Adhila, Noora and Article 21

Being different isn’t a crime. Tokenising it or nullifying it is. Diversity has been everywhere since the beginning. The moment I heard the verdict of these girls, what I thought about was the chads. Quite foolish. But what they do shouldn’t be upheld. Because diversity should be allowed to exist. Just like the fingers of your hands look different, humans too are different. In the system I’ve been brought up, transgender people may be tolerated, but others may not be. It’s nothing but the lack of sex education. Queer people were there since the blooming of creation. Look in your surroundings, they exist, perhaps silently, perhaps invisibly or perhaps boldly. They’re there. They are born just like you. They live just like you. Would anyone ask a cishet person why they feel for a girl? The same should be here.

The right to exist is like oxygen. One without it is invisible and dead.

That’s why I am lavishly mentioning Article 21 in my stories right after the verdict. It guarantees life and personal liberty to all persons. It guarantees the right of persons to live with human dignity. Therein are included, all the aspects of life which go to make a person’s life meaningful, complete and worth living. It is the most organic and progressive provision in our living Constitution. ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider, including, including the right to live with human dignity, Right to livelihood, Right to health, Right to pollution-free air, etc. The right to life is fundamental to our very existence, without which we cannot live as human beings and includes all those aspects of life, which make a man’s life meaningful, complete, and worth living. It is the only Article in the Constitution that has received the broadest possible interpretation. Thus, the bare necessities, minimum and basic requirements for a person form the core concept of the right to life.

The Supreme Court in Francis Coralie v. Union Territory of Delhi[iv] observed: “The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.” In NHRC v. State of Arunachal Pradesh[xxxviii] (Chakmas Case), the SC said that the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise. Further, it cannot permit anybody or a group of persons to threaten another person or group of persons. No state government worth the name can tolerate such threats from one group of persons to another group of persons.

Therefore, the state is duty-bound to protect the threatened group from such assaults. If it fails to do so, it will fail to perform its constitutional as well as statutory obligations. And, In India, the concept of ‘liberty’ has received a far more expansive interpretation. The Supreme Court of India has rejected the view that liberty denotes merely freedom from bodily restraint, and has held that it encompasses those rights and privileges that have long been recognised as being essential to the orderly pursuit of happiness by free people. The meaning of the term’ personal liberty’ was considered by the Supreme Court in Kharak Singh’s case, which arose out of the challenge to Constitutional validity of the U. P. Police Regulations that provided for surveillance by way of domiciliary visits secret picketing.

Oddly enough, both the majority and minority on the bench relied on the meaning given to the term ‘personal liberty’ by an American judgment (per Field, J.,) in Munn v Illinois, which held the term ‘life’ meant something more than mere animal existence. The prohibition against its deprivation extended to all those limits and faculties by which life was enjoyed. 

Although not explicitly mentioned in the Constitution, the right to privacy was considered a ‘penumbral right’ under the Constitution, i.e. a right declared by the Supreme Court as integral to the fundamental right to life and liberty. After the KS Puttuswamy judgment, the right to privacy has been read and understood by the Court in various landmark judgments.The Supreme Court has culled the right to privacy from Article 21 and other provisions of the Constitution, read with the Directive Principles of State Policy. Although no single statute confers a crosscutting ‘horizontal’ right to privacy, various statutes had provisions that either implicitly or explicitly preserved this right. For the first time in Kharak Singh v. State of UP,[lxxi] the Court questioned whether the right to privacy could be implied from the existing fundamental rights such as Art. 19(1)(d), 19(1)(e) and 21, came before the Court. “Surveillance” under Chapter XX of the UP Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b), which permitted surveillance by “domiciliary visits at night”, was held to violate Article 21. A seven-judge bench held that: “the meanings of the expressions “life” and “personal liberty” in Article 21 were considered by this Court in Kharak Singh’s case. Although the majority found that the Constitution contained no explicit guarantee of a “right to privacy”, it read the right to personal liberty expansively to include a right to dignity. It held that “an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man -an ultimate essential of ordered liberty, if not of the very concept of civilisation.” In a minority judgment, in this case, Justice Subba Rao held that: “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements but also free from encroachments on his private life.” It is true our Constitution does not expressly declare a right to privacy as a fundamental right but the said right is an essential ingredient of personal liberty.

From the very beginning of this case, these girls have been exerting their right to live. But their rights aren’t as paramount as that of the cishet ones. However, no-one is invisible to the law. The right to exist is , as I’ve said, undoubtedly like oxygen. 

Legal excerpts from Lawctopus .