The Expansion of "Life"

Held. Of the five kinds of surveillance, only domiciliary visits at night were struck down, as violative of article 21, there being no law to justify them; the petitioner was entitled to a mandamus directing the respondent not to continue them. The rest were held not unconstitutional. Secret picketing "could not in any material or palpable form affect either the right on the part of the suspect to move freely or to deprive him of his personal liberty within the meaning of article 21"; in dealing with a fundamental right such as free movement or personal liberty, "that only can constitute an infringement which is both direct as well as tangible", and the makers of the Constitution did not intend to protect "mere personal sensitiveness". Shadowing a history-sheeter and recording his movements infringed no fundamental right. Subba Rao and Shah JJ. dissented.

Why it matters. Three things, and the third is the one students miss.

First, the majority nonetheless struck something down, and did so by treating the sanctity of the home as part of personal liberty. That is the expansion beginning, in a case usually remembered for what it refused.

Second, "direct and tangible" is the older test, and it is the test the later cases abandon. A right to privacy is precisely a protection of what the majority dismissed as "personal sensitiveness".

Third, the dissent won in the end. Subba Rao J. would have struck down the whole of Regulation 236, and his reasoning that privacy is an essential ingredient of personal liberty was adopted by nine judges in Puttaswamy, which overruled Kharak Singh to the extent that it held the right to privacy is not protected by the Constitution. A case can be authority for a proposition and, decades later, be authority for its opposite.

The statement of the principle

Facts. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1981 AIR 746, 1981 SCR (2) 516, (1981) 1 SCC 608, decided 13 January 1981. The petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Under the Punjab jail manual as applied, she was allowed an interview with a lawyer or a member of her family only once a month, and then only in the presence of a customs officer. She challenged those conditions under articles 14 and 21.

Held. The petition was allowed. On the principle, the Court held that "the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings." The magnitude and content of the components of the right "would depend upon the extent of the economic development of the country", but must in any view include "the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self". And then the operative sentence: "Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live", and any such deprivation must be in accordance with reasonable, fair and just procedure established by law. It follows that any form of torture or cruel, inhuman or degrading treatment is offensive to human dignity and prohibited by article 21.

The Court also drew the distinction it needed first: punitive detention inflicts punishment on a person found by a judicial process to have committed an offence, while preventive detention "is not by way of punishment at all" but pre-empts conduct injurious to society. A detenu is therefore not a convict, and conditions appropriate to punishment cannot be applied to him.

Why it matters. This is the sentence the rest of Module III is built on, and it is worth learning in the Court's own words. Note two qualifications that a careful answer includes. The content is expressly relative to "the extent of the economic development of the country", which is the Court conceding that this right grows with the country's means. And "pro tanto" means "to that extent": an act impairing dignity is a deprivation of the right so far as it goes, which is why the enquiry is always about degree.

The method, stated plainly

Every later right in this module is produced the same way, in four steps.

1. Start from "life" as dignity, on Francis Coralie.
2. Ask what the claimed interest has to do with dignity. Livelihood, shelter, health, a clean environment, education, privacy: each is argued as a condition of living as a human rather than merely staying alive.
3. Find the content in Part IV, because the directive principles say what the State is to secure. This is the step [Health and the Environment] shows in operation.
4. Attach the remedy of article 21, which unlike Part IV is enforceable, and article 32 to enforce it.

Learn those four steps as a unit. A question that asks how the horizon of fundamental rights has expanded is asking for this method, not for a list of rights.

The criticism, which belongs in the answer

It is amendment by interpretation. The Constitution provides a procedure for adding rights, in article 368, and it requires Parliament. What the Court has done produces the same result without it. The reply is that it is interpreting an existing word rather than adding a new article, but the reply is weaker where the "interpretation" produces a detailed right nobody would find in eighteen words.

It puts unenforceable promises into an enforceable article. Part IV was made unenforceable deliberately, as [Health and the Environment] explains. Using it to fill out article 21 arguably reverses a choice the Constituent Assembly made.

