This article has won the first prize in H.M. Seervai Gold Medal Essay Competition, conducted by NLSIU, Bangalore in the year 2017
The Constitution of India does not define ‘life’ nor does it state what ingredients constitute the right to life. Some of the early judicial pronouncements on constitutional question of ‘life’ have heavily relied upon the definition given by Munn,which described ‘life as something more than an animal existence.’ Such an attempt has yielded a lot of confusion as this very definition, itself, is fraught with two shortcomings. Firstly, it fails to provide a substantive definition of life, merely examining it on a comparative scale and putting it on a higher pedestal than animal existence; and secondly, it does not augur well with forming a definitive body of law. The Supreme Court, instead of developing a definition of life, has continued to build its judgments on the narrow premises provided in Munn.Such a practice has resulted in a grand narrative built around the term ‘life’ with an ever-expansive meaning but failing to provide a normative coherence sans a definitive framework.
Though, ‘life’ remains undefined, it has, long back, been a settled principle of law that ‘Right to life is the most fundamental of all rights and the very presence of the phrase in Art. 21 means the article deals with substantive rights’. A mere reading of Art. 21 in conjunction with other fundamental rights shows that right to life encompasses almost all the fundamental rights provided in the constitution. However, it has to be borne in mind that Art. 21 does not confer a right to life or personal liberty; it recognizes the fact that those rights exist and afford protection against the deprivation of those rights to the extent there provided. In a clearer exposition, H.M. Seervai says, “Neither the constitution nor any law confers the right to life. That right arises from the existence of a living human body.”
A question may arise, if right to life included all such rights given under Art. 19, what was the purpose of explicitly having this under Art. 21? Probably, the founding fathers intended to have a fine distinction between legal rights available to all citizens and the natural rights that every person enjoys by virtue of his human existence and defining their respective scope. By making the basic human rights a substantive constitutional law, the makers of the constitution have not limited the interpretation of the constitution to a mere legalistic paradigm and instead have provided a lot of latitude to understand it as a living socio-political document. True to the character of a living document, the meaning of life has expanded progressively through the lenses of various eminent jurists, over the years. It is pertinent to mention that, the expansion of the meaning of ‘life’ has not treaded a linear path. With progressive judicial pronouncements, different strands of jurisprudence have emerged giving a more holistic shape to post independence constitutional law. The objective of the essay is to analyze the various strands of jurisprudence that have emerged from interpretation of Art. 21.
The first part of the essay discusses how the meaning of ‘life’ has changed from a narrow interpretation in pre-emergency era to a broader construal after the emergency was lifted. The second part describes that an expansive meaning attributed to the term ‘life’ over the years have resulted in the emergence of various jurisprudential trends. The final part provides a critical analysis of the approach under taken by court to interpret life in an ever-expansive manner.
MEANING OF ‘LIFE’: A JOURNEY FROM PRE-EMERGENCY TO POST EMERGENCY ERA
a. THE MEANING OF LIFE IN PRE-EMERGENCY PERIOD: A NARROW CONSTRUCTION
Right to life and personal liberty under Art. 21 has been subjected to judicial test many times during the early phases of the republic. The earliest yet, the most important case law that deliberated into the constitutional position of right to life was Gopalan. In the instant case, the majority bench established two legal positions with unflinching clarity. Firstly, as discussed earlier, right to life is a substantive law. And secondly, the constitutional rights under Art. 19 and 21 don’t exist in isolation even as H.M. Seervai says, they ‘operate on two different planes’. Though rights under Art. 19 are available only to the citizens, as a civilized country valuing the dignity of individual, the founding fathers decided that when it came to depriving a person of his right to life or putting his person under restrain by imprisonment, justice required that the safeguards provided by Art. 21 should be available to citizen and non-citizen alike before anyone is held guilty of committing a crime and before he is sentenced to death or imprisonment.In the said case Mukherjee J had held, the right to safety of one’s life and limbs and to enjoyment of personal liberty, in the sense of freedom from physical restraint and coercion of any sort, are the inherent birthrights of a man—the right to life. Though in Gopalanthe bench did not expressly deal with the definition of life, it had clearly posited right to life as more fundamental than any other fundamental rights.
Definition of life was more explicitly analyzed in Kharak Singhon a question of validity of an Uttar Pradesh police regulation, which provided for surveillance by way of domiciliary visits and secret picketing. In this case, the majority bench adopted the definition of life as given in Munnstare decisis and held the prohibition against deprivation of life was extended to all those limits and faculties by which the life was enjoyed. The court also held that right to life was the right of a person to be free from restrictions and encroachments upon his person.
Gopalanand Kharak Singhconsidered life in a restrictive manner by emphasizing the fact that right to life can be abrogated by a legislative enactment, even though both the cases considered right to life is paramount. Such a narrow interpretation was topical as per the then socio-political situation. The nation had just come out of a foreign rule and was striving hard to maintain a balance between the newfound concepts of liberalism and the requirements of nation building. As is the case of any new democracy, the legislature was seen as supreme and paternalistic. The dominant perception was – the law makers knew what was best for people and hence there could not be any conflict between the jus naturale and the legislative enactments. However, probably the country had not foreseen what an authoritarian regime during internal emergency could do to natural justice? The court which has decided, right to life being the most fundamental of rights in Gopalan, a few years later, did not hesitate to declare that even amala fide order cannot be set aside.However, as soon as the emergency was lifted, the Court was very forth coming in rejecting its emergency period stand and tended to interpret in a more liberal manner.
