State is under a duty to affirmatively protect the rights of a person under Article 21, whenever there is a threat to personal liberty, even by a nonState actor
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL/CIVIL APPELLATE JURISDICTION
WRIT PETITION (CRIMINAL) NO. 113 OF 2016
KAUSHAL KISHOR … PETITIONER(S)
VERSUS
STATE OF UTTAR PRADESH & ORS. …RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION @ (DIARY) NO. 34629 OF 2017
J U D G M E N T
V. RAMASUBRAMANIAN, J.
3. Thereafter, the Constitution Bench, by an order dated
24.10.2019, formulated the following five questions to be decided by
this Court:
“…1) Are the grounds specified in Article 19(2) in
relation to which reasonable restrictions on the right
to free speech can be imposed by law, exhaustive, or
can restrictions on the right to free speech be imposed
on grounds not found in Article 19(2) by invoking other
fundamental rights?
2) Can a fundamental right under Article 19 or 21 of
the Constitution of India be claimed other than against
the ‘State’ or its instrumentalities?
3) Whether the State is under a duty to affirmatively
protect the rights of a citizen under Article 21 of the
Constitution of India even against a threat to the
liberty of a citizen by the acts or omissions of another
citizen or private agency?
4) Can a statement made by a Minister, traceable to
any affairs of State or for protecting the Government,
be attributed vicariously to the Government itself,
especially in view of the principle of Collective
Responsibility?
5) Whether a statement by a Minister, inconsistent
with the rights of a citizen under Part Three of the
Constitution, constitutes a violation of such
constitutional rights and is actionable as
‘Constitutional Tort”? …”
.....
79. “Whether the State is under a duty to affirmatively protect the
rights of a citizen under Article 21 of the Constitution of India even
against a threat to the liberty of a citizen by the acts or omissions of
another citizen or private agency?” is the third question referred to
us.
84 R.D. Shetty vs International Airport Authority (1979) 3 SCC 489
85 Andi Mukta vs V.R. Rudani (1989) 2 SCC 691
112
80. Before we proceed further, it is necessary to make a small
correction. Article 21 right is available not only to citizens but to all
persons. Therefore, the word ‘citizen’ mentioned in Question No.3
has to be read as ‘person’.
81. As we have pointed out in the Table under paragraph 73
above, the expression “the State” is not used in Article 21. This
Article 21 guarantees every person that he shall not be deprived of
his life and liberty except according to the procedure established by
law. Going by the scheme of PartIII which we have outlined both in
the preceding paragraphs and in the Table in paragraph 73, it is
clear that the State has two obligations, (i) not to deprive a person
of his life and liberty except according to procedure established by
law; and (ii) to ensure that the life and liberty of a person is not
deprived even otherwise. Article 21 does not say “the State shall
not deprive a person of his life and liberty”, but says that “no
person shall be deprived of his life or personal liberty”.
82. When the Constitution was adopted, our understanding of the
words “life” and “personal liberty” was not as it has evolved over the
113
past seven decades. Similarly, it was not imagined or conceived at
that time that anyone other than the State is capable of depriving
the life and personal liberty of a person, except by committing a
punishable offence. But with the expanding horizons of our
philosophical understanding of law, life and liberty and the
advancement of science and technology, we have come to realize
that “life is not an empty dream” and “our hearts are not muffled
drums beating funeral marches to the grave”86, nor is “life a tale told
by an idiot, full of sound and fury signifying nothing”
87
.
83. Over a period of time, this Court has interpreted ‘the right to
life’ to include, (i) livelihood; (ii) all those aspects of life which go to
make a man’s life meaningful, complete and worth living; (iii)
something more than mere survival or animal existence; (iv) right to
live (and die) with human dignity; (v) right to food, water, decent
environment, medical care and shelter etc.; (vi) all that gives
meaning to a man’s life, such as his tradition, culture, heritage and
protection of that heritage in its full measure; and (vii) the right to
Privacy. There are certain jurisdictions which have taken this right
86 From H.W. Longfellow in “A Psalm of life”
87 From Shakespeare in Macbeth
114
to include “the right to be forgotten” or the “right not to be
remembered”.
