13 Right to Life under the Constitution of India (Part 2)

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the constitutionally recognized components of an individual’s right to life;
• To help the students understand the manner in which the scope of the right to life has been expanded by judicial interpretation.

2. Introduction

Much of the development of the right to life under the Constitution of India is down to the creative brilliance of the Supreme Court of India. Through a series of activist decisions, the Supreme Court has expanded the right to life to include the right to die (albeit in a limited sphere), the right to health and social security. This module will give the students an overview of how and why the Supreme Court has given the right to life new meaning.

3. Interpreting Article 21

Article 21 of the Constitution reads:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

3.1 Procedure Established by Law

The expression “procedure established by law” was borrowed from Article 31 of the Japanese Constitution. The expression came to be interpreted by the Supreme Court in A.K. Gopalan v. State of Madras1. The petitioner, a Communist leader, detained under the Preventive Detention Act, 1950, contended that the term “law” in Article 21 should be understood as signifying the universal principles of natural justice. He, therefore, argued that a law which did not incorporate the principles of natural justice could not be valid under Article 21. It was further argued that the expression “procedure established by law” meant the same thing as the American phrase “due process of law.”

The Court rejected the above contention and referred to the discussions in the Constituent Assembly and said that the framers deliberately adopted the expression “procedure established by law” as it was far more specific than the American phrase “due process of law.” The majority of the Supreme Court thus held that the expression meant procedure prescribed by the law of the State and not natural justice. The effect of the decision was that Article 21 only protected persons from arbitrary Executive action, but did not apply to laws passed by the Legislature as long as the due procedure was followed.

In Maneka Gandhi v. Union of India, the Supreme Court overruled A.K. Gopalan and held that in order to comply with the mandate of Article 21, the mere prescription of some kind of procedure was not enough; the procedure must be just, fair, reasonable and not arbitrary, fanciful or oppressive. Again in Olga Tellis v. Bombay Municipal Corporation, the Supreme Court stated:

“Procedure which is unjust or unfair in the circumstances of a case, attacks the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and, consequently, the action taken under it.”

The issue was settled once and for all in Selvi v. State of Karnataka, where the Supreme Court held that “substantive due process” is now a “guarantee” under the Constitution.

3.2 Personal Liberty

The expression “personal liberty‟ used in Article 21 has also been given a liberal interpretation. It does not mean merely the liberty of the body, .i.e., freedom from physical restraints or freedom from confinement within bounds of a prison. In other words, it means not only freedom from arrest or detention, from false imprisonment or wrongful confinement, but it means much more than that. The term personal liberty is not used in a narrow sense but has been used in Article 21 as compendious term to include within it all those variety of rights of a person which go to make up the personal liberty of a man.

In Kharak Singh v. State of Uttar Pradesh the Supreme Court held as follows:

“ ‘Personal Liberty’ is used in Article 21 as a compendious term to include within itself all the varieties of rights which go to make up the ‘personal liberty’ of a man other than those dealt with in several Clauses under Article 19(1). While Article 19(1) deals with particular species or attributes of that freedom (of speech and expression), ‘personal liberty’ in Article 21 takes in and comprises the residue.”

Thus, the Court held that unauthorised intrusion into a person’s home and the disturbance caused to him thereby violated his right to “personal liberty” enshrined in Article 21.

It also worth noticing that in the case of Satwant Singh v. Assistant Passport Officer, New Delhi the Supreme Court has included the right to travel abroad as being implicit in the expression “personal liberty” within the meaning of Article 21.

4. Components of the Right to Life under Article 21 of the Constitution of India

4.1 Right to Die

Section 309 of the Indian Penal Code, 1860, punishes a person for attempting to commit suicide. The constitutionality of Section 309 was considered for the first time before the Bombay High Court in State of Maharashtra v. Maruti Sripati Dubal. In this case the Bombay High Court held that the right to life guaranteed under Article 21 includes the right to die, and struck down Section 309 of the IPC which as unconstitutional.

In P. Rathinam v. Union of India, a Division Bench of the Supreme Court, supporting the decision of the High Court of Bombay held that under Article 21, the right to life also included the right to die and struck down Section 309 of Indian Penal Court as unconstitutional.

However, a five-judge Constitution Bench of the Supreme Court in Gian Kaur v. State of Punjab, overruled the decision of the Division Bench in the aforementioned case and put an end to the controversy by ruling that Section 309 of the Indian Penal Code was neither violative of Article 21 nor Article 14. The court held that the “right to life” under Article 21 did not include “the right to die.”

That being said, in December 2014, twenty-two Indian States decided to repeal Section 309 of the Indian Penal Code. Thus, the issue of whether the right to die is implicit in the right to life under Article 21 needs to be re-examined.

4.2 Euthanasia

Passive euthanasia is legal in India. On 7 March 2011, the Supreme Court of India legalised passive euthanasia by means of withdrawal of life support to patients in a permanent vegetative state. The decision was made as part of the verdict in a case involving Aruna Shanbaug, who had been in a vegetative state for 37 years at King Edward Memorial Hospital.

