Greatness of the bench lies in creativity…
There are cases where a decision one way or the other will count for the future, will advance or retard sometimes much, sometimes little, the development of the law in a proper direction. It is in these types of cases where the judge is to leap into the heart of legal darkness, where the lamps of precedent and common law principles flicker and fade, that the judge gets an opportunity to mold the law and to give it its shape and direction. This is what we have been trying to do in India.
– Justice P.N. BhagwatiIn the common law system judiciary plays a creative role by formulating, developing, re-molding and at times breaking down legal concepts from among the ideas and views prevailing in the community and by adapting legal concepts to the changing times. Thus we find the emergence, through judicial process, of different principles, concepts, rules and standards (norms) in various branches of law. Though the self-imposed rule of stare-decisis, which came into existence at a later stage of development of common law, imposed some restraint on judicial creativity, judicial decisions were considered a major source of law. It is evident that there is high scope for play of judicial wisdom in the inductive process, which is the hallmark of common law. In other words, judiciary had played a very significant role in the making of law.
Supreme Court has crystallized, case after case, various rights while interpreting fundamental rights guaranteed under Article 21 of our Constitution. Speedy trial, right against illegal arrest, right to compensation in case of custodial torture or death, rights of arrestees, right to consult a lawyer, right to free legal aid, right to life and liberty, right to live with human dignity, right to fair trial, right to living will and euthanasia etc., are just a few pointers in that directions, need not multiply illustration. I will try to cover all these theories expounded by the Supreme Court in various cases in the light of Article 21. Article 21 of the Constitution of India forbids deprivation of personal liberty except in accordance with the procedure established by law. It mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. While interpreting article 21 of the Constitution of India, the Supreme Court has granted certain safeguards and rights covered under right to life and personal liberty. To find out these rights and safeguards and to arranging, analyzing, and producing them in a systematic manner is the aim of this work.
ORGANIZATION OF THE STUDY-
In order to find the answers to the above mentioned questions the present work has been divided in different parts the schedule of which is under mentioned:-
The first part is introduction it acquaints us with the objective of the study on the enlargement of the ambit of Article 21 of the Indian Constitution through the process of judicial review, the questions involved in the study and the methodology used towards it. It is further divided in-
a)Origin of the concept of Fundamental Rights,
b)Evolution of Fundamental Rights in India,
c)Meaning of word ‘Life’ and ‘Personal Liberty’.
RETROSPECTIVE PERSPECTIVE AND CONSTITUTIONAL INTENT OF RIGHT TO LIFE AND PERSONAL LIBERTY.An attempt has been made to discuss the historical background and constitutional intent of Right to Life and Personal Liberty with the help of various theories proponded by various philosophers on the right to life and personal liberty, from UDHR, ICCPR, and from the debates in the constituent assembly on the Article 21 of the Indian Constitution.
SOCIAL CHANGE AND JUDICIAL REVIEW
An attempt will be made to discuss the social changes in the concept of right to life and personal liberty and its judicial review.
RIGHT TO LIFE AND PERSONAL LIBERTY : JUDICIAL INTERPRETATION FROM GOPALAN TO MANEKA
An attempt will be made to discuss the Supreme Court’s judgments interpreting Article 21 of the Indian Constitution from A. K. Gopalan’s case to Maneka Gandhi’s case.
RIGHT TO LIFE AND EXTINCTION OF LIFE THROUGH DEATH SENTENCE, SUICIDE AND “EUTHANASIA”
An attempt has been made to discuss the Supreme Court’s Judgment dealing the concept of extinction of life through death sentence, suicide and euthanasia, concept of living will under the ambit of Article 21 of the Indian Constitution.
RIGHT TO LIFE AND PERSONAL LIBERTY AND THEIR EVER EMERGING NEW ASPECTS AFTER MANEKA.An attempt has been made to discuss the Supreme Court’s judgments interpreting Article 21 of the Indian Constitution after Maneka Gandhi’s case till date.
CONCLUSION AND SUGGESTIONSIn this chapter I tried to summaries my work.