b. POST-EMERGENCY JUDICIAL PRONOUNCEMENTS: WIDENING THE MEANING OF ‘LIFE’
The most important post emergency judgment was Maneka Gandhiin which the court unequivocally declared that right to live was not a mere physical right of being alive, but included within its ambit the right to live with human dignity. The Supreme Court, copiously quoting the Bank Nationalizationcase, has held that Art. 21 needs to be read with Art. 19 (It is pertinent to mention that the question of right to life was neither the ratio nor treated as an obiterin the case; it was a mere passing reference). Such clear exposition shows that the rights included under Art. 19 of the constitution are subsumed under right to life. Going a step further, the court, probably because of the harrowing experiences of emergency and the wrongdoings of Habeas Corpuscase,
interpreted the procedure established by law as another form of due process. And by doing so, the Apex Court has made its stand clear that, a mere legislative enactment cannot abridge the right to life, unless it passes the test of natural justice. In Maneka Gandhithe court for the first time introduced the concept of human dignity as a part of right to life, which later on became the raison d’etrefor many strands of jurisprudence having connotations with Art. 21. The saga of liberal interpretation of the term ‘life’ continued further in Francis Coraileand Shantisar Builders.In Francis Coraile, the Supreme Court widely quoting again from Munnheld that right to life included right to live with human dignity which was possible if the bare necessities of life such as adequate nutrition, clothing and shelter was met. It also included facilities for reading and writing and expressing oneself in diverse forms, freely moving about, mixing and mingling with fellow human beings and necessarily included the right to carry on functions and activities as constitute the bare minimum expression of human self. Similarly, in Shantisar Buildersthe Supreme Court held that right to life would include right to food, clothing, decent accommodation, decent environment and reasonable accommodation to live in. Right to life with human dignity has been dealt in many later cases also, enriching the concept further. For example, in Consumer Education and Research Centrethe court held that ‘the right to life with human dignity encompasses within its fold, some of the finer facets of civilization which make life worth living, and its expanded connotations would mean the tradition and cultural heritage of the persons concerned.’ Similarly, in Ammini E.J., the court held that ‘right to life includes the right to carry on such functions and activities adequate to give expression to “human self”.
After Maneka Gandhi, the next major reference to the right to life, in the post emergency period, was found in the Sunil Batra, in which it was held that the treatment of human being, which offended human dignity, imposed avoidable torture and reduced man to the level of the beast would certainly be arbitrary and was violative of right to life. Sunil Batrais also important because the court has virtually ruled that even if the right to life is restricted under the procedure established by law (in this case various sections of the jail manual) the basic human dignity of a person cannot be abridged at any event. By conferring rights on jail inmates, the court almost decided that right to life exists on two levels; the various faculties through which life is enjoyed and the inherent dignity of a human life. The procedure established by law can abridge the first part reasonably but the fundamental human dignity that separates human existence from an animal cannot be abrogated in normal circumstances even under duly enacted laws. If it is said the majority opinion, in this case, still left some scopes for the enacted legislation to fiddle with some part of human dignity (like putting prisoners on fetters) under extreme circumstances, the dissenting judge Iyer J. was very forth coming in saying ‘compromising human dignity under any circumstances is violative of right to life given under Art. 21’. Despite being a minority judgment, it is a milestone in the legal history of the country, as it has attributed a wider meaning to right to life in later cases.
As is evident, in Maneka Gandhiand afterwards, the interpretation of the term ‘life’ witnessed a paradigm shift. Till then the court restricted itself to interpret the term at an ideational level, focusing more on the interrelation and interplay of right under Art. 19 and Art. 21. A considerable self-restraint amongst the Judges to enumerate what actually constituted human dignity was more than evident in all pre-emergency cases. However, post emergency, for the first time in Maneka Gandhi, and later in subsequent cases, the Supreme Court tried to interpret life and human dignity in a more elaborate and liberal manner. What warranted such paradigm shift of judicial interpretation post –emergency?
The imposition of internal emergency had been as big a political event as a social phenomenon. As a nascent liberal democracy faced the jolt of an authoritarian state, all machinery of the governance system remained perplexed; even the Apex Court could not remain immune from its effect. The liberal constitutional jurisprudence, (as seen in Golaknathand Keshvanand Bharti) hit its nadir in the Habeas Corpus case. The
Supreme Court had virtually, surrendered the right to natural justice to executive whims. In the opinion of H.M. Seervai, “Habeas Corpuscase is the most glaring instance in which the Supreme Court has suffered most severely from self-inflicted wounds.”The Court instead of playing the role of judicial self-abnegation could have ensured the rule of law, but that was not the order of the day. In a fascist frenzy, the executive juggernaut had marauded all perceivable human rights and the unfortunately the Apex Court remained a mute spectator. The cold-blooded murder of jus was not acceptable to the jurists’ post emergency and in a copious zeal to set things right, the Apex Court donned an avatar of a civil libertarian activist and made wide and liberal pronouncements on constitutional questions of life and liberty. The clear anti-authoritarian role of the Highest Court helped revive the confidence of people in judicial process and endeavored to show that it was still the protector of western system of law and justice.Post emergency, Maneka Gandhiwas the first case, which involved a constitutional debate, and in the opinion of celebrated lexicographer Prof. Baxi, “Maneka Gandhi vibrates with humanism and single minded judicial dedication to the cause of human rights in India.”As the tyranny of internal emergency evaporated and the cry for a spirit of new libertarianism reverberated in the conscience of the citizenry, each organ of the state including judiciary got activated and enthused to undo the excesses committed during the dark period of internal emergency. The Apex Court was the chief patron of such an exercise and the interpretation of term ‘life’ under Art. 21 was the mise en scenefor it. And as the meaning of ‘life’ broadened, various strands of jurisprudence have emerged over the years, which will be discussed in the next sections.
VARIOUS INTERPRETATION OF LIFE IN POST EMERGENCY PERIOD
A. RIGHT TO LIVE WITH HUMAN DIGNITY AND THE RISE OF VARIOUS STRANDS OF POSTMODERN JURISPRUDENCE
The interpretation of right to life as life with human dignity has wide spread connotations. It has expanded the meaning of life manifold and as a result has given rise to a whole set of jurisprudences on different aspects of law.
a. EXPANSIVE MEANING OF LIFE AND JURISPRUDENCE ON WOMAN RIGHTS
The Supreme Court’s interpretations on human dignity have developed a body of jurisprudence on woman rights through a series of judicial pronouncements over the years. By far, in the most holistic judgment has been observed in VikasYadavthe court has declared that freedom, independence, constitutional identity, individual choice and thought of a woman cannot be allowed to be curtailed by application of physical force or mental cruelty in the name of man’s self-assumed honor. Though the moot argument was about honor killing, the Court was very forthcoming in declaring that woman has a distinct constitutional identity, and taking away a woman’s life by way of a perverse method, namely honor killing, cannot be merely equated to a bodily offence under the penal code. It is a violation of constitutional right to life. While deliberating the case, the Court has assumed the role of a social reformer with great élan, and instead of deciding it as a homicide casesimplicitertried to see the offence through the prism of Art. 21 of the constitution.
