GS Notes

17. Polity Notes 15

20 min read

Elaborate Notes

RIGHT TO DIE, SUICIDE, EUTHANASIA, & CAPITAL PUNISHMENT

This cluster of topics revolves around the interpretation of Article 21 of the Constitution, which guarantees the ‘Right to Life and Personal Liberty’. The central question is whether the right to life also implies a ‘right to die’.

  • Suicide and the Right to Die

    • Historical Legal Position: Section 309 of the Indian Penal Code (IPC), 1860, criminalized the “attempt to commit suicide”. This was based on the Victorian-era belief that life is a gift from God and the state has a duty to preserve it.
    • Judicial Interpretation: The Supreme Court’s stance has evolved significantly:
      • In P. Rathinam vs. Union of India (1994), a two-judge bench held that the ‘right to life’ under Article 21 includes the ‘right not to live a forced life’. It declared Section 309 of the IPC unconstitutional, viewing it as cruel and irrational.
      • However, in Gian Kaur vs. State of Punjab (1996), a five-judge Constitution Bench overruled the P. Rathinam judgment. It held that the ‘right to life’ is a natural right to live with human dignity and does not include the ‘right to die’. It argued that the right to life has a positive connotation and cannot be interpreted to include its negative extinction. The court upheld the constitutionality of Section 309 IPC.
    • Legislative Decriminalization: Recognizing the humanitarian aspect, the Parliament enacted the Mental Healthcare Act, 2017. Section 115(1) of this Act states that any person who attempts to commit suicide shall be presumed, unless proved otherwise, to be under severe stress and shall not be tried and punished under the said Code (IPC). This provision effectively decriminalizes the attempt to suicide on humanitarian grounds by shifting the focus from punishment to providing care and rehabilitation.

  • Capital Punishment (Death Penalty)

    • Arguments in Favor:

      • Retributive Justice: Proponents argue that for heinous crimes like terrorism, mass murder, or rape with murder, the death penalty is the only proportionate punishment. They believe in the principle of ‘an eye for an eye’ and assert that those who commit inhuman acts forfeit their own human rights.
      • National Security: In cases of terrorism, as seen in the hijacking of Indian Airlines flight IC-814 in 1999 to secure the release of terrorists, keeping convicted terrorists in prison can pose a continuing threat to national security. Capital punishment eliminates this risk.
      • Deterrence: It is argued that the death penalty serves as a powerful deterrent against potential criminals. Scholars like Ernest van den Haag in his work “On Deterrence and the Death Penalty” (1969) argued that even if its deterrent effect is not statistically proven, it is better to err on the side of caution to save potential victims.
      • Upholding State Authority: Awarding capital punishment in grave cases reinforces the image of a strong state that is not ‘soft’ on terrorism or heinous crime, thereby preventing a potential rise in such activities.
      • Procedural Safeguards: The process is not arbitrary. It is awarded only in the “rarest of the rare” cases, a doctrine established in Bachan Singh vs. State of Punjab (1980). The accused has multiple judicial remedies, including appeals to the High Court, Supreme Court, and review petitions, followed by curative petitions and the final executive remedy of a mercy petition to the President (Article 72) or Governor (Article 161).

    • Arguments Against:

      • Lack of Empirical Evidence for Deterrence: Numerous studies, including those by the United Nations, have found no conclusive evidence that the death penalty deters crime more effectively than life imprisonment. The Law Commission of India in its 262nd Report (2015) also concluded that there is no valid penological justification for retaining the death penalty, recommending its abolition for all crimes except terrorism-related offences and waging war.
      • Ethical and Moral Objections: Philosophically, it is argued that the state should not have the power to take a life, a power often considered divine. This aligns with Mahatma Gandhi’s view: “An eye for an eye will make the whole world blind” and his emphasis on reforming the criminal, not just punishing the crime.
      • Irreversibility and Risk of Error: The judicial system is fallible. An erroneous execution is an irreversible tragedy. The Supreme Court itself, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), admitted that the “rarest of the rare” doctrine had been inconsistently applied in at least 13 previous cases.
      • International Trend: Over 140 countries have abolished the death penalty in law or practice. The Second Optional Protocol to the International Covenant on Civil and Political Rights (1989) aims at the worldwide abolition of the death penalty.
      • Mode of Execution: The current method, death by hanging, is being challenged as “brutal, inhuman, and cruel”. The 187th Report of the Law Commission (2003) suggested that lethal injection should be considered as an alternative, more humane method.

