JUDGMENT - F.I. REBELLO, J.:---Two couples, Indian citizens, professing the Christian faith, applied to this Court for being appointed as guardians under the Guardians Wards Act. In the course of the proceedings they amended their petition, to seek a prayer that the children be given to them in adoption. The petitioners being Christians are presently only entitled to be appointed as guardians. They do not fall within the definition of "Hindu" as defined in the Hindu Adoption Maintenance Act, 1956. A question immediately arose, whether a civilised State committed to the Rule of law, governed by a written Constitution and signatory to International Conventions on the Rights of a child, could deny to a section of its own citizens the right to adopt a child and to give that child, a home, a name and nationality. Article 14 of our Constitution ensures equality before law to all citizens. Non-arbitrariness is the hallmark of this Article. On 26th November, 1949 we gave to ourselves, a Bill of Rights, when the Constituent Assembly voted and approved the Preamble to the Constitution of India. The "Tryst with Destiny" Speech, of the first Prime Minister of the new Nation, symbolised its hopes and aspirations. Much earlier our Noble Laureate Gurudev Tagore had penned a poem. Where the mind is without fear and the head is held High visualising what the new nation yet to be born out of the freedom struggle must aspire. These hopes and aspirations permeate the preamble to our Constitution. They now constitute our Rule of law. The Preamble is the judicial tool. This tool is of metal which is malleable, ductile and tenacious. Its effectiveness and strength lies in the hands of the maker. Belief in the Constitution and social commitments temper the approach in its use. Experience and age adds maturity to actions. Practical field experiences adds to this armoury. Experience, therefore, has a great role to play not only in shaping our thoughts but in our approach in interpreting the constitutional provisions. The fight against injustice must be inherent in you. It cannot be conferred or imposed by mere occupation of a judicial chair. Justice does not flow from the chair, but from the person occupying it. The chair reflects authority. The weak should not occupy it, nor the submissive. The Constitutional structure will be damaged beyond repair if Constitutional functionaries fail to express their views. It cannot be conferred or imposed by mere occupation of a judicial chair. Justice does not flow from the chair, but from the person occupying it. The chair reflects authority. The weak should not occupy it, nor the submissive. The Constitutional structure will be damaged beyond repair if Constitutional functionaries fail to express their views. Expressing views which may not be palatable to some is not dissent, but upholding of Constitutional values. These are not stray or rambling thoughts. These views are borne out of experience. A reflection of the present and the past. A Division Bench of this Court sitting at Panaji, Goa a decade ago presided over by a Visiting Judge, had to hear a petition filed on behalf of orphan children housed in Homes run by an Institution known as Provedoria Assistanca Publica. These children from the infancy were left in the custody of these Homes. All through their young life that was home to them. The Government of Goa issued a Circular that on reaching majority, both girls and boys would have to leave the Institutions. Most of them were not trained for any occupation and were otherwise unemployed. By the petition, relief was sought that they should be allowed to stay even after attaining majority or till they were employed and/or rehabilitated in a useful vocation. The learned Judge after hearing Counsel for the petitioner summarily dismissed the petition whilst expressing, 'oh what beautiful poetry'. The Judge was appreciative of the language of the petition, but deaf to the orphans anguished cry for justice. Many of us examining such issues forget that we have taken a solemn oath or protect and defend the Constitution. That requires examining legislation and fundamental rights in such a manner that the tears of the abandoned and homeless infants are wiped away, of course within the Constitutional parameters. In this matter the exercise of power of parens patraie and Article 226 to give effect to the fundamental rights, what is in issue are the enforceability of directive principles and International covenants to which India is a signatory. It was the Poet Khalil Gibran who in a couplet said:--- "Our children are not our children, they are the sons and daughters of life, longing for itself." How long must these children wait for justice in the absence of positive steps taken by the State. It was the Poet Khalil Gibran who in a couplet said:--- "Our children are not our children, they are the sons and daughters of life, longing for itself." How long must these children wait for justice in the absence of positive steps taken by the State. Even the good Lord seems to have forgotten them. I quote from the Book of Psalms: "How long, Oh Lord? Will thee forget me forever". They are children just like other children. These are children, however, without home and family. Don't they have a right to love and security. Should not the Constitution be also meaningful to them. Having been orphaned should the Republic abandon them forever. The Rule of law must reach them. Protests, from whatever sections should not stop the pursuit of justice to those in need of it. The right of a child cannot be confused with the personal law of any section of our pluralistic society. Adoption is not to be treated as an act by a State to force a child on unwilling parents. On the contrary it is a voluntary act on the part of eligible persons to provide comfort, love and security to the abandoned and homeless children. No religion, can deny family love to these children of God. Religions preach peace and brotherhood. How can there be brotherhood if you will not treat a section of your citizens as brothers. Children are the living embodiment of God. In them you find the manifestation of God in all its forms. In the smile of the child you see beauty of creation. 2.The question then, in the absence of legislation has the Court powers of giving an abandoned or orphaned or destitute child in adoption? Before formulating the questions I may once again refer to the Bible, the Gospel by Mathew. When a disciple came to Jesus saying "who is the greatest in the Kingdom of Heaven? Calling a child, he put him in the midst of them and said "Truly, I say to you, unless you turn and become like children, you will never enter the Kingdom of Heaven. Whoever humbles himself like this child, he is the greatest in the Kingdom of heaven. Whoever receives one such child in my name receives me:...." To answer the question, the points formulated are as under:--- 1. Whoever humbles himself like this child, he is the greatest in the Kingdom of heaven. Whoever receives one such child in my name receives me:...." To answer the question, the points formulated are as under:--- 1. Does an abandoned or orphaned or destitute child has a right to a family, a name and nationality as a part of the right to life? 2. Is the right of being adopted a fundamental right guaranteed to a child by Article 21 of the Constitution? 