Article-19 to 22: Right to Freedom:
Article-19 of the constitution guarantees to the citizens of India, the following 6 fundamental freedoms:
19(a) Freedom of Speech and Expression
19(b) Freedom of Assembly
19(c) Freedom to form Associations
19(d) Freedom of movement
19(e) Freedom to reside and to settle
19(f) Omitted
19(g) Freedom of profession, occupation, trade or business
Reasonable Restrictions
The guarantee of each of the above rights s restricted by the constitution itself by giving the state a power to impose by law the reasonable restrictions, as it is necessary for the larger interest of the community.
The restrictions on these freedoms are provided in clauses (2) to (6) of Article-19.
The restriction must be reasonable restrictions.
Article-19:Freedom of Speech and Expression:
Article – 19(1) (a) and 19(2):
Article-19(1) (a):
Freedom of speech and expression is guaranteed under Article-19(1) (a) of the constitution.
It means the right to express one’s own convictions and opinions freely by words, writing, printing, and pictures or by any other method.
It also included the expression of one’s own ideas by any communicable media or by visible representation like signs, gestures etc
It also includes the right to publish the views of the other people.
Freedom of expression has 4 purposes to serve:
It helps an individual to attain self-fulfillment
It assists in the discovery of the truth.
It strengthens the capacity of an individual in participating in the decision making.
It provides a mechanism, to establish a reasonable balance between stability and social change.
Article-19(2):
Scope of the Grounds of the Reasonable Restrictions on the freedom of speech and expression:
Article-19(2) states that the law made by the state to impose restrictions on the freedom of speech and expression should be reasonable.
The grounds on which the restrictions are imposed are:
- Security of the state
- Friendly relations with foreign states
- Public Order
- Decency or morality
- Contempt of court
- Defamation
- Incitement of an offence
- Sovereignty and Integrity of India
Security of the State:
The term “security of the state” refers only to serious and aggravated forms of public disorder.
Examples: Rebellion, waging war against the state etc
Friendly relations with foreign states:
The object behind the provision is to prohibit the unrestrained malicious propaganda against the foreign friendly state which may hamper the good relations between India and that state.
Public order:
This ground was added by the constitution in the Ramesh Thappers case,
The Supreme Court held that, the ordinary public order had no grounds for imposing a restriction on the freedom of speech and expression.
Decency or morality:
The word decency or morality is the words having a wide meaning.
The word “Obscenity” of English law is identical to the word “indency” under the Indian Constitution.
The test of “obscenity” is that, “whether the tendency of the matter charged as obscene is to deprive and corrupt those whose minds are open for such immoral influences”.
Section-292 to 294 of IPC provides restrictions on the freedom of speech and expression in the interest of decency and morality.
In Ranjit D Udeshi
V
State of Maharashtra
The Supreme Court accepted the test laid down in the English case of
R. v heckling, to judge the obscenity of a matter.
In this case, the court upheld the conviction of an appellant, a book seller, who was prosecuted under section-292 of IPC, for selling and keeping the book “The Lady Chatterley’s Lover”.
Applying the above test, the court held the novel as obscene.
Contempt of Court:
Restrictions on the freedom of speech and expression can be imposed if it exceeds the reasonable limit and amount to a contempt of court.
The Contempt of Court Act 1971, defines the contempt of court as civil and criminal contempt.
Defamation:
A statement which injures a man’s reputation amount to defamation.
Section-499 of IPC contains the criminal law relating to defamation.
Incitement to an offence:
A person who constitutes the incitement has to be determined by the court, with reference to the facts and circumstances of each case.
Integrity and Sovereignty of India:
Freedom of speech and expression can be restricted who challenge the integrity and sovereignty of India.
In Mohammed Ajmal Kasab
V
State of Maharashtra
The terrorist attacks at all the places were shown live on the Indian Television from the beginning to the end.
This coverage gave rise o a situation where on one hand the terrorist were completely hidden from the security forces and on the other hand, the positions of the security forces, their weapons and all their operational movements were being communicated to the terrorist.
The way the operations of security forces were freely shown, made the task very dangerous and risky.
