Article 19 Protection of certain rights regarding freedom of speech etc

Submitted by Arashdeep Kaur Roll no ² 18/09 Section ² A


Table of contents
CONTENTS Pg no. 1) Acknowledgement...........................................................2

2) Table of cases....................................................................3 3) Abstract.............................................................................4 4) Reasonable restrictions......................................................5 5) Freedom of speech and expression....................................5 -10
y Freedom of press----------7-9 y Right to information------9-10

6) Grounds of restriction.........................................................11-14 7) Freedom to assemble..........................................................14 -15 8) Freedom to form association...............................................15 -17 9) Freedom of movement and residence........................... .......17-20 10) Freedom to carry on trade and occupation...........................20 11) Bibliography


A.K. Gopalan vs The State Of Madras.Union Of ... on 19 May, 1950 Association for Democratic Reforms Case Babulal Parate v. State of Maharashtra Brij Bhusan Vs State of Delhi (1950) Damyanti Narang Vs Union of India Excel wear Vs Union of India (1979 SC 25) Express newspaper Vs Union of India (1986) Hamdard Dawakhana Vs Union of India Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors Harshaker Vs Deputy Excuse & Taxation commissioner AIR 1975 SC 1121 Himat lal Vs Police commission case Indian express newspaper Vs Union of India AIR 1962 SC 305 Indian express newspaper Vs UOI the court held that (AIR 1986 SC 515) Indian Express Newspapers pvt ltd Vs union of India (1985 Indirect Tax Practitioners Assn. Vs R.K. Jain K. Krishnamurthi Vs Union of India K.A. Abbas Vs Union of India Kharak Singh Vs The State of U. P. & Others on 18 December, 1962 New York Time Vs Sullivan 376 US 254. Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police.(1973) Railway Board Vs Niranjan Singh AIR (1969) SC 966) Rangarajan Vs P. Jagjivan Ram (1989)2 SCC 574 Romesh Thaper Vs State of Madras AIR 1950 SC S.M. Kala Vs University of Rajasthan Sakal papers Vs Union of India AIR 1986 Sitaramacharya v. Dy, Inspector of School State of madras Vs V.G Row T.M.A Pai foundation Vs State of Karnataka (AIR 2003 SC 355) TATA Press ltd Vs MTNL(AIR 1995 SC 2438), Unni Krishnan Vs State of A.P. (AIR 1993 SC 2178 Vishakha Vs state of Rajasthan (AIR 1997 SC 3011) Shyam Bihari Tiwari Vs State of U.P. (1994)

y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y y


Protection of certain rights regarding Freedom of Speech (ARTICLE19) 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; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (g) to practise 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 practising 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 .

5 FREEDOMS NOT ABSOLUTE ± SUBJECT TO REASONABLE RESTRICTIONS Reasonable restriction means intelligent care and discussion that the restriction is not beyond what is required for public interest. It should not be arbitrary and excessive. Further, the restriction can only be imposed by law and not by executive or departmental decision. Test of reasonable restrictions -Spanning several cases, SC has laid down the following guidelines : 1. It is the courts and not the legislature that will decide whether a law is reasonable or not. 2. Reasonable means that the law is not arbitrary and the restriction is not beyond what is required in public interest. The time and duration of the restriction cannot be unlimited. 3. There is no fixed standard for reasonableness. Each case must be decided on its own merits. 4. The restriction must be reasonable from substantiative as well as procedural stand point. 5. Restrictions imposed due to implementation of Directive Principles may deemed to be reasonable. 6. The test of reasonability must be objective in the sense that it does not matter what a Judge or Court thinks what is reasonable but what a normal reasonable person would think. 7. The restriction must have a relation to the object that is sought through the law and must not be excessive. 8. It is the reasonableness of the restriction that a count has to determine and not the reasonableness of the law itself. 9. Restriction may amount to prohibition.


