13 Fundamental Freedoms and Reasonable Restrictions – Article 19 in the Constitution of India 1949

Dr. Rashmi Nagpal

Introduction: Article 19-22 of the Indian Constitution: Right to Freedom. Article 19, 20, 21 & 22 deal with the different aspects of Personal Liberty, the basic right of a citizen in a democracy. Articles 19—22 of the Constitution are grouped together under the heading ‗Right to Freedom‘. The rights enumerated under this Article are the natural capacities of an individual and the Constitution merely guarantees to every citizen that; and subject to certain limitations, he has the freedom in the matter of use and exercise of those capacities. Certain specific freedoms are guaranteed under Article 19 which can be subjected to reasonable restrictions by law. Clauses (2) to (6) of Article 19 recognise the power of the state to make laws imposing reasonable restrictions for reasons set out in them. Also the rights guaranteed under Article 19 are available only to the citizens of India, while the rights guaranteed under Articles 20, 21 and 22 are available to all persons. Therefore, non –citizens are clearly intended to be excluded from the enjoyment of Article 19 rights. Article 19: Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India; and

(f) ***omitted by 44th amendment act. (It was right to acquire, hold and dispose of property)

(g) To practice any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause.

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to:

(i) The professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

(ii) The carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

Freedom of speech and expression

Meaning and scope: Freedom of speech and expression is indispensable in a democracy. This means the right to express one‘s own convictions and opinions freely by writing, printing, word of mouth, pictures or any other mode. The expression connotes also publication and thus freedom of press is included in this category. In sum, the fundamental principle involved here is the people‘s right to know. As of now, there are 8 restrictions on the freedom of speech and expression. These are in respect of the sovereignty and integrity of the country. These 8 restrictions were:

Security of the state
Friendly relations with foreign states
Public Order
Decency or morality
Contempt of Court
Defamation
Incitement to offence
Sovereignty and integrity of India.

These 8 restrictions were embodied in their current form in the constitution First Amendment Bill 1951, this was necessitated by Romesh Thapar v State of Madras.1 In this case the entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The Supreme Court held in this case that unless a law restricting the freedom of speech and expression were directed solely against the undermining of the security of the state or its overthrow, the law could not be held a reasonable restriction though it sought to impose a restraint for the maintenance of public order. Please note that when a proclamation of emergency is made under Article 352, Article 19 itself remains suspended.

Freedom of Speech and Expression Article 19 of the constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral / written / electronic/ broadcasting/press. The Constitution does not make any special / specific reference to the Freedom of Press. The protagonists of the “free Press” called it a serious lapse of the Drafting committee. However, the freedom of expression includes freedom of press. Dr. Ambedkar in this context had said on speaking behalf of the Drafting Committee that the press had no special rights which are not to be given to an individual or a citizen. Dr. Ambedkar further said that the “editors or managers of press are all citizens of the country and when they chose to write in newspapers they are merely expressing their right of expression”. So, the word expression covers the Press. In modern times it covers the blogs and websites too.

Some landmark Supreme Court Judgments regarding the Freedom of Expression

Romesh Thapar v State of Madras.2: Freedom of speech and of the press laid at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.

Maneka Gandhi v Union of India..3 : Freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

Prabha Dutt v Union of India4: Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa, the

death sentence convicts, as they wanted to be interviewed. Also in Indian Express Newspapers Pvt. Ltd. v. Union of India5 : Press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom.

Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal (“Cricket Association”).6 : Every citizen has a fundamental right to impart as well as receive information through the electronic media. It ruled that frequencies or airwaves are public property, and that the government enjoys no monopoly over broadcasting. Court ordered the government to take immediate steps to set up an independent and autonomous public authority to regulate frequencies. Freedom of speech and expression (Article 19.1 & 19.2) played an important role in this decision.

Union of India v Assn. for Democratic Reforms. 7 : One-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Freedom of Assembly The constitution guarantees right to hold meetings and take out processions. The processions and meetings should be unarmed and peaceful. This right may be restricted in the interest of the public order or sovereignty and integrity of the country. This article has also been reviewed an interpreted by the Supreme Court many times. It’s worth note that section 144 of the Sub-section (6), of the Code of Criminal Procedure can be imposed by the government in certain areas which makes the assembly of 5 or more people an unlawful assembly.

