University Institute Of Legal Studies

PROJECT REPORT ON

ARTICLE 19: Right to Freedom, Constitution of India

SUBMITTED TO: SUBMITTED BY:

Dr. Shruti Bedi Disha Pathak
Associate Professor 197/18
B.ComLLb(Hons.)
 ACKNOWLEDGEMENTS

I take this opportunity to express my gratitude to all the concerned people

who have directly or indirectly contributed towards the completion of this
project. I extend my sincere gratitude towards Dr. Shruti Bedi, faculty of
UILS, Panjab University for providing the opportunity to work on this
project and whose insight encouraged me to go beyond the scope of this
project hence broadening my learning.

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 CERTIFICATE OF ORIGINALITY

This is to certify that the work done in this file is done under my
supervision and guidance. It is further certified that work done is
completely original and up to my level of satisfaction.

SIGNATURE

2
 INDEX
S.NO Particulars Page no.
1. Introduction 1
2. The Right to Freedom 2-5
3. Freedom Of Speech
(a) Right to receive info 5-6
(b) Right of examinee to 6
evaluate answer sheets
(c) Compelled speech 6
(d) Freedom of Silence 7
(e) Right against Noise 7
Pollution
(f) Right of Convict to express 7-8
himself
(g) Freedom of Press 8-9
(h) Right to fly National Flag 9
(i) Right to call or enforce 9
Bandh, Hartals, blockades
(j) Trial by Media 9-10
(k) Demonstrations, Picketing 11-12
and Strikes
(l) Right to Internet 12
-Restrictions 13-17
4. Freedom to Assemble 17-18
peacefully; Restrictions
5. Freedom to form 18-20
associations; Restrictions
6. Freedom of movement and 20-22
Residence; Restrictions
7. Freedom to carry on Trade 22-26
and Commerce; Restrictions
8. Conclusion 27
Article 19 and its Dimensions

3
 INTRODUCTION
In the words of Krishna Iyer J.
“The freedom is essential because the censorial power lies in the people over and against the
Government and not in the Government over and against the people.”

There are certain positive rights which are conferred by the constitution in order to promote the ideal
of liberty held out by the Preamble.The foremost amongst these are the six fundamental rights in the
nature of “freedom” which are guaranteed to the citizens by the constitution of India under Article 19.
These were popularly known as the “seven freedoms” under our constitution. Originally there were
seven freedoms under the constitution but that one of them namely “the right to acquire,hold and
dispose of property” has been omitted by the 44th constitutional amendment,1978 leaving only six
freedoms in this Article. 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.
Article 19 guarantees some of the basic , valued and natural rights inherent in a person. However ,
the freedoms guaranteed under this Article are not absolute as no right can be. Each of these rights is
liable to be controlled, curtailed and regulated to some extent by laws made by Parliament or the
State Legislatures. This Article protects the six freedoms of an Indian Citizen from state action and
violation of these freedoms by private conduct of an individual is not within its purview.

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 ARTICLE 19:RIGHT TO FREEDOM

 RIGHT TO FREEDOM
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
(f) omitted
(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

5
 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.

Clauses (a) to (g) of Article 19(1) guarantee to the citizens of India six freedoms and violition of
these freedoms by private conduct of an individual is not within its purview.

 Who can claim freedoms of Article 19:

This article expressly secures the freedoms to citizens of India only.In Tata
Engineering&Locomotive Co. V. State Of Bihar1 the court refused to lift the corporate veil to find
that the shareholder of the petitioner company, being the citizen of India , could invoke Article 19.
However in R.C. Cooper v. Union Of India2 the court held that the fundamental rights of the
shareholders as citizens were not lost when they associated to form a company. Thus if any action of
the state impaired the rights of the company, thereby affecting the rights of the shareholders, who
were citizens of India , the protection of Article 19 would be available to them.

 Freedoms are Not Absolute-Subject to Reasonable Restrictions:

Limitations imposed by Arts.19(2) to 19(6) on the freedoms guaranteed by Arts.19(1)(a) to (g) serve
a twofold purpose viz
 They specify that these freedoms are not absolute but are subject to regulation
 They put a limitation on the power of a legislature to restrict these freedoms.
A legislature cannot restrict these freedoms beyond the requirements of Arts.19(2) to 19(6).
(a) TEST OF REASONABLENESS
The test of reasonableness restriction seeks to strike balance between the freedoms guaranteed by
any of the sub-clauses of Article19(1). The Supreme court said in Dwarka Prasad v State of UP3

1
AIR 1965 SC 40
2
AIR 1970 SC 564
3
1954 SCR 803

6
that a restriction is reasonable only when there is a proper balance between the rights of an individual
and those of the society. In Papnasam Labour Union v Madura Coats Ltd.4 , the Supreme court has
held that in examining the reasonableness of a statutory provision/, whether it violated the
fundamental right guaranteed under Article 19 , one has to keep in mind:
(a) The Directive Principles of the State Policy.
(b) The restrictions must not be arbitrary or of an excessive nature, going beyond the requirement of
the interest of the general public.
(c) No abstract or general pattern or a mixed principle to judge the reasonableness of the restrictions
can be laid down as to be of universal application and the same will vary from case to case as also
with regard to the changing conditions , values of human life, social philosophy of the constitution ,
prevailing conditions and surrounding circumstances.
(d) A just balance has to be struck between the restrictions imposed and social control envisaged by
Article 19(6).
(e) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
(f) There must be a direct or proximate nexus or reasonableness connection between the restrictions
imposed and the object sought to be achieved by the Act , that being so a strong presumption in
favour of the constitutionality of the Act will naturally arise.

SUBSTANTIVE AND PROCEDURAL REASONABLENESS:

(a) The reasonableness has got to be tested both from the procedural and substantive aspects. It
should not be bound by procedural perniciousness or jurisprudence of remedies. The restriction must
not be greater than the mischief to be prevented. Legislation which arbitrarily or excessively invades
the right cannot be said to contain the quality of reasonableness.
(b) In order to be reasonable, not only the restriction must not be excessive , the procedure or
manner of imposition of the restriction must also be fair and just. The court must take into
consideration all the attendant circumstances such as the manner of its imposition , the mode of
putting it into practice.

EFFECT V SUBJECT MATTER LIST:

A legislation or government action may have a direct must not be arbitrary or of an excessive effect
on a Fundamental Right although its subject matter may be different . The object of the law or
executive action is irrelevant when it infringes a Fundamental Right although its subject matter may

4
AIR 1995 SC 2200 : (1995) 1 SCC 501

7
be different. Even a law dealing directly with a purpose mentioned in Art 19(2) would be invalid if it
is not reasonable.