An action tending to violate another person’s right to life guaranteed under Article-21 can never be justified by taking a plea of freedom of speech and expression.
Commercial Advertisement:
Advertisement when it takes in a form of a commercial advertisement, it will no longer falls within the concept of freedom of speech.
An advertisement of “Commercial Nature” is not protected under Article-19(1) (a).
In Hamdard Dawakhana
V
Union of India
In this case, the advertisement was held to be dealing with trade and not for the propagating ideas like social, economic or political.
Advertisement of the prohibited drugs would not fall under Article-19(1) (a).
In Tata Press Ltd
V
Mahanagar Telephone Nigam Ltd
In this case, the court held that, the commercial speech is a part of the freedom of speech and expression.
Freedom of Press:
Freedom of speech and expression guaranteed under Article-19(1) (a) includes “Freedom of Press”.
Freedom of Press means, absence of interference by the state except in so far it is authorized by the constitution and by the law.
Dr.Ambedkar in his speech in the Constituent Assembly say that: “The press has no special rights which are not to be given or exercised by the citizens in his individual capacity, the editor of a press or the manager are exercising the right of expression, therefore no special mention is necessary for the freedom of the press”.
In Indian Express News Paper
V
Union of India
The Supreme Court held that, “freedom of press” is the heart of social and political intercourse and the courts must uphold it.
In Brij Bhushan
V
State of Delhi
(Pre-Censorship Invalid)
In this case, the Chief Commissioner of Delhi issued an order against the printer, editor etc of an English Weekly of Delhi, directing them to submit the scrutiny in publication.
The court laid down the order of Invalid Pre-censorship of a journal.
In Sakal Papers
V
Union of India
(Fixing of minimum price and number of pages)
The Daily Newspaper Order 1960, which fixed a minimum price and also the number of pages, was restricted.
An increase in price and decreasing of the pages would reduce the space for the news.
The order therefore acted as a Double-Edge knife.
In Ramesh Thapper
V
State of Madras
Banning the entry and the circulation of a journal was held to be unreasonable violation of Article-19(1) (a).
Freedom of Silence:(Right not to speak)
Freedom of speech and expression also includes freedom to observe silence.
In Bijoe Emmanuel
V
State of Kerala
(National Anthem Case)
In the instant case, 3 children’s belonging to the “Jehovah’s Witnesses” of the Christian community was expelled from the school for refusing to sing the National Anthem.
They challenged the validity of their expulsion on the grounds that it was a violation of the fundamental rights under Article-25.
According to them, it was against their religious faith.
The Supreme Court held that no person can be compelled to sing the National Anthem, if he has a genuine religious objection.
It was also held that, the children’s expulsion from the school was a violation of their fundamental rights under Article-19(1)(a) which also includes freedom of silence because the children’s stood up respectfully when the national anthem was being sung.
Film Censorship:
In KA Abbas
V
Union of India
The court held that the Pre-censorship of the films was justified under Article-19(2) on the grounds that the films have to be treated separately from other forms of Art and expression because a motion picture was able to stir up the emotions more deeply than any other product of the art.
Hence, the classification of the films were made between 2 categories, they are
“A” for Adults only
“U” for all, was held to be valid.
Freedom of Assembly:
Article-19(1) (b) and Article-19(3):
Article-19(1) (b):
It guarantees to all its citizens of India right “to assemble peacefully without arms”
The right of assembly also includes the right to hold the meetings and to take out the processions.
Article-19(3):
This right is subject to the following restrictions:
The assembly must be peacefully
It must be unarmed
Reasonable restrictions can be imposed under clause (3) of the Article-19 in the interest of “sovereignty and Integrity of India” or “Public Order”.
When a lawful assembly becomes unlawful:
Section-141 of IPC lays down that on assembly of 5 or more persons becomes an unlawful assembly, if the common object of the persons 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,
To overawe the government by means of a criminal force.
In Railway Board
V
Niranjan Singh
The Supreme Court upheld the circular and held that Article-19(1) (b) did not guarantee the right to hold the meetings on a private property belonging to others.
