The language employed in the constitutional provision should be liberally construed, for such provision can never remain static. It is because stasticity would mar the core which is not the intent.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) ...Petitioner(s)
Versus
Union of India and Another …Respondent(s)
J U D G M E N T
Dipak Misra, CJI [for himself and A.M. Khanwilkar, J.]
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K. Passive Euthanasia in the context of Article 21 of the Constitution:
137. We have to restrict our
deliberation to the issue whether euthanasia can come within the ambit and
sweep of Article 21. Article 21 reads as follows:-
―21. Protection of life and personal
liberty.—No person shall be deprived of his life or personal liberty except
according to procedure established by law.‖
138. The word ‗liberty‘ is
the sense and realization of choice of the attributes associated with the said
choice; and the term ‗life‘ is the aspiration to possess the same in a
dignified manner. The two are intrinsically interlinked. Liberty impels an
individual to change and life welcomes the change and the movement. Life does
not intend to live sans liberty as it would be, in all possibility, a
meaningless survival. There is no doubt that no fundamental right is absolute,
but any restraint imposed on liberty has to be reasonable. Individual liberty
aids in developing one‘s growth of mind and assert individuality. She/he may
not be in a position to rule others but individually, she/he has the authority
over the body and mind. The liberty of personal sovereignty over body and mind strengthens
the faculties in a person. It helps in their cultivation. Roscoe Pound, in one
of his lectures, has aptly said:-
―… although we think socially, we must still
think of individual interests, and of that greatest of all claims which a human
being may make, the claim to assert his individuality, to exercise freely the
will and the reason which God has given him. We must emphasize the social
interest in the moral and social life of the individual, but we must remember that
it is the life of a free-willing being.‖
139. Liberty allows freedom
of speech, association and dissemination without which the society may face
hurdles in attaining the requisite maturity. History is replete with narratives
how the thoughts of individuals, though not accepted by the contemporaneous
society, later on gained not only acceptance but also respect. One may not
agree with Kantian rigorism, but one must appreciate that without the said
doctrine, there could not have been dissemination of further humanistic
principles. There is a danger in discouraging free thinking and curtailing the
power of imagination. Holmes in Adkins v.
Children’s Hospital, 261 US 525, 568 (1923) has observed:-
―It is merely an example of doing what you
want to do, embodied in the word ―liberty‖.‖
140. The concept of liberty
perceives a hazard when it feels it is likely to become hollow. This
necessarily means that there would be liberty available to individuals subject
to permissible legal restraint and it should be made clear that in that restraint,
free ideas cannot be imprisoned by some kind of unknown terror. Liberty cannot
be a slave because it constitutes the essential marrow of life and that is how
we intend to understand the conception of liberty when we read it in
association with the term ‗life‘ as used in Article 21 of the Constitution. The
great American playwright Tennessee Williams has said:-
―To be free is to have achieved your life.‖
141. Life as envisaged under
Article 21 has been very broadly understood by this Court. In Board of
Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and others, (1983)
1 SCC 124 the Court has held that the expression ―life‖ does not merely connote animal existence or a continued drudgery through
life. The expression ‗life‘ has a much wider meaning and, therefore, where the
outcome of a departmental enquiry is likely to adversely affect the reputation
or livelihood of a person, some of the finer graces of human civilization which
make life worth living would be jeopardized and the same can be put in jeopardy
only by law which inheres fair procedures.
142. In Maneka Gandhi
v. Union of India and another, (1978) 1 SCC 248 Krishna Iyer J., in his
own inimitable style, states that among the great guaranteed rights, life and
liberty are the first among equals carrying a universal connotation cardinal to
a decent human order and protected by constitutional armour. Once liberty under
Article 21 is viewed in a truncated manner, several other freedoms fade out
automatically. To sum up, personal liberty makes for the worth of the human
person. Travel makes liberty worthwhile. ‗Life‘ is a terrestrial opportunity
for unfolding personality, rising to higher status, moving to fresh woods and
reaching out to reality which makes our earthly journey a true fulfilment – not
a tale told by an idiot full of sound and fury signifying nothing, but a fine frenzy
rolling between heaven and earth. The spirit of man is at the root of Article
21. In the absence of liberty, other freedoms are frozen.
143. In State of
Andhra Pradesh v. Challa Ramkrishna Reddy and others, AIR
2000 SC 2083 : (2000) 5 SCC 712 this Court held that right to life is one of the
basic human rights and it is guaranteed to every person by Article 21 of the
Constitution and not even the State has the authority to violate that right. A
prisoner, whether a convict or under-trial or a detenu, does not cease to be a
human being. Even when lodged in jail, he continues to enjoy all his fundamental
rights including the right to life guaranteed to him under the Constitution.
The Court further ruled that on being convicted of crime and deprived of their
liberty in accordance with the procedure established by law, prisoners still
retain the residue of constitutional rights.