3. Can the State deny to a orphaned, abandoned or destitute child the right to be adopted because of its constitutional failure to enact legislation to give effect to Entry 5 of List III of the Seventh Schedule to the Constitution of India? 4. Whether a married childless couple has the fundamental right to adopt a child? 5. Is adoption purely a part of personal law? 6. If the right to adopt is a fundamental right, can Civil Courts enforce this right, in the absence of legislation and/or administrative instructions having the force of law? 7. Can this Court in exercise of the power conferred on it under Clause 17 of the Amended Letters Patent give a child in adoption? 3.Counsel arguing for Adoption have raised various submissions to support the contention that a child in the absence of law can be given in adoption. The Advocate General of State of Maharashtra, after referring to judicial authorities pointed out to the Court that both Houses constituting the Legislature of the State of Maharashtra had passed a Bill which was awaiting assent of the President of India. On behalf of the Union of India, the learned Additional Solicitor General strongly contended that in the absence of legislation courts cannot pass orders. Matter pertaining to adoption being a sensitive issue the Court should not pass any orders which rightly belongs to the domain of the Legislature and or the Executive. It is further pointed out that Article 21 is couched in a negative language and as such also no relief can be granted by the Court. Various Institutions have also put forward their views which I would briefly refer to. 4.The Indian Council of Social Welfare has submitted their written submissions. It is pointed out that on 26th January, 1990, sixty countries signed the Convention of the Rights of the child. India ratified. Various Institutions have also put forward their views which I would briefly refer to. 4.The Indian Council of Social Welfare has submitted their written submissions. It is pointed out that on 26th January, 1990, sixty countries signed the Convention of the Rights of the child. India ratified. The Convention on the rights of the child on 2nd December, 1992. The Convention imposes the commitment to provide for all children in India, a first lien on all resources for their welfare and protection. The need for adoption for the rehabilitation of destitute/orphan children is very much included as part of this. There are about 12.32 million orphans/destitute children in India and the number is ever increasing. They constitute about 4% of the child population. There are about 1,50,000 children in over 1000 institutions in the country, which are under the Juvenile Justice Act. These children are denied parental care and attention. A child needs love, shelter, care, a sense of identity and belonging. These are normally obtained in families. In case of breakdown of a family there are only three possible ways of looking after a child (a) strengthening the family; (b) Institutional care and (c) Foster care/adoption. Studies have shown that institutional care does not provide all the needs of a child, especially personal attention. The Institutions are also expensive and overcrowded. Therefore, adoption is a means for finding a right parent for the child and not the other way round. The right of a family to every child is a necessity. Adoption is one of the best means of rehabilitating a child without a family and giving stability needed for its normal growth and development. Nine Institutions involved in looking after abandoned/destitute children have also submitted a Memorandum. These include, Bal Anand, Family Service Centre, Indian Association for Promotion of Adoption and Child Welfare, Convener, Adoption Group, M.S.W.G. Asha Sadan, Shajar Chhaya, Bal Asha Trust, Missionaries of Charity and Children of the World (India) Trust. In their submission they point out that they are concerned with care and rehabilitation of children who are orphaned, abandoned, declared destitute or relinquished in their care by their biological parents. They have intimate knowledge of the trauma these children experience. In their submission they point out that they are concerned with care and rehabilitation of children who are orphaned, abandoned, declared destitute or relinquished in their care by their biological parents. They have intimate knowledge of the trauma these children experience. Above the psychological impact of rejection early in life, the child who is taken under the guardianship provision, faces further discrimination being only a "ward" of his or her guardian upto the age of 18 years. Though receiving the care, nurture and love in the guardian's family these children suffer deprivation compared to a legally adopted child. From a basic humanitarian point of view, it is unconscionable on the part of the State to deprive the destitute child the status equivalent to a biological child with rights and obligations in the family of his/her guardian, which are conferred to the child adopted under the Hindu Adoption and Maintenance Act, 1956. It is a travesty of justice that the State which has guaranteed its citizens protection against discrimination based on religion should withhold protection and security in this respect particularly to the helpless minor. The State has abdicated its commitment made to the child, under the U.N. Convention on the Rights of the Child, by not making appropriate provisions for full adoption of the child. 