Meaning and scope
Article 19(1) (a) of Indian Constitution says that all citizens have the right to freedom of speech and expressionFreedom of speech and expression is the most basic of all freedoms granted to the citizens of India. J Patanjali Shastri has said in the case of Romesh Thaper Vs State of Madras1 that freedom of speech and that of the press lay at the foundation of a democratic society, for without free political discussions, no public education is possible, which is so important for the proper functioning of the govt. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of

AIR 1950 SC 124

6 mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like. Freedom of speech would amount to nothing if it were not possible to propagate the ideas. Thus, the freedom of publication and press is also covered under freedom of speech. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press. Freedom of expression has four broad special purposes to serve: 1) 2) 3) 4) It helps an individual to attain self-fulfillment. It assists in the discovery of truth. It strengthens the capacity of an individual in participating in decision-making. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. 5) All members of society would be able to form their own beliefs and communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters of concerning newspaper industry than while levying taxes on other matters. Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2)of the Constitution. Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and development that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be

7 frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. The various communication channels are great purveyors of news and views and make considerable impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of national importance. The freedom of speech and expression includes freedom of circulation and propagation of ideas and therefore the right extends to the citizen to use the media to answer the criticism leveled against the views propagated by him. Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. NEW DIMENSIONS OF FREEDOM OF SPEECH AND EXPRESSION Government has no monopoly on electronic media: The Supreme Court widened the scope and extent of the right to freedom of speech and expression and held that the government has no monopoly on electronic media and a citizen has under Art. 19(1)(a) a right to telecast and broadcast to the viewers/listeners through electronic media television and radio any important event. The government can impose restrictions on such a right only on grounds specified in clause (2) of Art. 19 and not on any other ground. A citizen has fundamental right to use the best means of imparting and receiving communication and as such have an access to telecasting for the purpose. Commercial Advertisements: The court held that commercial speech (advertisement) is a part of the freedom of speech and expression. The court however made it clear that the government could regulate the commercial advertisements, which are deceptive, unfair, misleading and untruthful. Examined from another angle the Court said that the public at large has a right to receive the "Commercial Speech". Art. 19(1)(a) of the constitution not only guaranteed freedom of speech and expression, it also protects the right of an individual to listen, read, and receive the said speech. Telephone Tapping: Invasion on right to privacy : Telephone tapping violates Art. 19(1)(a) unless it comes within grounds of restriction under Art. 19(2). Under the guidelines laid down by the Court, the Home Secretary of the center and state governments can only issue an order for telephone tapping. The order is subject to review by a higher power review committee and the period for telephone tapping cannot exceed two months unless approved by the review authority. The freedom of speech and expression can be studied under two heads: 1) Freedom of press 2) Right to information FREEDOM OF PRESS IN DEMOCRACY ±³ It is the primary duty of all the national courts to uphold the freedom of the press and invalidate all laws and administrative actions which interfere with such freedoms against constitutional mandate´, observed the Supreme

8 Court in Indian express newspaper Vs Union of India2, While highlighting the importance of the freedom of the press in a democracy. To arrest the malpractices of interfering with the free flow of information , the democratic constitution all over the world provided guarantee of freedom of speech and expression underlying the circumstances under which restrictions are imposed. Freedom of press in India and U.S.A ± there is no provision in the constitution of India providing guarantee for the freedom of the press but the Supreme Court in Sakal papers Vs Union of India 3 widely interpreted the scope of art. 19(1)(a) to include within its fold the freedom of the press which is regarded as a µspecies of which freedom of expression is a genus´. Thus in India the freedom of press flows from the freedom of speech and expression and enjoy no higher privilege than the freedom of speech and expression. But the first amendment to the constitution of the USA protected the freedom of the press and in the USA the press functions as a watch-dog overseeing generally the functions of the executive, legislature and the judiciary and to criticize the abuse of the power by the governmental agencies, New York Time Vs Sullivan 376 US 254. Freedom of Circulation ±the Indian Constitution does not use the expression µfreedom of press¶ in art 19 but it is included in one of guarantees in art 19(1)(a) of the constitution. Justice Venkataramiah in Indian Express Newspapers pvt ltd Vs union of India 4(1985) observed that the freedom of press is one of the items around which the greatest and betterest of constitutional struggles have been waged an all countries where liberal constitution prevails. The effect of art 29 on the freedom of press was analysed by the apex court in Express newspaper Vs Union of India 5 ( where two earlier decisions of the court in Romesh Thaper Vs state of Madras, and Brij Bhusan Vs State of Delhi 6 where the government tried to put a ban on the circulation of newspaper, . The court while interpreting the scope of art 19(1)(a) of the constitution held that ³the freedom of speech and expression includes freedom of propagation of ideas which freedom was ensured by the freedom of circulation and that the liberty of press consisted in allowing to previous restraint upon the publication. It was further observed that the fundamental freedom of speech and expression enshrined in our constitution was based on the provision to the First Amendment of the constitution of USA. Also there would be violation of the liberty of press not only when there is a direct ban on the circulation of a publication, but also when some action on the part of the government adversely affects the publication´. Right to Privacy ±publication of autobiography of a condemned prisoner -prior restraint-the question concerning the freedom of press vis a vis the right of the citizen and the scope of prior restraint by the government and the parameters of the right of the press to criticize was


