The Long BenchDoctrine 1 of 8Article 21

Life and personal liberty

In 1950 Gopalan read “procedure established by law” in Article 21 as any procedure a legislature enacted, and treated each fundamental right as a separate compartment. R.C. Cooper (1970) rejected the compartments, and Maneka Gandhi (1978) held that the procedure must be fair, just and reasonable. From Maneka the Court read new rights into Article 21: a speedy trial, livelihood, the rights of prisoners, compensation for wrongful detention, safeguards on arrest, and the right to die with dignity.

13 judgments · 1950 to 2018 · 11 links to earlier cases

In date order. The line above each judgment says what it did to an earlier case; Later says what became of it. Follow this case lights up the judgments it is linked to in this chapter.

1950
The preventive detention case
A.K. Gopalan v. State of Madras
Decided 19 May 1950 · 6 judges · 1950 SCR 88
Overruled in part by Rustom Cavasjee Cooper (1970); Overruled in part by Maneka Gandhi (1978)
Held. The Court upheld the Preventive Detention Act, 1950 (except one section). It read “procedure established by law” in Article 21 as any procedure enacted by a legislature, not a procedure that must also be fair, and treated each fundamental right as a separate compartment to be tested on its own.
Why it matters. Gopalan is the starting point of the story of Article 21. Almost every later case on personal liberty is a reply to it.
Later Applied in Kharak Singh (1962) · Overruled in part by Rustom Cavasjee Cooper (1970) · Applied in A.D.M. Jabalpur (1976) · Overruled in part by Maneka Gandhi (1978)
Read the judgment ↗ (indiankanoon.org)
1962
Applied A.K. Gopalan (1950)
The domiciliary visits case
Kharak Singh v. State of U.P.
Decided 18 December 1962 · 6 judges · [1964] 1 SCR 332
Overruled in part by K.S. Puttaswamy (2017) · Privacy, dignity and identity
Held. The Court struck down the police regulation allowing night-time “domiciliary visits” to a suspect’s home as a violation of personal liberty under Article 21, but upheld the other forms of surveillance, holding that the Constitution did not guarantee a right to privacy.
Why it matters. Justice Subba Rao’s dissent, which found a right to privacy, was vindicated 55 years later in Puttaswamy, which overruled the majority on this point.
Later Overruled in part by K.S. Puttaswamy (2017) · Privacy, dignity and identity
Read the judgment ↗ (indiankanoon.org)
1970
Overruled in part A.K. Gopalan (1950)
The bank nationalisation case
Rustom Cavasjee Cooper v. Union of India
Decided 10 February 1970 · 11 judges · [1970] 3 SCR 530
Held. The Court struck down the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 because the compensation it offered was not compensation in the constitutional sense and the law discriminated against the fourteen banks. It also rejected Gopalan’s view that each fundamental right must be read in isolation: a law must answer to every right it affects.
Why it matters. The “effect” test of Cooper became the bridge from Gopalan to Maneka Gandhi.
Later Applied in Maneka Gandhi (1978)
Read the judgment ↗ (indiankanoon.org)
1976
Applied A.K. Gopalan (1950)
The habeas corpus case
A.D.M. Jabalpur v. Shivkant Shukla
Decided 28 April 1976 · 5 judges · [1976] Supp SCR 172
Overruled by K.S. Puttaswamy (2017) · Privacy, dignity and identity
Held. During the Emergency, by four to one, the Court held that while the Presidential order suspending the enforcement of Article 21 was in force, no one could go to a High Court for habeas corpus to challenge a detention, even on the ground that it was illegal or mala fide. Justice H.R. Khanna dissented alone.
Why it matters. In Puttaswamy (2017) the Court said the majority was seriously flawed and overruled it. The Forty-fourth Amendment (1978) had already provided that Articles 20 and 21 can never be suspended.
Later Overruled by K.S. Puttaswamy (2017) · Privacy, dignity and identity
Read the judgment ↗ (indiankanoon.org)
1978
Overruled in part A.K. Gopalan (1950)Applied Rustom Cavasjee Cooper (1970)
The passport case
Maneka Gandhi v. Union of India
Decided 25 January 1978 · 7 judges · [1978] 2 SCR 621
Held. The government impounded Maneka Gandhi’s passport without giving reasons. The Court held that the “procedure established by law” under Article 21 must be fair, just and reasonable, not arbitrary, and that Articles 14, 19 and 21 are linked, so a law depriving a person of liberty must satisfy all three.
Why it matters. Maneka is the case that turned Article 21 into a source of new rights, the foundation for the cases on prisoners, undertrials and livelihood that followed.
Later Applied in Bachan Singh (1980) · Applied in Sunil Batra (1978) · Built on in Hussainara Khatoon (1979) · Built on in Olga Tellis (1985) · Built on in National Legal Services Authority (2014) · Privacy, dignity and identity · Applied in K.S. Puttaswamy (2017) · Privacy, dignity and identity