5.On behalf of Archdiocese of Mumbai, appearance has been put on behalf of Archbishop of Mumbai, to whom notice was issued, as the matter arose from petitions for adoption by Christian couples who had initially applied only for guardianship. Similar submissions as made on behalf of various institutions are reflected therein. Apart from that it is specifically set out that there is no bar for Christian parents to adopt a child. Reference is made to Canon Nos. 110, 877 and 1094. They are reproduced herein below:--- "Canon No. 110:---Children who have been adopted in accordance with the civil law are considered the children of that person or those persons who have adopted them." "Canon No. 877:---#1 The parish priest of the place in which the baptism was conferred must carefully and without delay record in the register of baptism the names of the baptised, the minister, the parents, the sponsors and, if there are such, the witnesses, and the place and date of baptism. He must also enter the date and place of birth. He must also enter the date and place of birth. #2 In case of a child of an unmarried mother, the mother's name is to be entered if her maternity is publicly known or if, either in writing or before two witnesses, she freely asks that this be done. Similarly, the name of the father is to be entered, if his paternity is established either by some public document or by his own document in the presence of the parish priest and two witnesses. In all other cases, the name of the baptised person is to be registered, without any indication of the name of the father or of the parents. #3 In the case of an adopted child, the names of the adopting parents are to be registered and, at least if this is done in the local civil registration, the names of the natural parents in accordance with #1 and #2, subject however to the rulings of the Episcopal Conference." "Canon No. 1094:---Those who are legally related by reason of adoption cannot validly marry each other if their relationship is in the direct line or in the second degree of the collateral line." It is further set out that Adoption also traces its history from scriptures although strictly speaking, no laws of adoption as such are found formulated in the Old Testament. In Exod. 2:10, Moses becomes son of Pharaoh's daughter. In Ruth 4:16, Naomi adopted the son of Boaz and Ruth. In Esth. 2:7, Mordeci adopts Esther. In Gen. 16:1-4 and 30:1-13, Sarai Rachel and Leah each gave a female slave to her husband for the purpose of procreation. Gen. 16:2 and 30:3-13 gave a Biblical account which could imply adoption by wife and her regard for the children as her own and has also reference to possible allusion by Rachel to an adoption right. Gen. 48:5-6 shows that Ephraim and Manasseh are adopted by their grandfather Jacob. In the New Testament, there are references to adoption as sons in Rom, 8:15, 23, Gol. 4:5. There is also an interpretation and reference that a Slave, if adopted as a son would inherit his master's property in a phrase addressed to Slaves in Col. 3:24. The idea of adoption can also be linked to the idea of the Holy Spirit in the New Testament and Rom. 4:5. There is also an interpretation and reference that a Slave, if adopted as a son would inherit his master's property in a phrase addressed to Slaves in Col. 3:24. The idea of adoption can also be linked to the idea of the Holy Spirit in the New Testament and Rom. 8:23 speaks of waiting for adoption as sons wherein Paul regards adoption as a promise for future. Then, Acts, 7:21 and Heb. 11:24 understand Moses as the adopted son of Pharaoh's daughter. It will, therefore, be seen that the concept of adoption also flows from scriptures. Catholic Bishop's Conference of India had given its unqualified approval to the Christian Adoption and Maintenance Bill, 1994. The Bill, however seeks to exclude Goa and some other areas. The drafters of the Bill perhaps are unaware that in Goa, Daman Diu also there is no provision for Adoption for other than Hindus by law and that those areas, therefore, ought not to be excluded. The following Unstarred Question No. 752 was tabled in the Lok Sabha on 6th March, 1996. The answer is reproduced herein below:--- "752. SHRIMATI SUSEELA GOPALAN: Will the PRIME MINISTER be pleased to state: (a) whether Christian community has requested the Government to make progressive changes in the Indian Christian Act; (b) If so, the details thereof; and (c) the time by which the legislation is likely to be introduced? A N S W E R THE MINISTER OF STATE IN THE MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS: (SHRI H.R. BHARADWAJ): (a) to (c): The Joint Women's Programme, a Women's organisation has submitted certain draft legislation relating to marriage, divorce, adoption, maintenance and succession amongst Christians for enactment. As the Policy of the Government has been not to interfere in the personal laws of the minority communities unless the necessary initiative therefor comes from the community concerned, the Government has requested the National Commission for Minorities to give its considered thought on the idea, that the views of the Christian community may be assessed by the Commission by interacting directly with different sections of that community before the matter is processed further. Hence it is too early to set any time-frame for undertaking any legislation in this regard." To our Legislators the law making limb of our Constitutional Structure. Hence it is too early to set any time-frame for undertaking any legislation in this regard." To our Legislators the law making limb of our Constitutional Structure. I may only remind them of the words of Gabrieala Mistral:--- "We are guilty of many errors and many faults but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait. The child cannot. Right now is the time his bones are being formed, eveloped. To him we cannot answer "Tomorrow," His name is "Today." II.FAMILY AND ADOPTION: 7.Social Scientists, Jurists and others accept that there is no single, universal method of classifying households in which people live together. Two types of families feature in current social and legal research; the 'extended' and the 'nuclear' family. In Blackwell v. Bull, 1836, Lord Langdale MR stated: 'It is evident that the word 'family' is capable of so many applications that if any one particular construction were attributed to it in wills, the intention of testators would be more frequently defeated than carried into effect. Under different circumstances it means a man's household, consisting of himself, his wife, children and servants; it may mean his wife and children, or his children excluding his wife; in the absence of wife and children, it may mean his brother and sisters or his next of kin, or it may mean the genealogical stock from which he may have sprung. All these applications of the word and some others are found in common parlance'. The reference to the family is in the context of the role of the child in the family. It is clear that whether it be a 'nuclear' family or in common parlance, the child forms a part of what is popularly known as family. It is this child which we are concerned with. 8."Adoption is currently defined as a legal and social process by which the child of one pair of parents becomes the child of other parents. Adoption confers upon the child and the adoptive parents the same mutual rights and the obligation that exists between the child and his natural parents. The adoptive child is permanently removed from his biological parents and becomes the legitimate child of his adoptive parents. In theory, the adoptive child secures all the rights and performs all the duties of a biological child." (Carlson. 