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PROJECT ON RIGHT

TO FREEDOM
[ARTICLE 19(2)-19(6)]

SUBMITTED BY SUBMITTED TO

SHUBHAM BAJAJ Dr. Shruti Bedi

209/16

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Dr. Shruti Bedi who gave
me the golden opportunity to do this wonderful project on the topic Right to Freedom Article
19(2)-(6), which also helped me in doing a lot of Research and I came to know about so many
new things. I am really thankful to them.

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RIGHT TO FREEDOM
The Fundamental Right to Freedom is guaranteed under Articles 19 to 22 of the Constitution.
These articles deal with the following different aspects of the right to freedom-

1. Six Fundamental Freedoms (Article 19)


2. Protection in Respect of Conviction for Offences (Article 20)
3. Protection of Life and Personal Liberty (Article 21)
4. Right to Freedom (Article 21-A)
5. Protection Against Arrest and Detention in Certain Cases (Article 22)

SIX FUNDAMENTAL FREEDOMS


(Article 19)
Article 19 guarantees to every Citizen of India the following six basic, fundamental freedoms-

A. Freedom of speech and expression;


B. Freedom to assemble peaceably and without arms;
C. Freedom to form association or unions or co-operative societies1
D. Freedom to move freely throughout the territory of India;
E. Freedom to reside and settle in any part of the territory of India; and
F. Freedom to practice any profession, or to carry on any occupation, trade and business.

Who can claim Freedoms of Article 19

Article 19(1) expressly secures the freedoms to citizens of India only. In Tata Engineering &
Locomotive Co. v. State of Bihar,2 the Court refused to lift the veil to find that the shareholders
of the petitioner company, being the citizen of India, could invoke Article 19.

However, in R.C Cooper v. Union of India,3 the apex court held that the fundamental rights of
the shareholders as citizens, were not lost when they associated to form a company. The court,
thus, ruled that if the action of the state impaired the rights of the company, thereby affecting

1
Inserted by the Constitution (Ninety-Seventh Amendment) Act, 2011, (w.e.f. 15-2-2012)
2
AIR 1965 SC 40.
3
AIR 1970 SC 564

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the rights of shareholders, who were citizens of India, the protection of Article 19 would be
available to them.

It is however, undisputed that the freedoms of Article 19 cannot be obtained by a foreigner. 4

Freedoms are not absolute- Subject to Reasonable Restrictions

Though, the great and basic freedoms enumerated in Article 19 (1) have been recognized as the
natural rights, inherent in the status of a citizen,5 but none of these freedoms, is absolute or
uncontrolled. Each freedom is liable to be restricted by laws made or to be made by the State
under the respective Clauses (2) to (6) of Article 19.

It has been realized that in any modern State, freedoms cannot be guaranteed in absolute
terms and cannot be uncontrolled. For, an unorganized society, is a pre-condition for civil
liberties. While, absolute power results in tyranny, absolute freedoms, lead to ruin and anarchy.

The drafting of clauses (2) to (6), makes it clear, that the Framers of the Constitution did not
make a common draft of restrictions, permissible to be imposed on the operation of the listed
rights. The common thread that runs throughout Sub-clauses (2) to (6), it is explained, is that
the operation of any existing law or the enactment by the State of any law, which imposed
reasonable restriction, to achieve certain objects, is saved.

The Supreme Court in Dharam Dutt v. Union of India,6 observed that if the right sought to be
canvassed did not fall within the sweep of these rights, but was a mere concomitant or adjuct
or expansion or incidence of that rights, then the validity thereof was not to be tested by
reference to clauses (2) to (6), but the test would be that of reasonableness or that it came in
conflict with any other provision of the Constitution.

Test for Restrictions to be Imposed on the Freedoms (Article 19(2) to 19(6)

The restrictions, which may be imposed on the freedoms guaranteed under Article 19(1), must
satisfy the following three broad tests-

(1) A restriction can be imposed only by or under the authority of a law duly enacted by
appropriate Legislature. Thus, no restriction can be imposed by executive action alone
without the authority of a law to back it up. 7
(2) The restriction must be imposed “in the interests of” or “for the particular purpose”
mentioned in the Clause permitting the imposition of the restriction on that particular

4
Dharam Dutt v. Union of India, AIR 2004 SC 1295
5
State of W.B v. Subodh Gopal Bose, AIR 1954 SC 92.
6
AIR 2004 SC 1295.
7
State of Bihar v. P.U.V.S Sangh, (2006) 2 S.C.C 545.

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freedom, i.e, there must be a reasonable nexus between the restriction imposed and
the objects enshrined in the respective Clause. Hence, no restriction can be imposed on
the freedoms, on grounds other than those specified in the respective Clauses. 8
(3) The restriction must be reasonable.

