ABSTRACT
No one shall be deprived of his life or personal liberty except according to the procedure established by law. These 19 words mentioned under Article 21 of our Constitution are not just the words but an epitome of freedom and liberty of a human. It has been 67 years of our Constitution coming into force and since then, this Article has come a long way from a narrow interpretation under A.K. Gopalan case to covering every aspect of human life. Will discuss further on how the term “life” under Article 21 has played an important role in the life of a human being and judicial system of our country.
Keywords: Article 21, life, liberty, human rights.
(I)INTRODUCTION
The term “life” has several dimensions. It has different forms. It’s not simply a term. It puts a soul inside a thing making it a living organism like human beings, animals etc. Being in existence is something different and making that existence more purposeful, meaningful is completely different. So how should we make our life more meaningful and purposeful? The answer lies in our Constitution.
In our Constitution, the term “life” has been mentioned as one of our fundamental rights and no one has the right, not eventhe Parliament, to take away such right as was held by the Hon’ble Apex Court in Keshvananda Bharti v. State of Kerala[1]. Article 21 is the heart & soul of Indian Constitution. It gives a basic fundamental right, which all human beings deserve right from their birth till their death, i.e. “right to life” & “personal liberty”. The article reads out:
“No person shall be deprived of his life or personal liberty, except according to the procedure established by law.”
Article 21 is divided in two parts. One part gives an absolute freedom to enjoy our life with all rights and liberties; the other part puts some restriction upon it. Just like every benefit has some kind of liability embedded in it, in the same way every fundamental right has some kind of restriction imposed upon it. No fundamental right is absolute in terms.
There was a debate on Article 15 (presently 21) during Constituent Assembly regarding the wording “procedure established by law.” It was contended especially by the then member of the Constituent Assembly Dr. BakshiTek Chand that instead of using the term “procedure established by law”, “due process of law” should have been used.[2] There is a wide contrast between the two terms. “Procedure established by law” means a law which is made by the legislature, has an over-riding effect over the fundamental right, whether it is fair or not. “Due process of law” means a law which will be declared constitutional only when it follows the principle of “justice, fairness & equity.” If it is found that the law is in derogation with any fundamental right, the court will come into rescue of the victim and will declare the law null and void. Though in Article 21, “procedure established by law” has been mentioned, the Apex Court has started following the principle of “due process of law” after the landmark Maneka Gandhi[3] case. From 1950 till date, our Constitution has traveled a long way. The working of the largest democracy of the world depends on this Constitution.As in the words of Shrimati Purnima Banerji, “The Constitution of a country always is a very important and precious document, because it gives us an idea of how the great people of a country fashion their institution, how they want to live, what are the political arrangements under which they exercise their judgment and what are the hopes and aspirations which they entertain for the future.”[4]
Traveling such a long journey was not an easy task for our Constitution. It faced many hurdles, including many draconian amendments, trying to diminish its soul. But our judiciary has always come down heavily upon such acts and has always acted the guardian of our Constitution and our fundamental rights. In the same journey, Article 21 was also interpreted several times by our Apex Court and various high courts, giving it a new life, a new meaning.
(II)
INTERPRETATION OF
TERM “LIFE”
Though the term “life” has been interpreted several times in several different ways, it would be better to refer to some recent examples of such incidents where “right to life” was invoked and what was the stand of the judiciary in past in relation to the same matter.
(A)
BEEF BAN& RIGHT TO EAT
Conservation of animals can be regarded as one of the most virtuous act of the human beings especially when we ourselves are responsible for evaporating half of the animal species from this planet. Conservation can be in the form of prohibition on hunting or slaughtering of the animals. Generally animalsare used by the human beings for two purposes: (i) as a food; or (ii) its skin is used for different commercial purposes like medicines, clothes etc. Prohibition on slaughtering of animals for food can be regarded as a great step, but banning particular specie of animal for food without any reason or killing a human being for eating particular specie of animal can be regarded as a great step? Well not atleast in a democratic country.
Every now and then, it is showed as headlines that some person claiming himself to be “gow-rakshak” beating up person who is “alleged” to have been involved in cow slaughter or eating beef. After such incidents, we see a number of news channels wherein aggressive debates are telecasted on whether to ban beef or not, or in other way round as in the words of Mr. Arnab Goswami, “WHAT SO SECULAR IN EATING BEEF?[5]Let’s look at some incidents where a particular religion was being targeted:
- A 55 year old Pehlu Khan died on 5th April, 2017 in westernIndia after he was attacked by hundreds of Hindu cow protection vigilantes.[6]
- On 21st April, 2017, in the State of Jammu & Kashmir, a mob brutally attacked 5 members of a nomad cattle herding family, including a 9 year old girlon suspicion that they were taking their cows for slaughter.[7]
- A Muslim blacksmith Mohd. Akhlaq died in Dadri due to hundred of Hindu mob furiously beaten him on the ground that he was involved in cow slaughter and then having beef.[8]
When we talk about a person’s right to eat, we have to look it with the aspect of “right to life” and “personal liberty”. It is right to life as Supreme Court clearly noted in HinsaVirodhakSangh case[9], that Article 21 also includes right to eat anything, which is his personal affair. It is personal liberty because Kharak Singh[10] case held that “personal liberty” used under Article 21 is of widest amplitude and covers all types of right which go to make up a personal liberty of a man. Recently, the Central government introduced Prevention of Cruelty to Animals (Regulations of Livestock Markets) Rules, 2017 upon which there was hue and cry about the draconian nature of the rule and how it completely prohibits slaughtering of cows, thus affecting both fundamental right to occupation & right to eat anything. However, it was observed by Kerala High Court[11] that this act does not completely prohibit slaughter of cows but only banned sale of cattle at animal market.
