ARTICLE 20 - PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES
1. No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
2. No person shall be prosecuted and punished for the same offence more than once. (Double jeopardy)
3. No person accused of any offence shall be compelled to be a witness against himself.
PROTECTION OF LIFE AND PERSONAL LIBERTY (ARTICLE 21)
Article 21 of the Constitution says that “No person shall de deprived of his life or personal liberty except according to procedure established by law.”
Prior to Maneka Gandhi’s decision (AIR 1978 SC 597), 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 the Maneka Gandhi’s decision (AIR 1978 SC 597) Article 21 now protects the right of life and personal liberty of citizen not only from the Executive action but from the Legislative action also.
A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable. (Maneka Gandhi v. Union of India, AIR 1978 SC 597)
The Fifth Amendment of the American Constitution also provided that ‘no person shall be deprived of his life or personal liberty, except according to procedure established by law.’ The Fourteenth Amendment imposes a similar limitation on the State authorities.
86TH AMENDMENT ACT, 2002 RIGHT TO EDUCATION A FUNDAMENTAL RIGHT. —
This amendment has added a new Art. 21A, after Art. 21 of the Constitution which has made the right to education a fundamental right. It provides— “The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine.”
The right guaranteed in Article 21 is available to ‘citizens’ as well as ‘non-citizens.’
Personal liberty: Meaning and Scope
Prior to Maneka Gandhi’s Decision. —
The meaning of the words “personal liberty” came up for consideration of the Supreme Court for the first time in A. K. Gopalan v. Union of India, (1950 SC 27.).
In that case the petitioner, A.K. Gopalan, a communist was detained under the Preventive Detention Act, 1950.
The petitioner challenged the validity of his detention under the Act on the ground, that it was violative of his right to freedom of movement under Art. 19 (1) (d) which is the very essence of personal liberty guaranteed by Art. 21 of the Constitution.
He argued that the words “personal liberty’ include the freedom of movement also and therefore the Preventive
Detection Act, 1950 must also satisfy the requirement of Art. 19 (5).
In other words, the restrictions imposed by the detention law on the freedom of movement must be reasonable under Art. 19 (5) of the Constitution.
It was argued that Art. 19(1) and Art. 21 should be read together because Art. 19(1) dealt with substantive rights and Art. 21 dealt with procedural rights.
It was also said that reference in Art. 21 to “procedure established by law” meant “due process of law” of the American Constitution which includes the principles of natural justice and since the impugned law does not satisfy the requirement of due process it is invalid.
jRejecting both the contentions, the Supreme Court’ by the majority held that the ‘personal liberty’ in Art. 21 means nothing more than the “liberty of the physical body,” that is, freedom from arrest and detention without the authority of law.
This was the definition of the phrase ‘personal liberty’ given by Prof. Dicey, according to whom personal liberty means freedom from physical restraint and coercion which is not authorised by law.
The word ‘liberty’ is a very comprehensive word and if interpreted it is capable of including the rights mentioned- in Art. 19. But by qualifying the word ‘liberty’ the Court said, the import of the word ‘personal liberty’ is narrowed down to the meaning given in English law to the expression ‘liberty of the person’.
The majority took the view that Article 19 and 21 deal with different aspects of ‘liberty’.
Art. 21 is guarantee against deprivation (total loss) of personal liberty while Art. 19 affords protection against unreasonable restrictions (which is only partial control) on the right of movement.
Freedom guaranteed by Art. 19 can be enjoyed by a citizen only when he is a freeman and not if his personal liberty is deprived under a valid law.
In Gopalan the Supreme Court interpreted the ‘law’ as “state made law” and rejected the plea that by the term ‘law’ in Art. 21 meant not the state made law but jus naturale or the principles of natural justice.
Fazal Ali, J., however, in his dissenting judgment held that the Act was liable to be challenged as violating the provisions of Art. 19. He gave a wide and comprehensive meaning to the words ‘personal liberty’ as consisting of freedom of movement and locomotion. Therefore, any law which deprives a person of his personal liberty must satisfy the requirements of Arts. 19 and 21 both.
But this restrictive interpretation of the expression ‘personal liberty’ in Gopalan ‘s case has not been followed by the Supreme Court in its later decisions.
IN KHARAK SINGH’S CASE (AIR 1963 SC 1295.)
In Kharak Singh’s case (AIR 1963 SC 1295.) it was held that ‘personal liberty’ was not only limited to bodily restraint or confinement to prisons only, but was 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 Kharak Singh v. State of U.P., it was held that the expression ‘life’ was not limited to bodily restraint or confinement to prison only but something more than mere animal existence.
In that case the petitioner, Kharak Singh, had been charged in a dacoity case but was released as there was no evidence against him.
Under the U.P: Police Regulations, the Police opened a history-sheet for him and he was kept under police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and verification of his movements and activities.
‘Domiciliary visits’ mean visits by the police in the night to the private house for the purpose of making sure that the suspect is staying home or whether he has gone out.
The Supreme Court held that the domiciliary visits of the policemen were an invasion on the petitioner’s personal liberty. By the term ‘life’ as used here something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limits and faculties by which life is enjoyed.
It is true that 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.
It is true that 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.
An unauthorised intrusion into a person’s home and the disturbance caused to him is the violation of the personal liberty of the individual. Hence the Police Regulation authorising domiciliary visits was plainly violative of Article 21 as there was no law on which it could be justified, and it must be struck down as unconstitutional.
