Right to personal liberty: India
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Article 21 of the Constitution
Can courts force a person to undergo medical/ mental test?
Can anyone be forced to take medical test?, The Times of India, May 02 2017
The Supreme Court's direction for medical examination of Calcutta HC judge Justice C S Karnan created a flutter among the lawyer community which vigorously debated whether the court could force a person to undergo such a test.
This issue was settled by a three-judge bench in a matrimonial dispute on March 28, 2003 in Sharda vs Dharampal.An HC had ordered the woman to undergo medical test as her husband had proposed so in seeking divorce on grounds of mental instability .
The three-judge bench had said, “A matrimonial court has the power to order a person to undergo medical test. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21of the Indian Constitution. However, the court should exercise such a power if the applicant has a strong pri ma facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.“
However, in the case Selvi vs State of Karnataka, the SC on May 5, 2010, had examined the validity of polygraph and narco-analysis test forced on accused. It had said, “We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to unwarranted in trusion into personal liberty.
“However, we do leave room for voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test.“
Citizens don't have absolute right over their bodies: Govt
People Can't Say No To Iris Scans, Fingerprinting, AG Says To SC
The Centre told the Supreme Court that citizens could not claim “absolute“ right over their body parts and refuse to give digital samples of their fingerprints and iris for Aadhaar enrolment.
The concept of absolute right over one's body was a myth and various laws put restrictions on such a right, attorney general Mukul Rohatgi told a bench of Justices A K Sikri and Ashok Bhushan.
His assertion came in response to a clutch of petitions challenging the constitutional validity of Section 139AA of the Income Tax Act which provides for mandatory mention of Aadhaar while filing income tax returns and app lying for PAN number from July 1this year. The Centre also said after the passage of the Aadhaar Act, it has become mandatory for citizens to get the unique identity number. Rohatgi said that people could not claim to have the right to be forgotten by refusing to get an identification proof like Aadhaar. “Even if you want to be forgotten, the state is not willing to forget you,“ he said.
The AG contended that the right over one's body was not absolute as the law prohibited people from committing suicide and women were barred from terminating their pregnancy at an advanced stage. Had there been absolute right then people would have been free to do whatever they wanted to do with their body , but the law did not recognise the absolute right of people over their bodies, The attorney general contended.
“There is no absolute right over the body . If such a right existed then committing suicide would have been permitted and people would have been allowed to do whatever they wanted with their bodies.The right not to have bodily intrusion is not absolute, and the life of a person can also be taken away by following a due procedure of law. People cannot commit suicide and take drugs,“ he said. He said people were also required to allow police to measure their breath for alcohol content in drunken driving cases. The court, however, told the attorney general that the examples given by him were not appropriate as the case pertains to taxation law and not with offence. It also said that a balance had to be maintained between an individual's right and the state's actions.
He said that no consent was required to get samples of blood and fingerprints of an accused in a criminal case and there was nothing wrong if Aadhaar was used as a preventive measure to curb tax evasion and black money by linking it to PAN card.
The hearing also saw the AG emphasising that the just passed Aadhaar Act has changed the nature of the unique identity scheme from voluntary to mandatory .
The government had so far maintained that Aadhaar was not compulsory in nature and it was voluntary for residents to get a unique identity number to get benefits of various social welfare schemes linked with Aadhaar. On Tuesday , Rohatgi told the SC that Sections 7 and 54 of the Aadhaar Act made it mandatory.
Rohatgi said linking PAN with Aadhaar was needed to curb tax evasion and to keep tabs on the circulation of black money as PAN was not a foolproof deterrent. He refuted the allegation that people would be under the government's surveillance if Aadhaar was made mandatory
The Erendro Leichombam case, 2021
Sunil Baghel, July 20, 2021: The Times of India The country’s courts continue to bat for personal liberty against government and authorities’ tendency to silence dissent. On Monday, just days after the Supreme Court asked the government to reply whether it wants to retain the much-abused sedition law, it ordered the release of Erendro Leichombam, a political activist from Manipur, detained under the National Security Act (NSA) for a Facebook post which poked fun at “cow dung and urine” being promoted as a panacea for Covid.
In an indication of courts now beginning to lose patience with authorities viewing every criticism of a government as a threat to the security of the state, a bench of Justices D Y Chandrachud and M R Shah refused to postpone Leichombam’s release even by a day, directing that the order be complied with before 5 pm. The judges said “the continued detention of the petitioner before this court would amount to a violation of the right to life and personal liberty under Article 21 of the Constitution.”