84. When the word “life” was understood to mean only physical
existence, the deprivation of the same was generally conceived to be
possible only by the State, except in cases where someone
committed an offence punishable under the Penal Code. But the
moment the right to life under Article 21 was developed into a
bouquet of rights and science and technology intruded into all
spheres to life, the deprivation of the right by nonState actors also
became possible. Another development that has taken place in the
past 3 to 4 decades is that several of the functions of the
Government have either been outsourced to nonState actors or
been entrusted to publicprivate partnerships. This is why, the High
Courts and this Court modulated the tests to be applied for finding
out the maintainability of an action under Article 226 or Article 32.
Once upon a time, the maintainability of a petition under Article
32/226 depended upon “who the respondent was”. Later, the focus
shifted to “the nature of the duties/functions performed” by the
115
respondent, for finding out his amenability to the jurisdiction under
Article 226.
85. Life and personal liberty are two different things, even while
being an integral part of a whole and they have different
connotations. Question No. 3 is so worded that the focus is not on
‘deprivation of life’ but on (i) ‘deprivation of personal liberty’ and that
too by the acts or omissions of another person or private agency;
and (ii) the duty of the State to affirmatively protect it. Therefore, we
shall, in our discussion, focus more on two aspects, namely,
(i) deprivation of personal liberty by nonState actors; and (ii) the
duty of the State. An elaborate exposition of the expression
“personal liberty” and its origin in Greek civilization may be found
in the judgment of this Court in Siddharam Satlingappa Mhetre
vs. State of Maharashtra88. Suffice it to say for our purpose that
in this judgment, this Court identified in paragraph 53 of the
Report that Article 21 guarantees two rights, namely, (i) right to life;
and (ii) right to personal liberty. Therefore, because of the manner
in which Question No. 3 is framed, we shall try to confine our
88 (2011) 1 SCC 694
116
discussion to personal liberty, though at times both may overlap or
get interchanged.
86. The expression “personal liberty” appearing in Article 21 was
held by this Court in A.K. Gopalan (supra) to mean freedom from
physical restraint of a person by incarceration or otherwise.
However, the understanding of the expression “personal liberty” got
enlarged in Kharak Singh vs. State of U.P.89 It was a case where
a person who was originally charged for the offence of dacoity and
later released for lack of evidence, was put under surveillance by
the Police, and his name included in the historysheet under the
U.P. Police Regulations. As a result, he was required to make
frequent visits to the Police Station. Sometimes the Police made
domiciliary visits at night to his house. They would knock at the
door, disturb his sleep and ask to report to the Police, whenever he
went out of the village. Though by a majority, the Constitution
Bench held in Kharak Singh (supra) that the regulation permitting
domiciliary visits is unconstitutional, the majority upheld the Police
surveillance on the ground that (at that time) right to privacy had
89AIR 1963 SC 1295
117
not become part of the fundamental rights. But K. Subba Rao, J.
