Write a critical essay on the Concept of personal liberty favoured by the Supreme Court.

Question: Write a critical essay on the Concept of personal liberty favoured by the Supreme Court. [BJS 1986]

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Answer

The Government of India Act, 1935 established Article 21 in the Constitution of India which states that no person shall be deprived of his life and liberty except according to the procedure established by law. The provision mentions two fundamental rights i.e. Right to life and the Right of personal liberty guaranteed to all citizens and non-citizens of India under Part III of the Constitution. Article 21 is described as the heart of fundamental rights and the rights could not be suspended even in a case of emergency.

There are various judgments of the Supreme Court which safeguarded the personal liberty of an individual against arbitrary and unjust laws. The court moved from a traditional pedantic approach to a purposive approach in constructing the right to life and right to personal liberty under the constitution by pronouncement in the following cases:

One of the first case laws on this provision was A.K Gopalan v. State of Madras [AIR 1950 SC 27] in which the Supreme Court took a narrow interpretation of Article 21 and held that this fundamental right is only available against arbitrary executive action and not against arbitrary legislative action. Meaning, the case empowered the state to deprive a person of his fundamental rights in Article 21 based on a law.

This judgment was flawed in many ways, so in 1978 the Supreme Court overruled its judgment of the Gopalan Case and took a wider interpretation of Article 21 in the landmark judgment of Maneka Gandhi v. Union of India [1978 AIR 597]. The SC in this case held that the right to life and liberty of a person can be deprived by law on the condition that the procedure established by that law is reasonable, fair, and just. It must satisfy the principle of natural justice, which is a basic component of fair procedure under Art. 21. In this case, the Supreme Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal liberty. After that, the concept of personal liberty under Article 21 has changed multidimensional approaches and reached a new horizon.

In Indian Young Lawyers Assn​. v. State of Kerala,[2018 SC 1690] popularly known as Sabrimala case, SC allows women entry to Sabarimala temple, says exclusionary practices violate right to worship under Article 25, 14, and 21. It held that Rules disallowing women in Sabarimala are unconstitutional and violative of Article 21 and struck down Victorian-era Section 497 of IPC as Unconstitutional, Plea on the ground that it “prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution”.

In its landmark judgment, the Supreme Court in Navtej Singh Johar & Ors. v. Union of India [W. P. (Crl.) No. 76 of 2016] pronounced that Section 377 of the Indian Penal Code is unconstitutional. The five-judge bench read out four judgments, all of which held that the law, which criminalizes ‘unnatural sex’ between consenting adults and has been used to target the LGBTQI+ community in India, has been struck down in so far as it criminalizes same-sex intercourse.

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