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EXPANSION OF ARTICLE 21 BY ATRISHEKHAR - Coggle Diagram

- - - - JALLIKATTU ISSUE
        
        The court has gradually moved from an anthropocentric to bio-centric interpretation of the term 'person' in Article 21, examples being the Jallikattu case.
        
        In the Prevention of Cruelty to Animals Act, 1960, an animal mentioned in the act, cannot be used for exhibition, circus, trade, etc. In 20 11 bulls got included in the list and hence jallikattu got banned, in 20 14 court upheld the ban
        
        In January 2016, in what could be seen as a clearly political move, the union environment ministry revoked the ban by issuing a notification months
        
        The court said Article 21 also includes the Right to Life of animals too citing universal declaration of
        animal welfare which mentions five freedoms:
        
        o Freedom to express normal patterns of behavio
        
        o Freedom from hunger, thirst, malnutrition, etc.
        
        o Freedom from fear and distress
        
        o Freedom from pain, injury, disease
        
        o Freedom from physical discomfort
        
        In January 2016, Supreme Court stayed this 2016 Union Government notification, as it was challenged by the AWBI and PETA
        
        On 23 January 2017, the Tamil Nadu legislature passed a bi-partisan bill, with the accent of Indian President, exempting jallikattu from the Prevention of Cruelty to Animals Act (1960).
        
        But Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act of 2017 is not much different from the state law overturned by Supreme Court in 2009.
        
        Even Article 51A mentions to show compassion to animals.
        
        In 2006, the Madras High Court banned it after the death of a young spectator.
        
        In 2009, the ban was subsequently lifted with the Tamil Nadu Regulation of Jallikattu Act, 2009.
      - River's Status as a Living Person
        
        In 20 17, the Whanganui river of New Zealand was given the status of 'living person'.
        
        So, just as the government has the responsibility to protect the rights and lives of people, the same rights will be conferred to the river.
        
        The Uttarakhand High Court declared Ganga and Yamuna rivers as 'living persons'. It also directed that the Director of Namami Gange programme, the Chief Secretary of Uttarakhand and the Attorney General of Uttarakhand, would be designated as parents of the rivers.
        
        The State Government approached the Apex Court regarding the conferment of responsibilities on the Uttarakhand Government alone, while the rivers were interstate rivers. The Apex Court stayed the order of the High Court.
      - Expansion of Rights under Article 21:
        
        Most rights are a negative obligation on the state.
        
        But how do you define life, in biological terms it is simply the physical act of breathing, but the
        domain has expanded and hence the negative role of state turns to positive role to preserve life.
        
        Examples being health, shelter, environment and hence the state's responsibility to ensure these, and
        thus makes these positive obligations.
        
        Thus Article 21 has become a canopy of rights under which various rights have found nourishment and
        growth.
        
        sleep can not be the prerogative of the state as it depends on many things.
        
        Kharak Singh v. State of Uttar Pradesh 1963
        
        Supreme court held that the term “life” is employed in this context, more than only animal existence is indicated. The prohibition against its loss applies to all the limbs and faculties that are used to enjoy life. The provision forbids the mutilation of the body, including the removal of an eye, an armoured leg, or any other organ that allows communication between the soul and the outside world.
      - CONTINUATION FROM
        BASICS OF ARTICLE-21
        
        List of things included under Right to life:
        
        Livelihood
        
        Free legal aid
        
        Healthy environment
        
        Fair trial
        
        Reputation
        
        Privacy
        
        Human dignity
        
        Peaceful sleep
        
        Shelter
        
        Emergency medical aid
        
        Speedy trial
        
        Health
        
        Effect of EMERGENCY on the fundamental rights
        
        Articles 358 and 359 sets out the effect of a national emergency on the fundamental rights. Article 358 deals with suspension of the elemental rights guaranteed by Article 19.
        
        While Article 359 deals with the suspension of other fundamental rights except guaranteed by Article 20 and 21.
        
        According to Article 358, when a proclamation of national emergency is formed the six fundamental rights under Article 19 are automatically suspended.
        
        No separate order for their suspension is required.
        
        The 44th Amendment Act of 1978 restricted the scope of Art. 358 providing that the six fundamental rights under Art. 19 will be suspended only if the National emergency is asserted on the ground of war or external aggression and not on the ground of armed rebellion.
        
        As per Article 359, the president is authorised to suspend the right to move any court for the enforcement of fundamental rights during the National emergency. In other words, the fundamental rights are not suspended as such, but only their enforcement/remedies
- - - - Thus for example in the recent case under Pegasus, any use has to be done under a law that has been legislated. But due to absence of a proper legal framework, it is a crucial issue of public concern and
        privacy will be violated.
        
        issues dealt in this case
        
        Puttaswamy case resulted into declaration of right to privacy as a fundamental right under Article 21 of the Indian Constitution. Thus one can move to Supreme Court or high court against tyranny of state.
        
        This will strengthen freedom of thoughts, expressions, beliefs etc.
        
        Provides for protection against the state’s interference in the private matters including marriage, family & sex.
        
        It will help in prevent the situation of surveillance by the state.
        
