Articles 19 to 22 - Right to Freedom
- Legal Journey
- Oct 23
- 27 min read
Updated: Oct 26
Part 3 of the Constitution of India
Fundamental Rights
Articles 12 to 35
Articles 19 to 22
Right to Freedom
Article 19. Protection of certain rights regarding freedom of speech, etc.
- Available to citizens
- Article 19 confers 6 Fundamental Freedoms on citizens :-
Freedom to speech and expression [Art. 19(1)(a)]
Freedom to assemble peaceably and without arms [Art. 19(1)(b)]
Freedom to form associations or unions or cooperative societies [Art. 19(1)(c)]
Freedom to move freely throughout the territory of India [Art. 19(1)(d)]
Freedom to reside and settle in any part of the territory of India [Art. 19(1)(e)]
Freedom to practice any profession, or to carry on any business, trade, or occupation [Art. 19(1)(g)]
Article 19(1)(f) omitted by the 44th Constitutional Amendment Act, 1978
Q) Are these absolute?
A) These fundamental freedoms are NOT ABSOLUTE. They are subject to reasonable restrictions.
Freedom of - | Grounds of Restriction - |
Art. 19(1)(a) - Speech and Expression |
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Art. 19(1)(b) - Assemble peaceably and without arms |
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Art. 19(1)(c) - Form associations, unions, or co-operative societies |
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Art. 19(1)(d) & (e) - Move freely/ reside & settle |
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Art. 19(1)(g) - Profession, Trade, Occupation |
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REASONABLE RESTRICTIONS |
Reasonable Restrictions
- Absolute individual rights cannot be guaranteed by any modern state.
- For liberty of one, must not offend the liberty of others.
- The restrictions on these freedoms are provided in clauses 2 to 6 of Article 19.
- The restrictions on the rights under Article 19(1) can ONLY be imposed by a ‘Law’ and NOT executive or departmental instructions.
- The restrictions CANNOT be arbitrary.
- Hence for a restriction to be constitutionally valid, it must satisfy the following test :-
It must be for the purpose mentioned in Clauses 2 to 6 of Article 19, and
The restriction must be reasonable.
- The word “reasonable” implies intelligent care and deliberation which reason dictates.
- It is for the court to determine whether any restriction is reasonable or not.
- The word “reasonable” thus widens the scope of judicial review and the determination by the Legislature as to what constitutes reasonable restriction is NOT FINAL and conclusive but subject to supervision by the Constitutional Courts.
- There is NO definite or absolute test to judge the reasonableness of a restriction.
- Each case is to be judged on its own merits.
- The Supreme Court has laid down the following guidelines for determining the reasonableness of restrictions. They are :-
It is the courts and NOT the legislature which has to judge finally whether a restriction is reasonable or not.
The term “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of his right should not be arbitrary.
The restriction must have a reasonable relation with the object which the legislation seeks to achieve and must NEVER exceed it.
There is no exact standard or general pattern of reasonableness that can be laid down for all cases. Each case is to be judged on its own merit.
The restriction must be reasonable from the substantive as well as procedural stand-point. The court should consider NOT only the duration and extent of the restriction but also the circumstances under which, and the manner in which that imposition has been authorised.
A restriction which is imposed for securing the objects and laid down in the DPSP may be regarded as reasonable restriction.
The court must determine the reasonableness of a restriction by objective standard and not by subjective one.
- In other words, the question is NOT if the court feels the restriction to be reasonable but whether a normal reasonable man would regard the restriction to be reasonable.
It is the reasonableness of the restriction which is to be determined by the court and not the reasonableness of the law.
Mere possibility of the abuse of the power by the executive authority is not test for determining the reasonableness of restriction.
Restrictions may also amount to prohibition under certain circumstances.
Citizens
- Citizens under Article 19 means ONLY natural persons and NOT legal persons.
- Hence, a corporation or a company CANNOT claim a right under Article 19 because they are not Natural Persons.
R. C. Cooper V. Union of India (1970) [Bank Nationalisation Case]
Bennett Coleman V. Union of India (1973) [Newspapers case]
- The Court has held that though a company cannot claim right under Article 19, yet its shareholders can claim the rights guaranteed under this Article if by the State action the rights of the company as well as of the shareholders is impaired.
