Constitutional Law: Liberty in India

The constitution of India under article 21 provides for protection of life and personal liberty that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Quoting J. Bhagwati, Article 21 embodies a constitutional value of supreme importance in a democratic society. Article 21 safeguards two types of rights:

  1. Right to life
  2. Right to personal liberty

Liberty is defined as the state of being free within society from oppressive restrictions imposed by authority on one’s way of life, behaviour, or political views.[1] It also means freedom from any fetters and the choice to do something as per one’s own wishes. Personal liberty is defined as the freedom of an individual to act as he or she wishes.[2] In other words, it is the freedom of the individual to exercise his will or behave in a way as it pleases him except for the reasonable restrictions imposed by the law to secure physical, moral, economic and political welfare of others. These restraints are imposed because it is important to follow a social code of conduct in which an individual resides. No unreasonable restrictions are imposed on thoughts and expressions and the manner they want to implement their thought effective.

Liberty is guaranteed to every citizen of India through the Preamble of the Constitution of India. In a democratic setup like India, right to life and personal liberty symbolizes a constitutional value of utmost importance. Article 21 runs parallel to the Article 40(4) of the Constitution of Eire 1937, Magna Carta of 1215, the Fifth Amendment to the American Constitution and Article XXXI of the Constitution of Japan, 1946. Article 21 guarantees this right to every person, whether citizen or any alien person.

Personal liberty is the most fundamental human right as it affects the person’s physical existence in absence of which its bodily freedom will be curtailed.  If the right to life is to be considered as basic element of any democratic society, then right to personal liberty is the principle of humankind. Humans, being social animals, have not just to live but lead a well and healthy life. He must have some morals and virtues to live well his social life and perform his day-to-day duties.  This can only be possible when he has an absolute freedom to control his own life and govern his life through his own set of rules and regulations. In other words, the individual freedom should not be curtailed by any unreasonable or arbitrary exercise of power by the person/persons in authority.

In the case of Kharak Singh vs State of Uttar Pradesh,[3] the Supreme Court held that “life” doesn’t mean mere animal existence. It is something more than that. Mere existence by virtue of life would be meaningless if one is not allowed to move. Life without freedom is unlikely. Moreover, who wants to live at another’s whims and fancies with an apprehension at every moment that what the people in authority and with power might do to us, even if their intentions are good?


Fundamental rights are guaranteed under Chapter III by the Constitution of India to every citizen of this country. One of these fundamental rights is “right to life and personal liberty” under article 21. The scope of this right under article 21 has widened from time to time through various judgements paving a way for each landmark precedent every time and this expansive interpretation is only growing over the period of time. Article 21 is a progressive provision that cannot be interpreted in the context in which it was written originally. Article 21 is interpreted in the light of golden rule of interpretation, doctrine of purposive construction and gaps and abeyances of constitution. It helps in understanding the unwritten portion of any statute in a certain precise way by avoiding unreasonable and arbitrary consequences. It intends to deliver justice by giving effect to the spirit of law while providing judgments under Article 21. It demands to be interpreted as per the changing needs and context of the people and the current situation of the society remaining firm on the principles of Equality, Liberty, Fraternity and Justice.

 Since 1950, the concept of “right to personal liberty” has travelled a long way through various judgements of the Supreme Court. In the case of AK Gopalan vs State of Madras[4], the Supreme court held that Article 21 can only be applied when there is a “total loss of right to life or personal liberty”. The court narrowed down the meaning of “personal liberty” by confining it to the freedom of the physical body only and treating article 19 (1)(d) and article 21 separately. However, later in the case of Kharak Singh vs State of Uttar Pradesh[5], the court held that Article 21 can be applied not only where there is total loss of the right but also where restriction has been on the right to life or personal liberty without following the “procedure established by law”. It held that personal liberty meant much more than mere animal existence. By adopting purposive approach, the courts have expanded the scope of Article 21 to include right to proper livelihood such as right to food, clean water, healthy environment etc. In People’s Union for Civil Liberties vs. Union of India[6], the Supreme Court interpreted right to life in a way so as to include right to privacy in it and also includes telephone conversation in the privacy of home or office.

Earlier the word ‘law’ was construed only as a guarantee against the executive action unsupported by law but not against the legislative action as in A.K. Gopalan’s case, but later this judgement was overturned in the landmark case of Maneka Gandhi vs Union of India[7]. The Apex Court used the term ‘law’ in the sense of ‘Lex’ i.e., just law or the principles of natural justice, and mentioned that procedure established by law should be devoid of arbitrariness. Post Maneka Gandhi, a new dimension opened up, imposing limitation by virtue of article 21 upon law making as well. In other words, a reasonable, fair and just procedure must be prescribed for depriving a person of his life or personal liberty.

