Article 21: The Omnibus Article

Broadly speaking, the doctrine of separation of powers has not been expressly provided for in the Constitution of India, the Suprema Lex, but less to say it can be made out from the scheme of the Constitution.

Doctrine of Separation of Powers asserts the division of powers between the three wings of the state: the legislature, the executive and the judiciary.

If the work of the legislature is to frame laws and the work of the executive is to implement laws then the work of judiciary is to interpret laws. The Supreme Court in all its magnificence is the custodian of the Constitution.

There were several occasions when there was locking of the horns when question was to be decided in regards—whether judiciary comes under the ‘meaning of state’ so far as article 12 of the constitution is concerned, this question was finally settled with ruling in the case of Prem Chand Garg v. Excise Commissioner, where by it was held that judiciary is the third wing of the state howsoever functionally independent, with no deterrence to judicial activism which it enthrals.

Occasions have been there when the decisions rendered by the apex court had been put in spotlight either to appreciate its spirit of judicial activism or to criticise it for its judicial over-reach.

No legal provision has attracted more controversy than Article 21 of the constitution, which provides for ‘right to life and personal liberty’—the article on pen and paper &in black and white states:  ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’

It is the judicial interpretation and judicial activism that has given enormous dimensions to this article making it an omnibus article.

One of the first time when the efficacy of this article was explored beyond any reach and bound was in case of ‘Chairman, Railway Board v. Chandrima Das’, where by the apex court went on record to state that even though article 21 is in scheme of the fundamental rights garnered by the constitution and these rights are available to citizens only, article 21 is a mighty exception as it is applicable even to foreigners. It is important to make a distinction over here between a citizen and a non-citizen, as it is a question devoid of any doubt that Article 14 of the constitution is applicable even to non-citizens such as a ‘company’ (Chiranjit Lal Chaudary v. UOI), what to say of foreigners- Article 21 limits itself to citizens and so far as non-citizens are concerned to foreigners, not to a company- whether foreign or indigenous.

Fundamental rights enshrined in part III of the Constitution form the spirit of the Suprema Lex, protection to the same is offered by article 32 and 226, the writ jurisdiction of the Supreme Court and the High Court respectively. Here so far as article 21 is concerned by way of judicial interpretation and activism a new branch of rights have aroused over the decade—reason for this is that so far as the scheme of Indian Constitution is concerned  judicial decisions so rendered by the Supreme Court have the force of being the ‘law of the land’.

A set of exhaustive rights that article 21 in matter and in spirit is capable of offering is as follows:

Serial No. Rights offered under Article 21. Case law in which the right got recognised.
1. Right to food People’s Union for Civil Liberties v. UOI
2. Right to shelter Chameli Singh v. State of U.P.
3. Right to livelihood Olega Tellis v. Bombay Municipal Corporation
4. Right to education Mohini Jain v. State of Karnataka; Unni Krishnan v. State of A.P.
5. Right to clean environment M.C.Mehta  v. UOI
6. Right to privacy Govind v. State of M.P.
7. Right to marriage Lata Singh v. State of U.P.
8. Right to travel abroad Maneka Gandhi v. UOI
9. Right to live with human dignity Maneka Gandhi v. UOI
10. Right against bondage Bandhu Mukti Morcha v. UOI
11. Right to emergency medical aid Parmanand Katara v. UOI
12. Right, not to be driven out of a state NHRC v. State of Arunachal Pradesh


The rights so mentioned above are regal in sense and spirit. Apart from these, this article empowered the apex court to nomenclaturefew other rights by way of judicial interpretation. These are as follows:

Right to speedy trial (Sheela Barse v. UOI)

Right against prison torture and custodial death (Sunil Batra v. Delhi Administration)

Right to compensation for illegal – unlawful detention (Rudal Shah v. State of Bihar)

Right against handcuffing (Prem Shankar Shukla v. Delhi Administration)

Right against bar fetters (Charles Sobhraj v. Suptd. Central Jail)

Right against solitary confinement (Sunil Batra v. Delhi Administration)

It is very necessary to note that in a democracy no right is absolute. All rights are subject to reasonable restrictions of: morality, health, public order, state security, public safety & public policy.

 Justice Krishna Iyer while speaking for majority in the case of Sunil Batra v. Delhi Administration made it constitutionally clear that when a person gets arrested, he steps into the prison cell with his fundamental rights intact and not in devoid of them, he also made it amply clear that Article 21 is to be interpreted in the widest possible sense because fundamental rights form the spirit of the Constitution and Article 14, 19 and 21 are the spirit of the fundamental rights- over and onto which all other fundamental rights rest.