This section was challenged in the Supreme Court via Kamla Kant Mishra and Ors. v State of Bihar and Ors.8 on the basis that it violates article 19(1) of the constitution and thus is invalid. The Supreme Court in its judgment held that power conferred upon the State Government under Section 144, Sub-section (6), of the Code of Criminal Procedure, is constitutionally valid. Section 129 of the Code of Criminal Procedure authorizes the police to disperse any unlawful assembly which may cause disturbance to public peace. Freedom of Association The constitution declares that all citizens will have the right to form associations and unions. Freedom of Movement The freedom of movement is guaranteed by the constitution and citizens can move from one state to another and anywhere within a state. A person free to move from any point to any point within the country’s territories. There are certain exceptions such as Scheduled Tribes areas and army areas. Freedom of Residence: An Indian Citizen is free to reside in any state except Jammu & Kashmir. Again this is subject to certain restrictions. Freedom of Trade & occupation: The constitution of India guarantees each of its citizen to do trade, occupation or business anywhere in the country.

Right to Information Act, 2005: The object of the act is to promote openness, transparency and accountability in administration.

The legislation entitles every citizen to have access to information controlled by public authorities. Under the Act, it is obligatory upon authority to provide information and maintain records consistent with its operational needs. These records would have to be duly catalogued, indexed and published at such intervals as may be prescribed by the appropriate government or the competent authority.

Freedom of Assembly

The right of assembly is implied in the very idea of the democratic Government. Article 19(1) (b) guarantees to all citizens of India right to assemble peaceably without arms. This includes the right to hold meetings and to take out processions. The right is subject to following restrictions;

The assembly must be peaceful
It must be unarmed.
Reasonable restrictions can be imposed under Article 19 (3).

When a lawful assembly becomes unlawful:

Article 19(1) (b) saves existing Indian law regulating public meetings in the interest of public order if the restrictions are reasonable. If an assembly becomes unlawful, it can be dispersed. Under section 141 of the Indian Penal Code, an assembly of five or more persons becomes an unlawful assembly if the common object of the persons composing assembly is :

To resist the execution of any law or legal process

To commit any mischief or criminal trespass

Obtaining possession of any property by force

To compel a person to do what he is not legally bound to do or omit which he is legally entitled to do

To overawe the Government by means of criminal force or show of criminal force or any public servant in the exercise of his lawful powers.

An Assembly which was not unlawful when assembled may subsequently become unlawful if it becomes violent or is likely to result in disturbance. Under section 129 of the Criminal Procedure Code, 1973, such an assembly may be ordered to be dispersed if the disturbance to the public peace is reasonably apprehended. Section 151 of the Indian Penal Code makes it an offence not to disperse after a lawful command to disperse has been given.

Freedom to Form Association

Article 19(1) (c) guarantees to all its citizens the right to form associations or unions or Co-operative societies. Under clause (4) or the Article 19, however the state may by law impose reasonable restrictions on this right in the interest or public order or morality or the sovereignty and integrity of India.

The right of association pre-supposes organization. It is an organization or permanent relationship between its members in matters of common concern .It thus includes the right to form companies, societies, partnership, trade union and political parties. The right guaranteed is not merely the right to form association but also to continue with the association as such. The freedom to form association implies also the freedom to form, to join or not to join an association or union.

Restrictions on the Freedom of Association: The right of association, like other individual freedom, is not unrestricted. Clause (4) of article 19 empowers the state to impose reasonable restrictions on the right of freedom of association and union in the interest of ―public order‖ or ―morality‖ or ―sovereignty or integrity‖ of India. It saves existing laws in so far as they are not inconsistent with fundamental rights of association.

The Criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950, provides that if the State Government is of opinion that any association interferes with the administration of law or with the maintenance of law and order or that it constitutes a danger to the public peace it may, by notification in the Official Gazette declare such association to be unlawful. Such a notification was to be placed before an Advisory Board. Representation against such a notification could be made. If the Advisory Board was of opinion that the association was not unlawful the Government was to cancel the notification.

The validity of the above Act was challenged in the case of State of Madras v V.G.Rao.9 The Supreme Court held that the restrictions imposed by Section 16(2) (b) of the Act were unreasonable. The test under it was subjective satisfaction of the Government and the factual existence of the grounds was not a justiciable issue. As far as the facts of the case were concerned, the Madras Government had declared the People‘s Education Society in Madras an unlawful association. Under the relevant law, the Government could do so, if it thought that the association constituted a danger to public peace, or for the reason, that it was interfering with the maintenance of law and public order, or that, that was its object. Therefore, the vesting of power in the Government to impose restriction on this right without allowing the grounds tested in a judicial enquiry, was a strong element to be taken into consideration in judging the reasonableness of the restrictions on the right to form association or union. The existence of the Advisory Board could not be a substitute for judicial enquiry.

Freedom of Movement

Article 19(1) (d) guarantees to all citizens of India the right ―to move freely throughout the territory of India‖. This right is, however, subject to reasonable restrictions mentioned in clause (5) of Article 19, i.e., in the interest of general public or (2) for the protection of the interest of any Scheduled Tribe.

