75 Important Judgments Of The Supreme Court: Part II | Celebrating 75 Years of India's Supreme Court

In Part II of the 75 landmark judgments of the Supreme Court, we look at another set of 25 judgments relating to Article 21 including unenumerated rights.

Due process and interrelatedness of rights

Due process guarantees not included in Article 21

In 1950, in A.K. Gopalan v The State of Madras, the Supreme Court upheld the constitutional validity of the Prevention Detention Act, 1950, except for Section 14 which prescribed restrictions as to the disclosure of grounds of detention before the court. The judgment became a cause celebre for holding that Article 21's 'procedure established by law' does not include 'due process' guarantees and that Article 19 had no application in the case of prevention detention.

The court had held that 'law' in the expression procedure established by law meant the State-made law and did not embody the principles of natural justice in an abstract sense.

Fundamental rights as complete code theory

In this case, an argument was put forth by the then Attorney General of India that for the matters of prevention detention, Article 22 was a complete code. Therefore, it should not fall within the purview of Article 21. Although the court rejected the 'complete code' theory and held that Article 22 is supplemented by Article 21, in R.C. Cooper v. UOI (1970), the court erroneously assumed otherwise. It therefore went on to hold that the fundamental right guarantees delimit the protection of those rights in their allotted fields: they do not -attempt to enunciate distinct rights.

It held: “In our judgment, the assumption in A. K. Gopalan's case(1) that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals, in general, will be Ignored cannot be accepted as correct.”

Right to move the court for enforcement of fundamental rights during emergency

During this, the emergency was proclaimed in 1975 and through a Presidential Order, the right to move the court to challenge the enforcement of fundamental rights was suspended. In A.D.M. Jabalpur v. Shivkant Shukla (1976), some petitioners moved a writ of habeas corpus challenging detention orders under the Maintenance of Internal Security Act, 1971. However, through the majority, the Supreme Court held that Article 21 was the 'sole repository' of the right to life and personal liberty and any writ of habeas corpus for enforcement of Article 21 was barred by the Presidential Order.

However, the lone dissenter, Justice H.R. Khanna held that Article 21 was not the 'sole repository' of the right to life and personal liberty. It held: “Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution. It does not, however, follow from the above that if Article 21 had not been drafted and inserted in Part III, in that event it would have been permissible for the State to deprive a person of his life or liberty without the authority of law.”

This minority opinion went on to become the majority opinion of Justice K.S. Puttaswamy v. UOI (2017)recognising the right to privacy as a fundamental right. In the 44th Amendment, 1978 it was stated that Articles 20 and 21 cannot be suspended during Emergency.

Procedure established by law under Article 21 cannot be arbitrary, Golden triangle

In Maneka Gandhi, v., Union, of India (1978), the judgment of A.K. Gopalan was revisited in terms of the due process requirement under Article 21. While deciding the issue of whether the right to go abroad was a part of the expression “personal liberty”, the court answering in the affirmative also held that the 'procedure' under Article 21 has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. It held that Article 21 is of the widest amplitude.

This judgment is also significant for the interrelation between Articles 14, 19 and 21, which weave a "pattern of guarantees on the basic structure of human rights" and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. The Court observed: "The law must, therefore, now be taken to be well settled that article 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by article 21, such law, in so far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article."

Through this, the interrelation between Articles 14, 19 and 21 was referred to as the 'Golden Triangle'.

Right to privacy

In M.P. Sharma and Others v. Satish Chandra & Ors (1954), and Kharak Singh v. State of Uttar Pradesh (1964) were some of the earlier judgments where the right to privacy as a part of Article 21 was either asserted or referred to. In all judgments, the court held that the right to privacy is not recognised as a fundamental right. However, in Govind v. State of Madhya Pradesh (1975), the court explicitly recognised the right to privacy for the first time.

In Kharak Singh's judgment, particularly the minority judgment by Justice Subba Rao held that the word 'liberty' under Article 21 was comprehensive enough to include privacy. This minority opinion also became the majority opinion in Puttaswamy's judgment.

Interestingly, while the court in Puttaswamy judgment explored many contours of privacy such as dignity, autonomy, informational and data privacy, the right to be left alone etc, and how privacy as right shields many aspects of personal life including marriage, sexuality, procreation etc from the State's arbitrary interference, the Supreme Court in R. Rajagopal v. State of Tamil Nadu (1994) had held: “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent— whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.”

R. Rajagopal was an interesting case because it also dealt with how the right to freedom of speech protected under Article 19(1)(a) is to be balanced with the right to privacy. In this case, the petitioners wanted to publish the autobiography of a prisoner convicted of committing murders. The publication was prevented by the State officials as it would reveal their connections with the prisoner. The court held that the publishers had the freedom to publish his autobiography even without his consent to the extent that the content was a part of the public domain. If the publishers go beyond that, they would be violating his right to privacy.