Is right to life inclusive of right to die? – This question was answered in great detail in case of Gian Kaur v. State of Punjab, here it was held that word ‘life’ is to be read in consonance with word ‘dignity’ so far as article 21 is concerned, but right to life in no stretch on imagination shall include right to die. ‘Right to life’ means‘right to life with human dignity’ and not mere animal existence, but it shall not include right to end life even under medical supervision by way of administration of lethal drugs or otherwise. Right to die shall not be available to anyone even though the claimant of this right is suffering acute pain and agony of all sorts, incapable of taking slightest care of himself and is living on ‘life support system’, this was the majority judgement in this case.

A legal breakthrough came about with Aruna Shanbaug case where by the apex court for the first time offered legality to the concept of euthanasia or mercy killing in some form (with conditions attached to it). A person in a persistent vegetative state (PVC), deriving his existence from life support system can apply for euthanasia, but here also his death shall not be occasioned by administration of lethal injection or otherwise but by merely removing the life support system from which he (patient) draws his existence.

Hence forth it shall not be wrong to say that with sociological and psychological development of the society, Article 21 is witnessing tremendous development—truly it is a welfare piece of legislation.

 Article 21 and Sec. 377, IPC:

It was in July 2009 that a judgement of Delhi High Court gave green signal to consensual sexual intercourse between same sex adults. It was celebration time for gay rights activists generally and for NAZ foundation in particular, but the judgement gathered a lot of fume and criticism. Judicial interpretation of Article 21 formed the crux of the judgement. In no time an appeal to the Supreme Court was filed against the decision rendered by the Delhi High Court. The case is still in pending in the apex court, observations made by the SC and articles published informing the same signal that its time for sec.377, IPC to go.

As a three judge bench decision of the SC (comprising of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan) offered legality to live in relationships and pre-marital sex, late in March 2010, stating that Article 21 is not only a welfare piece of legislation but also a progressive piece of legislation, may be the same wisdom needs to be applied to settle scores between the ongoing dispute between article 21 and sec.377, IPC.

 Article 21 and the Death Penalty:

Sec.354 (3) of Cr.P.C, 1973 states that death penalty can be given only in rarest of rare cases; whereby the facts and circumstances of the case are so grave that they intrinsically shock the conscience of the court. Also, this provision provides that– the bench heading the particular case needs to give ‘reasons’ for their decision in case the punishment rendered is life imprisonment and ‘special reasons’ in case the punishment rendered is death penalty.

In case of Bishnu Deo Shaw v. State of West Bengal, it was held that ‘life imprisonment is the rule and death penalty is an exception’– also that death penalty is ultra vires the constitutional mandate- Article 21.

But, there have been cases where by death penalty had been upheld as a matter to meet the ends of justice, cases ranging from Bachan Singh v. State of Punjab to Machhi Singh v. State of Punjab and Dhananjoy Chatterjee v. State of West Bengal.

The ‘abolitionist’ argue that- crime breeds crime and murder breeds murder, murder and capital punishment are not opposites that cancel out each other but are of same kind.

The retentionist argue that all fundamental rights are subject to reasonable restrictions of public order, morality, health, public safety and state security and Article 21 is no exception.

So far as the criminal jurisprudencein regards to‘theories of punishment’ is concerned the trend has been revolutionary in nature- from retribution and deterrent theories of punishment to preventive, reformatory & rehabilitative theory of punishment.

Death penalty in India is given in the following cases:

  1. An act of treason or waging war against Government of India—sec.121, IPC; abetment of mutiny—sec.132, IPC.

     2.Perjury resulting in conviction & death of an innocent person—sec.194, IPC.

     3.Murder—sec.302 & 303, IPC.

     4.Abetment of suicide of a minor, an insane person or intoxicated person—sec.305, IPC.

      5. Attempted murder by a life convict (a person undergoing life imprisonment)—sec.307, IPC.

       6.Dacoity with murder—sec.396, IPC.

        7.Kidnapping for ransom—sec.364-A, IPC.


Much has been said by the abolitionists against the death penalty and much by the retentionists in favour of death penalty, the future in regards to abolition or retention of death penalty lies in the hands of society backed by social morality and psychology.

But, the truth of the matter is that India is still in transition phase– redefining its basis of morality and ethics, breaking away from old customs, usages and practises that is dead locking its socio-economic & political growth. India is witnessing high degree of legal development but at the same time crime rate in India continues to be high.