If the concept of human dignity lacks a common definition, in many earlier judgments the court has expanded the jurisprudence on woman rights by enumerating acts which offend the dignity of woman and hence violative of the right to life. Some of them are, assault on woman, eve teasing, acid attacketc. While trying to protect the dignity of woman, the Supreme Court has displayed a great concern to strike at the root of many social evils that plague the woman folk in day-to-day life. For example, in cases of acid attack, the court has declared it to be a violation of right to life of the victim. The court has also mandated the state to take full responsibility for the treatment and rehabilitation of the victims of acid attack in addition to the monetary compensation.
Through its various judgments, the Supreme Court has tried to create a paradigm of victimology and restitutive model for victim rehabilitation, which came to be well developed among the victims of flesh trade. It is a well-known fact that the law enforcement agencies tend to further victimize the victims in cases involving immoral traffic prevention acts and as a result there is always high degree of recidivism in such cases. Such an attitude on the part of the law enforcement agencies is due to lack of sensitivity, a distorted value system and overall social apathy associated with it. However, the Apex Court has taken responsibility to arrest such an attitude by developing a construct of victimology with reference to the safe guard of right to life.
For rendering relief to the victims of flesh trade, the court in Gaurav Jainhas held that fallen/trapped victims of flesh trade should not be subjected to cruel, inhuman and degrading treatment as it is an obnoxious affront to Art. 21. With this judgment, the court has exhorted the thinkers and academicians to explore more into the victimology and puts a liability on the part of the executive to take necessary steps for the rehabilitation of such victims. The court also held in Buddhadev Karmakarthat the sex workers are also entitled to have their dignity respected.
In furthering its unshakable stand as a crusader of woman rights, the Apex Court has delivered milestone judgments in debates relating to rape. For the Court, rape is no longer an offence against a human body; it is an affront to human dignity, a direct assault on right to life. The court has held that rape is a crime against the society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights and it violates the right to life. It is tantamount to a serious blow on the supreme honor of a woman and offends both her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. Such a stand has been held in Bodhisattwa Gautamcase and Deepak Gulaticase. Going still a step further in Shyam Narayanthe court has held rape is a monstrous burial of woman’s dignity in darkness. It is a crime against the whole body of a woman and the soul of society.
In interpreting right to life of woman in an expansive manner, the Supreme Court has provided for elaborate guideline to prevent sexual harassment in work place. In its landmark judgment in Vishaka, the court has held that physical contact and advances, a demand or request for sexual favor, sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature amounts to sexual harassment. The Court’s insistence on a safe workplace for woman is based on the reasoning that sexual harassment at work place is a violation of Art. 14, 15, 19 (1)(g), and 21 of the constitution. The same concept has been reiterated in Medha Kotwal Lele, Apparel Export Promotion CouncilandHussainara Khatoon.The Supreme Court, in its recent decisions, is regularly enriching the jurisprudence of woman rights by examining woman related issues in the prism of right to life under Art. 21.
b. EXPANSIVE MEANING OF LIFE AND LIVELIHOOD AND PRIVACY AS RIGHT TO LIFE
Writing in the late 1980, Prof. Baxi had opined that the apex court had been observing a populist policy in order to rehabilitate its credibility. Such a trend can be observed in scores of post emergency judicial pronouncements and each such pronouncement has helped broadening the meaning of the term ‘life’. For example, in Bandhua Mukti Morcha,Bhagwati J. had opined that right to life must include protection of health and strength of workers, men and women, and of tender age children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work, maternity relief. The scope of including just and human work condition under right to life was further expanded in People Union for Democratic Rightsin which Bhagawati J. had held that non-payment of minimum wages to workers was a violation of right to life. Similarly, in Chandrabhanthe Apex Court held that payment of only a nominal subsistence allowance of Re. 1 per month to a suspended Government Servant upon his conviction during the pendency of his appeal as unconstitutional on the ground that it was violative of right to life under Art. 21 of the Constitution. The above-mentioned three cases ushered a novel way of interpretation into right to life. They tend to overturn the judicial reasoning in Re Sant Ram, wherein the Supreme Court held right to livelihood could not be considered to be a part of right to life. It is pertinent to mention that the question of livelihood was not the ratio decidendiof the above three cases. However, they opened the vistas for a broader interpretation of the term ‘life’.
Right to livelihood became a topic of legal debate in Board of Trustees of the port of Bombayand the Supreme Court with no unclear terms held that right to life included right to livelihood also. However, it is the Pavement Dwellers casein which a constitutional bench very aptly ruled that right to livelihood was borne out of right to life, as no person could live without the means of livelihood and depriving a person from his right to livelihood would deprive him of his life. Similarly, in Delhi Transport Corporation, the court has held that the right to livelihood is a part of right to life and hence it cannot hang on to the fancies of the authority. The court also held that “income is the foundation of many fundamental rights and when work is the sole source of income, the right to work becomes as much fundamental.” How the Supreme Court direction on right to livelihood, stand in the broader socio-political context of the country?