Reasonableness of Restrictions- Guidelines

The requirement that a “restriction”, which may be imposed on the freedoms guaranteed
under Article 19(1), must be “reasonable”, incorporates the concept of judicial review, for,
nowhere the Constitution defines the expression “reasonable restriction.” The Supreme
Court has laid down the following guidelines for determining the reasonableness of
restrictions.9

(a) It is the Court and not the Legislature which is the final judge to determine whether a
restriction is reasonable or not.10
(b) The expression “reasonable restriction” in article 19 connotes that the limitation
imposed on a person in the enjoyment of his right must not be arbitrary or of an
excessive nature, so as to go beyond the requirement of felt need of the society and
object sought to be achieved. 11
(c) There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved.12
(d) No abstract or fixed principle can be laid down, which may have universal application in
all cases. Such consideration on the question of quality of reasonableness, therefore, is
expected to vary from case to case.13
(e) In interpreting constitutional provisions, the Court should be alive to the felt need of the
society and complex issues facing the people which the Legislature intends to solve
through effective legislation.14
(f) In appreciating such problems and felt need of the society, the judicial approach must
necessarily be dynamic, pragmatic and elastic.
(g) The court must determine the reasonableness of a restriction by objective standard and
not by subjective one. In other words, the question is not if the Court feels it to be
reasonable, but whether a normal reasonable man would regard the restriction to be
reasonable.15

8
Romesh Thaper v. State of Madras, AIR 1950 SC 124.
9
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200.
10
Chintaman Rao v. State of M.P., AIR 1951 SC 118
11
Chintaman Rao v. State of M.P. 1951 SC 118
12
Union of India v. Motion Picture Asssocn, AIR 1999 SC 2334.
13
Dharam Dutt v. Union of India, AIR 2004 SC 1925.
14
Jyoti Pershad v. Administrator, Union Territory of Delhi, AIR 1961 SC 1602
15
Sharda v. Dharampal, AIR 2003 SC 3450.

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(h) It is imperative that for consideration of reasonableness of restriction imposed by a
Statute, the court should examine whether the social control as envisaged in Article 19
is being effectuated by the restriction imposed on Fundamental right.16
(i) The freedoms guaranteed under Article 19 are subjected to restrictions. It is necessary
to examine which such restriction is meant to protect social welfare satisfying the need
of prevailing social values.17
(j) The restriction must be reasonable from both substantive as well as procedural
standpoint. It means that the Court should consider not only the duration and extent of
the restriction but should also consider the circumstances, under which, and the
manner, in which, that imposition has been authorized. The restriction should not be
bound by processual perniciousness or jurisprudence of remedies.18
(k) A restriction, under certain circumstances may also amount to total prohibition.19
(l) A restriction cannot be said to be unreasonable merely because, in a given case, it
operates harshly.20
(m) Restriction must not be arbitrary, unbridled, uncanalised and excessive and also not
unreasonably discriminatory. Exhypothesi, therefore, a restriction to be reasonable
must also be consistent with Article 14 of the Constitution.21
(n) It is the reasonableness of the restriction which is to be determined by the Court and
not the reasonableness of the law authorizing the imposition of restriction. 22

REASONABLE RESTRICTIONS ON FREEDOM OF SPEECH AND EXPRESSION [ARTICLE 19(2)]

The freedom of expression, like all other freedoms under Article 19(1) is subject to reasonable
restrictions. It is ruled that an action tending to violate another person’s right to life guaranteed
under Article 21 or putting the National security in jeopardy, can never be justified by taking
the plea of freedom of speech and expression.23 So said, the Apex Court in Mohd. Ajmal Kasab
v. State of Maharashtra, held that the coverage of the Mumbai terror attack by the
Mainstream Electronic Media had done much harm to the argument that any regulatory
mechanism for the media must only come from within.

16
Pathumma v. State of Kerala, AIR 1978 SC 771
17
Sharda v. Dharampal, AIR 2003 SC 3450.
18
Papnasam Labour Union v. Madura Coats Ltd., AIR 1995 SC 2200
19
Narendra Kumar v. Union of India, AIR 1960 SC 430.
20
Bannan Amman Sugars Ltd. V. C.T.O., 2005 (1) S.C..C 625
21
Papnasam Labour Union v. Madura Coats ltd. AIR 1995 SC 2200.
22
N.B. Khare v. State of Delhi, AIR 1950 SC 211.
23
Mohd. Ajmal Mohd. Amir Kasab v. State of Maharashtra, AIR 2012 SC 3565.

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Any attempt to justify the conduct of T.V channels by citing the right to freedom of speech and
expression, had to be said to be totally wrong and unacceptable in such a situation.

Security of State

The expression “security of the State” refers to serious and aggravated forms of public disorder,
such as rebellion waging war against the State, insurrection.24 Thus, the security of the state
may be endangered by crimes of violence, intended to overthrow the Government, waging of
war and rebellion against the Government, external aggression, etc. The expression security of
state in Article 19(2) does not merely mean as danger to the security of the entire country.
Endangering the security of a part of the State would involve a threat to the security of the
State.25

Stating that the issue of movement of army troops is not a matter of the kind which should
require public discussion at the cost of defence secrecy and the security of the country, the
luckhnow bench of the Allahabad High Court on April 10,2012 directed the centre and UP govt.
to ensure that there was no reporting of movement of troops by print or electronic media. The
directive came days after a newspaper report on movement of two army troops towards Delhi,
on a PIL filed by social activist Nutan thakur. The petitioner had expressed her grave concern
over the media report on the movement of troops, which had created a storm. Such reports,
the petitioner submitted if permitted to continue, might seriously interfere with the handling of
security matters by the Army, particularly the movement of troops from the strategic point of
view in field as well as peace areas.

Foreign Relations with Foreign States

This ground was added to Article 19(2) by the Constitution (First Amendment) Act, 1951.

