Fundamental Rights and the expanding Article 21

The first principle

Fundamental Rights exist because a majority, acting through the state, can harm the individual, so the Constitution places certain freedoms beyond the reach of ordinary politics and lets any person go straight to the highest court to defend them. The text of Article 21 is only one sentence: no person shall be deprived of life or personal liberty except according to procedure established by law. What that sentence protects has grown with the country, because the Supreme Court reads it as a promise of a life with dignity rather than mere survival. That is why the Constitution is called a living instrument.

The core

Structure of Part III

• Six groups of rights. Part III (Articles 12 to 35) contains the right to equality (Articles 14 to 18), the right to freedom (19 to 22), the right against exploitation (23 and 24), freedom of religion (25 to 28), cultural and educational rights (29 and 30) and the right to constitutional remedies (32). The right to property was removed by the Forty fourth Amendment (1978) and is now a legal right under Article 300A.
• Whom the rights bind. Most rights are limits on the "State", which Article 12 defines as the Union and state governments and legislatures, local authorities and "other authorities". Courts have read the last phrase to include bodies that are instruments or agencies of the government (Ajay Hasia, 1981). A few rights also bind private persons, such as the bans on untouchability (Article 17) and forced labour (Article 23), and in Kaushal Kishor (2023) a Constitution Bench held that rights under Articles 19 and 21 can be enforced against private persons too.
• Citizens and all persons. Articles 15, 16, 19, 29 and 30 are for citizens only; Articles 14, 20, 21 and 25 protect every person, including foreigners.
• Laws that violate rights are void. Article 13 makes any law inconsistent with a Fundamental Right void to the extent of the inconsistency, which is the textual basis of judicial review.

Freedoms and their limits

• Article 19(1). Citizens have six freedoms: speech and expression, peaceful assembly without arms, forming associations, moving freely throughout India, residing and settling in any part of India, and practising any profession, trade or business.
• Reasonable restrictions. Each freedom can be limited only on the grounds listed in clauses (2) to (6), and the restriction must be reasonable, which the Court judges by the nature of the right, the purpose, the extent of the harm and the proportion between them (State of Madras v V. G. Row, 1952).
• Movement and residence. Articles 19(1)(d) and (e) make India one territory for its citizens, but Article 19(5) allows restrictions in the interests of the general public or for the protection of any Scheduled Tribe. Inner line permits under the Bengal Eastern Frontier Regulation, 1873, required for entry into Arunachal Pradesh, Nagaland, Mizoram and Manipur, protect tribal land and culture; land transfer laws in Fifth and Sixth Schedule areas limit settlement by outsiders. Externment orders against habitual offenders, quarantine during epidemics and restricted border areas are other examples of public interest limits.

Article 21: from Gopalan to Maneka Gandhi

• A. K. Gopalan v State of Madras (1950). The Court held that "procedure established by law" meant any procedure laid down by a validly enacted law, however unfair, and that each Article was a separate code to be tested on its own.
• Maneka Gandhi v Union of India (1978). After the excesses of the Emergency, a seven judge bench held that the procedure must be just, fair and reasonable, not arbitrary, and that Articles 14, 19 and 21 must be read together. This link, later called the golden triangle, brought in through interpretation much of the due process that the framers had left out.

Dimensions

The expanding horizon of life and liberty

• Livelihood and shelter. In Olga Tellis (1985) the Court held that the right to life includes the right to livelihood, so pavement dwellers could not be evicted without notice and hearing; the right to shelter followed in later cases.
• Environment. In Subhash Kumar (1991) the Court read the right to pollution free water and air into Article 21, which became the base of environmental public interest litigation. In M. K. Ranjitsinh (2024) it recognised a right against the adverse effects of climate change under Articles 14 and 21.
• Dignity, fair trial and legal aid. The right to live with human dignity (Francis Coralie Mullin, 1981), the right to a speedy trial (Hussainara Khatoon, 1979) and free legal aid (M. H. Hoskot, 1978) all grew out of Article 21.
• Health and education. Emergency medical care was held part of the right to life (Parmanand Katara, 1989). The right to education, read into Article 21 in Unni Krishnan (1993), became Article 21A through the Eighty sixth Amendment (2002), and the Right of Children to Free and Compulsory Education Act, 2009 gives it effect for children aged 6 to 14.
• Privacy. In K. S. Puttaswamy (2017) a unanimous nine judge bench held that privacy is a Fundamental Right intrinsic to life and liberty. Any intrusion must pass three tests: legality (a law must authorise it), a legitimate aim of the state, and proportionality between the aim and the means.
• Choice, identity and autonomy. In National Legal Services Authority (NALSA) v Union of India (2014) the Court recognised transgender persons as a third gender with the right to self identified gender. Navtej Singh Johar (2018) decriminalised consensual same sex relations under Section 377 of the Indian Penal Code, and Joseph Shine (2018) struck down adultery as a crime for treating women as property.
• Dying with dignity. In Common Cause (2018) the Court allowed passive euthanasia and living wills (advance directives) as part of the right to die with dignity, and simplified the procedure in 2023 by reducing the role of the magistrate and setting time limits for medical boards.