The decade of 80s and the early 90s were a strange time. After the major shock of emergency, the society was witnessing a hitherto unknown phenomenon; the advent of globalization. Till the mid-eighties, the Government was of the opinion that the state was more powerful than the market and only a strictly regulated market would go well with the Indian democratic set up. However, in view of the changing global political and market scenario, there was considerable pressure from all quarters to open up the economy but the Government was non-resilient. It was obvious that liberalization of economy was an idea whose time had come but in the absence of government efforts forth coming, the lead was to be taken by some agency. And very aptly, the Apex Court had taken the lead to that direction in interpretation of constitutional questions about right to life. The decisions to include right to livelihood as a part and parcel of right to life, the right to shelter as a part of right to life etc. are revolutionary in nature because they were aimed at upholding a second-generation human rights i.e. social and economic rights. Those decisions had deep economic as well as moral implications. To put in simple terms, without a strong economy the state could not guarantee right to livelihood and right to shelter to the vast majority. It will not be an overstatement to say that the Supreme Court, in its interpretation of constitution, has hinted at the emergent need for economic reforms, though indirectly enough.
Apart from right to livelihood, another post-emergency expansion of right to life includes a right to privacy. The issue of privacy was first dealt in Kharak Singhand later in Gobindin a very limited manner. Though in both the cases, the court has not explicitly mentioned the origin of the right to privacy, it has indirectly hinted “right to privacy can be traced from right to life.” It is pertinent to mention that both the cases were decided in the pre-emergency period and the society has not experienced the deadly tentacles of state machinery looming over it, violating as personal a thing as privacy. A greater exposition of the right to privacy and its relation to ‘life’ was witnessed in the late nineties. In People’s Union for Civil Liberties, the court has held that illegitimate intrusion into privacy of a person is not permissible as right to privacy is implicit in the right to life and liberty guaranteed under the constitution. The same position was reiterated in a host of other cases such as R. Rajgopal, Sharda, Ram Jethmalani, Hinsa Virodhak Sanghetc.
By including right to privacy under the ambit of right to life, the Apex Court has made a sweeping change in the way the law enforcement machinery operates. The court has held that, extracting testimonial responses from narco-analysis tests, polygraph tests and Brain Electrical Activation Profiling tests are impermissible because the tests violate the ‘mental privacy’ of the person. Similarly, the court has put a lot of restraints on DNA test and legal interception of telephone communications. However, the court has held throughout, that right to privacy is not absolute can be subjected to restrictions for the purpose of public safety.
c. EXPANSIVE MEANING OF LIFE AND ENVIRONMENTAL JURISPRUDENCE
The era of liberalization-privatization-globalization has changed Indian society in more ways than anybody could have imagined at the beginning. It was not a mere economic reform, rather a far-reaching restructuring of the governance goals. No more the state commanded everything about the citizen’s need or aspiration—a complete reversal of the emergency paranoia. And with such paradigm shift in governance, came the changes with which the social fabric in the coming millennia to be viewed, especially with respect to individual rights and liberty. If the Supreme Court, in plethora of judgments in the 1980s, expounded life means a dignified human existence; in the 90s it went a step ahead in liberally interpreting right to life to have included a right to live in a clean, non-polluted environment. In Subhas Kumarthe Apex Court has held that the right of enjoyment of pollution free water and air is included under right to life. Similarly, in a number of judgments notably M.C. Mehta cases, Vellore Citizen Forumand Milkman Colony Vikas Samiti,the Supreme Court has clearly held that right to life inter alia includes a right to a clean environment which is essential for a healthy body and healthy mind. The Apex Court has explained the inter-relation between ecological issues and fundamental rights in AP Pollution Control Boardas “Environmental concerns arising in this court under Art. 32 or under Art. 136 or under Art. 226 in the High Court are, in our view, of equal importance as human concerns. In fact, both are traced to Art. 21, which deals with the fundamental right to life and liberty. While environmental aspects concern ‘life’, human rights aspects concern liberty.” The common link between all these cases mentioned supra is that the economic interest of a party violated the right of the general public to have a pollution free environment. And the Supreme Court very clearly held that a right to clean environment (as a public good) couldn’t be compromised for individual economic gain.
However, among the series of cases on environment, two cases stand out as to wider interpretation of the term life. The first one is Murli S. Deora,in which the court has held that right to life under Art. 21 is violated when a nonsmoker is subjected to passive smoking in public place. For the first time, the Supreme Court has traversed a new territory of legislative adjudication in banning public smoking as it violates the right to life of non-smokers. The second case is Forum, Prevention of Environment & Sound Pollution, in which the court has extensively ruled on the meaning of life under Art. 21. The court has held,that no one can claim a right to create noise even in his own premises that would travel beyond his precincts and cause nuisance to others, thereby violating the right of others to a peaceful, comfortable and pollution-free life guaranteed by Art. 21. In declaring so, after Maneka Gandhi, the court for the first time in Prevention of Environment Sound Pollutioncase has clearly held that life under Art. 21 cannot be violated to give effect to any right under Art. 19 (1) (a).
A clean environment is a public good and everybody has the equal right to enjoy it, however the same becomes the biggest casualty during rapid economic development. For the executive, it is a queer trade-off between rapid economic development and preservation of environment and it requires an agency independent of the government to maintain a fine balance between the two. The Supreme Court of India has donned the role with great aplomb to safeguard environment by including it as a part and parcel of right to life.
The Apex Court has not limited its role to formulate a body of legal literature on environmental rights. Rather, it has taken many executive steps for protection of the environment for upholding the right to life. For example, in M.C. Mehtathe court has taken an executive decision by banning the plying of diesel run public transports in Delhi and directed the entire fleet of the public transport buses to be run on CNG. Similarly, in Free Legal Aid Cellthe court has taken an executive decision in prohibiting bursting of crackers between 10 PM and 6 AM. In Buffalo Traders Welfare Associationthe court has given elaborate direction regarding maintenance of slaughterhouses. Similar is a case in example is the earlier mentioned Murli S Deora,wherein the court contended that by subjecting a nonsmoker to passive smoking, he is deprived of his right to life without due process and hence the court banned smoking in public places. By including right to clean environment as a part of right to life, the court has developed, both a substantive concept of law as well as the operative part of it through its wide-ranging executive directions.