- The Fundamental Rights of shareholders as citizens are not lost when they associate to form a company.
Article 19(1)(a) - Freedom of Speech and Expression
- The right to Freedom of Speech and Expression includes :-
Freedom of press.
Right to listen, read and receive speech.
Right to Information.
Advertisement other than advertisement of ‘commercial nature’.
Demonstrations, but not Strike.
Freedom of silence
Right against phone tapping.
Right to express gender identity.
Secretary General, Supreme Court of India V. Subhash Chandra Agarwal (2010)
- The source of right to information does not emanate from the Right to Information Act.
- It is a right that emerges from constitutional guarantee under Article 19(1)(a) as held by the Supreme Court in a catena of decisions.
Brij Bhushan V. State of Delhi (1950 SC)
- The imposition of pre-censorship of a journal is a restriction on the liberty and the press which is an essential part of the freedom of speech and expression declared by Article 19(1)(a).
- Similarly, prohibiting newspapers from publication of its own views or the views of correspondents about the burning topic of the day is a serious encroachment on the valuable right of freedom of speech and expression.
Romesh Thappar V. State of Madras (1950 SC)
- The freedom of speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation.
- Liberty of circulation is essential to that freedom as the liberty of publications.
- Without circulation the publication would have little value.
Bennett Coleman V. Union of India (1973 SC)
- The Supreme Court held that the order fixing the maximum number of pages which a newspaper can print is violation of freedom of speech and expression.
- Freedom of press is both quantitative and qualitative.
- It lies in both Circulation and Content.
Q) What is the test for determining whether legislation infringes fundamental rights?
A) The test is to examine its ‘effect’ and not its object or subject matter.
The Court in the Bennett Coleman Case held that if the direct effect of the impugned law is to abridge a fundamental right, its object or subject-matter will be irrelevant.
Article 19(1)(c) - Freedom to form Association
Damayanti V. Union of India (1971 SC)
- The court held that the right to form an association necessarily implies that the person forming the association also has the right to continue to be associated with only those whom they voluntarily admit in the association.
- Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out, or
- Any law which takes away the membership of those who have voluntarily joined it,
- Will be violating the right to form an association.
Article 19(1)(d) - Freedom of movement
State of Uttar Pradesh V. Kaushalya (1964 SC)
- The Court held that the right of movement of prostitutes may be restricted on grounds of public health and in the interest of public morals.
Ajay Canu V. Union of India (1988 SC)
- The Court held that the rule making wearing of helmets compulsory was valid as it is made for the good of the people and imposed reasonable restrictions on the freedom of movement.
- The compulsion for putting on a helmet by the driver did not restrict or curtail the freedom of movement.
Article 19(1)(e) - Freedom of residence
Ibrahim Wazir V. State of Bombay (1954 SC)
- The appellant in this case came to India without permit or valid passport and hence was arrested and deported to Pakistan.
- The Court held that the order of removal invalid on the ground that it imposed unreasonable restrictions upon the fundamental right of a citizen to reside and settle in the country.
- The coming of a citizen to his home land even without a permit not to be so grave an offence as to justify his expulsion from his country.
Article 19(1)(g) - Freedom of Profession, Occupation, Trade or Business
Excel Wear V. Union of India (1979 SC)
- The right to carry on a business includes a right to close it at any time.
- The State cannot compel a citizen to carry on business against his will.
- But as no right is absolute, the right to close a business is also not an absolute right.
- It can be restricted, regulated or controlled by law in the interest of the public.
Sukumar Mukherjee V. State of West Bengal (1993 SC)
- The Court held that Government doctors have NO right of private practice.
- Those who join the government services are bound by the terms and conditions of service and will have no right to private practice.
Khoday Distilleries Ltd. V. State of Karnataka (1995 SC)
- A citizen has NO fundamental right to trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to the health, safety and welfare of the general public.
- The state can create monopoly in such business either in itself or in any agency created for this purpose.
Sadan Singh V. New Delhi Municipal Committee (1989 SC)
- Though Hawkers have a fundamental right to carry on the business of their choice yet they have no right to do so in a particular place.
- They cannot claim that they may be permitted to trade on every road in the city.
