Right to Freedom: Categories and Dimensions of Article 19

By | June 6, 2020
Right to Freedom: Article 19

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Right to Freedom: Categories and Dimensions of Article 19 | Overview

The Right to Freedom under Article 19 of the Constitution of India enumerates the dynamic approach of the Constitution-makers in building a set of rights that not only guarantee relief, compensation and contentment but also creates a structure that plays a vital role in the evolution of civil society and jurisprudence.

The Constitutional Scheme of the Right to Freedom: Categories and Dimensions

M.V. Pylee has said, “Personal liberty is the most fundamental of Fundamental Rights.” Indian constitution guarantees personal liberty and essential freedoms through Articles 19-22 of Part III of the Constitution.

“Taken together these four articles form the Charter of personal liberties, which provide the backbone to the Chapter on Fundamental Rights.”[1]

The Indian Constitution guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. These fundamental rights are a part of man’s inalienable rights which comes from natural law principles.

The Constitution has conferred these positive rights in Article 19 to promote the ideal of liberty enshrined in the Preamble. There were primarily “seven freedoms”. However after the 44th Constitutional Amendment Act, 1978 there are only six freedoms with the omission of the ‘right to acquire, hold and dispose of property’.

I. The six categories of freedoms are as follows:

  1. Freedom of Speech and Expression
  2. Freedom of Assembly
  3. Freedom of Association
  4. Freedom of Movement
  5. Freedom of Residence and settlement
  6. Freedom of Profession, Occupation, Trade or Business

II. Nature of Rights guaranteed under Article 19

The rights guaranteed under article 19 are ‘civil rights’ as distinguished from political rights such as the right to vote or to hold any political office. Also, it refers to natural or common law rights as distinguished from rights which are created by a statute and must be exercised subject to conditions imposed by it.

Where a right is created by a statute it can be taken away by the Legislature but when a right is ‘Fundamental’ it cannot be taken away by the Legislature and can be subjected to such restrictions as are permitted by the Constitution itself, that is, on the grounds specified in Clauses (2) to (6) of Article 19. This right is however not an absolute one and is subjected to certain restrictions.

III. Restrictions to the rights

The members of the Constituent Assembly were well acquainted with the importance of these liberties and were also well cautious of their absolute exercise. That is why the second part of Article 19 contains limitations each governing one or more of the clauses of the first part. Thus the Constitution allows certain restrictions that can be imposed on the exercise and enjoyment of the above rights.

The framers of the Constitution were also aware that the limitations so imposed by the state in this regard must be “reasonable”. Reasonableness of state actions is subject to judicial scrutiny.

As per the scheme of the Constitution, state action, in order to satisfy the test of reasonableness must meet the two conditions:

  1. The restriction should be confined to the purpose as defined in the relevant clause of Article 19.
  2. There must exist a logical co-relation between the restriction and the defined purpose.

Reasonableness of Restrictions

It is important to note the expression “Reasonable Restriction” has nowhere been defined by the Constitution. As mentioned above, 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 case. It will vary from case to case with regard to changing values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

Therefore, it is up to the court to determine the reasonableness of the restrictions enlisted in the Constitution.

  1. The expression “reasonable restriction” in Art. 19, Connotes that the limitation imposed on a person in the enjoyment of his right must not be arbitrary or of an excessive nature, so as to go beyond the requirement of the felt need of the society and object sought to be achieved.[2]
  2. There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object sought to be achieved.[3]
  3. The reasonableness of the restriction has to be determined in an objective manner and from the standpoint of view of the persons upon whom the restrictions are imposed or upon abstract considerations.[4]
  4. Restriction must be reasonable from both substantive as well as procedural standpoint.[5]
  5. A restriction which is imposed for securing the objective laid down in the Directive Principles may be regarded as a reasonable restriction.[6]

If the examine the above-mentioned guidelines prescribed by the Supreme Court or examined, one thing is clear that the court enjoys wide discretion in determining the reasonableness of a restriction imposed under Art. 19 of the Constitution.

Thus, “a restriction imposed in any form has to be reasonable and to an extent, it must stand the Scrutiny of judicial review. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework prescribed by Art. 19(2) of the Constitution.”

IV. Constitutional scheme of the rights given under Article 19

This part of the article would cover each and every right conferred by this Article and the reasonable restrictions put thereupon.

