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Ground for restriction under article 19(2)

Submitted by: Deepak Kaneriya 2012ballb76

submitted to:
miss. Kuldeep Kaur

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Table of index
Name of topic page no.

Introduction………………………………………………….. Indian position of fundamental rights……………….. Rights conferred in Article 19…………………………….

4 4-5 5-6

What are reasonable restrictions………………………….. 6 Test of reasonable restriction………………………….. . Conclusion………………………………………………………… 6-10 11

Bibliography…………………………………………………………. 12

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introduction
Position in U.S.A. First amendment to the United States (US) Constitution, a bellwether in the pursuit of expanding the horizon of civil liberties. This Amendment provides for the freedom of speech of press in the American Bill of Rights. This Amendment added new dimensions to this right to freedom and purportedly, without any limitations. The expressions used in wording the Amendment have a wide magnitude and are capable of liberal construction. It reads as under: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Although the First Amendment to the American Constitution provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of the constitutional Government to survive. If it is to survive, it must have power to protect itself against unlawful conduct and under some circumstances against incitements to commit unlawful acts. Freedom of speech, thus, does not comprehend the right to speak on any subject at any time.

Indian position
In contradistinction to the above approach of the US Supreme Court, the Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Part 3 of Indian constitution deals with fundamental rights. Below is the detail of article 19 I;e freedom of speech and expression.
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Article 19- Protection of certain rights regarding freedom of speech, etc 19. (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; Article 19 as above mentioned is deals with the protection of certain rights like freedom of speech and expression , to form an association and to move freely within and throughout the territory of union of India and last but not least to live and settle in any part of the territory of India. Right mention above are basic and fundamental but not absolute which means that, there is some reasonable restriction should be imposed on article 19.  Who can decide the reasonableness of right?

In the case of Babulal Parate v. State of Maharashtra, it was held that burden to decide reasonableness lies on court. “Reasonable restriction contemplated under the Indian Constitution brings the matter in the domain of the court as the question of reasonableness is a question primarily for the Court to decide.” The fundamental right enshrined in the Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind. For instance, the right to freedom of speech and expression is not violated by a law which requires that name of the printer and publisher and the place of printing and publication should be printed legibly on every book or paper.

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The pre-amendment Article had empowered the State to make laws imposing reasonable restrictions in exercise of the rights conferred under Article 19(1)(a) in the interest of 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 of an offence. To introduce a more definite dimension with regard to the sovereignty and integrity of India, this Amendment was made by the Constitution (First Amendment) Act, 1951 with retrospective effect. As we all well aware of the freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succor and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a; basic human right ;a natural right; and the like. With the development of law in India, the right to freedom of speech and expression has taken within its ambit the right to receive information as well as the right of press. Attainment of the preamble liberties is eternally connected to the liberty of expression. (Ref. Preamble, the Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti

Tests of Reasonable Restrictions
Articles 19(2) to (6) impose limitations on the freedoms guaranteed by Arts.19 (1)(a) to (g). These restrictions pose a general question as to how are the restrictions related to the right, which they restrict? It has been said that it is the rights, which are fundamental, and not the limitations. But these observations overlook the fact that the rights granted are not absolute but are subject to permissible restrictions. Thus the freedom to speak does not mean the freedom to say whatever one likes, but freedom subject to the laws of libel, sedition, blasphemy and the like. Again the freedom of assembly is subject to the assembly being peaceful and not causing a breach of public peace. The rights represent the claims of the individual and the limitations represent the claims of other individuals and the claims of the State or society. Therefore to say that the rights are fundamental and the limitations are not destroys the balance which Art.19 was designed to achieve.

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Another question is what is the test for determining whether a restriction is reasonable within the meaning of Art.19? The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Rowh has generally been accepted as correct. He said: “it is important… to bear in mind that the test of reasonableness, wherever prescribed should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases”. For adjudging reasonableness of a restriction, the courts consider such factors as: the nature of right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. The test of reasonability can be supplemented by the following observations of Holmes.J. In his classic dissent in Lochner v. New York. “The test to be applied is not whether a judge personally considers particular restrictions unreasonable, but whether a reasonable man would necessarily consider them unreasonable.” The reasonableness of the restriction has to be judged not in reference to the ground on which it can be imposed, but with reference to the fundamental right which is restricted. Article 19 (2) stated as;19(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. The reasonable restrictions are grounds which permit limitations to be placed on the exercise of speech and expression and are contained under Article 19(2). These include, (a) Security of State;- An aggravated form of peace which threatens the foundations of, or threatens to overthrow, the state will fall within the scope of the phrase „security of state‟. The expression‟ overthrowing the state‟ is covered by the term „security of the state‟. Therefore