It is an accepted fact that cows has always been treated with great honor & respect in Hindu Mythology but do only cows have such importance for which a Hindu can go to an extent to kill someone? Aren’t other animals important?If we say that eating beef is a sin, so is eating other animals as is written inAtharva Veda Chapter VII, verse 6.23, “Those who eat cooked or uncooked flesh, who eat eggs and embryos, are following an evil addiction that must be put to an end.”[12]
Right to eat anything which includes non vegetarian food also is recognized by the law itself. Though not specifically declared but section 11(3)(e) of the Prevention of Cruelty to Animals Act, 1960 provides that no one shall be punished for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering. Then from whose permission these self proclaimed “Protectors of Cow” are causing death of beef eaters? Are they over and above the law? Article 21 is all about living the life with full liberty. But with these cases, certainly at some point of time, capability of the courts and the legislature can be questioned.
(B)
ARMED FORCES SPECIAL POWER ACT (AFSPA)
Due to internal disturbances, the Indian Armed Forces under section 3 of The Disturbed Areas (Special Courts) Act, 1976 declared part of Naga Hills, then part of Assam as “disturbed area”and subsequently it was declared in all the seven sister states. In Jammu & Kashmir also, this act has been imposed and is in continuance till today.
Though the object of this act is to control the disturbances in the states where the act has been imposed, which seems legitimate but upon reading the bare provisions of this act, we will come to know how this law is one of the most “draconian law” passed by the Parliament till date.Under section 4(a) of the Act, an army officer can cause a death of a person if in his opinion it is necessary to do so to maintain public order, can fire upon or use such force even to causing death of such person on the basis that either that person has acted in contravention of any law, or in order to prohibit the assembly of five or more people or on the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunitions or explosive substances.
On reading the provision, a question arises: what if the person who died in so called “encounter”, was not a terrorist or militant but a civilian? Many cases have been filed regarding such extra judicial encounters but to no avail. Finally, the Supreme Court ordered the formation of committee[13] headed by Justice Hegde to study some extra judicial encounters and to find whether the officers acted with due diligence or not. One incident is mentioned below:
Case of Md. Azad Khan[14]: It was alleged that the 12 year old Azad Khan is a member of People’s United Liberation Front, which is not a banned organization by Manipur Govt and also an FIR was registered against him u/s 307, 324, 34 of IPC and section 27 of Arms act. It is the case, where it was alleged that some 20 army personals of Assam Rifles came to the deceased house, locked his parents, sister and one of his friend (who was also accused to be the part of PULF) in the house, then dragged Azad to the ground and fired at him. On doing cross examination of various witnesses to this case, the commission found that the plea of private defense taken by the officers is not tenable as from the facts it was clear that the forces had gone for an encounter and were large in number as compared to suspects and if they couldn’t apprehended the deceased, then it raises a serious doubt on the competency of the highly trained security officers.
This is only one example about how the encounter is being conducted by the officers. Apex Court has repeatedly held in K. Satwant Singh[15]&Ganesh Chandra[16]that it is not the duty of the police officer to kill a person even if he is a dreaded criminal and that such killings must be depreciated. Also in Indra Das[17]&Arup Bhuyan[18], the highest court of land took the stand that just because a person is a member of banned organisation doesn’t give rise to an assumption that he is indulged in some act of violence or imminent violence.
Just because, some civilians are doing violent actions doesn’t termed them as a terrorist or a militant. It is a basic assumption that all acts of violent resistance, even against the armed forces and public officials could not be branded as acts of war.[19] Therefore, animus to wage a war or any other similar activity is important before a non-conventional war or war-like situation can be said to exist. Every act of violence, even though it may be directed against the armed forces or public officials would not lead to an inference that a war is going on or that war-like conditions are prevailing.[20]
Whatever be the situation, no basic fundamental right of any civilian should be infringed, as it will amount to tyranny and Autocracy.The State has no right to take any action which will deprive a citizen of the enjoyment of this basis right except in accordance with a law which is reasonable, fair and just.[21]We must presume that, if the founding-fathers intended to provide any exception, they would have said so specifically in Part III itself.[22]If members of our armed forces are deployed and employed to kill citizens of our country on the mere allegation or suspicion that they are ‘enemy’ not only the rule of law but our democracy would be in grave danger.[23]
Though Supreme Court Naga People’s Movement of Human Rights[24]refused to declare the act unconstitutional in respect of Article 21, but it doesn’t mean that officers can be immune from any action. InGeneral Officer Commanding v. CBI & Another[25], a two judges bench said, “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand”[26]
(C)
RIGHT TO PRIVACY
“Even if you want to be forgotten, the state is not willing to forget you”[27], said by MukulRohtagi during the arguments presented before the Apex Court regarding the constitutional validity of the amendment brought about by Finance Bill, 2017. The major amendment brought about by this bill is the amendment to section 139AA of the Income Tax Act, 1961 which made Aadhar Card compulsory for PAN Card and filing IT returns. So, at the end it means that, since filing IT returns is compulsory for a citizen, lack of Aadhar card will turn him into a criminal.