The complaint against Leichombam was filed by two Manipur BJP office-bearers – party general secretary P Premachanda Meetei and vice-president Usham Deban. They had found “offensive” a Facebook post of Leichombam condoling the death of state party president S Tikendra Singh. Singh had passed away after being diagnosed positive for Covid-19. The post said: “The cure for Corona is not cow dung & cow urine. The cure is science & common sense Professor ji RIP.” Leichombam, who has studied public administration in international development at the Harvard University and has worked as a fellow at the World Bank and a consultant with the United Nations Development Programme (UNDP) in Dhaka, Bangladesh, has been a long-standing critic of the current dispensation in Manipur and the Union government. Leichombam was arrested on May 13 after the two BJP leaders’ complaint. But when he secured a bail on May 17, a district magistrate ordered his detention under NSA. Supreme Court hearing
While the order made available by the SC bench on Monday does not carry detailed reasons, apart from calling the detention violation of the right to life and personal liberty under Article 21 of the Constitution, the bench observed during the hearing that it was of the view that Leichombam could not be kept in detention even for a day more. The court was hearing a petition filed by Leichombam’s father arguing that this was not a fit case of invocation of NSA as the Facebook post was “incapable of impacting even law and order, leave alone public order or security of the state.” The petition further contended that NSA was invoked to defeat the bail granted to Leichombam and called it a “classic case of malice in law, where the law of preventive detention has been used to shut-off political voices that the ruling party in the state of Manipur does not like, rather than for any valid purpose.” The bench will hear the case again on Tuesday, July 20.
The Ram Manohar Lohia case, 1965
Sunil Baghel, July 20, 2021: The Times of India
Law and order, public order, and security of the state
In the famous case of detention of Ram Manohar Lohia following an order passed by the District Magistrate of Patna, a Constitution bench of five judges of the Supreme Court had ordered his release in September 1965.
Two of the judges on the bench had observed that an order passed by the competent authority need not be subjected to objective tests before courts if it was “an order proper on its face and passed in good faith.” The judges, however, added a rider and said: “But when from the order itself circumstances appear which raise a doubt whether the officer concerned had misconceived his own powers, there is need to cause and enquire. The enquiry then is, not with a view to investigate the sufficiency of the materials but into the officer's notions of his power. If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order.”
The judges also said that a contravention of law always affects “order” but before it could be said to affect “public order”, it must affect the community or the public at large. “One has to imagine three concentric circles — the largest representing ‘law and order’, the next representing ‘public order’ and the smallest representing ‘security of the state.’ An act may affect ‘law and order’ but not ‘public order’, just as an act may affect ‘public order’ but not the ‘security of the State.’ Therefore one must be careful in using these expressions.”
In the Manipur case, the district magistrate seems to have exceeded his brief, possibly under political pressure, to invoke NSA against Leichombam, giving what was only a minor law and order matter, if at all, the status of something that concerned the security of the state.
Article 20(3) of the Constitution
Taking fingerprint no rights breach: SC
Dhananjay Mahapatra, `Taking fingerprint no rights breach', May 5, 2017: The Times of India
It Doesn't Mean Compelling Accused To Become Witness Against Himself: SC
Settling a doubt which has troubled crime investigators for long, the Supreme Court has ruled that asking an accused to give finger or foot prints for investigation purposes did not violate his fundamental right to protect himself from becoming a witness against himself.
The question before a bench of Justices Pinaki Chandra Ghose and Rohinton Fali Nariman was “whether compelling an accused to provide his fingerprints or footprints etc would come within the purview of Article 20(3) of the Constitution of India, that is compelling an accused of an offence to be a `witness' against himself“? This question arose in a case involving the murder of four persons of a family in Etawah in September 2000. The main accused died during the trial but his alleged associate, who had refused to give finger and foot prints to the investigating officer despite a direction from the trial court, was convicted of the crime and sentenced to death. The HC acquitted him while holding, among other things, that the trial court could not have drawn an adverse inference because the accused refused to give a specimen of his palm impression in spite of the court order. The UP government and a relative of the murdered persons appealed against the acquittal in the SC.
The SC bench took note of the accused person's fundamental right under Article 20 (3), which provides, “No person accused of any offence shall be compelled to be a witness against himself.“ It also examined a 2010 judgment (Selvi vs Karnataka), in which the SC had said investigators could not force an ac cused to undergo narco-analysis or lie-detector tests as it involved extracting self-incriminating statements, which would violate protection under Article 20(3).
After examining the constitutional provision and other SC judgments, the bench said, “Any person can be directed to give his footprints for corroboration of evidence and the same cannot be considered a violation of protection guaranteed under Article 20(3) of the Constitution.“ It overturned the HC ruling that if an accused refused to give fingerprints or footprints, despite court direction, no adverse inference could be drawn against him. Justices Ghose and Nariman said, “It may , however, be noted that non-compliance of such direction of the court may lead to adverse inference, nevertheless, the same cannot be entertained as the sole basis of conviction.“ This caveat -noncompliance leading to adverse inference could not be the sole ground for conviction -saved accused Sunil from the gallows.
Referring to the evidence collected by UP police in the case, the bench said, “It could without any hesitation be said that the basic foundation of the prosecution had crumbled down in this case by not connecting the accused Sunil with the incident in question. And when basic foundation in criminal cases is so collapsed, the circumstantial evidence becomes inconsequential. In such circumstances, it is difficult for the court to hold that a judgment of conviction could be founded on the sole circumstance that recovery of weapon and other articles have been made.“
In arriving at the conclusion that a court could direct an accused to give fingerprints and footprints, the SC relied on its judgment in a 1962 case. In that case, the SC had said, “The giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression `to be witness'.“
It had further said, “Taking of impressions of parts of body of an accused person very often becomes necessary to help investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.“