A. Freedom of Speech and Expression | Clause (1) (a):

This freedom means the right to express one’s convictions and opinions freely, by word of mouth, writing, printing, picture, or in any other manner addressed to eyes or ears. It thus includes the freedom of Press and the expression of one’s ideas by any visible representation.

Freedom of Press

Freedom of press is not specifically mentioned in article 19(1) (a) of the Constitution but only freedom of speech and expression are mentioned there. Dr. B.R. Ambedkar, Chairman of the Drafting Committee made clear that the freedom of press means the freedom for the press and an individual or a citizen.

It was the same right of expression. The framers of the Indian Constitution considered that freedom of the press is an essential part of the freedom of speech and expression which is guaranteed in Article 19 (1) (a) of the Constitution. Thus, it is included in the wider ‘Freedom of Expression’ guaranteed by Article 19 (1) (a).

In Romesh Thapper v. State of Madras[7] and Brij Bhushan v. State of Delhi[8, the Supreme Court took it for granted the fact that the freedom of the press was an essential part of the right to freedom of speech and expression. It was observed by Patanjali Sastri J. in Romesh Thapper’s case that freedom of speech and expression included propagation of ideas, and that freedom was ensured by the freedom of circulation. It is clear that the right to freedom of speech and expression carries the right to publish and circulate one’s ideas, opinions and other views with complete freedom and resort all available means of publication.

Any restriction imposed on this freedom is unconstitutional unless it can be justified under the limitation clause i.e. clause (2). As such the State can legitimately punish utterances which incite violence or bear the tendency to create public disorder, but, it cannot suppress even a very strong criticism of the measures of the Government or public officials which has no such tendency.

Grounds of Restriction on Freedom of Speech and Expression

The Constitution guarantees the freedom of speech and expression but this freedom is subject to reasonable restrictions imposed by the state relating to (a) defamation; (b) contempt of court; (c) decency or morality; (d) security of the state; (e) friendly relations with foreign states; (f) incitement to an offence; (g) public order; (h) maintenance of sovereignty and integrity of India.

  1. Sovereignty and Integrity of India

This ground has been added as a ground of restriction on the freedom of expression through the Sixteenth Amendment[9]. Therefore, sovereignty and integrity of India as a separate ground was inserted in Art. 19(2) of the Constitution enabling the Parliament to make a law so as to prevent any person from propagating recession of a State or any part of India from the union or to prevent all activities aimed at the disintegration of the country.

The expression ‘in the interest of’ indicates that the restriction on freedom of speech and expression may be imposed not only when it actually leads to the disintegration of the country but also when it has a tendency to cause disintegration of the country. This expression also indicates that the restriction imposed must have a reasonable connection with the sovereignty or integrity of India.

  1. Security of the State

The security of the State may be endangered by crimes of violence intended to overthrow the government. In Ramesh Thappar V. State of Madras[10], distinguishing security of State from public disorder, the Supreme Court said that,

 “every disorder cannot be regarded as threatening the security of the State. The term security of States refers only to serious and aggravated forms of public disorder, e.g. insurrection, rebellion; waging war against the State and not the minor breaches of public order tranquillity such as unlawful assembly, riot, affray etc.”

  1. Friendly Relations with the Foreign States

This ground has been added as a ground of restriction by the Constitution (First Amendment) Act, 1951. The main object of having such a ground as a restriction on freedom of speech and expression is to be prohibiting the malicious propaganda against a foreign country having a friendly relation with India.

  1. Public Order

The concept of public order includes every ordinary breach of public order like riot, affray but the concept ‘security of State’ refers only to serious and aggravated forms of public disorder like overthrowing the State or waging war against the State etc. Public order is something more than ordinary maintenance of law and order. ‘Public Order’ is synonymous with ‘public peace, safety and tranquillity’.

The restriction on freedom of speech and expression is based on the ground of public order which was added by the Constitution (First Amendment) Act, 1951 to meet the situation from the decision of the Supreme Court in Romesh Thapper v. State of Madras[11], the court struck down a law banning the entry of a journal in the State of Madras in the Interest of public order because of Art. 19 (2) did not contain the expression ‘public order’. To meet the situation arising from this decision the expression ‘public order’ was inserted in Art. 19(2), of the Constitution.