The object behind this provision is to prohibit a unrestrained malicious propaganda, libels
against a foreign State, in the interests of, maintaining friendly relations with them. The Foreign
Relations Act, 1932, provides punishment for libel by Indian citizens against foreign dignitaries.
Such like laws falls within this expression and are saved by Article 19(2).26

24
State of Bihar v. Shailabala Devi, AIR 1952 SC 329.
25
State of Bihar v. Shailabala Devi ‘’ ‘’ ‘’ ‘’
26
See Jagan Nath V. Union Of India, AIR 1960 SC 675; wherein a Commonwealth Country was held to be a foreign
State for the purposes of Article 19(2). Also see Article 367(3) and the Constitution (Declaration as to Foreign State)
Order, 1950. The order declares a Commonwealth country not to be “a foreign State” for the purposes of the
Constitution.

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Public Order

This ground was added by the Constitution (First Amendment) Act,1951, as a sequel to Romesh
Thapper case, 27 wherein the Apex Court rejected the contention that public order was covered
by the expression Security of State. The Court held that the concept of “public order” was wider
than “security of the states”.

The expression “public order” is synonymous with “public peace, safety, and tranquility.” 28 The
test for determining whether the act leads to the disturbance of the current life of the
community, or whether the act affects merely n individual, the tranquility of the society being
undisturbed.29

Public order implies absence of violence and an orderly state of affairs in which citizens can
peacefully pursue their normal avocation of life. 30 It thus includes public safety.31 Public safety
means the safety of the community from the external and internal dangers. Thus, creating
internal disorder or rebellion would affect public order and public safety.32 However, mere
criticism of the Government or its policy does not, necessarily, disturb public order.33

Anything that disturbs public peace or tranquility disturbs public order. 34 Therefore, communal
disturbances, 35 or strikes promoted with the sole object of causing unrest among
workmen36would be offences disturbing public order. Anticipatory action to prevent disorders
has been held within the ambit of Article 19(2).

Though, restrictions can be imposed on the utterances that have the tendency to lead to
disorder, but it is necessary that there must be reasonable and proper nexus or relationship
between the restriction and the public order.

In Superintendent, Central Prison v. Ram Manohar Lohia,37 the Supreme Court struck down
Section 3 of the U.P. Special Powers Act, 1932, which punished a person even if he incited a

27
Romesh Thaper v. State of Madras, AIR 1950 SC 124.
28
Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
29
Collector & Dist. Magistrate v. S. Sultan, AIR 2008 SC 2096.
30
State of Bhopal v. Arif, AIR 1974 SC 255.
31
Ramesh Thaper v. State of Madras, AIR 1950 SC 124.
32
Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
33
Jawali v. State of Mysore, AIR 1966 SC 1387.
34
Madhu Limaye v. State of Bihar, Air 1971 SC 2486.
35
Noor Mohd. V. Rex, AIR 1949 All 120.
36
Dalbir v. State of Punjab, AIR 1962 SC 1106.
37
AIR 1960 SC 633.

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single person not to pay or defer the payment of Government dues. There being no proximate
nexus between the incitement and public order, the Court observed:

We cannot accept the argument of the learned Advocate General that instigation of a single
individual not to pay tax or dues is a spark which may in the long run ignite revolutionary
movement, destroying public order.

It was held that fundamental right could not be controlled on such hypothetical and imaginary
consideration.38

DECENCY OR MORALITY

Restrictions on the freedom of speech and expression can be imposed in the interests of
decency or morality. The purpose is to restricting speeches and publications which tend to
undermine public morals. For instance, State’s directions to desist from holding out any offer to
cure illness, etc, by conducting prayers are upheld as reasonable restrictions on the petitioner’s
right to pray and to perpetuate her ideas as to religion even by being part of a peaceful
assembly, and to move freely for such purpose.39

The word “decency’ connotes the same as lack of obscenity. The word “obscenity” is identical
with the word “indecency”.

Recently,40 a Division Bench of the Apex Court has ruled that printing in any magazine or other
publication of a nude photo of a woman would not be said to be obscene under the Indecent
Representation of Women (Prohibition) Act, 1986, nor under the Indian Penal Code, 1860,
unless its object is only to produce lascivious thoughts and arouse lustful desire. In this case,
proceedings were instituted against two local publishers of Calcutta, for printing semi-nude
photo of British Tennis Player Boris Baker and his non-white friendBarbara. Their lordships
asked the courts to keep in mind the fact that we were living in 2014 and not in 1994.

To hold any nude publication as obscene or not, its object would be the determining factor.

It may be noted that no fixed standard can be laid down as to what is moral or indecent. The
concept of morality differs from place to place, from time to time and fro culture to culture.41

38
See also Sodhi Shamsher Singh v. State of Pepsu, AIR 1954 SC 276.
39
K.P. Hafsath Beevi v. State of Kerala, AIR 2010 Ker. 103.
40
See Aaj Samaj, 8-2-2014
41
See also S. Khushboo v. Kanniammal AIR 2010 SC 3196; Lata Singh v. State of U.P., AIR 2006 SC 2522; Ajay
Goswami v. Union of India, (2007) 1 SCC 143; Networking of Rivers,In re, (2004) 11 SC 360.