        It will give boost to the rights of the transgender & LGBT as confirmed by scrapping of section 377 of IPC.
        
        The dignity & integrity of a people’s body, mind & thoughts are protected through Right to privacy.
        
        Now one can make the state accountable & seek justice in case of any infringement in the private zone & in case of unnecessary surveillance without her consent.
        
        This opens doors for further debates, will encourage awareness about the rights enjoyed by the citizens.
        
        This verdict on right to privacy will also challenge the validity of privacy policies of many companies and will make them transparent and accountable.
  - - - The court accepted that sec 5 of Telegraph Act, 1885 authorized the government to conduct
        telephone tapping. But in this regard, no rules had been made. Without rules, this was an unchecked absolute power primed for abuse.
  - - - o Sovereignty and integrity of India
      - o Security of state
      - o Friendly relations with foreign countries
      - o Public order
      - o To prevent incitement of an offence
  - - - The central government argued that:
        
        There is no right to be left alone because man is social animal, and hence negating the concept that man can have a private domain and he is limited to a public domain.
        
        o The government also said that right to privacy is demanded by people who have something to hide
        
        o Right to privacy is an elitist notion, whereas poor are concerned with basic livelihood issues.
        
        o Right to privacy is very difficult to define. Where the private sphere ends, and where the public sphere starts is very ambiguous and difficult to determine.
  - - - In 1954, a 8 judge bench in MP Sharma case, and 6 judge bench in Kharak Singh case, the apex court
        had held that right to privacy is not categorically mentioned in part Ill of the constitution.
        
        But a smaller bench in PUCL case had held right to privacy as a fundamental right, thus to overrule a
        large bench of 8 judges in the MP Sharma case, a nine judge bench was required to uphold the judgement in PUCL case.
  - - - But the ADM Jabalpur case was made null and void by the 44th Constitution Amendment Act which
        had the provision that Article 20 and 21 cannot be suspended during emergency, and if that amendment is removed later, the case still upholds
        
        So finally in Puttaswamy case, the courts also overruled the ADM Jabalpur case
  - - - Right to privacy is not concrete and is perhaps more ambiguous and fluid as compared to the other
        fundamental rights
        
        Hence it will be allowed to evolve on a case to case basis.
  - - - In 20 12, Justice AP Shah Committee was formed and it recommended a need for a privacy law to protect one's privacy from both public and private encroachment.
        
        For e.g. big tech privacy commissioners at centre and state levels need to be appointed, privacy commissions to deal with
        privacy law cases, etc.
      - RTI Act clearly says not everything can be disclosed, sec 8 gives a list of exemptions, a provision
        includes any information that serves no public purpose but amounts to unwarranted invasion of privacy, information held in fiduciary capacity, thus these elements were already present in RTI act.
- - - - In Munn Vs. Illinois (94 U.S. 113), J.Field spoke of the right to live as follows, “by the term ‘life’ as here used, something more is meant than sheer animal existence”.
        
        Supporting this view, Justice Bhagwati, in Francis Coralie Vs. U.T. of Delhi (1981 SC), had observed, “we think that right to life includes the right to live with human dignity and all that grows along with it namely, the bare necessities of life such as the adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself. The protection extends to all those limbs of body by which the life is enjoyed”.
  - - - Re Sant Ram (1960 SC), a case which came up before Maneka Gandhi in which the Apex Court ruled that the right to livelihood would not fall within the expression “life” in Article 21.
      - In Olga Tellis Vs. Bombay Municipal Corporation (1986 SC), a case which was brought by pavement dwellers to resist eviction of their habitat by the Bombay Municipal Corporation, the right to livelihood is born out of the right to life, as no person can live without the means of living, that is, the means of livelihood
        
        The Court has observed in this connection:
        
        “….the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood.”
        
        If the right to livelihood is not treated as part and parcel of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
  - - - Right to privacy has been held to be a fundamental right of a citizen being an integral part of article 21 of the Indian Constitution. It was also said that the right to life and personal liberty also includes right to sleep.
  - - - Thus there is a debate about right to be forgotten where the information is no longer relevant, not redundant to remove that data from the internet and hence the person shouldn't be stigmatized for the entire life
        
        Delhi High Courttermed right to forgotten as a fundamental right, the data protection bill, 20 19, also
        contains a similar provision.
    - - Since internet is of a global nature, enforcement of orders is difficult and hence it may be removed from the local internet but not from the global one
      - Can lead to censorship.
      - Compromise quality of internet.
      - Compromise right to information of people.
      - May amount to re-writing history.
    - - The RTBF was prohibited from being used if the material in question was needed for the following purposes, according to SC
        
        Exercising one’s freedom of expression and information.
        
        Compliance with legal obligations.
        
        The performance of responsibility for the public’s welfare or health.
        
        Protection of privacy in the public interest.
        
        For statistical purposes, for scientific or historical research, or both; or
        
        Establishment, carrying out, or defending legal claims.
  - - - The Supreme Court held that the right to education was a fundamental right under Article 21 of the Indian Constitution, which guaranteed the right to life and personal liberty
  - - - Kerala High Court in Faheema Shirin v. State of Kerala, 2020 also declared the right to Internet access as a fundamental right.