Article 21: Life and Personal Liberty

What the article protects today

Life has been held to mean more than mere animal existence, extending to the right to live with human dignity and to those things that make life meaningful. That single move is the foundation of Module II.

Personal liberty has been given the widest amplitude, covering a variety of rights that go to make up the personal liberty of a person.

And procedure established by law now requires a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive, which brings article 14 and article 19 into every article 21 case.

Article 21 and the emergency

Article 359 permits the President to suspend the right to move any court for the enforcement of Part III rights during an emergency.

During the Emergency of 1975 to 1977 that suspension was held to extend to article 21, so a person detained could not approach a court even to allege that the detention was without legal authority. That decision is the low point of the Indian judicial record on human rights and is treated as wrongly decided.

The Forty-fourth Amendment answered it directly by excluding articles 20 and 21 from the article 359 power. The enforcement of article 21 can no longer be suspended in any emergency.

The international correspondence

Article 3 of the Universal Declaration: everyone has the right to life, liberty and security of person.

Article 6 of the Civil and Political Covenant: every human being has the inherent right to life, this right shall be protected by law, and no one shall be arbitrarily deprived of his life. Article 9: everyone has the right to liberty and security of person, and no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law.

Both article 6 and article 9's core are non-derogable or heavily protected under article 4(2) of the Covenant, which matches the post-1978 Indian position.

The comparison worth drawing is that the Covenant says arbitrarily, which is the substantive standard the Indian text avoided in 1949 and the Indian courts arrived at anyway thirty years later.

Worked example

Almost any question on this paper can be answered through article 21, which is a reason to be disciplined about it.

Quote the article in full. It is eighteen words and there is no excuse for paraphrase.

Break it into the three components and say what each contributes.

Explain why the drafting permits growth: nothing defined, no restriction clause, a procedural limit, available to all.

Give the narrow reading and say how long it lasted, because the enlargement is unintelligible without it.

Give the present content in one sentence each for life, personal liberty and procedure.

Give the emergency point and the Forty-fourth Amendment, because it is the constitutional consequence of the period.

What it does NOT mean

It does not mean life cannot be taken. The article permits deprivation according to a procedure established by law, which is why capital punishment is not per se unconstitutional in India.

It does not mean the article contains a general right to liberty of action. Personal liberty is wide but it is not a licence, and restrictions consistent with a fair procedure are permitted.

And it does not mean the text was always read this way. For nearly thirty years it was not, and an answer that presents the modern reading as obvious has missed the history.

Quick revision

• The text: No person shall be deprived of his life or personal liberty except according to procedure established by law.
• Three components: no person, so every human being; life or personal liberty, both undefined; and procedure established by law, chosen deliberately instead of due process.
• Four features permitting growth: nothing is defined; no restriction clause; the limit is procedural; and it is available to everyone.
• The narrow reading: a law, and the procedure followed, and no inquiry into fairness. It held for nearly three decades.
• Today: life means more than animal existence and includes the right to live with human dignity; personal liberty has the widest amplitude; and procedure must be right, just and fair.
• Emergency: article 359 was held to suspend article 21 during 1975 to 1977; the Forty-fourth Amendment put articles 20 and 21 outside that power.
• Correspondence: article 3 of the Declaration; articles 6 and 9 of the Covenant, which use the word arbitrarily, the substantive standard India avoided in 1949 and reached by construction thirty years later.

Test yourself

1. Set out article 21 and explain why so short a provision carries so much. It provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Three components: no person, which extends the article to every human being within the territory whether citizen or foreigner; life or personal liberty, two protected interests neither of which the Constitution defines; and except according to procedure established by law, which states the only permitted route to a deprivation and which was chosen deliberately in place of the American formula of due process.

Four features of that drafting explain its expansion. Nothing is defined, so the content of life and of personal liberty is whatever a court holds it to be, in sharp contrast with article 19, which names each freedom and lists exhaustively the grounds of restriction. There is no restriction clause at all, so there are no enumerated permissible grounds to confine the article. The limit stated is procedural rather than substantive, so once a court decides that it may examine the quality of the procedure the article contains no internal boundary. And it is available to everyone, so no status question narrows it. Taken together these make article 21 the only article in Part III capable of indefinite growth, which is what happened from the late 1970s onward.

2. What was the narrow reading, how long did it last, and what did it cost? On the original construction the article required only two things: that a law exist authorising the deprivation, and that the procedure prescribed by that law be followed. It did not permit a court to ask whether the prescribed procedure was fair, reasonable or just, because the Constituent Assembly had deliberately replaced due process of law with procedure established by law on advice that due process would let judges strike down social legislation on their own view of reasonableness. Personal liberty was also read narrowly, as freedom from physical restraint of the person rather than as liberty in any broader sense.

The reading held for nearly three decades. Its cost was visible during the Emergency of 1975 to 1977, when the combination of a narrow article 21 and the suspension of the right to move any court under article 359 left a detained person unable to approach a court even to allege that the detention was without legal authority at all. That is the low point of the Indian judicial record on human rights, it is treated as wrongly decided, and it produced the Forty-fourth Amendment, which excluded articles 20 and 21 from the article 359 power so that the enforcement of article 21 can no longer be suspended in any emergency.

3. How does article 21 compare with the international guarantees? Closely in substance and instructively in wording. Article 3 of the Universal Declaration provides that everyone has the right to life, liberty and security of person. Article 6 of the Civil and Political Covenant provides that every human being has the inherent right to life, that this right shall be protected by law, and that no one shall be arbitrarily deprived of his life. Article 9 provides that everyone has the right to liberty and security of person, that no one shall be subjected to arbitrary arrest or detention, and that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The instructive comparison is the word arbitrarily. The Covenant sets a substantive standard: the deprivation must not be arbitrary, which invites the court to examine the grounds and not only the procedure. That is precisely what the Constituent Assembly declined to write into article 21 when it removed due process. The Indian courts arrived at the same place by construction thirty years later, holding that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive. So the eventual Indian position and the Covenant standard now coincide, and the route by which India got there, judicial construction rather than drafting, is the reason Module II exists as a separate module on this syllabus.