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In R.Y.Prabhoo v. P.K. Kunte,42 the Supreme Court has ruled that the words “decency and
morality” in Article 19(2) could not be restricted to sexual morality alone. The court explained
that the ordinary dictionary meaning of “decency” indicated that the action must be in
conformity with the current standards of behavior or propriety etc.43

Holding section 123(3) of the Representation of people Act,1951, constitutionally valid as


protected under Article 19 (2), the Apex Court ruled that seeking votes at an election on the
ground of the candidate’s religion, in a secular State, was against the norms of decency and
propriety of the society.44

Contempt of Court

The right to freedom of speech and expression does not entitle a person to commit contempt
of Court. 45 It cannot be held as law that in view of the constitutional protection of freedom of
speech and expression, no one can be proceeded with for the contempt of court on the
allegation of scandalizing or intending to scandalize the authority of any court.46 The freedom
cannot be equated or confused with a license to make unfounded and irresponsible allegations
against the judiciary.

In In Re: D.C Saxena,47 the supreme Court explained that freedom of speech and expression
would be subjected to Articles 19(2), 129 and 215. Though “Courts do not like to assume the
posture that they are above criticism and that their functioning needs no improvement”, but it
is necessary to make it clear that the liberty of free expression is not to be confounded or
confused with a license to make unfounded and irresponsible allegations against any
institution, much less the judiciary. 48

Defamation

The freedom of speech and expression cannot be used to transgress the law relating to
defamation.

42
AIR 1996 SC 1113. (Bal Thackeray case).
43
The court referred to the Oxford Encyclopaedic English Dictionary and the Collins English Dictionary.
44
Also see Director General of D.D. v. Anand, AIR 2006 SC 3346
45
See C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132
46
See In Re Arundhati Roy, AIR 2002 SC 1375
47
AIR 1996 SC 2481
48
See Radha Mohan Lal v. Rajasthan High Court, AIR 2003 SC 1467.

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Section 499 of the Indian Penal Code, 1860 defines the offence of defamation. It recognizes no
distinction between defamatory statement addressed to the ear or eyes and thus includes both
slander and libel. Defamatory matter put in writing is a libel while in spoken words or gestures,
it amounts to slander. In view of the express saving in Article 19(2), Section 499 of I.P.C. has
been held to be not violative of Article 19(1)(a).49

The supreme court in M.H. Devendrappa v. Karnataka State Small Industries Development
Corporation,50 upheld the dismissal from service of an employee on the ground of making
allegations about mismanagement against the head of his organization and issuing press
statements of political nature. His conduct was held to be detrimental to interests and prestige
of the organization. Using abusive language against seniors or assaulting superior officers at
work place, have been held constituting grave misconduct and grounds for dismissing
employees. 51

Incitement to an Offence

This ground was added to Article 19(2) by the Constitution (First Amendment) Act, 1951.

It has been held that “incitement to an offence” did not refer to “incitement to break a law”.
Thus, an incitement to a breach of every civil law is not necessarily contemplated by Article
19(2).52 However, the freedom does not include the right to speak either about the implication
or involvement of the accused, in any crime, particularly, in the sensational crimes, either in the
form of opinion/views or agitations.53

Sovereignty and Integrity of India

This ground was added to Article 19(2) by the Constitutional (Sixteenth Amendment0 Act, 1963.
The purpose is to guard the freedom of speech and expression from being used to assail the
sovereignty and territorial integrity of the country.

49
Dr. Suresh Chandra v. Panbit Goala, AIR 1958 Cal 176.
50
AIR 1998 SC 1064.
51
See the Tribune, March 22, 2005.
52
Dr. Ram Manohar Lohia v. Supdt., Central Prison, Fatehgarh , AIR 1955 All 377.
53
See T. Thangarasu v. Supdt. Of Police, Eddalore, AIR 2005 Mad. 127.

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Sedition

Sedition is not mentioned in Clause (2) of Article 19.

Section 124-A of the Indian Penal Code, 1860 defines the offence of sedition as follows:

Whoever by words either spoken or written or by signs or by visible representation or


otherwise, brings or attempts to bring into hatred or contempt or excited or attempts to excite
disaffection towards the Government established by law in India shall be punished.

In Kedar Nath v. State of Bihar,54 the supreme court held that Section 124-A was limited to acts
involving an intention or a tendency to create disorder or disturbance of law and order or
incitement to violence and was not violate of Article 19(1)(a) read with Article 19(2).

B. FREEDOM OF ASSEMBLY
[Articles 19(1)(b) & 19(3)]
Sub-clause (b) of Clause (1) of Article 19 guarantees to all citizens “the right to assemble
peaceably and without arms”. Clause (3) of Article 19 empowers the state to impose reasonable
restrictions on the right to assemble, in the interest of, “the sovereignty and integrity of India”
or “public order”. The ground “sovereignty and integrity of India” was inserted by the
Constitution (16th Amendment) Act, 1963.

SCOPE OF THE RIGHT TO ASSEMBLE

The “right of assembly” guaranteed by Article 19(1)(b) is a corollary of the right to freedom of
speech and expression” guaranteed under Article 19(1)(a), for, the very purpose of holding an
assembly is, to hold consultations, to express one’s views, in respect of public affairs. It
educates the public in the formation of opinion on religious, political, economic or social
problems of the society. Chief justice Waite of the Supreme Court of America in United States v.
Crukishank, 55 explained :

……the very idea of the government, republican in form, implies a right on the part of citizens to
meet peaceful for consultation in respect of public affairs.