However, the greatest contribution of the Supreme Court on environmental jurisprudence is the recognition of a need for sustainable development as a part of right to life guaranteed under Art. 21 of the constitution. In N.D. Jayal and anr.also known as the “Tehri dam case”, the Supreme Court has recognized the right to development as a fundamental right even as it reiterated the importance of right to environment as a justiciable social and economic right enshrined within the ambit of right to life under Art. 21. The court noted that the concept of “Sustainable Development” was an integral part of ‘life’ under Art. 21.
d. EXPANSIVE MEANING OF ‘LIFE’ AND BODY OF LAW ON HEALTH AND EMERGENCY SERVICES
If right to a healthy and clean environment appears to be a wider interpretation of right to life, going into enormous details, the top court has gone a step ahead to interpret Art. 21 in more microscopic manner to include right to health and medical care as a part of it. In Consumer Education and Research Centrethe court has held that health and strength of worker is an important facet of right to life and denial thereof denudes the workmen the finest facets of life violating right under Art 21. Similarly, in the State of Punjab,Paschim Banga Khet Mazdoor Samityas well as in Pravat Kumar Mukherjeethe Apex court has held right to emergency medical care to accident victims and patients under critical medical condition is a part of right to life. The Supreme Court has also imposed an obligation on the state that it cannot take the excuse of financial constraints to avoid its constitutional obligation of providing adequate emergency medical care. In Paramanandand in a host of similar case, the Apex Court has put an obligation upon the state to preserve the life of every person-by offering immediate medical aid to every patient regardless of the question whether he is innocent or guilty. Similarly, in Novartis AG, the court held that right to life also includes the right of all persons to have essential drugs at affordable prices.
Another instance of expansive interpretation of Art. 21 is witnessed K Baluin which the court has ordered the closure of the liquor shops to protect the right to life of common people from the drunken drivers. This judgment is more microscopic in nature as it provided operative instructions to ensure the rights under Art. 21.
e. EXPANSIVE MEANING OFTHE TERM‘LIFE’ AND BODY OF LAW ON RIGHT TO DIE
From the discussion above, it is obvious that the Supreme Court has attributed myriad meanings to ‘life’ under Art. 21 and each time the Court has relied on positive interpretation. It vindicates the proposition given by H.M. Seervai that though the wordings of Art. 21 are negative in nature, they provide for a positive right. It has been reiterated that right to live with human dignity as a fundamental right under Art. 21. But what happens if the life becomes irrevocably bereft of human dignity? Such situation has come to the altar of the highest court in several cases, where the moot question was whether right to life also includes a right to take one’s own life. The question came for consideration for the first time in Maruti Sripati Dubal. The Bombay High Court has ruled that right to life also includes right to die and eventually struck down section 309 of IPC as unconstitutional. The reasoning behind such a pronouncement was that, a man could not have full control over his life unless he enjoyed the right to extinguish it. The similar question came before a division bench of the Supreme Court in P. Rathinam,in which, after copiously citing the Maruti Sripati Dubal, it was held that ‘right to life also embodied in it a right not to live a forced life, to his detriment disadvantage or disliking.’ The court argued that the word life in Art. 21 means right to live with human dignity and the same does not merely connote continued drudgery; hence right to life also means right not to live a forced life. There is a certain fundamental incoherency in the above two judgments. Right to life is a positive right enabling a person to live his life at its fullest with human dignity. Art. 21 is essentially an enabling, empowering right and not a delimiting one by character. But by conferring a right to take away one’s own life, the court provided negative connotations to Art. 21. Such inconsistency was finally cleared by a full bench of the Apex Court in Gian Kaur, wherein the judgment of P. Rathinamcame to review. The court very aptly pronounced that the right to life was a positive right providing for protection of life and liberty and could not be construed to have the right to extinguish one’s own life. The court has referred the right to life as a natural right and held that a fundamental right cannot exist in violation of a natural right and in the event of inconsistency; the natural right supersedes the fundamental right. Such a stand by the Apex Court means the judiciary believes that fundamental rights are nothing but the manifestations of the natural rights. Related to the topic discussed above is the debate about euthanasia and its constitutionality. In Gian Kaur, the Supreme Court held that as right to life also includes a right to live with dignity; a dying man has a right to die with dignity. Right to die with dignity cannot mean to hasten an unnatural death curtailing the natural span of life and becomes operative only when the process of natural death starts. The court has categorically ruled that, legislative enactments need to be made to give force to euthanasia. However, the question of euthanasia again became a legal debate in Aruna Shanbaug. The court has ruled that passive euthanasia by means of withdrawal of life support to the patients in permanent vegetative states is not a violation of Art. 21. The Court has provided an elaborate set of guidelines to administer euthanasia. The Aruna Shanbaugand Gian Kaurjudgments are not consistent with each other whereas, in case of Gian Kaur, the court has held that euthanasia cannot be administered without an enabling legislation, i.e. life cannot be taken away without a proper law, in case of Aruna Shanbuag, the court itself has provided for guidelines to administer passive euthanasia. To remove this anomaly, the matter has been referred to a constitutional bench, whose opinion is still awaited.
If the Apex Court is undecided on the right to end life, even in case of permanent vegetative state, there is no such confusion in case of the dignity of a dead body. The Court has held that right to dignity and fair treatment is available to a dead body.The Court has applied the same principle in case of the homeless deceased.Similarly, in a recent judgment, the court has held that even in death a person has dignity and dead body deserves to be treated with dignity..
As per the discussion supra, the Apex Court has given an expansive meaning to the term ‘life’ to include a wide variety of rights under its ambit. Such wide interpretation has resulted in elevating the status of Art. 21 above all other fundamental rights. However, one cannot forget the fact that the right under Art. 21 is granted to both citizen as well as the non-citizen. So, in their zeal to uphold the natural rights of the human beings, is there a chance that our courts may put the national security of the country in jeopardy? The question is relevant because the Indian state has been in a perpetual state of war, be it cross border terrorism or the homegrown insurgency. Secondly, with its pro-libertarian enthusiasm has the Apex Court invaded into the exclusive territory of the executive? And thirdly, is the raison-d’etrefor the expanding the meaning of life consistent from a legalistic point of view?