The Puttaswamy judgment also held that the right to privacy is not absolute. Any restriction on the right must meet three-fold requirements (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

Dignity, choice, livelihood and autonomy protected under Article 21

In Bandhua Mukti Morcha v. UOI (1983), the Supreme Court through Justice P.N Bhagwati admitted a letter by an organisation dedicated to the cause of bonded labourers. The letter raised concerns that a large number of labourers from different parts of the country were working in some stone quarries in Faridabad under “inhumane and intolerable conditions” and that the provisions of social welfare laws including the Minimum Wages Act, were not implemented properly for their benefit.

The court appointed a commission to inquire into allegations and found that most stone quarries engaged in forced labour and there was no facility for even providing pure water. The court extensively interpreting the right to dignity said: “This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of 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 and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State government has the right to take any action which will deprive a person of the enjoyment of these essentials”.

The court also interpreted the jurisdiction under Article 32 and said that the constitutional drafters deliberately did not specify any particular form of proceedings for the enforcement of fundamental rights under Article 32 except that the provision uses 'appropriate' proceedings. This is because any rigid formula of proceedings for the enforcement of a fundamental right would be self-defeating as it would place enforcement of fundamental rights beyond the reach of the common man.

Therefore, the court said that any member of a public acting bona fide can move the court for enforcement of rights on behalf of a person, or class of persons who on account of poverty, disability or socially or economically disadvantaged position cannot approve the court for relief. Such members of the public can even approach the court by writing a letter.

In Shakti Vahini v. UOI (2018), the court the concept of choice and individual dignity is within the framework of liberty. The court was hearing a petition filed by NGO Shakti Vahini seeking directions for the Government to take preventive steps to combat honour killings. The court while laying down preventive measures reiterated that the right to choice of an individual is an inextricable part of dignity and when two adults marry out of their violation, they choose their path and consummate their relationship, which is constitutionally protected.

During this time, the court in Shafin Jahan v. Asokan K.M. and Others held that the right to marry a person of choice is protected under Articles 19 and 21. In this case, the Kerala High Court had entertained a habeas corpus petition to bring back 24 years Shafin to the custody of the after. She had married Ashokan. The Supreme Court overruled the high court's order and held that it committed an error.

In 2018, the Supreme Court announced another judgment decriminalising adultery. In Joseph Shine v. UOI, the Supreme Court held that Section 497 of the Indian Penal Code violated women's right to dignity of which autonomy is an intrinsic part. It punished a man having intercourse with another's wife. However, exempted from punishment if it was performed with the consent or connivance of the husband of the other woman.

The court held: “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It's time to say that the husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”.

In the same year, the Supreme Court in Shayara Bano v UOI, held 'talaq-e-biddat' (triple talaq) as unconstitutional. One of the grounds considered by the court was that the practice of triple talaq was derogatory to the dignity of women apart from the fact that it denied equal rights to Muslim women.

Right to primary education

In Unni Krishnan, J.P. And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors (1993), the Supreme Court interpreted Article 21 to include the right to free education up to the age of 14 years as a fundamental right. The Court reasoned that Article 21 is inclusive of human dignity and everything that goes along with it including the right to receive primary education. The 86th Constitutional Amendment Act, 2002 added Article 21(A), which states that the state must provide free and compulsory education to children between the ages of six and fourteen.

Doctrine of estoppel in fundamental rights enforcement

In Olga Tellis & Ors vs Bombay Municipal Corporation & Ors (1985), the Supreme Court recognised the right to life including the right to livelihood. The Court was hearing a petition filed under Article 32, whereby slum dwellers challenged the eviction and demolition of pavement dwellings and slum hutments by the State Authority. It was argued that the decision to demolish and evict them would amount to depriving them of their right to livelihood, which is comprehended in the right guaranteed by Article 21.

The Bombay Municipal Corporation contended that pavement dwellers had conceded in the High Court that they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the High Court that they would not obstruct the demolition of the huts, they are estopped from contending in this Court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by Article 21 of the Constitution.

Rejecting any claim of estoppel against fundamental rights, the Court said that the principle can have no application to representations made regarding the assertion or enforcement of fundamental rights.

Right to die, passive euthnasia, and death penalty

Right to die

Another significant judgment was passed by the Supreme Court in 2018 in Common Cause v UOI, wherein the court allowed passive euthanasia for terminally ill patients and thereby recognised the right to die with dignity as a fundamental right. By recognising the right to die as a part of Article 21, the court overruled its own in Gian Kaur v. The State of Punjab (1996). The Court issued guidelines for the Living Will/Advance Medical Directive, which were later modified in 2023.