In practice

Privacy and DNA tests of paternity

• The conflict. A paternity test touches the privacy and bodily integrity of the mother and the alleged father, and the dignity and legitimacy of the child, so courts treat it as an exception rather than a routine step of evidence.
• The presumption of legitimacy. Section 112 of the Indian Evidence Act, 1872, now Section 116 of the Bharatiya Sakshya Adhiniyam, 2023, says that a child born during a valid marriage is conclusive proof of legitimacy unless the parties had no access to each other. The law protects the child from being declared illegitimate on suspicion alone.
• The standard set by the courts. In Goutam Kundu (1993) the Court said blood tests cannot be ordered as a roving inquiry. In Bhabani Prasad Jena (2010) it held that a DNA test may be ordered only where there is a strong prima facie case and the need is eminent, after balancing the interests of the parties. In Ashok Kumar v Raj Gupta (2021) it added that courts should first look at other evidence before compelling a test.
• A child in the womb. A prenatal test needs invasive sampling that carries risk to the mother and the foetus, so the mother's informed consent and her bodily privacy weigh heavily, and courts usually leave the question of paternity until after birth unless a strong case, such as the investigation of a rape, makes it necessary.
• Self identity. Under NALSA and Puttaswamy, a person's gender identity lies at the core of privacy and dignity, so any law on recognition of gender is tested against the three part test and the right to self identify. The Transgender Persons (Protection of Rights) Act, 2019 gives a certificate of identity as transgender through the District Magistrate, and a revised certificate as male or female only after medical intervention; any amendment that adds conditions to this process must meet the same standard.

Remedies

• Writs. Article 32, which Ambedkar called the heart and soul of the Constitution, lets a person move the Supreme Court directly; Article 226 gives High Courts a wider power, for Fundamental Rights and "for any other purpose". Both can issue habeas corpus, mandamus, prohibition, certiorari and quo warranto.
• Emergency. During a national emergency the President may suspend the enforcement of other rights under Article 359, but since the Forty fourth Amendment the rights under Articles 20 and 21 cannot be suspended (see the note on emergency provisions).

Issues and way forward

• Rights on paper and in practice. Expansion by judgement does not build a hospital or a school. Rights such as health and shelter depend on budgets and administration, so the Directive Principles and welfare laws must carry them, with courts acting as a check rather than a substitute.
• Judicial legislation. Critics argue that guidelines such as those on living wills are law making by courts. The better course is for Parliament to enact laws on these subjects, as it did with the Right to Education Act after Unni Krishnan.
• Surveillance and data. Puttaswamy requires every intrusion to be lawful and proportionate. The Digital Personal Data Protection Act, 2023 and its wide exemptions for the state will be tested against that standard.
• Limits of the courts. In Supriyo Chakraborty (2023) the Court held that there is no Fundamental Right to marry and left recognition of same sex unions to Parliament, a reminder that the living instrument grows through both courts and legislatures.

Common confusions

• Procedure established by law and due process. The first, from Japan, asks only whether a law authorises the deprivation; American due process also asks whether the law is fair. After Maneka Gandhi, India applies a test close to due process.
• Article 32 and Article 226. Article 32 is itself a Fundamental Right and covers only Fundamental Rights; Article 226 is not a Fundamental Right but is wider in scope.
• Right to die and passive euthanasia. Gian Kaur (1996) held that the right to life does not include the right to die by suicide; Common Cause (2018) allows only the withdrawal of life support, with safeguards.
• Articles 21 and 21A. Article 21 protects every person's life and liberty; Article 21A guarantees free and compulsory education only to children aged 6 to 14.

For the exam

• Keyword bank: Part III, Article 12, reasonable restrictions, Article 19(5), inner line permit, procedure established by law, Maneka Gandhi, golden triangle, life with dignity, K. S. Puttaswamy, proportionality, presumption of legitimacy, living instrument, Article 21A, writs.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "Article 21 is a single sentence of eighteen words, yet the Supreme Court has read into it rights ranging from livelihood and shelter to privacy and protection from climate change."
  • Introduction with a judgement: "In Maneka Gandhi (1978) the Supreme Court held that any procedure depriving a person of liberty must be just, fair and reasonable, turning Article 21 from a guarantee of procedure into a guarantee of dignity."
  • Conclusion: "The growth of Article 21 shows the Constitution working as a living instrument, but rights read in by courts become real only when legislatures and administrations give them shape."
  • Conclusion: "Privacy after Puttaswamy is not absolute, yet every intrusion, whether a surveillance order or a DNA test, must now pass the tests of legality, legitimate aim and proportionality."