The world post 9/11 has changed a lot. The paradigm of liberty and human rights, even in the most liberal countries, has been pervaded by an emergent requirement of machinery strengthening the national security apparatus. The U.S. National Security Strategy, post 9/11, speaks, “defending our Nation against its enemies is the first and fundamental commitment of the Federal Government”—which virtually subordinates human rights to the national security requirements. In the words of a former Congress member of the U.S. “there will always be a tension between our foreign policy as classically defined in terms of the United States’ economic, political, and strategic interests and our human rights interests.”Indian situation is not much different. In Indian context, the first bruise with the requirements of human rights and national security came in the nascent phase of the republic in the Gopalan. There is not an iota of doubt that the meaning of life was interpreted in a narrow manner in the case by the Apex Court. One reason for such narrow construal may be that in the early years of Republic and nation building, when the country was strife with cessationist tendencies, the court thought it was paramount to give a necessary breather to the nation to consolidate herself. Though jurisprudence of Gopalanwas decried in later judgments, it is an irony that no legal research has been made into the face-off between natural right and national security.If Gopalanwas intended to nourish a nascent republic, the situation that India faces today bears uncanny similarity to the 1950s.
Today, India is in a state of war. The Kashmiri unrest is becoming violent day by day. The Maoist insurgency has bled the nation for far too long. Ethnic conflicts and riots have time and again showed their fangs throughout the country. After the Mumbai attack, even the hinterland is not immune to terrorist attacks sponsored by a not so friendly neighbor. In such a grave situation, maintenance of law and order requires stringent measures and in doing so the constitutional rights under Art. 19 to 21 have to bear the brunt of collateral damage. For example, in the aftermath of the Parliament attack in 2001, the Union Government promulgated the Prevention of Terrorism Ordinance and later Prevention of Terrorism Act (POTA). The constitutionality of the POTA act was contested in the PUCL, but the Court has dismissed the appeal stating that the possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutional. The constitutionality of other such special acts like the Armed Force Special Power Act (AFSPA) and the Terrorist and Disruptive activity (Prevention) Act (TADA) were put to question in the Supreme Court and each time the court in its wisdom has refrained from analyzing them through the prism of fundamental rights. Though, almost always the courts have given paramount importance to the arguments in favor of national security, a lack of uniform jurisprudence on security strategy is just too evident. If the unbridled expansion of the term ‘life’ goes on without a definitive yardstick, a possibility that Art. 21 will directly challenge most of the anti-terror laws of the country, cannot be entirely ruled out.
The Supreme Court was faced with similar dilemma (between natural rights vs. national security legislation) in Gopalanas well as in the anti-terror law cases such as PUCL, Naga People’s Movement for Human Rightsand Kartar Singh. Whereas the Apex Court has decided to take the bull by horn in Gopalan,in other instances it has only chosen to examine the executive’s ability to enact the anti-terror laws, instead of examining them from perspective of constitutional rights. This kind of self-restraint by the Apex Court has not helped developing national security jurisprudence and the executive is perpetually fixated with a situation that a certain anti-terror act may one day be rendered unconstitutional and the national security compromised. It is due to the Hon’ble Apex Court’s insistence of upholding the right to life of common man that Environmental jurisprudence has developed in a grand manner. The need of the hour is such insistence on the part of the revered judiciary to provide a jurisprudential paradigm for a national security doctrine of the country.
Another commonly leveled criticism against the judiciary is that it is constantly invading the executive and legislative sphere. In the 70s and 80s, the Supreme Court, at its liberal best, has limited the interpretation of ‘life’ to a theoretical level. It has tried to bring in wider meanings to the term ‘life’ without delving to the microscopic policy formulation or policy overseeing. For example, in entailing a concept of life with dignity, the court has refrained itself from microscopic enumeration of the elements that constitute dignity. In the later judgments of the era also, the Supreme Court has only provided broader guidelines of the elements of right to life. To cite an example, though the Court has declared that right to a clean environment was a part and parcel of right to life, it did not charter the territory of the legislative to make laws for ensuring such a clean environment. In another case, the court has declared that right to livelihood as a part of right to life but did not instruct the executive to make specific provisions for livelihood.
However, of late, the Court has tended to become a micro manger in many instances. The Murli S. Deorais a case in example. Right to clean environment is an undeniable part of the right to life. Once, the judgment has been pronounced, the obligation lies with the legislative to make laws to ensure a cleaner environment for the public. But in the instance, case the court has banned smoking in all public places citing it violative of right to life. Though there is no doubt about the magnificent intention behind such a ruling, the very fact that the Supreme Court must pronounce an executive direction is a disturbing development. Similar is the Supreme Court judgment on banning the liquor shops and all banners/posters/hoardings/billboards referring to liquor shops on national and state highways. Sell of liquor and other excise substance is a major source of revenue for the state governments. Hence, the state government normally adopts a carefully chalked out strategy of excise licensing. The Honorable Court with all the legal resources at its disposal cannot be expected to understand the nuances of taxation and federal economy or federal polity. The banning of sale of liquor has wide spread economic ramification for a state and seeing it as an instrumentality of upholding the right to life under Art. 21 is a myopic way of looking at a larger issue.
Sometimes, in its enthusiasm to chalk out guidelines for executive action, the Supreme Court has contradicted its own earlier judgment on the matter without overriding the same. For example, the judgment delivered in Aruna Shaunbaghcompletely contradicted the judgment delivered in Giani Kaur.The contradiction arose because the Supreme Court tried to enter into the domain of the executive by providing elaborate rules for administering passive euthanasia, instead of exhorting the legislative to make a legislative enactment to that effect, (as it had done in Giani Kaur).Similarly, inChandra Rajkumari,the court held that beauty contest repugnant to dignity or decency is in violation of Art. 21. But has the court given a thought about the participant’s willingness to participate in those contests?
The third criticism is about the raison d’etreof the expansive interpretation of the term life under Art. 21 of the constitution. A well-known legal maxim goes on as “Reason is the soul of law, and when the reason of any particular law ceases, so does the law itself.”The same principle if extrapolated to judgments, as per H.M. Seervai, “Reason is the soul of a judgment, and if that reason ceases (because untenable) the judgment ceases to apply.”The foundation for the expansive meaning of ‘life’ under Art. 21 of the constitution started with the reinterpretation of the premises created by Gopalanin subsequent cases such asBank nationalizationand Maneka Gandhi.