 FREEDOM OF SPEECH
Freedom if Speech is the bulwark of democratic government. This freedom of Speech and
Expression is regarded as the first condition of liberty. In a democracy , freedom of speech and
expression opens up channels of free discussions of issues. In Maneka Gandhi v Union of India5
the court emphasized on the significance of the freedom of speech and expression and said “court
emphasized on the importance of freedom of speech and expression and said “Democracy is based
essentially on free debate and open discussion, for that is the only corrective of government action in
a democratic set up.”

 ARTICLE 19(1)(a) of the Constitution:

Article 19(1)(a) guarantees to all citizens the right to freedom and expression. Under Article 19(2),
reasonable restrictions can be imposed on the exercise of this right for certain purposes.
The freedom of speech 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 opinions. Freedom of speech plays a
crucial role in the formation of public opinions on social, political and economic matters. But these
rights are subjected to reasonable restrictions being imposed under Article 19(2).

SCOPE AND CONTENT OF FREEDOM

A. RIGHT TO RECEIVE INFORMATION

The expression “freedom of speech and expression”in Art.19(1)(a) has been held to include 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 , advertisement, movie, article or speech
etc. The concept of an open government is said to be the direct emanation from the right to know
which seems to be implicit in the right of free speech and expression guaranteed under Article
19(1)(a)6 as held in the case of People Union For Civil Liberties v. Union of India. With a view to
provide for freedom to every citizen to secure access to official information , to promote

5
AIR 1978 SC 597:(1978) 1 SCC 248
6
AIR 2004 SC 1442

8
accountability in administration , Freedom of Information Act, 2002 has been passed. The act
provides for furnishing information by the Public Information Officer. The freedom of speech and
expression includes the right to educate , to inform and to entertain and also the right to be educated ,
informed and entertained as held in the case of Union of India v. Association for Democratic
Reforms7. In this case court emphasized that the right to receive information acquires great
significance in the context of Elections. Court laid down the guidelines as to what information shall
be provided to the voters about the candidates.
The Right to Information , like other rights is held subjective to exceptions in broad terms. It has
been agitated that areas like national security, military deployment are exempted from the ambit of
the RTI but sectors like Judiciary has remained insulated from it. However in the case of The
Registrar SC of India v R.S. Mishra8 it was held that RTI cannot be filed as to question the
judgment of a judge in any case. Whereas the judiciary is concerned then RTI can be filed as to the
asset declaration by the SC judges, in possession of the CJI.

B. RIGHT OF EXAMINEE TO HAVE ACCESS TO EVALUATED SCRIPTS

In case CBSE v. Aditya Bandhopadhya9 court held that answer sheets are to be provided to the
examinee, as it is their right to information. It has been held to be in the public interest that the
results of public examinations , when published , should have some finality attached to
them.However in the case of UPSC v. Anjesh Kumar10 court held that UPSC answer sheets are not
covered under the ambit of the RTI Act holding that the principles of natural justice could not be
extended beyond reasonable and rational limits and could not be carried to absurd lengths.

C.COMPELLED SPEECH
This article also includes compelled speech , often known as a must carry provision in a statute, if it
furthers informed decision making. Films carrying news , a documentary film , or a film carrying
current events, has been held not violative of Article 19(1)(a). As held in the case of K.A. Abbaz v.
Union of India11 censuring of movies is in the larger interest of the citizens and suitable audience.
In the case of Ajay Goswami v. Union of India12court was of the opinion that censuring of certain
programmes which are not suitable for children held cannot be censured as children are to watch

7
AIR 2002 SC 2112
8
2017
9
2011
10
2018
11
1971
12
2007

9
television under the guidance of their parents. It has been ruled out that when a substantially
significant population body is illiterate or does not have easy access to ideas or information, it is
important that all available means of communication , particularly audio visual communication are
not just utilized for entertainment but also for education.

D.FREEDOM OF SILENCE
In Bijoe Emmanuel v. State of Kerela , the Supreme Court held that no person could be compelled
to sing the National Anthem “if he has genuine conscientious objections based on his religious
belief”. Supreme Court reversed the order of the High Court that held the act of students for not
singing national anthem as offence, and ruled out it was a violation of their fundamental right under
Article 19(1)(a). Thus freedom of expression includes right to not to express.

E.RIGHT AGAINST NOISE POLLUTION

Article 19(1)(a) claims an absolute right to suspend other rights as it could disturb other basic human
rights and fundamental rights to sleep and leisure. The impositions of restrictions has been held not
violative of the right under Article 25.

F.RIGHT OF THE CONVICT TO EXPRESS HIMSELF

In M.Hasan v. Government of Andhra Pradesh, the AP high court held that refusal to journalists
and videographers seeking interview with condemned prisoners amounted to deprivation of citizens’
fundamental rights concerned, position of a condemned prisoner was on par with a free citizen.

However in recent Nirbhaya case , BBC documented the case in “India’s Daughter” and was slated
to release it in March 2015, but the Indian government had refused the screening and release of the
documentary citing reasons that the director does not have the permission of the concerned
authorities which she ought to have before releasing it worldwide and, in the documentary was the
interview of the one of the convicts, which created a spur on the digital level since he had made some
derogatory and misogynistic remarks on women. The then government banned the documentary in
India and said that the interview of the convict would have a bad impact on the society and also it
would effect the global reputation of the country. Several petitions were filed against this on the
basis that it violated the fundamental right of the prisoners and also screening of the documentary
would throw the light upon the mindsets of the rapists. Nevertheless the documentary is still banned
in India while it continues to be on media platforms in foreign countries.