1965). The adoptive child is permanently removed from his biological parents and becomes the legitimate child of his adoptive parents. In theory, the adoptive child secures all the rights and performs all the duties of a biological child." (Carlson. 1965). In Corpus Juris Secundum, Volume 2 adoption has been defined as the establishment of the relation of parent and child between persons not so related by nature. A popular meaning, apart from the law, is the taking of a child, not one's own, into the family and rearing it. Adoption in legal contemplation, is the act of which the parties thereto establish the relationship of parent and child between persons not so related by nature, and which, in many respects, severs the natural relations existing between the child and its parents, although in a narrower sense it is restricted to the act of the person taking the child. Adoption also has a popular meaning, apart from its use in the law. While generally the term has reference to some form of legal procedure, in common use, it is frequently applied to taking a child, not one's own, into the family and rearing it. Historically in so far as our country is concerned, adoption has been accepted as a custom which stands ultimately codified under the Hindu Adoption Maintenance Act. Again in C.J.S. it is set out that Adoption is a practice of very great antiquity. It appears to have been known to the Egyptians, Babylonians, Assyrians, Greeks, and ancient Germans, and among the Hebrews the Practice, although probably not recognised by their system of jurisprudence, was undoubtedly well-known. Ms. Madhavi Hegde-Karandikar's, "Issues, Laws Procedures on Adoption" sets out that in ancient times, the practice of adoption prevailed both in the East and the West. It prevailed in ancient times in Greece and Rome. The ancient Roman law provided for State intervention and required official sanction for adoption. In ancient times, adoption was primarily concerned with strengthening a family by giving it direct heirs. It was essentially a family-oriented practice with the main objective of continuance of the family for religious purposes (for example, performance of last rites by a son in India) and inheritance of property. The children adopted were mostly from amongst the kith and kin or at least from the same caste (particularly in India). Adoptions were rarely carried out for security and welfare of the children in need. The children adopted were mostly from amongst the kith and kin or at least from the same caste (particularly in India). Adoptions were rarely carried out for security and welfare of the children in need. (Billimoria, 1984). In India, the importance attached to a male successor provided the main motivation for adoption. The son begotten from the wedded wife occupied the highest status and in the absence of one, the adopted son took the position of importance. In the times when polygamy was legally and socially accepted, children born from the concubines or from illicit relationships were also given some status and limited rights over maintenance and inheritance of property. The Rao Rajas and Rao Ranis from princely states were the off springs of the Maharajas but not begotten from the wedded wives. They were brought up in the palaces, given the same education and other facilities as the princes and princesses, and even inherited properties but they could never be given succession rights over the throne. Thus the ancient Hindu tradition in India conferred some recognition and protection upon illegitimate children but one does not easily come across instances of adoption of a male child by father who had a legitimate female child or even an illegitimate male child. 9.Let me now refer to several excerpts from the Book. "Ours by Choice" by "Nilima Mehta". The learned author points out that : It is found that most of the personality characteristics which make people seem pleasant or unpleasant are a result of their upbringing or nurturing. The child who is brought up in a neglected, unloved and emotionally deprived environment will blossom in a happy home; even the child's appearance will be transformed. They will start resembling the people who take care. The child will adopt your expressions, gestures, behavioural patterns to such an extent that strangers might even remark on the resemblance between you and your adopted child. Most of the characteristics which make people seem pleasant, likable or unlikable are a result of a upbringing and what they have imbibed through role modelling. The values of caring, concern, justice, honesty, integrity are all learnt from parents and they are attributes of the mind and personality which are created, nurtured and learnt through environmental influences. Infant research has reinformed the importance of environmental influences on a child's personality development. The values of caring, concern, justice, honesty, integrity are all learnt from parents and they are attributes of the mind and personality which are created, nurtured and learnt through environmental influences. Infant research has reinformed the importance of environmental influences on a child's personality development. Despite being of a lower socio-economic background and born to illiterate parents, for instance, adopted children were found to be leading very successful lives. They had not developed characteristics of their biological parents, but had imbibed the standards, values and attributes of their adoptive parents. While the contribution of environment and upbringing to a child's personality is thus determined, heredity cannot be ignored. Even an ideal environment can only develop what is already present in an individual. No amount of coaching or pressure can develop in a child an artistic or musical talent that did not exist in the first. What about the adopted child's level of intelligence? Psychologists and social scientists believe that a child's basic intelligence is the one they are born with. Apparent intelligence is the result of education exposure and social learning. Sometimes people from deprived, non-stimulating environments may seem very dull, even though they are not actually so. It is hard to accurately predict a child's intelligence, but heredity does play an important role in this area. Each child is an individual in her own right and should be considered and accepted as such. Destitute children certainly need adoptive homes and families that will give them opportunities they might not have otherwise had. To live in the shadow of unrealistic parental expectations is unfair to any child. It is being increasingly felt that even bad or