Right to Death – Part 8

Procedure Established By LawThe expression “procedure established by law” was initially interpreted as procedure prescribed by the law of the State. Accordingly, it required, firstly existence of an enacted authorizing interference with the life or personal liberty, secondly the law should be valid, and thirdly the procedure laid down by the law must be followed. In the absence of non- compliance of any of these conditions any deprivation of life or personal liberty of a person by any authority violates Article 21.

Personal Liberty Detailed Explanation

The expression “liberty” in the 5th and 14th Amendments to the US Constitution is given a very wide meaning. It takes in all the freedoms that a human being is expected to have. The expression is not confined to mere freedom from bodily restraint and “liberty under law, but extends to full range of conduct which the individual is free to pursue. In contrast to the US Constitution, Article 21 qualifies “liberty” by “personal” which leads to an inference that the scope of liberty under our Constitution is narrower than in the US Constitution. Seemingly that was the impression drawn by some of the Judges in A.K Gopalan v State of Madras. Though that case was concerned about the constitutionality of preventive detention of the petitioner which in any case was an infringement of the “personal liberty” even in the narrowest sense of that term and therefore it may be said that the scope of “personal liberty” was not an issue in that case.

For the first time the meaning and scope of “personal liberty” came up pointedly for consideration in Kharak Singh v State of UP. In that case validity of certain police regulations which, without any statutory basis, authorized the police to keep under surveillance persons whose names were recorded in the “history-sheet” maintained by the police of persons who were or were likely to become habitual criminals. Surveillance as defined in the impugned regulation included secret picketing of the house, domiciliary visits at night, periodical inquiries about the person, an eye on his movements etc. The petitioner alleged that this regulation violated his fundamental right to movement in Article 19(1)(d) and “personal liberty” in Article 21. For determining the claim of the petitioner the court, apart from defining the scope of Article 19(1)(d) had to define the scope of “personal liberty” in Article 21

Speaking for the majority Ayyangar J denied that “personal liberty” was confined to “freedom from physical restraint or freedom from physical restraint or freedom from confinement within the bounds of a prison “and held that “personal liberty” was used in the article as a compendious term to include within itself all the varieties of rights which go to make up the “personal liberties” of a human being other than those dealt within the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes of that freedom, “personal liberty” in Article 21 takes in and comprises the residue.” He concluded that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby” violated “personal liberty” enshrined in Article 21 and, therefore, the regulation was invalid insofar as it authorized domiciliary visits but the rest of it did not violate either Article 19(1) (d) or Article 21. He also held that “Right To Privacy” is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part 111

For the Minority Subba J Rao held:

No doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore the expression, personal- liberty’ in Article 21 excludes that attribute. In our view this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.”

He held that right to privacy “is an essential ingredient of personal liberty” and that the right to personal liberty is “a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought by calculated measures.” Applying that test he found the entire regulation violative of Article 21, and also of Article 19(1) (a) and (d).

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

You may also like to read:

Cyber Bullying 9 – Aishwarya Sandeep

Courts under Industrial Disputes Act, 1947 – Aishwarya Sandeep

Being Childfree can also be an option for couples. – Aishwarya Sandeep

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