Vikal Coal Merchant V. Union of India (1984 SC)
- A law which gives preference to Government over the private traders in allotment of wagons for transporting coal does not amount to imposition of total ban on business of supplying coal by the private traders and imposes ONLY reasonable restrictions on their right to carry on trade under Article 19(1)(g) and hence valid.
Kailash Nath V. State of U. P. (1957 SC)
- The fundamental right of citizens to practice any profession or carry on any trade or business is not wholly free from the taxing power of the State.
- No citizen has the right to carry on his trade without paying taxes lawfully levied by the Government.
- A tax law ‘otherwise valid’ creates no unreasonable restriction.
(NOTE - The Directive Principles are also relevant to consider what are reasonable restrictions under Article 19. A restriction which promotes any objective embodied in the Directive Principles is usually considered reasonable by Courts of Law.)
Bijoy Cotton Mills V. State of Ajmer (1955 SC)
- The Supreme Court upheld the Constitutional Validity of the Minimum Wages Act, 1948.
- It stated that since it was enacted to give effect to Directive Principles of State Policy in Article 43 of the Constitution.
- It was held that the fixation of wages for labourers did NOT violate freedom of trade under Article 19(5).
Article 20. Protection in respect of conviction for offences
- The protection guaranteed in Article 20 is available to ‘citizens’ as well as ‘non-citizens’.
- It CANNOT be suspended during an emergency. (Article 359)
- It prohibits -
Retrospective criminal Legislation, commonly known as, ex post facto legislation.
Double Jeopardy or punishment for the same offence more than once.
Self Incrimination - compulsion to be a witness against himself.
- It does NOT prohibit furnishing of evidence.
- Hence, a person can be compelled to give evidence.
Ex post facto Legislation can be of 3 types:-
Which creates an offence retrospectively (backdate).
Which enhances the penalty for an offence retrospectively.
Which prescribes a different penal procedure to be invoked retrospectively.
Article 20 (1) - Protection against Ex Post Facto law
- It can be divided into 2 parts. The “ , ” in the middle separating the clause into two parts.
- The First part means that if an act is not an offence at the date of its commission, it cannot be an offence at the date subsequent to its commission.
- The Second part protects a person from a penalty greater than that which he might have been subjected to at the time of the commission of the offence.
- Ordinarily, a Legislature can make prospective as well as retrospective laws,
- But clause (1) prohibits the Legislature from making retrospective criminal laws.The protection under clause (1) cannot be claimed in case of preventive detention
- However, this clause does NOT prohibit imposition of civil liability retrospectively.
Shiv Bahadur Singh V. State of Vindhya Pradesh (1953 SC)
- The prohibition under Article 20(1) is just for conviction and sentence only and not for prosecution and trial under a retrospective law.
- So, a trial under a procedure different from what it was at the time of the commission of the offence or by a special court constituted after the commission of the offence cannot ipso facto be held unconstitutional.
Beneficial Provision
- The rule of beneficial construction requires that ex post facto law should be applied to reduce the sentence of the previous law on the same subject.
- Such a law (beneficial legislation) is NOT affected by Article 20(1).
T. Baral V. Henry An Hoe (1983)
- Accused can take advantage of a beneficial provision under ex post facto laws.
Ratanlal V. State of Punjab (1965)
- The Supreme Court held that the rule of beneficial interpretation required that ex post facto laws could be applied to reduce the punishment.
- So an ex post facto law which is beneficial to the accused is NOT prohibited by Article 20(1).
Article 20(2) - Protection against Double Jeopardy
- This clause embodies the common law rule of “nemo debit vis vexari” which means that “no man should be put twice in peril for the same offence”, which is in line with public policy.
- If he is prosecuted again for the same offence for which he has already been prosecuted, he can take complete defence of his former acquittal or conviction.
“Prosecuted and Punished”
- The protection against double punishment is given ONLY when the accused has been both ‘prosecuted’ AND ‘punished’, and is sought to be prosecuted a second time for the same offence.
- Hence, if there is no punishment for the offence as a result of the prosecution, Article 20(2) has NO application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution.
- The following essentials are required for the application of double jeopardy rule :-
The person must be accused of an ‘offence’.
The proceeding or the prosecution must have taken place before a court or judicial tribunal
The person must have been ‘prosecuted and punished’ in the previous proceeding.
