TEST TO DETERMINE REASONABLE RESTRICTIONS UNDER ARTICLE 19 OF

THE CONSTITUTION OF INDIA

By: ROMIT RAJA SRIVASTAVA

Email: romitrajasrivastava@msn.com

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ABSTRACT

The Fundamental Rights guaranteed by the Constitution of India are not absolute. There

are certain restrictions which can be imposed by the state according to the procedure established

by law. However, these restrictions must be reasonable and not arbitrary. Article 19 covers these

fundamental freedoms as well as the restrictions which can be imposed on these rights. In this

paper, all the six freedoms defined in Article 19 and the restrictions are highlighted. Also, all the

landmark cases are covered in this paper while dealing with the concept of Reasonable

Restrictions. The main focus of this paper is to throw some light on the test to determine the

reasonabilility in the restrictions mentioned in Article 19 of the Constitution of India. Further, in

this paper, some light is also thrown as to what constitutes “unreasonable restrictions”.

INTRODUCTION_____________________________________________________________

Personal liberty is the most important of all fundamental rights. Article 19 of the

Constitution guarantees to the citizens of India the following six freedoms:-

(1) Freedom of speech and expression

(2) Freedom of assembly

(3) Freedom to form associations

(4) Freedom of movement

(5) Freedom to reside and to settle

(6) [***]1

(7) Freedom of profession, occupation, trade or business.

1
Cl.(f) was omotted by the Constitution 44th Amendment Act, 1978.

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 However, the freedoms guaranteed by Article 19(1) 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. Accordingly, clauses (2) to (6) of Article 19 lays

down the grounds and the purposes for which a legislature can impose ‘reasonable restriction’ on

the rights guaranteed by Article 19.

The debate has always been on as to what exactly is the definition of ‘reasonable

restriction’. The phrase ‘reasonable restriction connotes that the limitation imposed upon a

person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is

required in the interest of the public. The word reasonable implies intelligent care and

deliberation that is the choice of a course which reason dictates.

Article 19 confers the several freedoms on the citizens of India. A foreigner enjoys no

right under Article 19. Article 19 confers certain fundamental rights on the citizens and not on

non-citizens of India.2

RESTRICTIONS ON THE RIGHT TO FREEDOM________________________________

The fundamental rights guaranteed under Article 19(1) are not absolute. They are subject

to restrictions placed in the subsequent clauses of Article 19. 3 No restrictions by mere executive

or departmental instructions can be placed. They would not be ‘a law’ which the State is entitled

to make under the relevant clauses (2) to (6) of Article 19 in order to regulate or curtail

2
Gilles Pfeiffer v. Union of India, AIR 1996 Mad 322.

3
Babul Parate v. State of Maharashtra, AIR 1961 SC 884 (para 24).

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fundamental rights under Article 19 (1). 4 Clauses (2) to (6) of Article 19 do not require the

making of a law solely for the purpose of placing the restrictions mentioned in them. 5 The test of

reasonableness mentioned in postulated of the restrictions in clause (2) to (6) of Article 19

should be applied to each individual statute impugned, and no abstract standard or general

applicable to all cases. The reasonableness of the restraint would have to be judged by the

magnitude of the evil which it is the purpose of the restraint to curb or to eliminate. 6 The

expression “in the interests of” in clauses (2) to (6) of Article 19 makes the ambit of the

protection very wide for a law may not have been designed to directly maintain public order or to

directly protect the general public against any particular evil and yet it may have been enacted

“in the interests of” public order of the general public, as the case may be. 7 The words ‘public

order’ appearing in clauses (2) and (4) of Article 19 must have the same meaning. In clause (2)

‘public order’ is virtually synonymous with public peace, safety and tranquility. The denotation

of the said words cannot be wider in clause (4). A restriction can be said to be in the interest of

public order only if the connection between the restriction and the public order as direct and

proximate. Indirect and unreal connection between the public order and restriction would not fall

within the purview of the expression “in the interest of public order”.8 The determination by the

Legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to

4
Kharak Singh v. State of UP, AIR 1963 SC 1295 (para 5).

5
Babul Parate v. State of Maharashtra, AIR 1961 SC 884 (para 17).

6
Collector of Customs v. Sampathu Chettty, AIR 1963 SC 316 (para 35).

7
Virendra v. State of Punjab, AIR 1957 SC 896 (para 9).

8
Rex v. Basudev, AIR 1950 SC 67.

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supervision by the court.9 The test for ascertaining the reasonableness of the restriction of the

rights in Article 19 is of great importance. No abstract standard reasonableness can be laid down

as applicable to all cases. The nature of the right alleged to have been infringed, the underlying

purpose of the restrictions imposed, the extent and the urgency of the evil sought to be remedied

thereby, the disproportion of the imposition and the prevailing conditions at the time, should all

enter into the judicial verdict.10

RESTRICTION UNDER ARTICLE 19 i.e 19(2) to (6)_______________________________

(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

9
Chintaman Rao v. State of M.P., AIR 1951 SC 118.

10
Harakchand v. Union of India, AIR 1970 SC 1453 (para 15).

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 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 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 practicing 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.