54
AIR 1962 SC 955.
55
(1875) 92 US 542.

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The right of assembly thus includes the right to hold public meeting and to take out
processions. It also includes the right to hold demonstrations.56

Public Order

Restriction must be regulatory and not prohibitive in nature.

In Himmat Lal v. Police Commissioner, Bombay, 57 Section 33(1)(o) of the Bombay Police Act,
1951, empowered the Public Commissioner to make rules to regulate assemblies and
processions. Under Rule 7, the Commissioner could put a total ban on all meetings and
processions. The petitioner, the Secretary of All India Students Federation, sought permission
to hold a meeting which was refused. The Supreme court struck down rule 7 as violative of the
right guaranteed under Article 19(1)(b). the court held that the State could only make
regulations in aid of the right of the assembly of citizens and could impose reasonable
restrictions in the interest of public order.

No Right to Hold Assembly on Private Property

The right to hold assembly does not include the right to hold meetings on private property
belonging to others.

In Railway Board. V. Niranjan Singh,58the general Manager, Railways issued a circular putting a
ban on holding of meetings or assemblies on the railway premises. The petitioner, a railway
employee, was removed from service for addressing a meeting on the railway premises. The
Supreme Court, upheld the circular and held that Article 19(1)(b) did not guarantee the right to
hold meeting on private property belonging to others.

56
Himmat Lal v. Police Commissioner, Bombay , AIR 1973 SC 87.
57
AIR 1973 SC 87.
58
AIR 1969 SC 966.

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FREEDOM TO FORM ASSOCIATIONS OR UNIONS OR CO-
OPERATIVE SOCIETIES
[Article 19(1)(c) &(4)]
Sub clause (c) of Clause (1) of Article 19 guarantees to the citizens of India “the freedom to
form associations or unions or cooperative societies. Article 19(4) provides that the state may
impose reasonable restrictions on the exercise of this freedom in the interests of “public
order”, “morality” or “the sovereignity and integrity of India.”

The ground of “the sovereignity of and integrity of India” was inserted in Article 19(4) by the
Constitutional (Sixteenth Amendment) Act, 1963.

Rights subjected to Reasonable Restrictions [Article 19(4)]

The right guaranteed under Article (1)(c) is not absolute. Article 19(4) specifically empowers the
State to make any laws to fetter, abridge or abrogate the right by imposing reasonable
restrictions.

The Prevention of Terrorism Act, 2002 was enacted, inter alia, to protect sovereignity and
intergirty of India from the menace of terrorism. Declaring any organization as a terrorist
organization, under the Act, was permissible under Article 19(4).59

In State of Madras v. V.G. Row,60 the respondent, the Secretary of the People’s education
Society, a society registered under the Registeration of Societies Act, 18660, challenged the
validity of criminal law (Amendment) Act, 1908 as amended by the Madras Amendment Act,
1950. The society was declared unlawful under the Madras Act. The Madras Amendment Act,
1950 empowered the State Government to declare by Notification in the Official Gazette an
associaition unlawful on the ground that it constituted a danger to the public peace or
interfered with the maintenance of public order. The Government was required to give reasons
for such declaration. The association so declared unlawful had the right to make a
representation against such action within a reasonable period.

59
Peoples Union for Civil Liberties v. Union of India, AIR 2004 SC 456.
60
AIR 1952 SC 196

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No guilt by Association

The doctrine of “guilt by association” makes “offence” mere membership of a banned


association. It says of a law which applies to membership without the “specific intent” to
further the illegal aims of the organization. It infringes unnecessarily on protected freedoms.
Justice Douglas of the U.S Supreme Court in Elfbrnadt v. Russell,61 rejected this doctrine as
having no place in a democracy.

Right not to be a Member of an Association

In Sitamramacharya v. Senior Dy. Inspector,62 a circular was issued requiring the teachers to
join an association sponsored and recognized by the Government at the pains of disciplinary
action. The Andhra Pradesh high Court struck down the circular as violative of Article 19(1)(c)
and laid down that the right to form an association included the right not to be a member of
the association. In Tika Ramji v. State of U.P.,63 the U.P. Sugar-Cane (Regulation of Supply and
Price) Act, 1953, required that the Sugar-cane growers could sell their sugar-cane to the sugar
mills only through co-operative societies consisting of sugar-cane growers. Thus, the grower of
the sugar-cane had to become a member of the society if he wanted to sell the cane to the
sugar mills. The restriction was imposed with a view to ensuring fair price of the cane to the
growers. The Supreme Court held the Act as imposing reasonable restriction. It was held that
the right not to be a member of the society had not been regarded as a fundamental right.

No right to continue in Government Service

In P. Balakothiah v. Union of India,64 the Supreme Court distinguished between the right to be
a member of an association and the right to continue in the government service.

In the instant case, the Railway Service (Safeguarding of National Security) Rules, 1949, enabled
the Government to terminate the services of government servants at their pleasure. The
services of the appellant were terminated under the Rules for his being a member of the
Communist Party and a trade unionist. The appellant contended that the termination of his
service amounted, in substance, to a denial to him the right to form association.

61
384 U.S 17 (1966)
62
AIR 1959 A.P. 78
63
AIR 1956 SC 676
64
AIR 1958 SC 232

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The Supreme Court held that the Order terminating his services was not in contravention of his
right guaranteed under Article 19(1)(c).