AIR 1962 SC 305 AIR 1986 4 AIR1985 5 AIR 1986 6 AIR 1950

9 considered by the Supreme Court in S. Rangarajan Vs P. Jagjivan Ram 7. the Facts of the case were that the petitioners who were the publishers of a Tamil weekly magazine approached the Supreme Court to restrain the government from interfering with their right of publication of the autobiography of the condemned person Auto Sankar. The Supreme Court Held that the government or their officials have no right to impose prior restraint upon the publication on the apprehension that they may be defamed. The Court reasoned that ³ right to privacy is implicit in the right to life and liberty guaranteed under art 21 of the constitution. It is a right to be let alone. A citizen has a right to safeguard privacy of his own, his family, marriage, procreation, motherhood, child bearing and education amongst other matters and none can publish anything without his consent. But once the matter becomes part of public record including the court¶s record, the publication of the same would not violate the right the right to privacy and it becomes a legitimate subject for comments by the press and media.´ However, in the interest of decency an exception must be carved out to this rule. Right of press - interview and photograph of under-trial prisoners- conditions- the press is entitled to exercise the freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of state, public order, decency and morality. The press must obtain the willingness of person sought to be interviewed and so-called right of press which is obtained on the basis of the permission would be subjected to prohibitions from Jail Manual. Should the journalist reveal its source-the Press Council Act,1978 provides that it should not force a journalist to reveal its source. But the Delhi High Court in a case against The Pioneer said that if the court considered necessary in the interest of justice, the court could direct the journalist to disclose its source of information. RIGHT TO INFORMATION Freedom of speech ± right of voters, antecedents of candidates:- the foundation of a healthy democracy is to have well-informed citizens-voters. The reason to have right of information with regard to the antecedents of the candidate is that voter can judge and decide in whose favour he should cast his vote. It is voter¶s discretion whether to vote in favour of an illiterate or literate candidate. It is his choice whether to elect a candidate against whom criminal cases, for serious or non-serious charges were filed but is acquitted or discharged. For the first time the right to know about the candidate standing for election has been brought within the sweep of article 19(1) (a). There is no doubt that by doing so a new a new dimension has been given dictated by the need to improve and refine the political process of election. The Supreme Court in Association for Democratic Reforms Case8 has Held that article 19(1) (a) which provides for freedom of speech and expression would cover in its fold right of the voter to know specified antecedents of a candidate , who is contesting elections.

7 8

AIR 1989 SCC 574 AIR 2002 SC 2112

10 Also in K. Krishnamurthi Vs Union of India9 the nature of Right to vote and contest elections -was Held that it does not have the status of fundamental rights - They are in the nature of legal rights which can be controlled through legislative means - Constitution empowers the Election Commission to prepare electoral rolls for identifying the eligible voters in elections for Lok Sabha and Vidhan Sabha - Right to vote is not an inherent right and cannot be claimed in an abstract sense -1951 Act includes grounds that render persons ineligible from contesting elections. Thus, there is no inherent right to contest elections since there are explicit legislative controls over the same - Representation of the People Act, 1951. Thus it is a statutory right. COMMERCIAL ADVERTISEMENTS- INCLUDED In Hamdard Dawakhana Vs Union of India 10, it was held that µcommercial advertisements¶ were not included within the concept of freedom of speech and expression. In Indian express newspaper Vs UOI 11 the court held that all commercial advertisements could not denied the protection of art 19(1)(a), merely because they were issued by a businessmen. Thus explaining the effect of the combined reading of both the above cases the Supreme Court in TATA Press ltd Vs MTNL12 Held that µcommercial speech could not be denied the protection of art 19(1)(a), merely because they were issued by businessmen. In a democratic society it was observed that free flow of commercial information was indispensible. Pre- censorship of films ± K.A. Abbas Vs Union of India 13 Facts - The petitioner made a documentary film called "A Tale of Four Cities" which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the- country. The film included certain shots of the red light district in Bombay. Although the petitioner applied to the Board of Film Censors for a `U' Certificate for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted to adults. On an appeal made to it by the petitioner, the Central Government issued a direction on July 3, 1969 that a `u' Certificate may be granted provided certain specified cuts were made in the film. The petitioner thereafter field the present petition seeking a declaration that the provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed by the Central Government on February 6, 1960 in the exercise of its powers under s. 5-B of the Act were un- constitutional and void; he further prayed that the direction dated July 3, 1969 should be quashed. The petitioner claimed that his fundamental tight of free speech and expression was denied by the order of the Central Government and that he was entitled to a 'U' Certificate for the film as of right. Held - (i) Censorship of films including prior restraint is justified under the Constitution.