broken homes are better than not having a home. Every child has a right to have a home in loving care and within the effective atmosphere of the home. In India the only existing legislation on Adoption is the Hindu Adoption and Maintenance Act, 1956. Non-Hindus have can only avail of the Guardianship Wards Act, 1890. As a result of canvassing by child welfare groups, the Joint Select Committee of Parliament approved the Adoption of Children Bill of 1972 which was introduced in Parliament in 1978 but later withdrawn. A modified bill known as Adoption of Children Act, 1980 was introduced which excluded Muslims. However, nothing came out of the same. As a result of canvassing by child welfare groups, the Joint Select Committee of Parliament approved the Adoption of Children Bill of 1972 which was introduced in Parliament in 1978 but later withdrawn. A modified bill known as Adoption of Children Act, 1980 was introduced which excluded Muslims. However, nothing came out of the same. In fact on the initiative of the Christian Community of India, a Bill was forwarded known as Christian Adoption and Maintenance Act, 1995. It had the support of the Catholic Bishops' Conference of India as also of the various other Christian denominations throughout the country. However, nothing has emerged inspite of the readiness of Christian community in the country to accept the bill on Adoption Maintenance. The Maharashtra Legislative Assembly introduced a bill on 9th August, 1995 known as "Maharashtra Adoption Act, 1995". The Act was made applicable to every person adopting a child in the State irrespective of the persons's religion, caste and creed. The Bill sought to displace The Hindu Adoption and Maintenance Act, 1956 in the State of Maharashtra. Section 27 of the bill, is a saving provision whereby on coming into force of the Maharashtra Adoption Act the provisions of Hindu Adoption and Maintenance Act, 1956 will cease to have effect in the State of Maharashtra. In the Statement of Objects and Reasons it is set out that the Legislation was enacted to give effect to Articles 32 and 44 of the Constitution. The Bill is pending assent of the President of India. There I believe are various objections filed by some groups. III.ARTICLE 21:--- Right to Life: 11.The judicial long march to find the true scope and intent of Article 21 ironically began with those associated with suppression of liberty during the emergency. Emergency politics led the search for human rights. The Constitution once stated by Justice Vivan Bose, as meant for the Butcher, the Baker and the Candle stick maker has given way to what Justice Krishna Iyer says, as for the tortured prisoner, the bonded labourer, the discriminated gender, the marginalised, dissenter and the disabled, deprived human. Emergency politics led the search for human rights. The Constitution once stated by Justice Vivan Bose, as meant for the Butcher, the Baker and the Candle stick maker has given way to what Justice Krishna Iyer says, as for the tortured prisoner, the bonded labourer, the discriminated gender, the marginalised, dissenter and the disabled, deprived human. The case of (Smt. Maneka Gandhi v. Union of India and another)1, A.I.R. 1978 S.C. 597, was the water shed in this historical march in a deeper understanding of the Constitution and more specifically Articles 14 and 21 of the fundamental rights: The Apex Court observed that the purpose behind Article 21 was to help the individual to find his own viability, in order to give expression to his creativity and to prevent governmental and other forces from alienating the individual from his creative impulses. These are rights which are wide ranging and comprehensive. Though Article 21 is couched in a negative meaning nevertheless it confers right to life and personal liberty. Immediately thereafter in the case of (Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and others)2, A.I.R. 1981 S.C. 746, the Apex Court observed that the fundamental right to life which is the most precious human right and which forms the ark of all other rights, must, therefore, be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. While understanding the proper meaning and content of the right to life, it must be understood that it is a constitutional provision which is being expounded and moreover it is a provision enacting a fundamental right. Court's should always attempt to expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. Constitutions, it is pointed out, are not ephemeral enactments designed to meet passing occasions. They are designed to approach immortality as nearly as human institutions can approach it. The term "life" as used in Article 21 is something more than mere animal existence. Constitutions, it is pointed out, are not ephemeral enactments designed to meet passing occasions. They are designed to approach immortality as nearly as human institutions can approach it. The term "life" as used in Article 21 is something more than mere animal existence. The right to life includes the right to life with human dignity and all that goes along with it, namely, the bare necessaries 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. These human rights represent the basic values cherished by men since civilisation began. They are wide ranging and comprehensive and include the right to equality, right to freedom, right against exploitation, educational rights and the right to constitutional remedies. Of course, the magnitude and content of the components of these rights would depend upon the extent of the economic development of the country, but it must, in any view of the matter include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation protanto of his right to live and it would have to be in accordance with reasonable, fair and just procedure established by law, which stands the test of other fundamental rights. This exposition came after judgment of the Apex Court in the case of (Additional District Magistrate, Jabalpur v. Shivakant Shukla)3, A.I.R. 1976 S.C. 1207, during the emergency period, when the right to life and liberty were denied to the citizens of this country. The Apex Court then by a majority judgment had held that the right to personal liberty is the right of the individual to personal freedom nothing more and nothing less. That right along with certain other rights had been elevated to the status of fundamental right in order that they may not be tinkered with and in order that a mere majority should not be able to trample over them. That right was, however, subject to the right of the President under Article 356 to suspend the enforcement even of these rights which were sanctified by being lifted out of the common morass of human rights. That right was, however, subject to the right of the President under Article 356 to suspend the enforcement even of these rights which were sanctified by being lifted out of the common morass of human rights. The Apex Court observed that the enforcement of the fundamental rights can be suspended during an emergency. 