speaking for himself and J.C. Shah, J. held that the concept of
personal liberty in Article 21 is comprehensive enough to include
privacy. The thinking reflected in A.K. Gopalan that physical
restraint was necessary to constitute infringement of personal
liberty, was completely changed by K. Subba Rao, J. in his minority
opinion in Kharak Singh. Giving a completely new dimension to
personal liberty, K. Subba Rao, J. said:
“(31) …The expression is wide enough to take in a
right to be free from restrictions placed on his
movements. The expression “coercion” in the modern
age cannot be construed in a narrow sense. In an
uncivilized society where there are no inhibitions,
only physical restraints may detract from
personal liberty, but as civilization advances the
psychological restraints are more effective than
physical ones. The scientific methods used to
condition a man's mind are in a real sense
physical restraints, for they engender physical
fear channelling one's actions through
anticipated and expected grooves. So also
creation of conditions which necessarily engender
inhibitions and fear complexes can be described
as physical restraints. Further, the right to
personal liberty takes in not only a right to be
free from restrictions placed on his movements,
but also free from encroachments on his private
life. It is true our Constitution does not expressly
declare a right to privacy as a fundamental right, but
the said right is an essential ingredient of personal
liberty. Every democratic country sanctifies
118
domestic life; it is expected to give him rest,
physical happiness, peace of mind and security. In
the last resort, a person's house, where he lives with
his family, is his “castle”; it is his rampart against
encroachment on his personal liberty. The pregnant
words of that famous Judge, Frankfurter J., in (1948)
338 US 25, pointing out the importance of the security
of one's privacy against arbitrary intrusion by the
police, could have no less application to an Indian
home as to an American one. If physical restraints on
a person's movements affect his personal liberty,
physical encroachments on his private life would affect
it in a larger degree. Indeed, nothing is more
deleterious to a man's physical happiness and health
than a calculated interference with his privacy. We
would, therefore, define the right of personal
liberty in Art. 21 as a right of an individual to be
free from restrictions or encroachments on his
person, whether those restrictions or
encroachments are directly imposed or indirectly
brought about by calculated measures. It so
understood, all the acts of surveillance under
Regulation 236 infringe the fundamental right of the
petitioner under Art. 21 of the Constitution.”
As pointed out by Rohinton Nariman, J., in Mohd. Arif alias
Ashfaq vs. Registrar, Supreme Court of India & Ors.90
“The
minority judgment of Subba Rao and Shah, JJ. eventually became
law in Rustom Cavasjee Cooper vs. Union of India91(Bank
Nationalisation case), where the 11Judge Bench finally discarded
the view expressed in A.K. Gopalan and held that various
90(2014) 9 SCC 737
91(1970) 1 SCC 248
119
fundamental rights contained in different articles are not mutually
exclusive …”.
87. If U.P. Police Regulations were challenged in Kharak Singh,
identical Regulations issued by the State of Madhya Pradesh were
challenged in Gobind vs. State of Madhya Pradesh92. Though this
Court upheld the impugned Regulations, K.K. Mathew, J. pointed
out:
“25. Rights and freedoms of citizens are set forth in
the Constitution in order to guarantee that the
individual, his personality, and those things stamped
with his personality shall be free from official
interference except where a reasonable basis for
intrusion exists. “Liberty against Government” a
phrase coined by Professor Corwin expresses this idea
forcefully. In this sense, many of the fundamental
rights of citizens can be described as contributing to
the right to privacy.
*** *** ***
27. There are two possible theories for protecting
privacy of home. The first is that activities in the home
harm others only to the extent that they cause offence
resulting from the mere thought that individuals might
be engaging in such activities and that such ‘harm’ is
not constitutionally protectible by the State.The
second is that individuals need a place of
sanctuary where they can be free from societal
control. The importance of such a sanctuary is
that individuals can drop the mask, desist for a
while from projecting on the world the image they
want to be accepted as themselves, an image that
may reflect the values of their peers rather than
92(1975) 2 SCC 148
120
the realities of their natures.[See 26 Stanford Law
Rev. 1161, 1187]”
88. Thus, the understanding of this Court in A.K. Gopalan, that
deprivation of personal liberty required a physical restraint,
underwent a change in Kharak Singh and Gobind (supra). From
there, the law marched to the next stage in Satwant Singh
Sawhney vs. D. Ramarathnam, Assistant Passport Officer, New
Delhi93 where a Constitution Bench of this Court held by a
majority, that the right to personal liberty included the right of
locomotion and right to travel abroad. It was held in the said
decision that “liberty" in our Constitution bears the same
comprehensive meaning as is given to the expression "liberty"
by the 5th and 14th Amendments to the U.S. Constitution and
the expression "personal liberty" in Article 21 only excludes
the ingredients of "liberty" enshrined in Article 19 of the
Constitution. The Court went on to hold that “the expression
"personal liberty" in Art. 21 takes in the right of locomotion
and to travel abroad, but the right to move throughout the
93 AIR 1967 SC 1836
121
territories of India is not covered by it inasmuch as it is
specially provided in Art. 19.”