  • Euthanasia (Mercy Killing)

    • Definition: Euthanasia is the act of deliberately ending a person’s life to relieve suffering.
      • Active Euthanasia: Involves a positive act to end a life, such as administering a lethal injection. It is illegal in India.
      • Passive Euthanasia: Involves withdrawing life-sustaining treatment or support systems, allowing the person to die from the underlying medical condition.
    • Judicial Pronouncements:
      • In the landmark case of Aruna Shanbaug vs. Union of India (2011), the Supreme Court legalized passive euthanasia in India. Aruna Shanbaug had been in a persistent vegetative state (PVS) for decades. While the court rejected the plea for her euthanasia, it laid down strict guidelines for future cases, requiring approval from the concerned High Court.
      • In Common Cause (A Regd. Society) vs. Union of India (2018), the SC took a significant step further. It recognized the “Right to Die with Dignity” as a fundamental right under Article 21. It affirmed the legality of passive euthanasia and gave legal sanction to ‘Advance Medical Directives’ or ‘Living Wills’. A living will is a document where a person can state their wish in advance not to be put on life support in case of a terminal illness or PVS.

RIGHT TO EDUCATION- ARTICLE 21 A

  • Evolution: The Right to Education was originally a Directive Principle of State Policy under Article 45, which urged the state to provide free and compulsory education for all children until the age of 14.
  • Judicial Activism: The Supreme Court, in Mohini Jain vs. State of Karnataka (1992) and later confirmed in Unni Krishnan vs. State of Andhra Pradesh (1993), declared that the Right to Education is a fundamental right implicit in the Right to Life under Article 21. The court reasoned that a life of dignity is impossible without education.
  • Constitutional Amendment: To give effect to this judicial interpretation, Parliament passed the 86th Constitutional Amendment Act, 2002. This amendment made three changes:
    1. It inserted Article 21A, making the Right to Education a fundamental right for children between the ages of 6 and 14.
    2. It modified Article 45 to direct the state to provide early childhood care and education for all children until they complete the age of six years.
    3. It added a new fundamental duty under Article 51A(k), making it a duty of every parent or guardian to provide opportunities for education to their child or ward between the ages of 6 and 14.
  • Enabling Legislation: To outline the “manner” in which this right would be provided, Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.

ARTICLE 23: PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR

  • This article provides protection against certain forms of exploitation and is available to both citizens and non-citizens.
  • ‘Traffic in human beings’: This is a wide term that includes:
    • Buying and selling of humans like commodities.
    • Immoral traffic in women and children, including prostitution. The Immoral Traffic (Prevention) Act, 1956 is the primary legislation in this regard.
    • Devadasi system: A historical practice, prevalent primarily in South India, where young girls were “dedicated” or “married” to a deity, often leading to a life of sexual exploitation and penury.
    • Slavery.
  • ‘Begar’ and other forms of forced labour:
    • Begar: A system of forced labour where a person is compelled to work without any remuneration. It was a common practice in the Zamindari system.
    • The Supreme Court in People’s Union for Democratic Rights vs. Union of India (1982) (also known as the Asiad Workers’ case) interpreted the term ‘forced labour’ broadly. The court held that payment of wages below the minimum wage also amounts to forced labour under Article 23.
  • Exception: Article 23(2) allows the state to impose compulsory service for public purposes, such as military conscription or social service during national emergencies. However, while imposing such service, the state cannot discriminate on grounds only of religion, race, caste, or class.

ARTICLE 24: PROHIBITION OF EMPLOYMENT OF CHILDREN

  • This article prohibits the employment of children below the age of 14 years in any factory, mine, or other hazardous activities.
  • The prohibition is absolute for hazardous work but does not prohibit their employment in harmless or innocent work.
  • Key Legislation:
    • The Child Labour (Prohibition and Regulation) Act, 1986, was a major law in this field.
    • It was amended significantly in 2016 and is now known as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986. The amended act:
      • Prohibits the employment of children below 14 years in all occupations and processes.
      • Prohibits the employment of adolescents (14 to 18 years) in specified hazardous occupations and processes.
      • Provides for stricter punishments for employers who violate the law.

ARTICLES 25-28: RIGHT TO FREEDOM OF RELIGION

  • Article 25: Freedom of conscience and free profession, practice and propagation of religion.