India leads the world with the most murders, 32,719 murders per year, followed by Russia with about 28,904 murders per year. (Source: Raman Sunil; ‘India tops list of murder numbers’; BBC News- June 2008)

There are nearly 17 dowry deaths in India every day; rape every 47 minutes; women-kidnapping and abduction every 44minutes; crime against fair sex every 6 minutes. (Source: Female criminality and victimity in India, 2005- S.S.Srivastava)

Facts on record indicate capital punishment needs to be retained, so far as ethicality of death penalty in regards to Article 21 is concerned- sec.354(3) of C.R.P.C., 1973 in matter and in spirit is enough to take care of that, as words used in the section are farsighted and far-reaching.

 Article 21 and the narco-analysis test:

Article 20 speaks of three doctrines in particular: doctrine of ex post facto law i.e. no one can be punished for law that is not time being in force & no one can be given punishment more than the statutory maximum; doctrine of self-incrimination i.e. no one can be forced to be a witness against himself & doctrine of double jeopardy i.e. no one can be punished twice for the same crime or misdemeanour.

It was in the case of Selvi v. State of Karnataka, 2010, in which SC for ever over turned the fortune of country’s expert agencies specialised in conducting narco-analysis test, brain mapping test & polygraph test. Relying on the language used in Article 20(3) the apex court said that conducting such tests is violative of the citizens ‘right against self-incrimination’. The apex court went on record to further more declare narco-analysis test violative of Article 21.

This decision of the SC attracted a lot of criticism on the following grounds:

  1. A test such as the narco-analysis test, brain mapping & polygraph test are conducted under medical supervision under a medical expert and hence is within the precincts of sec.45 of the Indian Evidence Act,1872.


     2.Narco-analysis test is somewhat a full proof measure because first narco-analysis test is conducted and then there by its results are checked and scrutinised by way of conducting lie detector test, polygraph test and brain mapping test.


    3.Where the world is moving scientifically forward to decide upon the evidential permissibility of PLR tests (past life regression analysis), declaring that lie detector test or brain mapping test is not a permissible piece of evidence is a step backwards.

Point 1 & 2 are very much convincing but not point 3. Well however the apex court did not answer any of these questions. Attracting article 21 to the following case was also seen with convincing eyes.

Conclusion: Article 21 saga is endless and doubtless to say that article 21 is a welfare piece of legislation; its extent is time and again redefined and re-extended. No fundamental right was ever interpreted with so much wisdom and acuteness as of article 21. Judicial activism and fair judicial interpretation of legal provisions is the key to public welfare in all lines of action, this is what article 21 saga is an example of- alllegal and judicial wisdom must be summarised in the following words ‘Salus populi est suprema lex’, the spirit of pro bono publico.

Personal Liberty and Grant of Anticipatory Bail

Suresh C. Gupta

Article 21 of the Constitution guarantees to a person security of life and personal liberty, and according to the same, no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. This article has been considered to be the soul and heart of the Constitution, since all other fundamental and legal rights available to an individual become meaningless if he is deprived of his right to life and personal liberty. In Maneka Gandhi’s case, (1978) 1 SCC 248, the Supreme Court has held that in order to meet the challenges of Article 21 of the Constitution, the procedure established by law must be fair just and reasonable.

Section 438 of the Code of Criminal Procedure provides for grant of anticipatory bail to a person who apprehends, arrest at the hands of the police. The above provision in this regard, to grant of anticipatory bail, was introduced in the Cr.PC, on the recommendation of the Law Commission of India in its 41st report dated 20.04.1969.

Sub-section 1 of Section 438 of Cr.PC., as it originally stood, read as under:-

“(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the events of such arrest, he shall be released on bail.”

The above provision, was however, amended in 2005 and the amended Sub-Section-1 of Section 438 of Cr.P.C. reads as under:-

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the high court or the court of session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:-

i) the nature and gravity of the accusation;

ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

iii) the possibility of the applicant to flee from justice; and

iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section has rejected the application for grant of anticipatory bail’ it shall be open to an officer in – charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

Scope, power and jurisdiction to grant anticipatory bail by the High Court or the Court of Sessions was initially considered by a Constitution Bench of the Supreme Court in the celebrated case of “GURBAKSH SINGH SIBBYA VERSUS STATE OF PUNJAB, (1980) 2 SCC 565.

In the above case of Gurbaksh Singh the Supreme Court inter-alia held and observed as follows:

“We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restriction on the scope of section 438, especially when no such restriction have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a constitutional challenge by reading words in it which are not to be found therein.”