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G.FREEDOM OF THE PRESS
As observed by Dr. B.R. Ambedkar “The press has no special rights which are not to be given or
which are not to be expressed by the citizen in his individual capacity. The editor of a press or the
manager are merely exercising the right of the expression , and therefore , no special mention is
necessary of the freedom of the press.
Various aspects of Freedom Of Press are:
(i) No pre- censorship on press:
“Liberty of Press” as defined by Lord Mansfield consists in “printing without previous license,
subject to the consequences of law”. It thus means the right to publish and print what one pleases,
without any previous permission. Imposition of pre censorship on publication is therefore , violative
of the freedom of the press.
(ii) No indirect attack on press:
In Bennett Coleman’s case, the Supreme court laid down the test of direct and immediate impact of
the impugned action on the freedom of speech and expression guaranteed under Article 19(1)(a).
Applying the test in Express Newspapers Pvt. Ltd. V. Union Of India13, the court held that the
notice of re-entry upon the forfeiture of lease and of the threatened demolition of the Express
buildings , intended and meant to silence the voice of the Indian Express and therefore violative of
Article 19 read with Article 14 of the Indian Constitution. Likewise the policy of the government of
allotting the advertisements , discriminating against certain newspapers, violated not only hte
freedom of the press but also the equality clause contained in Article 14. Such policy affects
formation of healthy public opinion , necessary for good democracy.14
(iii) The Right to Exhibit Films on Doordarshan:
Providing entertainment has been held to be a form of exercise of freedom of speech and
expression15.In Odyssey Communications Pvt. Ltd. V. Lok Vidayan Sanghatana16 , the Supreme
court held that the right of citizens to exhibit films on Doordarshan, subject to the terms and
conditions to be imposed by the Doordarshan , was a part of the fundamental right of freedom of
expression guaranteed under Article 19(1)(a), which could be curtailed only under circumstances set
out in Article 19(2). In Life Insurance Corporation of India v. Manubhai D. Shah17 the Supreme
Court held that a film maker had a fundamental right to exhibit his film on doordarshan.

13
AIR 1986 SC 872
14
Sushil Choudhary v. State of Tripura. AIR 1998 Gau 28
15
A.Suresh v. State of T.N. AIR 1997 SC 1889
16
AIR 1988 SC 1642
17
AIR 1993 SC 171

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Doordarshan refused to telecast the film on Bhopal Gas Tragedy which was approved by the Union
Minister for I. &B on the grounds that
(i) The film was outdated and irrelevant
(ii) Likely to create commotion in the already charged atmosphere
(iii) Film criticized the action of the State Government and it was not permissible under the
guidelines.
The Supreme Court held that the respondents had the right to convey his perception of the gas
disaster in Bhopal through the documentary film. Merely because , it was critical of the government
was no reason to deny selection and publication of the film.
The following aspects may be noticed in respect of right to exhibit films:
(i) Article 19(1)(a) Forbids State Monopoly either in Print or Electronic Media
The supreme court in Secretary, Ministry of Information and Broadcasting v. Cricket Association
of Bengal18 , held that the government had no monopoly on electronic media and that a citizen had
under this article , a right to telecast and broadcast to the viewers/listeners through electronic media ,
Television and Radio , any important event. It has been held that a monopoly over broadcasting
whether by government or anybody else, was inconsistent with free speech right..
(ii) Pre censorship of Films
In K.A. Abbas v. Union of India19, constitutionality of films as a media of expression and its pre
censorship came up before the Supreme court. Court held the validity of the Cinematograph Act,
1952, in which films were categorised according to their content, and said pre censorship of films
was justified under Article 19(2) as imposing a reasonable restriction. It was observed that the fims
had to be treated separately from other forms of art and expression, because, a motion picture was
able to stir up emotions more deeply than any other product of art. Therefore classification of films
was held to be valid.

H.RIGHT TO FLY THE NATIONAL FLAG

The right to fly the National Flag freely with respect and dignity, being an expression and
manifestation of one’s allegiance and feelings and sentiments of pride for the Nation, has been held
in Union of India v.Naveen Jindal 20
to be a fundamental right within the meaning of Article

18
AIR 1995 SC 1236
19
AIR 1971 SC 481
20
AIR 2004 SC 1559

12
19(1)(a), but so long as the expression is confined to nationalism, patriotism and love for motherland.
It cannot, therefore be used for commercial purpose or otherwise.

I.NO RIGHT TO CALL OR ENFORCE BANDH, HARTALS, BLOCKADES

The Supreme court in Communist Party of India v. Bharat Kumar21, reiterated with approval the
decision of the Kerela high court in Bharat Kumar v. State of Kerela22 and laid down that there was
no right to call or enforce “bandh” which interfered with the exercise of fundamental freedoms of
other citizens, in addition, to causing national loss in many ways. A bandh , the court said , was, in
fact, a curfew declared against the State. The expression “hartal” is of Indian origin.23 It means a
temporary cessation of commercial activity especially as a type of organized passive resistance.
A boycott simply speaking is refusal to work. It means “to combine in refusing to work for, or deal
with, in order to intimidate or coerce, to refuse to buy from or use the services of. If unaccompanied
by violence, it is legal.
No one has a right to call for a blockade of the office of the local authority so as to prevent people
from approaching the authority in exercise of their right of free movement.24
Taking note of various instances where there was a large scale destruction of public and private
properties in the name of agitations, bandhs, hartals and the like and after considering and accepting
the recommendations made by the two Committees set up by the court, the Apex Court issued
guidelines to effectuate modalities for preventive action and for adding teeth to investigation ,
inquiry and for assessing damages in Destruction of Public & Private Properties v. State of A.P.25 I

J.ARTICLE 19(1)(a) TRIAL BY MEDIA

A journalist has the right, under this article, to publish, as journalist, a faithful report of the
proceedings witnessed and heard in the Court.26 However, in certain matters, such as, the
commission of the offence of rape , unnecessary publicity, may lead to miscarriage of Justice. The
Apex Court in State of Maharashtra v. Rajendra Jawanmal Gandhi27 did hold that a trial by press ,
electronic media or public agitation, was the very antithesis of rule of law.

21
AIR 1998 SC 184
22
AIR 1997 Ker 291
23
Kerela V.V.E. Samithi v. State of Kerela AIR 2000 Ker 389
24
Chambara Soy v. State of Orissa, AIR 2008 Ori 149
25
AIR 2009 SC 2266
26
Saroj Iyer v. Maharashtra M.C.I. AIR 2002 Bom 97
27
AIR 1997 SC 3986

13
In Sidhartha Vashisht v. State (NCT of Delhi)28 reiterating their observations , cautioned that this
Article did not permit the media interfering in the administration of justice in matters sub judice.
Their lordships, recognizing the significance of the print and electronic media in the present day,
pointed to the danger of serious risk of prejudice of the media exercised unrestricted freedom in
holding the suspect or the accused guilty even before such an order passed by the Court. Trial by
media not only hampered fair investigation but also amounted to travesty of justice, the Court said.
Recently, in Sahara India Real Estate Corpn. Ltd. v. Securities Exchange Board of India29 , a
Constitutional bench of the Apex Court said that in the exercise of power conferred on the Supreme
Court under the Article 129 and the High Court under Article 215, read with clause (2) of Article 19,
which refers to law in relation to Contempt of Court , were vested with power to ensure that the
administration of Justice was not perverted , prejudiced, obstructed or interfered with. For this
purpose , the Court can prohibit temporarily, statements being made in the media. The object of the
contempt of law, the Court explained , was not only to punish, it included the power of the Court to
prevent such acts which interfered with, impede or pervert administration of justice.