    • Freedom of Conscience: The inner freedom of an individual to mould their relationship with God or any creature in whatever way they desire.
    • Right to Profess: Open and free declaration of one’s religious beliefs.
    • Right to Practice: Performance of religious rituals, ceremonies, and worship.
    • Right to Propagate: Transmission and dissemination of one’s religious beliefs to others. However, the Supreme Court in Rev. Stanislaus vs. State of Madhya Pradesh (1977) clarified that this does not include a right to convert another person by force, fraud, allurement, or inducement.
    • Limitations: This right is subject to public order, morality, health, and other provisions relating to fundamental rights. The state is also permitted to regulate secular activities associated with religious practice and provide for social welfare and reform.

  • Article 26: Freedom to manage religious affairs.

    • This article protects the collective freedom of religion. It grants every religious denomination or any section thereof the right to: a) Establish and maintain institutions for religious and charitable purposes. b) Manage its own affairs in matters of religion. c) Own and acquire movable and immovable property. d) Administer such property in accordance with law.
    • In the Shirur Mutt case (1954), the SC defined a ‘religious denomination’ as a collection of individuals with a common faith, common organization, and a distinctive name. Examples include Ramakrishna Mission and Anand Marga.

  • Article 27: Freedom from payment of taxes for promotion of any particular religion.

    • This article prohibits the state from compelling any person to pay taxes, the proceeds of which are specifically appropriated for the promotion or maintenance of any particular religion.
    • It embodies the principle of a secular state. However, it does not prohibit the state from levying a ‘fee’ for providing special services or safety measures to pilgrims. A tax is a compulsory exaction of money for public purposes, whereas a fee is a payment for a specific service rendered. This was clarified in the Shirur Mutt case (1954).
    • The state can use tax money for the promotion and maintenance of all religions without discrimination.

  • Article 28: Freedom from attending religious instruction.

    • This article deals with religious instruction in educational institutions. It distinguishes between four types of institutions: a) Institutions wholly maintained by the State: Religious instruction is completely prohibited. b) Institutions administered by the State but established under an endowment or trust: Religious instruction is permitted. (e.g., Banaras Hindu University). c) Institutions recognised by the State: Religious instruction is permitted on a voluntary basis. d) Institutions receiving aid from the State: Religious instruction is permitted on a voluntary basis.
    • In categories (c) and (d), no person can be required to attend any religious instruction without their consent (or their guardian’s consent if they are a minor).

  • Controversies related to Freedom of Religion

    • Conversions and Anti-Conversion Laws: Several states have enacted ‘Freedom of Religion’ Acts to prohibit conversion by force, fraud, or allurement. Proponents argue they are necessary to protect vulnerable populations, citing Article 25(1). Opponents argue they violate an individual’s freedom of conscience and right to privacy and are often used to target minorities.
    • Religious Practices vs. Fundamental Rights: This has been a major area of judicial scrutiny.
      • Sabarimala Temple Case (Indian Young Lawyers Association vs. State of Kerala, 2018): The SC, by a 4:1 majority, allowed women of all age groups to enter the temple, striking down the traditional ban on women of menstruating age. The court held that the practice violated Articles 14 (Equality), 15 (Non-discrimination), 17 (Abolition of Untouchability), and 25 (Right to Religion of women). It invoked the concept of ‘Constitutional Morality’ to override religious tradition.
      • Shah Bano Begum Case (1985): The SC granted a Muslim woman the right to alimony from her husband under secular law (Section 125 of CrPC), which was seen as an encroachment on Muslim Personal Law. This highlighted the conflict between secular laws and personal laws, a debate central to the call for a Uniform Civil Code (Article 44).