The ‘offence’ must be the same for which he was prosecuted and punished in the previous proceeding.
Maqbool Husain V. State of Bombay (1953 SC)
- The Court held that the Sea Custom Authorities were not a court or judicial tribunal and the adjudication of confiscation under the Sea Customs Act did not constitute a judgment of judicial character necessary to take the plea of double jeopardy.
Note - Similarly, proceedings before departmental and administrative authorities CANNOT be a proceeding of judicial nature.
Leo Roy V. Superintendent District Jail (1958 SC)
- Where a person was prosecuted and punished under Sea Customs Act, and was later on prosecuted under the Indian Penal Code for criminal conspiracy.
- It was held that second prosecution was not barred since it was not for the same offence.
Suba Singh V. Davinder Kaur (2011 SC)
- The conviction of the accused under Section 304 IPC for the death of the deceased does not deprive the wife of the deceased to claim compensation.
- A decree of damages is not a punishment and the rule of double jeopardy has NO application.
Q) What is the difference between Article 20(2) and Section 300(1) CrPC / Section 337 BNSS?
A) Article 20(2) is limited as it does not apply to prevent a second prosecution for the same offence if a person is acquitted in the first prosecution.On the other hand, Section 300 of CrPC (Section 337 BNSS) has a wider scope and covers both previous acquittal or conviction of the same offence.
This means that if a person is acquitted or convicted of an offence and a distinct charge could be made for the same offence, he cannot be prosecuted for the same offence again.Further, it bars a second trial of the same offence against the same person, even if there was no punishment for the same offence as a result of the first prosecution.
Q) What is the difference between Issue Estoppel and Double Jeopardy?
A) The principle of Issue Estoppel means that once an issue has been conclusively determined between parties in a legal proceeding, it cannot be litigated again in a subsequent proceeding. Issue estoppel is similar to res judicata as it involves the concept of finality in legal proceedings.However, issue estoppel specifically focuses on preventing the re-litigation of those issues that have been conclusively determined in a prior proceeding.
Issue estoppel only prevents acceptance of evidence to disturb finding already recorded. It does NOT like the principle of double jeopardy prevents trial of any offence.
Hence, The rule of issue estoppel relates only to the admissibility of evidence. It would NOT bar the trial or conviction of the accused for a different or distinct offence.
Article 20(3) - Prohibition against self-incrimination
- This prohibition is based on the cardinal principle of criminal law which is “an accused must be presumed to be innocent until proven guilty”.
- It is the duty of the prosecution to prove the offence.
- The accused need not make any admission or statement against his own free will.
- A confessional statement of the accused found to be involuntary is hit by Article 20(3).
M. P. Sharma V. Satish Chandra (1954 SC)
- The Supreme Court observed that right against self-incrimination embodies the following essentials :-
It is a right pertaining to a person who is “Accused of an offence”.
It is a protection against “compulsion to be a witness”.
It is a protection against such compulsion relating to his giving evidence “against himself”.
Accused of an offence
- This right is only available to a person accused of an offence.
- A person is said to be an accused person against whom a formal accusation relating to the commission of offence has been levelled which in normal course may result in his prosecution and conviction. (Nandini Sapatpathy vs. P.L.Dani)
- It is not necessary that the actual trial or inquiry should have started before the Court.
Delhi Judicial Service Association V. State of Gujarat (1991)
- It was held that mere issue of notice or pendency of contempt proceedings does NOT attract Article 20(3) as the contemners are not “accused of an offence”.
- Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner.
Balasaheb V. State of Maharashtra (2011 SC)
- A formal accusation against the person claiming the protection must exist.
- The appellant who was not an accused in the Police case but in fact a witness whose statement was recorded under Section 161 CrPC although his name figured as an accused in the complaint filed later on in the same case, was held NOT to be entitled to a blanket protection under Article 20(3).
To be a witness
- The court interpreted this expression “to be a witness” very widely so as to include oral, documentary and testimonial evidence.
- Hence, the compulsory taking of finger impressions or specimen handwriting of an accused would come within the mischief of Article 20(3).
State of Bombay V. Kathi Kalu Oghad (1961 SC)
- The Supreme Court held that the interpretation given in Sharma’s case was too broad and required a qualification.