89. Satwant Singh (supra) was the case of a businessman, who
was directed to surrender his passport, with a view to prevent him
from travelling out of India, on account of an investigation pending
against him under the Export and Import Control Act. It must be
noted that this case was before the enactment of The Passports Act,
1967.
90. After The Passports Act came into force, the decision of the
7Judge Bench in Maneka Gandhi vs. Union of India94 came. It
was held therein that the right to travel abroad is part of the right
to personal liberty and that the same cannot be deprived except
according to the procedure established by law.
91. Next came the decision in Bandhua Mukti Morcha vs. Union
of India & Ors.95. It was a case where a letter addressed by an
NGO to the Court exposing the plight of persons working in stone
quarries under inhuman conditions, was treated as a public
94 (1978) 1 SCC 248
95(1984) 3 SCC 161
122
interest litigation. Some of those workers were actually bonded
labourers. After this Court issued notice to the State Governments
and the lessees of the quarries, a preliminary objection was raised
as to the maintainability of the writ petition. While rejecting the
preliminary objection, this Court broadly indicated how the
fundamental rights of those bonded labourers were violated and
what were the duties of the State and the Court in cases of that
nature. The relevant portion of the decision reads thus:
“9. … We should have thought that if any citizen
brings before the Court a complaint that a large
number of peasants or workers are bonded serfs or are
being subjected to exploitation by a few mine lessees
or contractors or employers or are being denied the
benefits of social welfare laws, the State Government,
which is, under our constitutional scheme, charged
with the mission of bringing about a new socioeconomic order where there will be social and
economic justice for everyone and equality of status
and opportunity for all, would welcome an enquiry by
the Court, so that if it is found that there are in fact
bonded labourers or even if the workers are not
bonded in the strict sense of the term as defined in the
Bonded Labour System (Abolition) Act, 1976 but they
are made to provide forced labour or are consigned to
a life of utter deprivation and degradation, such a
situation can be set right by the State Government.
Even if the State Government is on its own enquiry
satisfied that the workmen are not bonded and are not
compelled to provide forced labour and are living and
working in decent conditions with all the basic
necessities of life provided to them, the State
Government should not baulk an enquiry by the Court
when a complaint is brought by a citizen, but it should
be anxious to satisfy the Court and through the Court,
123
the people of the country, that it is discharging its
constitutional obligation fairly and adequately and the
workmen are being ensured social and economic
justice. …”
92. Therefore, three major breakthroughs happened, the first in
Kharak Singh, the second in Satwant Singh and Maneka
Gandhi (supra) and the third in Bandhua Mukti Morcha (supra).
The first breakthrough was the opinion, though of a minority, that
physical restraint was not a necessary sine qua non for the
deprivation of personal liberty and that even a psychological
restraint may amount to deprivation of personal liberty. The second
breakthrough was the opinion in Satwant Singh and Maneka
Gandhi that the right of locomotion and to travel abroad are part of
the right to personal liberty. The third breakthrough was the
opinion in Bandhua Mukti Morcha that the State owed an
obligation to take corrective measures when there was an infraction
of Article 21.