AIR 2010,VOL 7, SCC 202 1960 11 AIR 1986 SC 515 12 AIR 1995 SC 2438 13 AIR 1971

11 It has been almost universally recognised that the treatment of motion ,pictures must be different from that of other forms of art and expression. The motion picture is able to stir up emotions more deeply than any other product of art. Its effect particularly on children and adolescents is very great since their immaturity makes them more willingly suspend their disbelief than mature men and women. They also remember the action in the picture and try to emulate or/ imitate what they have seen. Therefore, classification of films into two categories of 'U' films and 'A' films is a reasonable classification. It is also for this reason that motion picture must be regarded differently from other forms of speech and expression. A person reading a book or other writing or hearing a speech or viewing a painting or sculpture is not so deeply stirred as by seeing a motion picture. Therefore the treatment of the latter on a different footing is also a valid classification.´ GROUNDS OF RESTRICTIONS It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing ³reasonable restrictions´ on the exercise of the right to freedom of speech and expression ³in the interest of´i the public on the following grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed 1) Security of State: Under Article 19(2) reasonable restrictions can be imposed on fredom of speech and expression in the interest of security of State. The term "security of state" refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expression on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of State. 2) Friendly relations with foreign states: This ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardise the maintenance of good relations between India, and that state. No similar provision is present in any other Constitution of the world. In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of fair criticism of foreign policy of the Government. It is to be noted that member of the commonwealth including Pakistan is not a "foreign state" for the purposes of this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.

12 3) Public Order: This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established." Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual being the tranquility of the society undisturbed. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of causing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order. In its external aspect 'public safety' means protection of the country from foreign aggression. Under public order the State would been titled to prevent propaganda for a state of war with India. The words 'in the interest of public order' includes not only such utterances as are directly intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law punishing utterances made with the deliberate intention to hurt the religious feelings of any class of persons is valid because it imposes a restriction on the right of free speech in the interest of public order since such speech or writing has the tendency to create public disorder even if in some case those activities may not actually lead to a breach of peace. But there must be reasonable and proper nexus or relationship between the restrictions and the achievements of public order. 4) Decency or morality: The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place. 5) Contempt of Court: Restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' In a democratic country Judiciary plays very important role. In such situation it becomes essential to respect such institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to make ³truth´ a defence. However, even after such amendment a person can be punished for the statement unless they were made in public interest. Again in Indirect Tax Practitioners

13 Assn. Vs R.K. Jain14, it was held by court that, ³Truth based on the facts should be allowed as a valid defence if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article´. The qualification is that such defence should not cover-up to escape from the consequences of a deliberate effort to scandalize the court. Also in a recent judgement in a case Hari Singh Nagra & Ors. Vs Kapil Sibal & Ors. 15 Facts of case -In a Souvenir published by a literary group/Association of lawyers practicing in Supreme Court, various messages, articles, poems etc. were contributed by members of the Bar and the Hon'ble Judges. Respondent, a Senior Advocate also sent a message to be published in the Souvenir, which expressed concern about the plight of junior members of the Bar and about the falling standards of legal fraternity. The message was neither released to the press, nor was the Souvenir made available for sale. It was circulated only to its members and other members of the Bar. Thereafter, when respondent No. 1 filed his nomination for contesting the post of President of Supreme Court Bar Association, a news item was published in the Sunday, Times of India daily wherein certain excerpts of the message were reported, which suggested that the senior advocate made frontal attack on the judiciary. Petitioner, the practicing lawyers of Punjab and Haryana High Court filed criminal contempt of court under Article 215 of the Constitution of India against the three respondents alleging that one respondent entered into a conspiracy with other two respondants to bring administration of justice into disrespect which amounted to deliberate interference in the administration of justice. Held -³Any criticism about the judicial system or the judges which hampers the administration of justice or brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. There is no manner of doubt that freedom of expression as contemplated by Article 19(1)(a) of the Constitution is available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a necessary right. A fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. The Message examined the evils prevailing in the judicial system and was written with an object to achieve maintenance of purity in the administration of justice.´

6) Defamation: Defamation: Ones¶ freedom, be it of any type, must not affect the reputation or status another person. A person is known by his reputation more than his wealth or any thing else. Constitution considers it as ground to put restriction on freedom of speech. Basically, a statement, which injures a man's reputation, amounts to defamation. Defamation
14 15

