Ambit and scope of article 21 couched in negative language

Ambit and scope of article 21 couched in negative language

Hon’ble Supreme court has taken into account two spheres of dimensions to the right of personal liberty against the sovereign power exercising its functioning with the police power and restrictions imposing procedural safeguard in order to provide the public safety having invasion of individual privacy as susceptible to abuse. The custodian violence and torture by the police adopting third degree of interrogation and other agencies have been deemed to be violative of article 21 and article 22 of the constitution of India. It has been held that the importance of affirmed rights to deter breaches by the violence, torture and even death in police lock up strikes a blow of rule of law. The police who is supposed to provide the protection of citizens is committing such crime under the shield of uniform and authority in the four walls of a police station of lock ups in which victim is being totally helpless. Torture of human being by another human beings is essentially an instrument to impose the will of the "strong over the weak" by sufferings. These are a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward. Universal declaration of human rights in 1948 in reference to article 5 stipulates "no one shall be subjected to be tortured or to be cruel inhuman or degrading treatment or punishment". The constitutional guarantee provided in article 20 (3) provides that of a person excused of an offence cannot be compelled to be a witness against himself. Article 22 (2) provides that the person arrested or detained in the custody shall be produced before the nearest magistrate within a period of 24-hour of such arrest excluding the time necessary for journey. The accused shall be informed of the ground of such arrest and shall not been denied that right to concern and defend himself by legal practitioner of his choice. The personal liberties is protected under article 21 except according to the procedure established by law. Thus personal liberty is a sacred and cherished right under the constitution (UBI JUS IBI REMIDIUM).

The Hon’ble supreme court has held in respect of the guarantees of the fundamental rights to education to its citizen in Miss Mohini Jain Vs state of Karnataka 1992 (3). S.C.C. Page 666, while dealing with this aspect of constitutional bench in Unikrishanan J.P and others Vs state of Andhra Pradesh (A.I.R 1993 S. C. Page 2178) has observed "Learning is excellence of wealth that none can destroy, to man nought ,else affords reality of joy". Quoting an old Sanskrit adage.

"Liberation from ignorance which shrouds the mind, the liberation from the superstition which paralysis efforts, liberation from prejudices which blind the vision of the truth. "victories are gained, peace is preserved , progress is achieved, civilisation is build-up and history is made, not on the battlefield where ghastly murders are committed in the name of patriotic , not in the council chambers were insipid speeches are spun out in the name of debate, not even in factories were are manufactured novel, institutions which are the seat-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up, statesman and soldiers, patriot and philosopher who will determine the progress of the land. In Keshavanand Bharti Vs state of Kerala A.I.R 1973 S. C. Page 1431 Justice Matthew held "The fundamental rights have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. It is relevant in this context to remember that in building of just social order, it is sometimes imperative that the fundamental rights should be somewhat related to directive principles. The following rights are held to be covered world under article 21.

1.       Right to go abroad ( A.I.R 1967 S. C. 1836)

2.       Right to privacy (A.I.R 1975 S.C.1378)

3.       The right against solitary confinement. (A.I.R 1978 S.C 1675)

4.       Right against bar fetters (A.I.R 1978 S.C 1514)

5.       The right to legal aid (A.I.,R 1978 S.C. 1548)

6.       The rights to speedy trial (A.I.R 1979 S.C 1360)

7.       The right against hand cuffing (A.I.R 1980 S. C. 1535)

8.       The right against delayed execution (A.I.R 1983 S. C. 361)

9.       The right against custodian violence (A.I.R 1983 S C. 378)

10.    The right against public hanging (A.I.R 1986 s c. 467)

11.    Doctors assistance (A.I.R 1989 S. C 2039)

12.    Right to shelter (A.I.R 1990 S. C 630)

13.    the right to live with human dignity free from exploitation (A.I.R 1980 S. C 849) and

14.    The right of livelihood (A.I.R 1986 S. C. 180) respectively were also considered to be within ambit of article 21. Every endeavour has been provided till now to make this article reverberate with life and articulate with meaning. It has been held that authority not performing their statutory duties to enforce laws for the protection of environment inre- J.T 1996 (2) S. C 196 and J.T 1996 (7) S. C. 775 are jeopardising the right of life of the citizen. However the authorities have still to provide protection by providing a fool proof. Safety to the passengers travelling inside the fast moving train to avoid disastrous accident endangering a cynical disrespect towards the glorious contents of life in positive language and the honourable court may interpret life of law to serve the social purpose and felt necessity as sentinels on quinine as guardian of human rights to the victim of fatal accidents, socio-economic crisis and criminal actions to their dependants which is in the prevailing situation installing a sense of fear at least by providing minimum of financial security.

