ARTICLE 19: RIGHT TO FREEDOM1

Clause (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms, viz., of
‘speech and expression’, ‘peaceable assembly’ ‘association’, ‘free movement’, ‘residence’,
and ‘practicing any profession and carrying on any business’.

These various freedoms are necessary not only to promote certain basic rights of the
citizens but also certain democratic values in, and the oneness and unity of, the country.
Art. 19 guarantee some of the basic, values in, and the oneness and unity of, the country.
Art. 19 guarantee some of the basic, valued and natural rights inherent in a person.

These rights are not exhaustive of all the rights of a free man who has far more and
wider rights. The freedoms enumerated in Article 19(1) are those great and basic rights
which are recognized as the natural inherent in the status of a citizen. According to
Supreme Court, it is possible that a right does not find express mention in any clause of
Art. 19(1) and yet it may be covered by some clause therein. This gives an additional
dimension to Article 19(1) in the sense that even though a right may not be explicit, it
may yet be implicit in the various clauses of Art.19.

The principle on which the power of the State to impose restriction is based is that all
individual rights of a person are held subject to such reasonable limitations and
regulations as may be necessary or expedient for the protection of the general welfare.
In the words of Das, J., “social interest in individual liberty may well have to be
subordinated to other greater social interests. Indeed, there has to be a balance between
individual rights guaranteed under Article 19(1) and the exigencies of the State which is
the custodian of the interests of the general public, public order, decency or morality
and of other public interests which may compendiously be described as social welfare.”

A law restricting the exercise of any of the seven freedoms guaranteed by clause (1) of
Article 19 to be constitutionally valid, must satisfy two conditions, namely:-

(1) The restriction must be for the particular purpose mentioned in the clause
permitting the imposition of the restriction on that particular right, and permitting the
imposition of the restriction.
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(2) The restriction must be a reasonable restriction.

It may be emphasized that the requirement that a restriction should be reasonable is of

great constitutional significance, for it acts as a limitation on the power of the
legislature, and consequently, widens the scope of judicial review of laws restraining the
exercise of freedoms guaranteed by Article 19.

Freedom of speech is essential for the proper functioning of the democratic process. 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.

The test of reasonableness has to 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. The meaning would vary according to which of the six rights guaranteed under
clause (1) is being restricted by the impugned law. Some of the principles which the
Supreme Court has affirmed in ascertaining the reasonableness of restrictions on the
exercise of the rights secured under this article.

1. Reasonableness demands proper balancing: – The phrase ‘reasonable

restrictions’ connotes that the limitation imposed upon a person in the enjoyment of a
right should not be arbitrary or of an excessive nature. Legislation which arbitrarily or
excessively invades any of the six freedoms cannot be said to contain the quality of
reasonableness, and unless it strikes a proper balance between the freedoms guaranteed
under Article 19(1) and social control permitted by clauses (2) to (6) of Article 19, it
must be held to be wanting in reasonableness.

2.  Reasonableness both substantive and procedural: – In determining the

reasonableness of a statute, the court would see both to the nature of the restriction and
procedure prescribed by the statute for enforcing the restriction on the individual
freedom. Principles of natural justice are an element in considering the reasonableness

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of a restriction where Article 19 is applicable.Absence of provision for review makes the
provisions unreasonable. 

3. Reasonableness and objective concept: – The reasonableness of a restriction

has to be determined in an objective manner and from the standpoint of the interests of
the general public and not from the point of view of the persons upon whom the
restrictions are imposed or upon abstract considerations.

4. Reasonableness of restriction and not of law: – The court is called upon to

ascertain the reasonableness of the restriction and not of the law which permits the
restriction. A law may be reasonable, but the restriction imposed by it on the exercise of
freedom may not be reasonable.

5. Reasonableness includes total prohibition: – The word ‘restriction’ also

includes cases of prohibition and the State can establish that a law, though purporting to
deprive a person of his fundamental right, under certain circumstances amounts to a
reasonable restriction only.

6. Reasonableness and American ‘Due Process’: – The Constitution framers

deliberately avoided the use of the expression ‘due process’ with its comprehensiveness,
flexibility and attendant vagueness, in favour of the somewhat more definite word,
‘reasonable’, and caution has, therefore, to be exercised before the literal application of
American decisions. Our Constitution provides reasonably precise general guidance in
this matter.