All these arguments, amendments relate directly to one of the most challenging fundamental right which is yet to be recognized i.e. “Right to Privacy”. Though this right has been enshrined in various international conventions like ICCPR, UDHR, it has not been specifically mentioned in the Indian Constitution. But courts in India have always shown a keen interest in order to decide whether it’s a part of article 21 of the Constitution.
Even though it has always been not specifically declared part of our fundamental rights as was held by M.P. Sharma v. Satish Chandra[28](8 judges’ bench) &Kharak Singh v. State of Uttar Pradesh[29](6 judges’ bench), in some other judgments delivered by smaller benches, right to privacy was given a greater importance. In R. Rajgopal& Another v. State of Tamil Nadu &Others[30], the two judges bench held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.
Finally after much deliberation and waiting the apex court in its 9 bench judges judgment Justice Retd. K.S. PuttuswamyAiyar& Another v. Union of India[31] held that right to privacy is indeed a part of a fundamental right to life of a human being to live his life peacefully therefore over turning its previous judgments especially MP Sharma case &Kharak Singh case
Though in a recent two judges bench judgment of Supreme Court in BinoyViswam v. Union of India & Others[32], the apex court allowed the said amendment but it didn’t deliberate upon “Right to Privacy” issue as it is still pending before the Constitutional Bench. Making Aadhar card compulsory for any scheme is not an issue. The basic question is that whether our information is secured or not? Giving finger prints or biometric information is surely a matter of one’ privacy but, it’s now a war between efficient security & Privacy of a human being.
Another aspect of “Right to privacy” is sexual relation. Obviously having sexual relation is a matter of one’s private life and no one has the right to interfere in those matters. But sometimes, it happens that one may be interested in your sexual life especially when you are gay, lesbian or bisexual which may land you in jail for 10 years. It may sound odd, but this is the fact. Section 377 of Indian Penal Code reads out, “Unnatural offences.—whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Indian Penal Code came into force during British rule, the time when there was no space for “democracy” in the country. Though we are the largest democratic country today and have fundamental rights enshrined, but this section was not declared unconstitutional. It is worth mentioning Naz foundation case[33] which was decided by Delhi High Court as well as by Supreme Court. High Court though declared section 377 as unconstitutional beingviolative of Article 21, 14; it was overturned subsequently by Supreme Court.[34]
The decision of the Supreme Court has been challenged again and is pending before the constitutional bench. In other jurisdiction, laws regarding such criminalizing of gay sex has been declared unconstitutional such as South Africa Supreme Court in National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others[35]& United States Supreme Court in Obergefell v. Hodges[36], has declared same sex marriage as constitutional. It is worth mentioning what Justice Kennedy in Obergefell case held:
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
(D)
TRANSGENDER RIGHTS
“But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”[37]
Article 21 encapsulate “life” & “personal liberty” and it is imperative upon the judiciary to interpret the article as a whole and do not study it in isolation. When we say that we have “right to life”, it means we enjoy all those rights which make our life meaningful. A person born as a male has some inclination towards female attitude, wants to dress up like a female and it makes him happy to do such things, doesn’t his right is to be protected by the Constitution? Supreme Court has an answer to it.
Transgender community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv Shakti etc. They also comprise of persons who intent to undergo Sex reassignment surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons.[38]On international platform, rights of transgender have been enshrined in Yogyakarta Principles which consists of 29 principles on the application of international human rights law in relation to sexual orientation and gender identity. The introduction of these principles reads out, “All human beings are born free and equal in dignity and rights. All human rights are universal, interdependent, indivisible and interrelated. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse.”[39]
In our country, thanks to the Apex Court, transgender has been recognized as “third gender” in NALSA v. Union of India case[40]which ruled “Recognition of one’s gender identity lies at the heart of the fundamental right to dignity.”Moreover, in another landmark judgment by Supreme Court in Navtej Singh Johar[41], it declared Section 377 of IPC partially unconstitutional as much as it provided same sex sexuality as a punishable offence.
(E)
DEATH PENALTY
A person bombs a city in which several people died.Mother crying on seeing her dead child on her lap, a small kid is trying to wake up his dead parents; a husband is not able to find his beloved wife. Or in some other incident, a woman being hunted by the pack of lust wolfs (men) that either she suicides because of mental agony she suffers or is murdered by those pack of wolfs only. These are some of the incidents which can be reported on a piece of paper but the emotions involved in it cannot be measured on a piece of paper.