12.The various facets of Article 21 as now being discovered by the Apex Court have led the Judges to search the various hues of its composition, in order to make our society more humane and just, in tune with the Constitutional mandate as reflected by the preamble. The Preamble has become the viewing glass. The fundamental rights are now viewed from the language of the preamble. Directive principles no longer mean what the Nation must aspire and what the Legislature and Executive must proceed to make functional. Article 21 amongst the fundamental rights is now the pinnancle of the pyramid that constitutes the basic rights of citizens. To understand these basic or what are known as human rights we have to examine the diverse implication of the term "life". These rights could either be positive or moral. The rights which have been conferred on us, by the law of the country and which are subject to revocation by relevant Legislation can be termed as positive rights. In this sense moral rights are principal rights which appeal to the ethical and emotional feelings of every human being. These rights are coextensive with the right of man himself. These are rights which cannot be revoked. They are inalienable rights that man acquires by the very fact that he belongs to the human race. The first such acceptance was in the Bill of Rights as adopted in Virginia on June 12, 1776. Its first article affirmed that:- "... All men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." It was so reflected in the French Revolution which proclaimed and endorsed that "Men are born, and always continue, free and equal in respect of their rights." The right traceable to Article 21 are basic and inalienable rights. Protection of these rights forms part of the Rule of Law. We must remember that the Rule of law provides the foundation and the basic for legal respect and for human dignity. Lawyers and Judges together are the engineers of this human right jurisprudence. Only an activist bar can broaden and innovate social action litigation to motivate courts to promote public interest "lis", since Judges are obliged to do justice. 13.We may now examine the judicial precedents, to find whether in the search for justice, of the cause being expounded, the Constitutional ship can be navigated into the harbour of human rights. Navigation today may be much easier than was for the first explorers - Magellan, Vespuci, Columbus or Vasco-de-Gama, amongst the Europeans. Now Captains who have occupied seats on the judicial ship of justice have charged out courses in their pursuit and in the search for human rights. These we call precedents. In the case of (Bandhua Mukti Morcha v. Union of India and others)4, 1984(3) S.C.C. 161 the Apex Court was considering a petition by public spirited organisations on behalf of bonded labourers. While passing directions for relief, the Apex Court observed as under :--- "The right to live with human dignity, free from exploitation enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and the children of tender age against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and neither the Central nor any State Government has the right to take any action which will deprive a person of the enjoyment of these basic essentials." In the case of (Olga Tellis and others v. Bombay Municipal Corporation and others)5, 1985(2) Bom.C.R. 434 the Apex Court was considering the rights of pavement dwellers, residing on the footpaths of public streets in Bombay. What is important from this judgment is that the Apex Court in no uncertain terms held, that the Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. Then considering as to what would be the right to life the Apex Court has observed as under :- "The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away, as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life." While interpreting the right to life and generally the fundamental rights, the directive principles which are fundamental in the governance of the country, have served as the beacon light in the interpretation of the constitutional provisions. In the case of (State of Himachal Pradesh and another v. Umed Ram Sharma and others)6, 1986(2) S.C.C. 68 , the Apex Court in a Public Interest Litigation petition had to consider whether the right of usable roads to poor in so far as residents of hilly areas would constitute a part of their right to life. In the case of (State of Himachal Pradesh and another v. Umed Ram Sharma and others)6, 1986(2) S.C.C. 68 , the Apex Court in a Public Interest Litigation petition had to consider whether the right of usable roads to poor in so far as residents of hilly areas would constitute a part of their right to life. After examining Article 38(2), Article 19(1) (d) and Article 21 the Apex Court held that residents of hilly areas as far as feasible and possible, society has constitutional obligation to provide roads for communication in reasonable conditions. The Apex Court then went on to hold that the affirmative actions by the judiciary is sometimes necessary to keep the judiciary in tune with the legislative intention. 13.In (Lakshmi Kant Pandey v. Union of India)7, A.I.R. 1984 S.C. 469 the Apex Court was considering the conditions to be imposed on foreigners taking a child in adoption. At the relevant time and even today there is no statutory enactment in India providing for adoption of a child by foreign parents or laying down the procedure which must be followed. In this context the Court was considering the rights of the child and child welfare. The Apex Court observed that children are "supremely important national asset" and the future well being of the nation depends on how its children grow and develop. The Court then quoted Milton for the following:--- "Child shows the man as morning shows the day." The child is a soul with a being, a nature and capacity of its own, they must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. The following observations are noteworthy:--- "Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves. The following observations are noteworthy:--- "Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves. This is why there is a growing realisation in every part of the globe that children must be brought up in an atmosphere of love and affection and under the tender care and attention of parents so that they may be able to attain full emotional, intellectual and spiritual stability and maturity and acquire self-confidence and self-respect and a balanced view of life with full appreciation and