RECENT JUDGMENTS RELATING TO ARTICLE 21 (2017-July,2020)

Compiled By Shailja Mishra, Intern (August, 2020)

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  • Navtej Singh Johar v. Union of India: 2018 (1) SCC 791-  The 5 judge bench of Supreme Court declared ultra vires section 377 of Indian Penal Code, 1860, which criminalized same sex relations between consenting adults (Homosexuality). As a consequence of this landmark judgment the LGBT individuals were permitted to engage in consensual intercourse. This is said to be another milestone in the journey of Article 21. The Constitutionality of section 377 was challenged on the ground that it violates article 14, 19 and 21 of the Indian Constitution. The issue before the Court was whether right to autonomy and dignity under Article 21is abridged by the said provision by penalizing private consensual acts between same sex persons. The Court declared that Article 21 includes “Right to choice of sex” and Section 377 violates human dignity, decisional autonomy and fundamental right to privacy. It broadened scope of Right to privacy to include and protect sexual privacy. 
  • Justice K.S. Puttuswamy (Retd.) v. Union of India (2017) 10 SCC 1-   On 23rd August, 2017 the Supreme Court unanimously recognized right to privacy as a fundamental right guaranteed by the Indian Constitution within Article 21. The Court was hearing a writ petition filed by a retired judge of High Court, Justice K S Puttaswamy challenging the constitutional validity of Aadhaar Scheme. 
  • Common Cause v. Union of India: (2018) 9 SCC 382) “Right to die with dignity”–  On 9th March, 2020 the Supreme Court allowed passive euthanasia under some exceptional circumstances and strict monitoring of the court. In the above judgment, the court permitted “Living Will” of a patient to withdraw medical support in case if the person concerned goes into irreversible state of coma. Though active euthanasia where something is done to end the life of the patient is not permissible but passive euthanasia when something is not done that would preserve the patient’s life is held to be the fundamental right under Article 21. The Court declared right to die with dignity as a fundamental right. 
  •  Shakti Vahini v. Union of India: 2018 (7) SCC 192 ) “Right to choose life partner”On 27th March, 2018 Supreme Court has held the right to choose his or her life partner as fundamental right under Article 21 and gave directions given to authorities to take all possible preventive steps to combat honor killings and related crimes. It held that any attempt by Khap Panchayats or any other assembly to prevent two consenting adults from marrying is absolutely illegal. The judgment was delivered by three judge bench which observed that assertion of choice is insegregable facet of Liberty and Dignity as there can be no dignity where one’s choice is being eroded. If Liberty is not sustained then the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate imposition of thoughts and ideas without voice to dissent. When two adults marry out of their own volition they have the right to do so and any infringement of the said right is a constitutional violation. 
  • Joseph Shine vs Union of India 2018 SC 1676- In this Landmark judgment pronounced on 27th September, 2018 by a constitutional bench of Supreme Court Section 497 of Indian Penal Code, 1860 was declared as unconstitutional decriminalizing adultery in India. Section 497 made adultery a punishable offence. The issue raised before the Court was Section 497 violates Articles 14, 15 and 21 of Indian Constitution. The court held that the said provision is an archaic concept as it considers wife as sub-ordinate to husband and that only husband can seduce another women outside the marriage. The petitioner contended that right to privacy under Article 21 provides for sexual autonomy of an individual. The apex court conclusively struck down the said provision holding it contrary to the Fundamental Rights. 
  • Rakesh Kumar Paul vs State Of Assam (2017) 15 SCC 67 “Right to legal aid”- In this case the three judge bench of Supreme Court held that it is the duty and obligation of the Magistrate before whom the accused is presented to make him fully aware that it his right to consult and be defended by a legal practitioner and in case he has no means to engage a lawyer of choice then he shall be provided legal aid at the expense of the state. These rights of the accused flow from Articles 21 and 22 of the constitution and needs to be strictly enforced. Any failure to fully discharge the obligation would make the Magistrate liable to departmental proceedings. In case of personal liberty and Article 21 of Constitution, it is not advisable to be formalistic and technical. 
  • Mohd Javed & Anr vs Union Of India & Anr on 28 May, 2019 “Right of family against arbitrary interference of state” – The High Court of Delhi on 28th May, 2019 held that except for compelling reasons of national security a foreigner shall be provided reasonable opportunity to make representation before a competent authority. The Foreigner’s fundamental right under Article 21 of Indian Constitution shall not be infringed. Any right of family against the arbitrary and capricious interference by the state is protected under Article 21. Article 21 would include the right of young children to live with their mother and right of husband to consortium with his wife. 