It is held that the media, has a right to know what is happening in Courts and to disseminate the
information to public which enhances the public confidence in the transparency of Court proceedings.
However , fair and accurate reporting of the trial might sometimes give rise to substantial risk of
prejudice not in the pending trial but in the later or connected trials.

K.DEMONSTRATIONS, PICKETING, STRIKES

Demonstrations or picketing are visible manifestation of one’s ideas and in effect a form of speech
and expression. However, in order to be protected under this article, the demonstrations or picketing
must not be violent and disorderly. Picketing which does not go beyond the limits of persuasion or
inducement and which does not restrain others from doing what they please, would be saved under
this particular article. Picketing is a form of protest in which people (called pickets or picketers)
congregate outside a place of work or location where an event is taking place.
“The right to go on strike” has not been held to be included within the scope and ambit of the
“freedom of speech and expression”
In T.K. Rangarajan v. Government of Tamil Nadu30 a Division bench of the Supreme Court held
that “Apart from the statutory rights, the government employees cannot claim that they can hold

28
AIR 2010 SC 2352
29
AIR 2012 SC 3829
30
AIR 2003 SC 3032

14
society to ransom by going on strike”.They said that strike as a weapon had been mostly misused,
resulting in chaos and total maladministration. Such an action by the government employees , the
court said affected society.
As regards the lawyers a Constitutional Bench of the Apex Court in Harish Uppal v. Union of
India31, categorically pronounced that the lawyers had no right to go on strike or give a call for
bycott, not even a token strike.
Court may, however , ignore, protest abstention from work by lawyers for one day in rarest of rare
cases: where the dignity, integrity and independence of the Bar and/or the Bench are at stake. It has
been suggested that the Advocates can get redressal of their grievances by passing resolutions,
making presentations and taking out silent processions, holding dharnas or having discussion by
giving T.V. interviews and press statements.

 PRESS CONFERENCE BY THE SUPREME COURT JUDGES

An unprecedented event took place on January 12 , 2018 when the four senior-most judges of the
Supreme Court Justices Kurian Joseph, J. Chelameswar, Ranjan Gogoi and Madan Lokur, held a
press conference, issued a statement, and also answered questions from the media. Justice J.
Chelameswar, , had said that the judges were “left with no choice” other than to communicate to the
nation the many “less than desirable things” that have happened “in the last few months”. While this
act was criticized by many on the grounds that the internal discussions and problems should have
been solved internally and amicably and the judiciary should not have been exposed through the
media glare to the public, as it would distraught the faith of public in democracy. But it was
constitutional as Artcle 19(1)(a) gives the power to Advocates to get their grievances addressed and
can give T.V. interviews and press statements.

L.RIGHT TO INTERNET

"It is no doubt that freedom of speech is an essential tool in a democratic setup. The freedom of
internet access is a fundamental right under article 19(1)(a) of the Indian constitution” a two judge
bench headed by Justice N.V. Ramana stated while reading out the judgement. In July 2016 ,UN has
stated that online freedom is a human right and that it must be protected. In Shreya Singhal v. Union
Of India32, the court struck down Section 66A of the Information Technology Act, 2000 in its
entirety of being violative of Article 19(1)(a) and not saved under Article 19(2). In the instant case
two women were arrested for posting obscene content on their social media handles. It was argued in

31
AIR 2003 SC 739
32
AIR 2013 12 SCC 73

15
the court that the law was unconstitutionally vague as it fails to specifically define its prohibitions. It
held that the law does not concern the objective of protecting citizens from defamatory systems
which may harm their reputation because it also condemns offensive statements that may annoy or
be inconvenient to an individual without affecting his reputation.

In Anuradha Bhasin v. Union Of India court held that suspension of internet is a threat to violation
of Article 19(1)(a) and it was for the longest time in the world that internet remained suspended i.e.
since 5th August.

RESTRICTIONS UNDER 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. So said , the Apex Court in Mohd. Ajmal Mohd. Amir Kasab v.
State of Maharashtra33, 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. In the instant case , it was noticed that the Indian channels had shown
live, from beginning to end almost non-stop, latest developments on a minute to minute basis,
including the positions and the movements of the security forces engaged in flushing out the
terrorists. This reckless coverage of the attack by the channels thus made the task of the security
forces not only exceedingly difficult but also dangerous and risky.
Thus Article 19(2) specifies the purposes or grounds in the interest of which or in relation to which
reasonable restrictions can be imposed on freedom of speech and expression.
A. SECURITY OF STATE AND PUBLIC ORDER
The expression “security of state” refers to serious and aggravated forms of public disorder, such as,
rebellion, waging war against the State, insurrection.34 Thus the security of the state may be
endangered by crimes of violence, intended to overthrow the Government , rebellion or external
aggression etc
The expression “security of the State” 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

33
AIR 2012 SC 3565
34
State of Bihar v. Shailabala Devi AIR 1952 SC 329

16
state.35Stating 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
Lucknow Bench of the Allahabad High Court on April 10, 2012 directed the Centre and Uttar
Pradesh Government to ensure that there was no reporting of movement of troops by print or
electronic media. This directive came after the petitioner had expressed her grave concern over the
media report on the movement of the troops, which had created a storm. Such reports if permitted to
continue , might seriously interfere with the handling of security matters by Army and important
strategic point of view in field.