The interpretation of Gopalanin later cases, especially in Bank Nationalization,was based on a fundamental error in understanding the judgment. The facts in Bank Nationalizationwere no way related to right to life, still the judgment of Gopalanwas analyzed threadbare and systematically overturned. However, the very premise, on which this purported overturning was made, was fraught with certain fundamental errors. The first error was the presumption that in Gopalanthe majority held that Art. 22 was a separate code. The second fundamental error was the presumption that Gopalanheld that each of the fundamental rights under Art. 19, 21, 22 and 31 were exclusive of each other. The above two assumptions were clearly erroneous because, in Gopalanthe majority judgment did not hold Art. 22 was a complete code and neither was it ever held that Art. 19 and Art. 21 were mutually exclusive of each other nor was Art. 31 was discussed at any point of time. Still the court overturned the ruling in Gopalan.Another glaring mistake was that, which was later pointed out by Sarkaria J. inBacchan Singh,the reference to Gopalanin Bank Nationalizationcould not even be considered as obiter in nature. It was at best a casual observation. As the presumptions were faulty at the outset, the judgment of the constitutional bench was not in congruence within the precincts of legality. If Bank Nationalizationset the wrong ball rolling, in Maneka Gandhithe court committed the same errors and premised the meaning of right to life on a faulty assumption.
The assumption in Maneka Gandhiwas more or less similar to the ones made in Bank Nationalizationand the judgment extensively relied upon the rulings in the latter case to overturn the findings of Gopalanabout the interpretation of right to life and expanded the narrower interpretation allegedly provided therein. If the premise of the ruling in Bank Nationalizationis faulty because of erroneous presumptions, the premise of the ruling in Manekaalso becomes faulty according to the principle of ‘Cessante Rationale Legis Cessat Ipsa Lex’.
The gist of the above discussion is that the very concept (living with human dignity) which acted as a vehicle for expansive meaning of life is premised on the faulty findings of Bank Nationalization.As is evident, in a marauding hurry to overturn the impeccable judgment of Gopalan, the Supreme Court has posited itself and the legal jurisprudence of the country in a queer situation in which major constitutional questions have been debated over a wrong presumption. As the raison d’etrewas wrong, theoretically the judgment cannot stand the test of time. And the plethora of judgments that attributed different meaning to life under Art. 21 under the clarion call of “life with dignity” appears to be fruitless, once premises of Maneka Gandhiare shattered. So, it means, a big pyramid of academic research on right to life is posited over a faulty and weak foundation set in Bank Nationalizationand Maneka Gandhi.
Was the interpretation in Gopalanreally narrow? Gopalannever intended to give a restricted meaning to the substance of ‘life’ as the majority judgment never meant the exclusivity of the right to life from other fundamental rights. It only stated, right to life can be abrogated through legislative enactments; but then was it not the intent of the constituent assembly?Maneka Gandhishattered the judicial premises of not only Gopalanbut that of the thinking of the makers of the constitution by imposing substance of due process on the procedure established by law.
The criticisms notwithstanding, the expansive interpretation of ‘life’ has been an outstanding phenomenon in the developing a liberal jurisprudence in the country. The learned judges have always been unanimous in their decisions to expand the horizons of the term ‘life’ for the benefit of the people. In this regard, the observation of Bhagawati J. in Maneka Gandhiis worth mentioning, as it not only gives an insight to his judicial mind, but acts a principle that other judges have been following ever since. Bhagawati J. has said, “The attempt of the court should be to expand the reach and ambit of fundamental rights rather than attenuate their meaning and content by a process of judicial construction.” And in expanding the reach and ambit of right to life, erroneously or otherwise, the beneficiaries have always been the people of this country.
Munn v Illinois 94 U.S. 113 (USSC)
H.M. Seervai, “Constitutional Law of India”, Silver Jubilee Edition
A. K. Gopalan v The State of Madras  27 AIR (SC)
H.M. Seervai, Constitutional law of India (Volume I, Fourth Edition, Silver Jubilee Edition, Universal Law Publication Co. Pvt. Ltd., P. 11.32-33 Page 989)
Gopalan (n 5)
Kharak Singh v State of UP 1 SCR 332 (SC)
Munn (n 1)
Gopalan (n 5)
Kharak Singh (n 9)
Gopalan (n 5)
A.D.M. Jabalpur v Shivakant Shukla 1207 AIR (SC)
Maneka Gandhi v Union of India 597 AIR (SC)
R C Cooper v Union of India 564 AIR (SC)
A.D.M. Jabalpur (n 14)
Maneka Gandhi (n 15)
Francis Coralie Mullin v The Administrator, Union Territory of Delhi 746 AIR (SC)
Shantisar Builders v Narayanan Khimalal Totame 630 AIR (SC)
Francis Coralie (n 19)
Munn (n 1)
Shantisar (n 20)
Consumer Education and Research Centre v Union ofIndia  922 AIR (SC)
Ammini E.J. v Union of India 252 KER (KHC)
Maneka Gandhi (n 15)
Sunil Batra v Delhi Administration 1579 AIR (SC)
Maneka Gandhi (n 15)
Golaknath v State of Punjab 762 SCR (2) (SC)
Keshvananda Bharti v State of Kerala 1461 AIR (SC)
H.M. Seervai, The Emergency, Future Safeguards and the Habeas Corpus Case: A Criticism 1978, pi 59
Rajeev Dhavan “On the Future of Western Law and Justice in India: Reflections on the Predicament of the Post Emergency Supreme Court,” J,B .C . I. , Vol.8, No.l, January-March 1981, pp. 71-73
Maneka Gandhi ( n 15)
Upendra Baxi, The Indian Supreme Court and Politics, 1980, p. 151.