Article 19(1) (d) of the Constitution guarantees to its citizens a right to go wherever they like in Indian territory without any restriction whatsoever. They can move not merely from one State to another but also from one place to another within the same State. This freedom cannot be curtailed by any law except within the limits prescribed under Article 19(5). What the Constitution lays stress upon is that the entire territory is one unit so far the citizens are concerned. Thus the objective was to make Indian citizens national minded and not to be petty and parochial.

In A.K.Gopalan v State of Madras10, the Supreme Court in the context of article 19(1)(d) said that the emphasis was not on the right of movement simpliciter but on the territorial breadth of the right that the movement can be carried on throughout India without any barriers, either inter state or intra- state.

Grounds of Restriction-

The State may under clause (5) of Article 19 impose reasonable restrictions on the freedom of movement on two grounds:-

(1) In the interests of general public

(2) For the protection of the interests of Scheduled Tribes.

In N.B. Khare v State of Delhi, 11 the petitioner was served with an order of internment by the District Magistrate, Delhi, to remove himself immediately from Delhi district and not to return there for a period of three months. The order was made under the East Punjab Safety Act, 1949. The petitioner contended that the order imposed unreasonable restrictions on his right to move freely, because (a) the internment order depended upon the subjective satisfaction of the Executive, and (b) the Act did not fix any maximum time beyond which the order could not continue. The Supreme Court held that the mere fact that the power to make the order of internment was given to the State Government or District Magistrate whose satisfaction did not make the restriction unreasonable because the desirability of passing such an individual order in emergency had to be left to an officer. The second contention was rejected on the ground that the Act was of limited duration, therefore, there was no possibility of an order of internment being made for a definite period. But a law providing for internment of ‗dangerous character‘ from a particular locality cannot be called reasonable if it does not specially define as to what is meant by dangerous character as it gives the administrative authority arbitrary power to determine as to whether a citizen is of dangerous character.

Freedom of Residence

According to Article 19(1) (e) every citizen of India has the right ―to reside and settle in any part of the territory of India‖. However, under clause (5) of Article 19 reasonable restriction may be imposed on this right by law in the interest of the general public or for the protection of the interest of any Scheduled Tribe.

The object of the clause is to remove internal barriers within India or any of its parts. The words ―the territory of India‖ as used in this Article indicate freedom to reside anywhere and in any part of the State of India.

It is noted that the right to reside and right to move freely throughout the country are complementary and often go together. Therefore, most of the cases considered under Article 19(1) (e) also. This right is subject to reasonable restrictions imposed by law in the interest of general public or for the protection of the interests of any Scheduled Tribes. Thus, where a prostitute, under the Suppression of Immoral Traffic in Women and Girls Act, 1956, was ordered to remove herself from the limits of a busy city or the restriction was placed on her movement and residence, it was held to be a reasonable restriction.

F. Freedom of Profession, Occupation, Trade or Business

Article 19(1) (g) guarantees that all citizens shall have the right ―to practice any profession, or to carry on any occupation, trade or business‖. However, the right to carry on a profession, trade or business is not unqualified. It can be restricted and regulated by authority of law. Thus the State can under clause (6) of Article 19 make any law-

(a) imposing reasonable restriction on this right ‗in the interest of public‘,

(b) prescribing professional or technical qualification necessary for practicing any profession or carrying on any occupation , trade or business,

What is a ‘reasonable restriction’ under Article 19(6)?: Reasonableness of a restriction has to be tested both from the procedural and substantive aspects of the law. In order to determine reasonableness of the restrictions, regard must be had to the nature of the business and the conditions prevailing in the trade. In determining the Infringement of the right guaranteed under Art. 19(1)(g), the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time enter into judicial verdict.12 In Ram Jawaya v State of Punjab,13 the government scheme to nationalize school text books was held valid under this article because the private publisher‘s right to print and publish any book they liked and offer the same for sale ,was not curtailed. The choice of text books for the recognized schools lay with the government and the publishers had no fundamental right to have any of their books prescribed as a text book by the school authorities.

For some time now, the trend has been undergoing a change. Instead of nationalization, the trend has shifted to privatization. Instead of government control over trade and commerce, the emphasis now is to relax government control. The government has come to view its role more as a facilitator, rather than as a controller, of private enterprise.

Article 19(1)(g) uses four expressions, profession, occupation, trade and business. Their fields may overlap but each of these expressions has a content of its own as distinct from the others.

A question has arisen from time to time whether a restriction can amount to prohibition. The position of the Supreme Court on this question has been that restriction may even amount to prohibition in a given case if the mischief to be remedied warrants total prohibition.