93. In National Human Rights Commission vs. State of
Arunachal Pradesh & Anr.96, this Court was confronted with a
situation where private citizens, namely, the All Arunachal Pradesh
96(1996) 1 SCC 742
124
Students’ Union held out threats to forcibly drive chakmas, out of
the State. The National Human Rights Commission itself filed a writ
petition under Article 32. While allowing the writ petition and
issuing directions, this Court indicated the role of the State in the
following words:
“20. …Thus the State is bound to protect the life
and liberty of every human being, be he a citizen
or otherwise, and it cannot permit any body or group
of persons, e.g., the AAPSU, to threaten the Chakmas
to leave the State, failing which they would be forced to
do so. No State Government worth the name can
tolerate such threats by one group of persons to
another group of persons; it is dutybound to protect
the threatened group from such assaults and if it fails
to do so, it will fail to perform its constitutional as well
as statutory obligations. Those giving such threats
would be liable to be dealt with in accordance with
law. The State Government must act impartially and
carry out its legal obligations to safeguard the life,
health and wellbeing of Chakmas residing in the State
without being inhibited by local politics. …”
94. In Mr. ‘X’ vs. Hospital ‘Z’97, the appellant had accompanied a
patient to the hospital for treatment and offered to donate blood, for
the purpose of surgery. Before allowing him to donate blood,
samples were taken from “X”. It was detected that he was HIV
positive. The fact that Mr. “X” tested positive was disclosed by the
97(1998) 8 SCC 296
125
hospital to the fiancée of Mr. “X”. Therefore, the proposal for
marriage was called off and Mr. “X” was ostracised by the
community. Mr. “X” sued the hospital for damages, pitching his
claim on the right to privacy and the duty of confidentiality that the
hospital had in their relationship with him. Though this Court
partly agreed with Mr. “X” the court found that the disclosure made
by the hospital actually saved the life of a lady. But while dealing
with a right under Article 21 visàvis the hospital (a private
hospital), this Court held as follows :
“27. Right of privacy may, apart from contract,
also arise out of a particular specific relationship
which may be commercial, matrimonial, or even
political. As already discussed above, doctorpatient
relationship, though basically commercial, is,
professionally, a matter of confidence and, therefore,
doctors are morally and ethically bound to maintain
confidentiality. In such a situation, public disclosure of
even true private facts may amount to an invasion of
the right of privacy which may sometimes lead to the
clash of one person's “right to be let alone” with
another person's right to be informed.
28. Disclosure of even true private facts has the
tendency to disturb a person's tranquillity. It may
generate many complexes in him and may even lead to
psychological problems. He may, thereafter, have a
disturbed life all through. In the face of these
potentialities, and as already held by this Court in its
various decisions referred to above, the right of privacy
is an essential component of the right to life envisaged
by Article 21. The right, however, is not absolute and
126
may be lawfully restricted for the prevention of crime,
disorder or protection of health or morals or protection
of rights and freedom of others.”
95. In Pt. Parmanand Katara (supra), a human rights activist
filed a writ petition under Article 32 seeking a direction to the Union
of India that every injured person brought for treatment to a
hospital should instantaneously be given medical aid to preserve life
and that the procedural Criminal Law should be allowed to operate
thereafter. The basis of the said writ petition was a report about a
scooterist who got injured in a road traffic accident, being turned
away by the nearby hospital on the ground that they were not
authorized to handle medicolegal cases. Before the victim could be
taken to an authorized hospital located 20 kilometers away, he
died, which prompted the writ petition. While issuing directions,
this Court expressed an opinion about the affirmative duty of court
in paragraph 8 as follows:
“8. Article 21 of the Constitution casts the
obligation on the State to preserve life. The
provision as explained by this Court in scores of
decisions has emphasized and reiterated with
gradually increasing emphasis that position. A doctor
at the government hospital positioned to meet this
State obligation is, therefore, duty bound to extend
medical assistance for preserving life. Every doctor
127
whether at a government hospital or otherwise
has the professional obligation to extend his
services with due expertise for protecting life. No
law or State action can intervene to avoid/delay the
discharge of the paramount obligation cast upon
members of the medical profession. The obligation
being total, absolute and paramount, laws of
procedure whether in statutes or otherwise which
would interfere with the discharge of this
obligation cannot be sustained and must,
therefore, give way.…”
That the State has an obligation to help preserve life, guaranteed
under Article 21 was spelt out clearly in Pt. Parmanand Katara.