Vikas Yadav v State Of U.P And Ors  4614AIR (SC)
Gajresh Venketray Anrekar v State ofKarnatak 329 AIR (SC)
Inspector General of Police v S. Samuthiram  14 AIR (SC)
Ravada Sashikala v State of Andhra Pradesh, S.L.P. (Criminal) Nos. 9389-90 of 2016, in The Supreme Court of India
Gaurav Jain v Union of India  3021 AIR (SC)
Buddhadev Karmakar v State of W.B. 305 CHN (4) (CHC)
Bodhisattwa Gautam v Subhira Chakrobarthy 922 AIR (SC)
Deepak Gulati v State of Haryana 2071 AIR (SC)
Shyam Narain v State Of Delhion 15 May, 2013, In the Supreme Court of India, unreported
Vishaka v State of Rajasthan 3011 AIR (SC)
Medha Kotwal Lele v Union of India  93 AIR (SC)
Apparel Export Promotion Council v A.K. Chopra 327 DLT 66 (DHC)
Hussainara Khatoon v State of Bihar 1369 AIR (SC)
Bandhua Mukti Morcha v Union of India 2218 AIR (SC)
People Union for Democratic Rights v Union ofIndia 1473 AIR (SC)
State of Maharastra v Chandrabhan Tale 803 AIR (SC)
 Re Sant Ram  932 AIR (SC)
Board of Trustees of the port of Bombay v Dillip Kumar Raghvendranath Nandkarni 109 AIR (SC
Olga Tellis & Ors v Bombay MunicipalCouncil 180 AIR (SC)
Delhi Transport Corporation v DTC mazdoor Congress 101 AIR (SC)
Kharak Singh (n 9)
Gobind v State of MP 1378 AIR (SC)
People’s Union for Civil Liberties v Union of India 1272 AIR (SC)
R. Rajgopal v State of T. N. 264 AIR (SC)
Sharda vDharmpal  3450 AIR (SC)
Ram Jethmalani v Union of India 1 SCC 8 (SC)
Hinsa Virodhak Sangh v Mirzapur Moti Kureshi Jamaat  1892 AIR (SC)
Subhas Kumar v State of Bihar 598 SCC 1 (SC)
M.C. Mehta v Union of India  819 SCR 1 (SC)
Vellore Citizen Forum v Union of India 647 SCC 5 (SC)
Milkman Colony Vikas Samiti v State of Rajasthan 413 SCC 2 (SC)
AP Pollution Control Board v M.V. Nayadu 718 SCC 2 (SC)
Murli S. Deora v Union of India 40 AIR (SC)
Prevention of Environment & Sound Pollution v Union of India, Forum 348 AIR (SC)
Maneka Gandhi (n 15)
Prevention of Environment & Sound Pollution, Forum(n 71)
M.C. Mehta (n 66) also refer Singhania, K., Girish, G.P. and Vincent, E.N. (2016) Impact of Odd-Even Rationing of Vehicular Movement in Delhi on Air Pollution Levels. Low Carbon Economy, 7, 151-160. http://dx.doi.org/10.4236/lce.2016.74014
Free Legal Aid Cell v Government of NCT Delhi 455 AIR (DHC)
Buffalo Traders Welfare Association v Maneka Gandhi 448 SCC Suppl 3 (SC)
Murli S Deora(n 70)
N.D. Jayal v Union of India 463 SCALE 1 (SC)
Consumer Education and Research Centrev Union of India 699 SCC 15 (SC)
State of Punjab v M.S. Chawla 1225 AIR (SC)
Paschim Banga Khet Mazdoor Samity v Union of India 2426 AIR (SC)
Pravat Kumar Mukherjee v Ruby General Hospital 35 CPJ (NC)
Paramanand v. Union of India 2039 AIR (SC)
 Novartis AGv Union of India  6 SCC 1 (SC)
K Balu v State of Tamil Nadu 1487 SCC Online (SC)
Maruti Sripati Dubalv State of Maharastra 499 BomCR 1 (BHC)
P.Rathinam v Union of India 394 SCC (SC)
Maruti (n 86)
Gian Kaur v State of Punjab 946 AIR (SC)
P. Rathinam (n 87)
Gian Kaur (n 89)
Aruna Ramachandra Shanbaug v Union of India,  454 SCC 4 (SC)
Gian Kaur (n89)
Aruna (n 92)
Paramanand Katara v union of India 248 SCC 3 (SC)
Ashray Adhikar Abhiyan v Union of India  554AIR (SC)
Vikas (n 38)
Human Rights and U.S. Foreign Policy: Hearing before the Sub comm. on Int’l Orgs. House Comm. on Foreign Affairs, 96th Cong. 254 (1980) (statement of Bruce P.Cameron, Foreign Policy Legislative Representative, Americans for Democratic Action
Gopalan (n 5)
People’s union for civil liberties v Union of India  580 SCC 9 (SC)
Naga People’s Movement for Human Rights v Union of India 431 AIR (SC)
 Kartar Singh v State of Punjab 569 SCC 3 (SC)
Gopalan (n 5)
Murli S. Deora (n 70)
Gian Kaur(n 89)
Chandra Rajkumari v Police Commissioner, Hyderabad  302 AIR (APHC)
“Cessante Rationale Legis Cessat Ipsa Lex” (Co. Littleton 70b) Broom’s Legal Maxims, 10thed. P. 97
H.M. Seervai, P. 11.61, pg. 1007 Constitutional Law of India, Fourth Edition, Silver Jubilee Edition, Volume 2, Universal Law Publishing
Gopalan (n 5)
Cooper (n 16)
Maneka Gandhi(n 15)
Gopalan (n 5)
Cooper (n 16)
Bachan Singh v State of Punjab 684 SCC 2 (SC)
Cooper (n 16)
Maneka Gandhi (n 15)
Cooper (n 16)
Gopalan (n 5)
Cooper (n 16)
Cooper (n 16)
Gopalan (n 5)
Maneka Gandhi (n 15)
Cooper (n 16)
Maneka Gandhi(n 15)
Gopalan (n 5)
Maneka Gandhi(n 15)
Gopalan (n 5)
Maneka Gandhi(n 15)