THE ORDER VOILATES ARTICLE 19 OF THE CONSTITUTION

A restriction to be valid must have a direct and proximate nexus with the object which the
legislation seeks to achieve and the restriction must not be in excess of that object i.e.; a balance
between the freedoms guaranteed under It is the direct, inevitable and the real, not the remote,
effect of the legislation on the Fundamental right which is to be considered 1. A restriction to be
reasonable must also be consistent with Art. 14. of the Constitution since the restrictions cannot
be arbitrary or excessive.

The object of the law or executive action is irrelevant when it infringed a Fundamental right
although its subject-matter may be different. No law or action will expressly say that it violates a
right guaranteed. That is why the courts have to protect Fundamental Rights by considering the
scope and provisions of the Act and its effect upon the Fundamental right. The ‘effect’ test has
been applied by the Supreme Court in Maneka Gandhi and in several other cases. For example,
in the Bank Nationalization case, the Supreme Court has said that it is the direct operation of the
Act upon the rights which form the real test. It may, however be noted that under the Bennett
Coleman doctrine, it is ‘direct’ effect on a Fundamental Right which is determinative. A
difference of judicial opinion is possible on the question whether the ‘effect’ of a provision on a
Fundamental Right is ‘direct’ or ‘indirect’.

Under this the restriction should firstly be in the interests of the public and secondly, the
restrictions should be a ‘reasonable restriction’.

The expression ‘in the interests of general public’, the Court has held, “is 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.

1
Express Newspapers v. Union of India AIR 1958, SC 578