L. Ravichander | Incorporate right to political opinion in the right to life
To find the thematic essence of the paramount parchment is arguably to zero in on the fundamental rights guaranteed under Part III of the Constitution of India. And the essential slide under the constitutional microscope that will reflect this philosophy is surely Article 21.
The right to life as enshrined in our Constitution is cryptic and skeletal: No person shall be deprived of his life or personal liberty except according to procedure established by law. This implies that if “life or personal liberty” is to be denied than there must be a procedure which is “by law established”. The corollary is that such law must be live up to constitutional tests and judicial scrutiny. While in its very limited wording the right to life was envisaged as “life simpliciter”, it is so no longer. So expansive has been the judicial recognition of this guarantee that it has come to be the fulcrum of civilised existence as well as limited governance.
A push of the recall button would reveal that this guarantee was in Article 15 of the embryonic parchment. A good part of the debate hovered around whether the phase “procedure established by law” should be employed or the phrase “due process of law”.
The first milestone in this debate was reached in the Supreme Court as early as in 1950 in A.K. Gopalan vs State of Madras when the communist leader was detained and challenged the Preventive Detention Act. In that case, the Supreme Court ruled that Article 21 of the Constitution did not require Indian courts to apply a due process of law standard. It also held that there is no connection between Article 21 and Article 19 (rights to freedom of speech and expression; assembly; association, etc.) of the Constitution, as contended by the appellant. It would not be until 1970, however, that this position would be revisited, and revised, first in RC Cooper vs Union of India (aka the bank nationalisation case) and then, later, in Maneka Gandhi vs Union of India. The court would conclude that Article 21 and Article 19 did not collude and needed independent examination.
R.C. Cooper, however, stuck to the limited interpretation that there must be “a deprivation and, therefore, an imperative negative test”. But the court upheld the government’s power to nationalise.
In the celebrated case of Maneka Gandhi (1978) which she filed when her passport was impounded, post-Emergency India witnessed the judiciary turn into a vigilant watchdog to ensure that the blunder of Emergency does not repeat itself. Ms Gandhi had alleged violation of Articles 14 (right to equality), 19 and 21. The activist limb of the judiciary introduced flesh and blood to the seemingly pedantic sweep of Article 21. The seizure of the passport without assigned reasons (due process) was overruled. The message was clear. The golden era of Justices Krishna Iyer, O. Chinnappa Reddy and P.N. Bhagwati gave the system new direction. A U-turn from A.K. Gopalan was now complete.
More milestones followed the first blush of Article 21’s meaningful interpretation. The idea that the right to life encompasses far more than the right to mere animal existence was iterated by the apex court often. In a case filed by People’s Union for Civil Liberties (2001), the court held that the right to food is essential and the State cannot escape the responsibility to ensure it.
A few years before that in Chameli Singh (1995), the court went to the extent of upholding the rights of the poor for housing and the State’s constitutional duty to acquire land to provide it. The ordeal of pavement dwellers having to bathe in public found expression through Chief Justice of India Y.V. Chandrachud’s wise judgment in Olga Tellis vs Bombay Municipal Corporation (1985). Hussainara Khatoon vs State of Bihar (1979) provided for the right to speedy justice.
The seeds of the Right to Education Act, 2009, were contained in the judgment to the 1992 Mohini Jain vs State of Karnataka case that challenged a state government notification letting private medical college charge exorbitant fees. Article 21A which contained this right since 2002 was made effective in 2010. Later in 2014, the apex court upheld the right to basic primary education in State of UP vs Pavan Kumar Divedi.
Pioneering the cause of the clean environment was environmentalist M.C. Mehta who helped the further evolution of the right to life to cover the right to a clean environment following the Bhopal gas disaster. In Subhas Kumar vs State of Bihar (1991), the Supreme Court came down on two steel companies creating a health hazard by dumping waste into nearby rivers, enunciating the ‘polluter pays’ principle. A figment of this was echoed in Consumer Education Research Centre (1995) wherein the health and safety of workers exposed to asbestos was brought into the sweep of the right to life. Even handcuffing and producing a criminal in the court was found to be a violation of this right. Sexual choices found a sensitive watershed in Navtej Singh Johar vs Union of India (2018). The duty of the state to compensate a citizen who dies in prison was a further recognition of this right. The right against prison torture and against solitary confinement for death row prisoners was recognised in Sunil Batra vs Delhi Administration (1978), and to compensation against illegal and unlawful detention in Rudal Shah vs State of Bihar (1983).
A new draft of fresh air is blowing through Western jurisprudence with the possibility of the right to forget being included in the concept of the right to life in the context of data protection. When it will be recognised in our jurisprudence time will tell. However, more important in India is the right to political opinion. A growing tendency is being witnessed to move court against political statements. Such cases must be quashed on the ground that they are in breach of the right to life. As a democracy, India would then have come full circle.