The restriction which may be imposed under any of the clauses must be reasonable restriction.

The restrictions cannot be arbitrary. Hence a restriction to be constitutionally valid must satisfy

the following two tests:

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 (i) The restriction must be for the purposes mentioned in clauses 2 to 6 of Art. 19.

(ii) The restriction must be a reasonable restriction.

Some of the principles which the Supreme Court has affirmed in ascertaining the

reasonableness of restrictions can be taken into consideration:

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. A legislation arbitrarily invading the right of a person

cannot be regarded as reasonable. 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

Art. 19(1)(a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19. It is

the substance of legislation and not its appearance or form which is to be taken into

consideration while assessing its validity. This introduces the principle of

‘proportionality’. This means the court would consider whether the restriction imposed

by legislation on the Fundamental Rights are disproportionate to the situation and are

“not the least restrictive of the choices”. It is the direct, inevitable and the real, not the

remote, effect of the legislation on the Fundamental Right which is to considered. 11 A

restriction to be reasonable must also be consistent with Art. 14 of the Constitution since

the restrictions cannot be arbitrary or excessive.

2. Reasonableness, both Substantive and Procedural: To determine the reasonableness of the

restriction, the Court should also consider the nature of the restriction and procedure
11
Express Newspapers v. Union of India, AIR 1958 SC 578.

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 prescribed by the Statute for enforcing the restriction on the individual freedom. Not only

substantive, but ‘procedural provisions of a statute also enter into the verdict of its

reasonableness’. 12 Retrospectivity of a law may be also be a relevant factor although

retrospectivity of a law does not make it automatically unreasonable. A statute imposing

a restriction with retrospective effect is not prima facie unreasonable, but retrospectivity

is an element to be taken into consideration in determining whether the restriction is

reasonable or not.

3. Reasonableness and objective concept: The reasonability of a restriction has to be

determined in an objective manner. It should be from the standpoint of the general public

and not from the view of the persons upon which the restrictions are imposed or upon

abstract considerations. This concept of objectivity prompted the Supreme Court to warn

Judges from bringing their own personal predilections in ascertaining the reasonableness

of the restrictions.

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 and Directive Principles of State Policy: The Directive Priniciples of

State Policy are also relevant in considering whether a restriction on a Fundamental Right

is reasonable or not. A restriction which generally promotes a Directive Principle is

regarded as reasonable. The Supreme Court observed in Kasturi Lal v. State of Jammu &
12
Golak Nath v. State of Punjab, AIR 1967 SC 1643.

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 Kashmir, “Any action taken by the Government with the view to giving effect to any one

or more of the Directive Principles would ordinarily qualify for being regarded as

reasonable.”

6. It is the courts and not the Legislature which has to judge finally whether a restriction is

reasonable or not. 13

There is no exact standard or general pattern of reasonableness that can be laid

down in all cases. Each case is to be judged on its own merit. The standard varies with

the nature of the right infringed, the underlying purpose of the restrictions imposed, the

extent and the urgency of the evil sought to be remedied, the disproportion, of the

imposition, the prevailing condition at the time. These factors have to be taken into

consideration for any judicial verdict.

EFFECT V. SUBJECT MATTER TEST__________________________________________

What is the test to determine whether a law violates art.19 (1) or any fundamental right?

Legislation or a government action may have a direct effect on a fundamental right although its

subject matter may be different. The object o\f 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 v.

Union of India AIR 1978 SC 597, and in several other cases. For example, in the R.C. Cooper v.

13
Chintamani Rao v. State of M.P., AIR 1951 SC 118.

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Union of India AIR 1970 SC 564, the Supreme Court has said that it is the direct operation of the

act upon the rights which form the real test. However, earlier, in the, A.K. Gopalan v. State of

Madras, (1950) SCR 88, the Supreme Court has applied the test of subject matter in order to

uphold the validity of the preventive detention act against a challenge under art. 19(1)(a). The

effect test gives a greater protection to Fundamental rights. It may, however be noted that in

Bennett Coleman v. Union of India, AIR 1973 SC 106, it was held that, Effect test 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’.