A legal provision making penal speeches or expressions on the part of an individual ‘which incite or
encourage the commission of violent crimes such as murder’ would be valid as these speeches or
expressions cannot but undermine the security of the state. Section 295A I.P.C., penalizes a person
who ‘with deliberate and malicious intention’, by words either spoken or written, or by visible
representations, insults or attempts to insult the religious beliefs of any class. It was argued that this
section be declared void on the grounds that this section is wide enough to cover even trifling forms
of religious insults which may not involve any question of public order. But the Court ruled that
S.295A makes criminal only graver types of conduct involving insults to religion or religious beliefs.
The calculated tendency of such an aggrieved form of insult is clearly to disrupt public order and
hence the provision is valid.36However the court held this section invalid in the case of
Superintendent , Central Prison v. Lohia37 and held that the prohibition imposed was too wide as it
“takes in the innocent and the guilty persons , bona fide and mala fide advice , individuals and class.
The court emphasized that the Fundamental Rights could not be controlled on “hypothetical and
imaginary considerations.”
Public order was added by the Constitutional (first amendment) Act, 1951 as a sequel to case of
Romesh Thapar v. State of Madras38wherein 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 state. Public order implies absence of violence and an orderly state of
affairs in which citizens can peacefully pursue their normal avocation of life.39 However , mere
criticism of the government or its policy does not, necessarily, disturb public order.40In recent case of

35
33 Ram Nandan v. State, AIR 1959 AII 101
36
Ramji Lal Modi v. State of Uttar Pradesh AIR 1957 SC 650
37
AIR 1960 SC 633
38
AIR 1850 SC 124
39
State of Bhopal v. Arif AIR 1974 SC 255
40
Jawali v. State of Mysore, AIR 1966 SC 1387

17
Iftekhar Shaikh v. State of Maharashtra court held that people have right to express feelings on
the issues, and dissent on various public policies by the government, those protesting any issue,
not to be named anti-nationals. In the instant case people were denied permission to sit on an
indefinite protest in the Beed district against the developments in CAA( Citizenship Amendment
Act).
B. FRIENDLY RELATIONS WITH FOREIGN STATES
This ground was added to Article 19(2) by the Constitutional (First Amendment) Act, 1951 .
The object behind this provision is to prohibit any 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 laws fall within this expression and are saved by Article 19(2). In cases of commonwealth
countries which are not considered foreign state for the purposes of the Constitution under Article
367(3), in the case of Jagan Nath v. Union of India41 that a country may not be regarded as a
foreign state for the purposes of the Constitution, but maybe regarded as a foreign power for other
purposes. Therefore , a Commonwealth country is a foreign country for the purposes of Art. 19(2).

C. CONTEMPT OF COURT
The right to freedom of speech and expression does not entitle a person to commit contempt of
court. 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. The freedom cannot be confused with a license
to made unfounded and irresponsible allegations against the judiciary.
The expression “contempt of court” is defined in the Contempt of Courts Act, 1971. Section 2(a)
of the Act provides that contempt of court may be civil contempt or criminal contempt. Stating
that a fair and reasonable criticism of a judgement would not constitute contempt, their Lordships
said that the object of contempt law is “not to protect the dignity of the court , but to protect the
administration of justice.”42 In the case of Indirect Tax Practitioners Associations v. R.K. Jain
the court said that unfair criticism with ill intentions and ulterior motives to degrade the dignity of
the court is not saved under this article.

D. DEFAMATION

41
AIR 1960 SC 675; (1960) 2 SCR 942
42
Lord Salmon in A.G. v. Bbb, (1981) A.C. 303

18
Defamation is both a crime as well as a tort. The law seeks to protect a person in his reputation as
in his person or property, as a crime it is defined in S.499 I.P.C.. The freedom of speech and
expression cannot be used to transgress the law relating to defamation.

E. DECENCY OR MORALITY
These are terms of variable content having no fixed meaning for ideas about decency or morality
vary from society and time to time depending upon the standards of morals prevailing in the
contemporary society.
The test of obscenity is whether the tendency of the matter charged as obscene is too deprive and
corrupt those whose minds are open to such immoral influences , and into whose hands a
publication of this sort is likely to fall. This test of decency was held in the English case of
R.Hicklin . The court widened the meaning of the word “decency” in the case of R.Y. Prabhoo
43

v. P.K. Kunte44, the Supreme court has ruled that the words decency and morality 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 behaviour
or propriety etc.45

F. SEDITION
Section 124-A of the I.P.C. , 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 excites or attempts to excite disaffection
towards the Government established by law in India shall be punished….”
In Kedar Nath v. State of Bihar46 , 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 violative of Article 19(1)(a) read with Article 19(2).

G. INCITEMENT TO AN OFFENCE
This ground was added to Article 19(2) by the Constitution (First Amendment Act), 1951. The
word “offence” has not been defined in the Constitution but according to the General Clauses Act it
means any act or omission made punishable by law. 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
43
L.R. 3 Q.B.360 (1868)
44
AIR 1996 SC 1113
45
Court referred to the Oxford Encyclopaedic English Dictionary and the Collins English Dictionary
46
AIR 1962 SC 955

19
necessarily contemplated by Article 19(2). 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 forms of opinion/views or agitation.
H. SOVEREIGNITY & INTEGRITY OF INDIA
This ground was added too Article 19(2) by the Constitutional (Sixteenth Amendment) 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.

FREEDOM TO ASSEMBLE: ARTS.19(1)(b) AND 19(3)

Article 19(1)(b) guarantees to all citizens “the right t o assemble peacefully and without arms”.
Article 19(3) empowers the State to impose reasonable restrictions on the right to assemble, in the
interests of,” the sovereignty and integrity of India” or “public order”.

Right to Assembly is a corollary of the right to freedom of speech and expression , for, the very
purpose of holding an assembly is, to hold consultations, to express one’s views, in respect of public
affairs. It educates public in the formation of opinion on religious, political , economic or social
problems of the society.
The right of assembly is held to include the right to hold hungers strike, so long as it is assured to be
peaceful without arms and not against any individual or group/community.47

REASONABLE RESTRICTIONS
The right to hold assembly conferred by this article is, however, not absolute. It is subjected to
following limitations:
(i) The assembly must be peaceful;
(ii) It must be unarmed; and
(iii) The state may impose reasonable restrictions under clause (3) of Article 19 in the interests of
public order or sovereignty and integrity of India.
Restrictions must be regulatory and not prohibitive in nature

47
Shanmugaraj v. Deputy Supdt. Of Police, Tenkast, AIR 2004 Mad.235.

20
In Himmat Lal v. Police Commissioner, Bombay48, Section 33(1)(o) of the Bombay Police Act,1951,
empowered the Police Commissioner to make rules to regulate assemblies and processions. Under
Rule 7, the commissioner could put a total ban on all meetings or processions. 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 assembly of citizens and could impose
reasonable restrictions in the interest of public order. However, no rule could be prescribed
prohibiting all meetings or processions.