- Self-incrimination can only mean conveying information based upon personal knowledge of the person giving information and cannot include merely the mechanical process of producing documents in court which may throw light on any point in controversy, but which do not contain any statement of the accused based on his personal knowledge.
- What is forbidden under Article 20(3) is to compel a person to say something from his personal knowledge relating to the charge against him.
Compulsion to give evidence Against himself
- The protection under Article 20(3) is available only against the compulsion of the accused to give evidence against himself.
- But, he may voluntarily waive this privilege and give evidence against himself.
- Compulsion means duress which includes threatening, beating or imprisoning the wife, parent, or child of a person.
- Thus, where the accused makes a confession without any inducement, threat or promise Article 20(3) does NOT apply.
Nandini Satpathy V. P. L. Dani (1977 SC)
- The Court held that the prohibitive scope of Article 20(3) goes back to the stage of police interrogation and not commencing in Court only.
- It extends to, and protects the accused in regard to other offences, pending or imminent, which may deter him from voluntary disclosure.
- Compulsion includes both physical as well as mental torture.
Yusufali V. State of Maharashtra (1968 SC)
- A tape recorded statement made by the accused though made without knowledge of the accused but without force or oppression was held to be admissible in evidence.
Selvi V. State of Karnataka (2010 SC)
- The Court held that scientific tests like narco analysis, polygraphs and brain finger printing tests are testimonial compulsions and are prohibited by Article 20(3) of the Constitution.
- The protection of self incrimination is available at the stage of investigation also and it is also available to witnesses.
- The Court laid down the following guidelines for these tests:-
No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such a test.
If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implications of such a test should be explained to him by the police and his lawyer.
The consent should be recorded by a Judicial Magistrate.
During the hearing before the Magistrate, the person alleged to have agreed should be fully represented by a lawyer.
At the hearing the person in question should also be told in clear terms that the statement that if made shall not be a confidential statement to the Magistrate but will have the statement made to the police.
The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
The actual recording of the Lie detector shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.
A full medical and factual narration of the manner of the information received must be taken on record.
Article 21. Protection of Life and Personal Liberty
- The right guaranteed in Article 21 is available to ‘citizens’ as well as ‘non-citizens’.
- Article 21 CANNOT be suspended even during an emergency. (Article 359)
- Life means dignified life. It implies something more than mere animal existence. It is to be interpreted in a broader sense.
- If a person has basic necessities required to live life and has all those means and ways by which life can be enjoyed, then a person lives according to Article 21.
A. K. Gopalan V. Union of India (1950 SC)
- The Supreme Court held that ‘personal liberty’ in Article 21 means nothing more than the liberty of the physical body, that is, freedom from arrest and detention without the authority of law.
- The word ‘liberty’ is a very comprehensive word and if interpreted it is capable of including the rights mentioned in Article 19.
- By qualifying the word ‘liberty’ the Court said, the import of the word ‘personal liberty’ is narrowed down.
- Article 21 should be held as dealing with freedoms not given in Article 19.
- Articles 19 and 21 deal with different aspects of ‘liberty’.
- Article 21 is guarantee against deprivation (total loss) of personal liberty
- Article 19 affords protection against unreasonable restrictions (partial control).
- The Supreme Court interpreted the term ‘law’ as “state made law” and rejected the plea that by the term ‘law’ in Article 21 meant NOT the state made law but jus natural or the principles of natural justice.
Kharak Singh V. State of U.P. (1963 SC)
- The ‘personal liberty’ is not only limited to bodily restraint or confinement to prisons only, but is used as a compendious term including within itself all the varieties of rights which go to make up the personal liberty of a man other than those dealt within 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.
- In Article 21 the word ‘liberty’ is qualified by a word ‘personal’ but this qualification is employed in order to avoid overlapping between those incidents of liberty which are mentioned in Article 19.
- The expression ‘life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence.
Maneka Gandhi V. Union of India (1978 SC)
- The Supreme Court overruled Gopalan’s case and widened the scope of the words ‘personal liberty’ considerably.
- The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.
- The attempt of the Court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process of judicial construction.
- The Supreme Court made it clear that a procedure established by the legislature must also be reasonable, just and fair and not an arbitrary one.
