Protection of Life and Personal Liberty and Implied Fundamental Rights

Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. This article protects the right of life and personal liberty not only from executive action but also from the legislative action. This right extends to citizens as well as non-citizens.

In context with this article, the Supreme Court has held that Part III of the constitution should be given widest possible interpretation and a fundamental right is not necessarily that one, which is specified in an article. Even if it is not specified in an article, but if it is integral part of a named fundamental right or partakes the same basic nature and character as that of a fundamental right.

This article gives way an array of several human rights which are called Implied Fundamental Rights.

Implied Fundamental Rights

The interpretation of the Article 21 by the Supreme Court has opened a new chapter of human rights jurisprudence. In several cases, the court has held the following as implied fundamental rights, though not all of them have been specifically mentioned. These all are called Implied Fundamental Rights.

1. Right to Speedy Trial
2. Right to Travel Abroad
3. Right to Dignity
4. Right to Privacy
5. Right to Clean Environment
6. Right to Livelihood
7. Right to marriage
8. Right against torture
9. Right against Bondage
10. Right to legal aid
11. Right to Food.

In the same way, Supreme Court has also held that Freedom of speech and expression guaranteed under Article 19(1) includes the right to know, right to information and right to reply.

It must be noted here that

• Right to life does not include Right to Die or Right to get killed i.e. mercy killing.
• Capital Punishment has not been held violative of Article 14, 19 and 21
• Hanging as a mode of execution is also fair and just as per supreme court.
• The Supreme Court has held that right to live also include Right to live with dignity.

Procedure established by law versus due process of law

This article in the original drafted constitution used the words “no person is to be deprived of his life or liberty without due process of law”. The drafting committee changed it to “No person shall be deprived of his life or personal liberty except according to procedure established by law” giving the reason that liberty should be qualified by the word personal, so that unnecessary interpretation may be avoided. The expression “Procedure established by law” is more definite phrase and this phrase finds the place in the Japanese Constitution of 1946. It implies that life and personal liberty of a person cannot be encroached upon arbitrarily without the proper sanction and provision of law.

Rape as violation of right to life

Right to life includes the right to live with human dignity. Women also have the right to life and liberty. Their honour and dignity cannot be outraged or violated. They also have the right to lead an honourable and peaceful life. In Bodhisattawa Gautham v. Subhira Chakroborthy, it was held that rape is a crime not only against the person, but also against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is crime again basic human rights and it violates right to life.