ARTICLE 19: RIGHT TO FREEDOM
Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of ‘speech and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’, and ‘practicing any profession and carrying on any business’.
These various freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values in, and the oneness and unity of, the country. Art. 19 guarantee some of the basic, values in, and the oneness and unity of, the country. Art. 19 guarantee some of the basic, valued and natural rights inherent in a person.
These rights are not exhaustive of all the rights of a free man who has far more and wider rights. The freedoms enumerated in Article 19(1) are those great and basic rights which are recognized as the natural inherent in the status of a citizen. According to Supreme Court, it is possible that a right does not find express mention in any clause of Art. 19(1) and yet it may be covered by some clause therein. This gives an additional dimension to Article 19(1) in the sense that even though a right may not be explicit, it may yet be implicit in the various clauses of Art.19.
The principle on which the power of the State to impose restriction is based is that all individual rights of a person are held subject to such reasonable limitations and regulations as may be necessary or expedient for the protection of the general welfare. In the words of Das, J., “social interest in individual liberty may well have to be subordinated to other greater social interests. Indeed, there has to be a balance between individual rights guaranteed under Article 19(1) and the exigencies of the State which is the custodian of the interests of the general public, public order, decency or morality and of other public interests which may compendiously be described as social welfare.”
A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of Article 19 to be constitutionally valid, must satisfy two conditions, namely:-
(1) The restriction must be for the particular purpose mentioned in the clause permitting the imposition of the restriction on that particular right, and permitting the imposition of the restriction.
(2) The restriction must be a reasonable restriction.
It may be emphasized that the requirement that a restriction should be reasonable is of great constitutional significance, for it acts as a limitation on the power of the legislature, and consequently, widens the scope of judicial review of laws restraining the exercise of freedoms guaranteed by Article 19.
Freedom of speech is essential for the proper functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving succor and protection to all other liberties.
The test of reasonableness has to be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The meaning would vary according to which of the six rights guaranteed under clause (1) is being restricted by the impugned law. Some of the principles which the Supreme Court has affirmed in ascertaining the reasonableness of restrictions on the exercise of the rights secured under this article.
1. Reasonableness demands proper balancing: – The phrase ‘reasonable restrictions’ connotes that the limitation imposed upon a person in the enjoyment of a right should not be arbitrary or of an excessive nature. Legislation which arbitrarily or excessively invades any of the six freedoms cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedoms guaranteed under Article 19(1) and social control permitted by clauses (2) to (6) of Article 19, it must be held to be wanting in reasonableness.
2. Reasonableness both substantive and procedural: – In determining the reasonableness of a statute, the court would see both to the nature of the restriction and procedure prescribed by the statute for enforcing the restriction on the individual freedom. Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable.Absence of provision for review makes the provisions unreasonable.
3. Reasonableness and objective concept: – The reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations.
4. Reasonableness of restriction and not of law: – The court is called upon to ascertain the reasonableness of the restriction and not of the law which permits the restriction. A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.
5. Reasonableness includes total prohibition: – The word ‘restriction’ also includes cases of prohibition and the State can establish that a law, though purporting to deprive a person of his fundamental right, under certain circumstances amounts to a reasonable restriction only.
6. Reasonableness and American ‘Due Process’: – The Constitution framers deliberately avoided the use of the expression ‘due process’ with its comprehensiveness, flexibility and attendant vagueness, in favour of the somewhat more definite word, ‘reasonable’, and caution has, therefore, to be exercised before the literal application of American decisions. Our Constitution provides reasonably precise general guidance in this matter.
7. Reasonableness and Directive Principles of State Policy: – That the restrictions are imposed in carrying out the Directive Principles of State Policy is a point in favour of the reasonableness of the restrictions.
8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the freedoms guaranteed under Article 19. Mere excessiveness of a tax is not a ground for challenging it as a restriction on one of the freedom in Article 19(1).
Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’. Under Article 19(2), reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not falling within the four corners of Art. 19(2) cannot be valid.
The freedom of speech under Article 19(1) (a) includes the right to express one’s views and opinions at any issue through any medium, e.g., by words of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish opinion. But this right is subject to reasonable restrictions being imposed under Art. 19(2).
The ‘freedom of speech and expression’ includes the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach.
Freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1) (a). There is no specific provision ensuring freedom of the press as such. The freedom of the press is regarded as a “species of which freedom of expression is a genus. Thus being only a right flowing from the freedom of speech, the freedom of the press in Indian stands on no higher footing than the freedom of speech of a citizen, and the press enjoys no privilege as such distinct from freedom of the citizen.
The prime purpose of the free press guarantee is regarded as creating a fourth institution outside the government as an additional check on the three official branches- executive, legislative and the judiciary. It is the primary function of the press to provide comprehensive and objective information on all aspects of the country’s social, economic and political life. The press serves as a powerful antidote to any abuse of power by government officials and as a means for keeping the elected officials responsible to the people whom they were elected to serve.
The Supreme Court has emphasized that the freedom of the press is not so much for the benefit of the press as for he benefit of the general community because the community has a right to be supplied with information and the government owes a duty to educate the people within the limits of its resources.
