The content of Art. 21 next calls for examination. Explaining the scope of the words “life” and “liberty” which occurs in the 5th and 14th Amendments to the U.S. Constitution reading “No person……shall be deprived of life, liberty or property without due process of law”, to quote the material words, on which Art.21 is largely modelled, Field, J. observed:
“By the term ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world……….By the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bounds of a prison.”
It is true that in Art. 21, as contrasted with the 4th and 14th Amendment in the U.S. the word “liberty” is qualified by the word “personal” and therefore its content is narrower. But the qualifying adjective has been employed in order to avoid overlapping between those elements or incidents of “liberty” like freedom of speech, or freedom of movement etc. already dealt with in Art. 19 (1) and the “liberty” guaranteed by Art. 21 – and particularly in the context of the difference between the permissible restraints or restrictions which might be imposed by sub-cls. 2 to 6 of the Article on the several species of liberty dealt with in the several clauses of Art. 19(1). In view of the very limited nature of the question before us it is unnecessary to pause to consider either the precise relation-ship between the “liberties” in Art. 19(1) (a) and (d) on the one hand and that in Art. 21 on the other, or the content and significance of the words “procedure established by law” in the latter Article, both of which were the subject of elaborate Consideration by this Court in A.K. Gopalan vs. state of Mardas, (1950) SCR 88 In fact, in Gopalan’s case (supra) there was unanimity of opinion on the question that if there was no enacted law, the freedom guaranteed by Art. 21 would be violated, though the learned Judges differed as to whether any and every enacted law satisfied the description or requirements of “a procedure established by law.”
Kharak Singh Versus State of U.P. and others -18/12/1962