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 Singh49, the 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 meetings
on private property belonging to others and held that railway premises is not a public property.

FREEDOM TO FORM ASSOCIATIONS OR UNIONS OR

CO-OPERATIVE SOCIETIES [Articles 19(1)(c) & (4)]
The right to form association is the very lifeblood of democracy. Without suc a right , political
parties cannot be formed, and without such parties a democratic form of government , cannot be run
properly. This article like others is not absolute and is subject to restrictions under Article 19(4).

 SCOPE OF THE RIGHT TO FORM ASSOCIATIONS OR UNIONS

RIGHT TO BE A MEMBER VOLUNTARILY

The right to form association means the right voluntarily to be a member of an association. It
includes the right not to be a member or the right to continue to be or not to continue to be a member
of the association. In Damyanti v. Union Of India50, the petitioner was a memeber of the Hindu
Sahitya Sammelan, a Society, registered under the Societies Registration Act, 1860 formed to
promote and propagate Hindi language. HSS Act, 1962 was enacted for regulating the affairs of the
48
AIR 1973 SC 87
49
AIR 1969 SC 966
50
AIR 1971 SC 966

21
Society.The act further provided that the original members would continue to be the members of the
newly constituted Society. As a result, the members who voluntarily formed the association were
now compelled to act in the association with other members , in whose admission they had no say.
The court held that the Act violated the right of the original members of the society to form an
association as it would only be effective only if it was held to include within it the right to continue
the Association with its composition as voluntarily agreed upon by the persons forming the
association.
REASONABLE RESTRICTIONS [Article 19(4)]
The right guaranteed under Article 19(1)(c) is not absolute. Article 19(4) specifically empowers the
State to make any law to fetter, abridge or abrogate the right by imposing reasonable restrictions.
In case of Peoples Union for Civil Liberties v. Union Of India51 it was held that the Prevention of
terrorism Avt, 2002 was enacted , inter alia, to protect sovereignty and integrity of India from the
menace of terrorism. Declaring any organization as a terrorist organization, under the Act, was
permissible under Article 19(4).

A.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. However Justice Douglas rejected this doctrine as having no place in the
democracy. In Arup Bhuyan v. State of Assam52, held Section 3(5) of the Terrorist and Disruptive
Activities( Prevention ) Act, 1987 as violative of Articles 19 and 21 and held that” mere membership
of a banned organization will not incriminate a person unless he resorts to violence to create disorder
or disturbance of public order.”

B.RIGHT NOT TO BE A MEMBER OF AN ASSOCIATION

The right to form association implies the right not to form an association. But it does not follow that
the negative right must also be regarded as a fundamental right. In Tika Ramji v. State of U.P.53,the
U.P. Sugar Cane Act, 1953, required that the sugar canes growers could sell their sugar canes to the
sugar mills only through co operative societies consisting of sugar cane growers. Thus , the growers
of the sugar canes had to become a member of the society to sell them. The Supreme Court held the
Act as imposing reasonable restrictions, the members were free to resign their membership except

51
AIR 2004 SC 456
52
AIR 2011 SC 957
53
AIR 1956 SC 676

22
when indebted to the society. It was held that “right to not to be a member of the association had not
been regarded as a fundamental right.”
C.NO RIGHT TO RECOGNITION BY STATE
In O.K. Ghosh v. E.X. Joseph54, Supreme Court struck down the Rule 4-B of the Central Civil
Service Rules, 1955 as imposing an unreasonable restriction and therefore violative of Article
19(1)(c) as it provided that no government servant would join or continue to be a member of any
association or union not recognized by government or the recognition of which had been withdrawn.

FREEDOM OF MOVEMENT AND RESIDENCE [Articles 19(1)(d),

19(1)(e) & 19(5)]
FREEDOM OF MOVEMENT [Article 19(1)(d)]
Article 19(1)(d0 guarantees to every citizen of India the right “to move freely throughout the
territory of India”.
SCOPE
The right to move freely throughout the territory of India means the “right of locomotion” which
connotes the right to move wherever one likes, whenever one likes, and however one likes. The right
is not absolute as Article 19(5) enables the state to impose reasonable restrictions on the freedom on
the following grounds:
(i) in the interest of general public; or
(ii)For the protection of the interests of any scheduled tribe.

FREEDOM OF RESIDENCE [Article 19(1)(e)]

Article 19(1)(e) guarantees to every citizen of India, the right to reside and settle in any part of the
territory of India. This right is subjected to reasonable restrictions which maybe imposed by the State
on the same grounds as per Article 19(1)(d).
Article 19(1)(d) and Article 19(1)(e) are parts of the same right and are complementary and
often go together. The two rights are, therefore , discussed together.

OBJECTIVE:
The object behind the guarantee contained in these articles is to make Indian citizens national
minded. It is to put end to petty and parochial considerations. These provisions are thus
complementary to Article 5 of the Indian Constitution which provides a single citizenship.

54
AIR 1963 SC 812

23
 REASONABLE RESTRICTIONS
Article 19(5) provides for the reasonable restrictions which can be imposed by the State as Article 19
is not an absolute Article and restrictions are imposed on the following grounds:
(I) In the interest of general public
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. 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. The rule of law requires that no one
is to be subjected to harsh, uncivilized or discriminatory treatment even when the objective is the
securing of the paramount exigencies of law and order.55 In N.B.Khare v. State of Delhi56, the East
Punjab Safety Act,1949 empowered the District 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 petitioner
was served with an order of externment by the Magistrate to remove himself immediately and not to
return for a period of three months. 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.

(II).For the protection of the interests of the scheduled tribes

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. In Dhan Bahadur Ghorti v. State
of Assam57, High Court upheld the custom , prevailing in a tribal area, according to which no Nepali
or foreigner , could stay in the area without the permission of the Deputy Commissioner. It was held
to be covered under this article , as being reasonable restriction for the protection of the interests of
the scheduled tribes.

(III).Right to Privacy and Police Surveillance

The purpose of police surveillance is prevention of commission of crimes by such persons. The
validity of such regulations with reference to Art.19(1)(d) was first considered by the Supreme Court

55
Rupinder Singh Sodhi v. Union Of India AIR (1983) SC 65
56
AIR 1950 SC 211
57
AIR 1953 Ass 61

24
in Kharak Singh v. State of Uttar Pradesh58. The court ruled out that no aspect of police
surveillance fell within the scope of Art.19(1)(d). Against the validity of shadowing of the suspect’s
movements , it was argued that it would induce in him a psychological inhibition. The Court further
by its further pronouncement in Govind v. State of Madhya Pradesh59 said that police surveillance
has to tbe restricted to such persons only against whom reasonable materials exist to induce the
opinion that they show “a determination to lead a life of crime”. however police can maintain
surveillance on bad and habitual offenders but intrusive surveillance seriously encroaching on a
citizen’s privacy is not permissible under Arts.19(1)(d) and 21.