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making a speech tending to overthrow the state can be made punishable and such a form of restriction is reasonable as it is for preserving social order . b) Friendly relations with foreign states; c) Public Order; - 19(2) use two concepts; „public order‟ and „security of state‟. The term „public order‟ covers a small riot, an affray, breaches of peace, or acts disturbing public tranquility. But „public order‟ and „public tranquility‟ may not be synonymous. A man playing loud music in his home at night may disturb public tranquility, but not public order. Therefore such acts only the serenity of others may not fall within the term „public order‟. There should be some element of disturbance of peace to bring a matter under „public order‟ d) Decency or morality; e) Contempt of Court; f) Defamation; g) Incitement to an offence;- Freedom of speech does not confer a license to incite people to commit offence. Incitement to serious and aggravated offences, like murder may be punishable as involving the security of the state. Incitement to many other offences is also punishable as affecting public order. But there may be still other offences like bribery, forgery, cheating, etc., having no public order aspect. So the words „incitement to offence‟. This restriction also prohibits incitement to all those offences which do not disrupt the public order was the debate in the Parliament and was challenged to be unreasonable as offence is a wide term and includes any punishable act under the Indian Penal Code h) Sovereignty and integrity of India. There is thus a double test to adjudge the validity of a restriction. (a) whether it is reasonable; and (b) Whether it is for a purpose mentioned in the clause under which the restriction is being imposed.
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If a law does not fall within these grounds and abridges the right to freedom of speech and expression then it is ultra vires and declared void. For instance, in Bennett Coleman & Co. v Union of India The Supreme Court again came to the rescue of the press. It held that freedom of press entitles newspapers to achieve any volume of circulation and freedom lies both in its circulation and content. The reason behind that The right to freedom of speech and expression under Article 19(1)(a) is limited by the restrictions contained under Article 19(2). Article 19(2) contains above various grounds on which laws can be made which limit the exercise to freedom of speech and expression. These grounds are collectively referred to as reasonable restrictions. In the landmark case of Sakal Papers v. Union of India The Indian Supreme Court held that the Constitution permits the imposition of reasonable restrictions only within the grounds expressly stated within Article 19(2). The position which has emerged is that the freedom to speech and expression can be curtailed when: (a) The restriction is through an authority of law to support it. A restriction cannot be based on executive orders which are not empowered by legislation; (b) This legislation and law which restricts the right to freedom of speech and expression should fall within the reasonable restrictions as enumerated under Article 19(2); (c) This restriction should be just, fair and reasonable and not be excessive and disproportionate to the object sought to be achieved. In the case of State of West Bengal Vs. Subodh Gopal Bose ( 1954) It was held that that the State has a duty to protect itself against certain unlawful actions and, therefore, may enact laws which would ensure such protection. The right that springs from Article 19(1)(a) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.
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The onus of proving to the satisfaction of the Court that the restriction is reasonable is on the state.

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Conclusion The whole purpose of the project was in determining suitable tests to determine the reasonableness of the restrictions imposed on the citizens in Art. 19(1) In the above-explained chapters it was many times mentioned that the base for ascertaining the reasonableness of a restriction was that it should be in the interests of the general public, which is probably the best test. What then is in the interests of the general public would be the next question. Well, any restriction which to maintain public order, in the sense, public peace, safety, tranquility, public health, morals are in the interests of the public. The restriction on the legislations should lead to these purposes. If the result does not lead to the above-mentioned folds then the restriction is not reasonable. The restrictions that put the rights guaranteed, within the social controls permitted under clauses (2) to (6) are hence reasonable. Every legislation is with a set objective. if the close or proximate effect of the law is that it abridges the fundamental rights of the citizens and if the restriction prevents such abridgment, then the restriction is reasonable. On the other hand, if the restriction goes too far in linking itself with the object of the legislation then such a restriction is unreasonable. Another important test is, if a said provision or a right shows clear signs of danger or even shows an apprehended danger then a restriction on such a law is reasonable

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Bibliography

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Indian constitution by V.N.Shukla Course material by miss kuldeep kaur Manupatra .com www.goforthelaw.com

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