The Book of Prof Shad.docx

We all have a role to play 1 right to life personal

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WE ALL HAVE A ROLE TO PLAY. 1. RIGHT TO LIFE & PERSONAL LIBERTY Refer to Document of Destiny, Ch 13 In the constellation of human rights, life and personal liberty are the most precious of all entitlements. If they are deprived, all other freedoms suffer an eclipse as well. In support of these rights the Constitution in Article 5(1) ordains that “no person shall be deprived of his life or personal liberty save in accordance 19
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with law.” Over the years, judicial construction of the static clauses of Article 5(1) has helped to map out the terrain covered by this constitutional grant. MEANING OF ‘PERSON’ The term ‘person’ refers to citizens as well as non-citizens. The term includes a child in the womb. That is why causing miscarriage is a criminal offence (sections 312, 313, 315, 316 of the Penal Code). However, a child in the womb can be deprived of his life by means of abortion subject to the pre-conditions of section 312. The term may, conceivably, even include artificial persons like ships or aircraft on whom the law can confer legal personality! CONCEPT OF ‘LIFE’ The word ‘life’ does not refer merely to the animal existence of breathing and living. It covers the right to live with human dignity . Dignity includes protection against torture, mutilation and amputation. Even the handcuffing of a prisoner when handcuffing is not reasonably necessary can bring about judicial censure 2 because arrestees have a right to dignity. The idea of dignity as part of life becomes relevant if a prisoner complains of inhuman conditions of detention like solitary confinement 3 In India, it has been held that ‘life’ includes such necessities of life as adequate nutrition, clothing, shelter and facilities for reading and writing. It even includes minimum wages for workers and the right to livelihood 4 . In Olga Tellis v Bombay AIR 1986 SC 180 pavement dwellers were ousted to the outskirts of the city where there were no visible means of livelihood. The court held that deprivation of their livelihood constituted an unconstitutional deprivation of life. In Malaysia too in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan [1996] 1 MLJ 261 Gopal Sri Ram, JCA in a ground-breaking judgment held that ‘life’ in Article 5(1) includes the right to seek and to continue in public or private service employment subject to removal for good cause by resort to 2 In such situations, habeas corpus will not be the appropriate remedy and the court will issue some other remedy like an order of damages or mandamus. 3 Sunil Batra (No. 1) v Delhi AIR 1978 SC 1575 4 Maneka Gandhi v Union of India AIR 1978 SC 597; Francis Coralie v Union ; Peoples Union for Democratic Rights v Union of India AIR 1982 SC 1473; Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; Kharak Singh v State of U.P. AIR 1963 SC 1295.
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