While considering the laws with the problem of public order the Supreme Court adopted a broader view in earlier cases. In Ramji Lal Modi case, the Supreme Court interpreted the words ‘in the interest of public order’ as wider than ‘for the maintenance of public order’ and, therefore, a law providing for curbing the activities which have a tendency to cause public disorder is valid.[12]

The broad approach was questioned in Virendra’s case[13] where the public order was considered of extreme importance and was given priority over the freedom of the press. The Court observed:

“Quick decision and swift and effective action must be the essence of these powers and exercise. It must, therefore, be kept to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make an exercise of these powers justifiable and subject to judicial Scrutiny will defeat the very purpose of the enactment.”

But in R.M. Lohia’s[14] case the Supreme Court did not follow its own view and narrowed the sweep of public order as a ground of reasonable restriction so as to exclude normal ‘law and order’ and ‘security of State’ situations and include only such situations where there were threats to public safety and tranquillity.

Bhagavati J., in Express Newspaper’s case developed a new approach of “direct and inevitable effect test”, in order to test the validity of a law imposing restrictions upon the freedom of press. The Court opined that,

“All the consequences which have been visualized in this regard by the petitioners viz. the tendency to curtail circulation and thereby narrow the dissemination of information fetters the petitioner’s freedom to choose the means of exercising the right, the likelihood of independence of the press being undermine by having to seek alternative media etc. would be remote and depend on various factors which may or may not come into the picture.

Unless these were the direct and inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation.”[15]

  1. Decency or Morality

The word decency and morality are words of wide meaning. The word ‘indecency’ is identical with the word ‘obscenity’ of English law. The test of obscenity is whether the tendency of the matter charged obscenely is to deprave and corrupt those whose minds are open to such immoral influence and into whose hands a publication of this sort is likely to fall.

 Sections 292 to 294 of IPC provide instances of restrictions of freedom of speech and expression in the interest of decency or morality. But it does not lay down any test for determining the obscenity.

  1. Contempt of Court

Restriction on the freedom of speech and expression can be imposed if it amounts to contempt of court. Sec. 2 of the Contempt of court Act, 1971, defines the term contempt of court, that “contempt of court may be either ‘civil contempt’ means wilful disobedience to any judgment, undertaking given to a court.

‘Criminal contempt’ means the publication (whether by words spoken or written or by signs or by visible representations or otherwise) or any matter or the doing of any other act whatsoever, which scandalize or tend to scandalize or lowers or tends to lower the authority of any court; Prejudices or interfere with the due course of any judicial proceedings, interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

In Arundhati Roy, In Re[16], the Supreme Court has held that maintenance of the dignity of the court is the cardinal principle of the rule of law. The criticism which undermines the dignity of the court cannot permit under clock of freedom of speech and expression.

  1. Defamation

A Statement which injures a man’s reputation amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The laws made by the State to impose a reasonable restriction on freedom of speech and expression in relation to defamation are protected under Art. 19(2).No person can so exercise his freedom of speech and expression as to injure the reputation of another person.

  1. Incitement to an Offence

The ground of incitement to commit an offence as a restriction on the freedom of speech and expression was added by the Constitution (First Amendment Act, 1951.) The right to freedom of speech and expression does not give permission to citizens to incite a person to commit an offence. The word ‘offence’ has not been defined in the Constitution.

According to the General Clause Act, 1897 the word ‘offence’ means any act or omission made punishable by laws. Thus, a person cannot be allowed to instigate another person to do an act made punishable by law. What constitutes incitement will, however, have to be determined by the court with reference to the facts and circumstances of each case. In Kedar Nath v. State of Bihar[17], it has been held that mere instigation not to pay tax may not necessarily amount to incitement to an offence.

B. Freedom of Assembly | Clause (1) (b)

This Clause guarantees the freedom to have a peaceful and unarmed assembly to the citizens. This is also not an absolute right and is subject to reasonable restrictions in the interests of public order. The right of a public meeting or of the procession is not specifically guaranteed by the Constitution but will follow from the right of Assembly.

Restrictions:

The freedom of assembly is subject to the qualification that the assembly must be peaceable and without arms and subject to such reasonable restrictions as may be imposed by the State in the interests of public order. The Constitution permits the citizens to form associations or unions, but this is subject to the reasonable restrictions imposed by the State in the interests of,

  1. Public order or morality and
  2. Maintenance of sovereignty and integrity of India.

Further, the right to hold meetings in public places is subject to the control of the appropriate authority regarding the time and place of the meeting. The right to take out a procession along public streets, religious or non-religious, is similarly, subject to the order of local authorities regulating traffic and the rights of the public to use the street as a passage. But the State cannot prohibit assembly on every public street or public place.