FREEDOM TO CARRY ON TRADE AND COMMERCE [Article

19(1)(g) AND 19(6)
Article 19(1)(g) guarantees to all citizens the right to practise any profession, or to carry on any
occupation, trade or business. Article 19(1)(g) uses four expressions profession, occupation, trade
and business. Their fields may overlap but each of these expressions has a content of its own distinct
from the others. The Supreme court in the case of Excel ware v. Union of India60, said that while
there maybe greater emphasis on nationalization and state ownership of industries , private
ownership of industries is recognized ;private enterprises forms an overwhelmingly large proportion
of India’s economic structure.
 Profession , Trade, Business , 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.
The term “Profession” has been interpreted to mean an occupation requiring the exercise of
intellectual skill, often coupled with manual skill.
The term “Business” means any activity involving the production , distribution and consumption of
wealth and the production and availability of material services.
The term “Trade” is an activity concerning the sale and purchase of goods. It is an exchange of any
article either by barter or for money or for service rendered.

 SCOPE OF ARTICLE 19(1)(g)

No Right to Carry on any Anti-social or Dangerous Activity- Res Extra -Commercium

58
AIR 1963 SC 1295:(1964) 1 SCR 332
59
AIR 1975 SC 1378: (1975) 2 SCC 148
60
AIR 1979 SC 36

25
Article 19(1)(g) guarantees the right to practise 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, trafficking in women. It does not entitle citizens to carry on trade or business in activities
which are inherently vicious and pernicious and are condemned by civilized societies and in articles
or goods which are obnoxious and injurious to health, safety and welfare of the general public,
i.e.res extra-commercium.

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. The
standards of morality can afford a guidance to impose restrictions, but cannot limit the scope of the
right. Supreme Court had held in the case of State of A.P. v. Mcdowell & Co.61that there was no
fundamental right under Article 19(1)(g) to carry on trade or business in intoxicating liquors. Further ,
the State can create monopoly in such business either in itself or in any agency created for this
purpose. However , the reasonableness of the excise policy of the government can be looked into by
the Court.
In view of various decisions of the Supreme Court, this issue is no longer res integra. It is thus a
settled law that no citizen has got any fundamental right for the trade in liquor and it is for the
government to evolve the excise policy and implement the same in the interest of the public and
safeguard the public.62

Right to Impart Education and Establish Educational Institutions

The Supreme Court in Unni Krishnan v. State of A.P.63, commonly known as second capitation
fee case , observed that imparting of education was not and could not be allowed to become
commerce. 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).
Explaining the extent of governmental controls, so far as unaided private educational institutions are
concerned , the Apex Court ruled that “the fixing of a rigid fee structure , dictating the formation and
composition of a governing body, compulsory nomination of teachers and staff for appointment or

61
AIR 1996 SC 1627
62
Prohibition & Excises Supdt., A.P. v. Toddy Tappers Coopt. Society, AIR 2004 SC
63
AIR 1993 SC 2178

26
nominating students for admissions” would be unacceptable restrictions. However the State may
regulate the appointments by prescribing requisite educational qualifications.64
The question as to “how far is it permissible under the Constitution for the State to control and
regulate admission and fee in Private Unaided Professional Educational Institutions”, the matter had
been considered by the Apex Court in their landmark decisions earlier. However, there are still same
doubts or grey areas left remained unexplained. To the extent the area is left open, the Benches
hearing individual cases would find the answer as held in the case of T.M.A. Pai Foundation v.
State of Karnataka65. It is a trite rule that the private unaided professional institutions do not enjoy
absolute autonomy in the matter. A certain degree of State control would be permissible, since the
State, while granting recognition to the institution , has to see that high standards of education are
maintained.

No Right against Competition

Article 19(1)(g) guarantees the right to carry on trade but it does not guarantee protection from
competition in trade. Therefore , the loss of income on account of competition in trade does not
infringe the right to trade under this Article.

Right Against Sexual Harassment of Working Women

In the landmark case of Vishaka v. State of Rajasthan66, a three judge Bench of the Apex Court,
headed by Hon’ble Chief Justice Verma, observed that sexual harassment of working women in
work places would be violation of the victim’s fundamental right under Article 19(1)(g). The Court
took a serious note of the matter and issued binding directions for the prevention of such incidents.
The directions were to be applicable to both public and private sector.

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 practise any
profession or to carry on any trade or business. This article empowers the State to lay down , by law,
“the professional or technical qualifications necessary for practising any profession or carrying on
any occupation ,trade or business.” But the qualifications so prescribed must not be discriminatory,
arbitrary or unreasonable.

64
Brahmo Samaj Education Society v. State of West Bengal, AIR 2004 SC 3358
65
AIR 2003 SC 355
66
AIR 1997 SC 3011

27
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.

Reasonable Restrictions in Public Interest

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. In considering the validity of the
impugned law, imposing a prohibition on the carrying on of a business or profession, the Supreme
Court in Mohd.Faruk v. State of M.P.67, observed that the Court “must attempt an evaluation of its
direct and immediate impact upon the fundamental rights of the citizens, affected thereby and
the large public interest sought to be ensured in the light of the object sought to be achieved.”
Laws regulating the hours of employment of employees and opening and closing hours of
establishments; requiring an entertainment media like cinema theatre , to show for a short duration
of its programme, films which educate and impart information have been upheld as imposing
reasonable restrictions on the freedom of trade. Likewise , the compulsory closure of the industrial
concern on National and Festival holidays has been held saved by Article 19(6) as a measure of
social and industrial welfare legislation to give effect to the Directive of Article 43 which ensures
decent standard of life to industrial workers.68
A restriction on the right to carry on a trade or business in the interest of public health, safety,
sanitation, etc. Would be saved by Article 19(6).
Creation of monopoly in favour of a person or body of persons to carry on any business or trade is
prima facie indefensible and affects the freedom of trade under Article 19(1)(g). In determining the
legality of such provision , the nature of the business will be an important element. In case of
Cooverji v. Excise Commissioner69 , the law which created a monopoly to sell liquor in favour of a
few persons, was held to be valid. The supreme court said that elimination and exclusion was
inherent in such business as that of liquor and that sale of intoxicating liquors by retail could not be
claimed as a privilege which could be exercised by all citizens.