In such type of situations, a question always stuck in the mind of ordinary person: Do these people who have committed such offense, don’t deserve to be inflicted with maximum penalty like death penalty? Human Rights activists say that death penalty should be abolished as it is direct violation of fundamental right to life. Infact during the constituent assembly debates, Dr. Ambedkar argued in the favor of abolishment of death penalty. According to him, since our country has always adhered to the principle of non-violence, therefore as a moral mandate it should be abolished.[42]Death penalty has always been a subject of several debates.
The counsels arguing on behalf of the offenders who have been sentenced to death, that it is in clear cut violation of article 14, 19 & 21 because with death penalty all the fundamental rights will be vanished and also since there is no prescribed rule that death penalty will be given in particular case, it will amount to violation of “right to life”.They cite example of other jurisdictions where death penalty has been abolished like as per Protocol No. 13 of 2002 to the European Convention of Human Rights, death penalty shall not be given in any circumstances.[43] Similar is the situation in Africa where 17 countries have formally abolished it[44]
So now the question is whether the death penalty should be abolished in India vide Article 21 especially “right to life”? Article 21 provides that any law which takes away life and liberty of a person must be reasonable & this procedure is required to be observed at every stage and till the last breath of the life.[45]When we read out “except according to the procedure established by law”, it means that the law should be fair & just. It should not be arbitrary. It is for this reason that section 303 of Indian Penal Code, 1872 which laid down the rule that whosoever has been convicted for life imprisonment, has committed murder shall be hanged to death, was declared unconstitutional by Supreme Court in Mithu v. State of Punjab[46], showing a clear cut motive of the judiciary that no one shall be sentenced to death arbitrarily. Also, a special rule has also been incorporated by the Court while giving death sentence is “rarest of the rare case”[47]read with section 354(3) of the Code of Criminal Procedure, 1973 which reads out, “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”
Also, even if the death penalty is awarded by the Supreme Court, there is an option for the aggrieved party to file review petition[48] and even if the review petition is dismissed, the aggrieved party can file curative petition[49], in order to ensure that there is no apparent error committed by judges. Moreover the accused has the right to file mercy petitions before the President of India[50] or the Governor of State[51], who can retain the death sentence or commute it to life sentence taking all the factors into consideration.
Another option which an accused has is pleading the commutation of death sentence into life if there has been a delay of execution of death sentence. As Supreme Court in its 2 judges bench judgment in Vatheeswaran case[52] observed that prolonged detention to wait for the execution of a sentence, of death is unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death. It went on to further explaining the importance of “right to life” with death penalty is that though a period of anguish and suffering is inevitable, the delay of it is not and it is not an answer that the man has to struggle to stay alive.[53]
Also, the court while deciding the “death sentence” has to take into consideration the aggravating & mitigating circumstances of the case. The best example of this can be taken from the recent judgment of the Apex Court in Nirbhaya Case[54] in which the court at length took into consideration the mitigating and aggravating facts of the case. While upholding the decision of death penalty, the Court was compelled to say, “The casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable. It sounds like a story from a different world where humanity has been treated with irreverence. The appetite for sex, the hunger for violence, the position of the empowered and the attitude of perversity, to say the least, are bound to shock the collective conscience which knows not what to do.”
(F)
TRIPLE TALAQ
The Holy Prophet was very keen on improving the condition of women in society and on securing for them a position of dignity and fair and equitable treatment. Islam was the first religion which conferred upon women the right of inheritance.[55]
Then from where the menace of “triple talaq” came into picture? It is better to refer to the Armed Forces Tribunal decision in Lance Naik /Tailor Mohammad Farorr @ Fraooq Khan v. Chief of the Army Staff & Others.[56]In this case, the tribunal observed that in India, two types of Muslim divorce are followed: talaq al sunnahandtalaqulbiddah. The former deals with the Quranic procedure according to which talaq cannot be pronounced three times successively. After saying “talaq” for first time, iddat period follows and during that period not more than two times talaq can be pronounced. After the iddat period only, the irrevocable “third time talaq” can be pronounced. In the latter type of divorce, which is followed widely without any control and fully recognized by AIMPLB, “talaq” is pronounced three times successively, thus putting the situation of women in peril.[57]
One report of National Commission of Women’s, “Voice of Voiceless-Status of Muslim Women in India” observed that the Muslim Woman, suffers not only when she is divorced or abandoned but lives her entire married life under the dread that her husband has the arbitrary power to divorce her and throw her out of the house along with the children at his slightest fancy,[58] clearly showing that how the personal liberty and dignity of a Muslim women is being violated which is an essential part of Article 21.Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being.[59]
The Armed tribunal in Chief of Army staff case,heldthat talaq or triple talaq cannot be executed for deserting a lady or her children negation constitutional guarantee provided to every citizen of the country.Also, it is worth noting recent Allahabad High Court decision in Aaqil Jamil v. State of Uttar Pradesh[60], in which the court concluded that the talaq by a Muslim husband to his wife cannot be made in manner which may infringe her fundamental rights guaranteed under Article 14 & 21 of the Constitution. In Lily Thomas v. Union of India[61], the Hon’ble Apex Court concretely held that though religion is a matter of faith stemming from the depth of the heart and mind, they cannot in any case offend constitutional rights guaranteed under Article 14 read with Article 21 of the Constitution.