Imposition of pre-censorship on publication is, therefore, unless justified under clause (2), violative of freedom of speech and expression. In Brij Bhushan V. State of Delhi, an order issued under East Punjab Safety Act, directing the editor and publisher of a newspaper “to submit for scrutiny, in duplicate, before publication ,till further orders, all communal matters and news and views about Pakistan, including photographs and cartoons”, was struck down by the Supreme Court observing, there can be little doubt that the imposition of pre-censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1)(a).
Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious encroachment on the valuable and cherished right to freedom of speech if a newspaper is prevented from publishing its own view or views of its correspondents”.
Freedom of speech and expression includes the freedom of propagation of ideas and is ensured by the freedom of circulation. In Romesh Thappar V. State of Madras, the notification banning the entry into or circulation, sale, or distribution in the State of Madras or any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was held invalid because, “without liberty of circulation, the publication would be of little value”.
The right of freedom of speech is infringed not only by a direct ban on the circulation of a publication, but also by an action of the government which would adversely affect the circulation of the paper. In Sakal Papers (p) ltd. V. Union of India, a government order which fixed the number of pages and size which a newspaper could publish at a price was challenged by the petitioners on the ground that it infringed the liberty of the press implicit in the terms of Art. 19(1)(a). The order affected the liberty of the press because its adoption would mean, the petitioners explained, either the reduction in the existing number of pages or raising of the price. In either case, there would be reduction in the volume or circulation of the paper and therefore a direct violation of the liberty of the press. On behalf of the State, the law was justified as a reasonable restriction on the business activity of a newspaper in the interests of the general public.
The Court agreed that newspapers have two aspects-dissemination of news and views and commercial. The two aspects are different, the former falls under Art. 19(1)(a) read with Art. 19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art. 19(6). However, the state cannot seek to place restriction on business by directly immediately curtailing any other freedom of the citizen guaranteed by the constitution and which is not susceptible of abridgement on the same grounds as are set out in Art. 19(6). “Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen.
The Court accepted the plea of the petitioners that the order affected the circulation and so restrained the dissemination of news and views which a newspaper had the freedom to do. The order was struck down and held to be inoperative. Therefore, referring the press as a business and justifying the impugned restriction under Art. 19(6) as a proper restriction on the right to carry on the business of publishing a newspaper “would be wholly irrelevant for considering whether the impugned Act infringes or does not infringes the freedom guaranteed by Art. 19(1)(a).” This means the freedom of speech cannot be restricted for the purpose of regulating the commercial aspects of the activities of the newspapers.
Bennett Coleman & Co. V. Union of India, is a case of great significance in the area of freedom of speech and expression. India faces a shortage of indigenous newsprint. Because of the shortage of foreign exchange, quantity of newsprint imported was not adequate to meet all requirements. Some restrictions, therefore, become necessary on the consumption of newsprint. Accordingly, s system of newsprint quota for newspapers was evolved. The actual consumption of newsprint by newspaper during 1970-71 & 1971-72, whichever was less, was taken as the base. For dailies with a circulation up to 1,00,000 copies, 10% increase in the basic entitlement was to be granted, but for newspapers with a larger circulation, the increase was to be only 3%. Newspapers with less than 10 pages daily could raise the number of pages by 20% subject to the ceiling of 10. A few more restrictions were imposed on the user of newsprint. This newsprint policy was challenged in the Supreme Court.
By a majority, the Supreme Court declared the policy unconstitutional. While the Government could evolve a policy of allotting newsprint on a fair and equitable basis, keeping in view the interests of small, medium and big newspapers, the Government could not, in the grab of regulating distribution of newsprint, control the growth the circulation of newspapers. In effect, here the newsprint policy became the newspaper control policy. While newsprint quota could be fixed on a reasonable basis, post-quota restrictions could not be imposed. The newspapers should be left free to determine their pages, circulation and new editions within their fixed quota. The policy of limiting all papers whether small or large, to 10 pages was held to be discriminatory as it treated unequal as equals. The restrictions imposed cut at the very root of the guaranteed freedom. In the words of the Court, “Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.”
The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot be denied the protection of Art. 19(1)(a) merely because the same is issued by business man. “Commercial Speech” is a part of freedom of speech guaranteed under Art. 19(1)(a). The public at large has a right to receive the “commercial speech”. The protection of Art. 19(1)(a) is available both to the speaker as well as the recipient of the speech.
The Supreme Court accepted as valid the printing of yellow pages by the Tata Press. Printing of a directory of telephone subscribers is to be done exclusively by the Telephone Department as a part of its service to the telephone subscribers. But yellow pages only contain commercial advertisements and Art. 19(1)(a) guarantee freedom to publish the same.
In LIC V. Manubhai D. Shah, the Supreme Court stated a liberal interpretation should be given to the right of freedom of speech and expression guaranteed by Rt. 19(1)(a) . The Court has characterized this right as a “basic human right”. This right includes “the right to propagate one’s views through the print media or through any other communication channel, e.g. the radio and television”. Thus, every citizen “has the right to air his or her views through the print and/or the electronic media subject, of course, to permissible restrictions imposed under Art. 19(2) of the Constitution.