Constitutionality of death penalty

In Jagmohan Singh v. The State of UP (1973), the Supreme Court upheld the constitutionality of the death penalty by stating that it is not deprived of the procedure established by law just because the judge has the discretion to decide on the punishment. In 1979, in Rajendra Prasad v. State of Uttar Pradesh, the Supreme Court held that the requirement of 'special reasons' under CrPC to impose the death penalty must show what exceptional circumstance led to awarding death penalty. It also held that the discretionary powers to impose the death penalty must that it is a reasonable restriction under Article 19. However, in Bachan Singh v. State of Punjab (1980), the court rejected that Article 19 freedoms were violated due to the imposition of death penalty.

It held that the right to life is not a part of Article 19 and therefore, cannot be invoked to determine the constitutionality of the death penalty. As for Article 21, it held that the State had the right to deprive a person of his right to life through the procedure established by law which is laid down in law.

In Mithu v. State of Punjab (1983), the Constitution Bench of this Court struck down Section 303 of the Indian Penal Code, by which a mandatory sentence of death was imposed on life convicts who commit murder in jail.

Custodial torture, rights of prisoners, detenues and undertrials

In Sunil Batra v. Delhi Administration (1979), the Supreme Court delivered a landmark judgment against custodial torture and wrote down guidelines that must be followed in such cases. It stated that the fundamental rights of prisoners do not feel when a person enters prison, it may suffer shrinkage necessitated incarceration. It held that the rights of the prisoners are protected through the writ jurisdiction of the courts under Articles 226 and 32 and the right to life includes a right to live with human dignity which is not just mere sustenance.

In Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (1980), the court hearing the plea of undertrial prisoners held that the procedure to deprive life or liberty under Article must be reasonable, fair and just' and an 'inalienable' element of this is the free legal aid to poor and needy. It held that every accused person has a constitutional right to engage a lawyer and secure legal services and the state is under a mandate to provide him legal aid under Article 39A.

Thereafter, in Francis Coralie Mullin v. The Administrator (1981), the court made a distinction between prevention detention and punitive detention. The court held that prevention detention is a drastic power but the Indian Constitution recognises it to the extent that the safeguards should be followed not only as laid down in Article 22 but also in Article 21, which as per Menaka Gandhi's judgment should be 'reasonable, fair and just'. It also held that any form of torture or cruel, inhuman, or degrading treatment would be offensive to human dignity and constitute inroad into the right to life.

In Nilabati Bahera Alias Lalit Behera v. State of Orissa (1993), the court reiterated that prisoners, undertrials and detenus have an indefeasible right under Article 21 and restrictions imposed by law can be permitted. In this case, a mother addressed a letter to the court allegedly custodial death of his son whose body was found on a railway track after police took him in connection with an investigation related to the offence of theft. The court ordered an inquiry and it was established that the son died due to custodial torture.

Treating the letter as a writ petition, the court held that under Article 32 or 226, it would mould a relief by granting compensation in such proceedings because under the public law, penalising the wrongdoer and fixing liability for the public wrongdoer the state which failed to protect fundamental rights is duly recognised remedy.

Based on these judgments, in the Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. UOI (1994), the court held that undertrial prisoners including foreigners cannot be indefinitely detained pending trial and shall be entitled to bail because Article 21 includes the right to speedy trial. It issued directives in connection with undertrials under the Narcotic Drugs and Psychotropic Substances Act, 1985 such as those in jail for an offence with 5 years of imprisonment, they shall be released on bail if they have spent half of the sentence.

Prolonged incarceration, bail and right to speedy trial

Years later, the Supreme Court Legal Aid Committee Representing Undertrial Prisoners became for the Supreme Court in Union of India v. K.A. Najeeb (2021) to hold that the stringent Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 does not oust the ability of constitutional courts to grant bail on account of prolonged incarceration and violation of fundamental rights to speedy trial. Post Kartar Singh, TADA was repealed and replaced by the Prevention of Terrorism Act, which was also repealed. Only UAPA survived.

In Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh (2024), the Court held that it is wrong to say that bail in special laws such as UAPA cannot be granted and reiterated that 'bail is the rule, jail an exception' in special laws which have stringent twin-bail conditions.

Extrajudicial killings, illegal arrests and safeguards under Article 22

Further, the court widened the scope of Article 21 to also include cases of extrajudicial killings, i.e. encounter killings. In Joginder Kumar v. State of U.P (1994), a petition was detained for five days by the police and his whereas were unknown. His brother filed a habeas corpus petition apprehending that the brother was shot dead in a fake encounter.