Right Must not be Unreasonable or Excessive

67
AIR 1970 SC 93
68
M.R.F. Ltd. V. Inspector , Kerela Government, AIR 1999 SC 188
69
AIR 1954 SC 220

28
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. 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.70 In Oudh Sugar Mills Ltd. V. Union of India71, a Sugar Control Order, issued by
the government under the Essential Commodities Act, 1955, releasing sugar for sale in open market
allowed the sugar company only 26 days for the disposal of sugar. The Supreme Court held that the
period of 26 days could not be considered as reasonable in view of the fact that sugar would have
been sent out of the State in which it was produced and transported through Railway.

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 interest of the
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.72
To nullify the effect of such judicial pronouncements and to place the matter beyond doubt, the
constitution (First Amendment Act), 1952 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”.
Explaining the effect of this clause in Saghir Ahmad v. State of U.P.73, Supreme Court observed the
“that a State can create a monopoly in its favour in respect of any trade or business, but the
amendment does not make the establishment of such monopoly a reasonable restriction within the
meaning of first clause of Article 19(6). The result of the amendment is that a State would not have
to justify such action as reasonable on a Court of Law and no objection could be taken to it on the
ground that it is an infringement of the right guaranteed under Article 19(1)(g) of the Constitution.
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.74

70
Dwarka Prasad v. State of U.P. AIR 1954 SC 224
71
AIR 1970 SC 1070
72
Moti lal v, State of U.P. AIR 1951 AII 257
73
AIR 1954 SC 728
74
State of Rajasthan v. Mohan Lal AIR 1971 SC 2068

29
 RIGHT TO PROPERTY:Articles 19(1)(f) and 19(5)

Art.19(1)(f) guaranteed to the Indian citizens a right to acquire, hold and dispose of property.
Art.19(5), however, permitted the state to impose by law reasonable restrictions on this right in the
interests of the general public or for the protection of the interests of any Scheduled Tribes.
Arts.19(1)(f) and 19(5) have been repealed by the Constitution (Forty-fourth Amendment) Act,1979.
The 44th Amendment, 1978:
While the Congress government for over a quarter of a century had eaten into the vitals of Article
31(2) by successive amendments, as outlined above, it was left to the Janata government to eliminate
the right of property altogether by the 44th Amendment Act,1978. the following came to the effect:
(i) Article 19(1)(f) has been repealed.
(ii) Article 31(1) has been taken out of Part III, made a separate Article, viz 300A I.e “No person
shall be deprived of his property save by authority of law”
The word “law” which figures in Article 300A of the Constitution would mean a validity enacted law
and in order to be a valid law it must be just, fair and reasonable.75
If an individual’s property is taken away by a public official without legal authority or in excess of
the power conferred by law in this behalf , he can no longer have speedy remedy direct from the
Supreme Court under Article 32 (because the right under Article 300A is not a fundamental right).
one shall have to find their remedy from the High Court under Article 226 or by an ordinary suit.
Though the mass of citizens shall no longer have any guaranteed right to compensation if his/her
property is acquired or requisitioned and the Legislature shall have no constitutional obligation to
provide for payment of any solatium to the expropriated owner, two exceptions are allowed in two
cases of acquisition
(a) If the property acquired belongs to an educational institution established and administered by a
minority the law must provides for the compensation.
(b) If the State acquires land which is personally cultivated by the owner and such land does not
exceed the statutory ceiling , the State must pay to such owner full market value of his land.

Thus right to property is no longer a fundamental right but it remains a legal right for the citizens of
India

75
Delhi Airtech services Pvt. Ltd. V. State of UP,AIR 2012 SC 573(593):(2011) 9 SCC 354

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 ARTICLE 19 & ITS DIMENSIONS
In the recent times, our country, India, had witnessed several events which not only gave an insight
into the mindsets of its people but also defined how the system really works and what one should
expect from its Government. Constitution has time again being questioned whenever there has been
unrest in the country, whether its CAA(Citizenship Amendment Act) and Delhi riots or the Right to
Internet following the abrogation of Article 370. This unrest is a threat to the Constitutionality of
India and is a serious violation of Article 19. The root cause behind the ongoing riots is the
problematic CAA, which the government has again failed to articulate what this amendment really is.
Half of country still doesn’t know the reason behind the unrest, let alone have opinions on it. To
make its citizens aware and make them understand before implementing any bill or policy is what an
ideal government should do. A state in our country is burning and the prestigious courts of our
country still want to delay the hearings on the most ongoing important issue which needs to be as
soon as possible addressed . Right to Internet was declared as a fundamental freedom as right to go
online when it was being banned in Jammu and Kashmir and since 5th August it has been the longest
time the internet was not allowed and even till date although the internet is being allowed in the
region but on a limited speed. Even when Supreme Court ordered imposition of Section 144 in North
East Delhi, it was a gross violation of the right to assemble peacefully and to protest peacefully.
However violent protests can never be an ideal form of expression ,and thus it needs to be curbed
immediately and courts need to take the plunge and take an immediate action. Kapil Mishra’s
statements at a pro CAA rally was a violation to the right to freedom of speech and expression and it
was covered under reasonable restriction on the ground that it was an “incitement to an offence” and
was against the public order. Delhi riots which are creating a havoc in the country currently is a
threat to the freedom of citizens of India ,it is a gross violation of freedom to peaceful assembly and
also freedom of expression. It is time that we as citizens must reflect upon these issues because “it is
not because of the violence of the bad people , but the silence of the good people.”

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 BIBLIOGRAPHY

Books referred:
1. Jain,M.P.,Indian Constitutional Law(Lexis Nexis ,Butterworths,2002)
2. Kumar, Narender,Constitutional Law of India (Faridabad, Allahabad Law Agency,2018)
3. Basu Das Durga, Introduction to the Constitution of India (Lexis Nexis,2018)
Website referred:

1. www.lawfinderlive.com /freedom of speech and expression/convicts rights (visited on

03/03/2020)

2. www.thehindubusinessline.com› news › article10028921 (visited on 29/02/2020)

3. https://www.theindiaforum.in/article/why-caa-violates-constitution (visited on 07/03/2020)

4. https://indiankanoon.org/doc/1218090/ (visited on 07/03/2020)

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