Section 144(6) of the CrPC, can be imposed by the Government of India in some areas which make the assembly of five or more people an unlawful assembly.

C. Freedom of Association | Clause (1) (c)

This right guarantees the freedom to citizens to form associations. This clause has no reference to a right which is conferred by a particular statute to act as a member of a body which is the creation of the statute itself. The word ‘form’ includes not only the right to start an association but also to continue it or to refuse to be a member of an association if he so desires.

The right to form associations or unions includes associations for any lawful purpose, e.g. a trade union and Government Servants are not excluded from its protection. The right to form a union belongs to all workmen and every workman, under an employer has the freedom to form a union of his choice and to refuse to become a member of any union if he does not like.

Conversely, no union can claim a monopoly right or a right to complain if some other union is brought into existence by other workmen. The Fundamental right of association does not get infringed where the services of a Government servant are terminated on the grounds that he is a member of the communist party because the order of termination does not prevent him from being a member of the communist party, but terminates the service which is held at the pleasure of the government and to which service there is no fundamental right.

Restrictions (clause 4):

The right to form an association guaranteed by sub-clause (c) does not carry with it a further guarantee that the objects and purposes of an association so formed shall not be interfered with by law except on grounds specified in clause (4) viz. public order and morality.

As to the concomitant rights of an Association, after it is formed, they cannot be different from the rights which can be claimed by the individual citizens of which the association is composed. Thus while the right to form a union is guaranteed by sub-clause (c) the right of the members of the association to meet would be guaranteed by sub-clause (b), their right to move from place to place is guaranteed by sub-clause(d) and so on.

D. Freedom of Movement | Clause (1) (d)

The freedom guaranteed by this relates to the particular right of shifting or moving from one part of Indian territory to another without any sort of discriminatory barriers between one state and another or between different parts of the same state What is sought to be protected by sub-clause (d) of Article 19(1) is only a specific and limited aspect of the right of free movement viz. the right of free movement throughout the territory of India, regarded as an independent and additional right of locomotion emanating from the freedom of person, which is dealt with in Article 21.

E. Freedom of Residence | Clause (1) (e)

The object of this clause is the same as that of clause 1(d) i.e. to remove internal barriers within India or between any of its parts, and the freedom guaranteed by clause 1(e) has to be construed similarly viz. with reference to the words ‘territory of India’. The rights under Article 19 have been made available only to citizens, and a person whose citizenship has been terminated by a law made by Parliament under Article 11, cannot complain of the infringement of his right under this sub-clause.

If restrictions are sought to be put upon the movement of a citizen from State to State or even within a State, such restrictions will have to be tested by the permissive limits prescribed in clause (5) of Article 19.

Restrictions (clause 5):

The right to move freely throughout the territory of India and the right to reside and settle in any part of the country shall be subject to restrictions imposed by the State in the (i) interests of the general public or (ii) for the protection of any scheduled tribes.

Example:

A law providing for domiciliary visits by the police may not constitute an unreasonable restriction where it is directed against a ‘habitual criminal’. The broad restrictions on the right to Freedom of Movement constitute:

  • An order of externment.
  • Surveillance by the police upon the movements of a person.
  • An order requiring a person not to leave his place of residence or to reside at a specified place other than his place of ordinary residence.
  • A restraint on the right to take out a procession.

Reasonable restrictions in the interests of the general public:

For example, externment of persons from a particular locality if their presence can jeopardize the peace and safety of the citizens of that locality.

This can also be done when a person is suffering from an infectious disease is prevented from moving about and spreading the disease and regulations can be introduced for his segregation. Similarly, healthy people may be prevented, in the interests of the general public, from moving about in a plague-infected area. There may be protected places i.e. forts or other strategic places, access whereto may have to be regulated or even prohibited in the interests of the general public.

A reasonable restriction has been put upon the free movement of a citizen of India from State to State and even within a State during the outbreak of pandemic (COVID 19) by the government to protect the interests of the general public.