What applies to life applies equally to personal liberty. This is
because there may be cases involving both the right to life as well
as liberty.
96. For instance, in Suchita Srivastava & Anr. vs.
Chandigarh Administration98
,this Court had an occasion to
consider the reproductive rights of a mentallychallenged woman.
This right was read as part of the right to life and liberty under
Article 21. In Devika Biswas vs. Union of India.
99, this Court
considered certain issues concerning the entire range of conduct
and management, under the auspices of State Governments, of
98(2009) 9 SCC 1
99(2016) 10 SCC 726
128
sterilization procedures, either in camps or in accredited centres
and held that the right to health and reproductive rights of a person
are part of the right under Article 21. While doing so, this Court
quoted with approval the decision in Bandhua Mukti Morcha
where the obligation of the State to ensure that the fundamental
rights of weaker sections of society are not exploited, was
underlined.
97. Tapping of telephones in exercise of the power conferred by
Section 5(2) of the Indian Telegraph Act, 1885 became the subject
matter of challenge in People’s Union for Civil Liberties (PUCL)
vs. Union of India100. This Court held that conversation on
telephone is an important facet of a man’s private life and that
tapping of telephone would infringe Article 21. Technological
eavesdropping except in accordance with the procedure established
by law was frowned upon by the Court. This was at a time when
mobile phones had not become the order of the day and the State
monopoly was yet to be replaced by private players such as
intermediaries/service providers. Today, the infringement of the
100(1997) 1 SCC 301
129
right to privacy is mostly by private players and if fundamental
rights cannot be enforced against nonState actors, this right will go
for a toss.
98. In District Registrar and Collector, Hyderabad & Anr. vs.
Canara Bank & Ors.101
, what was under challenge was an
amendment made to The Indian Stamp Act, 1899 by the State of
Andhra Pradesh, empowering a public officer to inspect the
registers, books, papers and documents kept in any premises,
including a private place where such registers, books etc., are kept.
Taking cue from the decision in R. Rajagopal and Maneka
Gandhi, this Court held in paragraphs 55 and 56 of the decision as
follows:
“55. The A.P. Amendment permits inspection being
carried out by the Collector by having access to the
documents which are in private custody i.e. custody
other than that of a public officer. It is clear that this
provision empowers invasion of the home of the person
in whose possession the documents “tending” to or
leading to the various facts stated in Section 73 are in
existence and Section 73 being one without any
safeguards as to probable or reasonable cause or
reasonable basis or materials violates the right to
privacy both of the house and of the person. We have
already referred to R. Rajagopal case [(1994) 6 SCC 632]
101(2005) 1 SCC 496
130
wherein the learned Judges have held that the right to
personal liberty also means life free from encroachments
unsustainable in law, and such right flowing from
Article 21 of the Constitution.
56. In Maneka Gandhi v. Union of India [(1978) 1 SCC
248] a sevenJudge Bench decision, P.N. Bhagwati, J.
(as His Lordship then was) held that the expression
“personal liberty” in Article 21 is of the widest amplitude
and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have been
raised to the status of distinct fundamental rights and
given additional protection under Article 19 (emphasis
supplied). Any law interfering with personal liberty of a
person must satisfy a triple test: (i) it must prescribe a
procedure; (ii) the procedure must withstand the test of
one or more of the fundamental rights conferred under
Article 19 which may be applicable in a given situation;
and (iii) it must also be liable to be tested with reference
to Article 14. As the test propounded by Article 14
pervades Article 21 as well, the law and procedure
authorising interference with personal liberty and right
of privacy must also be right and just and fair and not
arbitrary, fanciful or oppressive. If the procedure
prescribed does not satisfy the requirement of Article 14
it would be no procedure at all within the meaning of
Article 21.”