The question of validity of “triple talaq” finally came to an end with the constitutional bench judgment inShayaraBano v. Union of India & Others[62]in which the court held that the practice of “talaq-ul-biddah” is not an essential practice of the Muslim religion and in such types of practices the Muslim women have no place to go anywhere thus putting their life in peril. It’s
(G)
RIGHT TO
HEALTHY ENVIRONMENT
There is a famous proverb, “Only when the last tree has died, and the last river been poisoned, and the last fish been caught, we will realize we cannot eat money.”[63]This proverb aptly refers to the egoistic approach we humans have. We are using natural resources abruptly and destroying it in such a manner that we have put our own life on stake.
When we say that “right to life” means something which is more than mere animal existence and which makes our life meaningful, it will become meaningful only when the environment will be clean. Without a healthy environment, our body won’t function properly thus degrading our life.
Article 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with humane dignity without a healthy environment.[64]
In M.C. Mehta v. Kamal Nath and others[65], have held that causing disturbance to ecological balance would be hazardous to ‘life’ within the meaning of Article 21 of the Constitution of India. It was further held that even exemplary damages can be imposed as a deterrent for causing pollution and environment degradation.
In our country, Ganga & Yamuna are treated as one of the most sacred rivers. People refer to Ganga as “Ganga maa”, giving her the status of mother. But practically, we humans are not respecting our Mother Ganga which we should. Tons of garbage and polluted materials by industries are released everyday in this river, making it unsafe both for aquatic life as well as humans which consume water from it. Clean water means good health. Every citizen has a right to clean water under Article 21 of the Constitution of India to get clean water which is also the basic human right.[66]
For the first time, in order to save the existence of our holy river, Uttrakhand High Court declared the Glaciers including Gangotri&Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/ legal person/juristic person, having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.[67]
Also, in order to safeguard human rights and in order to conserve the natural beauty, the court has evolved the doctrine of “Polluter Pay Principle” & “Precautionary Principle”. Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”.[68] Apex Court in Vellore Citizens Welfare Forum v. Union of India & Others[69]observed that though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard.
Governments both at the center and in the Statemust realize and remain cognizant of the fact that the stake involved in the matter is large and farreaching. The evil consequences would last long. Once that unwanted situation sets in, amends or repairs would not be possible. The greenery of India, as some doubt, may perish and the Thar Desert may expand its limits.[70]
(H)
RIGHT TO EDUCATION
“Liberty without learning is always in peril and learning without liberty is always in vein” said by John F. Kennedy[71], the then President of the United States of America. According to the Forbes Magazine 2017, India is home to 101 billionaires of the world making it to top 4 countries having highest number of billionaires.[72] It’s great news, showing some good conditions of our economy. But there is other side of our economy and that is: poverty & illiteracy.
The right to be free from poverty includes the human right to an adequate standard of living. Poverty is a human rights violation.[73]Right to live in Article 21 covers access to education. But unaffordability defeats that access. It defeats the State’s endeavor to provide free and compulsory education for all children of the specified age.[74]There has always been a logger head between the Government & Private Institutions regarding the fees of the education and whether it is a duty upon the private institutions to admit students from weaker sections of the society.
These questions came before the Apex Court in Mohini Jain v. State of Karnataka[75], in which the ratio of the case was that no private institutions offering professional courses shall charge any tuition fees which is over and above the fees charged by the govt. aided colleges. Also, it held that it is the responsibility of the govt. to provide education to every citizen of the country at primary & tertiary level as well like for e.g. engineering or medical. This judgment came for review in Urnni Krishnan v. State of Karnataka[76]which over-ruled the former judgment. The Constitutional bench judgment clearly held that though it is true that right to education comes from “right to life” as enshrined under Article 21, however it cannot be given infinite meaning. No one can impose any obligation upon the State to provide adequate engineering or medical colleges to fulfill “right to education”. Also, the court disallowed the judgment of Mohini Jain on the point that the fees charged by the private institutions over and above the govt. college should be treated as capitation fees.
The question of upholding the judgment of Urnni Krishnan came before the 11 judges’ bench in T.M.A. Pai Foundation &Ors. v. State of Karnataka &Ors.[77]One aspect of the judgment of Urnni Krishnan was that the unaided minority colleges established under Article 30(1) have to admit the students of the weaker sections of the society or in other words have to give up some percentage of their seat share to these students. This proposition was not found to be a good law.