Safeguarding of a person’s human dignity included the right to adequate nutrition, clothing, and shelter with facilities of reading, writing and to express oneself was included under Article 21. Article 21 has been broadly interpreted to include right to clean and healthy environment, as a clean environment is a means to provide livelihood to people and if the means of livelihood are taken away or gets polluted it is in turn taking away the right to life violating the protection of right under Article 21. When Article 21 is read alongside with the constitutional duties provided by the constitution it indicates that it is on the state to attend to while enacting laws and giving judgments that the essence of the constitution is upheld and kept alive. The Constitution of India is non-static and ever evolving document as it has faced 104 amendments and is adapting to the needs and requirements of the society.


The Preamble of the Constitution of India secures to all its citizen Liberty- “Liberty of thought, expression, belief, faith and worship”. Declaration of American Independence proclaims life, liberty and the pursuit of happiness as most important among the inalienable rights of an individual. The objective of Preamble of almost every other Constitution is same in one form or another. For instance, one of the objectives of the Preamble of the Constitution of the United States is “to secure the blessings of liberty to ourselves and to our posterity”. Similarly, the Preamble of the Indian Constitution too continuously strives to secure Liberty- “Liberty of thought, expression, belief, faith and worship”.

The expression ―personal liberty under Article 21 has the widest possible scope to cover a variety of rights to constitute the personal liberty of a man. Some of them have been given the status of separate fundamental rights under the Constitution and have been shielded additionally under Article 19. Individual liberty is one of the basic necessities for overall development of human personality. It aims at freedom not only from unreasonable restrictions but also to provide such conditions as are required for full personal human growth.  Right to life is the most precious right in a democratic setup like India which has been protected under article 21 of the Constitution. The triangle of liberty, equality and fraternity always blooms and brightens the flower of human dignity.

Life and personal liberty are the valuable charms under Article 19 collectively assured by Article 20(3), Article 21 and Article 22 of the Constitution. Article 19 guarantees right to move freely. Personal liberty under article 21 is also protected by the courts by means of various writ of Habeas Corpus, Mandamus, Quo warranto, Prohibition, Certiorari issued under Article 32 and Article 226. If any of the rights except fundamental rights has been violated, the aggrieved person can file writ under article 226 before the High Court of the competent jurisdiction. Its main object is to prevent infringement of personal liberty of any person and deprivation of life except according to procedure established by law and to make a society where justice shall triumph. However, this right has been provided against State only as the violation of any of the fundamental rights can be claimed against the state only and not private individuals as provided under article 12. Hence, if an act of private individual encroaches upon the personal liberty or deprivation of life of other person; such violation would not fall under the scope of Article 21.


Right to life and personal liberty under Article 21 has been given the widest possible amplitude to cover a variety of rights related to individual freedom. The scope of personal liberty has greatly increased since the framing of the Constitution. Such a right can only be restricted by a procedure established by law and that procedure needs to be fair, just, reasonable, non-oppressive and non-arbitrary. Any executive action violating any of the fundamental rights needs to be justified and based on the principles of natural justice. The principles of natural justice emphasizes that any procedure which restricts the liberty of a person must be fair, just and reasonable. The courts from time-to-time seek to give a wider meaning to “personal liberty”.

“The procedure established by law” which restricts the fundamental rights should stand the scrutiny of other provisions of the Constitution also like article 14 and article 19. In other words, any statute restraining one’s personal freedom must not only pass the test of Article 21 but also of Article 14 and Article 19 of the Constitution. Article 21 ensures fair and just procedure. Article 19 guarantees reasonable deprivation of freedom to live and the other liberties mentioned therein. Article 14 assures non-arbitrary and equal treatment. Thus, Article 21 as a comprehensive term which includes all those rights of a person which run parallel to the personal liberty of a man along with some reasonable restrictions.


  1. Right to live with human dignity: In the landmark case of Maneka Gandhi v. Union of India[8], the Supreme Court gave a new definition to article 21 and held that the right to live is not merely a physical right but includes within its scope the right to live a dignified human life. It includes the basic minimum necessities of life like sufficient food, clothing and housing, free movement, being social with other fellows.