Res extra commercium: It can be seen that grounds of restriction on the rights of speech, assembly and association are written comparatively in a narrowly drawn language. But, as far as clause(6)of article 19 is concerned, it has been written in the most expansive and whatever is conducive to serve the public interest can be a valid ground for restricting the right of occupation, trade and business. There ae two views in this context: One view that is dominant- is that the guarantee under article 19(1)(g) does not include anti-social and noxious activities and, therefore, legislation is not necessary to outlaw such activities and enacted legislation need not be justified under article 19(6). This is known as the doctrine of res extra commercium. The opposite view is that article 19(1)(g) covers all activities which can gainfully be carried on and from that totality quiet a few have been excluded and can be further excluded in public interest. Burglary and toutism are excluded because law prohibits them. This view differs from the first mainly in this that it does not accept the role of judiciary to prune the scope of the reach of the Constitution‘s language without legislative intervention.

The case in which this doctrine was invoked is the constitution bench decision in State of Bombay v R.M.D. Chamerbaugwala.14In this case, the constitutionality of the Bombay lotteries and Prize Competition Control and Tax Act, 1948 as amended in 1952 was in issue. The appellants first contention was that the law was enacted under entry 26(trade and commerce within the state) and not under entry 34(betting and gambling) of the state list. Another contention was that the tax which was imposed under the law was a tax levied under entry 60 (taxes on trade etc.) and not under entry 62(taxes on betting and gambling ) of the state list. The third contention was that betting and gambling was also trade and thus the law was violative of articles 19(1)(g)read with clause (6) and 301 read with article 304(b).

The court rejected all the contentions. For first two contentions, the respective entities themselves make a distinction between betting and gambling on the one hand, and, trade and commerce on the other. Therefore the third contention of the appellants was to the effect that in articles 19(1)(g) and 301, the term trade was used in a wider sense so as to include every gainful or profitable activity irrespective of the fact whether it was vicious, reprehensible, immoral or dangerous. This was not accepted by the court and it was pointed out by the bench that our ancient scriptures, including the Vedas and the Mahabharata, have talked about the harmful character of gambling.

Also, in Cooverji v Excise Commissioner15, had drawn a distinction between ordinary trade and trade of a dangerous character like that of liquor, and in the latter type of case, the law could even totally suppress it or could limit it by giving monopoly to a few and excluding others.

The fundamental right to establish educational institution as contained in 19(1)(g) of the Constitution of India would however, be subject only to reasonable restrictions which may be imposed by any law in terms of clause (6) thereof.16

In P.A. Inamdar v State of Maharashtra,17 it has been held that the right to establish an educational institution, for charity or for profit, being an occupation guaranteed under the Constitution to all citizens under Article 19(1) (g) and to minorities under

Article 30. ‗Education‘ even though is an occupation but it cannot be equated with trade or business. In short education is national wealth essential for nation‘s progress and prosperity. Notwithstanding the fact that the right of a minority to establish and administer an educational institution would be protected by Article 19(1) (g) yet the Founding Fathers of the Constitution felt the need of enacting Article 30. The reason is obvious Article 30 is intended to instill confidence in minorities against any encroachment by the executive or legislature. Article 19(1) (g) is subject to reasonable restrictions under clause (6) of Article 19. Article 30 has been enacted to give them additional protection. However, merely because Article 30(1) has been enacted, minority educational institutions do not become immune from the operation of regulatory measures because the right to administer does not include the right to mal-administer. The real purpose sought to be achieved by Article 30 is to give minorities some additional protection.

Conclusion:

Art. 19(1), clauses (a) to (g) guarantee to the citizens of India six freedoms; i.e., of ;speech and expression, ‗peaceful assembly‘, ‗association‘, ‗free movement‘, ‗residence‘, and ‗practising any profession and carrying on any business.‘ These various freedoms are necessary not only to promote basic rights of the citizens but also certain democratic values in, and the oneness and unity of the country, and guarantees some of the basic, valued and natural rights inherent in a person.

However, the freedoms guaranteed by Art. 19(1) are not absolute as no right can be. Each of these rights is liable to be controlled, curtailed and regulated to some extent by laws made by the Parliament and State Legislatures. Accordingly, clauses (2) to (6) of Art. 19 lay down the grounds and the purposes for which a legislature can impose reasonable restrictions on the rights guaranteed by Arts. 19(1)(a) to (g).

you can view video on Fundamental Freedoms and Reasonable Restrictions – Article 19 in the Constitution of India 1949

Websites

• www.indiankanoon.org/doc

• www.lawnotes.in/Article_19_of_Constitution_of_India

• www. en.wikipedia.org