FREEDOM OF SPEECH: ARTICLES 19(1)(a) AND 19(2)___________________________

Article 19(1)(a) says that all citizens shall have the right to freedom of speech and

expression. But this right is subject to limitations imposed under Article 19(2) which empowers

the state to put ‘reasonable’ restrictions on the following grounds, e.g., security of the state,

friendly relations with foreign states, public order, decency and morality, contempt of court,

defamation, incitement to offence and integrity and sovereignty of India.

The freedom of speech and expression does not confer an absolute right to speak and

publish, without responsibility, whatever one may choose or an unrestricted or unbridled license

that gives immunity for every possible use of language and does not prevent punishments for

those who abuse this freedom. 14 Clause (2) of Article 19 specifies the grounds on which the

freedom of speech and expression may be restricted. It enables the legislature to impose

reasonable restrictions on the right to free speech “in the interests of” or “in relation to” the

following:
14
Romesh Thappar v. State of Madras, AIR 1950 SC 124

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 1) Sovereignty and integrity of India.

2) Security of the state.

3) Friendly relations with foreign states.

4) Public Order.

5) Decency and Morality.

6) Contempt of court.

7) Defamation.

8) Incitement to an offence.

Reasonable restrictions under these heads can be imposed only by a duly enacted law and not by

an executive action.15 Now we shall consider these heads separately in the above given order

1. Sovereignty and Integrity of India – This ground has been by the Constitution

(Sixteenth Amendment) Act, 1963. The present amendment is made to guard against the

freedom of speech and expression being used to assail the territorial integrity and

sovereignty of the Union. Thus, it will be legitimate for the Parliament under this clause

to restrict the right of free speech if it preaches secession of any part of the territory of

India from the Union. However, what has to be kept in mind is that teh restriction is with

respect to the territorial integrity of the Union of India and not with respect to the

territorial integrity of the constituent states.16

15
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133; Bijoe Emmanuel v. State of Kerela, (1986)3
SCC 615

16
Article 3 of the Constitution : Formation of new states and alteration of areas, boundaries or names of
existing states – Parliament may by law –

(a) Form a new state by separation of territory from any state or by uniting two or more states or parts of states
or by uniting any territory to any part of any state;
(b) Increase the area of any state;

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 2. Security of the state – The security of the state may well be endangered by the crimes of

violence intended to overthrow the government, waging of war and rebellion against the

government, external aggression or war, etc. Serious or aggravated forms of public

disorder are within the expression “security of state”. Every public disorder cannot be

regarded as threatening the security of the state. In Romesh Thapar case17 the Supreme

Court pointed out that the expression does not refer to ordinary breaches of public order

which do not involve any danger to the state itself.

Incitement to commit violent crimes like murder would endanger the security of the state.

Thus, in State of Bihar v. Shailabala Devi18, the law which made the signs, words or

visual representations which caused the incitement of violence fall squarely within

Article 19(2). After the amendment of the Constitution in 1951 “public order” was added

as a ground for restrictive laws.

3. Friendly relations with foreign states – This ground was added by the Constitution

(First Amendment) Act of 1951. The State can impose reasonable restrictions on the

freedom of speech in the interest of friendly relations with foreign states. The justification

is obvious: unrestrained malicious propaganda against a friendly foreign state may

jeopardise the maintenance of good relations between India and that state.

(c) Diminish the area of any state;

(d) Alter the boundaries of any state;
(e) Alter the name of any state.

17
Romesh Thappar v. State of Madras, AIR 1950 SC 124.

18
AIR 1952 SC 329.

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 4. Public Order – The preservation of public order is one of the grounds for imposing

restrictions on the freedom of speech and expression. This ground did not occur in the

Constitution as framed in 1950 but was added later by the First (Amendment) Act, 1951.

The expression “public order” is synonymous with public peace, safety and tranquillity. 19

It signifies the absence of disorder involving breaches of local significance in

contradistinction to national upheavals such as revolution, civil strife or war, affecting the

security of the state.

It may be noticed that clause (2) uses the words “in the interests of public order” and not

“for the maintenance of public order”. A law may not be designed to directly maintain

law and order yet it may be enacted in the “interests of public order”. Also, not only such

utterances as are directly intended to incite disorder, but also those that have the tendency

to lead to disorder fall within the expression.20 Thus, a law punishing utterances made

with deliberate intention to hurt the religious feelings of any class is valid, because it

imposes a restriction on the right to free speech in the interest of public order, since such

speech or writing has the tendency to create public disorder even if in some cases such

activities may not lead to the breach of peace. 21 In the case of Virendra v. State of

19
Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.