Another broad formulation of the theme of life to dignity is to be found similarly, in Bandhua Mukti Morcha v. Union of India[9], the Supreme Court again broadly interpreted the concept of right to life by observing:

“It is the fundamental right of everyone in this country to live with human dignity free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.”[10]

  • Right to livelihood: Earlier the Supreme Court were of the view that the right to livelihood would not fall under the expression of “life” under Article 21. However, for the first time in the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni[11], the court held that “the right to life” protected by Article 21 also includes “the right to livelihood”.

Later also, the Supreme Court in landmark judgement of Olga Tellis v. Bombay Municipal Corporation[12], (Pavement Dwellers Case) observed that ‘right to livelihood’ is endured from ‘right to life’. It is a basic necessity of life as no person can live without any means of living.

  • Right to health: In State of Punjab v. M.S. Chawla[13], the court held that the widest possible scope of right to lie under article 21 also includes right to health and medical care.

In Consumer Education and Research Centre v. Union of India[14]the Supreme Court laid observed that:

“Social justice which is a device to ensure life to be meaningful and liveable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”[15]

  • No right to die: Earlier the Supreme Court was of the view that right to life under article 21 also include right to not live forcefully and hence held that right to life also includes right to die. However, this decision was changed in the case of Gian Kaur vs State of Punjab[16], were the court ruled that Article 21 provides guarantee against protection of life and personal liberty and by no means it can include unnatural termination or extinction of life.
  • Right against sexual harassment at workplace: In the landmark judgement of Vishakha v. State of Rajasthan[17], the Supreme Court observed that sexual harassment woman at her workplace amounts to the violation of rights of gender equality and rights to life and liberty under Articles 14, 15 and 21 of the Constitution. In the absence of specific law to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment, the Supreme Court also laid down some guidelines.
  • Right to privacy: Right to privacy being held as a fundamental right has travelled a long way since the framing of the constitution. For the first time in the case of Govind vs State of Madhya Pradesh[18], the Supreme Court took an elaborated view to the concept of right to privacy and held that it is a fundamental right including personal relationships of home, family, marriage etc. However, this right is not absolute and reasonable restrictions can be placed under article 19(5).

Recently in the case of Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India & Ors. (2015)[19], the Supreme Court observed that right to privacy of an individual is not only protected by the Constitution under Article 21 but is also an intrinsic element of Part III which guarantees fundamental rights.

  • Right against unlawful arrest and illegal detention: In another landmark case of   D.K. Basu v. State of West Bengal[20], the Supreme Court held that any form of torture, harsh, inhuman or degrading treatment, whether it occurs during interrogation, investigation or otherwise, falls within the ambit of Article 21. Hence, custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law.


The concept of liberty in India has widened its scope from time to time through various judicial pronouncements. This expansive interpretation is only growing over the period of time. By rejecting the view that personal liberty only means liberty from any bodily curbs, the Supreme Court held that it comprises those rights and liberties that are essential for orderly pursuing the happiness in life by any person. The concept of personal liberty is not an issue which can be secluded. It incorporates other important values. Personal liberty is a broad term having a wider scope.

It consists of both fundamental rights as provided by our Constitution such as freedom from any foreign interference and personal rights enjoyed by the citizens such as rights related to marriage, abortion and less well defined and arguable less critical issues. Thus, Article 21 of the Constitution of India is firmly based upon the principles of natural justice. The notion of “procedure established by law” in Article 21, includes all that fairness on which the principles of natural justice is based. The essence of Article 21 would never diminish completely in a democratic set up like India. It would continue to serve the people of India till eternity whenever any right related to life or personal liberty is infringed. As has been rightly observed by the Supreme Court, article 21 is the heart of the Indian Constitution as it is the most progressive and developing provision.

[1] As per Oxford Dictionary, Available at (last visited at 16-06-2021)

[2] As per Oxford Dictionary, Available at (last visited at 16-


[3] 1963 SC 1295

[4] AIR 1950 SC 27

[5] Supra at 3

[6] AIR 1997 SC 568

[7] AIR 1978 SC 597

[8] Ibid

[9] 1984 AIR 802, 1984 SCR (2) 67

[10] Available at (last visited at 22-06-2021)

[11] AIR 1983 SC 109: (1983) 1 SCC 124

[12] AIR 1986 SC 180

[13] AIR (1997) SC 1225

[14] AIR (1995) 922, (1995) SCC (3) 42

[15] Available at (last visited at 22-06-2021)

[16] 1996 AIR 946, 1996 SCC (2) 648

[17] AIR 1997 SC 3011: (1997) 6 SCC 241

[18] 1975 AIR 1378

[19] AIR (2017) 10 SCC 1

[20] AIR 1997 SC 610

Author: Mishika Pandita from Lovely Professional University, Punjab.

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