  • Hussain and Anr. Versus Union of India(2017) 5 SCC 702 “Right to speedy trial” – The Supreme Court iterated that speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of Indian Constitution. This right cannot be denied even on the plea of non-availability of financial resources. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases. 
  • Kamil Siedczynski Vs. Union of India and anotherWP No. 4432(W) of 2020 – In this case a Polish citizen came to India on a student visa which was lastly renewed till August 31, 2020 but a Leave India Notice (LIN) was issued to him dated 14th February, 2020. The petitioner was also not given the opportunity to represent himself before the issuance of such notice. The High Court at Calcutta held that the present petitioner was turned out of the country on the ground that does not meet the principles of life and liberty as enshrined under Article 21. The Court observed that Article 21 is applicable to all persons staying on Indian soil. Individual’s right under Article 21 cannot be taken away without any prior intimation. 
  • N.Prakash Vs. State of Kerala and The City Police Commissioner/District Police Chief W.P.(C). TMP-28 OF 2020- A two judge bench at Kerala High Court  heard a petition where the petitioner was denied vehicle pass to move out and purchase “Meso Persian” biscuits for his cats as he was a vegetarian hence he did not cook non-vegetarian food in his house. His contention was that animals to have fundamental right to life under Article 21 of Indian constitution. The court observed that section 11 of Prevention of cruelty to Animals, 1960 penalized owner of the animal if he fails to provide food and shelter to it hence Article 21 can be extended to the liberty of a citizen to rear his animals. Every citizen has a right to enjoy his life and liberty under Article 21 by having a choice of rearing pets. 
  • Suo Moto W.P. 7492 OF 2020 (Madras High Court)- The Court took the cognizance of the matter through media reports about a Medical doctor who died due to COVID-19 infection. His dead body was taken to Christian Cemetery at Kilpauk but the residents of the area opposed its burial due to which it was taken to Velangadu and buried. The ambulance and public servants taking the body were attacked by the public. The Court observed that Article 21 cannot be restricted to mere animal existence. The scope and ambit of Article 21 includes right to have a decent burial. A person who has practiced a novel profession as a doctor has been deprived of his right to have a burial in a cemetery earmarked for that purpose. 
  • State of Rajasthan and Others Vs S and Navjeevan SansthanD.B. Spl. Appl. Writ No. 1344/2019 High Court of Rajasthan heard a special appeal filed State of Rajasthan against an order passed by the learned Single Judge bench of the same Court. The minor respondent (17 years) was sexually harassed and unfortunately conceived hence she through her mother moved an application seeking permission for termination of her pregnancy. The learned special judge held that the application was not maintainable as the gestation period had gone beyond threshold of 20 weeks. The learned judge further held that the petitioner was carrying a life which is protected under Article 21 which cannot be invoked for the victim alone. The Court held that the learned special judge was wrong in his perspective of giving precedence to life of foetus over the reproductive choice the victim. Women’s right to make reproductive choice is also a dimension of personal liberty under Article 21. The unwanted pregnancy of the victim posed a serious threat to her mental health causing her grave mental injury hence the infringement of the fundamental right to life of the victim heavily outweighs the right to life of the child in womb.
  • The Registrar vs M.ElangoW.A.No.1352 of 2019-   The High Court of Madras held that total denial of subsistence allowance to a suspended employee is violative of Article 21. In this case the Secretary of Primary Agriculture Cooperative Credit Society was not allowed subsistence allowance on his suspension. Employee and Employer relationship during suspension continues to subsist. The word ‘subsist’ means to manage to stay alive with minimum limited resources or money. Subsistence allowance is an income that is sufficient to provide bare necessities and adequate support in distressed times. Hence not paying the subsistence allowance is not a correct approach. Payment of subsistence amount is a fundamental right guaranteed under Article 21 of the constitution. 
  • Sri Subhas Bhattacharjee Vs. The State of TripuraWrit Petition(C)(PIL) No.2/2018- High Court of Tripura heard and decided upon a petition filed by a retired judicial officer, in public interest, highlighting the illegal practice of sacrifice of innocent animals, on the basis of a superstition. Article 21 of the Constitution, while safeguarding the rights of humans, protects ―life which expression has been given an expanded definition.  The word ―life in Article 21 of the Indian Constitution is wide enough to include every living organism be it humans, animals, insects or bird. Deprivation of life has to be as per procedure established by law. Thus it is pertinent in this regard that sacrificing of animal and taking away of their life also has to be in accordance with due process of law.

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