An edited excerpt from the Judgment (Headings have been added)

Fundamental rights represent the basic values cherished by the people of the country

Article 21 occurs in Part III of the Constitution which confers certain fundamental rights. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in ‘The Indian Constitution-Cornerstone of a Nation’, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”.

They were indelibly written in the sub-conscious memory of the race which fought for well-nigh thirty years for securing freedom from British rule and they found expression in the form of fundamental rights when the Constitution was enacted. These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.

They 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. It is apparent from the enunciation of these rights that the, respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from ‘alienating’ the individual from his creative impulses.

Article 21 and the meaning of Personal liberty

Article 21 provides:

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

It is obvious that Article 21, though couched in negative language, confers the fundamental right to life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law.

What is Personal Liberty?

The first question that arises for consideration on the language of Article 21 is:

what is the meaning and content of the words ‘personal liberty’ as used in this article?

Interpretation of the word ‘Personal Liberty’ in A.K. Gopalan Case

This question incidentally came up for discussion in some of the judgments in A. K. Gopalan v. State of Madras(1950) and the observations made by Patanjali Sastri, J., Mukherjee, J., and S. R. Das, J., seemed to place a narrow interpretation on the words ‘personal liberty’ so as to confine the protection of Article 21 to freedom of the person against unlawful detention. But there was no definite pronouncement made on this point since the question before the Court was not so much the interpretation of the words ‘personal liberty’ as the inter-relation between Article 19 and 21.

Personal Liberty Meaning in Kharak Singh Case

It was in Kharak Singh v. State of U.P. & Ors.(1962) that the question as to the, proper scope and meaning of the expression personal liberty’ came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view “that personal liberty’ is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the personal liberties’ of man other than those dealt with in the several clauses of Article 19(1).

In other words, while Article 19(1) deals with particular species or attributes of that freedom, ‘personal liberty’ in Article 21 takes in and comprises the residue”.

The Minority judges, however, disagreed with this view taken by the majority and explained their position in the following words:

“No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping.

There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned”.

Views on Personal liberty in R.C. Cooper Case

There can be no doubt that in view of the decision of the Court in R. C. Cooper v. Union of India (1970) the minority view must be regarded as correct and the majority view must be held to have been overruled. According to this decision, which was a decision given by the full Court, the fundamental rights conferred by Part III are not distinct and mutually exclusive rights. Each freedom has different dimensions and merely because the limits of interference with one freedom are satisfied, the law is not freed from the necessity to meet the challenge of another guaranteed freedom.

The decision in A. K. Gopalan’s (supra) case gave rise to the theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive-each article enacting a code relating to the protection of distinct rights, but this theory was over-turned in R. C. Cooper’s case (supra) where Shah, J., speaking on behalf of the majority pointed out that

“Part III of the Constitution weaves a pattern of guarantees on the texture of basic human: rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.”

The conclusion was summarised in these terms:

“In our judgment, the assumption in A. K. Gopalan’s case that certain articles in the Constitution exclusively deal with specific matters cannot be accepted as correct”.

It was hold in R. C. Cooper’s case and that is clear from the judgment of Shah, J., because Shah, J., in so many terms disapproved of the contrary statement of law contained in the opinions of Kania, C. J., Patanjali Sastri, J., Mahajan, J., Mukherjee, J., and S. R. Das, J., in A. K. Gopalan’s case that even where a person is detained in accordance with the procedure prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of Article 19(1) does not cease to be available to him and the law authorising such detention has to satisfy the test of the applicable freedom under Article 19, clause (1).

Fundamental Rights under Part III are not mutually exclusive

This would clearly show that Articles 19(1) and 21 are not mutually exclusive, for, if they were, there would be no question of a law depriving a person of personal liberty within the meaning of Article 21 having to meet the challenge of a fundamental right under Article 19(1).

It is indeed difficult to see on what principle we can refuse to give its plain natural meaning to the expression ‘personal liberty’ as used in Article 21 and read it in a narrow and restricted sense so as to exclude those attributes of personal liberty which are specifically dealt with in Article 19. We do not think that this would be a correct way of interpreting the provisions of the Constitution conferring fundamental rights.

The attempt of the court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction.

The wave length for comprehending the scope and ambit of the fundamental rights has been set by the Court in R. C. Cooper’s case and our approach in the interpretation of the fundamental rights must now be in tune with this wave, length.

We may point out even at the cost of repetition that this Court has said in so; many terms in R. C. Cooper’s case that each freedom has different dimensions and there may be overlapping between different fundamental rights and therefore it is not a valid argument to say that the expression ‘personal liberty’ in Article 21 must be so interpreted as to avoid overlapping between that article and Article 19(1).

The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.

Now, it has been held by this Court in Satwant Singh’s case that ‘personal liberty’ within the meaning of Article 21 includes within its ambit the right to go abroad and consequently no person can be deprived of this right except according to procedure prescribed by law.

The procedure cannot be arbitrary, unfair or unreasonable

Obviously, procedure cannot be arbitrary, unfair or unreasonable. There was some discussion in A. K. Gopalan’s case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot be any arbitrary, fantastic or oppressive procedure.

Fazal Ali, J., who was in a minority, went to the farthest limit in saying that the procedure must include the four essentials, set out in Prof. Willi’s book on Constitutional Law, namely, notice, opportunity to be heard, impartial tribunal and ordinary course of procedure.

Patanjali Sastri, J. did not go as far as that but he did say that “certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law.”

Mahajan, J., also observed that Article 21 requires that “there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty” and “it negatives the idea of fantastic, arbitrary and oppressive forms of proceedings”. But apart altogether from these observations in A. K. Gopalan’s case, which have great weight, we find that even on principle the concept of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21.


Maneka Gandhi v. Union of India (1978)

-By TheLawmatics Team