No prior Restraint on the Right to form Association

In O.K Ghodh v. E.X. Joseph,65 Rule 4-B of the Central Civil Service (Conduct) rules, 1955,
provided that no government servant would join or continue to be a member of any association
or union not recognized by the govt or the recognition of which has been withdrawn. Thus, the
right to form an association was conditioned on the existence of recognition of the said
association by the Government. The apex court struck down rule 4-B as imposing unreasonable
restriction and therefore violative of Article 19 (1)(c).

No right to Recognition by State

The right to the recognition of the association or the union by the Government is not held to be
a fundamental right.

In Delhi Police Non-Gazetted Karmchari Sangh v. Union of india,66 under the Statuatory Rules,
the govt was empowered to revoke the recognition granted to an association. The recognition
of the appellant association was revoked.

No right to Achieve the Objects of the Association

Again, the right to form an association does not carry with it the right to achieve the objects for
which the association is formed. Thus, the right does not include the right of the union to an
effective collective bargaining or to strike either as a part of collective bargaining or otherwise.
Such matters may be regulated by the appropriate authority.

No tearing the Veil of the Union/Association

It has been held in Dharam Dutt v. Union of India,67 that as soon as citizens had formed a
company, the right guaranteed by Article 19(1)(c), would be said to have been exercised. Once

65
AIR 1963 SC 812
66
1 SCC 115.
67
AIR 2004 SC 1295

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a company is formed, the business which it carries is the business of the company and not that
of the citizens, who got the company formed. It was ruled that the rights of the
company/society so formed, would be judged on footing that it was a company and could not
be judged on assumption that they were the rights attributable to the business of individual
citizens. Therefore, the attempt of the petitioner to claim the benefit of Article 19(1)(g), by
placing reliance on the doctrine of lifting the corporate veil, was rejected by the Court.

D. & E. FREEDOM OF MOVEMENT AND RESIDENCE [ARTICLE


19(1)(d), 19(1)(e) & 19(5)]

Freedom of Movement (Article 19 (1) (d))

Scope of Article 19 (1) (d)

Freedom of Residence Article 19 (1) (e)

Reasonable restrictions

In N.B Khare v. State of Delhi,68 the East Punjab Public Safety Act, 1949 empowered the
Distrifct Magistrate or the State Government to pass orders of externment against any person,
on being satisfied that such an order was necessary to prevent him from acting in any way
prejudicial to public safety or maintenance of public order. The act was enacted with a view to
meet the situation resulting from the partition of the country and was to have a limited
duration.

The Supreme Court held that the Act was not invalid because the discretion to make an
externment order was given to the executive, such power could reasonably be conferred in an
emergency. Again, since the Act was to have a limited duration, the court said, there was no
possibility of an order of externment being made for an indefinite period.

Again, in State of U.P. v. Kaushaliya,69 under the U.P. Suppression of Immoral Traffic in Women
and Girls Act, 1956, the Magistrate could compel a prostitute to remove herself from the place

68
AIR 1950 SC 211
69
AIR 1964 SC 416

17
of her residence. The act was upheld by the Supreme Court as imposing reasonable restrictions
on the freedom of movement or residence of prostitutes, on grounds of public health and in
the interest of public morals, i.e., to protect the public from the harmful affects of prostitution.

The right to move freely guaranteed under Article 19(1)(d), may , under clause (5) of Article 19
be restricted for the protection of the interests of the Scheduled Tribes.

FREEDOM OF PROFESSION, OCCUPATION, TRADE AND


BUSINESS [Articles 19(1)(g) &19(6)]
Sub-clause (g) of Clause (1) of Article 19 guarantees to every citizen the right to “practice any
profession, or to carry on any occupation, trade or business.” The right is subjected to the
provisions of Clause (6) of Article 19

Profession, trade, Business and Occupation- Defined

The term “occupation” 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.70 For
instance, a journalist has fundamental right to carry on his or her occupation under Article
19(1)(g). it includes “profession”,”trade” or “business.” The term “profession” has been
interpreted to mean an occupation requiring the exercise of intellectual skill, often coupled
with manual skill.

The object of using four analogous and overlapping words in Article 19(1)(g) is to make the
guaranteed right as comprehensive as possible, to include all the avenues and modes, through
which a man earns his livelihood. In a nutshell, the guarantee takes into its fold any activity
carried on by a citizen of India to earn his living.

70
T.M.A. Pai Foundation v. State of Karnataka, AIR 2002 Bom 97.

18
SCOPE OF ARTICLE 19 (1)(G)

Right not to start or to close down a business

The right to carry on a business includes the right not to start any business or if he chooses, he
has the right to close it down at any time he likes. Thus, the State cannot compel a citizen to
carry on a business against his will. Also, a citizen cannot insist upon the government or any
other individual for doing business with him.71

No right to hold a particular job of One’s Choice

The closure of an establishment in which a workman is for time being employed, does not by
itself infringe his fundamental right to carry on an occupation.72

Likewise, black-listing of contractors for entering into contract with Government, if done after
proper application of mind, is not violative of Article 19(1)(g).73

No right to Carry on any Anti-social or Dangerous Activity-

Article 19(1)(g) guarantees the right to practice any profession or to carry on any business,
trade or occupation. The activity to be carried on, must of course, be legitimate and not anti-
social like gambling, trafficiking in women.