20
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620; Virendra v. State of Punjab, AIR 1957 SC 896.

21
Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

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 Punjab22 certain safeguards which compelled the court to hold restrictions as

substantively and procedurally reasonable were:

a) The positive requirement of the existence of satisfaction of the authority as to the

necessity for the making of the order for specific purposes mentioned in the Act.

b) The discretion was given in the first instance to the State Government to determine

the necessity of passing the order.

c) The order could remain in force only for two months from its making thereof.

d) The aggrieved party was given the right to make representation to the State

government which could on consideration thereof rescind, modify or confirm the

order.

5. Decency and morality – Decency and morality is another ground on which freedom of

speech and expression may be reasonably restricted. Decency is same as lack of

obscenity. Obscenity becomes a subject of constitutional interest since it illustrates well

the clash between the right of individuals to freely express their opinion and the duty of

the state to safeguard their morals. It is obvious that the right to freedom of speech and

expression cannot be used to deprave and corrupt the community.

In Ranjit Udeshi v. State of Maharashtra23 the Supreme Court for the first time was

called upon to lay down the test to determine obscenity. The facts were that the

appellants, a Bombay bookseller, was prosecuted under Section 292of the Indian Penal

Code for selling and for keeping for sale the well known book, Lady Chatterly’s Lover

written by D.H. Lawrence. The Magistrate held that the book was obscene and sentenced

22
AIR 1957 SC 896.

23
AIR 1976 SC 881.

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 the appellant. The court held that it had the right to restrict the freedom on the grounds of

decency and morality.

6. Contempt of Court – The constitutional right to freedom of speech does not prevent the

courts from punishing for their contempt spoken or printed words or any other expression

calculated to have that effect.24 The expression “contempt of court” is now defined in

Section 2 of the Contempt of Courts Act, 1971 as under:

a) “contempt of court” means civil contempt or criminal contempt;

b) “civil contempt” means wilful disobedience to any judgement, decree, direction,

order, writ or any other process of a court or wilful breach of an undertaking given to

a court;

c) “criminal contempt” means the publication (whether by words spoken or written, or

by signs, or by visible representations, or otherwise) of any matter or the doing of any

other act whatsoever which

i) Scandalizes or tends to scandalize or lowers or tends to lower the authority of

any court

ii) Prejudices, or interferes or tends to interfere with the due course of any

judicial proceedings

iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

24
L.R. Frey v. R. Prasad, AIR 1958 Punj 377.

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 7. Defamation: Defamatory matter exposes a person to hatred, ridicule or contempt. The

law of defamation is divided into libel and slander. Defamatory matter, if in matter, if in

writing, printing or some other permanent medium, is a libel; if in spoken words or

gestures, a slander. Right to free speech does not entitle us to violate the rights of others.

8. Incitement to an offence – This is also a ground added in 1951. The freedom of speech

and expression cannot be used as a licence to incite people to commit an offence. During

the debate in the parliament for the inclusion of this clause it was argued that the phrase

“incitement to violence” should be used instead as the word “offence” has a very wide

meaning and can include any act which is punishable under the Indian Penal Code or any

other law. However, this suggestion was rejected. In State of Bihar v. Shailabala Devi25

the supreme court held that incitement to murder or any other violent crime would

generally endanger the security of the state; hence a restriction against such incitement

would be valid law under Article 19(2).

Sedition: Sedition embraces all those practices that, whether by word, deed or action are

calculated to disturb the peace and tranquillity of the State and lead innocent people to

subvert the government 26. Incitement to violence and public disorder is the gist of the

offence. However, criticism of the existing government or system and expression of a

desire for a different system altogether is not prohibited. 27

25
AIR 1952 SC 329

26
R. v. Sullivan, (1968) 11 Cox Cases 55.

27
Nihrendu v. Emperor, AIR 1942 FC 22, 26

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FREEDOM OF ASSEMBLY: ARTICLE 19(1)(b) AND 19(3)_________________________

Article 19 (1) (b) guarantees to all citizens of India right “to assemble peaceably and

without arms.” The right of assembly includes the right to hold meetings and to take out

processings. This right is however subject to the following restrictions:

1. The assembly must be peaceable;

2. It must be unarmed;

3. Reasonable restrictions can be imposed under clause 3 of Article 19.

The right of assembly is implied in the very idea of the democratic Government. The

right of assembly thus includes right to hold meetings and to take out processions. This right, like

other individual rights is not absolute but restrictive. The assembly must be non-violent and must

not cause any breach of public peace. If the assembly is disorderly or riotous then it is not

protected under Article 19 (1) (b) and reasonable restrictions may be imposed under clause (3) of

Article 19 in the interests of ‘sovereignty and integrity of India’ or ‘public order’.