99. In Indian Woman says Gangraped on orders of village
Court published in Business and Financial News dated
2312014, in Re102, this Court was dealing with a suo motu writ
petition relating to the gangrape of a women under orders of a
community panchayat as punishment for having a relationship with
a man belonging to a different community. After taking note of two
102(2014) 4 SCC 786
131
earlier decisions, one in Lata Singh vs. State of U.P.103 which
dealt with honour killings of youngsters involved in intercaste,
interreligious marriages and the other in Arumugam Servai vs.
State of Tamil Nadu104, which dealt with khap panchayats, this
Court opined in paragraph 16 as follows:
“16. Ultimately, the question which ought to consider
and assess by this Court is whether the State police
machinery could have possibly prevented the said
occurrence. The response is certainly a “yes”. The
State is dutybound to protect the fundamental
rights of its citizens; and an inherent aspect of
Article 21 of the Constitution would be the
freedom of choice in marriage. Such offences are
resultant of the State's incapacity or inability to
protect the fundamental rights of its citizens.”
In fact, this Court observed in the aforesaid decision that the
obligation of the State does not get extinguished upon payment of
compensation and that the rehabilitation of the victims of such
nature was a must.
100. In Shakti Vahini vs. Union of India & Ors.105
, while
dealing with a writ petition seeking a direction to the State
Governments and Central Government to take preventive measures
103(2006) 5 SCC 475
104(2011) 6 SCC 405
105(2018) 7 SCC 192
132
to combat honour crimes and to submit a National/State plan of
action, this Court issued a slew of directions directing the State
Governments to take both punitive and remedial measures, on the
ground that the State has a positive obligation to protect the life
and liberty of persons. In paragraph 49 this Court said, “We are
disposed to think so, as it is the obligation of the State to have an
atmosphere where the citizens are in a position to enjoy their
fundamental rights.” After quoting the previous decision in S.
Rangarajan (supra), which arose out of the infringement of the
freedom of expression in respect of a cinematograph film, this Court
said in Shakti Vahini (supra) as follows:
“49. …
We are absolutely conscious that the aforesaid
passage has been stated in respect of a different
fundamental right, but the said principle applies
with more vigour when the life and liberty of
individuals is involved. We say so reminding the
States of their constitutional obligations to
comfort, nurture the sustenance of fundamental
rights of the citizens and not to allow any hostile
group to create any kind of trench in them.”
101. At last, while dealing with the right to privacy, in Justice
K.S. Puttaswamy, this Court made it clear that, “it is a right
133
which protects the inner sphere of the individuals from
interference by both the State and nonState actors”.
102. Before we conclude this chapter, we must point out that some
academics feel that the same level of justification for infringement
by the State, for all rights recognized by the Court, end up being
problematic106 and that the idea of a hierarchy of rights, as
articulated by Das, J. in A.K. Gopalan may have to be examined.
In fact, Rohinton Nariman, J. articulated this idea in Mohd. Arif
(supra) where the question was as to whether a petition for review
in the Supreme Court should be heard in open Court at least in
death penalty cases. The learned Judge said:
“36. If a pyramidical structure is to be imagined,
with life on top, personal liberty (and all the
rights it encompasses under the new doctrine)
immediately below it and other fundamental
rights below personal liberty it is obvious that
this judgment will apply only to death sentence
cases. In most other cases, the factors mentioned by
Krishna Iyer, J. in particular the Supreme Court’s
overcrowded docket, and the fact that a full oral
hearing has preceded judgment of a criminal appeal on
merits, may tilt the balance the other way.”
106Anup Surendranath in his Article “Life and Personal Liberty” in The Oxford Handbook of
the Indian Constitution (South Asia Edition), 2016
134
Therefore, the importance of the right to personal liberty over and
above all the other rights guaranteed under Articles 19 and 14 need
hardly to be overemphasized.
103. Therefore, our answer to Question No.3 would be that the
State is under a duty to affirmatively protect the rights of a
person under Article 21, whenever there is a threat to personal
liberty, even by a nonState actor