It follows that a dangerous or a harmful trade may be absolutely prohibited.74

Likewise, there is no right to carry on any occupation in a manner which is demonstrably


harmful to others.75

No right to Carry on Business or Trade in Liquor

Whether an activity or business comes within the purview of Article 19(1)(g), should not be
determined by applying the standards of morality obtaining at a particular time in the country.

No Right to Carry on Business with the Government

No person can claim a fundamental right to carry on business with the Government. All that he
can claim, it is held, is that in competing for the contract, he should not be unfairly treated and

71
Krishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128.
72
Fertilizer Coporation Kamgar Union v. Union of India, AIR 1981 SC 344.
73
S.K Pradhan v. State of Jharkhand, AIR 2003 NOC 15
74
Lakhan Lal v. State of Orissa, AIR 1977 SC 722
75
State of Kerala v. Joseph Antony, AIR 1994 SC 721.

19
discriminated against, to the detriment of public interest. It has been firmly established that
government contracts are highly valuable assets that the court be prepared to enforce
standards of fairness on the Government in its dealing with tenderers and contractors. 76

No Right to carry on anti-social and unscrupulous money-lending

In Fateh Chand v. State of Maharashtra,77 the Supreme Court laid down that anti-social and
unscrupulous money lending to economically weaker sections of the society was not eligible for
legal recognition as trade within the meaning of Article 19(1)(g). The court speaking through J.
Krishna Iyer, held that though credit could be considered as a class of activity essential for
commerce and trade operations, yet “Credit as embodied in unscrupulous money lending, is
reprehensible.”

Dancing-Not res extra-commercium

Dancing has been held to be not extra-commercium. So held, the Supreme Court in State of
Maharashtra v. Indian Hotel & Restaurants Assn., said that prohibition on dancing in bar
placed by Section 31-A of the Bombay Police Act, 1951 violated Article 19(1)(g). The Act, 1951
had classified establishments into prohibited and exempted establishments on the basis of
facilities it provided and on the basis of harm it caused to atmosphere.

Right to Impart Education and Establish Educational Institutions

The Supreme Court in Unni Krishnan v. State of A.P.,78 commonly known as second capitation
fee case, observed that imparting of education was not and could not be allowed to become
commerce. Teaching might be a profession, but establishing an institution, employing teaching
and non-teaching staff, procuring the necessary infrastructure, for running a school or college,
the court said, was not practicing profession. Thus the activity of establishing an educational
institution could neither be a trade or business nor could it be a profession within the meaning
of Article 19(1)(g).

No Right to Import Goods

In M/s Pankaj Jain Agencies v. Union of India,79 the Supreme Court held that there was no
absolute right much less a fundamental right to import goods from foreign countries. A tax, in
particular, in the nature of duties of customs, has been held not per se violative of Article
19(1)(g). therefore, mere excessiveness of a tax is not by itself violative of the citizen’s right to
carry on a trade or business within the meaning of Article (1)(g).

76
Assn of Resignation Plates v. Union of India, AIR 2005 SC 409.
77
AIR 1977 SC 1825
78
AIR 1993 SC 2178
79
AIR 1995 SC 360

20
No right to choose the place- Street Trading

It maybe noticed that the right to carry on trade or business on the streets or pavements of the
streets, without causing any inconvenience to the passers-by, has been recognized a common
law right, forming part of the right under Article 19(1)(g). 80 It extends to Panchayats as well.
However, removal of bunks and kiosks located within the hospital premises or within the
premises of other medical institutions or their removal from the road margins of important and
busy thouroughfares in the big cities, would not be inconsistent with the right secured by
Article 19(1)(g).81

Right against Sexual Harassment of Working Women

In Vishakha v. State of Rajasthan,82 a three-Judge Bench of the Supreme Court, headed by CJI,
observed that sexual harassement of working in work places would be violation of the victims’,
fundamental right under Article 19(1)(g). in this case, a social worker was brutally gang raped in
a village of Rajasthan.

No right Against Competition

Article 19(1)(g) guarantees to carry on trade but it does not guarantee protection from
competition in trade.

In Shyam Bihari Tewari v. State of U.P.,83 the Supreme Court held that a cinema-owner had no
locus standi to challenge, the establishment and grant in-aid, for new cinema hall.

Professional or Technical or other Qualifications [Article 19(6)(i)]

A citizen does not have, merely by virtue of his being such a citizen, the right to practice any
profession or to carry on any trade or business. Article 19(6)(i) empowers the State to lay down,
“the professional or technical qualifications necessary for practicing or carrying on the
prescribed professional or technical qualifications, he will not be entitled to exercise his right
under Article 19(1)(g).

But, the qualifications so prescribed must not be discriminatory, arbitrary or unreasonable.

80
Sodan Singh v. N.D. Municipal Corpn,. AIR 1989 SC 1988.
81
Shaik Dastagiri v. Ex-Officer, AIR 2002 AP 384.
82
AIR 1997 SC 3011.
83
1994 (23) ALR 520

21
In Indian Council of Legal Aid and Advice v. Bar Council of India,84 a case decided under Article
14 of the Constitution, Rule 9 in Chapter III of Part VI of the Bar Council of India Rules added in
1993, prevented a person who had completed the age of 45 years, on the data he submitted his
application for his enrolment as an advocate, from being enrolled as an advocate. The object of
the Rule was to shut the doors of the profession for those who sought entry into the profession
after completing the age of 45 years. The Supreme Court struck down the Rule as
discriminatory, arbitrary and unreasonable.