In this case the Supreme Court has taken cognizance of two situations. One, the respondent circulated a research article suggesting that the LIC was charging unduly high premiums from those who took out life insurance policies. The LIC published a counter reply to this paper in a daily newspaper and also in its own in-house magazine. The respondent then prepared a rejoinder and got it printed in the same daily newspaper. He also wanted the LIC to print his rejoinder in their magazine, but the LIC refused to do so. The Supreme Court was called upon to decide the question whether the LIC was right in refusing to publish the rejoinder the responded in magazine. Answering in the negative the court pointed out that the attitude of the LIC was both “unfair and unreasonable”-unfair because fairness demanded that both view points were placed before the readers and unreasonable because there was no justification for refusing publication. By refusing to print and publish the rejoinder the LIC had violated the respondent’s Fundamental Right.
Every free citizen has an undoubted right to lay what sentiments he pleases before the public. Freedom of speech and expression is subject only to the restrictions imposable under Art. 19(2). Efforts by intolerant authorities to curb or suffocate this freedom must be firmly replied, more so when public authorities betray autocratic, tendencies.
LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament requires LIC to function in the best interest of the community. The community is, therefore, entitled to know whether or not, this requirement of the statute is being satisfied in the functioning of the LIC.
The right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the latter has been recognized. On further consideration in Secretary, Ministry I&B V. Cricket Association of Bengal, the Court has held that air waves or frequencies are public property, their use must be controlled and regulated by a public authority in the interest of public and to prevent the invasion of their rights. As the electronic media involves the use of the air wages, this factor creates an inbuilt restriction on its use as in the case of any other public property. This limitation in the nature of public property involved in the electronic media is in addition to the grounds of restriction on the right of freedom of speech and expression under Art. 19(2). Accordingly, while an individual has a right under Art. 19(1)(a) to have an access to telecasting, this right is subject to the limitation on account of use of public property, i.e. the air waves involved in the exercise of the right can be controlled and regulated by the public authority even on grounds not strictly covered under Art. 19(2). The Court also asked the Central Government to take immediate steps to establish an independent autonomous public authority representative of all sections and interests of the society to control and regulate the use of air waves. The provision for the Prasar Bharti seems to be taking care of this issue.
Virendra V. State of Punjab, The general principle is that it is unreasonable to leave absolute and arbitrary discretion to an administrative officer to regulate the freedom of speech and expression. The discretion to be valid must be exercisable for purposes specified in Art. 19(2), and subject to legislative policy and procedural safeguards. Like, banning of publication in any newspaper of any matter relating to a particular subject or class of subjects would be obnoxious to the right of free speech.
The significant judicial pronouncement in the area is Virendra V. State of Punjab. This is an important decision of the Supreme Court illustrating the Scope of Permissible restriction on the right of freedom of speech and expression. Punjab Special Powers (Press) Act empowered the State Government to:
- Prohibit the Printing or Publication of any article, report news item, letter or any other material relating to or connected with “Save Hindi Agitation”;
- The imposition of ban against the entry and circulation of the said papers published from New Delhi in the State of Punjab and
- Authorizing the State Government of its delegate to impose Pre-censorship, for a maximum period of two months in any issue of a newspaper.
These provisions were challenged on the ground of giving arbitrary and uncontrolled discretion to the government to curtail freedom of speech ‘on its subjective satisfaction’. The Supreme Court pointed out that there existed in Punjab serious tension amongst the various communities and in such a situation, conferment of wide powers to be exercised in the subjective satisfaction of the government could not be regarded as an unreasonable restriction. The State Government being in possession of all material facts, was the best authority to take anticipatory action for prevention of threatened breach of peace. Therefore, determination of necessity be left to the judgment and discretion of the government. To make the exercise of those powers justiciable would defeat the very purpose of the Act.
The first provision relating to ban on publication of news, etc. was upheld in the time of tension brought about or aided by the ‘Save Hindi Agitation’, taking into consideration the safeguard provided therein, as being a reasonable restriction and procedurally reasonable were:
(a) The positive requirement of the existence of the satisfaction of the authority as to the necessity for the making of order for the specific purposes mentioned in the Act.
(b) The discretion was given in the first instance to the State Government and not to every subordinate officer to determine the necessity of passing the order.
(c) The order could remain in force only for two months from the making thereof.
(d) The aggrieved party was given the right to make representation to the State government which could, on consideration thereof, modify, confirm or rescind the order.
The second provision of the Act mentioned above, namely the power to impose a ban against the entry and the circulation of the paper, was not sustained as a reasonable restriction on the freedom of speech because there was no time-limit for the operation of an order made against a paper and also because there was no provision made for any representative being made to the State Government.
Further the court held that a law conferring discretion on the executive could not be invalid if it laid down the policy so that discretion was exercised to effectuate the policy. The law in question satisfied this test for it laid down the purpose for which the power could be exercised. Further there were two safeguards subject to which the government was to exercise its power, viz., an order could remain in force only for two months, and the aggrieved person could make a representation to the government against the order, and so Act as a whole was valid of the order, nor did it provide for any representation to the government against the order.