Article 19 (1) (b) saves existing Indian law regulating public meetings in the interest of

public order if the restrictions are reasonable. If an assembly becomes unlawful it can be

dispersed. Chapter VIII of the Indian Penal Code lays down the conditions when an assembly

becomes “unlawful”. Under Section 141 of the Indian Penal Code, an assembly of five or more

persons becomes an unlawful assembly if the common object of the persons composing

assembly is:-

(a) To resist the execution of any law or legal process;

(b) To commit any mischief or criminal trespass;

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 (c) Obtaining a possession of any property by force;

(d) To compel a person to do what he is not legally bound to do or omit which he is legally

entitled to do.

(e) To overawe the Government by means of criminal force or show of criminal force or any

public servant in the exercise of his lawful powers.

Section 144, Criminal Procedure Code, 1973 empowers the Magistrate to restrain an

assembly, meeting or procession if there is a risk of obstruction, annoyance or injury to any

person lawfully employed or danger to human life, health or safety or a disturbance of the public

tranquility or a riot or any affray.

A law conferring authority on the magistrate to grant or refuse a license to hold a meeting

or a law imposing a restriction that no public procession could be taken out without a license

from a Magistrate has been held to be valid. 28

No public meeting for the furtherance or discussion of any subject likely to cause

disturbance for the excitement, or for the exhibition or distribution of any writing or printed

matter relating to any such subject, shall be held in any such proclaimed area, (a) unless writing

notice of the intention to hold such meeting and of the time and place of meeting has been given

to the District Magistrate or the Commissioner of Police, as the case may be, atleast three days

previously, (b) unless permission to hold such meeting has been obtained in writing from the

above officers as the case may be. All the above mentioned statutory provisions impose

reasonable restrictions under clause (3) of Article 19 on the right to freedom of assembly.

28
Dasappa v. Dy. Additional Commissioner, AIR 1960 Mys 57.

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FREEDOM TO FORM ASSOCIATION: ARTICLE 19(1)(c) AND 19(4)________________

Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right to form

associations and unions. Under clause (4) of Article 19, however, the State may by law impose

reasonable restrictions in this right in the interest of public order or morality or the sovereignty

and integrity of India.

The Criminal Law (Amendment) Act, 1908, as amended by the Madras Act, 1950,

provides that if the state government is of opinion that any association interferes with the

administration of law or with the maintenance of law and order or that it constitutes a danger to

the public peace it may, by notification in the Official Gazette declare such association to be

unlawful. Such a notification was to be placed before an advisory board. Representation against

such a notification could be made. If the advisory board was of opinion that the association was

not unlawful the Government was to cancel the notification.

The validity of the above Act was challenged in the case of State of Madras v. V. G.

Rao.29 The Supreme Court held that the restrictions imposed by Section 16(2)(b) of the Act were

unreasonable. The test under it was subjective satisfaction of the Government and the factual

existence of the grounds was not a justifiable issue. Therefore, the vesting of powers in the

Government to impose restriction on this right, without allowing the grounds tested in a judicial

enquiry, was a strong element to be taken into consideration in judging the reasonableness of the

restrictions on the right to form associations or union.

29
AIR 1952 SC 196.

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 The right to form union does not carry with it the right to achieve every object. Thus the

trade unions have no guaranteed right to an effective bargaining or right to strike or right to

declare a lock-out.30

FREEDOM OF MOVEMENT: ARTICLE 19(1)(d) AND 19(5)________________________

Article 19(1) (d) guarantees to all citizens of India the right “to move freely throughout

the territory of India.” This right is, however, subject to reasonable restrictions mentioned in

clause (5) of Article 19, i.e., in the interest of general public or (2) for the protection of the

interest of any Scheduled Tribe.

Article 19(1)(d) of the Constitution guarantees to its citizens a right to go wherever they

like in Indian territory without any kind of restriction whatsoever. They can move not merely

from one state to another but also from one place to another within the same state. This freedom

cannot be curtailed by any law except within the limits prescribed under Article 19(5).