All these cases were based on the dictum that “right to life” means “right to education” in consonance with Directive Principle of State Policy. In 2002, by 86th amendment, Parliament enacted Article 21A which reads out, “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.”Also in 2009, Parliament enacted Right to Education Act. The main agenda of this act is to reserve 25% in the primary schools whether aided or unaided or minority or non-minority schools for students from weaker sections of the society. This act and the new article was constitutionally challenged before the Apex Court in Society for Unaided Private Schools of Rajasthan v. Union of India & Others[78], where by 2:1 the Court held that the act and the amendment is constitutionally valid and it will apply to all schools irrespective of being aided or unaided or minority or non-minority. However, the Court declared that all the unaided schoolsestablished under Article 30(1) of the Constitution, the Act won’t apply. This case was referred to Constitutional bench in Pramati Educational & Cultural Trust & Others v. Union of India & Others[79], where the court held that the Act and the amendment both are constitutionally valid but it declared that the judgment of the court in Unaided schools case in respect of applicability to aided minority schools established under Article 30(1) is not a good law.
But it is to be noted that all the judges in every case were persistent that “right to life” means “right to education”. However, they were keener in delivering that right to education in perspective of India especially, should be to provide atleast primary education to every child. There is no wealth greater than education.
(I)
RIGHT TO DIE
It’s an accepted bitter truth that one has to die at some point of time. We do all those things to make our life happy, prosperous. But sometimes, when in some grave depression people tend to give up their life. In the best words, they want to suicide. Another aspect can be when a person meets any fateful incident after which he goes into terminal illness or permanent vegetative state, where he is only a living dead body. He is put upon life supporting system, living rest of his life in pain & agony and in such a situation the near relatives want that the person should die peacefully by the process known as “Euthanasia”. In such type of situation, can a person die on his own will? Legally it is not allowed. Section 309 of the Indian Penal Code, 1860 has made attempt to suicide as a punishable offense with an imprisonment of one year. But if right to life includes right to die with dignity, then section 309 stands unconstitutional against Article 21 of the Constitution, right? Though the question seems attractive and the answer seems logical, however it cannot be termed legally tenable.
The question about the constitutionality of section 309 IPC came up before the divisional bench of the Supreme Court in P. Rathnam v. Union of India.[80] The question was: Whether Section 309 is violative of Article 21 “right to life” of the Constitution? Court answered in affirmative. Infact before this judgment, Bombay High Court in MarutiShripatiDubal v. State of Maharashtra[81] also declared section 309 as being violative of Article 21 of the Constitution. Delhi High Court in Court on its own motion v. Yogesh Sharma[82], did not declared the section void, however it acquitted all the accused who were being charged under this section. The main declaration of the courts was that Article 21 talks about right to life and not right to live a forced life. These cases were challenged before the Constitutional bench in Smt. Gian Kaur v. State of Punjab[83] which overturned P. Rathnam judgment and declared that section 309 cannot be declared void of Article 21 by categorically stating that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of lifebe read to be included in protection of life.
In case of Euthanasia, the court in Aruna Shanbaug v. Union of India[84], declared that passive euthanasia can be allowed but in certain medical situations only, raising a presumption that right to life means right to die but in certain cases only. Supreme Court was again faced with the same question but with a slight different aspect in Common Cause (A Registered Society) v. Union of India[85]. The Court was asked to declare that in case a person is terminally ill, then he is able to execute “My living will & Attorney Authorization” to carry out the process of euthanasia. However the court referred the case to a constitutional bench before which the whole case of applicability of euthanasia as well as Gian Kaur case applicability is pending.
Living life in pain or misery is one thing and forcing someone to live that life is totally different. It’s now up to the court & parliament what stand they want to take.
(III)
CONCLUSION
We have seen through recent case examples as to how the term “life” was interpreted in several ways, thus giving it a new terminology in “different senses”. At some point, Courts have given interpreted the term in such a manner that many laws were declared unconstitutional. However, on the same hand, several years old laws made during the British time are still intact in the statue books, are still to be considered.
Every fundamental right has its own importance and without these rights, the existence of humans and now nature as well, cannot be possible. As was held by the Court in R.C. Cooper v. Union of India[86] what is true of one fundamental right is also true of another fundamental right. It is not, and cannot be, seriously disputed that fundamental rights have their positive as well as negative aspects. Same is with Article 21. If it gives us immense rights to enjoy our life with full liberty, then it should be enjoyed under due procedure of law.
[1]His Holiness KesavanandaBharti Sripadagalvaru and Ors. v State of Kerala and Anr., (1973) 4 S.C.C. 225.
[2]Parliament of India, “Constituent Assembly Debates”, Part II (15th September,1949)http://parliamentofindia.nic.in/ls/debates/vol9p35b.htm
[3]Maneka Gandhi v Union of India, 1978 S.C.R. (2) 621.
[4]Parliament of India, “Constituent Assembly Debates”, Volume IX, PARLIAMENT OF INDIA (24th Nov. 1949) http://parliamentofindia.nic.in/ls/debates/v11p10m.htm
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[6]Michael Safi, “Muslim Man dies in India after attack by Hindu cow protectors”, TheGuardian (5th April, 2017, 14:42), https://www.theguardian.com/world/2017/apr/05/muslim-man-dies-in-india-after-attack-by-hindu-cow-protectors
[7]HUMAN RIGHTS WATCH ,“India: ‘Cow Protection’ Spurs Vigilante Violence”, Human Rights Watch (27th April, 2017, 10:04 AM), https://www.hrw.org/news/2017/04/27/india-cow-protection-spurs-vigilante-violence
[8]Harmeet Shah Singh, “Mob in Indian village kills man over cow slaughter”, CNN (3rd October, 2015, 1:25GMT), (Jan 1st , 2020, 9:01 PM)http://edition.cnn.com/2015/10/02/asia/india-mob-murder-beef/index.html
[9]HinsaVirodhakSangh v. Mirzapur Moti KureshJamat& Others, (2008) 5 S.C.C. 33.
