ARTICLE 21 OF THE CONSTITUTION - PART 2

ARTICLE 21 OF THE CONSTITUTION - PART 2

PERSONAL LIBERTY

The Liberty of the person is one of the oldest concepts to be protected by national courts. As long as 1215, the English Magna Carta provided that, No freeman shall be taken or imprisoned… but… by the law of the land. 

The meaning of the term ‘personal liberty’ was considered by the Supreme Court in the Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary visits and secret picketing.

Right to Privacy - In Kharak Singh v. State of U.P. A seven-judge bench held that: “the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this Court in Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held that “an unauthorized intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common-law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilization”

Govind v. State of Madhya Pradesh the court held that: “It cannot be said that surveillance by domiciliary visit would always be an unreasonable restriction upon the right of privacy. It is only persons who are suspected to be habitual criminals and those who are determined to lead a criminal life that is subjected to surveillance.”

Right to go abroadIn Satwant Singh Sawhney v. Assistant Passport Officer, New Delhi, the Supreme Court has included Right to travel abroad contained in by the expression “personal liberty” within the meaning of Article 21. In Maneka Gandhi v. Union of India, the validity of Sec. 10(3)(c) of the passport Act 1967, which empowered the government to impound the passport of a person, in the interest of the general public was challenged before the seven-judge Bench of the Supreme Court.

Right Against Illegal DetentionIn the case of D.K. Basu v. State of West Bengal[, the Supreme Court laid down detailed guidelines to be followed by the central and state investigating agencies in all cases of arrest and detention till legal provisions are made in that behalf as preventive measures and held that any form of torture or cruel inhuman or degrading treatment, whether it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21. 

Right To Free Legal Aid & Right To AppealIn M.H. Hoskot v. State of Maharashtra, the Supreme Court said while holding free legal aid as an integral part of the fair procedure the Court explained that “ the two important ingredients of the right of appeal are; firstly, service of a copy of a judgment to the prisoner in time to enable him to file an appeal and secondly, provision of free legal service to the prisoner who is indigent or otherwise disabled from securing legal assistance. This right to free legal aid is the duty of the government and is an implicit aspect of Article 21 in ensuring fairness and reasonableness; this cannot be termed as government charity.

Right to Speedy TrialIn Hussainara Khatoon v. Home Secretary, State of Bihar, it was brought to the notice of the Supreme Court that an alarming number of men, women, and children were kept in prisons for years awaiting trial in courts of law. The Court took a serious note of the situation and observed that it was carrying a shame on the judicial system that permitted the incarceration of men and women for such long periods of time without trials.

The Court held that detention of under-trial prisoners, in jail for a period longer than what they would have been sentenced if convicted, was illegal as being in violation of Article 21. The Court, thus, ordered the release from jail of all those under-trial prisoners, who had been in jail for a longer period than what they could have been sentenced had they been convicted. 

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