2010 VOL 8 SCC 281 AIR 2010

14 consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions. 7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force. 8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit any one to challenge sovereignty or to permit any one to preach something which will result in threat to integrity of the country. 9) Sedition: As understood by English law, sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. It should be noted that the sedition is not mentioned in clause (2) of Art. 19 as one of the grounds on which restrictions on freedom of speech and expression may be imposed. FREEDOM TO ASSEMBLE -ART 19(1) (B) Art 19(1) (b) guarantees to the citizens of India the right to assemble peaceably and without arms. Under art.19(1)(3), however, the state can make any law imposing reasonable restrictions on the exercise of this right in the interest of public order, and sovereignty and integrity of India. To some extent, there is common ground between art 19(1) (a) and art19 (1) (b). For example ±demonstrations, processions and meetings considered under art 19(1) (a) also fall under art 19(1) (b) for a demonstration also amounts to an assembly and, therefore, the same principles apply under both articles. The right to strike is not available under either of these articles. Restrictions on freedom of assembly 1) Assembly should not be violent but peaceful. 2) It should be without arms 3) The public order has to be maintained. Meetings in government places ± this could be well understood by a case judgement in Railway Board Vs Niranjan Singh16. The Question arose that whether anyone could hold meetings in government premises or not even though the person is government employ? The court held that it is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form - associations or

AIR 1969 SC 966

15 unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the 'right of some-one else to hold his property intervenes. Such a limitation is inherent in the exercise of those 'rights. The validity of that limitation is not to be judged by the tests prescribed by Sub-Arts. (2) And (3) of Art. 19. In other words the contents of the freedoms guaranteed under cls.(a), (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belonging to others a citizen of this country in the exercise of his right under cls. (d) And (e) of Art. 19(1) could move about freely in a public-office or even reside there unless there exists some law imposing reasonable restrictions on the exercise of those rights.´ Absolute ban on public meetings ± in India citizens had a right to hold meetings in public streets before the constitution, subject to the control of appropriate authority regarding the time and place of the meeting and considerations of public order. In Himat lal Vs Police commission case17 the court held that the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every Public Street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. If the right to hold public meetings flows from Art.19 (1) (b) and Art. 19(1) (d) it is obvious that the State cannot impose unreasonable restrictions. It must be, kept in mind that Art.19 (1) (b), read with Art.13, and protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property. This Court in Babulal Parate v. State of Maharashtra 2 rightly observed: "The right of citizens to take out processions or to hold public meetings flows from right in Art. 19(1) (b) to assemble peaceably and without arms and the right to move anywhere in the territory of India." FREEDOM TO FORM ASSOCIATION: ART 19(1) (C) AND 19(4) An association means ³a collection of persons who have joined together for a certain object, which may be for the benefit of the members or the improvement, welfare or advantage of the members or the improvement, welfare or advantage of the public or some scientific, charitable or similar purpose´. Article 19(1)(c) includes the right to form companies, societies, partnership firms, trade unions, clubs, political parties and the like body of persons. This freedom implies that several individuals can get together and form voluntary admit in the association with common aims, legitimate purpose and a community of interests. The person who form the association have the associational right to continue with the member with those other whom they voluntarily admit an association. Any state action directed to highjack association by taking it over, introducing officials in the management body of association, trading out the member or restricting the committees and bodies constitution in

AIR 1973

16 accordance with the constitution of the association. Association of which citizens may be members may be social, academic creational, religious, cultural, or professional, vocational or political. These may include associations for of cultural activities. Recognising the importance of the right of forming associations in a democratic society, the courts have not favoured the vesting of absolute discretion in the executive to interfere with this fundamental right. A discretion vested in a government official to prohibit formation of an association, without proper safeguards, has been held to be unconstitutional. From time to time the Supreme Court has always been trying to clarify the extent of right to form association Reasonableness 19(4) State of madras Vs V.G Row18, the Supreme Court declared the provision to be unconstitutional for the test to be declaring an association unlawful was µsubjective¶ and the factual existence of the grounds was not justifiable. The court emphasized that curtailing the right to form association was fraught with serious potential reactions in religious, political and economic fields. Therefore, the vesting of power in the government to impose restriction on this right without consideration in judging the reasonableness of the restrictions. The existence of a summary and largely one-sided review by an advisory board was no substitute for a judicial inquiry. Membership of an association In Damyanti Narang Vs Union of India 19 the apex court held the citizen¶s freedom to form an association includes his right to become a member of an association already existing, right to continue to manage and organise an association already formed, right to formulate and implement the lawful objectives of such association. Freedom not to join an association The question whether the associational freedom not to join an association, or union was raised in S.M. Kala Vs University of Rajasthan is left open to be considered at some appropriate moment in future. His associational freedom protects the right of a person not to become a member, if he does not want to join it, or voluntarily to cease or to resign its membership. Right to form associations and union is guaranteed so that the people can form a group of people having the similar view, In Sitaramacharya v. Dy, Inspector of Schoo 20l, it was held that this right necessarily implies a right not to be a member of an association. Thus, no one can be compelled to become member of an association.