Restrictions on the right to carry on trade or business [Article 19(6)]

The right to carry on business, etc. is subject to compliance of Constitutional obligations as also
limitations provided for in the Constitution.85

The right to practice any profession or to carry on any business or trade guaranteed by Article
19(1)(g) may be restricted in two days. Firstly, by reasonable restrictions which might be
imposed by State by law in the interests of general public. Secondly, the state may itself or
through a corporation owned or controlled by it, carry on any trade or business and thus
excluding citizens, completely or partly, from carrying on such trade and business.

Reasonable Restrictions in Public Interest

The restrictions which may be imposed under Article 19(6) must satisfy the following two
conditions-

1. The restrictions must be imposed in the interests of general public, and


2. The restrictions must be reasonable.

The expression “in the interests of general public” in Article 19(6) has been held to be of wide
import comprehending public order, public health, public security, morals, economic welfare of
the community and the objects mentioned in Part IV of the Constitution.

84
AIR 1995 SC 691
85
Kapila Hungorani v. State of Bihar, JT 2003 (5) SC 1

22
Likewise, restrictions imposed under Prevention of Damage to Public Property Act, 1984 against
overloading of vehicles playing on public roads, were held reasonable and permissible under
Clause (6) of Article 19.86

In Municipal Corporation, Ahmedabad v. Jan Mohammad,87 the Court upheld two standing
orders made by the Municipal Commisioner of the City of Ahmedabad, under the Bombay
Provincial Municipal Corporation Act, 1949, directing the closure of municipal slaughter houses
on certain days, since the orders were issued to ensure proper holidays for the municipal staff
working in the Municipal slaughter houses.

In All Delhi Cycle Rikshaw Operators Union v. Municipal Corporation of Delhi, 88 a bye-law no.
3(1) of the Delhi Cycle Rikshaw by-laws, 1960 framed under the Delhi Municipal Corporation
Act, 1957, imposing condition that only the owner of the cycle rikshaw could obtain a license to
keep a cycle rikshaw or to ply for hire and only one such license would be issued to a person,
was upheld ass the purpose was to exclude persons owning a number of rikshaws from
applying for licenses and to prohibit the hiring out of the rikshaws to the rikshaw pullers against
payment of considerations.

Restriction must not be Unreasonable or excessive

It is well settled that exercise of power by the State in imposing restrictions is open to judicial
review on the touchstone of proportionality and natural justice principle.89

In Chintaman Rao v. State of M.P.,90 with a view to providing the supply of adequate labour for
agricultural purposes, in bidi manufacturing areas of the State, the Madhya Pradesh Act, 1948,
empowered the govt to prohibit all persons, residing in certain area, from engaging themselves
in the manufacturing of bidis, during agricultural seasons. The Act was held invalid as it imposed
unreasonable restriction on the right to carry on the bidi manufacturing business in that area,
as it was much in excess of the purpose.

A law which confers arbitrary and uncontrolled power on the executive in the matters of
regulating trade or business, cannot be held to be reasonable. Thus imposing particular colour
scheme in respect of all stage carriage/contract carriage , is held unreasonable restraint, as it

86
Vikash Kumar Singh v. State of Bihar, AIR 2011
87
AIR 1986 SC 1205
88
AIR 1987 SC 648
89
Kulja v B.S.N.L., AIR 2014 SC 9
90
AIR 1951 SC 118

23
would create a confusion in the mind of commuters in identifying vehicles of their choice. 91 It
thus follows that it is not only the law restricting the freedom which should be reasonable, but
the orders made thereunder should also be reasonable.

Restriction may amount to Total Prohibition

The word “restriction” in Clause (6) of Article 19 may include total prohibition under certain
circumstances.

In Sushila Saw Mill v. State of Orissa,92 the apex court held the validity of the Orissa Saw Mills
and Saw Pit (Control) Act, 1991 under which a total ban was imposed on the right to carry on
trade or business in saw milling operation or sawing operation within the prohibited area. The
preservation of forest being a great matter of public interest was one of the rare cases that
demanded total ban.

State trading and State Monopoly in a Trade or Business [Article 19(6)(ii)]

Although, Article 19(6) empowered the State to impose reasonable restrictions “in the interests
of general public,” which expression were comprehensive enough to cover any scheme of
nationalization, which the State might undertake, objections were taken in the Courts as to the
State’s power to carry on a trade to the exclusion of all others.

To nullify the effect of such judicial pronouncements and to place the matter beyond doubt,
the Constitution (First Amendment) Act, 1951 inserted Sub-Clause (ii) to Clause (6) of Article
19, which provides that the State may carry on itself or through a corporation owned or
controlled by the State, any trade, business, industry, or service, “whether to the exclusion,
complete or partial of citizens or otherwise.”

However, under Article 19(6)(ii), the State may create monopoly in its own favour but not in
favour of third persons for their benefit, since monopoly created by the State in favour of third
persons is different from the monopoly created by the State in its own favour.93

91
Ashoke Choudhary v. State of W.B. , AIR 2007 Cal 176.
92
AIR 1995 SC 2084
93
State of Rajasthan v. Mohan Lal, AIR 1971 SC 2068.

24
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