[10]Kharak Singh v. State of Uttar Pradesh, AIR (1964) 1 S.C.R. 332
[11]Kozhikode District Meat Workers & Association & Others v. Union of India & Others, W.P. (C) __ of 2017.
[12]Swami Bhakti Vedanta Varaha, “The Srimad Bhagavad-Gita and the Sacredness of All Cows”, BHAGVAD GITA TRUST (Jan 4th , 2020, 11:54 AM), http://www.bhagavad-gita.org/Articles/holy-cow.html
[13]Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India & Another, W.P. (Crl.) No. 129 of 2012, Suresh Singh v. Union of India & Another, W.P. (C) No. 445 of 2012
[14]Commission of Enquiry, “Santosh Hegde Commission Report on Manipur”, 9-24 (23rd July, 2013) (Jan 1st, 11:54 PM)http://www.hrln.org/hrln/images/stories/pdf/hedge-report-manipur.pdf
[15]K. Satwant Singh v. State of Punjab, (1960) 2 S.C.R. 89
[16]State of Orissa v. Ganesh Chandra Jew, (2004) 8 S.C.C. 40
[17]Indra Das v. State of Assam, (2011) 3 S.C.C. 380
[18]Arup Bhuyan v. State of Assam, (2011) 3 S.C.C. 377
[19]State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 S.C.C. 600.
[20]Extra Judicial Execution Victims Family Association (EEVFAM) &Anr. V. Union of India & Others, W.P. (Crl.) No. 129 of 2012
[21]ChallaRamkonda Reddy v. State of Andhra Pradesh, 1989 (AP) 235
[22]People’s Union for Civil Liberties v. Union of India & Another, W.P. (Crl.) 612 of 1992
[23]Ibid
[24]Naga People’s Movement of Human Rights v. Union of India, (1998) 2 S.C.C. 149
[25]General Forces Commanding v. CBI & Another, [2012] 5 S.C.R. 599
[26]Sanjoy Hazarika, “An abomination called AFSPA”, The Hindu (Jan 9th , 2020, 9:54 AM), http://www.thehindu.com/opinion/lead/an-abomination-called-afspa/article4404804.ece
[27]Amit AnandChoudhary, “Citizens don’t have absolute right over their bodies: Government”, Times of India (3rd May, 2017, 1:53 AM) http://timesofindia.indiatimes.com/india/citizens-dont-have-absolute-right-over-their-bodies-government/articleshow/58486260.cms
[28]M.P. Sharma & Others v. Satish Chandra, District Magistrate, Delhi &Others, 1954 AIR 300
[29]Kharak Singh v. State of Uttar Pradesh & Others, 1963 AIR 1295
[30]R. Rajgopal& Another v. State of Tamil Nadu & Others, (1994) 6 S.C.C. 632
[31]W.P. (C) No. 494 of 2012
[32]BinoyViswam v. Union of India & Others, W.P. (C) No. 247 of 2017
[33]Naz Foundation v. Government of NCT of Delhi & Others, WP (C) No. 7455/2001
[34]Suresh Kumar Koushal& Another v. Naz Foundation & Others, SLP(C) No. 15436 of 2009
[35]National Coalition for Gay and Lesbian Equality and Another v. Minister of Justice and Others, 1999 (1) SA 6
[36]Obergefell v. Hodges, Director, Ohio Department of Health, et. al, 576 US__ of 2015
[37]J. Dipak Mishra quoted John Stuart Mill in Navtej Singh Johar v. Union of India, W.P. (Cri.) No. 76 of 2016
[38]NALSA v. Union of India, W.P.(C) No. 604 of 2013
[39]The Yogyakarta Principles, “Principles on the application of International Human Rights Law in Relation to Sexual Orientation & gender identity”, (2007) (Jan 12th , 2020, 11:54 AM) http://www.glen.ie/attachments/The_Yogyakarta_Principles.pdf
[40]Ibid
[41]Navtej Singh Johar v. Union of India, W.P. (Cri.) No. 76 of 2016
[42]Parliament of India, “Constituent Assembly Debates”, Part II, PARLIAMENT OF INDIA (3rd June, 1949) http://www.google.com/url?q=http%3A%2F%2Fparliamentofindia.nic.in%2Fls%2Fdebates%2Fvol8p15b.htm&sa=D&sntz=1&usg=AFQjCNHI4i2LWs0cHl9YuCosDZeS62vGJw
[43]European Treaties Series-187, “Protocol No. 13: To The Convention For The Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in all Circumstances”,EUROPEAN COURT OF HUMAN RIGHTS(2002) (Jan 12th , 2020, 11:54 AM) http://www.echr.coe.int/Documents/Library_Collection_P13_ETS187E_ENG.pdf
