The Tribune - Spectrum


Sunday, March 16, 2003

Right to life is more than physical existence

Fundamental Human Rights, The Right to Life and Personal Liberty
by Sunil Deshta & Kiran Deshta. Deep & Deep, New Delhi. Pages 269. Price not mentioned.

Fundamental Human Rights, The Right to Life and Personal LibertyTHE Emergency clamped on the people of India by one of our former Prime Ministers and subsequently the 42nd amendment have been the starting point for many discussions. Some questioned the status of Articles 19, 20 and 21 during the proclamation of Emergency. It is basically these fundamental rights, especially Art 21, which the authors set out to explore. Written in a very technical language, you cannot simply browse though this book. With all watershed cases being covered, the reader has to follow each and every word. The authors mention in the preface that Art 21 is "the fundamental of fundamental rights." In their research, they acquaint us with various aspects of this right, whether it is the right to live in a healthy environment or the right to live with dignity. One reassuring point highlighted is that the right to life does not only mean "mere physical existence, but includes the right to essential means and facilities which make life worth living with comfort and dignity. An atmosphere where a person can grow physically as well as mentally without fear or restrictions."

The book opens with the authors describing and eulogising the right to life and personal liberty. The controversy regarding Art 21, the shortest article in the Constitution, though the "most significant for those who cherish the ideals of liberty," is explained. Adapted from Art 31 of the Japanese Constitution, the case finely brought forward is the dilemma of the Constitution makers whether to adapt the "due process of law" or "procedure established by law." Besides this, a chapter that deals with the right to life vis-à-vis capital punishment is informative. The writers give a list of countries that have abolished capital punishment through law or disuse.


This is the largest democracy in the world and despite challenges from within the boundaries and beyond—we have managed to have regular elections and a smooth change in successive governments. But there is no escaping the fact that the executive has been trying time and again to steadily make inroads into citizens’ liberty. With an increasing number of lawbreakers becoming "lawmakers," liberty is all the more threatened. This is where Art 21 comes in for a better understanding. Every law has to be just and reasonable and deprivation of life and personal liberty should adhere to the principles of natural justice. An effort, however arduous, to go through this work will be rewarding for the reader.

The relationship of right to life and personal liberty with other fundamental rights is important. A discussion of Articles 14, 19 & 21 as three points in a golden triangle makes the study very clear. What is highlighted in this work is how law enforcement is at odds with civil liberty. This clash between liberty and law is inevitable and yet a fine balance has to be sought. If Lord Acton talks about liberty as the highest political end, Jeremy Bentham says, "Every law is evil, for every law is an infraction of liberty." The interest of the individual and community are inseparable—"the primary function of the government is simply to maintain the order indispensable to individual freedom"— this is what the authors seem to conclude. The role of the judiciary is also highlighted—its activist approach to grant monetary relief to those whose fundamental rights are violated or giving right to bail, right to legal aid a constitutional status. As Eric Schwab has said, "The Republic is defended in two stages—‘Ballot box and jury box.’" The authors could also have talked of the wonderful world of John Locke and Jean Jacques Rousseau where they have discussed Natural rights. A little bit of extra information as to where, how and with whom the concept of natural rights originated and gained importance would have made this work invaluable. The book can be recommended to libraries for serious students of law and political science.