7. Reasonableness and Directive Principles of State Policy: – That the

restrictions are imposed in carrying out the Directive Principles of State Policy is a point
in favour of the reasonableness of the restrictions.

8. Reasonableness of Taxes: – Prima facie a tax is not a restriction on any of the

freedoms guaranteed under Article 19. Mere excessiveness of a tax is not a ground for
challenging it as a restriction on one of the freedom in Article 19(1).

Art. 19(1)(a) guarantees to all citizens the right to ‘freedom of speech and expression’.
Under Article 19(2), reasonable restrictions can be imposed on the exercise of this right

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for certain purposes. Any limitation on the exercise of the right under Art. 19(1)(a) not
falling within the four corners of Art. 19(2) cannot be valid.

The freedom of speech under Article 19(1) (a) includes the right to express one’s views
and opinions at any issue through any medium, e.g., by words of mouth, writing,
printing, picture, film, movie, etc. It thus includes the freedom of communication and
the right to propagate or publish opinion. But this right is subject to reasonable
restrictions being imposed under Art. 19(2).

The ‘freedom of speech and expression’ includes the right to acquire information and
disseminate the same. It includes the right to communicate it through any available
media whether print or electronic or audio-visual. This freedom includes the freedom to
communicate or circulate one’s opinion without interference to as large a population in
the country, as well as abroad, as is possible to reach.

Freedom of the press is implied from the freedom of speech and expression guaranteed
-by Article 19(1) (a). There is no specific provision ensuring freedom of the press as
such. The freedom of the press is regarded as a “species of which freedom of expression
is a genus. Thus being only a right flowing from the freedom of speech, the freedom of
the press in Indian stands on no higher footing than the freedom of speech of a citizen,
and the press enjoys no privilege as such distinct from freedom of the citizen.

The prime purpose of the free press guarantee is regarded as creating a fourth
institution outside the government as an additional check on the three official branches-
executive, legislative and the judiciary. It is the primary function of the press to provide
comprehensive and objective information on all aspects of the country’s social,
economic and political life. The press serves as a powerful antidote to any abuse of
power by government officials and as a means for keeping the elected officials
responsible to the people whom they were elected to serve.

The Supreme Court has emphasized that the freedom of the press is not so much for the
benefit of the press as for the benefit of the general community because the community
has a right to be supplied with information and the government owes a duty to educate
the people within the limits of its resources.

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Imposition of pre-censorship on publication is, therefore, unless justified under clause
(2), violative of freedom of speech and expression. In Brij Bhushan V. State of
Delhi, an order issued under East Punjab Safety Act, directing the editor and publisher
of a newspaper “to submit for scrutiny, in duplicate, before publication ,till further
orders, all communal matters and news and views about Pakistan, including
photographs and cartoons”, was struck down by the Supreme Court observing, there can
be little doubt that the imposition of pre-censorship on a journal is a restriction on the
liberty of the press which is an essential part of the freedom of speech and expression
declared by Art. 19(1)(a).

Das C.J. said in Virendra V. State of Punjab, that “It is certainly a serious
encroachment on the valuable and cherished right to freedom of speech if a newspaper
is prevented from publishing its own view or views of its correspondents”.

Freedom of speech and expression includes the freedom of propagation of ideas and is
ensured by the freedom of circulation. In RomeshThappar V. State of Madras, the
notification banning the entry into or circulation, sale, or distribution in the State of
Madras or any part of it of the newspaper entitled ‘Crossroads’ published at Bombay was
held invalid because, “without liberty of circulation, the publication would be of little
value”.

The right of freedom of speech is infringed not only by a direct ban on the circulation of
a publication, but also by an action of the government which would adversely affect the
circulation of the paper. In Sakal Papers (p) ltd. V. Union of India, a government
order which fixed the number of pages and size which a newspaper could publish at a
price was challenged by the petitioners on the ground that it infringed the liberty of the
press implicit in the terms of Art. 19(1)(a). The order affected the liberty of the press
because its adoption would mean, the petitioners explained, either the reduction in the
existing number of pages or raising of the price. In either case, there would be reduction
in the volume or circulation of the paper and therefore a direct violation of the liberty of
the press. On behalf of the State, the law was justified as a reasonable restriction on the
business activity of a newspaper in the interests of the general public.