AIR 1952 SC 196 AIR 1971 20 AIR 1958 A.P. 78

17 The freedom under the sub-clause (c) of clause (1) of article 19 is subject certain reasonable restrictions under the law which may be imposed in interest of: 1) Sovereignty and integrity of India; 2) Public order; 3) Morality The reasonableness of restrictions is determined by a direct nexus between the demands of social control conducive to public interests and the imposed restrictions. It can be judicially determined in the context of each individual case, after taking into consideration both the substantive and procedural aspects of the proposed statutory restrictions. The government servants may be forbidden from becoming from becoming members of, or otherwise being associated with any political party or a like organisation. The officers and man of the armed and security forces and police force including the non gazetted members of the police organisation are not free to form, or to members of any association/union/, society or institution, unless permitted by a law / police regulation framed under legal authorisation. Nor any association of their can seek, or can apply registration under the Trade Union Act 1926. But the right to association remains citizen¶s basic right, although its reach does not extend to the privileges of incorporated bodies of citizens: The Hindi Sahitya Sammelan Rastrabhasa Prachar Samiti Cases. LAW OF CONSPIRACY AND UNLAWFUL ASSOCIATION The act of forming an association is lawful, unless it constitutes a crime, or tort of conspiracy. The tort of conspiracy consists in a combination for the purpose of damaging the plaintiff¶s interests in trade or otherwise. The tortious conduct of one of the defendants can be attributed to all of them. A combination of traders in a trade to ward off free lawful competition with a rival trader, or of the trade union officers to get a non-union employee dismissed by the employer and the like constitutes a tortious conspiracy. An unlawful association is one which encourages aids, or aims at unlawful purposes, abets commission of acts of violence, intimidation or immorality. An association otherwise lawful ceases to be lawful. FREEDOM OF MOVEMENT AND RESIDENCE: ART 19(1) (D), (19) (E) AND (19) (5) IMPORTANCE Inhered in his status of citizenship, the citizen¶s right to move freely throughout the territory of India is an important aspect of his freedom. The freedom of locomotion guarantees him in general right of free movement which is an aspect of his personal liberty, although a specific and limited part of it. It secures to hi, the right and privilege to go to any place within the country across all states and inter- state barriers. A citizen needs no passport and no visa while travelling inside the country.

18 Art 19(1) (d) guarantees to every citizen the right to move freely throughout the territory of India. Art 19(1)(e) guarantees to a citizen the right to reside and settle in any part of India.19(5), however the state may impose restrictions on these rights by law in the interests of general public or for the protection of the interests of any Scheduled Tribe. ARTICLE 19(1) (D) AND 19(1) (E) ARE COMPLEMENTARY Broadly speaking the two rights contained in articles 19(1) (d) and 19(1) (e) are parts of the same right and are complementary and often go together. Most of the cases considered under article 19(d) are relevant to article 19(e) also. The two rights are therefore discussed together. FOREIGNERS Art 19(1) (d) applies only to the citizens and not to foreigners. Accordingly the fundamental right of a foreigner is confined to art 21 guaranteeing his life and liberty. He cannot claim the right to reside and settle in the country as guaranteed by art 19(1) (e). The government of India thus has the power to expel foreigners from India. Restricting movement to maintain public order The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion of the inauguration of Asian games. To frustrate such demonstration, the governments of Haryana and Uttar Pradesh took stringent measures, such as, barricading highways, resorting to seizure and arrests, intercepting movement of Akalis across the border on to Delhi. These steps were challenged through a writ petition in the Supreme Court. The Supreme Court laid down some general norms as to how the police should behave in such a situation. The police is entitled to impose reasonable restraints on the physical movement of the members of the public in order to protect public property and avoid needless inconvenience to other citizens in their lawful pursuits. But all such restraints on personal liberty have to commensurate with the object which furnishes their justification. The sanctity of person and privacy has to be maintained at all costs and ought not to be violated in the name of maintenance of law and order. Externment Art 19(1) (d) and art 19(1) (e) have been invoked frequently to challenge the validity of an externment order served by the executive on a citizen requiring him to leave a state or a district. Such an order prima facie curtails the freedoms guaranteed by these articles, and therefore the courts are entitled to test whether the order and the law under which it has been made is reasonable within article 19(5). The reasonableness of restrictions can be judicially determined in any given case in accordance with the regulation of the citizen¶s freedom and the procedural requirements of the official conduct in the matter. Where a person was directed to remove himself from the Greater Bombay area, and settle at a place specified in the externment order, because the activities of that person in the greater Bombay were causing alarm and it was reasonably believed that he was about to be engaged in commission of certain offences, the externment order was held to be reasonable both in the sense of

