Right under Article 21 is partially eclipsed when subjected to preventive detention: Punjab and Haryana High Court

Tribune News Service

Saurabh Malik

Chandigarh, December 9

The Punjab and Haryana High Court has ruled that an individual’s right under Article 21 of the Constitution is partly eclipsed if he is deprived of his liberty by putting him under preventive detention.

In a significant judgment on an individual’s right to life and liberty and the permissible curbs limiting the freedom, the Bench has also rejected the notion of demonising or avoiding Article 22. Acknowledging the limitations imposed by Article 22 on the right to life and liberty, Justice Rajbir Sehrawat has described the constitutional provision as a necessary evil.

The assertion came as Justice Sehrawat turned down a petition by Sarabjeet Singh Kalsi for directions to the respondents to arrest and join him in the investigation of an FIR registered on February 24 for attempt to murder and other offences at Ajnala police station.

The Bench was told that he, along with nine others, had been detained under the National Security Act at Dibrugarh Central Jail in Assam since March and was not arrested in the criminal case registered for the last six months.

The Bench was also told that protests were carried out in Punjab under leadership of Amritpal Singh, head of organisation 'Waris Punjab De'. In the process, they allegedly ransacked Ajnala police station, attacked police, destroyed record and created an adverse situation for public order.

Justice Sehrawat asserted that Article 21 contained one of the most important fundamental rights guaranteed to all in India ––the right to life and liberty. It could aptly be called the brightest shining star in the constitutional constellation of Bharat.

Justice Sehrawat added all “brightest shining stars” were cursed to undergo an eclipse. Article 21 was no exception. Article 22 imposed curbs on the citizens’ liberty to some extent in certain situations and to a greater extent for certain other reasons. The present case represented the classic friction between Article 21 and Article 22.

Justice Sehrawat added: “The right guaranteed by Article 21 cannot surpass the rigour of limitation permitted to the State by Article 22. Demonising Article 22 is also not going to remove the eclipse which this Article casts over the right guaranteed by Article 21. Even if Article 22 is considered to be an evil, it happens to be a necessary evil to ensure that the liberty of every citizen is maintained at an optimal level, by not permitting the liberty of one individual to the absurd heights, which may try to harm the liberty of another citizen; directly or indirectly, by creating adverse situations of public order.”

Justice Sehrawat said the state could not be forced to bring the petitioner to Punjab since it claimed to have inputs justifying keeping him away from the state. The Bench was assisted in the matter by advocates Navkiran Singh, Harpreet Kaur and state counsel Aman Pal and Sandeep.

‘India, that is Bharat…’

Justice Rajbir Sehrawat of the Punjab and Haryana High Court has set a historic precedent by using the term "Bharat" instead of the conventional "India" in at least six references throughout his judgment. This marks a departure from the traditional usage of "India" in legal discourse amidst the ongoing debate on nomenclature.

The judgment, notable for its emphasis on the Constitution of Bharat rather than the more commonly cited Constitution of India, adds a layer of significance to the ongoing discourse surrounding the use of the term "Bharat".

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