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The Court agreed that newspapers have two aspects-dissemination of news and views
and commercial. The two aspects are different, the former falls under Art. 19(1)(a) read
with Art. 19(2), and the latter falls under Art. 19(1)(g) and can be regulated under Art.
19(6). However, the state cannot seek to place restriction on business by directly
immediately curtailing any other freedom of the citizen guaranteed by the constitution
and which is not susceptible of abridgement on the same grounds as are set out in Art.
19(6). “Therefore, the right of freedom of speech cannot be taken away with the object of
placing restrictions on the business activities of a citizen.

The Court accepted the plea of the petitioners that the order affected the circulation and
so restrained the dissemination of news and views which a newspaper had the freedom
to do. The order was struck down and held to be inoperative. Therefore, referring the
press as a business and justifying the impugned restriction under Art. 19(6) as a proper
restriction on the right to carry on the business of publishing a newspaper “would be
wholly irrelevant for considering whether the impugned Act infringes or does not
infringes the freedom guaranteed by Art. 19(1)(a).” This means the freedom of speech
cannot be restricted for the purpose of regulating the commercial aspects of the
activities of the newspapers.

Bennett Coleman & Co. V. Union of India, is a case of great significance in the
area of freedom of speech and expression. India faces a shortage of indigenous
newsprint. Because of the shortage of foreign exchange, quantity of newsprint imported
was not adequate to meet all requirements. Some restrictions, therefore, become
necessary on the consumption of newsprint. Accordingly, s system of newsprint quota
for newspapers was evolved. The actual consumption of newsprint by newspaper during
1970-71 & 1971-72, whichever was less, was taken as the base. For dailies with a
circulation up to 1,00,000 copies, 10% increase in the basic entitlement was to be
granted, but for newspapers with a larger circulation, the increase was to be only 3%.
Newspapers with less than 10 pages daily could raise the number of pages by 20%
subject to the ceiling of 10. A few more restrictions were imposed on the user of
newsprint. This newsprint policy was challenged in the Supreme Court.

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By a majority, the Supreme Court declared the policy unconstitutional. While the
Government could evolve a policy of allotting newsprint on a fair and equitable basis,
keeping in view the interests of small, medium and big newspapers, the Government
could not, in the grab of regulating distribution of newsprint, control the growth the
circulation of newspapers. In effect, here the newsprint policy became the newspaper
control policy. While newsprint quota could be fixed on a reasonable basis, post-quota
restrictions could not be imposed. The newspapers should be left free to determine their
pages, circulation and new editions within their fixed quota. The policy of limiting all
papers whether small or large, to 10 pages was held to be discriminatory as it treated
unequal as equals. The restrictions imposed cut at the very root of the guaranteed
freedom. In the words of the Court, “Freedom of the press is both qualitative and
quantitative. Freedom lies both in circulation and in content.”

The Supreme Court in concluded in Tata Press Case that “commercial speech” cannot
be denied the protection of Art. 19(1)(a) merely because the same is issued by business
man. “Commercial Speech” is a part of freedom of speech guaranteed under Art. 19(1)
(a). The public at large has a right to receive the “commercial speech”. The protection of
Art. 19(1)(a) is available both to the speaker as well as the recipient of the speech.

The Supreme Court accepted as valid the printing of yellow pages by the Tata Press.
Printing of a directory of telephone subscribers is to be done exclusively by the
Telephone Department as a part of its service to the telephone subscribers. But yellow
pages only contain commercial advertisements and Art. 19(1)(a) guarantee freedom to
publish the same.