19 expulsion from the Greater Bombay, and fixation of a place of residence as held in Pandharnath Sridhar Rangnekar Vs Dy. Commr. of Police 21. Kharak Singh Vs The State of U. P. & Others22 on 18 December, 1962 FACTS-The petitioner was challenged in a dacoity case but was released is there was no evidence against him. The police opened a history sheet against him. He was put under surveillance -is defined in Regulation 236 of the U. P. Police Regulations. Surveillance involves secret picketing of the house or approaches to the houses of the suspects, domiciliary visits at night, periodical enquiries by officers not below the rank of Sub-Inspector into repute, habits, association, income, expenses and occupation, the reporting by constables and chaukidars of movements and absences from home, the verification of movements and absences by means of inquiry slips and the collection and record on a history sheet of all information bearing on conduct. The petitioner filed a writ petition under Art. 32 in which he challenged the constitutional validity of Chapter XX of U. P. Police Regulations, in which Regulation 236 also occurs. HELD-³Art. 19 (1) (d) the "freedom" here guaranteed is a right "to move freely" throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of the guaranteed movement, we agree that the right to "'move" denotes nothing more than a right of locomotion, and that in the context the adverb "'freely" would only connote that the freedom to move is without restriction and is absolute, i. e., to move wherever one likes, whenever one likes and however one likes subject to any valid law enacted or made under cl. 5. It is manifest that by the knock at the door, or by the man being roused from his sleep, his locomotion is not impeded or prejudiced in any manner. Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the "'free" movement guaranteed by sub-cl. (d). The freedom guaranteed by Art. 19 (1) (d) has reference to something tangible and physical rather and not to the imponderable.´ The right to move about being excluded its narrowest interpretation would be that it comprehends nothing more than freedom from physical restraint or freedom from confinement within the bounds of a prison; in other words, freedom from arrest and detention, from false imprisonment or wrongful confinement or locomotion.´ OUTCOME Police survieillance The court ruled that no aspect of police surveillance fell within the scope of art 19(1) (d). Against the validity of shadowing of the suspect¶s movement, it was argued that if a person

21 22

AIR 1973 AIR 1962

20 suspected that his movements were being watched by the police, it would induce him a psychological inhibition against movement and this would infringe art 19(1) (d). Right to privacy An interesting question considered by the court in these cases is whether there is in India a fundamental right to privacy. In this case the apex court ruled that the right to privacy is not a guaranteed right in India. The right to privacy is however, not absolute and reasonable restrictions can be placed thereon in public interest under art 19(1) (5). A.K. Gopalan vs The State Of Madras.23 Law relating to preventive detention--Whether infringes Fundamental Right as to freedom of movement. Facts-The petitioner who was detained under the Preventive Detention Act (Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus and for his release from detention, on the ground that the said Act contravened the provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra rites and that his detention was therefore illegal. Held - Whatever be the precise scope of Art. 19 (1) (d) and Art.19(5) the provisions of Art. 19(5) do not apply to a law relating to preventive detention, inasmuch as 'there is a special self-contained provision in Art. 22 regulating it. Though on movement is nothing denial of personal liberty, yet it has nothing to do with the preventive detention. It is an independent and substantive and specific right. It is exercisable when he is free from unlawful confinement and detention. When under preventive detention , he loses the sub-stratum for its exercise. Article 19 of the Constitution has no application to a law which relates directly to preventive detention even though as a result of an order of detention the rights referred to in sub-cls. (a) to (e) and (g) in general, and sub-cl. (d) in particular, of cl. (1) of Art. 19 may be restricted or abridged; and the constitutional validity of a law relating to such detention cannot therefore, be judged in the light of the test prescribed in el. (5) of the said Article. FREEDOM TO CARRY ON TRADE AND OCCUPATION ART 19(1) (G) AND ART 19(6) FREEDOM , TRADE AND OCCUPATION ± DEFINED - the term µoccupation¶ means some activity by which a person is occupied or engaged. It would be an activity of a person undertaken as a means of livelihood or a mission of life. For instance, a journalist has fundamental right to carry on his or her occupation under art 19(1)(g). It includes µprofession¶, µtrade¶, or µbusiness¶. The term µprofession¶ has been interpreted to mean an occupation requiring the exercise of intellectual skill, often coupled with manual skill. The term µbusiness¶ means any activity involving the production, distributions and consumption of wealth and production and availability of material services. While µtrade¶ is an activity concerning the sale and purchase of goods. It is an exchange of any article either by barter or