realisation of the role which they have to play in the nation building process without which the nation cannot develop and attain real prosperity, because a large segment of the society would then be left out of the developmental process. This consciousness is reflected in the provisions enacted in the Constitution by enacting Clause (3) of Article 15 which enables the State to make special provisions inter alia for children and Article 24 which provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment". In his Foreword to Manual on Adoption, A guidebook on Principles, Practices and Procedures, brought out by Indian Association for Promotion of Adoption, Justice Bhagwati, who had spoken for the Bench in Lakshmi Kant Pandey (supra) observed that the directions given on Inter-Country Adoption were given as a part of the fundamental right of the child to life under Article 21 of the Constituion. This is what Justice Bhagwati said "The laying down of the procedure and the guidelines was almost in the nature of legislation by the Court but, it had to be done, because the Government was dragging its feet in enacting a suitable Adoption of children Act and it was necessary for the Court to intervene to protect the fundamental right of the child to life under Article 21 of the Constitution." Even without that from the judgment itself it was apparent that it was referable to Article 21, as the petition was under Article 32 and reference to Article 15(3) and 24 were in aid thereof. The Court accepted the right to a home, a name and a family as a part of the "right to life". The Court accepted the right to a home, a name and a family as a part of the "right to life". Why must these children be treated as castaways of society to be ostacrized, and carry the mark of "cain" on their heads for no fault of their's. 14.In (Vikram Deo Singh Tomar v. State of Bihar)8, 1988 (Supp.) S.C.C. 734 the question arose before the Apex Court on a letter informing the Apex Court that female inmates of Care Home of Patna (Bihar) were compelled to live in inhuman condition in an old dilapidated building, that they were ill-treated, provided food which was both insufficient and of poor quality. While disposing of the petition and issuing directions the Apex Court observed that under Article 21 of the Constitution, every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian Citizen and it is in the discharge of its responsibilities to the people, the State recognises the need for maintaining establishments for the care of those unfortunates, both women and children, who are castaways of an imperfect social order and for whom, therefore, of necessity provision must be made for their protection and welfare. Both out of common humanity and considerations of law the State is bound to provide such Homes to abide by the constitutional standards recognised by well accepted principles. It is incumbent upon the State when assigning women and children to such Homes that it must provide minimum conditions ensuring human dignity. In (Pt. Parmanand Katara v. Union of India and others)9, 1989(4) S.C.C. 286 the issue was of providing immediate minimum medical aid to injured persons. The Apex Court observed that Article 21 of the Constitution casts an obligation on the State to 'preserve life'. While dealing with an accident victim the Doctor whether attached to a public or private hospital has the professional obligation to render service with due expertise for protecting 'life'. In (Ramsharan Autyanuprasi and another v. Union of India and others)10, A.I.R. 1989 S.C. 549 the Apex Court was called upon to settle a dispute in respect of the Museum Trust created by Maharaja of erstwhile Jaipur State. In (Ramsharan Autyanuprasi and another v. Union of India and others)10, A.I.R. 1989 S.C. 549 the Apex Court was called upon to settle a dispute in respect of the Museum Trust created by Maharaja of erstwhile Jaipur State. While disposing of the petition the Apex Court observed as under :--- "It is true that life in its expanded horizons today includes all that gives meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21." In (Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. and others)11, A.I.R. 1990 S.C. 2060, the matter arose on violation of the provisions of the Air Water (Prevention and Control of Pollution) Act. The Apex Court has observed as under :--- "Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Article 21 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of law, that quality of life and living by the people is entitled to (be taken) recourse of Article 32 of the Constitution." In the case of (Subhash Kumar v. State of Bihar and others)12, A.I.R. 1991 S.C. 420 the question arose on account of pollution caused by discharge of slurry/sludge from a Steel Plant. While disposing of the petition the Apex Court observed as under :--- "Right to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life." 15.In (C.E.S.C. Limited and others v. Subhash Chandra Bose and others)13, 1992(1) S.C.C. 441 the issue arose out of applicability of provisions of the Employees' State Insurance Act, 1948. While considering the ambit of Article 21 the Court also considered Article 25(2) of the Universal Declaration of Human Rights, 1948. While disposing of the petition, the Apex Court observed as under:--- "The right to social justice is a fundamental right. Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. While disposing of the petition, the Apex Court observed as under:--- "The right to social justice is a fundamental right. Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. The aid of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. Right to human dignity, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means. To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers, the civil and political rights are 'mere cosmetic' rights. Socio-economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life. The Universal Declaration of Human Rights, International Convention of Economic. Social and Cultural Rights recognise their needs which include right to food, clothing, housing, education, right to work, leisure, fair wages, decent working conditions, social security, right to physical or mental health, protection of their families as integral part of the right to life. Our Constitution in the Preamble and Part IV reinforces them compendiously as socio-economic justice, a bedrock to an egalitarian social order. The right to social and economic justice is thus a fundamental right." In (Peerless General Finance and Investment Co. Ltd. and another v. Reserve Bank of India)14, 1993 Bank.J. 112(S.C.) the issue pertained to directions issued by the Reserve Bank of India to regulate several schemes run by what is known as Residuary Non-Banking Companies. While