144. Having said so, we are
required to advert to the issue whether passive euthanasia can only be
conceived of through legislation or this Court can, for the present, provide
for the same. We have already explained that the ratio laid down in Gian Kaur does not convey that the
introduction of passive euthanasia can only be by legislation. In Aruna
Shanbaug, the two-Judge Bench has placed reliance on the Constitution Bench
judgment in Gian Kaur to lay down the
guidelines. If, eventually, we arrive at the conclusion that passive euthanasia
comes within the sweep of Article 21 of the Constitution, we have no iota of
doubt that this Court can lay down the guidelines.
145. We may clearly state
here that the interpretation of the Constitution, especially fundamental
rights, has to be dynamic and it is only such interpretative dynamism that
breathes life into the written words. As far as Article 21 is concerned, it is imperative
to mention that dynamism can, of course, infuse life into life and liberty as
used in the said Article.
146. In this regard, we may
reproduce a couple of paragraphs from Central
Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and
another, (1986) 3 SCC 156. They read as under:-
―25. The story of mankind is punctuated by progress
and retrogression. Empires have risen and crashed into the dust of history.
Civilizations have nourished, reached their peak and passed away. In the year
1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the Earldom of
Oxford in a dispute relating to the descent of that Earldom, said:
―... and yet time hath his revolution, there must
be a period and an end of all temporal things, finis rerum, an end of names and dignities,
and whatsoever is terrene....‖
The cycle of change and experiment, rise and
fall, growth and decay, and of progress and retrogression recurs endlessly in
the history of man and the history of civilization. T.S. Eliot in the First Chorus
from ―The Rock‖ said:
―O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.‖
26. The law exists to serve the needs of the
society which is governed by it. If the law is to play its allotted role of
serving the needs of the society, it must reflect the ideas and ideologies of
that society. It must keep time with the heartbeats of the society and with the
needs and aspirations of the people. As the society changes, the law cannot
remain immutable. The early nineteenth century essayist and wit, Sydney Smith,
said: ―When I hear any man talk of an unalterable law, I am convinced that he
is an unalterable fool.‖ The law must, therefore,
in a changing society march in tune with the changed ideas and ideologies‖
[Emphasis added]
147. We approve the view in
the aforesaid passages. Having approved the aforesaid principle, we are obliged
to state that the fundamental rights in their connotative expanse are bound to
engulf certain rights which really flow from the same. In M. Nagaraj
and others v. Union of India and others, (2006) 8 SCC 212 the Constitution Bench
has ruled:-
―19. The Constitution is not an ephemeral
legal document embodying a set of legal rules for the passing hour. It sets out
principles for an expanding future and is intended to endure for ages to come and
consequently to be adapted to the various crises of human affairs. Therefore, a
purposive rather than a strict literal approach to the interpretation should be
adopted. A constitutional provision must be construed not in a narrow and constricted
sense but in a wide and liberal manner so as to anticipate and take account of
changing conditions and purposes so that a constitutional provision does not
get fossilised but remains flexible enough to meet the newly emerging problems
and challenges.‖
And again:-
―29. … constitutionalism is about limits and aspirations.
According to Justice Brennan, interpretation of the Constitution as a written
text is concerned with aspirations and fundamental principles. In his article
titled ―Challenge to the Living Constitution‖ by Herman Belz, the
author says that the Constitution embodies aspiration to social justice,
brotherhood and human dignity. It is a text which contains fundamental
principles. …‖
148. In this context, we may
make a reference to a three- Judge Bench decision in V.C.
Rangadurai v. D. Gopalan and others, (1979) 1 SCC 308 wherein the majority,
while dealing with Section 35(3) of the Advocates Act, 1961, stated:-
―8. … we may note that words grow in content
with time and circumstance, that phrases are flexible in semantics, that the
printed text is a set of vessels into which the court may pour appropriate judicial
meaning. That statute is sick which is allergic to change in sense which the
times demand and the text does not countermand. That court is superficial which
stops with the cognitive and declines the creative function of construction.
So, we take the view that 'quarrying' more meaning is permissible out of
Section 35(3) and the appeal provisions, in the brooding background of social
justice, sanctified by Article 38, and of free legal aid enshrined by Article
39A of the Constitution.‖
The learned Judges went on to say:-
―11. … Judicial 'Legisputation' to borrow a
telling phrase of J. Cohen, is not legislation but application of a given
legislation to new or unforeseen needs and situations broadly falling within
the statutory provision. In that sense, 'interpretation is inescapably a kind
of legislation' (The Interpretation and Application of Statutes, Read
Dickerson, p. 238). Ibid. p. 238. This is not legislation stricto sensu but
application, and is within the court's province.‖
149. The aforesaid
authorities clearly show the power that falls within the province of the Court.
The language employed in the constitutional provision should be liberally
construed, for such provision can never remain static. It is because stasticity
would mar the core which is not the intent.
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