Prelims Pointers

  • Article 21A: Provides for free and compulsory education for children aged 6-14 years.
  • 86th Constitutional Amendment Act, 2002: Inserted Article 21A, modified Article 45, and added Fundamental Duty under Article 51A(k).
  • Gian Kaur vs. State of Punjab (1996): The Supreme Court held that the ‘Right to Life’ under Article 21 does not include the ‘Right to Die’.
  • Mental Healthcare Act, 2017: Section 115 presumes a person attempting suicide to be under severe stress, effectively decriminalizing the act.
  • Aruna Shanbaug Case (2011): Legalized passive euthanasia in India under strict guidelines.
  • Common Cause vs. Union of India (2018): Recognized the ‘Right to Die with Dignity’ and legalized ‘living wills’ or ‘advance medical directives’.
  • Bachan Singh vs. State of Punjab (1980): Established the ‘rarest of the rare’ doctrine for awarding capital punishment.
  • Article 23: Prohibits traffic in human beings, ‘begar’ (forced labour without pay), and other similar forms of forced labour.
  • PUDR vs. Union of India (1982): SC held that payment below minimum wage amounts to forced labour.
  • Article 24: Prohibits the employment of children below the age of 14 in factories, mines, and other hazardous activities.
  • Rev. Stanislaus vs. State of Madhya Pradesh (1977): SC ruled that the right to propagate religion does not include the right to convert by force, fraud, or allurement.
  • Article 26: Guarantees rights to religious denominations to manage their own affairs.
  • Article 27: Prohibits the levying of a ‘tax’ for promoting a particular religion but allows a ‘fee’.
  • Article 28: Prohibits religious instruction in educational institutions wholly maintained by the state.
  • Doctrine of Essentiality: A judicial doctrine where courts determine what practices are ‘essential’ to a religion.
  • Constitutional Morality: A principle invoked by the judiciary to uphold constitutional values over social or religious practices.

Mains Insights

  1. Evolution of Article 21 and the Right to Dignity:

    • Cause-Effect: The judiciary’s expansive interpretation of ‘life’ in Article 21 has transformed it from mere animal existence to a right to live with human dignity.
    • Analysis: This has led to the inclusion of numerous unenumerated rights like the right to education, a clean environment, privacy, and now, the right to die with dignity (passive euthanasia). This showcases the dynamic and living nature of the Indian Constitution, where judicial activism has filled legislative gaps. However, it also raises questions about judicial overreach.

  2. The Capital Punishment Conundrum:

    • Debate: The debate juxtaposes the retributive theory of justice (punishment should fit the crime) against the reformative theory (the aim is to reform the criminal).
    • Viewpoints: For India, the argument is complex. While global trends and human rights principles lean towards abolition, the persistent threat of cross-border terrorism and heinous crimes creates strong arguments for its retention as a deterrent and a tool for national security. The focus of the debate is shifting from ‘if’ to ‘how’ (mode of execution) and ‘when’ (consistency in applying the ‘rarest of rare’ doctrine).

  3. Indian Secularism: Tensions and Nuances:

    • Analysis: Articles 25-28 reflect India’s unique model of ‘positive secularism’ or ‘principled distance’, which differs from the strict ‘wall of separation’ in the West. The Indian state can engage with religion, for instance, by providing subsidies for pilgrimages (for all religions) or reforming religious practices.
    • Conflict Areas: This model creates inherent tensions:
      • Individual vs. Community Rights: As seen in the Sabarimala case, the individual right to equality (Article 14) and religion (Article 25) clashed with the community’s right to manage its religious affairs (Article 26).
      • State Intervention vs. Religious Autonomy: The state’s power to enact social reforms can be seen as an intrusion into religious freedom, leading to debates on issues like the Uniform Civil Code and anti-conversion laws.

  4. Judiciary as a Social Reformer:

    • Role of Judiciary: Through concepts like ‘constitutional morality’ and the ‘doctrine of essentiality’, the Supreme Court has positioned itself as an arbiter of social and religious practices. It tests traditions against the touchstone of fundamental rights.
    • Historiographical Viewpoint: Some scholars view this as a progressive fulfillment of the Constitution’s transformative vision. Others criticize it as judicial overreach into the domain of faith, arguing that judges are not equipped to be theologians and decide on the essentiality of religious practices. The dissent of Justice Indu Malhotra in the Sabarimala case exemplifies this latter viewpoint.

Previous Year Questions

Prelims

  1. Which one of the following categories of Fundamental Rights incorporates protection against untouchability as a form of discrimination? (UPSC CSE 2020) (a) Right against Exploitation (b) Right to Freedom (c) Right to Constitutional Remedies (d) Right to Equality Answer: (d) Right to Equality (Article 17 deals with the abolition of untouchability).

  2. In India, separation of judiciary from the executive is enjoined by (UPSC CSE 2020) (a) the Preamble of the Constitution (b) a Directive Principle of State Policy (c) the Seventh Schedule (d) the conventional practice Answer: (b) Article 50, a Directive Principle of State Policy, provides for this separation.