More recently in the case of JOGINDER KUMAR VERSUS STATE OF U.P.&ORS., (1994) 4 SCC 260, Supreme Court, showing utmost concern in this regard, i.e. grant of anticipatory bail, inter-alia quoted the contents of 3rd Report of the Police Commission which read as:

“———An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:-

i) the case involved a grave offence like murdered, dacoity, robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victim.

ii) the accused is likely to abscond and evade the processed of law.

iii) the accused is given to violent behavior and is likely to commit similar offences again.

iv) the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instruction that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines——–“

After considering the above Supreme Court further held and observed as under:

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of is it quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person complicity and even so as to the need to effect arrest. Denying a person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offence, an arrest must be avoidable if a police officer issue notice to person to attend the station house and not to leave station without permission would do.

Recently, two co-ordinate benches of the Supreme Court passed judgements, one on 15.12.2009, in the case of RavindraSaxena Vs. State Of Rajasthan, (2010) 1 SCC 684, and another in the case of HDFC BANK LTD. VS. J.J.MANNAN, dated 16.12.2009, reported as (2010) 1 SCC 679, giving contrary views on certain important aspects relating to power and scope of granting anticipatory bail u/s. 438 Cr.P.C.

In the case of RavindraSaxena, Hon’ble Supreme Court, relying upon the observations made in Gurbaksh Singh’s case and Maneka Gandhi’s case held and observed that an application for anticipatory bail cannot be permitted to be jettisoned on technicalities, such as challan have been filed and also that the only because the allegations in the case concerned cheating and forgery of valuable securities, that should not be a reason to deny anticipatory bail to the accused.

However, in the case of HDFC Bank Ltd., Supreme Court held that Section 438 Cr.PC. contemplates arrest at the stage of investigation and provides mechanism for an accused to be released on bail if he apprehends arrest during the period of investigation. Once the investigation made out a case against case him and he is included as an accused in the charge sheet, the accused had to surrender to the custody of the Court and pray for regular bail.

Now, in the latest judgment, pronounced in the case of Siddha Ram SatilingppaMehtre vs. State of Maharastra&Ors. (2011) 1 SCC 694, the Supreme Court once again considered in detail the scope and power of the Courts to grant anticipatory bail u/s. 438 of Cr.PC., especially the question as to whether anticipatory bail can be granted only for a limited period i.e. till the filing of the challan.

After thoroughly scrutinizing the law relating to grant of anticipatory bail, and also considering the various reports and the earlier case laws, including the legal position as existing in India and other countries, the Supreme Court in Para 95 of the judgment held and observed that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Gurbaksh Singh’s case. In Para 99 of the judgment the Hon’ble Court observed that the restriction of the presumption of the anticipatory bail us. 438 of Cr.PC. limit the personel liberty of the accused 191 or 91 of the constitution. Further observed that the observation hidden in the earlier case of “Sallauddin Abdul SamadSeikh , (1996) 1 SCC 667, (relied upon by the Hon’ble Division Bench in HDFC Bank’s case) was in conflict with and contrary to the legislative intention and the spirit of the very provisions of the anticipatory bail itself and the same are artificial and unreasonable restrictions nowhere found in the enactment. The Supreme Court also observed that such restriction does not stand the test of the fairness and reasonableness which is implicit in Art. 21 of the Constitution, after the decision in Maneka Gandhi’s case. It may be mentioned here that in the above said case of Sallauddin it was observed that the anticipatory bail had to be given only for the limited period so as to enable the accused to move for regular bail us.437 Cr.PC.

In the above judgment of Siddha Ram Satilingappa, Supreme Court has finally held and observed that Section 438 Cr.PC does not mention any thing about any duration to which direction on release of bail in the event of his arrest can be granted. The order granting anticipatory bail is a direction, specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be justified in imposing conditions on him, including direction to join investigation. Once the accused is released on bail by the trial court, then it could be unreasonable to compel the accused to surrender before trial court and again apply for anticipatory bail. (Para 100 & 102).


1. An individual’s personal liberty can be curtailed only in accordance with the procedure established by law.

2. The procedure so established by law must be fair, just and reasonable.

3. No arrest of a person should be made without a reasonable belief/satisfaction by the Police Officer that such arrest in necessary and justified, (Joginder Kumar’s case).

4. Section 438 Cr.P.C. provides for granting anticipatory bail by the High Court or the Court of Sessions, to a person accused of a non-bailable offence or he is otherwise apprehending arrest.

5. A person/ accused can be granted anticipatory bail even after challan/charge-sheet has been filed by the prosecution against him. (RavindraSaxena’s case).

6. Contra view taken in H.D.F.C. Bank’s case- Once the person is accused in the charge sheet, he has to surrender to the custody of the court and pray for regular bail.

7. As per ratio in Siddha Ram Satilingppa’s case- if anticipatory bail is once granted it cannot be said to be for a limited duration and the accused should not be directed to surrender and apply for a regular bail.