- In order that the procedure was just, fair and reasonable, it should conform to the principles of natural justice.
- Law means having elements of the Principle of Natural Justice.
- The court also ruled that “life” under Article 21 means more than a mere “animal existence”.
- It would include the right to live with human dignity and all other aspects which made life “meaningful, complete and worth living”.
- This case established a Golden triangle between Articles 14, 19 and 21.
- Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty to citizens only against the arbitrary action of the executive, and not from legislative action.
- The State could interfere with the liberty of citizens if it could support its action by a valid law.
- But, after Maneka Gandhi’s decision Article 21 now protects the right to life and personal liberty of citizens not only from the Executive action but from the legislative action also.
- A person can be deprive of his life and personal liberty if two conditions are complied with:-
There must be a law, and
There must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.
K. S. Puttaswamy (Retd.) V. Union of India (2017 SC)
- Unlike Article 19(1)(a), Article 21 does NOT confer freedom of action.
- The life and personal liberty of an individual exist per se because the individual exists.
- Article 21 does NOT create the right to life and personal liberty, it simply recognises, declares, protects the life and personal liberty of an individual.
- Privacy ensures that a human being can lead a life of dignity by securing the inner recess of the human personality from unwanted intrusion.
- All matters pertaining to an individual do not qualify as being inherent part of right to privacy.
- Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21.
- Privacy is both positive and negative.
- As a negative concept, it restrain the State from committing an intrusion upon life and personal liberty of citizens.
- As a positive concept, it imposes an obligation on the State to take all necessary measures to protect the privacy of an individual.
Difference between Due Process of Law and Procedure Established by Law
Aspect | Procedure Established by Law | Due Process of Law |
Origin | Derived from the British legal system. | Originated in the American legal system, enshrined in the U.S. Constitution. |
Constitutional Reference (India) | Article 21 of the Indian Constitution: "No person shall be deprived of his life or personal liberty except according to procedure established by law." | The concept of "due process" is not explicitly stated but has been read into Article 21 by the judiciary. |
Concept | Ensures actions are taken according to the formal legal procedures prescribed by law. | Ensures laws and actions are just, fair, and reasonable, considering both procedural and substantial law. |
Focus | Emphasizes strict adherence to procedural formalities specified in the law. | Emphasizes both procedural fairness and the substantive justice of laws. |
Judicial Review Scope | Courts limit their review to whether the procedure prescribed by law has been correctly followed. | Courts have the authority to assess not only whether the proper procedure was followed but also whether the law itself is fair, just and reasonable. |
Scope of Protection | Narrower scopes - Generally tend to ensure that only the laid down legal procedure is followed, irrespective of considering the fairness in procedure itself. | On the other hand, there are broader scopes here. This would include individual protection against unjust laws and procedures towards overall fairness and justice. |
Impact on Fundamental Rights | Can uphold laws that may be arbitrary, as long as the correct procedure is followed. | Protects individuals from arbitrary laws, demanding that both the law and the procedures are fair, reasonable, and just. |
Interpretation in Indian Context | Initially interpreted narrowly (A.K. Gopalan case, 1950) to mean only procedural adherence. Over time, the Indian judiciary has expanded its interpretation to include elements of substantive due process (Maneka Gandhi case, 1978). | Recognized within the framework of Article 21 of the Indian Constitution post-Maneka Gandhi case, where the Supreme Court ruled that the procedure must be "right, just, and fair" and not arbitrary, fanciful, or oppressive. |
Implications | May lead to the upholding of laws that are procedurally correct but may be inherently unjust or oppressive. | Ensures that laws must meet standards of fairness and reasonableness, providing greater protection to individual rights and liberties. |
Rights included in Article 21
- Post Maneka Gandhi case, the Court has in subsequent judicial interpretations has broadened the scope of Article 21 to include within it a number of rights, namely-
Right to livelihood [Olga Tellis V. Bombay Municipal Corporation (1986 SC)]
Right to shelter [Chameli Singh V. State of U.P. (1996 SC)]
Right to privacy [R. Rajagopal V. State of T.N. (1994 SC)(Puttuswamy Judgement)]
Right of women to make reproductive choice or refuse to participate in sexual act [Suchitra Srivastava V. Chandigarh Administration (2010 SC)]
Right to health and medical assistance [Parmananda Katara V. Union of India (1989 SC)]
Right to sleep [Ramlila Maidan V. Home Secretary, Union of India (2012 SC)]
Right to life does NOT include right to die [Gian Kaur V. State of Punjab (1996 SC)
Right to get pollution free water and air.