[44]Lawrence Murugu Mute, Mrs. Lucy Asugabor& Med S.K. Kaggwa, “Statement by the Chairperson of the Working Group on Death Penalty of the African Commission on Human and People’s Rights on World Day against the Death Penalty”, African Commission on Human and People’s Rights [11th Oct. 2014] http://www.achpr.org/press/2014/10/d227/
[45]Smt. Triveniben&Ors. v. State of Gujarat, 1989 AIR 1335
[46]Mithu v. State of Punjab, 1983 AIR 473
[47]Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684
[48]Article 137, Constitution of India, 1950
[49]Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 S.C.C. 388
[50]Article 72, Constitution of India, 1950
[51]Article 161, Constitution of India, 1950
[52]T.V. Vatheeswaran v. State of Tamil Nadu, 1983 AIR 361
[53]Smt. Triveniben&Ors. v. State of Gujarat, 1989 AIR 1335
[54]Mukesh& Another v. State of NCT Delhi & Others, Criminal Appeal No. 607-608 of 2017
[55]MIRZA BASHIR-UD-DIN MAHMUD AHMAD, INTRODUCTION TO STUDY OF HOLY QURAN, 245 (2016)
[56]2016 S.C.C. Online AFT 450
[57]Farah Faiz, Triple Talaq: Muslim Personal Law Board runs its own court, Firstpost (8th Dec., 2016, 16:02 IST) http://www.firstpost.com/india/allahabad-hc-on-triple-talaq-muslim-personal-law-board-runs-its-own-court-and-exploits-govt-3146262.html?fb_comment_id=1245681012168539_1246220118781295 \
[58]SyedaSaiyidain Hameed, Voice of Voiceless-(Status of Women)-Part 2 (The Setting, legally oppressed, State Sponsored Schemes and Causes and Comparisons)”, 34 (2007)
[59]SiddharamSatlingappaMehtre v. State of Maharashtra,Cri. Appeal No. 2217 of 2010 (arising out of SLP (Crl.) No. 7615 of 2009)
[60]Aaqil Ahmad & others v. State of Uttar Pradesh, Application u/s 482 No.- 11716 of 2017
[61]AIR 2000 SC 1650
[62]W.P. (Civil) No. 118 of 2016
[63]Jerry Nelson, We Can’t Eat Money, HUFFPOST (18th Feb., 2012, 6:01pm) http://www.huffingtonpost.com/jerry-nelson/we-cant-eat-money_b_1156252.html
[64]Virendra Gaur & Others v. State of Haryana, (1995) 2 S.C.C. 577
[65](2000) 6 S.C.C. 213
[66]LalitMiglani v. State of Uttrakhand& Others, W.P. (PIL) No. 140 of 2015
[67]LalitMiglani v. State of Uttrakhand& Others, W.P. (PIL) No. 140 of 2015, decided on 30th March, 2017
[68]Indian Council for Enviro-Legal Action v. Union of India & Others, J.T. (1996) 2 196
[69](1996) 5 S.C.C. 647
[70]Rural Litigation & Entitlement Kendra & Others v. State of Uttar Pradesh, AIR 1987 SC 359
[71]Education Plus, Famous quotes on education, The Hindu (24th March, 2013, 11:52 AM), http://www.thehindu.com/features/education/famous-quotes-on-education/article4543948.ece
[72]Kerry A. Dolan, Forbes 2017 Billionaires List: Meet the Richest people on the Planet, Forbes (20th March, 2017, 7:45 AM), https://www.forbes.com/sites/kerryadolan/2017/03/20/forbes-2017-billionaires-list-meet-the-richest-people-on-the-planet/#1e4fc32262ff
[73]Law Commission of India, Need for Ameliorating the lot of the Have- nots: Supreme Court’s Decisions (Report No. 223), 12, Law Commission of India, Government of India (2009) http://lawcommissionofindia.nic.in/reports/report223.pdf
[74]Society for Unaided Private Schools of Rajasthan v. Union of India & Others, W.P. (C) No. 95 of 2010
[75]Mohini Jain v State of Karnataka , 1992 S.C.R.(3) 658
[76]Urnni Krishnan v State of Karnataka 1993 S.C.R.(1) 594
[77] (2002) 8 S.C.C. 481
[78] W.P. (C) No. 95 of 2010
[79]Pramati Educational & Cultural Trust & Others v Union of India & Others (2014) 8 S.C.C. 1
[80]P. Rathnam v Union of India, 1994 S.C.C.(3) 394
[81]MarutiShripatiDubal v State of Maharashtra, 1987 (1) Bom.C.R. 499
[82]Court on its own motion v Yogesh Sharma, Cri. Revision No. 230 of 1985
[83]Smt. Gian Kaur v State of Punjab, 1996 S.C.C. (2) 648
[84]Aruna Ramchandra Shanbaug v Union of India, (2011) 5 S.C.C. 454
[85]Common Cause ( A Registered Society) v Union of India, W.P. (C) No. 215 of 2005
[86]RustomCavasjee Cooper v Union of India, (1970) S.C.R (3) 530
