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Posted by on Apr 15, 2014 in FRs & DPSP |

Right to Life – Personal Liberty and Right against Arbitrary Detention

The right to life constitute most basic fundamental right in our constitution. The 44th amend 1978 makes it clear that fundamental rights under Article 20 (right in relation to conviction for offences) and 21 (right to life) can’t be taken away even at time of emergency (i.e. Article 20 and 21 are justiciable even at time of emergency).

Article 20

  • No Ex Post Facto Law – No person shall be liable for punishment more than prescribed by law in force at time of commencement of offence. As per clause, legislature is not empowered to enact retrospective criminal laws but not on civil or tax laws as done in Vodafone case.
  • No Double Jeopardy – No person shall be prosecuted and punished for same offence more than once. Retrial of an offence against any person (not convicted) shall not be considered as double jeopardy. The protection against double jeopardy is not available in legal proceedings before departmental or administrative authorities as they are not of judicial nature (i.e. available only before court of law or judicial tribunal).
  • No Self Incrimination – No person accused of an offence shall be compelled to be a witness against himself. The immunity is provided only in criminal proceedings not other than criminal ones.

Article 21 (Right to Life)

  • Protection of Right to Life and Personal Liberty – No person shall be deprived of his right to life or personal liberty except in accordance to procedure established by law, it includes right to live with dignity, privacy, health, shelter, free legal aid, free education till 14 yrs, information, travel abroad etc. This right is available for both citizens and non citizens.
  • It doesn’t include right to die, so suicide or attempt to suicide is a punishable offence as provided under section 309 of IPC.
  • Due Process of Law – It means court has power to declare any law unconstitutional which deprives a person of his liberty as provided under American constitution.
  • Procedure Estb by Law It means validity of a law that prescribed a procedure can’t be questioned on ground that law is unfair or unjust. But in Menaka case (1978), SC held that right to life or personal liberty of a person can be deprived by a law provided that procedure prescribed shall be reasonable, fair and just.
  • In Gopalan Case (1950) SC held that Article 21 or right to life is available only against executive action and not against arbitrary legislative action but decision of SC in Menaka case (procedure shall be fair and just) provide protection against arbitrary legislative action as well.

Article 21A

  • Right to Education – The state is obligated to provide free elementary education to all children of age of 6-14 yrs added by 86th constitutional amendment Act of 2002. Recently, Right to Education Act 2009 passed by parliament to give effect to this constitutional obligation.

Article 22(Protection against Arrest and Detention)

  • Punitive Detention – detention for an offence committed against ordinary law. Detained person has right to know reasons, consult legal practitioner, be produced before magistrate within 24 hrs excluding time of journey and be released after 24 hrs if no further detention by magistrate.
  • Preventive Detention – it means detention without trial and conviction for purpose to prevent a person to commit an offence in future). This article provides protection against detention under Preventive Detention law. Such as
    • No person shall be detained for period not exceed 3 months except providing sufficient cause by an advisory board (consist of HC judges).
    • Grounds of detention shall be known to detenu but need not be disclosed if against public interest.
    • The detained person shall be given due opportunity to make representation against detention order.
  • This article empowers Parliament to lay down a) conditions and classes of cases to detain a person more than 3 months under Preventive detention law, b) maximum period of detention if detained more than 3 months and c) procedure to be followed by advisory board.
  • No democratic country in the world has included provision of preventive detention in the constitution.
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