  3. What is the position of the Right to Property in India? (UPSC CSE 2021) (a) Legal right available to citizens only (b) Legal right available to any person (c) Fundamental Right available to citizens only (d) Neither Fundamental Right nor legal right Answer: (b) The Right to Property was removed as a Fundamental Right by the 44th Amendment Act, 1978, and made a constitutional/legal right under Article 300-A, available to any person.

  4. Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (UPSC CSE 2019) (a) Article 19 (b) Article 21 (c) Article 25 (d) Article 29 Answer: (b) The Supreme Court in the Hadiya case (2018) and Shakti Vahini vs. Union of India (2018) case held that the right to marry a person of one’s choice is integral to Article 21 (Right to Life and Personal Liberty).

  5. With reference to India, consider the following statements: (UPSC CSE 2021)

    1. When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right.
    2. State Governments have their own Prisoners Release on Parole Rules. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Parole is not a matter of right; it is a privilege granted for a specific reason. However, ‘Prisons’ is a state subject, and State Governments have their own rules for parole.

Mains

  1. Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on the Right to Privacy. (UPSC CSE 2017) Answer Sketch: The answer should begin by explaining the K.S. Puttaswamy (2017) judgment where the SC declared the Right to Privacy a fundamental right under Article 21. It should then elaborate on the scope by discussing its three aspects: informational privacy (data protection), privacy of choice (bodily autonomy, marriage, food choices), and privacy of space (home). It should connect this to other FRs like Article 19 (freedom of expression and the right to be left alone). The answer should conclude by highlighting how this judgment has far-reaching implications for Aadhaar, data protection laws, LGBTQ+ rights (Navtej Singh Johar case), and individual autonomy against state surveillance.

  2. What are the continued challenges for women in India against time and space? (UPSC CSE 2019) Answer Sketch: The answer should discuss challenges across various domains. In the context of this topic, one can mention the struggle against discriminatory religious practices (Sabarimala issue) and the fight for bodily autonomy. It should cover social challenges (patriarchy, dowry, female foeticide), economic challenges (gender pay gap, glass ceiling), political challenges (low representation, the need for reservation), and security challenges (violence against women, unsafe public spaces). Mentioning landmark cases like Vishaka vs State of Rajasthan and recent legal reforms would add value.

  3. How have the recommendations of the 14th Finance Commission of India enabled the states to improve their fiscal position? (UPSC CSE 2021) Answer Sketch: Although not directly from the summary, this question appeared in GS-II (Polity). Answering it would require explaining the key recommendation of the 14th FC to increase the share of states in the divisible pool of taxes from 32% to 42%. It enabled states with greater untied funds, enhancing their fiscal autonomy and allowing them to design schemes according to their local needs. The challenges, such as the simultaneous reduction in centrally sponsored schemes, should also be discussed for a balanced view.

  4. “Constitutional Morality is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions.” (UPSC CSE 2021) Answer Sketch: The answer should define Constitutional Morality as adherence to the core principles and values of the constitution, such as liberty, equality, fraternity, and dignity, over prevailing social or popular morality. It should be explained as a check on majoritarianism. Key judicial decisions to be cited are: Naz Foundation case and Navtej Singh Johar case (decriminalizing homosexuality), Joseph Shine case (striking down adultery law), and the Indian Young Lawyers Association (Sabarimala) case. In each case, explain how the court upheld constitutional values against established social norms or religious practices.

  5. Examine the uniqueness of the Fundamental Rights enshrined in the Indian Constitution. (UPSC CSE Mains Question based on syllabus) Answer Sketch: This answer should highlight what makes Indian FRs unique.

    • Comprehensiveness: More detailed than any other constitution.
    • Balance between Individual and Society: They are not absolute and are subject to reasonable restrictions.
    • Justiciability and Enforcement: Article 32 (Right to Constitutional Remedies) is itself a fundamental right.
    • Negative and Positive Rights: Some are prohibitions on the state (negative), while others confer privileges on individuals (positive).
    • Availability: Some rights are available only to citizens (e.g., Art 15, 16, 19), while others are for all persons (e.g., Art 21, 25).
    • Suspension: Can be suspended during a National Emergency (except Articles 20 and 21). This structure will help in providing a comprehensive view of the uniqueness of Indian FRs.

Graph View