It promises what cannot be delivered. A right to shelter declared but not funded may cost the Court its authority more than it gains the citizen. Francis Coralie's own qualification, that content depends on the economic development of the country, is the Court's answer, and it is candid about the difficulty rather than a solution to it.

It has no natural stopping point. If dignity generates rights, then the question of which claims are in and which are out is answered by judges without a textual standard. This is the criticism with the most force, and the honest response is that the Court has in fact refused claims, as Kharak Singh's majority and Subhash Kumar both show.

What it does NOT mean

It does not mean every desirable thing is a fundamental right. The claim must be tied to dignity and, in practice, to something in Part IV. Courts have refused claims that were merely claims of policy.

It does not mean the right is absolute. A deprivation is permitted if it follows a procedure that is fair, just and reasonable, on [Procedure Established by Law]. The expansion enlarges what counts as a deprivation; it does not forbid deprivation.

It does not mean Kharak Singh is good law on privacy. It was overruled on that point by nine judges in Puttaswamy. Cite it for where the expansion began and for the "direct and tangible" test that was abandoned, not for the proposition that privacy is unprotected.

A worked example

A municipal corporation installs facial recognition cameras covering the entrances of a settlement, and keeps a permanent record of who comes and goes. There is no statute authorising it; the corporation relies on a departmental circular. Residents complain.

Step one, what is the claimed right? Privacy, and beyond it the freedom to live without being catalogued.

Step two, would Kharak Singh's majority help? No. Watching and recording movements was expressly held not to infringe any fundamental right, and the objection would be dismissed as "personal sensitiveness".

Step three, does that still stand? No. Puttaswamy overruled Kharak Singh to the extent that it held privacy is not protected, and held the right to privacy is protected as an intrinsic part of article 21 and as part of the freedoms guaranteed by Part III.

Step four, apply Francis Coralie. Continuous identification of every resident impairs the bare minimum expression of the human self and so is a deprivation pro tanto of the right to live with dignity.

Step five, is there a law? A departmental circular is not a law. On [Procedure Established by Law] there must first be a law, and then the procedure it lays down must be fair, just and reasonable. Here the first requirement fails, and the enquiry ends there.

Step six, what if there were a statute? Then the three tests laid down in Puttaswamy would be applied, which is the subject of [Privacy].

Quick revision

• Article 21's "life" is not mere animal existence. The authority is Francis Coralie Mullin.
• Francis Coralie: life includes the right to live with human dignity and the bare necessaries, nutrition, clothing, shelter, and facilities for reading, writing and expressing oneself. Content depends on the country's economic development.
• "Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live." Pro tanto means to that extent.
• Francis Coralie also distinguishes preventive from punitive detention: a detenu is not a convict.
• Kharak Singh: only domiciliary visits struck down; the rest of surveillance upheld; the test was "direct and tangible" infringement and the Court refused to protect "mere personal sensitiveness". Subba Rao and Shah JJ. dissented.
• Puttaswamy overruled Kharak Singh so far as it held privacy unprotected. The dissent became the law.
• The method in four steps: dignity, connect the claim to it, find content in Part IV, attach the article 21 remedy.
• The criticisms: amendment by interpretation; Part IV made enforceable by the back door; promises without resources; no natural stopping point.

Test yourself

1. Quote the operative sentence from Francis Coralie on the content of the right to life, and explain what "pro tanto" adds to it.

2. Kharak Singh is cited as the beginning of the expansion, yet the petitioner largely lost. Explain both halves.

3. What test did the majority in Kharak Singh apply to decide whether a fundamental right was infringed, and why is that test unsuited to a claim of privacy?

4. Set out in four steps the method by which a new right is read into article 21, and illustrate it with one right from this module.

5. Give the two strongest criticisms of that method, and the best answer to each.

6. Why does the Court say the content of the right depends on the economic development of the country? Is that a principled limit or an excuse?