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5th March 2021 – Editorials/Opinions Analyses


  1. Not so stellar in protecting personal liberty

Editorial: Not so stellar in protecting personal liberty


  • A pair of recent rulings gave us a glimmer of hope that the judiciary might yet serve as a tribune of people’s rights.


  • GS Paper 2: Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure; Comparison of Indian constitutional scheme with other countries’.

Mains Questions:

  1. The outcomes from the judiciary in the defence of liberty, free thought and speech seem to be far from routine. Discuss. 15 Marks

Dimensions of the Article:

  • Recent rulings regarding liberty
  • What is Right to Life?
  • Judicial interpretations related to Article 21
  • Way Forward

Recent rulings regarding liberty

  • Priya Ramani: The first was the acquittal of the journalist, Priya Ramani, on charges of criminal defamation. A Delhi court, in discharging her of the accusations, recognized that a woman’s right to dignity superseded any claims over reputation.
    • The court also held that a survivor of sexual harassment had the freedom to place her grievance at any point of time after the occurrence of the event and on any platform of her choice.
  • Disha Ravi: The second was the grant of bail to Disha Ravi, a 22-year-old woman who was arrested in Bengaluru and taken to New Delhi on charges of sedition.
    • Her alleged crime: helping edit, and sharing, a “toolkit” that was meant to lend support to protests against the Union government’s new farm laws.
    • In the order granting bail, the court of the additional sessions judge noted that the prosecution had failed to produce even an iota of evidence linking Ms. Ravi to an act of violence.
    • It found the toolkit to be innocuous and the actions of the Delhi police, in restraining her liberty, to be based on “propitious anticipations”.
    • The judge was also constrained to state the obvious: that, in a democracy, the right to dissent is fundamental.

What is Right to Life?

Article 21 of Indian Constitution provides for “Protection of Life and Personal Liberty” and reads as “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as the heart of fundamental rights by the Apex Court in Unni Krishnans case.

  • The objective of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law.
  • It clearly means that this fundamental right has been provided against the state only.
  • If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person, such violation would not fall under the parameters set for the Article 21.
  • In such a case, the remedy for aggrieved person would be either under Article 226 of the constitution or under general law.

Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State, which are not according to procedure established by law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed.

Judicial interpretations related to Article 21

Judicial intervention has ensured that the scope of Article 21 is not narrow and restricted. It has been widening by several landmark judgements.

A few important cases concerned with Article 21:

  • AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a narrow scope. In this case, the SC held that the expression ‘procedure established by law’, the Constitution has embodied the British concept of personal liberty rather than the American ‘due process’.
  • Maneka Gandhi vs. Union of India Case (1978): This case overturned the Gopalan case judgement. Here, the SC said that Articles 19 and 21 are not watertight compartments. The idea of personal liberty in Article 21 has a wide scope including many rights, some of which are embodied under Article 19, thus giving them ‘additional protection’. The court also held that a law that comes under Article 21 must satisfy the requirements under Article 19 as well. That means any procedure under law for the deprivation of life or liberty of a person must not be unfair, unreasonable or arbitrary. Read the Maneka Gandhi case in detail in the linked article.
  • Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case, the court held that any procedure for the deprivation of life or liberty of a person must be reasonable, fair and just and not arbitrary, whimsical or fanciful.
  • Olga Tellis vs. Bombay Municipal Corporation (1985): This case reiterated the stand taken earlier that any procedure that would deprive a person’s fundamental rights should conform to the norms of fair play and justice.

Personal liberty and religious conversion

  • The Allahabad High Court declared last month that religious conversions, even when made solely for the purposes of marriage, constituted a valid exercise of a person’s liberties.
  • The High Court ruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty. In holding thus, the order recognised that our society rested on the foundations of individual dignity, that a person’s freedom is not conditional on the caste, creed or religion that her partner might claim to profess, and that every person had an equal dominion over their own senses of conscience.

Right to privacy

  • The High Court’s order makes it clear that it is neither the province of the state nor any other individual to interfere with a person’s choice of partner or faith.
  • By invoking the Supreme Court’s judgment in Puttaswamy, the High Court held that an individual’s ability to control vital aspects of her life inheres in her right to privacy, that this promise includes the preservation of decisional autonomy, on matters, among other things, of “personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation”.

Freedom of conscience

  • Article 25 of the Constitution expressly protects the choices that individuals make. In addition to the right freely to profess, practise and propagate religion, it guarantees to every person the freedom of conscience.
  • By its dictionary definition, “conscience” refers to each person’s own sense of moral right and wrong. It is an emotion that cannot be judged from the outside. It is certainly not something that the state can examine as a function of its sovereign authority.

Way Forward

Since then, a nine-judge Bench ruling of the Supreme Court, in Puttaswamy, has recognised that every individual possesses a guaranteed freedom of thought; that at the core of liberty is the rights of persons to decide for themselves how they want to lead their lives. When we fail to acknowledge and respect the most intimate and personal choices that people make — choices of faith and belief, choices of partners — we undermine the most basic principles of dignity. Our Constitution’s endurance depends on our ability to respect these decisions, to grant to every person an equal freedom of conscience.

July 2024