Right against noise pollution [ Re Noise Pollution (2005 SC)]
Right to education [Mohini Jain V. State of Karnataka (1992 SC)]
Right to free legal aid [ M. H. Hoskote V. State of Maharashtra (1978 SC)]
Right against solitary confinement [Sunil Batra V. Delhi Administration (1978 SC)]
Right against handcuffing [Prem Shankar V. Delhi Administration (1980 SC)]
Right against inhuman treatment by the police [Kishore Singh V. State of Rajasthan (1981 SC)]
Right to speedy trial [Hussainara Khatoon V. Home Secretary, State of Bihar (1979 SC)]
Right against public smoking [Murli S. Deora V. Union of India (2002 SC)]
Right against delayed execution [T. V. Vaitheeswaran V. State of Tamil Nadu (1981 SC)]
Right to choose life partner [Shakti Vahini V. Union of India (2018 SC)]
Right to Travel abroad [Satwant Singh V. Assistant Passport Officer, New Delhi (1967 SC); & (Maneka Gandhi V. Union of India (1978 SC)]
The right to a healthy environment and the right to be free from the adverse effects of climate change (M.K. Rajnikanth vs Union Of India 2024,SC)
Article 21A. Right to Education
- Inserted by 86th Constitutional Amendment Act, 2002
- It made education for all children in the age group of 6 to 14 years a Fundamental Right.
- Imposing a duty on the State to provide free and compulsory education to all children in the age group.
- The Parliament to give effect to the 86th Amendment Act, passed the Right of Children to Compulsory Education Act, 2009
Mohini Jain V. State of Karnataka (1992 SC)
- The Court held the right to education at all levels a Fundamental Right under Article 21 and charging a capitation fee for admission was illegal and amounted to denial of citizens' right to education.
- Education in India had never been a commodity.
- However, the Court did not say up to what age a citizen has the right to education guaranteed by the Constitution.
Unni Krishnan V. State of A. P. (1993 SC)
- The Court specifically held that the right to education for the children of the age of 6 to 14 years a Fundamental Right.
- The Court overruled the decision of Mohini Jain on the point of right to education at all levels.
- The Court held that after 14 years of age of the children, the obligation of the State depends on the economic capacity and development.
Pramati Educational Cultural Trust V. Union of India (2014 SC)
- Article 21-A of the Constitution does NOT alter the basic structure or framework of the Constitution and is constitutionally valid.
Article 22. Protection against arrest and detention in certain cases
- Article 22 prescribes the minimum procedural requirements that must be included in any law enacted by the Legislature in accordance with which a person may be deprived of his life and personal liberty.
- The first 2 clauses deal with detention under ordinary laws and the remaining clauses deal with detention under preventive detention laws.
A. K. Gopalan V. State of Madras (1950 SC)
- It was held that the validity of the preventive detention law was NOT to be tested in the light of the reasonableness of the restrictions imposed thereby on the freedom of movement, nor on the ground that his right to personal liberty was infringed under Article 21 otherwise than according to procedure established by law.
Maneka Gandhi V. Union of India (1978 SC)
- It was held that a law relating to preventive detention must now satisfy not only the requirements of Article 22 but also the requirements of Article 21 of the Constitution.
- In other words, the procedure prescribed under the preventive detention law must be reasonable, just and fair under Articles 14, 19 and 21 of the Constitution.
Clause (1) and (2) provides to every person arrested/detained by police, the following rights:-
Right to be produced before a magistrate within 24 hours of his arrest.
Right to consult and to be defended by a counsel of his own choice.
Right to be informed of the grounds of his detention/arrest as soon as possible.
Right not to be detained beyond 24 hours without the order of a Magistrate.
- These rights are available to both citizens and non-citizens.
- The expression ‘arrest and detention’ in clauses (1) and (2) was held not to apply to a person arrested under a warrant issued by the Court on a criminal or quasi-criminal complaint or under security proceedings.