Grounds of Restrictions: The State may under clause (5) of Article 19 impose reasonable

restrictions on the freedom of movement on two grounds:-

(1) In the interest of general public;

(2) For the protection of the interest of Scheduled Tribes.

In State of Uttar Pradesh v. Kaushalya, 31 the Supreme Court has held that the right of movement

of prostitutes may be restricted on ground of public health and in the interest of public morals.

30
Raghubar Dayal v. Union of India, AIR 1950 SC 263.

31
AIR 1964 SC 416; Kamala China v. State, AIR 1963 Punj. 36.

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The right of a citizen to move freely may also be restricted for the protection of the interest of

“Scheduled Tribes.”

In Rajneesh Kapoor v. Union of India,32 it has been held that the requirement of wearing helmet

is not a restriction on free movement of citizen.

FREEDOM OF RESIDENCE: ARTICLE 19(1)(e) AND 19(5)_________________________

According to Article 19(1) (e) every citizen of India has the right “to reside and settle in

any part of the territory of India.” However, under clause (5) of Article 19 reasonable restriction

may be imposed on this right by law in the interest of the general public or for the protection of

the interest of any Scheduled tribe.

The rights to reside and right to move freely throughout the country are complementary

and often go together. Therefore, most of the cases considered under Article 19 (1) (e) also. This

right is subject to reasonable restrictions imposed by law in the interest of general public or for

the protection of the interests of any Scheduled Tribes. Thus, where a prostitute, under the

Suppression of Immoral Traffic in Women and Girls Act, 1956, was ordered to remove herself

from the limits of a busy city or the restriction was placed on her movement and residence, it was

held to be a reasonable restriction. 33

The freedom of movement and residence may be curtailed and suspended during an

emergency. In the case of a foreigner it can be restricted under the Foreigners Acts of 1964 and

1966. A foreigner may be ordered to remove himself from India. The important case on this

32
Rajneesh Kapoor v. Union of India, AIR 2007 SC 204.

33
State of U.P. v. Kaushalya, AIR 1964 SC 416.

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point is Ibrahim Wazir v. State of Bombay.34 Section 7 of the Influx from Pakistan (Control) Act,

1946, empowered the Central Government to direct to removal from India of any person

including an Indian citizen who had committed or against whom reasonable suspicion existed of

having committed an offence under the Act, i.e., to enter India without permit or valid passport.

FREEDOM OF PROFESSION, OCCUPATION, TRADE OR BUSINESS: ARTICLE

19(1)(g) AND 19(6)

Reasonableness of restriction is to be determined in an objective manner and from the

standpoint of interest of the general public and not from the standpoint of the interests of persons

upon whom the restrictions have been imposed or upon abstract considerations. A restriction

cannot be said to be unreasonable merely because in a given case, it operates harshly. In

determining whether there is any unfairness involved, the nature of the right alleged to have been

infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil

sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at

the relevant time enter into judicial verdict. The reasonableness of the legitimate expectation has

to be determined with respect to the circumstances relating to the trade or business in question.

Canalisation of a particular business in favour of even a specified individual is reasonable where

the interest of the country are concerned or where the business affects the economy of the

country.35

A regulation of trade and commerce becomes challengeable under Article 19(1) (g), if it

is shown that it directly and proximately interferes in praesenti with the exercise of freedom of

34
AIR 1954 SC 299.

35
Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.

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trade. If the alleged restriction does not directly or proximately interfere with the exercise of

freedom of trade, the freedom guaranteed by Article. 19 (1) (g) is not violated. Once it is

assumed that the impugned legislation imposes a restriction on the freedom of trade, the burden

is on those who support it to show that the restriction imposed is reasonable and in the interests

of general public. The burden is on those who seek the protection of Article 19(6) and not on the

citizen who challenges the restriction are invalid. The Supreme Court has also emphasized that

“the greater the restriction, the more the need for strict scrutiny by the Court.”36

UNREASONABLE RESTRICTIONS_____________________________________________

Any law which does not strike a proper balance between the freedoms guaranteed and the

social control permitted by the clauses in Art. 19 is an unreasonable restriction.

In Chintaman Rao v. State of M.P AIR 1951 SC 118, the Central Provinces and the Berar

Regulation of Manufacture of Beedies (Agricultural Purpose) Act of 1948 was questioned as

unconstitutional. The Act provided that in the argicultural season no one should engage in the

manufacture of Beedies. The object of the legislation was to divert the labour engaged in the

manufacture of Beedies to the agricultural sector where there was a dearth of labour. It was held

by the Supreme Court that the legislation in question was not a reasonable restriction upon

occupational freedom. It was observed that even the persons who could not engage in the hard

manual labour necessary in agriculture such as children, the old and the infirm, were also

prevented in the legislation from making their livelihood in the manufacture of Beedies. No

alternative provision was contemplated for providing them with work during the period of their

enforced idleness.
36
Narendra Kumar v. Union of India, AIR 1960 SC 430.