AIR 1950 SC 27

21 for money or for service rendered. The party paying consideration in any trade is aware for what he is paying the consideration. Exception to the freedom of trade-intoxicants or drugs- the apex court in Harshanker Vs Deputy Excuse &Taxation Commissioner24 said that ³trade is and include occupation of buying and selling, barter or such skilled work as of goldsmith¶s commission agent etc. The citizen cannot be prevented from carrying on any trade or profession, except on ground of unlawful character of the trade, or else, that it is extra commercium. He does not possess freedom to carry on trade, for instance, in intoxicants or drugs´. There can be no trade in crime. It is as per the will of the person to do or to continue some business, but this right carry on any trade or profession also includes his right to discontinue the business, or close down the business, trade or profession as in Excel Wear Vs union of India (AIR 1925 SC25) Right Against Sexual Harassment of Working Women ± In Vishaka Vs State of Rajasthan25 the Supreme Court observed that sexual harassment of working women at working places would be violation of the victim¶s , fundamental rights under art 19(1)(g). In this case a , social worker was brutally gang raped in a village of rajasthan. The court took a serious note of the matter and issued certain guidelines for the prevention of such incidents. No Right Against Competitions ± art 19(1)(g) does not guarantees protection from competition in trade. Therefore, the loss of income on account of competition in trade does not infringe the right to trade under art 19(1)(g). In Shyam Bihari Tewari Vs State of U.P26., the supreme court held that a cinema owner had no locus standi to challenge, the establishment and grant in aid, for new cinema hall. Right to impart education and establish educational institutions ± the Supreme court in unni Krishna vs state of A.P 27 commonly known as capitation fee case observed that activity of establishing an educational institutional institution could neither a trade or business nor could it be a profession within the meaning of art 19(1)(g). The above decision of Supreme Court was overruled by T.M.A Pai Foundation Vs State of Karnataka28 where the court held that:³Education used to be charity or philanthropy in good old times. Gradually it became an 'occupation'. Some of the Judicial dicta go on to hold it as an 'industry'. Whether, to receive education, is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation, protected by Article 19(1)(g) and additionally by Article 26(a), if there is no element of profit generation. As of now, imparting education has



AIR 1975 SC 1121 AIR 1997 SC 3011 26 AIR 1994 27 AIR 1993 SC 2178 28 AIR 2003 SC 355

22 come to be a means of livelihood for some professionals and a mission in life for some altruists. It is submitted that taking over the right to regulate admission and fee structure of unaided professional institutions is not a 'reasonable restriction' within the meaning of Article 19(6) of the Constitution. Restrictions on the right to carry on trade or business art 19(6)     Reasonable restrictions in public interest. Restriction must not be unreasonable or excessive. Restriction may amount to total prohibition. State trading and state monopoly in a trade or business.


1) Prof. Jain M.P, Indian constitutional law, 5 th edition, Wadhwa and company Nagpur publishers, New Delhi. 2) Prof. Narender Kumar, Constitutional Law of India, 7 th edition, Allahabad Law agency, Haryana. 3) Prof. M.C. Kagzi, The Constitution of India, 6 th edition, Vol-2, India Law House, New Delhi. 4) The Constitution of India- Bare Act, universal law publishers, New Delhi. 5) Datar P Arvind, Commentry on the Constitution of India, vol-1, 2nd edition, wadhwa and company , Nagpur law publishers. 6) De DJ, the Constitution of India, vol-1, 3rd edition, Asia law house, Hyderabad.

1) www.indiankanoon.org 2) www.supremecourtofindia.nic.in 3) www.legalhelpindia.com

Sign up to vote on this title
UsefulNot useful