In LIC V. Manubhai D. Shah, the Supreme Court stated a liberal interpretation

should be given to the right of freedom of speech and expression guaranteed by Rt. 19(1)
(a) . The Court has characterized this right as a “basic human right”. This right includes
“the right to propagate one’s views through the print media or through any other
communication channel, e.g. the radio and television”. Thus, every citizen “has the right
to air his or her views through the print and/or the electronic media subject, of course,
to permissible restrictions imposed under Art. 19(2) of the Constitution.
In this case the Supreme Court has taken cognizance of two situations. One, the

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respondent circulated a research article suggesting that the LIC was charging unduly
high premiums from those who took out life insurance policies. The LIC published a
counter reply to this paper in a daily newspaper and also in its own in-house magazine.
The respondent then prepared a rejoinder and got it printed in the same daily
newspaper. He also wanted the LIC to print his rejoinder in their magazine, but the LIC
refused to do so. The Supreme Court was called upon to decide the question whether the
LIC was right in refusing to publish the rejoinder the responded in magazine. Answering
in the negative the court pointed out that the attitude of the LIC was both “unfair and
unreasonable”-unfair because fairness demanded that both view points were placed
before the readers and unreasonable because there was no justification for refusing
publication. By refusing to print and publish the rejoinder the LIC had violated the
respondent’s Fundamental Right.

Every free citizen has an undoubted right to lay what sentiments he pleases before the
public. Freedom of speech and expression is subject only to the restrictions imposable
under Art. 19(2). Efforts by intolerant authorities to curb or suffocate this freedom must
be firmly replied, more so when public authorities betray autocratic, tendencies.

LIC is a ‘state’ within the meaning of Art. 12. The LIC Act enacted by Parliament
requires LIC to function in the best interest of the community. The community is,
therefore, entitled to know whether or not, this requirement of the statute is being
satisfied in the functioning of the LIC.

The right of a citizen to exhibit films on the Doordarshan subject to the terms and
conditions to be imposed by the latter has been recognized. On further consideration in
Secretary, Ministry I&B V. Cricket Association of Bengal, the Court has held that
air waves or frequencies are public property, their use must be controlled and regulated
by a public authority in the interest of public and to prevent the invasion of their rights.
As the electronic media involves the use of the air wages, this factor creates an inbuilt
restriction on its use as in the case of any other public property. This limitation in the
nature of public property involved in the electronic media is in addition to the grounds
of restriction on the right of freedom of speech and expression under Art. 19(2).
Accordingly, while an individual has a right under Art. 19(1)(a) to have an access to

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telecasting, this right is subject to the limitation on account of use of public property, i.e.
the air waves involved in the exercise of the right can be controlled and regulated by the
public authority even on grounds not strictly covered under Art. 19(2). The Court also
asked the Central Government to take immediate steps to establish an independent
autonomous public authority representative of all sections and interests of the society to
control and regulate the use of air waves.

The Bandit Queen Case-

‘She is humiliated, stripped naked, paraded, made to draw water from the

well, within the circle of a hundred men. The exposure of breasts and

genitalia to those men is intended by those who strip her to demean

her.’ The portrayal of the tragic story of dacoit PhoolanDeviin Bandit Queen

fell in a legal battle when a criminal case of obscenity was filed against the

makers. The petitioners objected to some scenes depicting nudity and

violence in the movie and claimed that they were obscene, lascivious, and

would corrupt and deprave the minds of the viewers and hence, a criminal

act under Section 292 of the Indian Penal Code.

The Supreme Court ruled in the Bobby International Case that the scenes

depicting nudity must not be seen in isolation. They must be seen in the

context or the background in which they (film, portrait, writing, and

photograph) are made. The message being conveyed through the portrayal

is of utmost importance when deciding the obscenity of an act. The

movie Phoolan Devi depicts the social menace of torture and violence

against a helpless female child which transformed her into a dreaded dacoit.

The object of the scenes was not to titillate the cinemagoer’s lust but to

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arouse in him the sympathy for the victim and disgust for the perpetrators.

‘Nakedness does not always arouse baser instinct.’

The acceptable level of obscenity in films, photographs, paintings, and

stories and novels, is not yet settled in India. In terms of section 292 of the

Indian Penal Code, any matter is obscene if taken as a whole, it is lascivious

or appeals to the prurient interest or if its effect and tends to deprave and

corrupt persons who read, see or hear the matter contained or embodied in

it.

(Read judgment of the Supreme Court on Bobby Art International, Etc vs Om Pal Singh
Hoon&Ors)

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