F. Freedom of profession, trade or business | Clause (1) (g):

This freedom means that every citizen has the right to choose his own employment or to take up any trade or calling, subject only to the limits as may be imposed by the state in the interests of public welfare and the other grounds mentioned in clause (6). The right to carry on business implies a right not to carry it on as well if the citizen so chooses. This right cannot be lost by waiver or even express agreement with the State.

This right is the natural right to enter into or carry on any trade, profession or calling, which every person has, as the member of a civilized society, anterior to and independent of any legislation or grant by the State.

Also, Part 12 (Article 301-307) of the Constitution of India lists down the provisions relating to trade, commerce, and intercourse. Its objective is to remove barriers in the way of Inter-state and Intra-state commercial and trading links. Protection under Article 19(1) (g) is available to only the citizens of India, whereas, article 301 is available to everybody.

Where the right to carry on any profession is created by a statute, the exercise of that right is subject to the terms and conditions imposed by that statute and no Fundamental Right is infringed by such terms and conditions as the right to practice before a court of law, or a tribunal, or to get an import license. This Article (19) (g) does not grant any individual the right to insist upon the government or any other individual to do business with him.

Restrictions:

The right to practice any profession, or to carry on any occupation trade or business, but subject to reasonable restrictions imposed by the state,

  1. In the interests of the general public
  2. State prescribed qualifications for carrying on any profession or technical occupation.
  3. State-run trade, business, industry, or service that excludes the participation of citizens or others either completely or partially.

Example:

Nobody has the right to carry on any business that is inherently dangerous to the society, so that such business may be absolutely prohibited or permitted to be carried only under the licence of the State, e.g. the right to deal in and sell liquor. There is no Fundamental Right to carry out a trade or business such as betting or gambling or dealing in intoxicants.

This does not permit a citizen to carry on a business wherever he chooses e.g. on the street, or at any time, and his right must be subject to any reasonable restriction imposed by the executive in the interest of public convenience.

V. Suspension of Article 19 during emergencies

When a proclamation of emergency is made under Article 352, Article 19 itself remains suspended. Although the founding fathers of the Indian Republic guaranteed to the Indian citizens (and non-citizens) certain Fundamental Rights, they realized that there might be situations in the life of the Nation when those rights could not be and should not be enjoyed by the people. They, therefore, hedged those rights in certain respects.

Clauses 2 to 6 of Article 19 provided for the imposition of “reasonable” restrictions upon that right. More restrictions upon Fundamental Rights could be imposed under Articles 358 and 359 of the Constitution.

Article 21 further provided a basis for adjudging the constitutionality of state act with regard to the infringement of Fundamental Rights in general and right to personal liberty in particular in the form of the phrase “Procedure established by Law”.

In 1978, the Supreme Court in the case of Maneka Gandhi v. Union of India[18] extended the protection of Article 21 to legislative action, holding that any law laying down a procedure must be just, fair and reasonable, and effectively reading due process into Article 21.

Therefore the present scenario is that even during an emergency, any state act which infringes fundamental rights should be just, fair and reasonable.

Conclusion

The Right to Freedom is one of the most important Fundamental Rights under the Constitution of India. It is essential for the development of people. At the same time, providing people with absolute freedom could be very dangerous. It is important to put restrictions on freedom so that people don’t misuse their rights and co-exist with others peacefully.


[1] M.V. Pylee: ‘India’s Constitution’, Bombay 1967. Pg. 101

[2] Chintamanrao v. State of U.P., AIR 1951 SC, 118.

[3] M.R.F. Ltd. v. Inspector, Kerala Government, (1998) 8 SSC 227

[4] Hanif Qureshi v. State of Bihar, AIR 1958 SC 731

[5] Papnasamma Labor Union v. Madras Coast Ltd. AIR 1995 SC 2200

[6] State of Bombay v. F.N. Balsara, AIR 1951 SC 318

[7] AIR 1950 SC 124

[8] AIR 1950 SC 129

[9] The Constitution(Sixteenth Amendment) Act, 1963

[10] AIR 1950 SC 124

[11] AIR 1950 SC 124

[12] Ramji Lal Modi v. State of U.P., AIR 1957 SC 620

[13] Virendra v. The State Of Punjab, AIR 1957 896

[14] (1960) SCR (2) 821

[15] Express Newspapers v. Union of India, AIR 1958 SC 578 at p. 620.

[16] AIR 2002 SC 1375

[17] AIR 1962 SCC 955.

[18] (1978) AIR 597


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