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 The legislation not only compels those engaged in agricultural work from taking other

avocations but also prohibits persons in no connection with agriculture to undertake agricultural

operations. The legislature has thus failed to take into account the probable repercussions of the

restriction upon the persons affected by it. The restriction was, therefore, held to be

unreasonable. The legislation was accordingly struck down as unconstitutional.

A prohibition on the fundamental right to carry on occupation, trade or business is not

regarded as reasonable if is it imposed not in the interests of the general public but keeping in

view the susceptibilities and sentiments of a section of a community.

In Mohd. Faruk v. State of M.P 1970 AIR SC 93, the M.P Municipal Corporation Act,

1956, made it mandatory upon the Corporation to make adequate provisions for the construction,

maintenance and regulation of a slaughter house. Section 432 authorizes the Government to

modify or repeal any bye-laws made by the Corporation. Therefore acting under Section 432, the

Government by a notification cancelled the bye-laws made by the Jabalpur Municipality relating

to bulls and bullocks which prohibited the slaughter of such animals. It was held by the Supreme

Court that such notification infringed the fundamental right of the petitioner guaranteed under

Art. 19(1)(g) as the power to cancel the bye-laws cannot be exercised in an arbitrary manner. It

was observed that the sentiments of a section of a community may be hurt by permitting the

slaughter of bulls and bullocks. However, a prohibition imposed on the exercise of a fundamental

right to carry on an occupation, trade or business will not be regarded as reasonable, if it is

imposed not in the interest of general public but merely to respect the susceptibilities and

sentiments of a section of the people whose way of life, belief or thought is not the same as that

of the claimant.

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 A law which confers arbitrary and uncontrolled power upon the executive in the matter of

regulating trade or business cannot be held reasonable.

This was held in Dwaraka Pd. V. State of U.P. AIR 1954 SC 224, “the licensing authority

may grant, refuse to grant, renew or refuse to renew a license and may sustain, cancel, revoke or

modify any license or any terms thereof granted by him under the Order for reasons to be

recorded: provided that every power which is under the Order exercisable by the State Coal

Controller or any person authorized by him on his behalf.” Section 4(3) of the U.P Coal Control

Order, 1953, was declared void because it gave unrestrained authority to a single individual to

grant, withhold or cancel licenses in any way he chooses, and there was nothing in the Order

which could ensure a proper execution of the power or operate as a check on the injustice that

might result from the improper execution of the same.

Therefore, where power is conferred on the executive to regulate and control the exercise

of the freedom conferred by Article 19(1)(g), it is necessary that the law which does so should

either lay down the circumstances or grounds on which the power may be exercised. An Act

which vests discretionary powers on an executive should also give sufficient guidance in the

matter of the exercise of discretionary powers in order to sustain reasonableness of the

restriction. However, it is not necessary that such guidance or policy should be expressly and

specifically stated. It is enough if such guidance can be found on a fair reading of the Act and

other concerning circumstances.

CONCLUSION_____________________________________________________

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 Any restriction which to maintain public order, in the sense, public peace or safety are in

the interests of the general public. But the restrictions should be reasonable. The restrictions that

put the rights guaranteed, within the social controls permitted under clauses (2) to (6) are

reasonable.

The expression used in Art. 19(2) “in the interests of” give wide amplitude to the

permissible law which can be enacted to impose reasonable restrictions on the right guaranteed

by Art. 19(1)(a) under one of the heads mentioned in Art. 19 (2). No restriction can be placed by

the right to freedom of speech and expression on any ground other than those specified in Art.19

(2).

Every legislation is set with the aim of achieving an objective. In achieving those objects,

the legislations should not arbitrarily invade upon the rights of a citizen. The restriction should

look at the set objects that the legislation seeks to achieve and it should establish a close link

with such object of the legislation. If the close proximate effect of the law is that it abridges the

fundamental rights of the citizens and if the restriction prevents such abridgement, then the

restriction is reasonable. On the other hand, if the restriction goes too far in linking itself with the

object of the legislation then such a restriction is unreasonable. Another important test is, if a

said provision or a right shows clear sign of danger or even shows an apprehend danger then a

restriction on such a law is reasonable.