Freedom to form Associations:
Article-19(1) (c) and 19(4):
Article-19(1) (C):
It guarantees to all its citizens of India the right to form an association and unions.
Article-19(4):
Under clause (4) of Article-19, the state by law imposes reasonable restrictions on this right in the interest of “public order” or “morality” or “the sovereignty and Integrity of India”.
In VG Row
V
State of Madras
The freedom to form an association also implies freedom not to join the association.
In Kulkarni
V
State of Bombay
The right to form association or unions includes the right to form companies, partnerships, societies, trade union and political parties.
In DK Ghosh
V
Joseph
The Supreme Court held that, the right to form an association implies that the right not to be compelled to withdraw from an association.
It was also held that the right to form association or union is also available to government servants.
Freedom of Movement:
Article-19(1) (d) and 19(5):
Article-19(1) (d):
It guarantees to all its citizen of India the right to move freely throughout the territory of India.
This right also extends the freedom to go to abroad also.
Article-19(5):
Under clause (5) of Article-19, the state imposes reasonable restrictions on the freedom of movement on 2 grounds:
In the interest of the general public,
For the protection of the interest of scheduled tribes.
In Kaushaliya
V
State of UP
It was held that the right of movement of the prostitutes may be restricted on the grounds of public health and in the interest of public morals.
Freedom of Residence:
Article-19(1) (e) and 19(5):
Article-19(1) (e):
It guarantees to all its citizen of India the right to reside and settle in any part of the territory of India.
Article-19(5):
Under clause (5) of Article-19, the state imposes reasonable restrictions on the freedom of movement on 2 grounds:
In the interest of the general public,
For the protection of the interest of scheduled tribes.
In Kaushaliya
V
State of UP
It was held that the right of movement of the prostitutes may be restricted on the grounds of public health and in the interest of public morals.
Freedom of Profession, Occupation, Trade or Business:
Article-19(1) (g) and 19(6):
Article-19(1) (g):
It guarantees to all its citizen of India the right to practice any profession or to carry on any profession or to carry on any occupation, trade or business.
Article-19(6):
Under clause (6) of Article-19, the state imposes reasonable restrictions on the freedom of profession, occupation, trade or business on 3 grounds:
In the interest of the general public
Technical qualifications are necessary for practicing any profession or carrying out any occupation, trade or business.
Enabling the state to carry on any trade or business to the exclusion of the citizens wholly or partially.
In PA Inamdar
V
State of Maharashtra
In this case, the right to carry out education for the profit not valid
Article-19(1) (g) is explained in:
Right not to start or close the business
Hawkers right to trade on the pavement of roads
Shifting of shop on Tahbazaari, due to security reasons
Prohibition of sale of eggs within the municipal limits of Rishikesh is a Reasonable Restriction
Closure of shops and Establishment for a day in a week
Unrestricted power to licensing authority.
Right not to start or close the business:
In Excel Wear
V
Union of India
Right to carry out a business comes under the freedom of profession, occupation, trade or business and also to close it.
Hawkers right to trade on the pavement of roads:
In Sodan Singh
V
New Delhi Municipal Committee
A small trader can do business for the personal gain on the pavement for the advantage of the general public and without any discomfort to others.
Shifting of shop on Tahbazaari, due to security reasons:
In Dharam Chand
V
Chairman, New Delhi Municipal Council
The court cannot assume and presume that there is no threat to the safety.
The appellant was allowed to continue the business.
Prohibition of sale of eggs within the municipal limits of Rishikesh is a Reasonable Restriction:
In Om Prakash
V
State of UP
The reasonable restrictions imposed on trade of Non-vegetarian food items has to be seen from the cultural and religious background of the municipal towns.
Closure of shops and Establishment for a day in a week:
In Manoharlal
V
State of Punjab
The Supreme Court held that, the purpose of this act was to improve the health and efficiency of the workers.
Unrestricted power to licensing authority:
In Dwarka Prasad
V
State of UP
Under the order, the licensing authority may grant or refuse to renew the license, suspend, cancel, and modify any license.
The court held that the order is invalid on the grounds that it has given an unrestricted power to the licensing authority.
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