The Court rejected active euthanasia by means of lethal injection. In the absence of a law regulating euthanasia in India, the court stated that its decision becomes the law of the land until the Indian parliament enacts a suitable law. Active euthanasia, including the administration of lethal compounds for the purpose of ending life, is still illegal in India, and in most countries.

While rejecting Pinki Virani’s plea for Aruna Shanbaug’s euthanasia, the court laid out guidelines for passive euthanasia. According to these guidelines, passive euthanasia involves the withdrawing of treatment or food that would allow the patient to live. As India had no law about euthanasia, the Supreme Court’s guidelines are law until and unless Parliament passes legislation.

4.3 Death Penalty and Delayed Execution

The Supreme Court addressed the question of constitutionality of the death penalty for the first time in Jagmohan Singh v State of Uttar Pradesh. The Court concluded that death penalty was constitutionally permissible provided it was imposed after a fair trial pursuant to a procedure established by law. In rendering its decision the Court also emphasised that the discretionary judgments of the trial Courts were subject to appellate review.

In Bachan Singh v. State of Punjab, the Supreme Court explained that Article 21 recognised the right of the State to deprive a person of his life in accordance with just, fair and reasonable procedure established by valid law. It was further held that death penalty awarded under Section 302 of IPC did not violate any basic features of the Constitution. In Allauddin Mian v. State of Bihar, the Supreme Court referred to their earlier pronouncements and held that death sentence should be reserved for the rarest cases which are of exceptional nature.

In T.V. Vatheeswaram v. State of Tamil Nadu, the Supreme Court held that delay in execution of death sentence exceeding 2 years would be sufficient ground to invoke protection under Article 21 and the death sentence would be commuted to life imprisonment. The cause of the delay is immaterial; the accused himself may be the cause of the delay.

In the landmark case of Shatrughan Chauhan v. Union of India a five-judge bench of the Supreme Court held that inordinate delay in disposing of the mercy petition filed by a prisoner on death row was a ground for commuting a death sentence to one of life in prison.

In Deena v. Union of India16, the constitutional validity of the death sentence by hanging was challenged as being “barbarous, inhuman, and degrading” and therefore violative of Article 21.

Referring to the Report of the UK Royal Commission, 1949; the opinion of the Director General of Health Services of India, the 35th Report of the Law Commission; and the opinion of the Prison Advisers and Forensic Medicine Experts, the Court held that death by hanging was the best and least painful method of carrying out the death penalty, and thus not violative of Article 21.

4.4 Right to Social Security and Protection of Family

Right to life guaranteed under Article 21 includes within its ambit “the right to social security and protection of the family.” Socio-economic rights have been said to be basic aspirations for meaningful right to life and that the right to social security and protection of family are integral part of the right to life. The Supreme Court in LIC of India v. Consumer Education and Research Centre held that the right to life and livelihood included the “right to life insurance policies of LIC of India” and that it must be within the paying capacity and means of the insured.

4.5 Right to Health and Medical Aid and Duty to Preserve Life

The right to life guaranteed under Article 21 includes within its ambit the right to health and medical care. In Parmananda Katara v. Union of India, it was held that it is the professional obligation of all doctors (government or private) to extent medical aid to the injured immediately to preserve life without legal formalities to be complied with the police. Article 21 casts the obligation on the state to preserve life. It is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. No law or state action can intervene to delay and discharge this paramount obligation of the members of the medical profession.

More recently, in the case of Poonam Sharma v. Union of India, the Court held that it is the duty of the doctor to aid the injured and not to delay the same as it is of utmost importance. Any delay, here wait for police before treatment, is taken to be violation of one’s fundamental right under Article 21.

4.6 Right to Compensation for Violation of Article 21

In Rudal Shah v. State of Bihar, the Supreme Court has held that the Court has the power to award monetary compensation in appropriate cases where there has been a violation of the fundamental right under Article 21. The Supreme Court directed the Bihar Government to pay compensation of Rupees 30,000 to Rudal Shah who had to remain in jail for a further 14 years after being acquitted, thanks to the negligence of Government officials.

5. Conclusion

Thus, the Supreme Court has utilized the right to life under Article 21 as a shield to guarantee rights to convicts on death row. The Court has also legalized passive euthanasia and has upheld the right of the citizens to health and medical aid. To ensure the enforcement of this right, the Court has also devised the remedy of granting affected persons compensation from the State exchequer. Irrespective of whether one agrees or not with the activist approach of the Supreme Court, one cannot help but admire their judicial craftsmanship.

Reference

• V. M. Bachal, Judicial Interpretation of Article 21 of the Constitution of India, The Indian Journal of Political Science, Vol. 25, No. 3/4, pp. 231-240
• R. Pathak, Public Interest Litigation in India, Democracy, Human Rights and the Rule of Law, Essays in Honour of Nani Palkhivala (2000)
• Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible? The American Journal of Comparative Law (1989)
• Vuayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000), Am. U. Int’l L. Rev. 14 (1998): 413.
• Upendra Baxi, Taking suffering seriously: Social action litigation in the Supreme Court of India. Third World Legal Stud. (1985): 107