- The reason is that a person who is arrested under a warrant of a court is informed of the grounds of his arrest.
Clause (3) - Clause (1) and (2) is NOT available to :-
An enemy alien, or
A person detained or arrested under preventive detention laws.
- An enemy alien may however seek the protection under Clauses (4) and (5) of Article 22 if arrested under a law of preventive detention, but subject to the law passed by the Parliament.
Preventive Detention
- Preventive detention is not to punish a person for having done something but to intercept him before he does it and to prevent him from doing it.
- The Indian Constitution has recognised the necessity of preventive detention laws.
- In addition to this recognition, it has also provided safeguards to prevent its misuse.
Clause (4) - No person can be detained under preventive detention law beyond 3 months without the opinion of the advisory board.
- By 44th Amendment Act, 1978 this period of 3 months was reduced to 2 months, but it was NEVER ENFORCED.
- Advisory board shall consist of :-
Persons who are, or | |
Have been, or | Judges of the High Court |
Are qualified to be appointed as |
- Qualification to be a High Court judge is given under Article 217 of the Constitution of India.
- The advisory board has to report before the expiration of 3 months whether there is “sufficient cause” for a person's detention for more than 3 months.
- If the advisory board reports that the detention is not justified, the detained person must be released.
- If it reports that the detention is justified the detaining authority will determine the period of detention.
- The advisory board is bound to submit its report before the expiration of 3 months.
- Failure to do so would render the detention illegal.
- Parliament under Article 22(7)(b) can prescribe by law the detention of any person for a ‘maximum period’ AND there cannot be detention of a person beyond such maximum period.
Abdul Latif Abdul Wahab V. B. K. Jha (1987 SC)
- The Court held that the report of the Advisory board under Article 22(4) must be obtained within 3 months from the date of detention.
- This requirement CANNOT be evaded by making successive orders for detention before expiry of 3 months of the earlier order of detention.
Clause (5) - When any person is detained in pursuance of an order made under any law providing for preventive detention - grounds of detention are to be served on a detent after his detention.
Kubic Darusz V. Union of India (1990 SC)
- If the grounds are only verbally explained to the detainee and nothing in writing is left with him in a language which he understands then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.
K. M. Abdulla V. Union of India (1991 SC)
- There is no constitutional mandate under Article 22(5) to consider the representation made by the detainee before confirmation of detention order and in absence of any statutory provision requiring consideration of representation prior to confirmation for detention order, it can be considered after the confirmation of detention order.
Jaynarain Sukul V. West Bengal (1979 SC)
- The Court held that the language of Article 22(5) makes it obligatory for the State to consider the representation of the detainee as soon as it is received by it.
- The opinion of the Advisory Board is no substitute for the consideration of the representation by the Government.
Clause (6) - The authority shall NOT disclose facts which the authority considers to be against the public interest.
- This clause is an exception to Clause (5).
Clause (7) - Parliament may by law prescribe -
Circumstances under which - a person may be detained for more than 3 months without the opinion of an advisory board.
Maximum period for which any person may be detained under any law for preventive detention.
Procedure to be followed by an advisory board in an inquiry under Article 22(4)(a).
Frequently Asked Questions
Q) Who can claim the rights under Article 19?
A) ONLY Indian citizens can claim these rights; they are NOT available to companies or foreign nationals.
Q) What is meant by “procedure established by law” under Article 21?
A) It means NO person can be deprived of life or liberty except through a legal procedure that is just, fair, and reasonable, as was established in the case of Maneka Gandhi v. Union of India (1978).
Q) What is meant by the doctrine of ‘reasonable restrictions’?
A) It means restrictions must be imposed by law, serve a legitimate purpose (like public order or morality), and must be proportionate and non-arbitrary.
Q) What is the difference between ‘preventive detention’ and ‘punitive detention’?
A) Preventive detention prevents a person from committing a future act, while punitive detention punishes a person for an act already committed.
Q) What are the basic rights of an arrested person under Article 22?
A) An arrested person has the right to:
Be informed of the reasons for arrest,
Consult and be defended by a lawyer of their choice, and
Be produced before a magistrate within 24 hours of arrest.
The Right to Freedom shapes the core of India’s democracy.
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