bls gh fuokjd ukjcanh dgrs gSaA bldk vFkZ ;g gqvk fd ;fn ljdkj dks yxs fd dksbZ O;fDr ns'k dh dkuwu&O;oLFkk ;k 'kkafr vkSj lqj{kk osQ fy, [krjk cu ldrk gS] rks og mls canh cuk ldrh gSA ysfdu fuokjd ukjcanh vf/dre 3 eghus osQ fy, gh gks ldrh gSA rhu eghus osQ ckn ,sls ekeys leh{kk osQ fy, ,d lykgdkj cksMZ osQ le{k yk, tkrs gSaA izR;{k :i ls fuokjd ukjcanh ljdkj osQ gkFk esa vlkekftd rRoksa vkSj jk"Va fonzksgh rRoksa ls fuiVus dk ,d gfFk;kj gSA ysfdu ljdkj us izk;% bldk nq#i;ksx fd;k gSA vusd yksx ;g ekurs gSa fd bl dkuwu esa oqQN ,sls lqj{kkRed mik; fd, tkus pkfg, ftlls lkekU; ukxfjdksa osQ fo#. vU; fdlh dkj.k ls blosQ nq#i;ksx dks jksdk tk losQA okLro esa thou vkSj O;fDrxr Lora=krk osQ vf/dkjksa rFkk fuokjd ukjcanh osQ izko/kuksa esa ijLij fojks/kHkkl gSA Hussainara Khatoon (IV) v Home Secretary, State of Bihar [(1980) 1 SCC 98]

Facts: The case dealt, inter alia, with the rights of the under trial prisoners on habeas corpus petitions which disclosed a shocking state of affairs in regard to administration of justice in the State of Bihar. An alarmingly large number of men and women, children including, were behind prison bars for years awaiting trial in courts of law. The offences with which some of them were charged were trivial, which even if proved, would not warrant punishment for more that a few months, perhaps a year or two, and yet they remained in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. The Court ordered immediate release of these under trials many of whom were kept in jail without trial or even without a charge Ruling: Fairness under Article 21 is impaired where procedural law does not provide speedy trial of accused; does not provide for his pretrial release on bail on his personal bond, when he is indigent and there is no substantial risk of his absconding; if an under-trial prisoner is kept in jail for a period longer than the maximum term of imprisonment which

could have been awarded on his conviction and if he is not offered free legal aid, where he is too poor to engage a lawyer, provided the lawyer engaged by the State is not objected to by the accused. Where the petitioner succeeds in establishing his case, the Court would grant him any relief which is necessary to afford proper justice, or to prevent manifest injustice regardless of technicalities such as to issue directions to the Government and other appropriate authorities, as may be necessary, to secure to a prisoner his constitutional rights. The Supreme Court (per Bhagwati J) (at 107, para 10) held that the state cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to improving speedy trial.
Hussainara Khatoon v. State of Bihar,[12] where Justice Bhagwati observed: No procedure which does not ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21 of the Constitution. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21. Bhagwati, J. observed that although the right to speedy trial is not specifically mentioned as a fundamental right, it is implicit in the broad sweep and content of Article 21. In Hussainara (II),[13] the Court re-emphasized the expeditious review for withdrawal of cases against under trials for more than two years. In Hussainara (III),[14] the Court reiterated that the investigation must be completed within a time-bound programme in respect of under trials and gave specific orders to be followed for quick disposal of cases of under trials. In Hussainara (IV),[15] in continuation of Hussainara (I) and Hussainara (III), the Court considered the affidavits filed in response to its earlier orders and passed further directions. Dissatisfied with the compliance of its earlier direction, the Court ordered release of under trials held for periods more than the maximum term imposable on them on conviction. It was held that continuance of such detention is clearly illegal and in violation of that fundamental right under Article 21. The Court went one step further and after making a reference to the Hoskot case, [16] recognised the right to free legal services to the poor and the needy as an essential ingredient of reasonable, fair and just procedure implicit in the guarantee of Article 21, and

directed the State to provide a lawyer at its own cost for making a bail application to an under trial: (i) charged with bailable offence on the next remand date, or (ii) held for non-bailable offence after having spent half the term of maximum sentence imposable on him were he convicted. In Hussainara (V),[17] the Court considered the extent to which direction in Hussainara (IV) had been complied with, passed further directions and gave more time where necessary. In Hussainara (VI), in the pending cases to ensure speedy trial, the Court requested further details from the High Court and directed the State Government to file affidavit in reply. The sum and substance of the decisions in theHussainara cases is the recognition of the right to speedy trial, and the right to legal aid services under Article 21. It was pointed out that the present legal and judicial system denied justice to the poor and the needy because the system of bail with its misdirected emphasis in furnishing financial security operated adversely against the accused
CANCELLATION OF BAIL According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody. The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court in Janardhans case[13] this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an

obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance. However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhis case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra[14] and Hussainara Khatoons case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him. The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is. a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.