Transparency of action and accountability are perhaps two possible safeguards which the court enforcing the protection of fundamental rights must insist upon. Thus police in India requiring to perform a difficult and delegate task in view of the deteriorating law and order situation, communal riots, politics turns to student unrest, terrorist activities, dealing with hard core criminals, drug peddlers, smugglers having strong root in society, will feel difficulties in the detection of the crime committed by the hardened criminals. Thus a balanced justice approach is needed to meet the ends of justice. The cure cannot however, be worst them the diseased itself.

The state must therefore ensured that the various agencies deployed by it of highly sophisticated technology is increasingly susceptible to abuse. The existence of public emergency are in the interest of public safety relating to sovereignty, security, public order and integrity of India and also for preventing incitement to the commission of an offence may justify the right to hold a telephonic conversation and thus telephone tapping would tantamount to interference and certainly be claimed against the right to privacy unless it is permitted under the procedure established by law.

Right to freedom of speech and expression includes a right to express one’s convictions and opinions freely by words of mouth, writing, printing, picture or in any manner under article 19 (1) (a) of the constitution dealing with the provisions of section 5 (2) of the telegraph act. Unless public emergency has occurred are the interest of public safety demands, the authority have no jurisdiction to exercise the power under the said section. The power vested under section 5 (2) shall not be issued except by home secretary’s and there shall be a review committee consisting of cabinet secretary, law secretary and secretary telecommunications appointed by the governor. It is not disputed that no rules have been framed for the conduct of telegraph is under sections 7 (2) be of the act for providing precaution and preventing the improper interception or disclosure of messages for combating terrorism act within the bounds of the law and not to become the law themselves. In order to bring transparency and accountability, it is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness may be the member of the family or the respectable person of the locality. The date and time of the arrest shall be recorded in the memo which must also be counter signed by the arrested person.

The claim in public law for compensation is based on strict liabilities but for the established infringement of the indefeasible rights guaranteed under article 21, the grant of compensation is an exercise of the courts under the public law jurisdiction. The quantum of compensation will of course depend upon the peculiar facts of each case and no straight jacket formulae can be evolved in that behalf. ( D.K. Basu Vs state of West Bengal, J. T. 1997 (1) S. C Page 1) ( Joginder Kumar Vs state of U. P. 1994 (4) S. C. C. 260), (state of M.P Vs Shyam Sunder Trivedi J. T. 1965 (4) S. C Page . 445, (Neelabati Bahora Vs state of Orissa J. T. 1993 (2) S. C Page 503, ( Bhim Singh Vs state of .J. K. 1985 (4) S.C.C page 677, ( Rudul Shah versus state of Bihar 1983 (4) S.C.C page 141) have been referred by the apex court.

The Hon’ble supreme court in the public interest litigation filed by people’s union for civil liberties versus union of India J.T 1997 (1) S. C page 288 has laid down that the telephone tapping is a serious invasion of an individual’s privacy which with the growth. Thus as interrupted by all learned seven judges in Khadag Singh case 1964 (1) S. C. 332 that the expression life couch in article 21 included that "right to privacy and covered under protection of life and personal liberty which is insured against the arbitrary intrusion by the police. It is a right to be lit to a citizen to safeguard the privacy of his family, marriage , procreation, motherhood, child bearing and educational among other matters dealing with Article 17 of international convenient on civil and political rights 1966.

1.       No ones shall be subjected to arbitrary or unlawful interference with privacy, family woman and correspondence not to the lawful attacks on his honour and reputation and

Everyone has a protection against such interference or attack ... Article 12 of the universal declaration of human rights 1948 is almost in the similar terms. Thus it has been ordered that matters to be taken into account in relation to the interception required under section 5 (2) of the telegraph act, unless renewed cease to have effect at the end of the period of two months from the date of issue. The record shall be maintained in case it remained in an operation to the maximum limit of not exceeding six months regarding the intercepted communication, the extent to which the material is disclosed the number of person and their identity any of the material disclosed, and the extent of copies may made regarding material by authority issuing the order. The committee at state-level and central government shall also maintained that whether there has been any contravention of any of the provisions of section 5 (2) of the Act the procedures which deals with modalities of regulating, restricting on even rejecting a fundamental right felting with article 21 has to be fair, not foolish, carefully designed to effect , not to be subvert the substantive right itself which can be canalised only by civilised processes ( Maneka Gandhi Vs Union of India 1978 (2) S. C. R. Page . 621).