BIBLIOGRAPHY______________________________________________________________

 CASES cited and referred:

1. A. K. Gopalan v. State of Madras, (1950) SCR 88.

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 2. Babul Parate v. State of Maharashtra, AIR 1961 SC 884.

3. Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625.

4. Bennett Coleman v. Union of India, AIR 1973 SC 106.

5. Bijoe Emmanuel v. State of Kerela, (1986)3 SCC 615.

6. Chintaman Rao v. State of M.P., AIR 1951 SC 118.

7. Collector of Customs v. Sampathu Chettty, AIR 1963 SC 316.

8. Dasappa v. Dy. Additional Commissioner, AIR 1960 Mys 57.

9. Dwaraka Pd. V. State of U.P. AIR 1954 SC 224.

10. Excel Wear v. Union of India, AIR 1979 SC 25.

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

12. Gilles Pfeiffer v. Union of India, AIR 1996 Mad 322.

13. Golak Nath v. State of Punjab, AIR 1967 SC 1643.

14. Harakchand v. Union of India, AIR 1970 SC 1453.

15. Ibrahim Wazir v. State of Bombay, AIR 1954 SC 299.

16. Kamala China v. State, AIR 1963 Punj. 36.

17. Kharak Singh v. State of UP, AIR 1963 SC 1295.

18. L.R. Frey v. R. Prasad, AIR 1958 Punj 377.

19. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

20. Mohd.Faruk v. State of M.P., AIR 1970 SC 93.

21. Nihrendu v. Emperor, AIR 1942 FC 22, 26.

22. R. v. Sullivan, (1968) 11 Cox Cases 55.

23. R.C. Cooper v. Union of India, AIR 1970 SC 564.

24. Rajneesh Kapoor v. Union of India, AIR 2007 SC 204.

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 25. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

26. Ranjit Udeshi v. State of Maharashtra, AIR 1976 SC 881.

27. Rex v. Basudev, AIR 1950 SC 67.

28. Romesh Thappar v. State of Madras, AIR 1950 SC 124.

29. State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

30. State of Madras v. V.G. Rao, AIR 1952 SC 196.

31. State of U.P. v. Kaushalya, AIR 1964 SC 416.

32. Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.

33. Virendra v. State of Punjab, AIR 1957 SC 896.

 Primary Source

1. The Constitution of India.

 Secondary Source

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1. Acharya, P.D.T. Constitutional Law. Lok Sabha Secretariat. New Delhi. 2008.

2. Bakshi, P. M. The Constitution of India. Universal Law Publishing Co. Delhi. (10th ed.).

2010.

3. Dhamija Ashok. Constitution. Wadhwa Nagpur. (1st ed.). 2007.

4. Jain, M.P. Indian Constitutional Law. Lexis Nexis. (6th ed. reprint). 2011.

5. Landmark Judgements. Universal Law Publishing Co. New Delhi (3rd ed.) 2010.

6. Pandey, J.N. The Constitutional Law of India. Central Law Agency. (48th ed.) 2011.

ROMIT RAJA SRIVASTAVA 2012 28

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7. Saharay, H.K. The Constitution of India: An Analytical Approach. Eastern Law House.

(3rded.). 2002.

Dictionaries:

1. Black’s Law Dictionary.

2. Wharton’s Law Lexicon.

Citation Book:

1. Blue Book of Citation.

WEBLIOGRAPHY

1. Kafaltiya, A.B. Interpretation of Statutes. (8th ed.) 2010. Universal Law Publishing Co.

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&f=false . Retrieved on 3 October 2011.

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http://www.goforthelaw.com/articles/fromlawstu/article48.htm, retrieved on 12 October

2011.

3. Reasonable Restrictions under Article 19. Available at:

http://www.scribd.com/doc/39884387/Reasonable-Restrictions-Under-Article-19 . Retrieved

on 7 October 2011.

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4. Singhvi, L.M. and Swarup Jagdish. Constitution of India. 2006. Modern Law Publishers.

Available at:

http://books.google.co.in/books?id=zSw9AQAAIAAJ&q=test+to+determine+reasonable+re

strictions+under+Article+19&dq=test+to+determine+reasonable+restrictions+under+Article

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estrictions+under+Article+19&dq=test+to+determine+reasonable+restrictions+under+Articl

e+19&hl=en&ei=OvLITtO1KIqrrAfQ9P29Dg&sa=X&oi=book_result&ct=result&resnum=

1&ved=0CC4Q6AEwAA. Retrieved on 18 October 2011.

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10. www.practicallawyer.com

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