Read the judgment ↗ (indiankanoon.org)
1978
Applied Maneka Gandhi (1978)
The prisoners’ rights case
Sunil Batra v. Delhi Administration
Decided 30 August 1978 · 5 judges · [1979] 1 SCR 392
Held. The Court held that a convict is not stripped of fundamental rights by conviction. Section 30(2) of the Prisons Act, which keeps a “prisoner under sentence of death” in a cell apart, does not allow solitary confinement, and applies only once the death sentence has become final. In the companion petition of Charles Sobhraj, it read down the use of bar fetters (section 56).
Why it matters. It is the foundation of prison jurisprudence in India.
Read the judgment ↗ (indiankanoon.org)
1979
Built on Maneka Gandhi (1978)
The undertrials case
Hussainara Khatoon v. Home Secretary, State of Bihar
Decided 12 February 1979 · 3 judges · [1979] 3 SCR 169
Held. Acting on newspaper reports that thousands of undertrial prisoners in Bihar had been in jail longer than the maximum sentence for their alleged offences, the Court held that a speedy trial is part of the right to life and liberty under Article 21, and ordered the release of many of them.
Why it matters. It was among the first public interest litigations, and it made speedy trial and free legal aid part of Article 21.
Read the judgment ↗ (indiankanoon.org)
1980
Applied Maneka Gandhi (1978)
The death penalty case
Bachan Singh v. State of Punjab
Decided 9 May 1980 · 5 judges · (1980) 2 SCC 684
Held. By four to one, the Court upheld the death penalty for murder, but held that it may be imposed only in the “rarest of rare” cases, when the alternative of life imprisonment is unquestionably foreclosed, weighing aggravating and mitigating circumstances of both the crime and the criminal. Justice Bhagwati dissented.
Why it matters. The “rarest of rare” test still governs sentencing in capital cases.
Read the judgment ↗ (indiankanoon.org)
1983
The compensation case
Rudul Sah v. State of Bihar
Decided 1 August 1983 · 3 judges · [1983] 3 SCR 508
Held. Rudul Sah was kept in jail for more than fourteen years after he was acquitted. The Court held that, in a petition under Article 32, it can order the State to pay compensation for the violation of the right to liberty, and awarded him interim compensation.
Why it matters. It began the line of cases on compensation for violations of fundamental rights, carried on in D.K. Basu.
Later Built on in D.K. Basu (1996)
Read the judgment ↗ (indiankanoon.org)
1985
Built on Maneka Gandhi (1978)
The pavement dwellers case
Olga Tellis v. Bombay Municipal Corporation
Decided 10 July 1985 · 5 judges · [1985] Supp (2) SCR 51
Held. Pavement and slum dwellers challenged their eviction in Bombay. The Court held that the right to life under Article 21 includes the right to livelihood. Eviction was not barred, but had to follow a fair procedure, with notice and time.
Why it matters. Olga Tellis is the case cited for the right to livelihood.
Later Built on in Unni Krishnan J.P. (1993) · Equality, reservation and education
Read the judgment ↗ (indiankanoon.org)
1996
Built on Rudul Sah (1983)
The arrest guidelines case
D.K. Basu v. State of West Bengal
Decided 18 December 1996 · 2 judges · (1997) 1 SCC 416
Held. Treating a letter about deaths in police custody as a petition, the Court laid down requirements to be followed on every arrest, such as an arrest memo, informing a relative, a medical examination and the right to meet a lawyer during interrogation, and held that compensation can be awarded for custodial violence.
Why it matters. Many of the D.K. Basu requirements were later written into the Code of Criminal Procedure, and now the BNSS.
Read the judgment ↗ (indiankanoon.org)
2011
The euthanasia case
Aruna Ramchandra Shanbaug v. Union of India
Decided 7 March 2011 · 2 judges · (2011) 4 SCC 454
Held. The Court refused to withdraw life support from Aruna Shanbaug, a nurse in a permanent vegetative state since 1973, but held that passive euthanasia (withdrawing life support) could be allowed in some cases with the approval of a High Court. Active euthanasia remained unlawful.
Why it matters. Common Cause (2018) built a fuller framework, including living wills, on this foundation.
Later Built on in Common Cause (2018)
Read the judgment ↗ (indiankanoon.org)
2018
Built on Aruna Ramchandra Shanbaug (2011)
The living will case
Common Cause v. Union of India
Decided 9 March 2018 · 5 judges · (2018) 5 SCC 1
Held. The Court held that the right to live with dignity under Article 21 includes the right to die with dignity. It recognised advance medical directives (“living wills”) and laid down a procedure for withdrawing life support from terminally ill patients.
Why it matters. The Court simplified the procedure in 2023. It confirmed passive euthanasia as lawful, building on Aruna Shanbaug.
Read the judgment ↗ (indiankanoon.org)