The court issued brief guidelines on arrest such as a person arrested and held in custody must be able to inform his friend, relative or anyone of his arrest and the police officer is obligated to inform the arrested person of his right. An entry shall be made in the police diary as to who was informed of the arrest. And the magistrate, before whom the arrested person is produced, to satisfy that these requirements are complied with. These protections follow from Articles 21 and 22(1).

The guidelines on arrest and detention were further expanded D.K. Basu v. State of West Bengal (1996). This pertained to the extrajudicial torture in police lock-ups and custody. In this case, the executive chairman of Legal Aid Services, West Bengal, addressed a letter to the then Chief Justice of India highlighting various news items regarding deaths due to extrajudicial torture. The letter stressed the issue needs to be examined and the court needs to formulate guidelines for awarding compensation to the victim or the families.

The letter along with the news items was treated as a writ petition under 'public interest litigation' the genesis of which goes to another significant judgment of the Supreme Court in Mumbai Kamgar Sabha, Bombay v. M/S Abdulbhai Faizullabhai & Ors (1976). In Mumbai Kamgar Sabhi, the court through Justice Krishna Iyer laid down the foundation for PILs under Article 226 or 32 of the Constitution while dealing with a case where customary bonuses were denied to the workmen on grounds that it did not fall within the four corners of Payment of Bonus Act, 1965.

The locus standi of the petition was challenged on the grounds that it was an industrial dispute. Rejecting this, the court said: “Even Art. 226, viewed in wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents, has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law.”

In D.K. Basu, the Supreme Court held that custodial torture is a naked violation of human dignity. It is a calculated assault on human dignity. The expression right to life and personal liberty has been held to include the right to live with human dignity and includes within itself a guarantee against torture and assault by the State and its functionaries.

The court's guidelines included that the arrestee may be permitted to meet his lawyer during interrogation. He should be subjected to a medical examination by a trained doctor every 48 days during detention. The time, place of arrest and venue of custody of the arrestee must be notified by the police to the next friend or relative etc.

Based on this jurisprudence, in 2014, the Supreme Court in Arnesh Kumar v. State of Bihar further elaborated the guidelines to prevent unnecessary arrest and casual and mechanical detention. These guidelines were issued in the context of Section 498A of the IPC.

While all these guidelines were issued in a respective context, the Supreme Court's decision in Lalita Kumari v. Government of UP(2013) lays down general guidelines on mandatory registration of First Information Report if the commission of offence discloses cognisable offence. In such a case, no preliminary inquiry is to be conducted.

Further, the Court has recently elaborated the mandate of Articles 21 and 22 by stating that the grounds of arrest must be furnished in writing to the accused person. In Pankaj Bansal v. UOI (2023), the Court had held that merely reading out the grounds of arrest will not fulfil the mandate of Article 22(1) of the Constitution and Section 19(1) of the Prevention of Money Laundering Act which talks about the power to arrest. This reasoning was extended to UAPA cases through the judgment in Prabir Purkayastha v. State (2024) where the arrest and remand of NewsClick founder and Editor-in-Chief Prabir Purkayastha was declared illegal.

Part 1 can be read here.

Part 3 can be read here.

List of judgments mentioned in this part :

1. Justice K.S. Puttaswamy v. UOI (2017)

2. Maneka Gandhi, v., Union, of India (1978)

3. Bandhua Mukti Morcha v. UOI (1983)

4. Shakti Vahini v. UOI (2018)

5. Shafin Jahan v. Asokan K.M. and Others (2018)

6. Joseph Shine v. UOI (2018)

7. Unni Krishnan, J.P. And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors (1993)

8. Olga Tellis & Ors vs Bombay Municipal Corporation & Ors (1985)

9. Common Cause v UOI

10. Bachan Singh v. State of Punjab (1980)

11. Mithu v. State of Punjab (1983)

12. Sunil Batra v. Delhi Administration (1979)

13. Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (1980)

14. Francis Coralie Mullin v. The Administrator (1981)

15. Nilabati Bahera Alias Lalit Behera v. State of Orissa (1993)

16. Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. UOI (1994)

17. Union of India v. K.A. Najeeb (2021)

18. Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh (2024)

19. Joginder Kumar v. State of U.P (1994)

20. D.K. Basu v. State of West Bengal (1996)

21. Mumbai Kamgar Sabha, Bombay v. M/S Abdulbhai Faizullabhai & Ors (1976).

22. Arnesh Kumar v. State of Bihar

23. Lalita Kumari v. Government of UP(2013)

24. Pankaj Bansal v. UOI (2023)

25. Prabir Purkayastha v. State (2024)