disposing of the petition the Apex Court observed as under:--- "The solidarity of political freedom hinges upon socio-economic democracy. The right to development is one of the most important facets of basic human rights. The right to self-interest is inherent in right to life. Mahatma Gandhiji, the Father of the Nation, said that "Every human being has a right to live and therefore to find the wherewithal to feed himself and where necessary, to clothe and house himself. The right to development is one of the most important facets of basic human rights. The right to self-interest is inherent in right to life. Mahatma Gandhiji, the Father of the Nation, said that "Every human being has a right to live and therefore to find the wherewithal to feed himself and where necessary, to clothe and house himself. Article 25 of the Universal Declaration of Human Rights provides that "everyone has a right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care. Right to life includes the right to live with basic human dignity with necessities of life such as nutrition, clothing, food, shelter over the head, facilities for cultural and socio-economic well being of every individual. Article 21 protects right to life. It guarantees and derives therefrom the minimum of the needs of existence including better tomorrow." In (Surjit Singh v. State of Punjab others)15, 1996(2) S.C.C. 336 the question arose of reimbursement of expenses for medical treatment. The Court while considering the case observed as under :--- "It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law." In (Chameli Singh others v. State of U.P. another)16, 1996(2) S.C.C. 54 an issue arose out of acquisition of land for a public purpose. The Apex Court considering the scope and ambit of Article 21 observed as under :-- "In any organised society, right to live is a human being to not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention of under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As it enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in the democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself." In the case of (People's Union for Civil Liberties (PUCL) v. Union of India and another)17, 1997(3) Bom.C.R. 38 (S.C.) the issue arose as to the right of citizen to transmit telephone message or hold telephone conversation in privacy. While disposing of the question the Court noted that :--- "India is a signatory to the International Covenant on Civil and Political Rights, 1966." The Court then observed that Article 17 of the International Covenant does not go contrary to any part of our Municipal Law. Article 21 of the Constitution has, therefore, been interpreted in conformity with the International Law. Therefore, the Court spelt out that though International Covenant by themselves may not be enforceable in Municipal courts yet when they constitute a part of Article 21 and when there is no Municipal Law to the contrary the International Covenant can be resorted to. In the case of (M/s. Shantistar Builders v. Narayan Khimalal Totame and others)18, 1990(1) S.C.C. 520 , certain lands were exempted under the provisions of the Urban Land (Ceiling Regulation) Act, 1976 for construction of dwelling units under the scheme for weaker sections of the society. There was a ceiling in so far as income is concerned. The petitioners belonging to weaker section of society filed a petition contending that the builder had violated the conditions imposed in the order of exemption. Various grounds were set out therein. The petition was dismissed as by then the Government Policy had changed. Without examining the factual aspects certain directions were given. It is against those directions that the builder challenged the order before the Apex Court. While disposing of the Special Leave Petition the Apex Court observed as under:--- "The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation." 16.In (Unnikrishnan J.P. others v. State of Andhra Pradesh and others)19, 1993(1) S.C.C. 645 the question before the Apex Court was whether children aged upto 14 years have a fundamental right to education. The issue arose out of a judgment of the Apex Court in the case of (Mohini Jain v. State of Karnataka)20, 1992(3) S.C.C. 666 . In Mohini Jain (supra) the issue was whether a citizen has a fundamental right to education in a Medical, Engineering or other professional Degree. The question whether the right to primary education as mentioned in Article 45 of the Constitution of India is a fundamental right under Article 21 did not directly arise in Mohini Jain's case. The correctness of the view taken in Mohini Jain's case was under issue before the Apex Court before a larger Bench. One of the contentions sought to be argued was that Article 37 of Part IV was not enforceable in the absence of any law and that, therefore, assuming the right under Article 45 is to be included within the ambit of Article 21 it would not be enforceable. Articles 45 and 49 were sought to be compared and it was suggested that whereas in Article 49 there was an obligation placed on the State, under Article 45 what was required was an endeavour. The minority view took a stand that the issue as it did not squarely arise in the case need not be decided. The majority, however, proceeded to dispose of the said issue. The majority proceeded to answer the question as to why the Constitution did not positively confer a fundamental right to life or personal liberty like Article 19 but had couched it in negative language. The majority, however, proceeded to dispose of the said issue. The majority proceeded to answer the question as to why the Constitution did not positively confer a fundamental right to life or personal liberty like Article 19 but had couched it in negative language. The question was answered as under :--- "The reason is, great concepts like liberty and life were purposefully left to gather meaning from experience. They relate to the whole domain of social and economic fact. The drafters of this Constitution knew too well that only a stagnant society remains unchanged." 17.The Apex Court then proceeded to answer the interaction between fundamental rights and directive principles. The Court answered the question as under :--- "This Court has also been consistently adopting the approach that the fundamental rights and directive principles are supplementary and complementary to each other and that the provisions in Part III should be interpreted having regard to the Preamble and the Directive Principles of the State Policy. The initial hesitation to recognise the profound significance of Part IV has been given up long ago." The Court further observed that : "It is thus well established by the decisions of this Court that the provisions of Parts III and IV are supplementary and